July 9, 2020- State of New Mexico v. Valerie R. Palombi, No. A-1-CA-38392

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Odyssey.
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-38392
5 VALERIE R. PALOMBI,
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 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 MJ Edge, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VARGAS, Judge.
18 {1} Defendant appeals her convictions for armed robbery, conspiracy to commit
19 armed robbery, and resisting arrest. We issued a calendar notice proposing to affirm.
Court of Appeals of New Mexico
Filed 7/9/2020 1:23 PM

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1 Defendant has responded with a memorandum in opposition. Not persuaded, we affirm.
2 Ineffective Assistance of Counsel
3 {2} Defendant’s amended docketing statement claimed that the district court erred
4 in excluding testimony of an alibi witness, Kimberly Delarosa, and that this should have
5 been corrected by granting Defendant’s motion for a new trial. [DS 10] As Defendant
6 conceded in her amended docketing statement [DS 10], Defendant stipulated to the
7 exclusion of this testimony; therefore, even if we assume the ruling was in error, she
8 waived her challenge to the court’s ruling. Cf. State v. Handa, 1995-NMCA-042, ¶ 35,
9 120 N.M. 38, 897 P.2d 225 (“To allow a defendant to invite error and to subsequently
10 complain about that very error would subvert the orderly and equitable administration
11 of justice.” (internal quotation marks and citation omitted)).
12 {3} Our calendar notice therefore interpreted Defendant’s issues to raise an
13 ineffective assistance of counsel claim based on the stipulation that the alibi testimony
14 of Delarosa would be stricken from the record. “To evaluate a claim of ineffective
15 assistance of counsel, we apply the two-prong test in Strickland v. Washington, 466
16 U.S. 668, 687. . . (1984)[.]” State v. Dylan J., 2009-NMCA-027, ¶ 36, 145 N.M.719,
17 204 P.3d 44. “That test places the burden on the defendant to show that his counsel’s
18 performance was deficient and that the deficient performance prejudiced his defense.”
19 Id.

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1 {4} Here, Delarosa, who is Defendant’s biological mother, was originally allowed
2 to testify as a character witness, but not as an alibi witness. [MIO 6] However, on the
3 stand Delarosa did not limit herself to character testimony; she also claimed that
4 Defendant was with her at the time of the robbery. [MIO 6] We conclude that defense
5 counsel’s decision to initially limit her to character testimony, and then to strike her
6 alibi testimony, did not amount to a prima facie showing of ineffective assistance,
7 because counsel could have believed this additional testimony was detrimental to the
8 believability of the character testimony. See State v. Roybal, 2002-NMSC-027, ¶ 21,
9 132 N.M. 657, 54 P.3d 61 (“[I]f on appeal we can conceive of a reasonable trial tactic
10 which would explain the counsel’s performance, we will not find ineffective
11 assistance.”); State v. Jacobs, 2000-NMSC-026, ¶ 49, 129 N.M. 448, 10 P.3d 127
12 (“An attorney’s decision to object [or not to object] to testimony or other evidence
13 is a matter of trial tactics.”). To the extent Defendant believes the issue has merit, she
14 may pursue the matter in a habeas proceeding. See State v. Grogan, 2007-NMSC-039,
15 ¶ 9, 142 N.M. 107, 163 P.3d 494 (expressing a preference for habeas corpus
16 proceedings to address ineffective assistance of counsel claims). It follows that this
17 does not also establish a prima facie showing of ineffective assistance of counsel by
18 failing to request a new trial based on the exclusion of the alibi testimony.

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1 Sufficiency of the Evidence
2 {5} Defendant continues to challenges the sufficiency of the evidence to support her
3 convictions for armed robbery, conspiracy to commit armed robbery, and resisting
4 arrest. [MIO 8] When assessing the sufficiency of the evidence, “we view the evidence
5 in the light most favorable to the guilty verdict, indulging all reasonable inferences and
6 resolving all conflicts in the evidence in favor of the verdict.” State v. Samora,
7 2016-NMSC-031, ¶ 34, 387 P.3d 230 (internal quotation marks and citation omitted).
8 We disregard all evidence and inferences that support a different result. State v. Rojo,
9 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829. “We then determine whether
10 substantial evidence of either a direct or circumstantial nature exists to support a
11 verdict of guilt beyond a reasonable doubt with respect to every element essential to
12 a conviction.” State v. Garcia, 2016-NMSC-034, ¶ 15, 384 P.3d 1076 (internal
13 quotation marks and citation omitted). “Substantial evidence is relevant evidence that
14 a reasonable mind might accept as adequate to support a conclusion.” State v. Largo,
15 2012-NMSC-015, ¶ 30, 278 P.3d 532 (internal quotation marks and citation omitted).
16 {6} In order to convict Defendant of armed robbery, the evidence had to show that
17 Defendant took cash from Victims, intending to permanently deprive them of it, and
18 did so while armed with a firearm and threatening force or violence. [RP 682] The jury
19 was also instructed on accomplice liability. [RP 683] In order to convict Defendant of
20 conspiracy, the evidence had to show that Defendant and another agreed to commit

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1 the armed robbery. [RP 686] In order to convict on the resisting charge, the evidence
2 had to show that a police officer was acting in the lawful discharge of his duties, that
3 Defendant knew he was a police officer, and that Defendant resisted the officer. [RP
4 687]
5 {7} The State presented evidence that Defendant and other individual robbed a
6 Subway shop while armed with a firearm and threatening force or violence. [MIO 2-6]
7 Defendant’s accomplice testified and described how the two planned and carried out
8 the crime. [MIO 6] The State also presented a videotape of the incident, as well as
9 testimony identifying Defendant as one of the two individuals involved in the robbery.
10 [MIO 5-6] Finally, the State presented a lapel video of Defendant’s arrest, where she
11 was shown slipping out of her handcuffs, and also introduced evidence of a second
12 incident of resisting that occurred at the police station. [DS 9] Given these facts, we
13 conclude that the State presented sufficient evidence to support the convictions.
14 {8} Based on the foregoing, we affirm the district court’s judgment and sentence.
15 {9} IT IS SO ORDERED.
16 __________________________________
17 JULIE J. VARGAS, Judge
18 WE CONCUR:
19 _________________________________
20 MEGAN P. DUFFY, Judge
21 _________________________________
22 ZACHARY A. IVES, Judge