This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 STATE OF NEW MEXICO, 7 Plaintiff-Appellee, 8

v. NO. 29,800 9 ISMAEL VASQUEZ, 10 Defendant-Appellant. 11

` 12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Gary M. Jeffreys, District Judge 14 Gary K. King, Attorney General 15 Santa Fe, NM 16 for Appellee 17 Law Office of Craig C. Kling 18 Craig C. Kling 19 San Diego, CA 20 for Appellant 21 MEMORANDUM OPINION 22 WECHSLER, Judge. 23 Defendant appeals from his convictions for armed robbery, conspiracy to 242 commit armed robbery, and possession of a firearm by a felon. Defendant filed a 1 docketing statement that was rejected by this Court in part becau se Defendant failed 2 to provide a description of the facts necessary to evaluate his claims of error. 3 Defendant then filed an ame nded docketing statement that again failed to provide the 4 facts necessary to evaluate his claims. In this Court’s notice of proposed summary 5 disposition, we proposed to affirm. De fendant has timely filed a memorandum in 6 opposition, pursuant to an extension of time. We have considered Defendant’s 7 arguments, and as we are not persuaded by them, we affirm. 8 Sufficiency of the Evidence 9 Defendant challenges the sufficiency of th e evidence as to all of his convictions. 10 [Amended DS 5; MIO 1-4] “In reviewing the sufficiency of the evidence, we must 11 view the evidence in the li ght most favorable to the guilty verdict, indulging all 12 reasonable inferences and resolving all c onflicts in the evidence in favor of the 13 verdict.” State v. Cunningham , 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. 14 In this Court’s notice of proposed summary disposition, we indicated that we would 15 only address Defendant’s convi ction for armed robbery, as this was the only charge 16 for which Defendant provided the facts re levant to his claim. In Defendant’s 17 memorandum in opposition, he makes arguments as to all three of his convictions. He 18 fails, however, to persuade us that summary affirmance is inappropriate. 193 Defendant contends, pursuant to State v. Franklin , 78 N.M. 127, 129, 428 P.2d 1 982, 984 (1967), and State v. Boyer , 103 N.M. 655, 658-60, 712 P. 2d 1, 4-6 (Ct. App. 2 1985), that there was insufficient evidence to support his convictions for armed 3 robbery and conspiracy to commit armed robbery because the State failed to establish 4 that he was one of the people who perpetrated the crimes. [Amended DS 5; MIO 1] 5 We conclude that there was sufficient evidence to support these convictions. A 6 witness testified that both Defendant and Defendant’s accomplice described the 7 robbery to him and that each said that Defendant took part in the robbery. [Amended 8 DS 3, 5] Furthermore, Defendant’s hair was found in a cap located several blocks 9 from the scene of the crime al ong with a pile of clothes th at matched the description 10 of the robber. [Amended DS 4] Although Defendant attacks the witness’s credibility 11 because he was a jailhouse informant, it was for the jury to weigh this evidence, not 12 this Court. See State v. Sosa , 2000-NMSC-036, ¶ 8, 129 N.M. 767, 14 P.3d 32 13 (observing that the “credibility of witn esses is for the jury” to determine). 14 Defendant asserts that his conviction for being a felon in possession of a firearm 15 cannot stand because there was no evidence that he was the person wielding the gun. 16 [Amended DS 6; MIO 3-4] In this Court’s proposed summary disposition, we stated 17 that we were unable to address this argument because Defendant had not explained 18 what evidence was presented regarding the use of a gun. SeeRule 12-208(D)(3) 194 NMRA. In Defendant’s memorandum in oppos ition, he argues that the claim in the 1 docketing statement that there was no eviden ce presented that Defendant handled the 2 gun must be taken as true and shoul d provide a basis for reversal. See State v. Ibarra , 3 116 N.M. 486, 489, 864 P.2d 302, 305 (Ct. App. 1993) (“The facts contained in the 4 docketing statement are accepted as the facts of the case unl ess they are challenged.”). 5 We disagree. 6 Counsel must set out all relevant fact s in the docketing statement, including 7 those facts supporting the district court’s judgment. Thornton v. Gamble , 101 N.M. 8 764, 769, 688 P.2d 1268, 1273 (Ct. App. 1984). Here, neither Defendant’s docketing 9 statement nor his memorandum in opposition gives this Court any indication about 10 what facts were presented in the district court regarding the robbery. Defendant has 11 had three opportunities to describe the necessary facts, as we would have been willing 12 to rely on any description of the facts inDefendant’s initial docketing statement, his 13 amended docketing statement, or his memorandum in opposition. His claim that if 14 trial counsel indicates there was no eviden ce presented that Defendant handled a gun, 15 that statement must itself be taken as a fact is not persuasive in this case. If trial 16 counsel had described all the relevant ev idence presented and then made such a 17 statement, we might view the case differently . But without such a factual description, 18 trial counsel’s statement is simply a conc lusion that trial counsel believes that the 195 evidence was insufficient to s upport this element, not a statement about what evidence 1 was in fact presented in the district court. 2 We also note that the amended docketing statement is equivocal as to whether 3 no evidence on the subject was presented si nce what the docketing statement actually 4 says at one point: “nor was there any physical evidence to show that [Defendant] 5 possessed the gun used in the crime.” [A mended DS 5 (emphasis added)] Physical 6 evidence is not required in order to prove a fact beyond a reasonable doubt—the jury 7 could have properly relied on the testimony of the informant about what Defendant 8 and his co-conspirator told the informant about the crime or on other direct or 9 circumstantial evidence to establish this el ement of the offense. Furthermore, the 10 State was not required to prove that De fendant physically po ssessed the gun so long 11 as he was in constructive possession of it. See State v. Garcia , 2005-NMSC-017, ¶¶ 12 13-25, 138 N.M. 1, 116 P.3d 72. 13 As Defendant has not explained what evidence was actually presented in the 14 district court, we cannot evaluate it, and we decline to either propose summary 15 reversal or to assign the case to the general calendar based on trial counsel’s failure 16 to meet his obligations. It is Defendant ’s burden to demonstrate error on appeal. State 17 v. Aragon , 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that there 18 is a presumption of correctness in the proceedings in the district court and that the 196 burden of demonstrating error lies with the appellant). Simply raising the unsupported 1 possibility of error is not enough. This is not a case in which trial counsel has made 2 a good faith allegation that he cannot recall the facts necessary to provide this Court 3 with the information it requires. See Ibarra , 116 N.M. at 488, 864 P.2d at 304 (stating 4 that “when counsel alleges a legitimate inab ility to recall and to reconstruct the events 5 through available non-transcript alternatives , this Court will frequently allow time and 6 access to a recording or transcript”). And this Court has given Defendant more than 7 one opportunity to appropriately present his claim of error by first rejecting 8 Defendant’s initial docketing statement for its failure to de scribe the necessary facts, 9 and then indicating in our notice of propos ed summary disposition that the failure of 10 the amended docketing statement to fully present the facts would provide a basis for 11 affirmance. 12 The Refusal to Sever 13 Defendant asserts that the district court erred in refusing to sever the charge for 14 possession of a firearm by a fel on. [Amended DS 6; MIO 4] In our order rejecting 15 Defendant’s docketing statement and in our notice of proposed summary disposition, 16 we stated that Defendant faile d to provide this Court withan adequate description of 17 the facts necessary to evaluate this clai m because he had not explained the facts 18 necessary to evaluate whether he was prej udiced. Our Supreme Court has stated that 197 the failure to sever a felon in possession of a firearm charge will generally constitute 1 error, since evidence of a prior conviction is inadmissible if the defendant does not 2 testify. See State v. Dominguez , 2007-NMSC-060, ¶¶ 10-12, 142 N.M. 811, 171 P.3d 3 750. However, our Supreme Court has al so made clear that such error is not 4 reversible in the absence of a showing of actual prejudice. See id. ¶ 13. Because the 5 error is itself the admission of evidence of a prior conviction, this alone cannot be 6 sufficient to establish prejudice, as Defendant suggests. Dominguezcites State v. 7 Gonzales , 113 N.M. 221, 824 P.2d 1023 (1992), with approval to indicate the type of 8 prejudice that must be shown in a case involving the failure to sever a felon in 9 possession charge. 10 In Gonzales , our Supreme Court held that th e defendant did not show he was 11 prejudiced by the failure to sever a felon in possession charge when the jury was not 12 given details surrounding the conviction, th e prior conviction was very dissimilar to 13 the charges being tried, and the jury was twice given limiting instructions that they 14 were presumed to have followe d. 113 N.M. at 230, 824 P.2d at 1032. As Defendant 15 has not provided this Court with a description of the evidence introduced regarding 16 the prior felony and any oral instructions th at may have been given, we are unable to 17 evaluate his claim of prejudice and we hold that Defendant has not demonstrated that 18 reversal is warranted. Although Defendant argues that the juryinstruction on the 198 felon in possession charge shows that he was prejudiced, nothing in the jury 1 instruction provides any inform ation regarding the nature of the prior felony. [RP 2 161] Therefore, pursuant to Gonzales , the jury instruction is not prejudicial. 3 Accordingly, for the reasons stated inthis opinion and the notice of proposed 4 summary disposition, we affirm. 5 IT IS SO ORDERED. 6

_________ ___________ ____________ 7 JAMES J. WECHSLER, Judge 8 WE CONCUR: 9

__________________________________ 10 MICHAEL D. BUSTAMANTE, Judge 11

__________________________________ 12 RODERICK T. KENNEDY, Judge 13