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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. A-1-CA-35620

 5 RANDY DUNN,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Neil Candelaria, District Judge

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

11 for Appellee

12   Bennett J. Baur, Chief Public Defender
13   C. David Henderson, Appellate Defender
14   MJ Edge, Assistant Appellate Defender
15   Santa Fe, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 ZAMORA, Judge.
 1   {1}   Defendant Randy Dunn was convicted of criminal sexual penetration of a minor

 2 (CSPM). We previously issued a notice of proposed summary disposition in which we

 3 proposed to affirm. Defendant has filed a combined motion to amend the docketing

 4 statement and memorandum in opposition, which we have duly considered. Because

 5 we remain unpersuaded, we affirm.

 6   {2}   In his docketing statement Defendant raised a single issue, challenging the

 7 sufficiency of the evidence to support his conviction, in light of the absence of

 8 evidence that he penetrated the victim digitally or physically forced the victim to

 9 digitally penetrate herself. [DS 1-2, 3-5] As we observed in the notice of proposed

10 summary disposition, the elements of the offense do not require such proof. See UJI

11 14-957 comm. cmt. (Indicating that the relevant elements instruction requires no force

12 or coercion).    The offense merely requires causation, which in this case was

13 established by the victim’s testimony that Defendant “told, asked[,] or ordered her to

14 place her own finger in her vagina or vulva.” [MIO 3] In his memorandum in

15 opposition Defendant effectively concedes that the evidence was sufficient to establish

16 causation, as statutorily required. [MIO 5, 8-9] We therefore adhere to our initial

17 assessment of this matter, and reject Defendant’s challenge to the sufficiency of the

18 evidence.




                                              2
 1   {3}   We turn next to the motion to amend. Such a motion will only be granted upon

 2 a showing of viablility. See State v. Ibarra, 1993-NMCA-090, ¶ 13, 116 N.M. 486,

 3 864 P.2d 302 (observing that a motion to amend will be denied if the issue is not

 4 viable). By his motion to amend, Defendant seeks to advance a claim of ineffective

 5 assistance of counsel. [MIO 5-9] For the reasons that follow, we conclude that this

 6 issue is not viable. We therefore deny the motion.

 7   {4}   In order to establish any entitlement to relief based on ineffective assistance of

 8 counsel, Defendant must make a prima facie showing by demonstrating that: (1)

 9 counsel’s performance fell below that of a reasonably competent attorney; (2) no

10 plausible, rational strategy or tactic explains counsel’s conduct; and (3) counsel’s

11 apparent failings were prejudicial to the defense. See State v. Herrera,

12 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 (setting out the factors for a prima

13 facie case of ineffective assistance).

14   {5}   Defendant bases his claim on trial counsel’s advancement of the meritless

15 causation argument previously discussed. [MIO 5] More specifically, Defendant

16 contends that trial counsel’s reliance upon an inapplicable and obsolete jury

17 instruction, together with counsel’s failure to recognize that the current relevant

18 authority on causation did not support his argument, should be said to satisfy the first

19 two prongs of the standard. [MIO 7-9] For the present purposes, we will assume that



                                               3
 1 this is so. However, Defendant fails to make any showing with respect to the third

 2 prong. Nothing in the record before us suggests that trial counsel’s advancement of

 3 the meritless causation argument actually effected the outcome. See State v. Jensen,

 4 2005-NMCA-113, ¶ 18, 138 N.M. 254, 118 P.3d 762 (“The type of prejudice required

 5 to establish a prima facie case of ineffective assistance of counsel is that there exists

 6 a reasonable probability that without counsel's errors, the result of the trial would have

 7 been different such that confidence in the outcome of the trial is undermined.”).      {6}


 8        In light of the foregoing, we conclude that Defendant has failed to make a prima

 9 facie showing of ineffective assistance of counsel. We therefore deny his motion to

10 amend. To the extent that Defendant may wish to pursue the matter further, we

11 suggest that habeas proceedings would be the appropriate avenue. See generally State

12 v. Baca, 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 77 (“A record on appeal that

13 provides a basis for remanding to the trial court for an evidentiary hearing on

14 ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition

15 for writ of habeas corpus[.]”); State v. Martinez, 1996-NMCA-109, ¶ 25, 122 N.M.

16 476, 927 P.2d 31 (“This Court has expressed its preference for habeas corpus

17 proceedings over remand when the record on appeal does not establish a prima facie

18 case of ineffective assistance of counsel.”).




                                               4
1   {7}   For the reasons stated above and in the notice of proposed summary disposition,

2 we affirm.

3   {8}   IT IS SO ORDERED.



4
5                                         M. MONICA ZAMORA, Judge

6 WE CONCUR:


7
8 JONATHAN B. SUTIN, Judge


 9
10 STEPHEN G. FRENCH , Judge




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