October 13, 2011 – State of New Mexico v. Audie Dickert, No. 29,720

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	October 13, 2011
NO. 29,720
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
AUDIE DICKERT,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Stephen Bridgforth, District Judge
Gary K. King, Attorney General
Santa Fe, NM
M. Anne Kelly, Assistant Attorney General
Albuquerque, NM
for Appellee
Jacqueline L. Cooper, Acting Chief Public Defender
Allison H. Jaramillo, Assistant Appellate Defender
Santa Fe, NM
for Appellant

OPINION
CASTILLO, Chief Judge.
{1} 	There were two motions for rehearing filed in this case. We deny the State’s
motion for rehearing. We grant Defendant’s motion for rehearing. The opinion filed
on July 26, 2011 is withdrawn, and the following opinion is substituted in its place.
{2} 	Around midnight on May 30, 2007, after having consumed a considerable
amount of alcohol, Defendant accompanied three friends to a party in a desert area
outside Las Cruces, New Mexico. There was a serious altercation, and Defendant was
identified as one of the persons who attacked other attendees; who inflicted significant
harm on one of them; who severely damaged two vehicles using a baseball bat and
rocks; and who took or orchestrated the taking of some Red Bull, two cell phones, a
car stereo faceplate, and compact discs. He was indicted for numerous crimes related
to the events of the evening. The primary issue in this case relates to jury instructions.
At trial, Defendant testified and denied having committed the acts underlying the
crimes charged. 	At the close of trial, Defendant requested a jury instruction on
intoxication as a defense to the specific intent crimes charged. 	The district court
refused the jury instruction on the ground that Defendant’s theory of noninvolvement
was inconsistent with the defense of intoxication. The propriety of this ruling is a
question of first impression in New Mexico. Because a criminal defendant has a right

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to an instruction on any recognized defense for which evidence has been presented
and because we leave it to the jury to assess the credibility of the theories offered, we
hold that the jury instruction on intoxication should have been given. 	Thus, we
reverse and remand for a new trial on the specific intent crimes. 	Defendant also
claims error based on a confrontation clause violation, insufficient evidence,
admission of evidence, and ineffective assistance of counsel. 	We affirm on these
issues.
BACKGROUND
{3} 	We begin with a summary of the testimony presented at Defendant’s trial.
Because Defendant was ultimately convicted of several of the counts charged, we
view the evidence in the light most favorable to the verdict. 	State v. Apodaca, 118
N.M. 762, 766, 887 P.2d 756, 760 (1994).
{4} 	On May 30, 2007, Defendant attended a party at a location in the desert outside
of Las Cruces known as “the pit.” The pit is an area in the desert surrounded by hills
where teenagers or college students go to associate and have bonfires. 	Defendant
arrived at the pit around midnight and had been drinking heavily beforehand. He was
accompanied by Chad Williams, Kadrian Lucero, and Isaac Gutierrez.
{5} 	When Defendant arrived, there was only a small group of people present. This
group included Jacob Baca, Jacob Vasquez, Cesar Villa, Jeff Martinez, and Crystal

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Marshal.
{6} 	At that time, Jeff and Crystal were employed by the Red Bull beverage
company and were on a promotional tour. They had been given use of a Red Bull
company car as part of their duties. The car was adorned with a replica of a Red Bull
can on its roof and had the Red Bull logo painted on its side. They had driven the
company vehicle to the pit and had gratuitously dispensed Red Bulls throughout the
evening.
{7} 	Defendant, Kadrian, and Chad approached the group. Defendant was agitated
and angry and inquired several times about a person named Patrick. 	The group
repeatedly denied knowing this person, and eventually Defendant and his companions
began to walk toward their vehicle. They returned, however, and again they angrily
confronted the group.
{8} 	This time, Defendant claimed that someone had thrown a rock at them and
demanded to know who was responsible. The members of the other group all denied
having thrown a rock, but Defendant would not accept this response. 	He became
enraged, took off his shirt, and attempted to punch Jacob V. Jacob V. avoided several
punches and fled into the desert.
{9} 	Jacob B. knew Defendant somewhat and unsuccessfully attempted to calm him
down. Defendant continued to act aggressively, and Jacob B. backed away. Kadrian

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and Chad had armed themselves with baseball bats at this point and approached Jacob
B. They accused him of throwing the rock, so Jacob B. also fled into the desert. As
Jacob B. was fleeing, the three men screamed that they intended to kill him.
{10} 	Cesar also knew Defendant somewhat and similarly attempted to reason with
him, but this proved fruitless. Kadrian hit Cesar with a rock; Chad then threatened
Cesar with a bat and told him to shut up or he would hit him. Cesar also fled into the
desert.
{11} 	Meanwhile, Jeff and Crystal tried to get to the Red Bull car to escape the
situation but were prevented from leaving when Defendant instructed Chad and
Kadrian to stop them. The three men then confronted Jeff and Crystal and demanded
that they relinquish all of their Red Bull. Jeff and Crystal complied with this demand.
At one point, Chad struck Jacob V.’s dog with a bat and Jeff protested. Jeff was then
struck with a bat and was rendered unconscious. 	Kadrian picked Jeff up, and
Defendant hit him with the bat again. This act was repeated once more. Defendant
also punched Jeff while he was lying on the ground unconscious.
{12} 	After the attack on Jeff ended, Defendant took Jeff’s cell phone from his
pocket. Simultaneously, Chad demanded that Crystal give him her phone, which she
did. 	Cesar witnessed this activity from a distance and stated that Defendant
orchestrated the theft of the phones.

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{13} 	Crystal pleaded with Defendant and his companions to leave them alone, but
her requests were ignored. She had been instructed to lie down and had done so. At
some point, however, she stood in defiance, and Defendant commanded her to get
back on the ground and pushed her down. She stood back up, and Defendant pushed
her down again. 	When she stood up a third time, Defendant started screaming
incoherently at her.
{14} 	Eventually, Chad responded to Crystal’s pleas and helped Crystal put Jeff in the
Red Bull car. Crystal drove away hurriedly and, as she was driving away, she heard
Defendant yell at Chad for allowing them to leave. Cesar witnessed Defendant smash
out the rear windshield of the Red Bull car as Crystal drove off.
{15} 	During the course of the melee, Defendant participated in attacking both the
Red Bull car and Cesar’s Ford Ranger. The vehicles were struck with bats and rocks,
and both vehicles sustained significant damage. 	In addition, Defendant entered
Cesar’s truck and took his stereo faceplate and compact disc collection. Cesar heard
Defendant and his accomplices indicate their intention to steal the truck, but they
could not get the truck started so they abandoned this plan.
{16} 	Defendant and his accomplices eventually fled the pit and traveled to a Circle
K. The police had been contacted and arrested Defendant and the other men at that
location. Cesar’s stereo faceplate and compact disc collection as well as numerous

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cans of Red Bull were found inside the car driven to the Circle K by Defendant’s
group. At the police station, Defendant’s behavior was erratic and violent.
{17} 	Chad and Kadrian were charged separately and entered into plea agreements.
They testified against Defendant at his trial. The two Jacobs, Cesar, Jeff, and Crystal
also testified, as did several of the officers who were involved in the aftermath of the
incident. 	Defendant testified, and he denied both engaging in most of the above-
described conduct and committing the charged crimes.
{18} 	At the close of trial, the district court granted a directed verdict as to several of
the charges. Defendant requested an intoxication instruction pursuant to UJI 14-5111
NMRA as a defense to the specific intent crimes he was charged with, but the court
declined to issue the instruction on the basis that it conflicted with Defendant’s
testimony that he did not commit the crimes alleged.
{19} 	The jury found Defendant guilty and convicted him of eleven counts including:
two counts of robbery for taking Jeff and Crystal’s cell phones; one count of
aggravated battery for attacking Jeff; aggravated assault, false imprisonment,
conspiracy to commit false imprisonment for his conduct towards Crystal; burglary
of a vehicle for entering Cesar’s truck with the intent to commit a theft within; larceny
for taking Cesar’s stereo faceplate and compact disc collection; two counts of criminal
damage to property for intentionally damaging Cesar’s truck and the Red Bull car; and

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battery for his conduct towards Jacob V. Defendant was sentenced to twelve years’
incarceration, with nine of those years suspended, and two years of parole. Defendant
appeals.
DISCUSSION
{20} 	On appeal, Defendant raises five issues. First, he claims that the district court
erred in refusing to issue his requested instruction on the defense of intoxication.
Second, he asserts that his right to confrontation under the Sixth Amendment was
violated when the court refused to allow him to cross-examine Chad about his mental
faculties. 	Third, he challenges the sufficiency of the evidence underlying the two
robbery convictions, the false imprisonment conviction, and the criminal damage to
property conviction related to the damage sustained by Cesar’s truck. 	Fourth, he
claims that the court erred in admitting the State’s photographic evidence because the
State failed to lay a proper foundation. 	Finally, he claims, pursuant to State v.
Franklin, 78 N.M. 127, 129, 428 P.2d 982, 984 (1967), and State v. Boyer, 103 N.M.
655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985), that he received ineffective assistance
of counsel at trial. We consider these issues in the order listed.
Intoxication Instruction
{21} 	The district court declined to issue the intoxication instruction on grounds that
such an instruction would be inconsistent with Defendant’s trial theory, i.e., that he

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did not commit any of the specific intent offenses. The district court has correctly
characterized Defendant’s trial theory. We have reviewed Defendant’s testimony, and
his position during trial was that he did not commit the specific intent offenses for
which he was charged and convicted. 	On appeal, Defendant argues that there is
nothing which precludes him from asserting inconsistent defenses and asserts that the
court committed reversible error in withholding the instruction. The State responds
that we need not address the inconsistent defense issue. Citing the right for any reason
doctrine, the State claims that “there was insufficient evidence . . . to provide the jury
with evidence to show that Defendant was intoxicated to the degree that he lacked the
specific intent to commit the specific intent crimes.” 	We first examine the State’s
claim that there was insufficient evidence to justify the issuance of the instruction and,
because we disagree with this claim, we then consider the issue of inconsistent
defenses.
Evidence supporting the instruction
{22} 	“We review de novo the question of whether there was evidence to support an
instruction on intoxication as a defense.” State v. Romero, 1998-NMCA-057, ¶ 22,
125 N.M. 161, 958 P.2d 119. “[W]e view the evidence in the light most favorable to
giving the instruction.” Id.
{23} 	“It is settled law that [a] showing of intoxication is a defense to a specific intent

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crime where the intoxication is to such a degree as would negate the possibility of the
necessary intent.” 	Id. (alteration in original) (internal quotation marks and citation
omitted). “[E]vidence as to intoxication must be substantial and must relate to [the]
defendant’s condition as of the time of the commission of the [crime], or be so closely
related in time that it can reasonably be inferred that the condition continued to the
time of the commission of the [crime].” 	Id. ¶ 23 (second and third alterations in
original) (internal quotation marks and citation omitted). “When there is evidence of
intoxication at or near the time of the crime, a defendant need not present specific
evidence as to what degree the intoxicant affected him. However, mere evidence that
the defendant consumed an intoxicant is not enough.” 	Id. ¶ 26. 	We examine the
evidence presented at trial in light of these standards.
{24} 	Defendant testified that on the night of the incident he casually consumed
alcohol between 5:00 p.m. and 10:00 p.m. He then went to a house party where he
played drinking games and consumed between six to ten beers. 	He left the house
party around midnight and traveled to the pit as a passenger in someone else’s vehicle
because he was too drunk to drive. 	During the drive to the pit—a period of about
twenty minutes—he consumed “a good portion” of a bottle of Jaegermeister.
{25} 	Defendant’s behavior at the pit party was variously described as crazed, out of
control, wild, and a state of rage. Defendant did not consume alcohol while at the pit

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but, given the amount he had consumed earlier, he claimed he was nevertheless
“pretty intoxicated.” He was arrested at approximately 2:00 a.m. Defendant testified
that the alcohol he had consumed prior to that point really “started kicking in” at the
time of arrest, and he claimed he was “really bad” when he arrived at the police
station. 	Deputy Reyes interacted with Defendant at the station and testified that
Defendant smelled of alcohol, acted belligerent and violent, and appeared to be drunk
or on some form of narcotic.
{26} 	This evidence of intoxication was substantial both in terms of degree and
proximity to the time of Defendant’s alleged crimes, and we conclude that this
evidence was sufficient to justify the requested instruction on intoxication. State v.
Hernandez, 2003-NMCA-131, ¶ 20, 134 N.M. 510, 79 P.3d 1118 (“[The d]efendant
was entitled to the [intoxication] instruction if there was any evidence supporting it.”).
We turn now to whether the district court correctly withheld the intoxication
instruction 	because 	it 	was 	inconsistent 	with 	Defendant’s 	trial 	theory 	of
noninvolvement. We note that the State has chosen not to address this issue.
Inconsistent defenses
{27} 	“The [district] court’s rejection of [the] defendant’s submitted jury instructions
is reviewed by this Court de novo, because it is closer to a determination of law than
a determination of fact.” 	State v. Ellis, 2008-NMSC-032, ¶ 14, 144 N.M. 253, 186

11
P.3d 245 (internal quotation marks and citation omitted). 	The permissibility of
inconsistent defenses in this jurisdiction has been addressed by the New Mexico
Supreme Court and our Court, but only in the specific context of entrapment and
duress. 	See Martinez v. State, 91 N.M. 747, 749, 580 P.2d 968, 970 (1978)
(discussing 	a 	defendant’s 	entitlement 	to 	an 	entrapment 	instruction 	when 	the
defendant’s theory at trial was inconsistent with entrapment); State v. Garcia, 79 N.M.
367, 369, 443 P.2d 860, 862 (1968) (same); State v. Buendia, 1996-NMCA-027, 121
N.M. 408, 411, 912 P.2d 284, 287 (same); State v. Wright, 84 N.M. 3, 5, 498 P.2d
695, 697 (Ct. App. 1972) (same); see also State v. Tom, 2010-NMCA-062, ¶¶ 26-32,
148 N.M. 348, 236 P.3d 660 (discussing a defendant’s entitlement to a duress
instruction when the defendant’s theory at trial was inconsistent with duress). The
question before us does not deal with entrapment and duress but rather whether
Defendant was entitled to an instruction on intoxication given his reliance on the
defense of noninvolvement.
{28} 	As a general rule, “inconsistent defenses may be interposed in a criminal case.”
21 Am. Jur. 2d Criminal Law § 183 (2008). “[A] defendant may raise the alternative
defenses of intoxication and noninvolvement in the offense[.]” 	Id.; 	State v.
Broughton, 425 N.W.2d 48, 51 (Iowa 1988) (“We hold it was error to refuse [the
defendant’s] requested instruction on voluntary intoxication on the ground [that] it

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was inconsistent with his claim of alibi.”); see also 22 C.J.S. Criminal Law § 55, at
90 (2006) (“In general, the fact that one defense is based on the theory that the
accused did not commit the offense does not deprive the defendant of the right to take
advantage of other defenses, although based on the theory of justification or excuse.”).
{29} 	At least three justifications animate this principle. 	First, “[a]s a general
proposition[,] a defendant is entitled to an instruction as to any recognized defense for
which there exists evidence sufficient for a reasonable jury to find in his favor.”
Mathews v. United States, 485 U.S. 58, 63 (1988); accord State v. Trammel, 100 N.M.
479, 481, 672 P.2d 652, 654 (1983) (“When evidence at trial supports the giving of
an instruction on a defendant’s theory of the case, failure to so instruct is reversible
error.”). Second,
[t]he rule in favor of inconsistent defenses reflects the belief of modern
criminal jurisprudence that a criminal defendant should be accorded
every reasonable protection in defending himself against governmental
prosecution. 	That established policy bespeaks a healthy regard for
circumscribing 	the 	[g]overnment’s 	opportunities 	for 	invoking 	the
criminal sanction.
United States v. Demma, 523 F.2d 981, 985 (9th Cir. 1975). 	This excerpt from
Demma was acknowledged by our Supreme Court in Martinez. 	See Martinez, 91
N.M. at 749, 580 P.2d at 970. Third, it is for the fact finder—not the court—to assess
the credibility of defenses for which there exists sufficient evidence. See id. at 750,
580 P.2d at 971 (“Whether or not the defenses are believable is for the trier of fact to

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determine, inasmuch as alternative defenses are allowed.”). We note an important
corollary to this last justification: a criminal defendant who presents a jury with two
totally inconsistent defenses must accept the potential peril of doing so. See 2 Wayne
R. LaFave, Substantive Criminal Law § 9.8(f), at 108 (2003) (“[I]t would seem that
the adversary process is itself a sufficient restraint upon resort to positions which are
truly inconsistent. 	In a case where two positions are unquestionably logically
inconsistent, a defendant who pursued both positions would certainly be found to be
lacking credibility.”). 	We agree with the justification for allowing inconsistent
defenses to be simultaneously asserted and therefore adopt this position.
{30} 	In the present matter, there was sufficient evidence that Defendant was
significantly intoxicated at the time of the incident at the pit party notwithstanding his
denial at trial that he did not commit the crimes charged. Thus, the district court’s
refusal to issue the intoxication instruction was reversible error. See Trammel, 100
N.M. at 481, 672 P.2d at 654. 	Defendant is entitled to a new trial on the specific
intent offenses for which he was convicted. We turn to the next issue on appeal.
Confrontation
{31} 	Defendant next argues that the district court violated his Sixth Amendment right
to confrontation by limiting his cross-examination of Chad. Specifically, Defendant
claims that he was wrongly precluded from inquiring about Chad’s mental faculties

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and memory problems. We begin by reviewing the events at trial.
{32} 	During cross-examination, Defendant pressed Chad about the specific timing
of the events leading up to the incident at the pit. 	Chad expressed frustration and
explained “I’m not good on the time, sir. I’m not good at all on the times, like the
streets and stuff like that too.” 	Defendant responded by inquiring about Chad’s
educational background stating, “I believe you told us you didn’t graduate from high
school; is that correct?” Chad responded in the affirmative, and Defendant added,
“[T]hat’s because you have some problems?” 	Chad again responded in the
affirmative. At this juncture, the State objected and a bench conference ensued.
{33} 	At the bench, the district court informed Defendant that he was attempting to
improperly impeach Chad and further pointed out that Defendant had misunderstood
Chad’s 	testimony. 	Defendant 	explained 	that 	Chad 	had 	raised 	the 	issue 	of
incompetency at his own trial, which suggested he might have “issues with his
memory.” The district court replied that it was improper to attempt to raise that issue
in front of the jury and informed Defendant that “[i]f he understands the questions
you’ve asked him, I’m not fixing to let you impeach anything, those kinds of things,
counsel. Not you, not him, not anybody. Okay.” Defendant accepted the ruling and
made no further objection.
{34} 	“Questions of admissibility under the Confrontation Clause are questions of

15
law, which we review de novo.” 	State v. Aragon, 2010-NMSC-008, ¶ 6, 147 N.M.
474, 225 P.3d 1280. In its answer brief, the State contends that we need not address
the merits of Defendant’s confrontation argument because he failed to preserve the
claim. We agree. Defendant did not raise the issue of confrontation in response to the
State’s objection to Defendant’s line of questioning and did not alert the court to this
issue and invoke a ruling. See Rule 12-216(A) NMRA (“To preserve a question for
review it must appear that a ruling or decision by the district court was fairly
invoked[.]”); State v. Lopez, 2008-NMCA-002, ¶ 8, 143 N.M. 274, 175 P.3d 942
(“The objection must be timely and must specifically apprise the district court of the
claimed error, resulting in an intelligent ruling from the district court.”). 	As the
confrontation claim was not preserved, it will not be addressed. The State goes on to
argue that the issue on appeal is actually an evidentiary matter: the propriety of the
court’s limitation of Defendant’s cross-examination. 	But, in his brief in chief,
Defendant raised only the confrontation issue and cites authority related only to that
claim. Thus, the evidentiary issue identified by the State is not before us. See State
v. Gallegos, 101 N.M. 526, 530, 685 P.2d 381, 385 (Ct. App. 1984) (observing that
issues not argued on appeal are deemed abandoned).
{35} 	Defendant acknowledges the preservation problem in his reply brief and asserts
that, if preservation is an issue, we should review the matter for fundamental error.

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Although Defendant asserts that the court’s ruling was fundamental error, he does not
develop the argument and, accordingly, we will not engage in a fundamental error
review. 	State v. Gonzales, 2011-NMCA-007, ¶ 19, 149 N.M. 226, 247 P.3d 1111
(“[T]his Court has no duty to review an argument that is not adequately developed.”).
Sufficiency of the Evidence
{36} 	Defendant asserts that the evidence was insufficient to support the two robbery
convictions, the conspiracy to commit false imprisonment conviction, and the criminal
damage to property conviction related to the attack on Cesar’s truck. We have already
determined that Defendant is entitled to a new trial on the two robbery convictions and
the conspiracy to commit false imprisonment conviction. Thus, we need only address
Defendant’s arguments concerning the criminal damage to property conviction.
{37} 	“The sufficiency of the evidence is assessed against the jury instructions
because they become the law of the case.” State v. Quiñones, 2011-NMCA-018, ¶ 38,
149 N.M. 294, 248 P.3d 336. 	The sufficiency review itself involves a two-step
process. 	State v. Huber, 2006-NMCA-087, ¶ 11, 140 N.M. 147, 140 P.3d 1096.
Initially, the evidence is viewed in the light most favorable to the verdict. Id. Then
the appellate court must make a legal determination of “whether the evidence viewed
in this manner could justify a finding by any rational trier of fact that each element of
the crime charged has been established beyond a reasonable doubt.” Apodaca, 118

17
N.M. at 766, 887 P.2d at 760 (internal quotation marks and citation omitted). “[W]e
will not reweigh the evidence nor substitute our judgment for that of the fact finder
provided that there is sufficient evidence to support the verdict.” 	State v. Fuentes,
2010-NMCA-027, ¶ 13, 147 N.M. 761, 228 P.3d 1181 (internal quotation marks and
citation omitted).
{38} 	The jury was instructed that the essential elements of criminal damage to
property included the following:
1. 	[D]efendant intentionally damaged property of another;
2. 	[D]efendant did not have the owner’s permission to damage
the property;
3. 	This happened in New Mexico on or about the 30th day of
May, 2007.
{39} 	At trial, Cesar gave the following testimony. He had parked his Ford Ranger
near the area of the pit that serves as both the entrance and exit. After the attack on
Jeff ended, he observed Jeff and Crystal flee the pit in the Red Bull vehicle.
Defendant and his accomplices started to leave shortly after. They got in their car and
began to drive away, but as they neared his vehicle they stopped. Defendant, Kadrian,
and Chad then got out of the car and began to bash out the windows on Cesar’s truck.
They also threw rocks at his truck and threw rocks through the windows. He then
observed the men enter his vehicle and heard someone yell, “Take the truck,” but they
could not get it started. Eventually, they drove off, leaving the truck behind.

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{40} 	After Defendant and his accomplices had departed, Cesar walked to his truck
and inspected the vehicle. He discovered that they had done significant damage. The
car was “all dinged up.” There were two rocks inside the vehicle and shattered glass
everywhere. Some of the glass had become embedded in the seats. The contents of
the glove compartment were strewn throughout the vehicle. They had torn off the
faceplate of his stereo, which irreparably damaged the entire stereo system. 	His
rearview mirror was destroyed as was the windshield and all the other windows. The
ignition column had also been irreparably damaged. All told, the vehicle sustained
approximately $800 in damages.
{41} 	Cesar’s testimony was consistent with other witness accounts. Chad testified
that Defendant entered Cesar’s vehicle in order to steal Cesar’s stereo faceplate and
stated that Defendant succeeded in doing so. 	Jacob V. testified that he observed
Defendant throw a boulder through a vehicle window. Although he was unable to
specify which vehicle, the jury could reasonably infer that it was Cesar’s vehicle in
light of Cesar’s testimony that he observed Defendant throw rocks into his truck. See
State v. Garcia, 2005-NMSC-017, ¶ 20, 138 N.M. 1, 116 P.3d 72 (recognizing that
the jury is entitled to draw reasonable inferences from the evidence to reach a
conclusion that the defendant committed a crime).
{42} 	Crystal offered a slightly different account of the events of the evening, but did

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testify, consistent with the other witnesses, that Defendant participated in damaging
Cesar’s vehicle. She stated that Defendant and Kadrian used a baseball bat to “bash”
in the windows of both the Red Bull car and Cesar’s vehicle and variously kicked both
cars. Her testimony diverged from Cesar’s account in that she stated that Defendant
and Kadrian did the damage to Cesar’s vehicle in her presence. Cesar testified that
the damage to his vehicle occurred after Crystal and Jeff had departed the scene and
that Chad was also involved. 	It was for the jury to decide the significance of this
inconsistency and to reconcile, as they saw fit, the varying accounts of the events in
question. 	See State v. Chavez, 116 N.M. 807, 814, 867 P.2d 1189, 1196 (Ct. App.
1993) (stating that the “trier of facts weighs the testimony, determines credibility of
witnesses, reconciles inconsistent or contradictory statements of a witness, and
determines where the truth lies”).
{43} 	We conclude that there was sufficient evidence to support the criminal damage
to property conviction related to the attack on Cesar’s truck. We proceed to the next
issue on appeal.
Photographic Evidence
{44} 	Defendant asserts that the district court erred in admitting certain photographic
evidence at trial. “We review claims that a trial court erred in admitting evidence for
abuse of discretion.” 	State v. Macias, 2009-NMSC-028, ¶ 16, 146 N.M. 378, 210

20
P.3d 804. However, we need not reach the merits of Defendant’s argument. See State
v. Fuentes, 2010-NMCA-027, ¶ 29, 147 N.M. 761, 208 P.3d 1181 (explaining that
appellate court does not review unclear or underdeveloped arguments).
{45} 	In his brief, Defendant does not identify the specific photographs that were
purportedly admitted in error, and there are no photographic exhibits included in the
record on appeal. 	Rather, he asserts that his argument arises from his “continuing
objection to the State’s photographic exhibits.” From this statement, it appears to us
that Defendant may be attacking the admission of all of the State’s photographic
exhibits, but we are not sure. This is problematic as there are instances in the record
where Defendant expressly stated he had no objection to the admission of certain
photographic exhibits. 	Defendant has failed to identify which photographs were
objectionable and which were not, and he appears to be asking us to sift through the
record to figure out the factual underpinnings of his claim. This we will not do. See
Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M. 451, 200 P.3d 104 (“We will not
search the record for facts, arguments, and rulings in order to support generalized
arguments.”).
{46} 	Moreover, Defendant has not argued or identified the remedy he is entitled to
as a result of the alleged error and has made no attempt to prove that the admission of
the photographs prejudiced him or constituted reversible error. State v. Jett, 111 N.M.

21
309, 312, 805 P.2d 78, 81 (1991) (“An evidentiary ruling within the discretion of the
court will constitute reversible error only upon a showing of an abuse of discretion,
and a demonstration that the error was prejudicial rather than harmless[.]” (citation
omitted)). 	In short, this section of Defendant’s brief provides us with nothing to
review. 	We conclude that Defendant failed to adequately develop his argument
regarding the photographic exhibits and decline to address the matter further. 	See
Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d
1076 (declining to entertain a cursory and inadequately developed argument).
Ineffective Assistance of Counsel
{47} 	Lastly, Defendant argues, relying on Franklin and Boyer, that he received
ineffective assistance of counsel at trial. Defendant identifies the correct standard of
review that we employ in reviewing a claim of ineffective assistance. 	See State v.
Bernal, 2006-NMSC-050, ¶ 32, 140 N.M. 644, 146 P.3d 289 (“For a successful
ineffective assistance of counsel claim, a defendant must first demonstrate error on the
part of counsel, and then show that the error resulted in prejudice.”).
{48} 	Defendant claims that “his trial attorney was ineffective for failing to interview
important witnesses [who] were at the party. These witnesses would have shown that
[Defendant] was not as involved in the incident as the State’s witnesses portrayed.”
Defendant has not identified who these other “witnesses” are, or whether there were

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in fact other people at the party at the time of the incident. Moreover, Kadrian, Chad,
and all of the victims testified that the only people present at the pit during the time
of the attack were Defendant’s group and the group Defendant attacked. 	Without
more, we cannot review Defendant’s ineffective assistance claim. 	See Headley,
2005-NMCA-045, ¶ 15.
CONCLUSION
{49} 	Defendant was entitled to an intoxication instruction on the specific intent
crimes for which he was charged. 	Thus, we reverse and remand for retrial on the
following six convictions: the two robbery convictions, charged as counts one and
two in the indictment; aggravated battery, charged as count three in the indictment;
conspiracy to commit false imprisonment, charged as count eight in the indictment
and renumbered count seven at trial; burglary of a vehicle, charged as count nine in
the indictment and renumbered count eight at trial; and larceny, charged as count ten
in the indictment and renumbered count nine at trial. We reject Defendant’s other
arguments and affirm the remaining convictions which include: aggravated assault,
charged as count six in the indictment and renumbered count five at trial; false
imprisonment, charged as count seven in the indictment and renumbered count six at
trial; criminal damage to property over $1,000, charged as count eleven in the
indictment and renumbered count ten at trial; criminal damage to property under

23
$1,000, charged as count thirteen in the indictment and renumbered count ten at trial;
and battery, charged as count fourteen in the indictment and renumbered count twelve
at trial. This matter is remanded to the district court for proceedings consistent with
this Opinion.
{50} 	IT IS SO ORDERED.
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CELIA FOY CASTILLO, Chief Judge
WE CONCUR:
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MICHAEL D. BUSTAMANTE, Judge
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TIMOTHY L. GARCIA, Judge