     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
     opinions.   Please also note that this electronic memorandum opinion may contain
     computer-generated errors or other deviations from the official paper version filed by the Court of
     Appeals and does not include the filing date.

 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                    NO. 32,286

 5 VALENTINO JARAMILLO,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF UNION COUNTY
 8 John M. Paternoster, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Jacqueline L. Cooper, Chief Public Defender
13 Carlos Ruiz de la Torre, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant



16                                 MEMORANDUM OPINION
 1 CASTILLO, Chief Judge.

 2        Defendant appeals from the district court’s judgment and sentence convicting

 3 him for possession of heroin. Unpersuaded that Defendant demonstrated error in his

 4 docketing statement, we issued a notice of proposed summary disposition, proposing

 5 to affirm. In response to our notice, Defendant has filed a memorandum in opposition

 6 and a motion to amend the docketing statement to add an issue. We have considered

 7 Defendant’s response and remain unpersuaded that the district court erred, and we are

 8 unpersuaded to grant the motion to amend. We therefore affirm and deny the motion

 9 to amend.

10        On appeal, Defendant has raised the following four issues: (1) the evidence was

11 insufficient to support his conviction for possession of heroin, (2) the lab results were

12 wrongfully admitted into evidence because the State laid an improper foundation for

13 chain of custody, (3) Defendant was denied a fair trial because one of the jurors was

14 an employee of the correctional facility and so was one of the testifying witnesses, and

15 (4) Defendant was denied a speedy trial. [DS 6-7; MIO 5-12] Defendant pursues all

16 four issues under the demands of State v. Franklin, 78 N.M. 127, 129, 428 P.2d 982,

17 984 (1967), and State v. Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App.

18 1985). [MIO 9-12]

19 Sufficiency of the Evidence


                                               2
 1        In response to our proposed analysis of Defendant’s sufficiency challenge to his

 2 conviction for possession of heroin, Defendant argues that the evidence did not

 3 establish that he had knowledge of and control over the drugs. [MIO 6-9] Defendant

 4 argues that he was a mere visitor to the prison cell and that his presence there was

 5 insufficient. [Id.] Defendant’s argument overlooks crucial circumstantial facts that

 6 we recounted in our notice that supported his conviction. [CN 7] Defendant does not

 7 dispute that those facts were presented to the jury. Based on that evidence, the jury

 8 was free to disregard Defendant’s version of events. See State v. Rojo, 1999-NMSC-

 9 001 ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary evidence supporting acquittal does

10 not provide a basis for reversal because the jury is free to reject [the d]efendant’s

11 version of the facts.”); State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d

12 482 (recognizing that it is for the factfinder to resolve any conflicts in the testimony

13 of the witnesses and to determine where the weight and credibility lay). Because

14 Defendant has not disputed that the State presented the evidence upon which our

15 notice relied, we hold that sufficient evidence was presented to support Defendant’s

16 conviction for the reasons stated in the notice.

17 Chain of Custody

18        In response to our notice, Defendant maintains that the district court erred by

19 admitting the lab results because the State failed to establish a proper chain of custody.


                                               3
 1 [MIO 9-10] Defendant continues to complain that the officer seized two small pieces

 2 of heroin and the lab technician only received one piece. [Id.] Defendant also

 3 complains that the State did not present as a witnesses one of the officers in the chain

 4 of custody. [MIO 10] As we stated in our notice, where there are discrepancies—as

 5 we have in the present case—between the evidence seized and the evidence described

 6 by the lab technician, we have held that the discrepancy relates to the strength of the

 7 evidence, not the admissibility. See State v. Rubio, 2002-NMCA-007, ¶ 17, 131 N.M.

 8 479, 39 P.3d 144 (holding that where the forensic scientist could not account for an

 9 approximate one gram discrepancy between the weight of the sample when seized and

10 when weighed by the scientist, the discrepancy related to the strength of the evidence).

11 We also emphasized that “[t]he [s]tate is not required to establish the chain of custody

12 in sufficient detail to exclude all possibility of tampering.” Id. ¶ 16. Without any new

13 argument or information, we hold that Defendant has not established error in the

14 admission of the lab results for the reasons stated in the notice.

15 Fair Trial

16        Defendant continues to argue that he was denied a fair trial when the district

17 court permitted an employee of the correctional facility to sit on the jury where

18 Defendant knew her, and Mr. Trujillo, another employee of the correctional facility,

19 was a main witness for the State. Our notice proposed to hold that Defendant did not


                                              4
 1 timely raise this objection below and that he invited any error he claims occurred

 2 because Defendant wanted the prison employee on the jury, believing that he had a

 3 good rapport with her and that she would be a good juror. [CN 8] In response to our

 4 notice, Defendant contends that the district court should have struck the prison

 5 employee from the jury sua sponte. Defendant does not raise any new facts or

 6 arguments to persuade us. For the reasons stated in the notice, we hold that Defendant

 7 has not demonstrated that he was denied a fair trial.

 8 Speedy Trial

 9        Defendant maintains that he was denied a speedy trial. [MIO 11-12] As we

10 observed in our notice, however, Defendant did not raise this matter until after trial

11 and, therefore, did not provide the district court with such an opportunity to address

12 his speedy trial claim. We also stated that as a result, Defendant did not sufficiently

13 or timely protect his right to a speedy trial and without specifically invoking a ruling

14 on the Barker factors, there is nothing for us to review on appeal. See Rojo,

15 1999-NMSC-001, ¶¶ 50-51. We also note that in his memorandum in opposition,

16 Defendant concedes that the delay in this case was nearly ten months, which is not

17 presumptively prejudicial. [MIO 12] See State v. Garza, 2009-NMSC-038, ¶¶ 15-22,

18 47, 146 N.M. 499, 212 P.3d 387. For these reasons and those stated in our notice, we

19 are not persuaded that Defendant’s right to a speedy trial was violated.


                                              5
 1 Motion to Amend

 2        Defendant seeks to amend his docketing statement to add the issue of whether

 3 he received ineffective assistance of counsel. [MIO 12-14] Defendant’s motion was

 4 filed under the demands of Franklin, 78 N.M. at 129, 428 P.2d at 984; and Boyer, 103

 5 N.M. at 658-60, 712 P.2d at 4-6. [MIO 13]

 6        In cases assigned to the summary calendar, this Court will grant a motion to

 7 amend the docketing statement to include additional issues if the motion (1) is timely,

 8 (2) states all facts material to a consideration of the new issues sought to be raised, (3)

 9 explains how the issues were properly preserved or why they may be raised for the

10 first time on appeal, (4) demonstrates just cause by explaining why the issues were not

11 originally raised in the docketing statement, and (5) complies in other respects with

12 the appellate rules. State v. Rael, 100 N.M. 193, 197, 668 P.2d 309, 313 (Ct. App.

13 1983). This Court will deny motions to amend that raise issues that are not viable,

14 even if they allege fundamental or jurisdictional error. State v. Moore, 109 N.M. 119,

15 129, 782 P.2d 91, 101 (Ct. App. 1989), superceded by rule on other grounds as

16 recognized in State v. Salgado, 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991).

17        There is a two-fold test for proving ineffective assistance of counsel; the

18 defendant must show (1) that counsel’s performance fell below that of a reasonably

19 competent attorney, and (2) that the defendant was prejudiced by the deficient


                                                6
 1 performance. State v. Hester, 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729.

 2 The burden of proof is on defendant to prove both prongs. Id.

 3        When an ineffective assistance claim is first raised on direct appeal, we
 4        evaluate the facts that are part of the record. If facts necessary to a full
 5        determination are not part of the record, an ineffective assistance claim
 6        is more properly brought through a habeas corpus petition, although an
 7        appellate court may remand a case for an evidentiary hearing if the
 8        defendant makes a prima facie case of ineffective assistance.

 9 State v. Roybal, 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61.

10        In the present case, Defendant lists several failures of his trial counsel that he

11 believes constituted ineffective assistance of counsel. [MIO 13] Defendant does not

12 demonstrate that all these actions were part of the record or that he was prejudiced by

13 any of them. See State v. Aker, 2005-NMCA-063, ¶ 34, 137 N.M. 561, 113 P.3d 384

14 (observing that prejudice is established where “there is a reasonable probability that,

15 but for counsel’s unprofessional errors, the result of the proceeding would have been

16 different” (internal quotation marks and citation omitted)). We are not persuaded that

17 Defendant’s motion to amend complies with our requirements for granting it.

18 Therefore, we deny the motion.

19        For the reasons stated above and stated in our notice, we affirm the district

20 court’s judgment and sentence.

21        IT IS SO ORDERED.



                                               7
1                               __________________________________
2                               CELIA FOY CASTILLO, Chief Judge

3 WE CONCUR:



4 __________________________________
5 RODERICK T. KENNEDY, Judge



6 __________________________________
7 J. MILES HANISEE, Judge




                                  8
