     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     Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum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. 32,169

 5 RICKY GONZALES,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
 8 Michael E. Vigil, District Judge

 9 Gary K. King, Attorney General
10 Corinna Laszlo-Henry, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Jorge A. Alvarado, Chief Public Defender
14 Kimberly Chavez Cook, Assistant Appellate Defender
15 Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 VANZI, Judge.
 1   {1}   Defendant appeals his convictions for escape from custody of a peace officer,

 2 two counts of disarming a peace officer, and aggravated battery on a peace officer.

 3 Defendant makes four arguments on appeal. He first argues that the State presented

 4 insufficient evidence to support the jury’s verdict that he did not act in self-defense

 5 with respect to the disarming and aggravated battery counts. Second, Defendant

 6 contends that there was insufficient evidence that he deprived the peace officer of the

 7 use of the officer’s knife. Defendant also argues that because he was not in custody

 8 for commission or alleged commission of a felony, his conduct does not constitute

 9 escape from custody. Finally, Defendant argues that discovery violations require

10 reversal of his convictions. We agree with Defendant, and the State concedes, that

11 Defendant’s conduct did not support the statutory crime of escape from custody. We

12 therefore remand with instructions to vacate this conviction and enter an amended

13 judgment and sentence. We affirm Defendant’s remaining convictions.

14 BACKGROUND

15   {2}   The following is an overview of the events that took place on the night of

16 February 16, 2011. We will supplement the facts as necessary in the Opinion. The

17 facts recited here are obtained from the trial testimony of the witnesses, as well as

18 from the videotape of the encounter that was recorded by Officer Steven Carroll’s in-

19 car camera. The videotape was admitted as evidence and played for the jury.



                                              2
 1 Although much of the encounter was not captured on video, the officer’s microphone

 2 recorded the struggle and other key events that took place off-camera.

 3   {3}   At 11:30 p.m. on February 16, 2011, New Mexico State Police Officer Steven

 4 Carroll was on patrol along a four-lane divided road when he observed a car with a

 5 cracked—but illuminated—taillight in the far lane going the opposite direction.

 6 Officer Carroll decided to stop the car and made a U-turn to catch up with the vehicle

 7 and make a stop. The driver of the vehicle, Defendant Ricky Gonzales, turned off the

 8 road onto a side street, and then pulled into a driveway. Officer Carroll pulled in

 9 behind Defendant’s car and turned on his emergency lights, triggering the audio for

10 his dash-cam video.

11   {4}   When Officer Carroll approached the vehicle, he noted that there was a

12 passenger in the car and that the driver was in an “odd” position, like he was trying

13 to exit the vehicle, causing Officer Carroll to have a “heightened sense of alertness.”

14 As a result, Officer Carroll drew his gun and held it at a depressed level. Defendant

15 told Officer Carroll that his window could not roll down and that the door had to be

16 opened from the outside. With Officer Carroll’s assistance, the door was opened, and

17 when Officer Carroll could see that neither occupant was armed, he holstered his

18 weapon. When asked to provide his driver’s license, Defendant informed Officer

19 Carroll that he did not have it and provided instead the name and date of birth for

20 “Luis Orta.” Shortly thereafter, Officer Carroll handcuffed Defendant and placed him

                                              3
 1 in the back seat of the police unit because the passenger was not complying with

 2 Officer Carroll’s orders, and Officer Carroll was trying to “control the situation.”

 3   {5}   Officer Carroll removed the handcuffs from Defendant and conducted a brief

 4 DWI investigation after which he determined Defendant was not impaired; however,

 5 he decided to arrest Defendant for driving under a revoked license based on an arrest

 6 warrant then pending in the criminal information database for Luis Orta. After getting

 7 his handcuffs out, Officer Carroll told Defendant to stand in front of the police unit.

 8 Defendant did a “football maneuver,” pushing off Officer Carroll and ran away. At

 9 that point, Officer Carroll started chasing Defendant and yelling at him to stop or he

10 would be tased. When Defendant did not stop, Officer Carroll fired his taser.

11 Defendant continued to run until, a short time later, he tripped or fell to the ground.

12 A struggle ensued.

13   {6}   Defendant quickly got on top of Officer Carroll and started hitting him on the

14 face and head with what felt like a rock. Officer Carroll could “feel the blood coming

15 down [his] face [.]” Defendant tried to take Officer Carroll’s gun, but Officer Carroll

16 protected it while yelling at Defendant, “just go Luis, I’m not going to tell anybody,

17 just go[.]” At some point while Defendant was still on top of Officer Carroll, there

18 was a struggle over Officer Carroll’s gun. Officer Carroll aimed at what he believed

19 was Defendant’s center mass, and shot twice. Defendant continued to struggle and

20 tried to pull the gun out of Officer Carroll’s hand while yelling for Officer Carroll to

                                              4
 1 give him the gun. Either before or after the shooting, Officer Carroll also tried to use

 2 the taser again, but the electrified wires were tangled between the two men, and he

 3 shocked himself as well.

 4   {7}   Defendant and Officer Carroll continued to fight and, while keeping the gun

 5 tucked under his leg, Officer Carroll pulled out his utility knife and tried to stab

 6 Defendant to get him off. Defendant managed to get possession of the knife and

 7 stabbed Officer Carroll in the abdomen. He also tried to choke Officer Carroll with

 8 the police radio cord and his arm, and bit Officer Carroll’s thumb and head as they

 9 fought.

10   {8}   Shortly thereafter, Defendant stopped fighting and left. Officer Carroll got on

11 his knees and tried to shoot Defendant but discovered that the magazine had been

12 removed from the gun and there was no bullet in the chamber. When the gun failed

13 to fire, Officer Carroll radioed for help. Officers from various agencies responded

14 immediately, and some Santa Fe police officers found Defendant a short distance

15 away, against a wall and under a tree; he was face down and bleeding. Underneath

16 where Defendant had been laying, the officers found Officer Carroll’s knife.

17   {9}   After a pre-trial discovery dispute in which the district court denied Defendant’s

18 motion to exclude witnesses and a request for continuance, the case went to trial. At

19 trial, the district court denied Defendant’s motions for directed verdict on Count Three

20 (disarming Officer Carroll of his knife) and Count Five (escape from a peace officer).

                                               5
 1 Ultimately, the jury acquitted Defendant of Count One (attempted murder) but

 2 convicted him of the remaining four counts: Count Two (aggravated battery on a

 3 peace officer); Count Three (disarming a peace officer of his knife); Count Four

 4 (disarming a peace officer of his firearm); and Count Five (escape from a peace

 5 officer). This appeal followed.

 6 DISCUSSION

 7 Escape From Custody

 8   {10}   Defendant contends that his conviction for escape from custody was based on

 9 a warrantless, misdemeanor arrest that is not covered by the escape statute. See NMSA

10 1978, § 30-22-10 (1963) (stating that in order to be convicted of escape from custody,

11 a person must be in custody for the commission of a felony, either under a warrant or

12 otherwise). The State concedes that Defendant’s conduct in fleeing from Officer

13 Carroll did not, as a matter of law, constitute escape from custody as that crime is

14 defined by the Legislature and that Defendant’s conviction for escape from custody

15 should therefore be vacated. Although we are not bound by this concession, see State

16 v. Foster, 1999-NMSC-007, ¶ 25, 126 N.M. 646, 974 P.2d 140, abrogated on other

17 grounds by State v. Frazier, 2007-NMSC-032, ¶¶ 31, 35, 142 N.M. 120, 164 P.3d 1,

18 we agree and express our appreciation to counsel for the State for her candor. We

19 remand to the district court to vacate Defendant’s conviction for escape from custody

20 and enter an amended judgment and sentence.

                                             6
 1 Disarming a Peace Officer of His Knife

 2   {11}   “When reviewing a verdict for sufficiency of the evidence, our role is to

 3 determine whether a rational fact-finder could determine beyond a reasonable doubt

 4 the essential facts necessary to convict the accused.” State v. Garcia, 2005-NMSC-

 5 017, ¶ 12, 138 N.M. 1, 116 P.3d 72. We view the evidence in the light most favorable

 6 to the verdict and resolve all conflicts and indulge all permissible inferences to uphold

 7 the conviction, disregarding all evidence and inferences to the contrary, to ensure that

 8 each element of the crime was established beyond a reasonable doubt. See State v.

 9 Rojo, 1999-NMSC-001, ¶¶ 19, 23, 126 N.M. 438, 971 P.2d 829. The reviewing court

10 does “not re-weigh the evidence to determine if there was another hypothesis that

11 would support innocence or replace the fact-finder’s view of the evidence with the

12 appellate court’s own view of the evidence.” Garcia, 2005-NMSC-017, ¶ 12. Our

13 Supreme Court has also observed, however, “that [e]vidence equally consistent with

14 two hypotheses tends to prove neither.” Id. (alteration in original) (internal quotation

15 marks and citation omitted). “In other words, evidence equally consistent with two

16 inferences does not, without more, provide a basis for adopting either one—especially

17 beyond a reasonable doubt.” Id. (internal quotation marks and citation omitted).

18   {12}   In this case, the jury was instructed in a manner consistent with the statutory

19 provision relating to disarming a peace officer. See NMSA 1978, § 30-22-27(A)

20 (1997) (stating that disarming a peace officer consists of knowingly removing a

                                               7
 1 weapon from a peace officer or depriving a peace officer of the use of a weapon). The

 2 parties agreed at trial that Defendant did not actually remove the weapon from Officer

 3 Carroll, and the instruction thus states, in relevant part, that to convict under Count

 4 Three, the jury had to find the following elements:

 5          1.     [D]efendant did knowingly deprive [Officer] Carroll[,] a peace
 6          officer[,] the use of a knife when the officer was acting within the scope
 7          of his duties;

 8          2.    [D]efendant did not act in self defense[.]

 9 The sufficiency of the evidence is to be measured against this instruction. See State

10 v. Smith, 1986-NMCA-089, ¶ 7, 104 N.M. 729, 726 P.2d 883.

11   {13}   Defendant contends that there was insufficient evidence to support Count

12 Three, disarming a peace officer, because the evidence failed to establish that he

13 knowingly deprived Officer Carroll of the use of his knife. We are not persuaded.

14   {14}   Officer Carroll testified that during the struggle, and while Defendant was on

15 top of him, Officer Carroll grabbed his utility knife from his left pocket and tried to

16 stab Defendant. Further, Officer Carroll testified that he either dropped the knife or

17 Defendant disarmed him and that all he knew was that he no longer had the knife in

18 his hand. The next thing Officer Carroll knew was that Defendant had possession of

19 the knife, and Defendant stabbed Officer Carroll with it once right below his vest. The

20 knife was later found in the location where Defendant was found laying on the

21 ground.

                                                8
 1   {15}   We conclude that there was sufficient evidence for the jury to conclude that

 2 during the ensuing struggle, and while Officer Carroll was trying to stab Defendant,

 3 Defendant knowingly deprived Officer Carroll of his knife—whether it was dropped

 4 or Officer Carroll was actually disarmed. Indeed, there was sufficient evidence for the

 5 jury to find that Defendant took the knife with the intent of stabbing Officer Carroll

 6 thus depriving Officer Carroll of its use. This was not a situation, as Defendant

 7 suggests, where there was some obligation “that a suspect who finds a dropped

 8 weapon return it to the officer.” The two here were engaged in a struggle at some

 9 point during which Defendant took possession of Officer Carroll’s knife and used it

10 to stab Officer Carroll. Defendant then took the knife with him necessarily depriving

11 Officer Carroll of its use. We affirm the conviction for Count Three.




12 Sufficiency of the Evidence on Self-Defense

13   {16}   Defendant argues that his convictions under Count Two, aggravated battery on

14 a peace officer, and Counts Three and Four, disarming a peace officer (knife and

15 firearm), must be vacated because there was insufficient evidence that Defendant was

16 not acting in self-defense. As we have noted above, when determining whether a

17 conviction is supported by substantial evidence, we view the evidence in the light

18 most favorable to the verdict, resolving all conflicts and indulging all inferences in

                                              9
 1 favor of the verdict. See Rojo, 1999-NMSC-001, ¶¶ 19, 23. A claim of self-defense

 2 is available against peace officers when the fact-finder determines that the force

 3 employed by the officer was excessive. State v. Ellis, 2008-NMSC-032, ¶ 16, 144

 4 N.M. 253, 186 P.3d 245. The right to self-defense, however, is not available when the

 5 officer is using necessary force to effect an arrest. Id.

 6   {17}   In this case, the jury was instructed that, with regard to Counts One, Two, Three

 7 and Four, evidence was presented that Defendant acted in self-defense and that the

 8 burden was on the State to prove beyond a reasonable doubt that Defendant did not

 9 act in self-defense. The instruction further provided, in part, that Defendant acted in

10 self defense if “[t]he officer used greater force than reasonable and necessary by

11 brandishing . . . his duty pistol when he approached [D]efendant and/or Officer

12 Carroll’s use of his TASER on [D]efendant and/or Officer Carroll having shot

13 [D]efendant with a gun and/or Officer Carroll’s attempt to stab [D]efendant with his

14 knife.” We review the evidence of use of force by Officer Carroll under the objective

15 reasonableness standard. See id. ¶¶ 31, 34 (noting that our task on appeal is to inquire

16 whether reasonable minds could differ regarding the officer’s use of force and find it

17 excessive). In Ellis, our Supreme Court further noted that the necessity or

18 reasonableness of an officer’s use of force has to be judged according to some

19 objective standard of police conduct. Id. ¶ 22 n.2.



                                               10
 1   {18}   We begin with the first part of the jury instruction—whether there was

 2 sufficient evidence to support the jury’s determination that it was objectively

 3 reasonable for Officer Carroll to have his weapon drawn when he first approached

 4 Defendant’s vehicle. Officer Carroll testified that he thought Defendant was “trying

 5 to exit the vehicle for whatever reason, and at that time I didn’t know. For us that’s

 6 a safety issue because I don’t know whether the driver is trying to exit the vehicle to

 7 come approach me, trying to exit the vehicle to run away or what the situation is.” As

 8 a result, Officer Carroll told the jury, he had his firearm at a “depressed level,” which

 9 meant it was pointed down and against his thigh. Officer Carroll’s testimony regarding

10 the position of his weapon is supported by the dash-cam video of the encounter. Once

11 Defendant opened the door and Officer Carroll could see inside the car, he noted that

12 neither Defendant or the passenger had any visible weapons, and he holstered his

13 firearm. Viewed objectively, and looking to the officer’s perspective, the jury could

14 have found that it was not unreasonable for Officer Carroll to have had his weapon

15 drawn and at his side given that it was late at night, Defendant had made two turns off

16 the highway and into a driveway after Officer Carroll initiated the stop, and Officer

17 Carroll saw movement in the car that put him on a “heightened sense of alertness.” In

18 any event, a review of the videotape—supported by Officer Carroll’s

19 testimony—reveals that the driver’s side window was covered with plastic, and it is

20 questionable whether Defendant even knew Officer Carroll had his gun out.

                                              11
 1   {19}   We further note that the jury was instructed that, in addition to finding Officer

 2 Carroll used excessive force, it was also required to find that: (1) Defendant

 3 subjectively feared immediate death or great bodily harm; (2) Defendant was in fact

 4 put in such fear; and (3) his conduct was reasonable. For at least twelve minutes, from

 5 the time Officer Carroll approached the vehicle with his gun drawn until Defendant

 6 fled, there is no evidence to suggest that Defendant feared immediate death or great

 7 bodily harm or that he was in fact put in such fear. Officer Carroll never pointed his

 8 gun at Defendant or threatened him in any way. And our review of the video

 9 establishes that Defendant appeared compliant throughout the initial encounter and

10 that he did not exhibit any fear of Officer Carroll. We conclude that there was

11 sufficient evidence for the jury to find beyond a reasonable doubt that Defendant was

12 not acting in self-defense as a result of Officer Carroll drawing his weapon as he

13 approached the vehicle.

14   {20}   We next turn to the question of whether a rational jury could have found that

15 Officer Carroll’s use of his taser was an objectively reasonable response to Defendant

16 fleeing. Consistent with our case law, our inquiry into the lawfulness of Officer

17 Carroll’s use of his taser looks specifically to his perspective because “officers, within

18 reasonable limits, are the judges of the force necessary to enable them to make arrests

19 or to preserve the peace.” Ellis, 2008-NMSC-032, ¶ 23 (alteration, internal quotation

20 marks, and citation omitted).

                                               12
 1   {21}   Officer Carroll testified that when he first approached the vehicle and before

 2 Defendant got out of the car, he asked Defendant for his driver’s license. Defendant

 3 said he did not have his license but gave the name “Luis Orta.” When Officer Carroll

 4 ran the name on his computer, he learned that Luis Orta had a revoked license because

 5 of a prior DWI and an arrest warrant. Officer Carroll also learned that Defendant had

 6 lied about his destination and residence. Officer Carroll decided to place Defendant

 7 under arrest for the revoked driver’s license and, at that point, Defendant pushed away

 8 from him and fled. As he pursued Defendant on foot, Officer Carroll yelled at

 9 Defendant several times to stop or he was going to taser him. When he did not stop,

10 Officer Carroll deployed his taser. The deployment failed; however, Officer Carroll

11 continued the foot pursuit.

12   {22}   The only testimony at trial regarding use of force came from Officer Luis

13 Hernandez, a lieutenant and former instructor at the State Police Academy. He

14 testified that when “[a] person becomes uncooperative and is resisting or moving

15 away, that’s where owner use of force policy where the taser is granted to be used.”

16 Based on the facts, including that it was dark, and that Defendant was attempting to

17 evade arrest by fleeing, the jury could have found that the deployment of the taser was

18 appropriate in light of the surrounding circumstances. Furthermore, because the

19 deployment of the taser failed, it is questionable whether Defendant even knew that

20 it had been used.

                                              13
 1   {23}   Finally, we address whether a rational jury could have found that Officer

 2 Carroll used reasonable force when he shot Defendant with his gun and when he

 3 attempted to stab Defendant with his knife. Officer Carroll testified that after the

 4 deployment of the taser failed, he continued chasing Defendant in the dark. At some

 5 point, Defendant either tripped or dropped to the ground, and Officer Carroll got on

 6 top of him, screaming at Defendant to “get the fuck on the ground” and calling him

 7 a “motherfucker.” Suddenly, Defendant turned over and was on top of Officer Carroll.

 8 Officer Carroll testified that Defendant started hitting him in the face with what felt

 9 like a rock and he could “feel the blood coming down [his] face[.]” According to

10 Officer Carroll, he was terrified and “in a mode of survival,” and he repeatedly told

11 Defendant to “just go, Luis, go, go, go Luis, go” and that it was “not worth it to kill

12 a cop for a misdemeanor[.]” The audio recording of the encounter substantiates much

13 of what Officer Carroll testified to in court.

14   {24}   While Defendant was still on top of Officer Carroll, there was a struggle over

15 Officer Carroll’s gun. Officer Carroll fired at what he believed was Defendant’s center

16 mass. Because it was dark and because of the blood on his face, Officer Carroll

17 thought he did not “hit” Defendant when he pulled the trigger. Moreover, after being

18 shot, Defendant continued to try to wrest Officer Carroll’s gun away from him. While

19 they were fighting for control of the gun, Officer Carroll grabbed his utility knife from

20 his left pocket. Officer Carroll testified that, after flipping open the knife, he started

                                               14
 1 making stabbing motions at Defendant in order to get Defendant off him. As we have

 2 discussed above, Defendant gained possession of the knife and stabbed Officer Carroll

 3 once right below his vest. Defendant then bit Officer Carroll on the right thumb and

 4 attempted to strangle him, first with the radio cord and then with his arm.

 5   {25}   In sum, although the underlying crime was relatively minor, a cracked taillight,

 6 it is also clear that Defendant gave Officer Carroll the name of a person who had an

 7 arrest clause and that the encounter between Defendant and Officer Carroll quickly

 8 escalated into a violent physical altercation. The testimony at trial and the dash-cam

 9 video established that Defendant got on top of Officer Carroll almost immediately and

10 began striking him in the face with what felt like a rock, that they struggled over the

11 gun, and that Officer Carroll was terrified and not in control during the struggle. In

12 light of the evidence, we conclude that a reasonable jury could have found that Officer

13 Carroll used necessary force when he fired his gun and when he tried to use his knife

14 to stab Defendant. See State v. Garcia, 1992-NMSC-048, ¶ 27, 114 N.M. 269, 837

15 P.2d 862 (noting that the relevant question on appeal is whether any “rational jury

16 could have found beyond a reasonable doubt the essential facts required for a

17 conviction”). Defendant’s convictions for aggravated battery on a peace officer and

18 two counts of disarming a peace officer are affirmed.

19 Discovery Violations



                                               15
 1   {26}   Lastly, Defendant argues that the district court did not adequately address the

 2 State’s failure to timely produce discovery, including witness interviews, dash-cam

 3 videos, and materials related to taser use. This Court reviews a district court’s decision

 4 with regard to discovery for an abuse of discretion. State v. Desnoyers, 2002-NMSC-

 5 031, ¶ 25, 132 N.M. 756, 55 P.3d 968, abrogated on other grounds as recognized by

 6 State v. Forbes, 2005-NMSC-027, 138 N.M. 264, 119 P.3d 144. “[R]emedies for

 7 violation of discovery rules or orders are discretionary with the trial court.” State v.

 8 Wilson, 2001-NMCA-032, ¶ 39, 130 N.M. 319, 24 P.3d 351, abrogated on other

 9 grounds as recognized by State v. Montoya, 2005-NMCA-078, 137 N.M. 713, 114

10 P.3d 393. In order to find an abuse of discretion, we must conclude that the decision

11 below was against logic and not justified by reason. State v. Brown, 1998-NMSC-037,

12 ¶ 32, 126 N.M. 338, 969 P.2d 313. “Failure to disclose a witness’ identity prior to trial

13 in itself is not grounds for reversal. The objecting party must show that he was

14 prejudiced by such non-disclosure.” State v. Griffin, 1988-NMCA-101, ¶ 11, 108

15 N.M. 55, 766 P.2d 315 (internal citation omitted). The prejudice must be more than

16 speculative. See In re Ernesto M., Jr., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915

17 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”).

18   {27}   In considering whether late disclosure of evidence requires reversal, a

19 reviewing court will consider the following factors: “(1) whether the [s]tate breached

20 some duty or intentionally deprived the defendant of evidence; (2) whether the

                                               16
 1 improperly non-disclosed evidence was material; (3) whether the non-disclosure of

 2 the evidence prejudiced the defendant; and (4) whether the trial court cured the failure

 3 to timely disclose the evidence.” State v. Mora, 1997-NMSC-060, ¶ 43, 124 N.M. 346,

 4 950 P.2d 789, abrogated on other grounds as recognized by Kersey v. Hatch, 2010-

 5 NMSC-020, 148 N.M. 381, 237 P.3d 683.

 6   {28}   As we understand Defendant’s argument, he is claiming that the State violated

 7 the district court’s discovery order, Rule 5-501 NMRA, and his constitutional rights

 8 by failing to timely name its witnesses and provide the defense with witness

 9 interviews and by failing to timely produce evidence including materials related to

10 dash-cam videos and taser use. We begin with the issue of the late disclosed

11 witnesses.

12   {29}   Defendant reviews at length the various disclosures and delays by the State,

13 including the disclosure of sixty-two witnesses on six separate witness lists. Prior to

14 trial, Defendant filed a motion to exclude the witnesses that were not disclosed in a

15 timely manner, and the district court subsequently held a lengthy hearing on the

16 motion. We note that the State filed its first witness list naming thirty-six witnesses

17 on August 18, 2011, and also filed a Rule 5-501 certificate of compliance. At the

18 hearing, Defendant conceded that the August 18, 2011 list was filed within the proper

19 time frame and was not at issue. Defendant argued, however, that witnesses on the

20 State’s supplemental witness lists filed on October 11, 14, 17, 19, and 26, 2011,

                                              17
 1 should be excluded for violations of Rule 5-501(A)(5) and the district court’s order

 2 of September 30, 2011.

 3   {30}   The district court disagreed. During the hearing, the parties informed the court

 4 that thirty-four of the witnesses had been interviewed, and the State further explained

 5 that most of the witnesses were relevant only to establishing chain of custody. The

 6 district court then went painstakingly through each list and inquired about the status

 7 of the interviews of each of the State’s witnesses, including the anticipated testimony

 8 of those who had not yet been interviewed. The State told the court that it would not

 9 be calling many of the witnesses, and the district court made notations to that effect

10 on each of the supplemental lists. The district court told defense counsel that defense

11 counsel had “invited some of this” because, although he was entitled to do so, defense

12 counsel was “not willing to work with the other side to eliminate chain of custody

13 people.” Importantly, however, by the time the court had gone through the lists, there

14 were only five witnesses left who needed to be interviewed, and the court ordered that

15 they be interviewed by November 4, 2011.

16   {31}   We conclude that the district court fashioned an adequate remedy by requiring

17 that the few remaining witnesses be interviewed prior to trial. Defendant does not

18 demonstrate why the remedy was inadequate or how he was prejudiced by the district

19 court’s ruling particularly given that most of the witnesses were going to provide

20 cumulative testimony that mostly concerned chain of custody. Moreover, Defendant

                                               18
 1 does not demonstrate with any specificity how earlier disclosure of these witnesses

 2 would have affected the outcome of his trial. See State v. Allison, 2000-NMSC-027,

 3 ¶ 17, 129 N.M. 566, 11 P.3d 141 (noting that evidence is material only if there is a

 4 reasonable probability that, had the evidence been disclosed, the result of the

 5 proceeding would have been different). The district court did not abuse its discretion

 6 with regard to the arguably late disclosure of witnesses.

 7   {32}   Defendant also contends that his rights were violated because material evidence

 8 was not disclosed or was not timely disclosed to him. In Brady v. Maryland, 373 U.S.

 9 83, 87 (1963), the United States Supreme Court held that due process requires

10 disclosure of evidence that is both favorable to the accused and “material either to

11 guilt or to punishment.” Similarly, the Supreme Court in United States v. Bagley, 473

12 U.S. 667, 678-83 (1985), held that impeachment evidence should be treated like other

13 exculpatory evidence when analyzing the state’s disclosure obligation.

14   {33}   Here, it appears that the State responded to—or Defendant had in his

15 possession—the discovery he was seeking. Indeed, defense counsel acknowledged at

16 the hearing having ultimately received the items it requested, including the CAD

17 reports of Officers Bobnock and Carroll. To the extent Defendant argues that the late

18 disclosure of taser evidence impeded defense counsel’s ability to hire an expert

19 witness, we disagree. Defense counsel argued to the district court that they had sent

20 data from Officer Carroll’s taser to Taser International for inspection but that Taser

                                              19
 1 International would not have the report ready in time for trial. Moreover, the

 2 representative, who asserted that a trained officer could purposely cause a taser

 3 malfunction, could not be present at trial. The district court told defense counsel that

 4 he could subpoena the representative, who was not being called as an expert, and have

 5 her testify by phone. The State had no objection to the telephonic testimony, although,

 6 for reasons unknown, the representative ultimately did not testify. We thus conclude

 7 that the district court cured any possible issue with the disclosure of the taser data.

 8 Although the representative did not testify, we note that Defendant was able to elicit

 9 the testimony at trial that the taser was susceptible to tampering from the State’s taser

10 instructor.

11   {34}   Finally, we address Defendant’s argument that the district court failed to cure

12 the late disclosure of witnesses by refusing to grant a continuance. The granting or

13 denial of a continuance is within the sound discretion of the trial court, and the burden

14 of establishing abuse of discretion rests with the defendant. State v. Sanchez, 1995-

15 NMSC-053, ¶ 17, 120 N.M. 247, 901 P.2d 178. “There are a number of factors that

16 trial courts should consider in evaluating a motion for continuance, including the

17 length of the requested delay, the likelihood that a delay would accomplish the

18 movant’s objectives, the existence of previous continuances in the same matter, the

19 degree of inconvenience to the parties and the court, the legitimacy of the motives in

20 requesting the delay, the fault of the movant in causing a need for the delay, and the

                                              20
 1 prejudice to the movant in denying the motion.” State v. Torres, 1999-NMSC-010, ¶

 2 10, 127 N.M. 20, 976 P.2d 20.

 3   {35}   Here, defense counsel made his only request for a continuance at the hearing

 4 on the motion for discovery sanctions. At the time, he cited his co-counsel’s health

 5 problems as the basis for the request. The district court denied the continuance

 6 because its calendar prevented rescheduling the trial. We cannot say the district court

 7 abused its discretion in denying the motion for continuance because co-counsel was

 8 present at the subsequent hearing on November 4, 2011, and more importantly,

 9 Defendant never renewed his motion again. We are also not persuaded by Defendant’s

10 assertion that by failing to grant the continuance, the district court “deprived the

11 defense the opportunity to incorporate these materials into a more effective defense

12 strategy.” Defendant does not point to any specific materials nor does he demonstrate

13 how he was prejudiced. Finally, the district court did not err in finding that there was

14 no ineffective assistance of counsel particularly when it assured defense counsel that

15 it would “monitor this closely and it if appears that [there is ineffective assistance of

16 counsel,] I’ll declare a mistrial.” The district court’s discovery rulings and denial of

17 Defendant’s motion for continuance did not constitute an abuse of discretion.

18 CONCLUSION




                                              21
1   {36}   For the reasons stated above, we remand to the district court to vacate

2 Defendant’s conviction for escape from custody and enter an amended judgment and

3 sentence. We affirm Defendant’s remaining convictions.

4   {37}   IT IS SO ORDERED.

5                                       __________________________________
6                                       LINDA M. VANZI, Judge


7 WE CONCUR:



8 _________________________________
9 MICHAEL D. BUSTAMANTE, Judge



10 _________________________________
11 J. MILES HANISEE, Judge




                                          22
