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


 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                                    NO. 32,278

 5 DOLORES PERALEZ,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
 8 Stephen K. Quinn, 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 her conviction on the basis that the district court erred in

 3 denying her motion for a continuance. We proposed to affirm. Defendant has timely

 4 responded to our proposal. In addition, she has moved to amend the docketing

 5 statement to raise an ineffective assistance of counsel claim. We have considered her

 6 arguments and, finding them unpersuasive, we affirm the conviction. We deny the

 7 motion to amend the docketing statement. However, nothing precludes Defendant

 8 from pursuing her claim in a habeas corpus proceeding.

 9        In our notice, we set forth the factors that the courts should consider when

10 evaluating a motion for continuance. State v. Torres, 1999-NMSC-010, ¶ 10, 127

11 N.M. 20, 976 P.2d 20. We then applied the factors to this case and proposed to

12 conclude that the district court did not abuse its discretion in refusing to grant a

13 continuance. In her memorandum in opposition, Defendant addresses only the

14 prejudice she suffered from the denial of her continuance. She contends that she was

15 prejudiced because the denial of the continuance precluded her from presenting her

16 defense of diminished capacity. We disagree.

17        First, Defendant’s treating physician was not necessary for Defendant to raise

18 her claim of diminished capacity to form the intent to sell alcohol to a minor. She

19 could have testified on her own behalf, explaining her health issues. Likewise, there


                                             2
 1 may have been other witnesses who could have so testified. Furthermore, there was

 2 no showing at the motion for continuance that Defendant’s treating physician would

 3 have testified that Defendant was “physically and mentally debilitated [and] that she

 4 was not able to make sound decisions.” [MIO 3] We conclude that without a better

 5 showing of what the physician would have testified to, Defendant’s claim is

 6 speculative. See State v. Hernandez, 115 N.M. 6, 15, 846 P.2d 312, 321 (1993)

 7 (finding no error in denying a continuance to explore certain avenues of defense where

 8 there was no showing that any defense theories had a reasonable possibility of

 9 success).

10        Second, it appears that defense counsel was unable to show how Defendant’s

11 medical condition would negate her criminal intent. Defendant points to the criminal

12 jury instruction regarding the inability to form the intent to do a further act or achieve

13 a further consequence. UJI 14-5111 NMRA. This instruction allows a defendant to

14 raise intoxication or mental disease or disorder to negate her ability to form a specific

15 intent. Defendant appears to be arguing that her physician might have testified that she

16 was suffering from some kind of mental condition that could have affected her ability

17 to form the intent to sell alcohol to a minor. Yet, none of this was articulated below

18 [RP 102] or developed on appeal. [MIO 6] There is nothing in the record indicating

19 what Defendant’s physician would have said about her mental state or even if her


                                               3
 1 physician had any testimony relevant to the issues. Thus, we fail to see how

 2 Defendant was precluded from developing her defense of lack of capacity.

 3        Defendant cites State v. Harper, 2011-NMSC-044, 150 N.M. 745, 266 P.3d 25,

 4 in support of her claim that the district court should have allowed her more time to

 5 seek funds for the doctor’s testimony. Harper is not on point as it concerned the

 6 district court’s exclusion of a doctor’s testimony for violation of a discovery order.

 7 The Supreme Court found an abuse of discretion in the exclusion, urging the district

 8 court to work with the parties to alleviate the doctor’s concern about being paid. Here,

 9 there was no discovery order relating to the doctor’s testimony. Rather, the doctor had

10 not even been identified as a witness nor subpoenaed at the time that Defendant

11 requested her continuance.

12        We conclude that Defendant failed to show prejudice from the denial of her

13 motion for a continuance. For the reasons stated herein and in the notice of proposed

14 disposition, we affirm.

15        IT IS SO ORDERED.

16                                         __________________________________
17                                         CELIA FOY CASTILLO, Chief Judge

18 WE CONCUR:



19 __________________________________

                                              4
1 MICHAEL E. VIGIL, Judge



2 __________________________________
3 LINDA M. VANZI, Judge




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