April 18, 2019- State of New Mexico v. Christopher Jason Heh, No. A-1-CA-37246

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

STATE OF NEW MEXICO, Filed 4/18/2019 9:44 AM
M2
Plaintiff-Appellee, ;
Mark Reynolds
V. No. A-1-CA-37246
CHRISTOPHER JASON HEH,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY

Jacqueline D. Flores, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

for Appellee
Bennett J. Baur, Chief Public Defender
Caitlin C.M. Smith, Assistant Public Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
VANZI, Judge.
{1} Defendant appeals from his conviction, after a jury trial, of unlawful taking of
a motor vehicle. In this Court’s notice of proposed disposition, we proposed to

summarily affirm. Defendant filed a memorandum in opposition (MIO), which we

have duly considered. Remaining unpersuaded, we affirm.

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23 Defendant continues to argue that (1) there was insufficient evidence to support
the finding that he did not mistakenly believe he had the owner’s permission to take
the car [MIO 5]; and (2) his defense counsel was ineffective for failing to file a
motion to suppress evidence prior to trial [MIO 7]. Defendant has not presented any
facts, authority, or argument in his memorandum in opposition that persuade this
Court that our proposed summary disposition was incorrect. See Hennessy v. Duryea,
1998-NMCA-036, § 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly
held that, in summary calendar cases, the burden is on the party opposing the
proposed disposition to clearly point out errors in fact or law.”); State v. Mondragon,
1988-NMCA-027, 4 10, 107 N.M. 421, 759 P.2d 1003 (stating that a party responding
to asummary calendar notice must come forward and specifically point out errors of
law and fact, and the repetition of earlier arguments does not fulfill this requirement),
superseded by statute on other grounds as stated in State v. Harris,
2013-NMCA-031, 9 3, 297 P.3d 374.

3}. Moreover, with regard to Defendant’s sufficiency claim, although this Court
appreciates the more detailed facts identified in Defendant’s memorandum in
opposition, see Rule 12-208(D)(3) NMRA, we nevertheless reiterate that it was for
the jury to resolve any conflicts in the testimony and determine weight and credibility,

and it was free to reject Defendant’s version of the facts. See State v. Rojo,

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1999-NMSC-001, § 19, 126 N.M. 438, 971 P.2d 829; State v. Griffin,
1993-NMSC-071, 4 17, 116 N.M. 689, 866 P.2d 1156; State v. Salas,
1999-NMCA-099, ¥ 13, 127 N.M. 686, 986 P.2d 482; see also State v. Flores,
2010-NMSC-002, 7 19, 147 N.M. 542, 226 P.3d 641 (stating that “intent is subjective
and is almost always inferred from other facts in the case” (alterations, internal
quotation marks, and citation omitted)); State v. Michael S., 1995-NMCA-112, 4 7,
120 N.M. 617, 904 P.2d 595 (stating that “[i]ntent need not be established by direct
evidence, but may be inferred from the [defendant]’s conduct and the surrounding
circumstances”).

{44 With regard to Defendant’s ineffective assistance of counsel claim, we remain
are unpersuaded at this time that Defendant’s trial counsel’s actions rose to the level
necessary to establish a prima facie case of ineffective assistance of counsel. See State
v. Roybal, 2002-NMSC-027, § 25, 132 N.M. 657, 54 P.3d 61 (noting that “mere
evidentiary prejudice is not enough” and stating that trial “[c]ounsel’s deficient
performance must represent so serious a failure of the adversarial process that it
undermines judicial confidence in the accuracy and reliability of the outcome”). We
nevertheless reiterate that “[h]abeas corpus proceedings are the preferred avenue for
adjudicating ineffective assistance of counsel claims, because the record before the

trial court may not adequately document the sort of evidence essential to a

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determination of trial counsel’s effectiveness.” State v. Grogan, 2007-NMSC-039,
19, 142 N.M. 107, 163 P.3d 494 (alteration, internal quotation marks, and citation
omitted).

{5} | Accordingly, for the reasons set forth in our notice of proposed disposition and
herein, we affirm Defendant’s conviction.

{6} IT IS SO ORDERED.

wawornes

LINDA M. VANZI, Judge

WE CONCUR:

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M. MONICA ZAMORA; Chief Judge

QA

JENNIPER L. ATTREP, Judge