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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. 35,580

 5 RODNEY GONZALEZ,

 6          Defendant-Appellant.

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

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                                 MEMORANDUM OPINION

17 GARCIA, Judge.

18   {1}    Defendant appeals his convictions for possession of heroin, methamphetamine,
 1 marijuana, and for tampering with evidence. Defendant has responded with a

 2 memorandum in opposition and a motion to amend the docketing statement. For the

 3 reasons discussed below, we hereby grant the motion to amend, but it does not prevent

 4 us from issuing an opinion at this time. We affirm.

 5 MOTION TO AMEND

 6   {2}   Defendant has filed a motion to amend the docketing statement to add a new

 7 issue. [MIO I] In cases assigned to the summary calendar, this Court will grant a

 8 motion to amend the docketing statement to include additional issues if the motion (1)

 9 is timely, (2) states all facts material to a consideration of the new issues sought to be

10 raised, (3) explains how the issues were properly preserved or why they may be raised

11 for the first time on appeal, (4) demonstrates just cause by explaining why the issues

12 were not originally raised in the docketing statement, and (5) complies in other

13 respects with the appellate rules. See State v. Rael, 1983-NMCA-081, ¶ 15, 100 N.M.

14 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that are

15 not viable, even if they allege fundamental or jurisdictional error. See State v. Moore,

16 1989-NMCA-073, ¶¶ 42-43, 109 N.M. 119, 782 P.2d 91, overruled on other grounds

17 by State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817 P.2d 730.

18   {3}   Here, Defendant is seeking to add a challenge to the sufficiency of the evidence

19 to support his conviction for possession of marijuana. Because the marijuana was


                                               2
 1 found in the same baggie as the heroin and methamphetamine, our analysis in the

 2 calendar notice on the other sufficiency challenges applies equally to the marijuana

 3 conviction. Accordingly, Defendant has had the opportunity to respond to our legal

 4 and factual analysis on this issue, and we incorporate our calendar notice for purposes

 5 of addressing the marijuana possession conviction.

 6 SUFFICIENCY

 7   {4}   Defendant continues to challenge the sufficiency of the evidence to support his

 8 convictions for possession of heroin, methamphetamine, and marijuana. [MIO 3] A

 9 sufficiency of the evidence review involves a two-step process. Initially, the evidence

10 is viewed in the light most favorable to the verdict. Then the appellate court must

11 make a legal determination of “whether the evidence viewed in this manner could

12 justify a finding by any rational trier of fact that each element of the crime charged has

13 been established beyond a reasonable doubt.” State v. Apodaca, 1994-NMSC-121, ¶

14 6, 118 N.M. 762, 887 P.2d 756 (internal quotation marks and citations omitted).

15   {5}   In order to convict Defendant, the evidence had to show that Defendant

16 knowingly was in possession of heroin, methamphetamine, and marijuana. [RP 106-

17 108] Here, officers detained Defendant at a convenience store, and had placed him in

18 handcuffs. [MIO 2; DS 3] A woman approached, and Defendant stated that it was his

19 sister, and he wanted to give her a hug before being taken away. [MIO 2; DS 3] As she


                                               3
 1 approached, Defendant was observed reaching into his pocket and seemed to be

 2 pulling something out. [MIO 2; DS 4] When they hugged, Defendant was observed

 3 transferring something to the woman. [DS 4] Officers instructed the woman to show

 4 what Defendant had placed in her hand, and she showed them a baggie that contained

 5 heroin, methamphetamine, and marijuana. [MIO 2-3; DS 4] In light of this evidence,

 6 we conclude that the jury could reasonably determine that Defendant had knowingly

 7 been in possession of heroin, methamphetamine and marijuana. Although Defendant

 8 claims that there was insufficient evidence of constructive possession, the jury was

 9 also instructed on actual possession [RP 109], and in this case there was evidence of

10 actual possession.

11   {6}   For the reasons set forth above, we affirm.

12   {7}   IT IS SO ORDERED.

13                                                ________________________________
14                                                TIMOTHY L. GARCIA, Judge

15 WE CONCUR:


16 _______________________________
17 JAMES J. WECHSLER, Judge


18 _______________________________
19 MICHAEL E. VIGIL, Judge



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