July 23, 2019- State of New Mexico v. Kendrick Joey, Sr., No. A-1-CA-37960

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 v. 	No. A-l-CA-37960
5 KENDRICK JOEY, SR.,
6 	Defendant-Appellant.
7 	APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 John A. Dean, Jr., District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	for Appellee
12 	Bennett J. Baur, Chief Public Defender
13 	B. Douglas Wood, III, Assistant Appellate Defender
14 	Santa Fe, NM
15 	for Appellant
16 	MEMORANDUM OPINION
17 	VANZI, Judge.
18 	{I} 	Defendant appeals his conviction for battery upon a peace officer. We issued
19 a calendar notice proposing to affirm. Defendant has responded with a memorandum
20 	in opposition. We affirm.
Court of Appeals of New Mexico
Filed 7/23/2019 10:09 AM

1 Sufficiency of the Evidence
2 	{2} 	Defendant continues to challenge the sufficiency of the evidence to support his
3 conviction for battery upon a peace officer. [DS 4] See State v. Armijo, 1997-NMCA-
4 080, ,i 16, 123 N.M. 690, 944 P .2d 919 ("A motion for a directed verdict challenges
5 the sufficiency of the evidence[.]").
6 	{3} 	A sufficiency of the evidence review involves a two-step process. Initially, the
7 evidence is viewed in the light most favorable to the verdict. Then the appellate court
8 must make a legal determination of "whether the evidence viewed in this manner
9 could justify a finding by any rational trier of fact that each element of the crime
10 charged has been established beyond a reasonable doubt." State v. Apodaca, 1994-
11 	NMSC-121, ,i 6, 118 N.M. 762,887 P.2d 756 (internal quotation marks and citations
12 	omitted).
13 	{4} 	In order to prove the charge, the State had to present evidence that Defendant
14 knowingly and intentionally battered a peace officer. [RP 54] The State presented the
15 	testimony of two corrections officers, who both testified that Defendant attempted to
16 	hit one of them, but struck the other in the knee. [MIO 1-2; RP 71-75] The officer
17 	who was struck testified that Defendant was angry and cursing, and that the kick
18 	resulted in a bruise on his knee. [RP 72] The State presented a photo of the injury.
19 	[RP 73] Although Defendant argues [MIO 4] that the officers could not know what
2

1 Defendant' s intent wa s, Defendant' s conduct permitted the fact-finder to infer that his
2 actions were intended to batter one of the officers. See State v. Wa sson, 1998-NMCA-
3 087, il 12 , 125 N .M. 656, 964 P.2d 820 (stating that "[a] defendant' s knowledge or
4 intent generally presents a question of fact for a jury to decide" ). In light of this
5 evidence, we conclude that the State presented sufficient evidence to support the
6 conviction.
7 Ineffective Assistance of Counsel
8 	{5} 	Defendant continues to claim that trial counsel was ineffective. [MIO 5] We
9 will not decide an ineffective assistance of counsel claim on direct appeal unless a
10 defendant makes a prima facie showing that counsel was incompetent and the
11 	incompetence resulted in prejudice to the defense. See State v. Richardson, 1992-
12 NMCA-112, il 4, 114 N.M . 725,845 P.2d 819, abrogated on other grounds by Allen
13 	v. LeMaster, 2012-NMSC-001 , 267 P.3d 806. A defendant must show that counsel ' s
14 actions were not simply matters of strategy, were made part of the record, and have
15 	prejudiced Defendant. See State v. Baca, 1997-NMSC-59, il 25 , 124 N.M . 333 , 950
16 P.2d 776 (stating that "a prima facie case is not made when a plausible, rational
17 	strategy or tactic can explain the conduct of defense counsel" ).
18 	{6} 	Here, Defendant's claim is based on defense counsel's failure to call as a
19 witnesses an officer who was present at the scene. [MIO 5] We conclude that this
3

1 fact, standing alone, is not sufficient to make a prima facie showing of ineffective
2 assistance of counsel. See State v. Orosco, 1991-NMCA-084, ,r 35, 113 N.M. 789,
3 833 P.2d 1155 (noting that matters of trial tactics and strategy are within the control
4 	of trial counsel); see also State v. Crain, 1997-NMCA-101, ,r 25, 124 N.M. 84, 946
5 P .2d 1095 ("[W]e regard trial counsel's choice and presentation of defenses and
6 defense witnesses as falling within the ambit of trial tactics and strategy."). To the
7 extent that these claims may have merit, we believe that it is more appropriately
8 addressed in a habeas proceeding. See State v. Grogan , 2007-NMSC-039, ,r 9, 142.
9 N.M. 107, 163 P .3 d 494 (expressing a preference for habeas corpus proceedings to
10 	address ineffective assistance of counsel claims).
11 	{7} 	For the reasons set forth above, we affirm.
12 	{8} 	IT IS SO ORDERED.
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15 	WE CONCUR:
16 	~~~17 	KRI INA BOG~~Judge
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