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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
ISRAEL MARTINEZ,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY, Matthew
E. Chandler, District Judge
Hector H. Balderas, Attorney General,
Santa Fe, NM, for Appellee
Law Offices of Jennifer J. Wernersbach,
P.C., Jennifer J. Wernersbach, Albuquerque, NM, for Appellant
LINDA M. VANZI, Chief Judge. WE CONCUR: J.
MILES HANISEE, Judge, STEPHEN G. FRENCH, Judge
{1} Defendant Israel
Martinez appeals his convictions for criminal sexual contact of a minor (CSCM)
and attempted CSCM. We previously issued a notice of proposed summary
disposition in which we proposed to uphold the convictions. Defendant has filed
a combined memorandum in opposition and motion to amend the docketing
statement. After due consideration, we remain unpersuaded. We therefore affirm.
{2} We will begin our
discussion with the issue originally raised in the docketing statement, by
which Defendant has challenged the sufficiency of the evidence. [DS 4-5; MIO
12-14] As briefly described in the notice of proposed summary disposition, the
State presented evidence in support of each of the elements of the offenses.
[CN 2-4]
{3} In his responsive
memorandum, Defendant narrows the scope of his challenge, specifically and
exclusively contending that the State failed to establish intent in connection
with the conviction for attempted CSCM. [MIO 13]
We disagree. As we
previously observed, it was not necessary for the State to present direct proof
of intent. [CN 3-4]
See State v. Melendrez,
2014-NMCA-062, ¶ 19,
326
P.3d 1126 (“Because a person’s intent is rarely established by direct proof, it
may be proven by circumstantial evidence.”).
In this case the
circumstantial evidence, including the victim’s testimony that Defendant
repeated the touching even after she attempted to turn away, and only stopped
when the alarm clock sounded, [RP 225] is sufficient to support the requisite
inference of intent to commit CSCM.
See generally State v. Slade,
2014-NMCA-088, ¶ 14,
331 P.3d 930 (“A reasonable inference is a conclusion
arrived at by a process of reasoning which is a rational and logical deduction
from facts admitted or established by the evidence.” (alterations, internal
quotation marks, and citation omitted)). The jury was not required to accept
his characterization of the incident as “innocent incidental touching.” [MIO
13]
See State v. Gee,
2004-NMCA-042, ¶ 24,
135 N.M. 408,
89 P.3d 80
(observing that specific intent may be inferred from circumstantial evidence,
and the jury is free to disregard a defendant’s “innocent” explanation). We
therefore reject Defendant’s argument.
{4} We turn next to the
motion to amend, by which Defendant seeks to raise two additional issues. [MIO
1]
{5} First, Defendant
contends that the jury instruction on attempted CSCM was flawed. [MIO 7-11]
Insofar as Defendant failed to raise this issue below, [MIO 8] we review only
for fundamental error.
State v. Stevens,
2014-NMSC-011, ¶ 42,
323 P.3d
901 (“We review an unpreserved challenge to a jury instruction for fundamental
error.”). “Fundamental error only applies in exceptional circumstances when
guilt is so doubtful that it would shock the judicial conscience to allow the
conviction to stand.”
Id. (internal quotation marks and citation
omitted).
{6} With respect to
attempt crimes, the applicable uniform jury instruction requires the State to
prove that (1) the defendant intended to commit the crime in question (here,
CSCM); (2) the defendant began to do an act that constituted a substantial part
of the crime but failed to commit the crime; and (3) the attempt took place on
a certain date. UJI
14-2801 NMRA.
In this case, Defendant concedes that
the jury was so instructed. [MIO 8-9; RP 189] Nevertheless, Defendant contends
that the elements of the intended offense (i.e., CSCM) where not given
immediately thereafter or in a separate instruction, as required. [MIO 8-9]
See
UJI 14-2801 use note 1 (“The essential elements of the felony must be given
immediately following this instruction, unless they are set out in an
instruction dealing with the completed offense.”).
{7} The record before
us reflects that a separate instruction, specifically, the
preceding jury
instruction, identified all of the elements of CSCM. [RP 188] Although it
referred to touching of the victim’s groin, as opposed to touching of an
unclothed child, [RP 188-89] we deem the distinction immaterial in light of the
victim’s description of the incident, by which Defendant repeatedly ran his
hand up her bare thigh toward her groin. [RP 225]
{8} We understand
Defendant to suggest that this separate instruction should be deemed an
inadequate recitation of the elements of the offense of CSCM, because it
referred to a different victim. [MIO 9-10] However, both the parties and the
district court were clear about the identity of the victim of the attempt, [MIO
9; RP 244] and the closing statements by both sides specified with which
incident and victim the attempt crime correlated. [RP 247, 249] Under these
circumstances, the likelihood of jury confusion is minimal. Accordingly, we
reject the claim of fundamental error.
See, e.g.,
State v. Carrasco,
2007-NMCA-152, ¶¶ 8-13,
143 N.M. 62,
172 P.3d 611 (rejecting a claim of
fundamental error relative to an attempt crime, where the jury instructions
separately identified the elements of attempt and the elements of the
underlying felony, and where the closing arguments eliminated potential
ambiguity);
see generally Gee,
2004-NMCA-042, ¶ 8 (“When reviewing jury
instructions for fundamental error, we apply the fundamental error standard of
review to the same inquiry we perform for review for reversible error—whether
the instruction or instructions would confuse or misdirect a reasonable juror
due to contradiction, ambiguity, omission, or misstatement.”).
{9} Second, Defendant
seeks to advance a claim of ineffective assistance of counsel [MIO 1] based
upon trial counsel’s failure to move for severance, as well as trial counsel’s
alleged failure to duly investigate, secure prior witness statements, or call
potential defense witnesses. [MIO 14-18]
{10} Claims of
ineffective assistance of counsel are mixed questions of law and fact, which we
review de novo.
State v. Martinez,
2007-NMCA-160, ¶ 19,
143 N.M. 96,
173
P.3d 18. Because Defendant raises the issue for the first time on appeal, he
must establish a prima facie case for ineffective assistance in order for this
Court to remand the matter to the district court for an evidentiary hearing.
See
State v. Bernal,
2006-NMSC-050, ¶ 33,
140 N.M. 644,
146 P.3d 289. “A prima
facie case is made out when: (1) it appears from the record that counsel acted
unreasonably; (2) the appellate court cannot think of a plausible, rational strategy
or tactic to explain counsel’s conduct; and (3) the actions of counsel are
prejudicial.”
State v. Herrera,
2001-NMCA-073, ¶ 36,
131 N.M. 22,
33
P.3d 22 (internal quotation marks and citation omitted).
{11} With respect to the
question of severance, counsel could reasonably have believed that evidence of
the two offenses for which Defendant was convicted would have been
cross-admissible, for the purpose of establishing the disputed element of
intent, such that a motion for severance would not have been well taken.
See
State v. Bailey,
2017-NMSC-001, ¶ 20,
386 P.3d 1007 (holding that evidence
of a separate incident entailing sexual abuse was properly admissible to
establish the defendant’s specific, unlawful intent where that element was
disputed);
State v. Otto,
2007-NMSC-012, ¶¶ 11-12,
141 N.M. 443,
157
P.3d 8 (concluding evidence of similar sexual acts perpetrated by the defendant
was “properly admitted to show intent and absence of mistake or accident” where
the defendant claimed that he was asleep and unconsciously molested the child
victim, i.e., he lacked an unlawful intent and had merely committed an innocent
mistake);
see generally State v. Gallegos,
2007-NMSC-007, ¶ 19,
141 N.M.
185,
152 P.3d 828 (indicating, with respect to the question of severance, that
“cross-admissibility of evidence dispels any inference of prejudice”
(alteration, internal quotation marks, and citation omitted)). Under the
circumstances, it is not apparent that counsel’s conduct was either
unreasonable or prejudicial.
See generally State v. Sanchez,
1982-NMCA-155, ¶ 10,
98 N.M. 781,
652 P.2d 1232 (“Failure to file a
non-meritorious motion cannot be declared ineffective assistance.”).
{12} With respect to the
remaining allegations, as Defendant acknowledges, [MIO 18] the record before us
is insufficient to establish that trial counsel’s conduct was unreasonable,
lacked a strategic or tactical basis, or prejudiced the defense in the sense
required.
See State v. Reyes,
2002-NMSC-024, ¶ 48,
132 N.M. 576,
52 P.3d
948 (observing that the defendant must demonstrate that his counsel’s errors
prejudiced his defense such that there is “a reasonable probability that the
outcome of the trial would have been different”);
State v. Roybal,
2002-NMSC-027, ¶ 21,
132 N.M. 657,
54 P.3d 61 (stating that an appellate court
presumes that counsel’s performance fell within the wide range of reasonable
professional assistance).
{13} Although we conclude
that Defendant has not established a prima facie case of ineffective assistance
of counsel, we do so without prejudice to Defendant’s ability to pursue habeas
proceedings.
See State v. Martinez,
1996-NMCA-109, ¶ 25,
122 N.M.
476,
927 P.2d 31 (stating that “[t]his Court has expressed its preference for
habeas corpus proceedings over remand when the record on appeal does not
establish a prima facie case of ineffective assistance of counsel”).
{14} In light of the
foregoing considerations, we conclude that the supplemental issues are not
viable. We therefore deny the motion to amend.
See State v. Sommer,
1994-NMCA-070,
¶ 11,
118 N.M. 58,
878 P.2d 1007 (observing that issues sought to be presented
must be viable, and denying a motion to amend upon an inadequate showing in
this regard).
{15} And accordingly, for
the reasons stated above and in the notice of proposed summary disposition, we
affirm.
LINDA M. VANZI, Chief Judge