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 Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official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. 30,957 9 (consolidated with: 30,962; 10 JOHNNY JOE MARTINEZ , 30,963; 30,964; 30,965; 11 and 30,966 ) 12 Defendant-Appellant. 13 APPEAL FROM THE DISTRICT COURT OF QUAY COUNTY 14 Albert Mitchell, District Judge 15 Gary K. King, Attorney General 16 Santa Fe, NM 17 for Appellee 18 Jacqueline L. Cooper, Acti ng Chief Public Defender 19 Will O’Connell, Assistant Public Defender 20 Santa Fe, NM 21 for Appellant 22 MEMORANDUM OPINION 23 VIGIL, Judge. 242 Defendant has filed six appeals from th e district court’s order revoking his 1 probation, affecting what appears to be fivedifferent criminal cases against him. We 2 issued an amended notice of proposed summary disposition consolidating the appeals 33 and proposing summary affirmance. Defendant has filed a memorandum in 1 opposition to our notice and a motion to amend the docketing statement. We have 2 duly considered Defendant’s response. Fo r the reasons stated below, we deny the 3 motion to amend the docketing statement. Because we are not persuaded by 4 Defendant’s remaining arguments, we affirm the district court’s order revoking 5 Defendant’s probation. 6 MOTION TO AMEND 7 Defendant seeks to amend the docketing statement to add the argument that this 8 Court should remand the case for a new evid entiary hearing because he either has 9 become aware or has come into possession of a surveillance video from Love’s 10 Country Store that proves that he was not shoplifting. [MIO 4-5] This issue is 11 pursued under the demands of State Franklin , 78 N.M. 127, 129, 428 P.2d 982, 984 12 (1967); and State v. Boyer , 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985). 13 [MIO 4] 14 In cases assigned to the summary calendar, this Court will grant a motion to 15 amend the docketing statement to include additional issues if the motion (1) is timely, 16 (2) states all facts material to a considerati on of the new issues sought to be raised, (3) 17 explains how the issues were properly pres erved or why they may be raised for the 18 first time on appeal, (4) demonstrates just cause by explaining why the issues were not 194 originally raised in the docketing statement, and (5) complies in other respects with 1 the appellate rules. State v. Rael , 100 N.M. 193, 197, 668 P.2d 309, 313 (Ct. App. 2 1983). Nevertheless, this Court will deny motions to amend that raise issues that are 3 not viable, even if they allege f undamental or jurisdictional error. State v. Moore , 109 4 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989), superceded by rule on other 5 grounds as stated in State v. Salgado , 112 N.M. 537, 817 P.2d 730 (Ct. App. 1991). 6

In the current case, we deny Defendant’s motion to amend because this issue 7 must be raised for the first time in district c ourt, not in this Court, and it is more in the 8 nature of seeking habeas corpus relief, which we lack jurisdiction to grant. See, e.g. , 9 Case v. Hatch , 2008-NMSC-024, 144 N.M. 20, 183 P. 3d 905 (reviewing the district 10 court’s denial of a petition fo r habeas relief where the de fendant sought a new trial on 11 grounds of newly discovered evidence); see also Rule 5-802(B) and (H)(2) NMRA 12 (requiring the petition for writ of habeas corpus to be filed with the district court and 13 giving the Supreme Court exclusive jurisdic tion over habeas appeals). We also note 14 that shoplifting did not form any basis for the revocation of Defendant’s probation. 15 [RP 84-85, 180] For these reasons, we deny Defendant’s motion to amend. 165 DOCKETING STATEMENT ISSUES 1 Defendant continues to argue that (1) insufficient evidence supports the finding 2 that he violated his probation [MIO 5-6], (2) the district court applied the incorrect 3 standard of proof [MIO 7-8], (3) the district court denied Defendant due process by 4 permitting testimonial hearsay at the probation revocation hearing [MIO 8-10], and 5 (4) the district court abused its discreti on by permitting a non-listed witness to testify 6 and to remain in the courtroom as a “cas e agent” during the testimony of the other 7 witnesses. [MIO 11-12] 8 Sufficiency of the Evidence and the Standard of Proof 9 “[P]roof presented at probation revocation hearings need only establish 10 reasonable certainty to satisfy the trial court of the truth of the violation, and need not 11 be proof beyond a reasonable doubt.” State v. Sanchez , 2001-NMCA-060, ¶ 11, 130 12 N.M. 602, 28 P.3d 1143. 13 The district court revoked Defendant’s probation on the basis that (1) Defendant 14 stole handcuffs when he escap ed from the Tucumcari Police Department (a larceny), 15 in violation of the condition that Defendantwould not violate any laws of the State, 16 and (2) he was in possession of three magazineclips of 45-caliber bullets, in violation 17 of the condition that Defendant would not possess firearms or ammunition. [RP 84- 18 85, 180] 196 In response to our notice that set fo rth the evidence support the violations, 1 Defendant contends that there was no evidence that Defendant intended to 2 permanently take the handcuffs without adopting a preposterous view of the facts. 3 [MIO 6] We disagree. The facts are plain. While the officers were searching for a 4 firearm, Defendant intentionally escaped while handcuffed and never returned with 5 Officer Taylor’s set of handcuffs. [RP 88, 168] This is sufficient evidence to support 6 a finding that Defendant intende d to take the handcuffs and not return them. Also, 7 Defendant argues that there was insuffici ent evidence that Defendant possessed the 8 ammunition, because there was only eviden ce that an officer found the ammunition 9 under his car after Defendant was in the vi cinity. [MIO 6] On the facts and grounds 10 stated in our notice, we believe the evidence was sufficient and note again that 11 “[p]roof of possession may be establishe d by evidence of the conduct and actions of 12 a defendant and by circumstantial evidence connecting defendant with the crime.” 13 State v. Donaldson , 100 N.M. 111, 119, 666 P.2d 1258, 1266 (Ct. App. 1983) (citation 14 omitted). For these reasons and those in our notice, we hold that the evidence was 15 sufficient to establish by a reasonable certain ty that Defendant violated the terms of 16 his probation. 177 Testimonial Hearsay 1 Defendant argues that the district court denied him due process by admitting 2 testimonial hearsay at the revocation heari ng. [MIO 8-10] As Defendant’s response 3 has recognized, the Supreme Court recently issued its opinion in State v. Guthrie , 4 2011-NMSC-014, __N.M. __, __ P.3d __, le ssening the “good cause” showing for not 5 requiring witness confrontation before revoking a defendant’s probation based on 6 hearsay under the right to due process. The Supreme Court held that “good cause” in 7 this context requires “considerations of pragmatism and fairness and the utility of 8 confrontation in a particular factual context.” Id. ¶ 33. Mindful of the flexibility of 9 due process to provide fundamental fairness under the circumstances, the Court 10 instructed us to “consider the necessity fo r, and utility of, con frontation with respect 11 to the truth-finding process in th e specific case before [us].” Id. ¶ 21. 12 In the case at hand, Defendant states th at trial counsel was unable to remember 13 the alleged hearsay testimony beyond the fact that it was given by one officer 14 regarding what that officer had b een told by another officer. [MIO 8] Given that 15 Guthrie requires that the hearsay testimony wa s crucial to the revocation of the 16 defendant’s probation for due process to remedy the unfairness, we may presume that 17 the hearsay testimony from the officer in th is case was not important enough to recall. 18 Furthermore, there is no indication that Defendant contests the underlying facts that 198 formed the basis for the revocation of De fendant’s probation. Rather, Defendant’s 1 appeal argues that the uncontested facts are insufficient to support the revocation. As 2 a result, we are not persuaded due pro cess and fundamental fairness would require 3 Defendant to confront the absent officer about the statement because, as a practical 4 matter, there is no indication that it would serve the truth-finding process in this case. 5 Non-listed Witness in the Courtroom 6 Defendant argues that the district c ourt abused its discretion by permitting a 7 non-listed witness to testify at the hearing and by permitting her to listen to the 8 testimony of all the other witnesses beforetestifying herself. [MIO 11-12] 9 We stated in our notice that Defendant did not identify the witness or the 10 testimony below to which he objected. De fendant did not explain the meaning or 11 significance of the witness’s ro le as a case agent. Also, Defendant did not specifically 12 identify the nature of the objection he raisedbelow. We further stated that to the 13 extent that Defendant attempted to raise a due process argument, he must demonstrate 14 that the defense was prejudiced by the admi ssion of the testimony because of the late 15 disclosure. See State v. DeBorde , 1996-NMCA-042, ¶ 14, 121 N.M. 601, 915 P.2d 16 906 (holding that due process requires a show ing that a claimed discovery violation 17 in probation revocation proceedings prejudi ced the defense and thus the outcome of 18 the trial). Lastly, we explained that we were not persuaded th at Defendant properly 199 preserved these matters below. We explai ned to Defendant that in any response 1 Defendant may wish to file, he must state how the issue was preserved, the testimony 2 to which he objected, whether admission of Ms. Muller’s testimony was harmless, the 3 State’s arguments in opposition, the grounds for the district court’s ruling, and 4 establish the prejudice described above. Without this information, we warned him 5 that we would not reach the merits and presume the district court did not err by 6 admitting the testimony. 7 Defendant’s response has not provided us with any of this information. 8 Therefore, we do not reach th e merits of the issues and we presume the correctness 9 and regularity of the district court’s rulings. 10 For the reasons discussed in our notice and in this opinion, we affirm the district 11 court’s order revoking Defendant’s probation. 12 IT IS SO ORDERED. 13

_______________________________ 14 MICHAEL E. VIGIL, Judge 15 WE CONCUR: 16

_________________________________ 17 CYNTHIA A. FRY, Judge 18

_________________________________ 19 TIMOTHY L. GARCIA, Judge 20