This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 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. 29,966 9 BOBBY McMULLIN, 10 Defendant-Appellant. 11

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Denise Barela Shepherd, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Robert E. Tangora, L.L.C. 17 Robert E. Tangora 18 Santa Fe, NM 19 for Appellant 20

MEMORANDUM OPINION 21 BUSTAMANTE, Judge. 22 Defendant appeals his felony convicti ons for eight counts of promoting 232 prostitution and one count of accepting the earnings of a prostitute. [RP 136] Our 1 second notice proposed to affirm. Pursuant to a granted motion for extension of time, 2 Defendant filed a timely motion to ame nd the docketing statement and memorandum 3 in opposition. We deny Defe ndant’s motion to amend the docketing statement. We 4 further remain unpersuaded by Defendant’s arguments, and therefore affirm. 5 Motion to amend. 6 Defendant seeks to amend th e docketing statement to ar gue that his counsel was 7 ineffective by not objecting to the prosecuto r’s continued refere nce to his contract 8 performers as “prostitutes.” [MIO 1, 4, 7] Defendant asserts that counsel’s failure 9 to object reflected a “lack of skill, judgment, or diligence” [MIO 9] and was 10 prejudicial because it allowed the prosecutor to draw legal conclusions for the jury. 11 [MIO 9] 12 Counsel is presumed competent. State v. Jacobs , 2000-NMSC-026, ¶ 48, 129 13 N.M. 448, 10 P.3d 127. To establish a prim a facie case of ineffective assistance of 14 counsel, a defendant must show (1) that counsel’s performance fell below that of a 15 reasonably competent attorney, and (2) that defendant was prejudiced by the deficient 16 performance. State v. Hester , 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 P.2d 729. 17 In the present case, we view counsel’s lack of objection as a matte r of trial tactics – 18 counsel, for example, may have reasonably determined that any objection would call 193 attention to the prosecutor’s characterization of the performers as ‘prostitutes’. [MIO 1 9] See, e.g. , State v. Peters , 1997-NMCA-084, ¶ 40, 123 N.M. 667, 944 P.2d 896 2 (holding that whether to object to evidence is a matter of trial tactics and failure to 3 object does not establish ineffective assistance); Lytle v. Jordan , 2001-NMSC-016, 4 ¶ 43, 130 N.M. 198, 22 P.3d 666 (stating “[o]n appeal, wewill not second guess the 5 trial strategy and tactics of the defense counsel” (interna l quotation marks and citation 6 omitted)). We accordingly deny De fendant’s motion to amend. See State v. Sommer , 7 118 N.M. 58, 60, 878 P.2d 1007, 1009 (Ct. App. 1994) (recognizing that issues sought 8 to be presented must be viable). 9 Issues (I) and (II) : 10 Defendant continues to argue that the State engaged in prosecutorial misconduct 11 by failing to provide timely discovery, and th at this failure resulted in fundamental 12

error. [DS 3-4; MIO 4] We review the district court’s discovery ruling for abuse of 13 discretion. See State v. McDaniel , 2004-NMCA-022, ¶ 6, 135 N.M. 84, 84 P.3d 701. 14 The facts provide that three days [DS 1-2] prior to the start of the initially 15 scheduled April 15, 2009, jury trial, [RP 65, 66] defense counsel requested and 16 received a court order compelling the pros ecutor to produce a disk of Defendant’s 17 computer data that was seized by authorities pursuant to a search warrant on January 18 25, 2008. [DS 2-3] The disk contained approximately 60,000 pages of computer data, 194 [DS 3; MIO 7] including names and contact info rmation for approximately 3,000 of 1 Defendant’s clients. [DS 2; MIO 3] Defendant asserts that “[ d]ue to the late nature 2 of discovery being made available to the defense, the defense was unable to identify, 3 locate[,] interview witnesses to verify information, or to properly subpoena any 4 potential witnesses to testify incourt on defendant’s behalf.” [DS 2] 5 Defendant’s argument is premised on anasserted violation of Rule 5-501 6 NMRA (setting forth discovery that must bedisclosed to the defendant within ten 7 days of arraignment). [DS 4; MIO 4] Defendant contends th at the data base would 8 have been material to his defense becausehis counsel could ha ve identified potential 9 witnesses who would have testified on his behalf, namely that they conducted 10 legitimate business with Defendant. [MIO 4, 6] The facts provide, however, that the 11 State acknowledged that Defendant earned approximately $100,000 from his 12 legitimate security alarm business, and that the charges against Defendant were 13 premised not on his security alarm business, but on the prostitution business that 14 accounted for in excess of $300,000 in earnings. [DS 2; MIO 3] Given this, even 15 assuming that Defendant could have identified and called witn esses to testify that they 16 conducted legitimate business with Defendant, th is would not have detracted from 17 evidence supporting the charges. [DS 2-3; MIO 3, 5] See generally State v. 18 McDaniel , 2004-NMCA-022, ¶ 11, 135 N.M. 084, 135 84 P.3d 701 (stating that, in 195 the context of the late disclosure of inform ation, for evidence to be material there must 1 be a reasonable probability that the outco me of the proceedings would have been 2 different had the information been disclosed earlier). 3 Moreover, although the jury trial was initially scheduled for April 15, 2009 [RP 4 65] , it was reset to October 13, 2009. [RP 132] Given this, defense counsel had 5 ample time to review the database, and identify and inte rview any potential witnesses. 6 See In re Ernesto M. , 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An 7 assertion of prejudice is not a showing of prejudice.”). Nonetheless, because 8 Defendant did not request a c ontinuance, he waived any claim that he was prejudiced 9 by any late disclosure of evidence. See generally State v. Barraza , 110 N.M. 45, 48- 10 49, 791 P.2d 799, 802-03 (Ct. A pp. 1990) (holding that a de fendant’s failure to seek 11 a continuance undermines the defendant’s cl aim of unfair surprise and may waive a 12 complaint that exculpatory evidence was not timely disclosed). Even if Defendant’s 13 failure to request a continuance did not wa ive his claim of untimely disclosure, there 14 is no basis for concluding th at any purportedly late disclosure of evidence amounted 15 to fundamental error. [DS 2] See State v. Barber , 2004-NMSC-019, ¶ 17, 135 N.M. 16 621, 92 P.3d 633 (providing that fundamental error only occurs in “cases with 17 defendants who are indisputably innocent, and cases in which a mistake in the process 18 makes a conviction fundamentally unfair not withstanding the apparent guilt of the 196 accused.”). 1 Conclusion. 2 Based on the foregoing discussion, we affirm. 3 IT IS SO ORDERED. 4

5 MICHAEL D. BUSTAMANTE, Judge 6

WE CONCUR: 7

8 JONATHAN B. SUTIN, Judge 9

10 TIMOTHY L. GARCIA, Judge 11