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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico
ol STATE OF NEW MEXICO, Filed f 0/28/2019 9:31 AM
3 Plaintiff-A ppellee, Mark Reynol s
Al v. No. A-1-CA-35917
5| JESSIE CHAVEZ,
6 Defendant-Appellant.
7| APPEAL FROM THE DISTRICT COURT OF CHAVES COUNTY
8] James M. Hudson, District Judge
9} Hector H. Balderas, Attorney General
10] Maha Khoury, Assistant Attorney General
11} Santa Fe, NM.
12] for Appellee
13] Law Offices of Adrianne R. Turner
14] Adrianne R. Turner
151_Albuaquerque NM.
15} Albuquerque, NM.
16] for Appellant
17 MEMORANDUM OPINION
18] HANISEE, Chief Judge
19] 43 Defendant Jessie Chavez appeals from his convictions for kidnapping in
20] violation of NMSA 1978, Section 30-4-1 (2003); false imprisonment in violation of
21| NMSA 1978, Section 30-4-3 (1963); child abuse in violation of NMSA 1978,

Section 30-6-1(D)(1) (2009); residential burglary in violation of NMSA 1978,

Section 30-16-3(A) (1971); aggravated assault with a deadly weapon against a

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1ousehold member in violation of NMSA 1978, Section 30-3-13(A

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1995): and

unlawful taking of a motor vehicle in violation of NMSA 1978, Section 30-16D-

1(A)(1) (2009). Defendant makes the following challenges on appeal: (1) the district

court erred in instructing the jury_as to the counts of child abuse, burglary, and

aggravated assault; (2) the State presented insufficient evidence to support

Defendant’s convictions for child abuse, kidnapping, false imprisonment, and

burglary; and (3) defense counsel’s failure to file a motion to suppress and to

investigate the case constituted ineffective assistance of counsel. We affirm in part,

reverse in part, and remand for further proceedings.

BACKGROUND

3 Given that the parties are familiar with the facts and details of this case, we

only briefly set forth pertinent facts and applicable law in this memorandum opinion,

reserving further discussion of specific facts where necessary to our analysis. See

Rule 12-405(B) NMRA (providing that appellate courts may dispose of a case by

non-precedential order, decision, or memorandum opinion under certain

circumstances); State v. Gonzales, 1990-NMCA-040, § 48, 110 N.M. 218, 794 P.2d

361 (“[M]Jemorandum opinions are not meant to be cited as controlling authority

because such opinions are written solely for the benefit of the parties [and s|ince the

parties know the details of the case, such an opinion does not describe at length the

context of the issue decided[.]”).

Oe ae es

33 On August 22, 2012, Defendant learned that his former girlfriend, Lindsey,

obtained a restraining order against him. Lindsey told Defendant about the

restraining order while speaking to him on the phone, and almost immediately upon

having been informed, Defendant appeared banging on the front door of Lindsey’s

apartment, where she lived with her nine-year-old son, J.M.' Once there, Defendant

unsuccessfully tried to gain entry through the front door, eventually breaking a

window to climb into J.M.’s bedroom. Inside, Defendant found Lindsey in the

bathroom, beat her, threateningly wielded a pocket knife, took her car keys, and

ordered Lindsey and J.M. to leave the apartment with him through the broken

window. After leaving the apartment, Defendant drove the three of them in

Lindsey’s vehicle to multiple locations in and between Roswell and Hobbs. In

Hobbs, Defendant left J-M., alone, in a restaurant parking lot. Defendant then drove

Lindsey to other locations in Hobbs before finally stopping at a park where he fell

asleep in the vehicle, at which point Lindsey fled and notified police. Defendant was

charged with two counts of kidnapping, one count of intentional child abuse by

endangerment, one count of residential burglary, one count of aggravated assault on

"Defendant and Lindsey have a daughter together, who also lived with
Lindsey and J.M., but who was not present at the apartment at the time of

Defendant’s arrival. Defendant did not live at the apartment.

a household member, and one count of unlawful taking of a motor vehicle. After a

trial, the jury convicted Defendant of all counts except

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in place of which the jury convicted Defendant of the lesser included count of false

imprisonment. Defendant appeals.

DISCUSSION

1 The District Court Properly Instructed the Jury Regarding Burglary and

(4 Defendant argues that the district court erred by (1) failing to provide the jury

with definitional instructions regarding burglary, (2) failing to provide the jury with

definitional instructions regarding aggravated assault, and (3) improperly instructing

the jury on child abuse by using a withdrawn version of the applicable instruction.

We address each argument in turn.

13|A. Standard of Review

14] 5} Because Defendant failed to object to any of the jury instructions, we review
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4.12, 131 N.M. 258, 34 P.3d 1134 (“The standard of review we apply to jury

instructions depends on whether the issue has been preserved. If the error has been

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preserved we review the instructions
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fundamental error.” (citation omitted)). In instances of alleged instructional error,

“we seek to determine whether a reasonable juror would have been confused or

misdirected by. the jury. instruction.” /d. 412 (internal quotation marks and citation

omitted). “Juror confusion or misdirection may stem from instructions which,

through omission or misstatement. fai

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to provide the juror with an accurate rendition

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of the relevant law.” State v. Anderson, 2016-NMCA-007, § 9, 364 P.3d 306

(internal quotation marks and citation omitted). If we determine instructional error

occurred, we “review the entire record, placing the jury instructions in the context

of the individual facts and circumstances of the case, to determine whether the [the

djefendant’s conviction was the result of a plain miscarriage of justice.” State v.

Barber, 2004-NMSC-019, §_ 19, 135 N.M. 621, 92 P.3d 633 (internal quotation

marks and citation omitted). “The rule of fundamental error applies only if there has

been a miscarriage of justice, if the questions of guilt is so doubtful that it would

shock the conscience to permit the conviction to stand, or if substantial justice has

not been done.” State v. Orosco, 1992-NMSC-006, § 12, 113 N.M. 780, 833 P.2d

1146.

B. Jury Instruction on Burglary

{6 Defendant argues that the jury’s instruction regarding burglary was

insufficient in three ways: (1) tt failed to define “dwelling house”; (2) it failed to

define the underlying felony of aggravated assault with a deadly weapon on a

household member; and (3) it failed to instruct that false imprisonment could

constitute the underlying felony instead of kidnapping. We disagree.

i First, Defendant’s contention that the district court erred by not including a

lefinition of “dwelling house” is unpersuasive.Generally, the

definitional instruction is not a failure to instruct on an essential element.” State v.

Mascarefias, 2000-NMSC-O017, 7 19, 129 N.M. 230, 4 P.3d 1221 (internal quotation

marks and citation omitted). However, where a “critical determination” is involved

the failure to include a definitional instruction is “akin to a missing elements

instruction” constituting fundamental error. /d. 4] 20. In addition, “failure to give a

definitional instruction when the term being defined has a legal meaning different

from the commonly understood lay interpretation of the term may result in jury

confusion that could place the verdict in doubt.” State v. Luna, 2018-NMCA-025,

422, P.3d___ (alteration, internal quotation marks, and citation omitted), cert.

denied, 2018-NMCERT- (No. S-1-SC-36896, Mar. 16, 2018). Because the

definition of “dwelling house” was not a critical determination in this case and does

not have legal meaning different from the lay understanding of the term, we conclude

the district court’s failure to provide a definitional instruction was not fundamental

CITOr,

(33 Second, Defendant’s contention that the burglary instruction may have

confused the jury by erroneously describing the required underlying felony as

aggravated assault” instead of “aggravated assault with a deadly weapon on a

household member” is unavailing. Given that the jury was separately instructed on

the crime of aggravated assault, we do not agree that omission of the terminologies

the jury such as to lead to a conviction that would shock the conscience if affirmed.

9} Third, Defendant contends that because the jury instruction for kidnapping

contained an instruction for a lesser included offense of false imprisonment, the jury

should have been similarly instructed on false imprisonment as the potential

underlying felony to burglary. Specifically, Defendant argues “[b|y failing to include

false imprisonment in the burglary instruction, the [district] court misled the jury

into thinking tt was required to convict for the greater offense of kidnapping in order

to also convict for burglary.” We disagree. Because the jury received separate

instructions for kidnapping and the lesser included offense of false imprisonment,

omitting false imprisonment as a potential underlying felony tn the burglary

instruction did not bear the capacity to confuse or mislead the jury such that the

ensuing conviction shocks the conscience. We hold that the jury was properly

instructed as to the charge of burglary. See Benally, 2001-NMSC-033, ¢ 12; Orosco,

1992-NMSC-0006, 4 12.

C. ‘Jury Instruction on Aggravated Assault

{10} Defendant argues that the jury was insufficiently instructed on Defendant’s

single count of ageravated assault. Specifically, Defendant contends that proper

instruction on that count required a definition of both “great bodily harm” and

“deadly weapon.” We disagree. As stated, absent the involvement of a “critical

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interpretation, the failure to give a definitional jury instruction is not a failure to

instruct on an essential element. See Mascarefias, 2000-NMSC-017, 4] 19-20; Luna,

2018-NMCA-025, € 22. Significantly, the jury was instructed that in order to find

Defendant guilty of aggravated assault, it was required to find beyond a reasonable

doubt that “[D]efendant assaulted or threatened Lindsey[] with a knite” and that

“(Defendant] used a knife [which is] a deadly weapon only if vou find that a knife,

when used as a weapon, could cause death or great bodily harm[.]” Because under a

fundamental error analysis we seek to determine whether a reasonable juror “would

have been confused or misdirected by the jury instruction[,]” we conclude that no

reasonable juror could be confused given the explanatory language of the aggravated

assault instruction, the jury’s consideration of testimony regarding Defendant’s use

of the pocket knife contemporaneous to attacking Lindsey in the bathroom, and the

jury’s ability to infer that the knife, when used as a weapon, could have caused death

or great bodily harm. Benally, 2001-NMSC-033, 4 12; State v. Gwynne, 2018-

NMCA-033, ¢ 49, 417 P.3d 1157. Accordingly, we hold there was no fundamental

error in the district court’s instruction on aggravated assault.

D. = Jury Instruction on Child Abuse

(my-“ Defendant argues that the district court’s instruction to the jury on the count

of child abuse by endangerment constituted fundamental error because the given

instruction was not the current version of the Uniform Jury Instruction (UJI) at the

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April 3, 2015, approximately four months before Defendant’s trial. Defendant

contends that because the district court did not give an instruction based on UJI 14-

612, the j

was to leave J.M. in the parking lot, rather than requiring the jury to decide whether

Defendant acted with reckless disregard for the health or safety of J.M. when he left

J M_in the parking lot. We agree

4123} The first step in our fundamental error inquiry is to ask “whether a reasonable

juror would have been confused or misdirected by the jury instruction[s, |” Benally,

2001-NMSC-033, 412, focusing on whether those instructions, “through omission

or misstatement, fail to provide the juror with an accurate rendition of the relevant

law[,]” Anderson, 2016-NMCA-007, § 9 (internal quotation marks and citation

omitted). We compare the uniform instruction in effect at the time of Defendant’s

trial, UJI 14-612, with the instruction the district court gave. UJI 14-612 requires the

State to prove, among other things, that the accused showed a “reckless disregard”

for the child’s “safety or health,” and the instruction explains that in order for the

jury to find “reckless disregard,” it must find that the accused’s “conduct was more

than merely negligent or careless.

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Defendant’s case received an instruction based on a withdrawn and outdated

instruction, UJI 14-604 NMRA (2000) (withdrawn April 3, 2015). The relevant

portions of the given instruction required the jury to determine (1) whether

“TDefendant] caused [J.M.] to be placed in a situation which endangered the life or

health of [J.M.] when he was left in Hobbs” and (2) whether “[Defendant] acted

intentionally.” Importantly, the district court instructed the jury that “a] person acts

intentionally when he purposely does an act which the law declares to be a crime.”

The given instructions required the State to prove significantly less than it would

have been required to prove under UJI 14-612. Had the district court given an

instruction based on UJI 14-612, the jury could have returned a guilty verdict only

if it found that Defendant acted with reckless disregard for the safety or health of

J.M. by leaving him in the parking lot. The given instructions allowed a guilty verdict

based on a finding that Defendant intended to leave J.M. in the parking lot without

any further finding regarding Defendant’s mens rea. We conclude that the

instruction’s misstatement of the law regarding the requisite mens rea would have

confused or misled a reasonable juror.

413} We must now determine whether this error was fundamental. While the

district court’s use of an outdated jury instruction may not, on its own, rise to the

level of fundamental error, the “failure to instruct the jury on an essential

undamental error.” Barber, 2004-NMSC-019, 420. The

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given instruction omitted an essential element of the offense, and we have no basis

to conclude that a finding of reckless disregard for J.M.’s safety is implicit in the

jury’s verdict. See id. § 29 (“Error is not fundamental when the jury could not have

reached its verdict without also finding the element omitted from the instructions.”).

The State argues that the given jury instructions “worked to Defendant’s advantage”

because they required the State to prove that Defendant acted “intentionally,” which

the State asserts is a “higher standard” than reckless disregard. We disagree based

on the incorrect definition of “intentionally” included in the jury’s instructions. The

instruction defining “intentionally” in Defendant’s case was based on UJI 14-141,

which only required the State to prove that Defendant intended to leave J.M. in the

parking lot. The instruction did not require the State to prove anything more about

Defendant’s intent. Under the given instructions, by finding that Defendant acted

“intentionally” when he left J.M. in the parking lot, the jury did not necessarily find

that he did so with reckless disregard for J.M.’s health or safety. Accordingly, the

jury could have reached its guilty verdict without finding that Defendant had

requisite mens rea.

{144 Because omission of the intent element “implicate[s] a fundamental

unfairness within the system that would undermine judicial integrity if left

unchecked[,|’we conclude that fundamental error occurred. /d. § 18 (internal

for intentional child abuse by endangerment.

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II. The State Presented Sufficient Evidence to Support Defendant’s
Convictions for Child Abuse, Kidnapping, False Imprisonment, and

415} Defendant contends that his convictions for kidnapping, false imprisonment,

burglary, and child abuse are not supported by sufficient evidence. We address each

argument in turn.

A. Standard of Review

{16} We review a challenge to the sufficiency of the evidence to determine

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support a verdict of guilty beyond a reasonable doubt with respect to every element

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essential to a conviction.” State v. Montoya, 2015-NMSC-010, 345 P.3d 1056, 4 52

evidence in the light most favorable to the guilty verdict, indulging all reasonable

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inferences and resolving all conflicts in the evidence in favor of the verdict.” State

v. Cunningham, 2000-NMSC-009, 926, 128 N.M. 711,998 P.2d 176. “Ot

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courts will not invade the jury’s province as fact-finder by second-guessing the

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jury’s decision concerning the credibility of witnesses, reweighing the evidence, or

substituting its judgment for that_of the jury.” Gwynne, 2018-NMCA-033, 4 49

(internal quotation marks and citation omitted), cert. denied, _| -NMCERT-___
(No. S-1-SC-36926, Apr. 10, 2018). “Jury instructions become the law of the case
against which the sufficiency of the evidence is to be measured.” State v. Smith,
1986-NMCA-089, § 7, 104 N.M. 729, 726 P.2d 883.

B. Burglary

{17} Defendant argues the evidence presented at trial was insufficient to support
the jury’s finding of the intent required to support a conviction of burglary.
Specifically, Defendant contends that the State failed to establish that Defendant
entered Lindsey’s home with the requisite intent to commit either aggravated assault
or kidnapping once inside. We disagree. Defendant was charged with one count of
residential burglary contrary to Section 30-16-3(A). At trial, the jury was instructed
that in order to find Defendant guilty, the State must prove “[D]efendant entered a
dwelling without authorization” and “[D]efendant entered the dwelling with the
intent to commit an aggravated assault or kidnapping when inside[.]” Because
specific intent cannot often be proven by direct, voluntary testimony “proof of a
specific intent must ordinarily be proved circumstantially by inferences from the
facts and circumstances of each case.” Holguin v. Sally Beauty Supply Inc., 2011-
NMCA-100, f 22, 150 N.M. 636, 264 P.3d 732.

{18} Here, the jury heard testimony regarding a number of details that could

warrant a reasonable juror to conclude that the State satisfied their burden of proving

specific intent: Defendant arrived at Lindsey and J.M.’s home immediately after
learning that Lindsey had procured a restraining order against him; upon arrival,
Defendant unsuccessfully attempted to kick in the front door, and ultimately broke
and entered through J.M.’s bedroom window; and, once inside, Defendant found
Lindsey in the bathroom, beat her, and brandished the knife he was carrying. Given
that a reasonable juror could infer from such evidence a violent or intimidating intent
by Defendant, and that we will not intrude upon the jury’s role as fact-finder nor
second-guess a jury’s determination regarding the weight of evidence and the
credibility of witnesses, we hold that there was sufficient evidence of the requisite
intent to uphold Defendant’s conviction of burglary. Gwynne, 2018-NMCA-033,
q 49.

C. Kidnapping and False Imprisonment

419} Defendant argues the evidence presented at trial was insufficient to support
the jury’s finding of specific intent required for kidnapping or the lesser included
charge of false imprisonment. Defendant was charged with two counts of first degree
kidnapping, one count as to Lindsey and one count as to J.M., pursuant to Section
30-4-1(A). At trial, the jury was instructed that in order to find the Defendant guilty
of kidnapping, the State had to prove that Defendant (1) “took, confined, or
transported” Lindsey and J.M. “by force, intimidation, or deception”; and (2)

“intended to hold” Lindsey and J.M. against their will to either “inflict physical

injury on [them or] for the purpose of making [them] do something or for the purpose

if it had “reasonable doubt as to whether the defendant committed the crime of

kidnapping, [it] must proceed to determine whether [D]efendant committed the

[lesser] included offense of false imprisonment.” To find Defendant guilty of false

imprisonment rather than kidnapping, the jury had to consider whether Defendant

“confined [J.M. or Lindsey] against [their will]” and whether “Defendant knew that

he had no authority to confine [either J.M. or Lindsey]. Ultimately, based on the

evidence presented, the jury found Defendant guilty of one count of kidnapping

Lindsey, and one count of falsely imprisoning J.M.

0} To reiterate, the evidence presented to the jury at trial established that

Defendant’s arrival at the apartment in which Lindsey and J.M. lived was prompted

by Defendant learning that Lindsey obtained a restraining order against him.

Nonetheless, he broke into the apartment through J.M.’s window, attacked Lindsey

in the bathroom, took the keys to her car, and “told [Lindsey and J.M.] to go out of

the bedroom window.” Lindsey testified that she complied with Defendant’s

command to leave the house through the broken window because J.M. was already

outside with Defendant. Lindsey also testified that when she got outside, J.M. was

already in the backseat of her car, and Defendant was in the driver’s seat. Reactively,

she got into the passenger seat of the car. Lindsey had not given Defendant

permission to drive her car at that time, although he had previously driven the

vehicle. Defendant then drove Lindsey

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asked the friend to follow them to a gas station and pay for and pump gas into the

vehicle. Lindsey testified that Defendant would not pump the gas himself because

“he didn’t want to be seen” and that she was too afraid to speak to Defendant’s friend

while he was with them. While at the gas station and during the drive from Roswell

to Hobbs, Defendant had the pocket knife open on his lap. Out ofa concern for J.M.’s

safety, Lindsey suggested that Defendant drop J.M. off at her uncle’s house, but

Defendant refused. Instead, Defendant stopped in a restaurant parking lot and

dropped J.M. off, alone. Lindsey testified that although she wanted to, she did not

stay with J.M. because “[Defendant] didn’t want to stay. He just left him.” After

leaving J.M., Defendant drove to multiple destinations in Hobbs, including a private

residence where Lindsey attempted to alert someone as to what was happening, but

never actually spoke to anyone because Defendant “told [her] not to” and she was

afraid of Defendant. Eventually Defendant drove them to a park where he fell asleep

in the car and Lindsey worked up the courage to escape.

13 First, based on the substantial evidence presented, we conclude that the State

presented evidence from which a reasonable jury could have found beyond a

reasonable doubt that Defendant had the necessary intent to sustain his conviction

for kidnapping Lindsey. “Intent is subjective and is almost always inferred from

other facts in the case, as it is rarely established by direct evidence.” State v. Duran,

NAV

citation omitted). Considering the testimony from Lindsey regarding the restraining

order against Defendant, her fear of Defendant before and while they were in the

vehicle, and Defendant’s wielding of a pocket knife before and during the car ride

a jury could have reasonably found that Defendant’s intent was to hold Lindsey

against her will in order to keep her from being able to enforce the restraining order.

223 Second, regarding Defendant’s conviction for the false imprisonment of J.M.,

we conclude that the State presented sufficient evidence from which a reasonable

jury could have found that Defendant confined J.M. against his will and that

Defendant knew he had no authority to do so based on testimony from both J.M. and

Lindsey. Specifically, J.M. testified that (1) after Defendant and Lindsey got in a

fight, Defendant “stole” Lindsey and J.M.; (2) J.M. went out the window and got

into Lindsey’s car with Defendant even though he did not want to; (3) J.M. obeyed

because Defendant forced him; and (4) J.M. was scared when Defendant left him

alone in the restaurant parking lot because J.M. “didn’t know what was going to

happen to [his] mom.” Considering this evidence, a jury could have reasonably

found Defendant guilty of false imprisonment of J.M. based on Defendant’s

confinement of J.M. in the vehicle.

23} Accordingly, disregarding evidence and inferences that support a different
result from that of the jury’s verdict at trial, we hold that sufficient evidence supports
Defendant’s convictions for both kidnapping and false imprisonment. See Gwynne,
2018-NMCA-033, § 49.

D. Child Abuse

24} Defendant broadly contends that his conviction of child abuse is unsupported
by the evidence presented at trial and that “[t}he facts of this case simply do not
support a child abuse conviction under the standard set forth in UJI 14-612.” Our
analysis is limited to a review of the sufficiency of the evidence against the
instruction given at trial, despite finding fundamental error regarding the jury’s
instruction on child abuse. See State v. Dowling, 2011-NMSC-016, ¢ 18, 150 N.M.
110, 257 P.3d 930 (“We review [the d]efendant’s claim under the erroneous
instruction provided to the jury at trial.’’).

{25} Defendant was charged with intentional child abuse by endangerment (no
death or great bodily harm), contrary to Section 30-6-1(D)(1). Per the instructions
given at the trial, in order to convict Defendant, the jury had to find that Defendant
caused J.M. to be placed in a situation that endangered the life or health of J.M. and|
that Defendant acted intentionally. The record establishes that Defendant drove
Lindsey and J.M. to Hobbs, left J.M. in the parking lot, and drove away before

Lindsey called her uncle to request that he pick up J.M. Defendant did not know J.M.

would, in fact, ever be picked up when Defendant left J.M. in the parking lot.

Additionally, J.M. testified that he felt scared after Defendant left him the parkin

lot, and Lindsey testified that J.M. was upset and crying. A reasonable juror could

infer from such evidence that Defendant placed J.M. in a situation that endangered

J.M.’s life or health and that he did so intentionally. Because we must determine

whether the jury’s decision is supported by substantial evidence, and not whether

the jury could have reached a different conclusion, we conclude that in viewing the

evidence in the light most favorable to the verdict, the evidence presented was

sufficient such that a rational jury could have found satisfied the essential elements

required for conviction. See State v. Anderson, 1988-NMCA-033, § 8, 107 N.M. 165,

754 P.2d 542 (“The question is whether the trial court’s result is supported by

substantial evidence, not whether the trial court could have reached a different

conclusion.”’).

726} Because we conclude there was sufficient evidence presented to support the

conviction as instructed at trial, even erroneously, retrial on Defendant’s single count

of intentional child abuse by endangerment is not barred. See State v. Dowling, 2011-

NMSC-016, 4 18, 150 N.M. 110, 257 P.3d 930 (“If we find that sufficient evidence

was presented at trial to support a conviction, then retrial is not barred.”).

Ill, Defendant Has Not Presented a Prima Facie Case of Ineffective
Assistance of Counsel

27; Defendant contends that his counsel was ineffective based on counsel’s failure
to file a motion to suppress evidence found during a warrantless vehicle search and
on an allegation that counsel failed to investigate the case. We disagree.

28} “A prima facie case of ineffective assistance of counsel requires that a
defendant establish that: (1) counsel’s performance fell below that of a reasonably
competent attorney; (2) no plausible, rational strategy or tactic explains counsel’s
conduct; and (3) counsel’s apparent failings were prejudicial to the defense.” State
v. Cordova, 2014-NMCA-081, § 9, 331 P.3d 980 (internal quotation marks and
citation omitted). “If facts necessary to a full determination are not part of the record,
an ineffective assistance claim is more properly brought through a habeas corpus
petition.” State v. Crocco, 2014-NMSC-016, { 14, 327 P.3d 1068. |

729} Here, Defendant’s claims, to'the extent reviewable based on the record on
direct appeal, do not establish a prima facie case of ineffective assistance of counsel.
Regarding the argument that defense counsel was ineffective by failing to file a
motion to suppress evidence found during a search of Lindsey’s vehicle, we agree
with the State that Defendant lacks standing to challenge the warrantless vehicle
search because undisputed evidence established that the vehicle belonged to Lindsey

and the Defendant took the vehicle without her authorization. See State v. Van Dang,

10
11
12
13
14
15
16
17

2005-NMSC-033, 47, 11, 138 N.M. 408, 120 P.3d 830 (holding that an unauthorized
driver of a rented vehicle does not have standing to challenge the constitutionality
of a search of the vehicle); State v. Esguerra, 1991-NMCA-147, J 9, 113 N.M. 310,
825 P.2d 243 (“It is generally recognized . . . that one who owns, controls, or lawfully
possesses property thereby has a legitimate expectation of privacy in that property
protected by the fourth amendment.”). Based on Defendant’s inability to
demonstrate the sufficient expectation of privacy, we hold that counsel’s
performance in not moving to suppress did not fall below that of a reasonably
competent attorney. See Cordova, 2014-NMCA-081, 4] 9.

430} Defendant’s second claim of ineffective assistance of counsel, based on the
allegation that his lawyer failed to investigate, concerns matters not fully reviewable
in the appellate record. Defendant contends that counsel’s failure to conduct pretrial
witness interviews and to call certain additional defense witnesses constitutes
ineffective assistance of counsel. We cannot determine, based on the current record,
whether Defendant is correct. Accordingly, we hold that Defendant has not
presented a prima facie claim of ineffective assistance of counsel and reiterate that

such a claim is more effectively pursued through a habeas corpus proceeding. See

Crocco, 2014-NMSC-016, 4 14.

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[oe]

13
14

CONCLUSION

1; For the aforementioned reasons, we affirm Defendant’s convictions for
kidnapping, false imprisonment, residential burglary, aggravated assault, and
unlawful taking of a motor vehicle. We reverse Defendant’s conviction for
intentional child abuse by endangerment and remand for further proceedings

consistent with this opinion.

32} ITISSO ORDERED. | : | ;

J. MILES HANISEE, Chief Judge

WE CONCUR:

KJISTINA BOGARGUS,

GAs, Judge
EL

ZACHARY A. IVES, Judge

October 28, 2019- State of New Mexico v. Jessie Chavez, No. A-1-CA-35917

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