January 8, 2019- State of New Mexico v. Joseph Matthew Foster, No. A-1-CA-35887

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-35887
5 JOSEPH MATTHEW FOSTER,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
8 Matthew E. Chandler, District Judge
9 Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	Walter M. Hart, III, Assistant Attorney General
12 Albuquerque, NM
13 	for Appellee
14 Bennett J. Baur, Chief Public Defender
15 	Allison H. Jaramillo, Assistant Appellate Defender
16 Santa Fe, NM
17 for Appellant
18 	MEMORANDUM OPINION
19 HANISEE, Judge.
20 	{t} 	Joseph Matthew Foster (Defendant) appeals three convictions: possession of
21 	a controlled substance, possession of drug paraphernalia, and possession of a firearm
22 .by a felon. On appeal, Defendant argues that (1) the State committed prosecutorial
23 	misconduct; (2) the district court erred in admitting police hearsay testimony,
Court of Appeals of New Mexico
Filed 1/8/2019 11:03 AM
Mark Reynolds

1 thereby violating his right to confront witnesses under the Confrontation Clause; (3)
2 the three convictions were not supported by sufficient evidence; (4) he received
3 ineffective 	assistance 	of counsel; 	and (5) 	cumulative 	error warrants reversal.
4 Unpersuaded, we affirm.
5 I. 	BACKGROUND
6 	{2} 	Lieutenant Lyndell Max Stansell and another officer responded to a call
7 reporting the admission of a gunshot wound victim to Plains Regional Medical
8 Center 	in 	Clovis. 	The 	victim, 	Benardo 	Baca, 	although 	alert 	and 	otherwise
9 responsive, was reluctant to speak to Lieutenant Stansell about the shooting incident
10 and unwilling to cooperate with the investigation. Despite Mr. Baca's recalcitrance,
11 	Lieutenant Stansell was able to determine that the shooting had taken place at a
12 certain residence in Clovis and involved an individual named "Ace," an alias known
13 	by Lieutenant Stansell to be used by Defendant.
14 	{3} 	Upon arriving at the 	Clovis residence, Lieutenant Stansell joined other
15. responding officers who had already made contact with the occupants of the house.
16 Lieutenant Stansell observed .25 caliber shell casings in the driveway and detected
17 a "faint odor" of marijuana inside the house. The officers secured the residence and
18 waited for the issuance of a search warrant. In addition to Defendant, also present in
2

1 the house were two adult females, at least one of whom was Defendant's daughter,1
2 six young children, and the boyfriend of one of the adult females. The boyfriend was
3 the only person present who did not permanently reside at the home. 2 Lieutenant
4 	Stansell conducted a pat-down search of Defendant, who thereafter proceeded to a
5 neighbor's house. When officers later attempted to question Defendant, they learned
6 from neighbors that he had left the area.
7 {4} 	Also responding to the scene was Detective Adriana Munoz. Munoz testified
8 that, prior to issuance of the search warrant, she entered the house with the consent
9 of Defendant's adult daughter and ascertained which bedrooms belonged to whom.
10 Soon thereafter, the search warrant was issued and officers searched the residence.
11 	In 	the 	bedroom 	that 	Detective 	Munoz 	believed 	belonged to 	Defendant, 	she
12 discovered a chest containing male clothing, a .22 caliber magazine, and boxes of
13 	.22 and .25 caliber ammunition, as well as a jewelry box containing a needle filled
14 with liquid, a spoon with a crystal-like substance, a scale used to weigh narcotics,
15 	women's jewelry, and tampons. Police later determined that the substance inside the
16 needle and on the spoon was methamphetamine. Detective Munoz also recovered a
17 pink firearm in a common area of the residence that could fire .25 caliber bullets.
1 The record is unclear as to whether the second female encountered by police
at the scene was also Defendant's daughter or, instead, his niece. This fact, however,
is immaterial to our analysis.
2 Defendant's statement to police indicated that he lived at the residence with
his daughters, grandchildren, grandnieces, and grandnephews, "but no one else."
3

1 {5} 	Defendant was interviewed by a police interrogator several days later and,
2 after being given Miranda warnings, provided several incriminating statements
3 relevant to this appeal. Defendant admitted that he was sick on drugs and a drug
4 addict. Defendant also acknowledged awareness of the pink firearm in the house
5 and, while denying being the shooter, indicated that the police would probably find
6 his fingerprints on the pink gun. As to who shot Mr. Baca, Defendant conceded that
7 he (Defendant) went by the name "Ace," but maintained that his nephew, Shawn
8 Acey, was the shooter and that others often confused him with his nephew.
9 {6} 	The State subsequently charged Defendant with aggravated battery based on
10 the shooting of Mr. Baca, possession of a controlled substance, possession of drug
11 	paraphernalia, and possession of a firearm by a felon.
12 	{7} 	At trial, Detective Munoz testified that she "deduced through information"
13 	that the bedroom containing the chest and jewelry box belonged to Defendant. When
14 Detective Munoz was asked on direct examination about the search of that bedroom,
15 	Defendant's trial counsel objected, arguing during a bench conference that the
16 officer's conclusion that the bedroom was Defendant's was based solely on hearsay.
17 The district court overruled the objection, allowing Defendant to cross-examine
18 Detective Munoz on that issue.
19 	{8} 	During the ensuing cross-examination, defense counsel asked if it was true
20 that "someone told you that that was 	[Defendant's] room?" Detective Munoz
4

1 responded, "Yes." Counsel then asked Detective Munoz whether Defendant had
2 admitted that it was his room. Detective Munoz responded in the negative, adding
3 that she had concluded that Defendant resided in that bedroom because it was the
4 only room in the house that contained male clothing and Defendant was the only
5 adult male known to live in the house.
6 {9} 	The State, after resting its case, and despite having represented to the jury in
7 its opening statement that Mr. Baca would testify at trial, voluntarily dismissed the
8 aggravated battery charge against Defendant based on Mr. Baca's failure to appear
9 as a witness. Reprising his previous hearsay objections, Defendant asked the district
10 court to strike Detective Munoz's testimony pertaining to Defendant's occupancy of
11 	the bedroom in question and to provide a curative instruction. The district court
12 denied Defendant's request, citing 	as 	grounds the record evidence supporting
13 	Detective Munoz's assessment that the bedroom belonged to Defendant and noting
14 defense counsel's failure to request a curative instruction at the time the officer
15 	testified several hours earlier.
16 	II. 	DISCUSSION
17 A. 	Prosecutorial Misconduct
18 	{to} 	Defendant argues the State committed prosecutorial misconduct when it stated
19 during 	opening 	statement that 	Mr. 	Baca would testify at trial 	regarding the
. 20 aggravated battery count, only to later dismiss the count when Mr. Baca failed to
5

1 appear for trial. In this regard, Defendant points out that the State was obviously
2 aware of Mr. Baca's lack of cooperation and of the possibility that he might not
3 appear for trial. On another score, Defendant argues that the State misrepresented
4 the nature of the relationship between the shell casings found at the scene and the
5 firearm found in the residence.
6 {11} 	We begin by noting that Defendant has raised his claim of prosecutorial
7 misconduct for the first time on appeal. In these circumstances, this Court will
8 review the claim only for fundamental error. See State v. Allen, 2000-NMSC-002,
9 195, 128 N.M. 482, 994 P.2d 728. "Prosecutorial misconduct rises to the level of
10 fundamental error when it is so egregious and had such a persuasive and prejudicial
11 	effect on the jury's verdict that the defendant was deprived of a fair trial." State v.
12 	Carrillo, 2017-NMSC-023, 150,399 P.3d 367 (internal quotation marks and citation
13 	omitted).
14 {12} 	With respect to Defendant's initial contention that the 	State committed
15 	prosecutorial misconduct by failing to dismiss the aggravated battery charge prior to
16 trial, we observe that Defendant provides no support for his underlying premise that
17 when the state is unaware of whether a witness will testify or unsure of what that
18 witness might say in the event he or she testifies, the count or counts at issue must
19 be dismissed. See In re Adoption of Doe, 1984-NMSC-024, 12, 100 N.M. 764,676
6

1 P.2d 1329 (indicating that where a party cites no authority to support an argument,
2 we may assume no such authority exists). We consider this proposition no further.
3 {13} 	Defendant next argues that the State committed prosecutorial misconduct
4 during the opening statement by discussing the aggravated battery charge, and
5 stating that Mr. Baca would testify, despite knowing otherwise. "If the prosecutor,
6 in his opening statement stated facts, having reason to believe such facts could not
7 be proved, that would be evidence of bad faith." State v. Torres, 1970-NMCA-017,
8 ,r 41, 81 N.M. 521, 469 P.2d 166. But see State v. Fuentes, 1978-NMCA-028, ,r 17,
9 91 N.M. 554, 577 P.2d 452 (finding no evidence of bad faith on the part of the
10 prosecutor in referring during opening statement to the potential testimony of a
11 	witness who ultimately did not testify). However, that is not what occurred in this
12 case. It appears instead that the State believed it could prove the aggravated battery
13 	charge with the benefit of Mr. Baca's testimony, and continued its efforts to contact
14 him throughout the trial. 3 See State v. Martinez, 1971-NMCA-115, ,r 9, 83 N.M. 9,
15 	487 P.2d 919 ("This is not a case where the prosecutor, in his opening statement,
16 	stated facts which he had reason to believe could not be proved."). Further, as trial
3 It is true, as Defendant notes, that the State represented to the district court
a month prior to trial that it did not "believe we will be able to go forward ... based
on the lack of cooperation from Mr. Baca." However, we view this statement only
as a recitation of the obvious reality that the aggravated battery charge would be
difficult to prove without Mr. Baca's testimony, and not that the State definitively
knew that Mr. Baca would not testify.
7

1 progressed the State attempted to prove Defendant committed aggravated battery by
2 use of other evidence. For example, Lieutenant Stansell testified that police officers
3 observed Mr. 	Baca's gunshot wound and were informed that "Ace" might be
4 involved. The State also tried to link the shooting to Defendant by comparing the .25
5 caliber casings found in the driveway, where the shooting occurred, and the .25
·6 	caliber ammunition found in Defendant's bedroom and loaded in the pink firearm,
7 which Defendant admitted to handling. Most importantly, the State made clear that
8 it did not know the substance of Mr. Baca's anticipated testimony but that it
9 nonetheless planned to put Mr. Baca on the stand and elicit his testimony. We
10 conclude that the 	prosecutor's 	actions 	fell 	significantly short 	of the 	rigorous
11 	fundamental error standard needed to establish actionable misconduct. Although the
12 State wrongly informed the jury-at its own peril-that Mr. Baca would testify, that
13 	representation, standing alone and without more, did not rise to the level of "extreme
14 disregard for the truth, and such a clear intent to influence the jury by false
15 	statements, as would warrant a reversal of the case[.]" State v. McDonald, 1915-
16 NMSC-080, ,-r 3, 21 N.M. 110, 152 P. 1139 (internal quotation marks and citation
17 omitted); see id. (recognizing that a prosecutor's "overstatement" during opening
18 statement is "[u]sually ... prejudicial" to the state (internal quotation marks and
19 citation omitted)); see also State v. Gilbert, 1982-NMSC-137, ,-r 15, 99 N.M. 316,
8

1 657 P.2d 1165 (finding no bad faith where the discrepancies in the prosecutor's
2 opening statement and the testimony presented did not prejudice the defense).
3 	{14} 	In .sum, we find no basis in the record to question the bona fides of the State's
4 expressed intention to call Mr. Baca as a witness or its efforts to secure his testimony.
5 Thus, we conclude that there was no prosecutorial misconduct in connection with
6 the State's opening statement or its ensuing dismissal of the aggravated battery
7 count, and thus no fundamental error upon which reversal could be premised.
8 {15} 	Nor did the State commit prosecutorial misconduct-and certainly none
9 approaching fundamental error-by stating in its closing argument that the shell
10 casings found in the driveway matched the bullets found in Defendant's bedroom,
11 	and this despite the lack of any ballistics testing. While the State indicated in its
12 opening statement that it would demonstrate that Defendant had shot Mr. Baca, it
13 	never affirmatively stated, during closing argument or otherwise, that any ballistics
14 testing was done. Indeed, Detective Munoz herself confirmed the absence 	of
15 	ballistics testing during her testimony. While the prosecutor explained in closing that
16 the shell casings found outside the house matched the "exact kind" of ammunition
17 found in the pink firearm and in Defendant's bedroom, no representation was made
18 to the jury that the pink gun was the shooting weapon in this case. Indeed, this
19 portion of the prosecutor's closing statement was consistent with Detective Munoz's
20 unobjected-to trial testimony that the shell casings found in the driveway were of the
9

1 same caliber as the ammunition recovered from the pink firearm and in other areas
2 of Defendant's bedroom. 4 Thus, the prosecutor's comments in closing argument did
3 not deviate from the evidence or cause Defendant any discernible prejudice. See
4 State v. 	Montgomery, 	2017-NMCA-065, ~ 13, 403 	P.3d 707 ("During closing
5 arguments, remarks by the prosecutor must be based upon the evidence or be in
6 response to the defendant's argument." (internal 	quotat'ion marks and citation
7 omitted)). We again conclude that no act ofprosecutorial misconduct took place and
8 that no fundamental error occurred.
9 B. 	Hearsay and Confrontation Issues
10 	{16} 	Defendant argues 	that the 	district 	court committed reversible 	error by
11 	admitting hearsay evidence adduced during the State's questioning of Detective
12 Munoz regarding which inhabitant(s) of the house lived in the bedroom containing
13 	the incriminating evidence, i.e., the needle, spoon, and ammunition. This Court
14 reviews evidentiary determinations under an abuse of discretion standard. See State
15 v. Jaramillo, 2012-NMCA-029, ~ 17, 272 P.3d 682. "We cannot say the [district]
16 court abused its discretion by its ruling unless we can characterize it as clearly
17 untenable or not justified by reason." State v. Apodaca, 1994-NMSC-121, ~ 23, 118
18 N.M. 762, 887 P.2d 756 (internal quotation marks and citation omitted).
4 We note that Defendant has not challenged, either at trial or on appeal, the
competency of Detective Munoz or Lieutenant Stansell to testify regarding the
caliber of the ammunition or the pink firearm recovered at the scene.
10

1 {17} 	Defendant contends that Detective Munoz's testimony regarding which
2 bedroom belonged to Defendant constituted inadmissible hearsay as it stemmed
3 either from the statement of Defendant's daughter or the other adult female at the
4 scene, neither of whom testified, and Detective Munoz otherwise had no personal
5 knowledge of the matter, as required by Rule 11-602 NMRA. See State v. Smith,
6 2001-NMSC-004, ~ 21, 130 N.M. 117, 19 P.3d 254 (noting that under Rule 11-602
7 a witness must have "personal knowledge of a matter to testify"). Defendant asserts
8 that this led to two errors by the district court, the first in improperly permitting
9 Detective Munoz to testify, and the second, in refusing to give a curative instruction
10 	so that the jury would not consider the testimony as 	substantive evidence. In
11 	Defendant's view, there was no other evidence upon which the jury could have found
12 that Defendant possessed the methamphetamine, drug paraphernalia, or the firearm.
13 	{18} 	Defendant's argument misunderstands the hearsay rule and mischaracterizes
14 the manner in which the officer's testimony was admitted at trial. First, Rule 11-
15 	801(C) NMRA defines hearsay as a "statement that (1) the declarant does not make
16 while testifying at the current trial or hearing; and (2) a party offers in evidence to
17 prove the truth 	of the matter asserted in the 	statement." Detective Munoz's
18 testimony, however, did not fall within the ambit of the rule. Granted, no witness
19 with personal knowledge of the location of Defendant's bedroom testified as to that
20 issue and, in result, any testimony from Detective Munoz as to what she was told by
11

1 others about the location of Defendant's bedroom would have been hearsay had the
2 prosecution offered it into evidence io prove that Defendant inhabited the bedroom
3 containing the incriminating evidence. But here, on direct examination, Detective
4 Munoz testified only that she "deduced through information" that the bedroom was
5 Defendant's. As the district court noted in denying Defendant's subsequent motion
6 to strike Detective Munoz's testimony, that information was derived not from a
7 hearsay source, but rather from the officer's personal observations and deductions
8 from facts in evidence, including those relating to the layout of the. house, the age
9 and gender of its residents, and the nature of the clothing found in the bedroom
10 	containing the contraband.
11 	{19} 	Significantly, it was only during cross-examination by Defendant's attorney
12 that Detective Munoz was directly asked whether she was told by someone other
13 	than Defendant that the bedroom in question was his, a question to which she
14 responded affirmatively. Thus, the challenged testimony was elicited not by the
15 	State, but by Defendant, in order to discredit the basis upon which Detective Munoz
16 believed that the bedroom was Defendant's. "It is well established that a party may
17. not invite error and then proceed to complain about it on appeal." State v. Jim, 2014-
18 NMCA-089, ,r 22, 332 P.3d 870. "To allow a defendant to invite error and to
19 	subsequently complain about that very error would subvert the orderly and equitable
12

1 administration of justice." State v. Handa, 1995-NMCA-042, ,r 35, 120 N.M. 38,
2 897 P .2d 225 (alteration, internal quotation marks, and citation omitted).
3 	{20} 	In the final analysis, Detective Munoz had independent, personal knowledge
4 that the bedroom containing the contraband was Defendant's-and this irrespective
5 of what she may have been told by others at the scene-thus rendering her testimony
6 akin to_ a lay opinion under Rule 11-701 NMRA. See Sanchez v. 	Wiley, 	1997-
7 NMCA-105, ,r 17, 124 N.M. 47,946 P.2d 650 (indicating that lay opinion testimony
8 under Rule 11-701 is permissible when it is rationally based on the perception of the
9 witness 	and 	helpful 	in 	the 	determination 	of 	a 	fact 	at 	issue). 	Under 	these
10 circumstances, we find no abuse of discretion in the district court's decision to
11 	overrule Defendant's hearsay objection, or its denial of Defendant's subsequent
12 motion to strike Detective Munoz's testimony in this regard and provide a curative
13 	instruction to the jury.
14 	{21} 	Nor does Defendant stand on firmer ground in arguing that the admission of
15 	this same testimony violated his right to confront the witnesses against him under
16 the Confrontation Clause. See State v. Montoya, 2014-NMSC-032, ,r 21, 333 P.3d
17 935 ("The Confrontation Clause of the Sixth Amendment guarantees all criminal
18 	defendants, state and federal, the right to be confronted with the witnesses against
19 them." (internal quotation marks and citation omitted)). Again, because Defendant
20 did not object below on these grounds, our review of this claim is limited to
13

1 fundamental error. See State v. Jimenez, 2017-NMCA-039, 113 n.3, 392 P.3d 668,
2 	cert. denied, _-NMCERT-_ (No. S-1-SC-36346, Apr. 6, 2017).
J 	{22} 	Defendant's confrontation-related arguments rely on similar assumptions as
4 those underlying his hearsay argument. Specifically, Defendant contends that he was
5 unable to confront any witness regarding whatever statement(s) may have been made
6 to Detective Munoz identifying which bedroom in the residence was his. Under the
7 Confrontation Clause, "an out-of-court statement that is both testimonial and offered
8 to prove the truth of the matter asserted may not be admitted unless the declarant is
9 unavailable 	and the 	defendant had 	a 	prior opportunity to 	cross-examine 	the
10 declarant." State v. Smith, 2016-NMSC-007, 142, 367 P.3d 420 (internal quotation
11 	marks 	and 	citation 	omitted). 	Again, 	Defendant 	attempts 	to 	assign 	exclusive
12 probative value to what Detective Munoz was told at the scene while ignoring the
13 	probative value of what she personally learned during her ensuing investigation. It
14 again bears emphasis that the State did not offer the disputed statement through
15 	Detective Munoz's direct testimony and that Detective Munoz identified her own
16 	independent criteria for concluding that the bedroom containing the contraband
17 belonged to Defendant. At bottom, Defendant may not now interject a Confrontation
18 	Clause issue arising from his own cross-examination questioning, 	a shadowy
)
19 semblance of an issue based on little more than a vague and superfluous witness
20 statement that the State itself did not elicit. Thus, we conclude that there was no
14

1 violation of the Confrontation Clause amounting to fundamental error. See Handa,
2 	1995-NMCA-042,, 35 ("[T]he doctrine of fundamental error has no application in
3 cases where the defendant, by his own actions, invites error.").
4 C. 	Sufficiency of the Evidence
5 	{23} 	Defendant claims that there is insufficient evidence to support any of his three
6 convictions. A defendant may raise a sufficiency challenge for the first time on
7 appeal. See State v. Stein, 1999-NMCA-065,, 9, 127 N.M. 362,981 P.2d 295.
8 	{24} 	"The test for sufficiency of the evidence is whether substantial evidence of
9 either a direct or circumstantial nature exists to support a verdict of guilty beyond a
10 reasonable doubt with respect to every element essential to a conviction." State v.
11 	Montoya, 2015-NMSC-010, , 	52, 345 P.3d 1056 (internal quotation marks and
12 citation 	omitted). 	Substantial 	evidence 	consists 	of 	relevant 	evidence 	that 	a
13 	reasonable mind might accept as adequate to support a conclusion. See State v.
14 Salgado, 1999-NMSC-008,, 25, 126 N.M. 691,974 P.2d 661. This Court views the
15 	evidence in a light most favorable to the verdict, indulging all reasonable inferences
16 and resolving all conflicts in the evidence in favor of the verdict. See State v.
17 	Cunningham, 2000-NMSC-009,, 26, 128 N.M. 711, 998 P.2d 176. We disregard
18 	all evidence and inferences that support a different result. See State v. Rojo, 1999-
19 NMSC-001,, 19, 126 N.M. 438, 971 P.2d 829. "We do not reweigh the evidence
20 and may not substitute our judgment for that of the fact finder, so long as there is
15

1 sufficient evidence to support the verdict." State v. Brietag, 1989-NMCA-019,, 9,
2 	108 N.M. 368, 772··P.2d 898.
3 	{25} 	All three of Defendant's convictions share the common element of possession,
4 and possession is the only element Defendant now asserts is unsupported by
5 substantial evidence. The jury instructions given at trial only define possession in
6 the context of the drug possession charge, and did so as follows:
7
8
9
10
11
12
13
A person ~s in possession of methamphetamine when he knows it is on
his person or in his presence, and he exercises control over it. Even if
the substance is not i.n his physical presence, he is in possession if he
knows where it is, and he exercises control over it. Two or more people
can have possession of a substance at the same time. A person's
presence in the vicinity of the substance or his knowledge of the
existence or the location of the substance, is not, by itself, possession.
14 Defendant was not in actual possession of the contraband found in the bedroom,
15 	making this a constructive possession case. See State v. Garcia, 2005-NMSC-017,
16 , 	13, 138 N.M. 1, 116 P.3d 72 (reviewing a defendant's felon in possession of a
17 firearm conviction). Therefore, in order to sustain Defendant's convictions, the
18 	appellate courts "must be able to articulate a reasonable analysis that the fact-finder
19 might have used to determine knowledge and control." Id. 	(alteration, internal
20 quotation marks, and citation omitted).
21 	{26} 	Defendant relies mainly on Brietag and Garcia in arguing that there is
22 insufficient evidence linking him to the contraband recovered from what was shown
23 	to be his bedroom. In Brietag, police observed the defendant going to and coming
16

1 from a house that he rented, although officers could not say who actually lived at the
2 house. 1989-NMCA-019, ,r 3. Seven or eight individuals were staying at the house
3 when police executed a search warrant, but the defendant was not present. Id. ,r,r 3,
4 	8. 	Upon 	searching 	the 	house, 	the 	police 	found, 	among 	other 	things,
5 methamphetamine, 	marijuana, 	cocaine, 	and 	numerous 	items 	identifying 	the
6 defendant in one of the bedrooms. Id. ,r,r 4, 6. However,, the defendant had been
7 living at another location for about a month prior to the search, and the bedroom in
8 question was actually a "crash pad" occupied by a number of people and contained
9 items identifying other individuals. Id. ,r,r 8, 16. Based on those facts, this Court held
10 that there was insufficient evidence to establish "a rational connection between the
11 	location of the drugs and [the] defendant's knowledge and control sufficient to prove
12 constructive possession beyond a reasonable doubt." Id. ,r 16. We further noted that
13 	"[t]he inference of knowledge and control of drugs, based on proximity to personal
14 belongings, arises from the extent of control the owner or lessee exercises over the
15 	area where drugs are found." Id. ,r 17.
16 	{27} 	To be contrasted is Garcia, where police discovered a firearm behind the
17 passenger's seat of a car containing two occupants, the defendant and the driver.
18 	2005-NMSC-Ol 7, ,r 4. Police also discovered the ammunition clip for the firearm on
19 the passenger's seat where the defendant had been sitting. Id. The defendant was
20 convicted of being a felon in possession of a firearm, and our Supreme Court
17

1 affirmed, finding sufficient evidence\ofknowledge and control. Id. 115. The Garcia
2 Court concluded that there was sufficient evidence to create a reasonable inference
3 that the defendant had knowledge of the firearm because the defendant had placed a
4 beer bottle right next to the gun, acted in a manner that showed consciousness of
5 guilt, and was sitting on the ammunition clip. Id. The Court in Garcia noted that,
6 because there were two occupants in the vehicle who had equal access to the firearm,
7 the State needed more than just physical proximity to establish control of the firearm,
8 a standard found to have been met by the presence of the ammunition clip. Id. 1121-
9 22. "The clip was fully loaded and fit the gun located directly under [the d]efendant's
10 seat, directly linking the clip to the gun." Id. 122. Pivotal was that control over the
11 	clip, which gave rise to control over the gun. Id.
12 	{28} 	For its part, the State relies on another constructive possession case, State v.
13 	Muniz, 	1990-NMCA-105, 1 1, 	110 N.M. 799, 800 P.2d 734. In Muniz, police
14 executed a search warrant of the defendant's home while he was incarcerated. Id.
15 15. When police executed the warrant, the defendant's mother and several children
16 occupied the home. Id. The officers located marijuana in the closet of one of the
17 three bedrooms within the home. Id. 1 6. The defendant, relying on Brietag, argued
18 that there was insufficient evidence to convict him of possession of the marijuana.
19 Muniz, 1990-NMCA-105, 18. This Court disagreed. Id. 115. Similar to the case at
20 ·bar, the jury in Muniz was instructed that two or more people may have possession
18

1 of an object at the same time. Id. 	We stated that "[e]ven if someone else had
2 knowledge of the presence of the marijuana in the bedroom and exercised some
3 control over it, [the] defendant could also have had sufficient knowledge and control
4 to be in constructive possession." Id. 	We found dispositive the facts that the
5 defendant confessed to being a drug trafficker, kept a "black book" he used for his
6 drug transactions at his residence, used the bedroom in which the marijuana was
7 found to keep his correspondence, including a bill for the pager used in his drug
8 transactions, and that the marijuana found in the bedroom closet was packaged for
9 sale. Id. ,r,r 15-17.
10 	{29} 	We view the teachings of Brietag, Garcia; and Muniz to support affirmance
11 	in this case. Here, the State presented additional evidence tying the needle, spoon,
12 and firearm to Defendant beyond just their respective locations within a residence
13 	occupied by multiple people. See State v. Howl, 2016-NMCA-084, ,r 31, 381 P.3d
14 684 (holding that when a defendant does not have exclusive control over the area
15 	where contraband is found "additional circumstances, including the conduct of the
16 accused, are required" to infer constructive possession). First and foremost, the jury
17 could reasonably have accepted that the bedroom in question was Defendant's based
18 	on the evidence showing that Defendant was the only permanent male resident of
19 the house and that the bedroom was the only one that contained male clothing.
20 Notably, the male clothing was found not just in the same room, but in the same
19

1 chest, as the ammunition. The jury was also aware that Defendant admitted to
2 handling the pink firearm, and that the same caliber of bullets that were loaded in
3 the pink gun were also found in the chest in the bedroom. Significant, too, was
4 Defendant's abrupt disappearance during the execution of the search warrant and his
5 attempted flight from the scene, conduct demonstrating a consciousness of guilt. See
6 State v. Sizemore, 1993-NMCA-079, ,-r 11, 115 N.M. 753 (recognizing that flight can
7 demonstrate consciousness 	of guilt). 	These factors, together with Defendant's
8 admission that he was a recent drug user and a drug addict, were sufficient to support
9 an inference of constructive possession. This is so notwithstanding the presence of
10 women's jewelry and other belongings in Defendant's bedroom. See Rojo, 1999-
11 	NMSC-001, ,-r 19 ("In reviewing the sufficiency of evidence used to support a
12 conviction, we resolve all disputed facts in favor of the [s]tate, indulge all reasonable
13 	inferences in support of the verdict, and disregard all evidence and inferences to the
14 contrary.").
15 	{30} 	Similarly, there is sufficient evidence ofknowledge and control to support the
16 	conviction for possession of a firearm by a felon, and this despite the recovery of the
17 pink firearm in a common area of the house. 	Significant to our analysis are
18 Defendant's admissions that he knew the firearm was in the residence and that his
19 	fingerprints were probably on it, his ability to identify its unique color, and the
20 unopposed evidence that the firearm was suitable for firing ammunition of the type
20

1 found in the chest in Defendant's bedroom. See Jimenez, 2017-NMCA-039, 1 48
2 ("A defendant's ability to exercise control over ammunition may give rise to an
3 inference of control over a firearm that can utilize that ammunition.").
4 	{31} 	Consequently, we hold that there is sufficient evidence that Defendant had
5 knowledge and exercised control over the methamphetamine and drug paraphernalia
6 to support the guilty verdict on these two charges. We hold as well that there was
7 sufficient evidence to convict Defendant for possession of a firearm by a felon.
8 D. 	Ineffective Assistance of Counsel
9 	{32} 	Defendant makes two distinct claims of ineffective assistance of counsel.
10 	Specifically, he argues that his trial counsel was not reasonably competent because
11 	he did not give a closing argument, thereby communicating to the jury that
12 Defendant was guilty and did not have a defense. Additionally, Defendant asserts
13 	that his trial counsel had a conflict of interest based on his concurrent representation
14 	of another defendant in an unrelated criminal case who potentially could have served
15 	as a witness against Defendant in this matter.
16 	{33} 	This Court reviews claims for ineffective assistance of counsel de novo. See
17 State v. Boergadine, 2005-NMCA-028, 133, 137 N.M. 92, 107 P.3d 532. The. right
18 to effective assistance of counsel is guaranteed by both the Federal and State
19 Constitutions. See State v. Brazeal, 1990-NMCA-010, 114, 109 N.M. 752, 790 P.2d
20 	1033. This Court will presume that a defendant received effective assistance of
21

1 counsel unless the defendant demonstrates that (1) counsel was not reasonably
2 competent, and (2) counsel's incompetence caused the defendant prejudice. See
3 State v. Sanchez, 1995-NMSC-053, 120, 120 N.M. 247, 901 P.2d 178.
4 	{34} 	The record here reveals that defense counsel's decision to forego a closing
5 argument was a tactical decision. During a bench conference prior to closing
6 argument, defense counsel specifically represented that he was waiving the closing
7 as a strategy as he had successfully done previously in other cases. Defense counsel
8 could reasonably have decided that the State had not met its burden in establishing
9 the critical element of possession or that it might prove counterproductive to argue
10 in defense that the bedroom was not Defendant's if the jury were convinced to the
11 	contrary. Regardless, "this Court will not second guess the tactics or strategy of
12 defense counsel." State v. Gutierrez, 2005-NMCA-015, 120, 136 N.M. 779, 105
13 	P.3d 332; see also Sanchez, 1995-NMSC-053, 1 20. Thus, we hold that defense
14 counsel's waiver of closing argument did not constitute ineffective assistance of
15 	counsel. Given this conclusion, we need not address whether Defendant suffered any
16 prejudice as a result of counsel's waiver of closing argument.
17 {35} 	Turning to that portion of Defendant's ineffective assistance claim premised
18 on counsel's supposed conflict of interest, we analyze such claims differently than
19 other ineffective assistance claims. See Rael v. Blair, 2007-NMSC-006, 1 10, 141
20 N.M. 232, 153 P.3d 657 ("[T]he analysis of an ineffective assistance of counsel
22

1 claim based on a conflict of interest requires a different analysis than the more
2 typical ineffective assistance of counsel claim based on lack of competence and
3 resulting prejudice."). Under the governing analysis, this Court presumes prejudice
4 when counsel is burdened with an actual conflict of interest. jd. ,r 11. "[T]o invoke
5 such a presumption of prejudice, there must be an actual, active conflict that
6 adversely affects counsel's trial performance; the mere possibility of a conflict is
7 insufficient." State v. Martinez, 2001-NMCA-059, ,r 24, 130 N.M. 744, 31 P.3d
8 	1018; see also Rael, 2007-NMSC-006, ,r 11 (indicating that the burden is on the
9 defendant to make such a showing). Defendant has the burden to make this showing.
10 Rael, 2007-NMSC-006, ,r 11.
11 	{36} 	Defendant has failed to show that defense counsel had an actual conflict that
12 adversely affected his trial performance. The potential conflict cited by Defendant
13 	appears to be only hypothetical and unrelated to this case. Furthermore, Defendant
14 was aware of the potential conflict prior to trial, elected to waive the conflict in
15 	writing, and affirmatively represented to the district court that he understood that
16 there was a potential conflict. Based on the record before us, Defendant has not made
17 a prima facie showing of ineffective assistance of counsel. However, Defendant may
18 	bring an ineffective assistance of counsel claim by way of a habeas proceeding. See
19 State v. Uribe-Vidal, 2018-NMCA-008, ,r 27,409 P.3d 992.
20
23

1 E. 	Cumulative Error
2 	{37} 	Lastly, Defendant asserts that the combination of all the previous errors
3 warrant reversal of his convictions based on the cumulative error doctrine. "The
4 doctrine of cumulative error applies when multiple errors, which by themselves do
5 not constitute reversible error, are so serious in the aggregate that they cumulatively
6 deprive the defendant of a fair trial." State v. Roybal, 2002-NMSC-027, ,r 33, 132
7 N.M. 657, 54 P.3d 61. We have no occasion to address this argument in light of our
8 holdings that the district court did not commit any errors, much less multiple errors. -
CONCLUSION	9 III.
10 	{38} 	For the aforementioned reasons, we affirm.
11 	{39}
12
13
IT IS SO ORDERED.
14 	WE CONCUR:
9.~
J. MILES HANISEE, Judge
,s 	u~~16 EMIL J. KIENE, Judge Pro Tempore
17 	~JJJ~~18 DANIEL J. GALLEGOS, Judge Pro Tempore
24