This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the cita tion of unpublished memorandum opinions. Please also note that this electronic memorandum opinion ma y contain computer-generated errors or other deviations from the official paper version file d by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. 31,279 4 THOMAS AVALLONE, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Thomas A. Rutledge, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline Cooper, Ch ief Public Defender 12 Will O’Connell , Assistan t Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 BUSTAMANTE, Judge. 172 Defendant is appealing his conviction after a jury found him guilty of 1 aggravated battery. We issued a calendar notice proposing to affirm. Defendant has 2 filed a motion to amend the docketing statem ent to raise an ineffective assistance of 3 counsel claim. We hereby deny Defendant ’s motion for the reasons stated below. 4 Defendant has also filed a memorandum in opposition to our calendar notice. Not 5 persuaded, we affirm the judgment and sentence. 6
Motion to Amend 7 Defendant has filed a motio n to amend the docketing statement to add a new 8 issue. See Rule 12-208(F) NMRA. In cases assi gned to the summary calendar, this 9 Court will grant a motion to amend the docketing statement to include additional 10 issues if the motion (1) is timely, (2) states all facts material to a consideration of the 11 new issues sought to be raised, (3) explai ns how the issues were properly preserved 12 or why they may be raised for the first time on appeal, (4) demonstrates just cause by 13 explaining why the issues were not origina lly raised in the docketing statement, and 14 (5) complies in other respects w ith the appellate rules. See State v. Rael , 100 N.M. 15 193, 197, 668 P.2d 309, 313 (Ct. App. 1983). This Court w ill deny motions to amend 16 that raise issues that are not viable, even if they allege fundamental or jurisdictional 17

error. See State v. Moore , 109 N.M. 119, 129, 782 P. 2d 91, 101 (Ct. App. 1989), 183 overruled on other grounds by State v. Salgado , 112 N.M. 537, 817 P.2d 730 (Ct. 1 App. 1991). 2 Here, Defendant would like to add two issues. With respect to the claim that 3 the district court judge should have recuse d, because he had presided over a previous 4 incomplete divorce proceeding, and had beco me “incensed” with Defendant when the 5 divorce did not go through. [MIO 8-11] De fendant concedes that this issue was not 6 preserved. [MIO 9] Accordingly, we c onclude that the issue is not viable because 7 there is nothing in the record to substantia te Defendant’s claims concerning the district 8 court judge’s prior conduct. S ee State v. Martin , 101 N.M. 595, 603, 686 P.2d 937, 9 945 (1984) (observing that matters not of record cannot be reviewed on appeal). 10 Defendant also would like to add the issue o f whether his counsel was 11 ine ffective. [MIO 11] Again, Defendant’s cl aims appear to be either not of record, 12

or matters of strategy. Accordingly, we believe that these claims are better addressed 13
in collateral proceeding. S ee Duncan v. Kerby , 115 N.M. 344, 346, 851 P.2d 466, 468 14 ( 1993) (stating that habeas corpus proceedings are the “preferred a venue for 15 adjudicating ineffective assistance of counsel claims.”) 16 Memorandum in Opposition 17 Defendant continues to claim that the district court erred in excluding evidence 18 in the form of a threatening letter to Defendant that was authored by the Victim. 194 [MIO 5] “We review the admission of ev idence under an abuse of discretion standard 1 and will not reverse in the ab sence of a clear abuse.” State v. Sarracino , 1998-NMSC2 022, ¶ 20, 125 N.M. 511, 964 P.2d 72. 3 Defendant had the fundamental right to pres ent his theory of defense to the jury. 4
See State v. Lucero , 1998-NMSC-044, ¶ 5, 126 N.M. 552, 972 P.2d 1143. In this case 5 Defendant argued self-defense, claiming that Victim was the aggr essor. [RP 84] To 6 support this defense, Defendant sought to admit a letter addresse d to him, sent by 7 Victim, which Defendant characterizes as “threatening.” [DS 1] Our Supreme Court 8 has set forth the applicable analysis as follows: 9 When a defendant is claiming self-d efense, his or her apprehension of 10 the victim is an essential element of his or her claim. Therefore, under 11 Rule 11-405(B) [NMRA], evidence of specific instances of the victim's 12 prior violent conduct of which the de fendant was aware may be admitted 13 to show the defendant's fear of the victim. 14 State v. Armendariz , 2006-NMSC-036, ¶ 17, 140 N.M. 182, 141 P.3d 526. 15 In our calendar notice, we observed that Defendant did not provide any detail 16 concerning the “threatening” nature of Victim ’s letter. In the ab sence of an adequate 17 description, we were unable to review this issue. See Thornton v. Gamble , 101 N.M. 18 764, 769, 688 P.2d 1268, 1273 (Ct. App. 1984) (stating that trial counsel must set out 19 all the facts in the docketing statement); see also Rule 12-208(D)(3) NMRA (stating 20 that the docketing statement shall contain “a concise, accurate statement of the case 215 summarizing all facts material to a cons ideration of the issues presented”). 1 Nevertheless, we presume that the distri ct court did not abuse its discretion in 2 excluding the letter. See State v. Aragon , 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 3 P.2d 1211 (stating that there is a presumption of correctness in the rulings or decisions 4 of the trial court, and the party claimi ng error bears the burden of showing such 5 error.). 6 In his memorandum in opposition, Defenda nt indicates that the letter was not 7 disclosed until the morning of trial, at whic h time the district court excluded it. [MIO 8 5] We therefore conclude that we prope rly applied the presumption of correctness, 9 in that the letter was not properly disclosed. See Rule 5-502(A)(1) NMRA (requiring 10 disclosure of papers no later than ten days before trial). 11 For the reasons set forth above, we affirm. 12
IT IS SO ORDERED. 13

14 MICHAEL D. BUSTAMANTE, Judge 15
WE CONCUR: 16

17 CELIA FOY CASTILLO, Chief Judge 186 1 TIMOTHY L. GARCIA, Judge 2