February 11, 2019- State v. Garibay, No. A-1-CA-37526

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 V. 	NO. A-1-CA-37526
5 	SERGIO GARIBAY,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
8 Jennifer E. DeLaney, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 Bennett J. Baur , Chief Public Defender
13 	Kathleen T. Baldridge, Assistant Appellate Defender
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 	VANZI, Judge.
18 	{J} 	Defendant 	appeals 	his 	conviction 	of criminal 	damage 	to 	property 	and
19 aggravated battery. [DS 2; MIO 1] In his docketing statement, Defendant challenged
20 the sufficiency of the evidence, the denial of a motion for reduction of sentence, and
21 	asserted a claim ofineffective assistance of counsel. [DS 6] This Court issued a notice
Court of Appeals of New Mexico
Filed 2/11/2019 8:35 AM
Mark Reynolds

1 of proposed summary disposition, proposing to affirm. [CN 7] Defendant has filed
2 a memorandum in opposition to that proposed disposition.
3 	{2} 	In that memorandum, Defendant continues to assert that the trial evidence was
4 insufficient to support his conviction, the district court should have reduced his
5 sentence, and that he received ineffective assistance of counsel. [MIO 3, 5, 6] Having
6 duly considered Defendant's memorandum, we are unpersuaded. State v. Mondragon,
7 	1988-NMCA-027,, 10, 107 N.M. 421, 759 P.2d 1003 (explaining that the repetition
8 of earlier arguments does not meet a party's burden to come forward and specifically
9 point out errors of law or fact in a notice of proposed summary disposition),
IO 	superceded by statute on other grounds as stated in State v. Harris, 2013-NMCA-
11 	031,, 3,297 P.3d 374.
12 	{3} 	In asserting that the trial evidence was insufficient, Defendant continues to rely
13 	upon his own testimony that he was acting in self-defense. In doing so, Defendant
14 	now directs our attention to State v. Slade, 2014-NMCA-088,, 14,331 P.3d 930,
15 	which explained that "evidence from which a proposition can be derived only by
16 	speculation among equally plausible alternatives is not substantial evidence of the
17 	proposition." (alteration, internal quotation marks and citation omitted). We do not
18 	agree, however, that the jury was required to speculate among "equally plausible
19 alternatives" in this case; instead, the State offered evidence to support each element
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1 of the offense charged and Defendant also testified that he was acting in self-defense.
2 Rather than requiring the jury to speculate, the evidence in this case simply required
3 the jury to determine where, as between those two contradictory accounts, the truth
4 lie. And that has long been the fundamental function of a jury: "to decide where the
5 truth lies." Westbrookv. Lea Gen. Hosp., 1973-NMCA-074, 110, 85 N.M. 191,510
6 P.2d 515; see State v. Alberico, 1993-NMSC-047, 184, 116 N.M. 156,861 P.2d 192
7 (noting that whether a witness is telling the truth "is for the jury to decide"); Green
8 v. Kase, 1992-NMSC-004, 17 ,113 N.M. 76,823 P.2d 318 (describing a jury's role
9 in determining the credibility of witnesses as "a critical component of the jury's truth
10 	finding function"); State v. Gilbert, 1933-NMSC-059, 16, 37 N.M. 435, 24 P.2d 280
11 	(affirming the conviction of a defendant "in the unfortunate position of having failed
12 	to impress the jury with the truth of his claim of self-defense").
13 	{4} 	Defendant also continues to assert that the district court abused its discretion
14 	by not reducing his sentence. We note, however, that it has long been the law in New
15 	Mexico that the district court does not abuse its discretion by imposing a sentence
16 that is authorized by law. See State v. Augustus, 1981-NMCA-l 18, 17, 97 N.M. 100,
17 	637 P.2d 50 (explaining that, "there being no claim that the sentence was not in
18 	accordance with law, the trial court did not abuse its discretion in imposing a lawful
19 	sentence upon [the] defendant").
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1 {5} 	And, finally, 	Defendant continues to assert that he received ineffective
2 assistance of counsel because some sort of evidence dealing with his victim's
3 behavior was not offered at trial. [MIO 6- 7] As pointed out in our notice of proposed
4 summary disposition, this issue was not developed below, meaning that it is not
5 preserved for appeal and also that facts surrounding counsel's trial strategy do not
6 appear in the record. [CN 4-6] There are, for instance, no facts currently before this
7 Court upon which we could base an assessment of whether trial counsel's decisions
8 were the result of a reasonable trial strategy. Similarly, we have no indication whether
9 trial counsel expected the evidence at issue to be admissible, or what evidence the
10 	State could have offered in rebuttal. As our proposed disposition pointed out, "facts
11 	bearing directly upon trial counsel's strategic decisions or communications between
12 	counsel and client will not generally appear in the record." [CN 6]
13 	{6} 	Fortunately, evidence related to such questions can generally be considered by
14 	way of proceedings pursuant to Rule 5-802 NMRA and that is "the preferred avenue
15 	for 	adjudicating 	ineffective 	assistance 	of counsel 	claims." 	Duncan 	v. 	Kerby,
16 	1993-NMSC-011, ~ 4, 115 N.M. 344, 851 P.2d 466. Indeed, "habeas corpus is
17 	specifically designed to address such post-conviction constitutional claims and is the
18 	procedure of choice in this situation." Id. If Defendant believes he can demonstrate
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1 ineffectiveness if given the opportunity to present evidence at a hearing, he remains
2 	free to do so pursuant to that rule.
3 	{7} 	Thus, for the foregoing reasons as well as those stated in our notice of proposed
4 	summary disposition, we affirm the judgment and sentence of the district court
5 without prejudice to Defendant' s opportunity to pursue a claim of ineffective
6 assistance of counsel in post-conviction proceedings.
7 	{8}
8
9
IT IS SO ORDERED.
10 	WE CONCUR:
11 	~~ 	~12 JEN~~TTREP,Judge
13 	Ith,,- ~ 	d«.,.
14 KRIS INA BOGAU8,~ud
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