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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. 32,715

 5 PATRICK URIAH FOLEY,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
 8 Lisa B. Riley, District Judge


 9 Gary K. King, Attorney General
10 Albuquerque, NM

11 for Appellee

12 Robert E. Tangora, L.L.C.
13 Robert E. Tangora
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION
 1 WECHSLER, Judge.

 2   {1}   Defendant Patrick Foley appeals his conviction for residential burglary. In our

 3 notice of proposed summary disposition, we proposed to affirm. Defendant has filed

 4 a memorandum in opposition and a motion to amend the docketing statement, both of

 5 which this Court has duly considered. As we do not find Defendant’s arguments

 6 persuasive, we deny his motion to amend and we affirm his conviction.

 7 Denial of the Motion for a Directed Verdict

 8   {2}   Defendant contends that the district court erred in refusing to grant his motion

 9 for a directed verdict on the charge of residential burglary. [DS unnumbered page 2]

10 In our notice of proposed summary disposition, we proposed to hold that there was

11 sufficient evidence to support the underlying charge, such that the district court did

12 not err in denying the motion. See State v. Sena, 2008-NMSC-053, ¶ 10, 144 N.M.

13 821, 192 P.3d 1198 (stating the standard of review for a motion for a directed verdict).

14 In Defendant’s memorandum in opposition, he continues to argue, pursuant to State

15 v. Franklin, 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, and State v. Boyer, 1985-

16 NMCA-029, 103 N.M. 655, 712 P.2d 1, that the evidence was insufficient. [MIO 6-8]

17 As he presents no new facts or authority that would persuade this Court that reversal

18 is warranted on this basis, he has failed to demonstrate reversible error.

19 Discovery Violation


                                               2
 1   {3}   Defendant contends that the district court erred in admitting into evidence

 2 photographs that were not disclosed to him until after the trial had begun. [DS

 3 unnumbered page 2] In our notice of proposed summary disposition, we proposed to

 4 hold that the district court did not abuse its discretion in admitting the photographs

 5 because Defendant did not demonstrate that the late disclosure prejudiced him. See

 6 State v. Harper, 2011-NMSC-044, ¶ 16, 150 N.M. 745, 266 P.3d 25 (stating that “the

 7 mere showing of violation of a discovery order, without a showing of prejudice, is not

 8 grounds for sanctioning a party”).

 9   {4}   In his memorandum in opposition, Defendant now explains that in fact the

10 photographs were made available to him in the State’s general “open-file” disclosure,

11 but that he simply failed to take advantage of the disclosure to review the materials

12 that the State had in its possession. [MIO 3] He provides no authority to suggest that

13 this open-file disclosure does not constitute a proper disclosure of discovery. As he

14 has failed to establish that the State committed a discovery violation, the district court

15 did not err in refusing to sanction the State.

16   {5}   In addition, even if there had been a discovery violation, Defendant’s

17 memorandum in opposition fails to demonstrate that he established in the district court

18 that he was prejudiced by the violation. He asserts that he was prejudiced because if

19 he had known about the photographs, he would have been able to provide an


                                               3
 1 explanation for the broken window that they depicted. [MIO 6] However, Defendant

 2 was aware that the State intended to introduce evidence of a broken window, as this

 3 information was contained in the criminal complaint and in police reports. [RP 14; DS

 4 unnumbered page 2] In addition, he was apprehended in his uncle’s house in the

 5 course of the burglary, and he himself informed a police officer that he had broken the

 6 window. [RP 14] Because Defendant was aware of the fact of the broken window, he

 7 would have been able to provide an explanation, regardless of any failure to disclose

 8 the photographs. Therefore, he has failed to demonstrate prejudice. See id. ¶ 20

 9 (indicating that prejudice is not clearly shown when the “defendant has knowledge of

10 the contents of the unproduced evidence”).

11 Admission of a Videotape

12   {6}   In his docketing statement, Defendant argued that the district court erred in

13 admitting into evidence a copy of a videotaped interview of him without proof of

14 authenticity. [DS unnumbered page 3] We proposed to find no error, and Defendant

15 has failed to respond to this Court’s analysis of this issue in his memorandum in

16 opposition. Accordingly, he has abandoned the claim of error. See State v. Johnson,

17 1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306 (indicating that when a case is

18 decided on the summary calendar, an issue is deemed abandoned where a party fails

19 to respond to the proposed disposition of the issue).


                                              4
 1 Motion to Amend the Docketing Statement

 2   {7}   Defendant moves to amend the docketing statement to add a claim that his trial

 3 counsel was ineffective for failing to review the photographs that were provided by

 4 the State in its open-file discovery. [MIO 1, 8-11] However, he acknowledges that in

 5 order to establish a prima facie case of ineffective assistance of counsel on direct

 6 appeal, he is required to demonstrate that trial counsel’s failure prejudiced him. See

 7 State v. Arrendondo, 2012-NMSC-013, ¶ 38, 278 P.3d 517 (“For a successful

 8 ineffective assistance of counsel claim, a defendant must first demonstrate error on the

 9 part of counsel, and then show that the error resulted in prejudice.” (internal quotation

10 marks and citation omitted)). As we have already explained, Defendant cannot

11 demonstrate that the failure to review the photographs prejudiced him, since he and

12 his counsel were already aware of the evidence of the broken window. To the degree

13 that there may have been some explanation for the broken window other than

14 Defendant’s having broken it, counsel was on notice that such an explanation should

15 be produced for the jury, even without having reviewed the photographs. Because

16 Defendant fails to demonstrate prejudice based on the failure to review the

17 photographs, Defendant’s motion to amend the docketing statement does not present

18 this Court with an issue that is viable. We therefore deny his motion. See Rule 12-


                                               5
 1 208(F) NMRA (“The Court of Appeals may, upon good cause shown, allow the

 2 amendment of the docketing statement.”); see also State v. Sommer,

 3 1994-NMCA-070, ¶ 11, 118 N.M. 58, 878 P.2d 1007 (denying the defendant’s motion

 4 to amend the docketing statement when the argument sought to be raised was not

 5 viable).

 6   {8}   Accordingly, for the reasons stated in this opinion and in our notice of proposed

 7 summary disposition, we affirm.

 8   {9}   IT IS SO ORDERED.


 9                                                 ________________________________
10                                                 JAMES J. WECHSLER, Judge


11 WE CONCUR:


12 ________________________________
13 MICHAEL D. BUSTAMANTE, Judge


14 ________________________________
15 JONATHAN B. SUTIN, Judge




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