State v. Wilson , 117 N.M. 11 ( 1993 )

OPINION

MINZNER, Chief Judge.

Defendant appeals his convictions for kidnapping and four counts of criminal sexual penetration in the second degree (CSP II). Defendant and Complainant were friends and former co-workers at the time of the incident from which this case arose.

According to Complainant’s testimony, in the early morning hours of January 10, 1990, Defendant appeared at her door claiming to be drunk and experiencing car trouble. After she let him into her house, he verbally threatened her, grabbed her arms, and forced her into a bedroom and to undress. In the bedroom he secured her hands with handcuffs, displayed a gun, knife, and rope, and threatened to use the gun if she did not do what he wanted. He then compelled her to engage in fellatio and, after repositioning her with the handcuffs and rope, in sexual as well as anal intercourse. He subsequently moved her into the bathroom, requested a wash cloth, wiped himself, and again compelled her to perform fellatio. Afterward, he became remorseful; apparently in sympathy, she said that she would not report the incident if he sought professional help for his problems, and he left the gun with her when he left her house. She reported the incident five days later when she came to the conclusion that he had lied about seeking professional help.

Defendant’s defense theory was alibi: his wife testified that he was in bed asleep with her at the time of the alleged incident. They also presented evidence to show that the gun was not Defendant’s, but rather belonged to Complainant. Defendant suggested that Complainant fabricated the charges because she was angry with him for breaking off an affair with her and also for not repaying a loan she had made to him.

The jury returned verdicts of guilty on one count of kidnapping and four counts of CSP II. At sentencing, the trial court imposed nine-year sentences for each conviction and added three years to each sentence due to aggravating circumstances, which included harm to Complainant, harm to Defendant’s family, and Defendant’s lack of remorse. See NMSA 1978, § 31-18-15.1 (Repl.Pamp.1990) (alteration of basic sentence for mitigating or aggravating circumstances). The trial court added one year on the basis of a prior Colorado felony conviction and one year for use of a firearm. See NMSA 1978, § 31-18-17(B) (Repl.Pamp.1990) (alteration of basic sentence; habitual offender); NMSA 1978, § 31-18-16(A) (Repl.Pamp.1990) (alteration of basic sentence; use of firearm).

Defendant raises twelve issues on appeal, seven of which deal with matters at trial and the rest of which challenge the validity of Defendant’s sentence. The trial issues include Defendant’s right to have the jury instructed on the lesser-included offense of .criminal sexual penetration in the third degree (CSP III), the timeliness of his objection to the prosecution’s use of peremptory challenges, and whether he received effective assistance of counsel. Three of the trial issues concern evidentiary rulings excluding evidence Defendant wished to introduce. We address those issues under one heading. Defendant also challenges the sufficiency of the evidence to support his convictions. The sentencing issues include the propriety of the factors on which the trial court relied in aggravating and enhancing Defendant’s sentences and the sufficiency of the evidence to support multiple counts of CSP II.

We affirm Defendant’s convictions; we vacate Defendant’s sentence and remand for resentencing in accordance with this opinion. We address below each of the issues Defendant raises. We first address and answer summarily Defendant’s contentions that his convictions are not supported by substantial evidence and that neither the multiple CSP II sentences nor the increased sentences under Sections 31-18-16(A) and -17(B) were proper.

I. ISSUES ADDRESSED SUMMARILY

We are aware of conflicts in the evidence and the conflicting inferences the jury was entitled to draw. Nevertheless, we must resolve those inferences and conflicts in the light most favorable to the judgment. State v. Lankford, 92 N.M. 1, 2, 582 P.2d 378, 379 (1978). “It is for the trier of fact to determine the weight and sufficiency of the evidence, including all reasonable inferences.” State v. Vialpando, 93 N.M. 289, 292, 599 P.2d 1086, 1089 (Ct.App.), cert. denied, 93 N.M. 172, 598 P.2d 215 (1979). Based on Complainant’s testimony, see NMSA 1978, §§ 30-4-1(A)(3) & 30-9-11(B)(5) (Repl. Pamp.1984), we hold that Defendant’s convictions are supported by sufficient evidence. See generally State v. Duran, 107 N.M. 603, 605, 762 P.2d 890, 892 (1988) (discussing test for sufficiency of evidence to sustain guilty verdict).

Defendant also contends that the facts in the present case establish one continuous offense, and that his sentences are contrary to the prohibition against multiple punishments for a single offense. This argument, based on his right to be free from double jeopardy, raises an issue of legislative intent. There is controlling Supreme Court precedent.

The New Mexico Supreme Court in Herron v. State, 111 N.M. 357, 805 P.2d 624 (1991), recently detailed the factors to be used to determine whether multiple acts committed in close temporal proximity constitute a continuous offense or separate and distinct offenses under Section 30-9-11. Under Herron, penetrations of separate orifices with the same object constitute separate offenses. Therefore, the acts of anal intercourse, sexual intercourse, and at least one instance of fellatio constitute separate offenses under Herron. To determine if the second instance is a separate offense we refer to the factors set out in Herron for making such a determination. The second instance of fellatio occurred only a short time after the anal penetration. However, Defendant had moved the victim from the bathroom to the bedroom before forcing her to engage in fellatio a second time. In addition, there had been an intervening event between the anal intercourse and the second act of fellatio. We. conclude that the second act of fellatio was a separate and distinct act under Herron. Therefore, we hold that there was no double jeopardy violation.

Defendant also challenges the firearm enhancement of his sentence. We recently answered a similar challenge based on double jeopardy in State v. Charlton, 115 N.M. 35, 38-41, 846 P.2d 341, 344-47 (Ct.App.1992), cert. denied, 114 N.M. 577, 844 P.2d 827 (1993). Based on that opinion, we conclude that Defendant’s challenge to the firearm enhancement of his sentence lacks merit.

Finally, Defendant argues that a habitual offender enhancement was improperly imposed because the Colorado felony for which he was previously convicted is not a felony in New Mexico. See § 31-18-17(A)(2)(c); State v. Knight, 75 N.M. 197, 199, 402 P.2d 380, 382 (1965). Whether or not the Colorado felony is a felony in New Mexico, the felony conviction may be used if it was punishable by imprisonment of more than one year. State v. Mankiller, 104 N.M. 461, 469, 722 P.2d 1183, 1191 (Ct.App.), cert. denied, 104 N.M. 378, 721 P.2d 1309 (1986). Defendant admitted that he was convicted in Colorado of the class five felony of possession of a dangerous weapon, and the State introduced the judgment and sentence of this conviction. Thus, the State presented a prima facie case for a habitual offender enhancement. Id. Moreover, the trial court noted that a felony by definition is punishable by more than one year, and indeed, a fifth class felony conviction was punishable by more than one year of imprisonment at the time of Defendant’s prior conviction. Colo.Rev.Stat.Ann. § 18-1-105(1)(a)(II) (West 1986). Accordingly, it was proper to impose a habitual offender enhancement.

We next address the trial court’s ruling on denying an instruction on CSP III. We then address the remaining trial issues and the question of whether Defendant’s sentences were aggravated on a proper basis.

II. INSTRUCTION ON CSP III

A defendant is entitled to a lesser-included offense instruction only if there is evidence tending to establish the lesser offense, and there must be some view of the evidence tending to establish that the lesser offense is the highest degree of crime committed. State v. Fish, 102 N.M. 775, 779, 701 P.2d 374, 378 (Ct.App.), cert. denied, 102 N.M. 734, 700 P.2d 197 (1985). We agree with the trial court’s analysis of this issue, which was that the evidence did not support the instruction.

Defendant tendered a correct CSP III instruction at trial, arguing the evidence in support of the instruction consisted of Complainant’s testimony that he set the gun down before the actual sexual penetrations commenced. That argument would not support the giving of a CSP III instruction. However, based on our review of the record, we believe that the trial court rejected the instruction on another ground, which is the issue raised on appeal. We next address the issue raised on appeal. See State v. Corneau, 109 N.M. 81, 88, 781 P.2d 1159, 1166 (Ct.App.) (addressing comparable issue despite tender that may have been unclear or equivocal), certs. denied, 108 N.M. 668, 777 P.2d 907 (1989).

The trial court was entitled to refuse Defendant’s instruction on CSP III if there was no view of the evidence tending to establish the lesser offense as the highest degree of the crime committed. Fish, 102 N.M. at 779, 701 P.2d at 878. Defendant asks us to allow the jury to select portions of Complainant’s testimony, portions of Defendant’s testimony, and base a verdict on the composite. That is to say, to conclude that CSP III was the highest degree of crime committed, the jury would have to believe Complainant’s allegation that-an attack occurred while rejecting her contention that a gun was involved, and to reject Defendant’s alibi defense while believing Defendant’s contention that the gun belonged to Complainant. We believe the fragmentation of the evidence that would have to occur for the jury to conclude that CSP III had been committed justified the trial court’s refusal of the lesser-included offense instruction. See State v. Manus, 93 N.M. 95, 100-01, 597 P.2d 280, 285-86 (1979), overruled on other grounds by Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982); State v. Marquez, 96 N.M. 746, 748-49, 634 P.2d 1298, 1300-01 (Ct.App.1981).

Because Defendant offered the defense of an alibi, he was not entitled to a lesser-included offense instruction on the ground that the jury might have rejected Complainant’s testimony regarding the gun. See State v. Coffin, 565 P.2d 391, 393-94 (Or.Ct.App.1977); State v. Cameron, 216 Kan. 644, 533 P.2d 1255, 1262 (1975). In Comeau, the jury was entitled to rely on the victim’s testimony regarding the use of force, but accept the defendant’s theory that the force used was insufficient to establish false imprisonment as an independent felony. We think Comeau raised a very different factual question than that involved in this case. In Comeau, there was a factual issue the jury had to resolve, which was whether the victim’s testimony necessarily established the greater offense. In this ease, there was no comparable factual issue. Cf. State v. Thayer, 32 Or.App. 193, 573 P.2d 758, 760 (1978) (qualifying language in Coffin and refusing to apply it in a case where state of mind is element and state’s own evidence permitted competing inference).

We recognize that a requested instruction must be given if it is supported by evidence, even if the instruction is contrary to Defendant’s initial theory of the case. See State v. Privett, 104 N.M. 79, 81, 717 P.2d 55, 57 (1986); cf. State v. Benavidez, 94 N.M. 706, 708, 616 P.2d 419, 421 (1980) (the defendant was entitled to an instruction on voluntary manslaughter, even though he denied ever having shot at the victim), overruled on other grounds by Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982). However, there must be some evidence other than that obtained by taking portions of the victim’s and portions of the defendant’s testimony to support the lesser-included offense instruction. In Fish, the defendant admitted being present and engaging in sex with the victim; no knife was found. When there is other evidence, then the risk of impermissible distortion is eliminated. In Benavidez, another witness testified about the defendant’s gesture with his arm, 94 N.M. at 708, 616 P.2d at 421, and in Privett, there was “considerable evidence relating to Mr. Privett’s long-term alcoholism and his alcoholic condition during the hours surrounding his wife’s death,” 104 N.M. at 81, 717 P.2d at 57, from law enforcement officers. Thayer is in accord with Privett. 573 P.2d at 759-60.

Judge Chavez suggests in his dissent that there was “other evidence in the case to corroborate Defendant’s testimony about the gun — his wife’s testimony and the lack of fingerprint evidence.” 117 N.M. at 21, 868 P.2d at 666. With respect, we do not believe this evidence eliminates the risk of impermissible distortion. Defendant’s evidence concerning the earlier possession of the gun does not detract from Complainant’s testimony concerning the use of the gun on the night in question. Defendant’s wife did not testify to the location of the gun on the night in question, and we do not believe the evidence that there were no prints on the gun is analogous to the missing knife in Fish. Defendant was either innocent of any crime or guilty of CSP II.

III. USE OF PEREMPTORY CHALLENGES

Defendant asserts that the State’s use of its peremptory challenges during jury selection violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, the Sixth Amendment to the United States Constitution, and the New Mexico Constitution. However, Defendant made his objection after the venire panel had been dismissed and the petit jury sworn and preliminarily instructed. The trial judge denied his motion to dismiss and also stated that the objection was untimely because it was too late to cure any alleged error. We agree.

It may be that Defendant only raised an equal protection challenge below. See State v. Lucero, 104 N.M. 587, 590, 725 P.2d 266, 269 (Ct.App.1986) (defendant must make a timely and specific objection that apprises the trial court of the nature of the claimed error); Reynolds v. City of Little Rock, 893 F.2d 1004, 1009 (8th Cir.1990) (if Baiscm-type objection was clear and timely enough for lower court to address merits of claim, defendant’s appeal not barred because state contends objection was equivocal and untimely). Nevertheless, we believe the objection Defendant made was untimely, whether it was based on the Equal Protection Clause, the Sixth Amendment, or the state constitutional provisions.

Generally, a challenge to jury selection must be made before the jury is sworn. The Supreme Court’s discussion of remedies in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), suggests this approach. The Court noted two options: discharge the venire and select a new jury from a panel not previously associated with the case, or disallow the discriminatory challenges and resume selection with the improperly challenged jurors reinstated on the venire. Id. at 99-100 n. 24, 106 S.Ct. at 1724-25 n. 24. Both options assume that the issue will be decided before the jury is sworn. See also the analysis in United States v. Cashwell, 950 F.2d 699, 704 (11th Cir.1992); United States v. Dobynes, 905 F.2d 1192, 1196 (8th Cir.), cert. denied, 498 U.S. 877, 111 S.Ct. 206, 112 L.Ed.2d 167 (1990). But see Reynolds, 893 F.2d at 1009 (Batson issue preserved in civil case where trial judge ruled on merits even though objection raised after jury was sworn); United States v. Thompson, 827 F.2d 1254, 1257 (9th Cir.1987) (considering Batson claim timely made after jury sworn because there was no prejudice to the government and defendant could be retried).

State cases have taken a similar approach. As the Missouri courts have reasoned:

“There simply is no justification for defense counsel to wait until the remaining venirepersons are discharged to challenge the state’s peremptory strikes. If defense counsel does wait until the venire panel is discharged and the challenge is sustained, then the jury selection process must start anew, and an additional venire panel must be called. This simply delays justice, and, in those jurisdictions where an additional venire is not readily available, the delay can be substantial.”

State v. Cummings, 838 S.W.2d 4, 6 (Mo.Ct.App.1992) (quoting State v. Smith, 791 S.W.2d 744, 747 (Mo.Ct.App.1990)). Accordingly, the objection should be made before the jury is sworn. See Ross v. State, 581 So.2d 495, 496 (Ala.1991); State v. Harris, 157 Ariz. 35, 754 P.2d 1139, 1140 (1988) (en banc); Pacee v. State, 306 Ark. 563, 816 S.W.2d 856, 859 (1991); State v. Castillo, 486 So.2d 565, 565 (Fla.1986); Greene v. State, 260 Ga. 472, 396 S.E.2d 901, 902 (1990); People v. Wright, 218 Ill.App.3d 764, 161 Ill.Dec. 444, 578 N.E.2d 1090, 1098 (1991); State v. Potter, 591 So.2d 1166, 1169 (La.1991) (requiring an objection “during the jury selection process itself’); Stanley v. State, 313 Md. 50, 542 A.2d 1267, 1276 (1988); People v. Williams, 174 Mich.App. 132, 435 N.W.2d 469, 472 (Mich.Ct.App.1989); Thomas v. State, 517 So.2d 1285, 1286-88 (Miss.1987); People v. Harris, 542 N.Y.S.2d 411, 412 (App.Div.1989); State v. Jones, 293 S.C. 54, 358 S.E.2d 701, 704 (1987). A Texas statute requires the objection to be made before the jury is sworn. See Taylor v. State, 825 S.W.2d 212, 214 (Tex.Ct.App.1992).

We may review issues raised for the first time on appeal, in our discretion, if they involve questions of fundamental error. SCRA 1986, 12-216(B)(2) (Repl.1992); cf. State v. English, 795 S.W.2d 610, 612 (Mo.Ct.App.1990) (defendant’s Batson objection ruled untimely where made after jury panel had been discharged, but court reviewed claim under plain error doctrine). If there is substantial evidence to support the verdict, however, we will not resort to fundamental error. State v. Rodriguez, 81 N.M. 503, 505, 469 P.2d 148, 150 (1970). As indicated above, there is substantial evidence to support Defendant’s convictions. We see no other basis for invoking the concept of fundamental error. See State v. Orosco, 113 N.M. 780, 784, 833 P.2d 1146, 1150 (1992) (rule of fundamental error applies only if there has been miscarriage of justice, if question of guilt is so doubtful that it would shock conscience to permit conviction to stand, or if substantial justice has not been done). We thus decline to address Defendant’s equal protection, Sixth Amendment, and New Mexico constitutional claims.

IV. EXCLUSION OF EVIDENCE

Defendant first argues that it was reversible error for the trial court to prohibit his six-year-old son from testifying that he had seen Complainant performing fellatio on Defendant on a prior occasion. Defendant argues that the testimony was relevant because it corroborated his claim that he and Complainant had an affair and demonstrated her motive to lie. The State agrees that the testimony is relevant. However, the State argues that the evidence was nevertheless properly excluded because it was cumulative and too prejudicial. We agree.

As the State points out, Defendant cross-examined Complainant regarding the alleged sexual affair. In addition, the trial court allowed Defendant and his wife to testify regarding an affair between Defendant and Complainant. Therefore, the trial court could properly exclude the evidence as cumulative. See State v. Lujan, 94 N.M. 232, 233, 608 P.2d 1114, 1115 (1980), overruled on other grounds by Sells v. State, 98 N.M. 786, 653 P.2d 162 (1982). Further, determining whether the prejudicial impact of evidence outweighs its probative value is left to the discretion of the trial court. State v. Martinez, 94 N.M. 50, 52, 607 P.2d 137, 139 (Ct.App.1980). Given the inflammatory nature of the testimony and its limited probative value, we cannot say that the trial court abused its discretion in excluding the testimony. See SCRA 1986, 11-403; see also SCRA 1986, 11-413(A) (evidence of Complainant’s past sexual conduct “shall not be admitted unless, and only to the extent that the court finds, that evidence of the victim’s past sexual conduct is material and relevant to the case and that its inflammatory or prejudicial nature does not outweigh its probative value”).

Defendant also complains about the trial court’s refusal to allow Defendant to present the testimony of some of his family members regarding several guns Defendant claimed they received as gifts. On cross-examination, the prosecutor had asked Defendant’s wife about State’s Exhibit 8, the gun that she testified Complainant had offered to sell to Defendant prior to January 10,1990. Specifically, the prosecutor asked Defendant’s wife if she could identify the caliber of the gun. The prosecutor also asked her if she had purchased a number of guns in recent years. After she answered that she really didn’t know much about guns, the prosecutor asked her whether she had bought the guns for Defendant. She denied that she had bought the guns for Defendant and testified that she had purchased them as gifts for her in-laws. On direct examination, Defendant testified in detail regarding which relative had received each of the guns his wife had purchased. Thus, the record indicates that the prosecutor asked Defendant’s wife about her gun purchases in an effort to impeach her credibility on the issue of whether she recognized State’s Exhibit 8, as well as to impeach her general character for honesty, and that Defendant wished to rehabilitate her by introducing additional testimony by members of Defendant’s family that his wife had indeed given them the guns she had purchased.

Defendant argues that the trial court excluded his additional witnesses because they were not included on his witness list. See McCarty v. State, 107 N.M. 651, 655, 763 P.2d 360, 364 (1988). We do not think the record supports this claim. Rather, the trial court appears to have excluded the testimony on at least one other basis, which was that the anticipated testimony was not important to the central issues in the case. We conclude that the court properly exercised its discretion. See SCRA 11-403 (“relevant ... evidence may be excluded if its probative value is substantially outweighed by the danger of ... confusion of the issues or ... considerations of undue delay, waste of time or needless presentation of cumulative evidence”).

Finally, Defendant contests the trial court’s decision to prohibit Defendant from testifying that Complainant owned a vibrator. We agree with the trial court’s decision to prohibit the testimony. The danger of unfair prejudice plainly outweighed any probative value the evidence may have had. SCRA 11-413.

V. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant asserts that he received ineffective assistance of counsel if the Batson-type objection is held to be untimely. He argues that defense counsel’s failure to address the discriminatory use of peremptory challenges in a timely manner cast doubt on the reliability of the trial. We do not reach this claim.

Recent decisions of this Court have established that we will not decide denial of effective assistance of counsel claims unless the record on appeal establishes a prima facie case of ineffective assistance. See State v. Richardson, 114 N.M. 725, 729, 845 P.2d 819, 823 (Ct.App.), cert. denied, 114 N.M. 550, 844 P.2d 130 (1992); State v. Swavola, 114 N.M. 472, 475, 840 P.2d 1238, 1241 (Ct.App.), cert. denied, 114 N.M. 501, 841 P.2d 549 (1992); State v. Powers, 111 N.M. 10, 12, 800 P.2d 1067, 1069 (Ct.App.), cert. denied, 111 N.M. 16, 801 P.2d 86 (1990). A prima facie case is not made when some plausible, rational strategy or tactic can explain counsel’s conduct. Swavola, 114 N.M. at 475, 840 P.2d at 1241. A prima facie showing also is not made unless there is a basis on the record for concluding that counsel’s conduct “resulted in prejudice” to the defendant. See Richardson, 114 N.M. at 729, 845 P.2d at 823. On the record before us, we cannot say that defense counsel’s conduct was either clearly inexplicable or prejudicial.

The State observes, and Defendant does not dispute, that the petit jury consisted of four Hispanic and eight Anglo jurors, that the juror selected as an alternate and the prosecutor are both Hispanic, and that the victim is Anglo. As Judge Chavez notes in his dissent, Defendant is Anglo. The record in this case indicates that the venire panel consisted of thirty-eight people, of whom twenty-three or twenty-four have Hispanic surnames.

On these facts, an inference of discrimination based on ethnicity might have seemed speculative to counsel. Cf. State v. Gonzales, 111 N.M. 590, 596, 808 P.2d 40, 46 (Ct.App.), cert. denied, 111 N.M. 416, 806 P.2d 65 (1991) (Hispanic male defendant, prosecutor struck only Hispanic males, leaving a jury of eleven women and one man, of whom four were Hispanic; court analyzed ways in which a prima facie showing of intentionally discriminatory conduct can be made). The answer to the question of whether a trial court would have been willing to make the inference required is not so clear that we are willing to conclude that Defendant has made a prima facie showing of deficient trial performance by his counsel.

In addition, defense counsel might have had reasons related to Defendant’s theory of the case for not opposing the prosecutor’s use of the State’s peremptory challenges. Perhaps counsel initially concluded that one or more of the prosecutor’s challenges had removed an individual juror on whom Defendant would have used one of his peremptory challenges. Alternatively, counsel originally might have been satisfied that the final jury selected was a fair cross-section of the community and that Defendant’s chances for an acquittal would not improve with any changes and might instead lessen. Neither of these possibilities seems so remote that we are prepared to say that Defendant has shown deficient trial performance or a performance that probably resulted in prejudice.

In his dissent, Judge Chavez makes a thoughtful argument that failure to make a timely objection to a prosecutor’s discriminatory use of peremptory challenges should be viewed as presumptively prejudicial on direct appeal and result in a remand for a Batson hearing. See Ex Parte Yelder, 575 So.2d 137, 139 (Ala.), cert. denied, — U.S. -, 112 S.Ct. 273, 116 L.Ed.2d 225 (1991). As indicated above, we think under our cases the record on direct appeal must show more than a failure to make a timely objection. We do not believe the record in this case shows any more than that. As a consequence, if we remand, in effect we have eliminated the rule established in this case that a Batson challenge must be made before the jury is sworn.

Absent a sufficient showing of ineffective assistance of counsel to justify remand for an evidentiary hearing on that claim, Defendant’s argument is not properly before us. See Richardson, 114 N.M. at 729, 845 P.2d at 823. We conclude that the record on appeal does not establish a prima facie case of ineffective assistance of counsel. Defendant’s claim in this instance is more appropriately suited to a post-conviction motion pursuant to SCRA 1986, 5-802 (Repl.1992). See, e.g., Government of Virgin Islands v. Forte, 865 F.2d 59, 64-65 (3d Cir.1989); cf. People v. Reyes, 161 A.D.2d 201, 554 N.Y.S.2d 587, 588 (N.Y.App.Div.1990) (writ of coram nobis).

Defendant also argues that he did not receive effective assistance of counsel because his trial counsel failed to call April and Joe Orcato to testify on Defendant’s behalf. However, the alleged testimony of the two witnesses is not a matter of record, and thus it cannot be reviewed on appeal. Powers, 111 N.M. at 12, 800 P.2d at 1069.

Finally, Defendant notes that defense counsel failed to object to the prosecutor’s method of questioning his wife due to her hearing impairment and did not adequately impeach Steve Crawford and Toby Romero. The decision to object is a matter of strategy and tactics on which we will not attempt to second-guess trial counsel. See State v. Rodriguez, 107 N.M. 611, 615, 762 P.2d 898, 902 (Ct.App.), cert. denied, 107 N.M. 546, 761 P.2d 424 (1988). We cannot say on this record that defense counsel failed to “exercise [the] skill, judgment and diligence of a reasonably competent defense attorney.” See State v. McGuinty, 97 N.M. 360, 363, 639 P.2d 1214, 1217 (Ct.App.1982). We need not address Defendant’s contention regarding the lesser-included offense instruction because we have addressed that issue on the merits.

VI. AGGRAVATING FACTORS

Defendant suggests that aggravating circumstances must be proven beyond a reasonable doubt. However, he fails to cite any authority for his position. See In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329, 1330 (1984) (we need not address arguments unsupported by cited authority). We will uphold the trial court’s aggravation of a sentence if the circumstances relied on are supported in the record and constitute proper factors to consider under the enhancement statute. See State v. Bernal, 106 N.M. 117, 119, 739 P.2d 986, 988 (Ct.App.), cert. denied, 106 N.M. 81, 738 P.2d 1326 (1987). We agree with Defendant regarding one factor. We discuss the other factors first.

Defendant seems to contest harm to Complainant as an aggravating circumstance for two reasons. To the extent he argues that harm to Complainant is already taken into account by the legislature in its creation of the offense of CSP II involving personal injury, we disagree. Defendant was convicted of CSP II based on his use of a deadly weapon. Consideration of harm to the victim is not repetitive. Defendant also argues that there is always some harm to the victim of any violent crime. That is true. However, it is well settled that the court may take into account the circumstances surrounding the offense, and in so doing may include the extent of harm to the victim. See Bernal, 106 N.M. at 118, 739 P.2d at 987. Evidence of Complainant’s physical injuries and psychological trauma were sufficient to support the trial court’s exercise of discretion in relying on the harm to Complainant as an aggravating circumstance. See id.

Defendant also contends that the trial court improperly relied on his lack of remorse as an aggravating circumstance. See State v. James, 109 N.M. 278, 281-84, 784 P.2d 1021, 1024-27 (Ct.App.), cert. denied, 109 N.M. 262, 784 P.2d 1005 (1989). However, in James, this Court expressed concern for lack of remorse as an aggravating circumstance when it is interwoven with a trial court’s concern about suspected perjury. Moreover, our Supreme Court has stated that lack of remorse can be a proper aggravating circumstance. See Swafford v. State, 112 N.M. 3, 17, 810 P.2d 1223, 1237 (1991). In this case, the trial court addressed itself to a pattern Defendant had exhibited over the course of several years for not taking responsibility for his own actions and showing little remorse for the effect of his actions on others. Because the court did not express concern about suspected perjury, and because the court considered Defendant’s lack of remorse over a long period of time in a variety of situations, we believe that the trial court did not err by using lack of remorse as an aggravating circumstance. Id.

Defendant suggests that there is no evidence to support the trial court’s determination that he harmed his own family and harm to his family should not have been considered. The trial court relied on the alibi Defendant’s wife provided and the letter she wrote in his support. We agree that there is no direct or circumstantial evidence that would support consideration of harm to Defendant’s wife as an aggravating circumstance. The evidence in the record required speculation about Defendant’s role in inducing the alibi and the letters, and the evidence involved conduct not directly related to Defendant’s dangerousness or candidacy for rehabilitation. We do not believe that the legislature contemplated allowing the trial court to consider such consequences of the crime to be included as an aggravating circumstance. See Bernal, 106 N.M. at 118-19, 739 P.2d at 987-88. Furthermore, it seems to have overlapped with a concern about Defendant’s lack of remorse. Under these circumstances, we believe the Supreme Court has indicated that the proper course is to remand for resentencing. See Swafford, 112 N.M. at 17 n. 11, 810 P.2d at 1237 n. 11.

VII. CONCLUSION

Defendant contends that cumulative error, especially at the sentencing stage, deprived him of a fair trial. We have identified no error other than in the course of sentencing, which did not affect Defendant’s right to receive a fair trial, but rather requires a remand for resentencing. Accordingly, although we affirm Defendant’s convictions, we vacate Defendant’s judgment and sentence and remand this case to the trial court for resentencing.

IT IS SO ORDERED.

BIVINS, J., concurs. CHAVEZ, J., concurring in part and dissenting in part.