This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed 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. A-1-CA-35620 4 RANDY DUNN, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Neil Candelaria, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 C. David Henderson, Appellate Defender 13 MJ Edge, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 ZAMORA, Judge. 182 {1} Defendant Randy Dunn was convicted of criminal sexual penetration of a minor 1 (CSPM). We previously issued a notice of proposed summary disposition in which we 2 proposed to affirm. Defendant has filed a combined motion to amend the docketing 3 statement and memorandum in opposition, wh ich we have duly considered. Because 4 we remain unpersuaded, we affirm. 5
{2} In his docketing statement Defendant raised a single issue, challenging the 6 sufficiency of the evidence to support his conviction, in light of the absence of 7 evidence that he penetrated the victim di gitally or physically forced the victim to 8 digitally penetrate herself. [DS 1-2, 3-5] As we observed in the notice of proposed 9 summary disposition, the elements of th e offense do not require such proof. See UJI 10 14-957 comm. cmt. (Indicating that the relevant elements instruction requires no force 11 or coercion). The offense merely requi res causation, which in this case was 12 established by the victim’s testimony that De fendant “told, asked[ ,] or ordered her to 13 place her own finger in her vagina or vulva.” [MIO 3] In his memorandum in 14 opposition Defendant effectively concedes that the evidence was sufficient to establish 15 causation, as statutorily required. [MIO 5, 8-9] We therefore adhere to our initial 16 assessment of this matter, and reject Defendant’s challengeto the sufficiency of the 17 evidence. 183 {3} We turn next to the motion to amend. Such a motion will only be granted upon 1 a showing of viablility. See State v. Ibarra , 1993-NMCA-090, ¶ 13, 116 N.M. 486, 2 864 P.2d 302 (observing that a motion to amend will be denied if the issue is not 3 viable). By his motion to amend, Defendant seeks to a dvance a claim of ineffective 4 assistance of counsel. [MIO 5-9] For the reasons that follow, we conclude that this 5 issue is not viable. We therefore deny the motion. 6
{4} In order to establish any entitlement torelief based on ine ffective assistance of 7 counsel, Defendant must make a prima f acie showing by demonstrating that: (1) 8 counsel’s performance fell below that of a reasonably competent attorney; (2) no 9 plausible, rational strategy or tactic e xplains counsel’s conduct; and (3) counsel’s 10 apparent failings were prejudicial to the defense . See State v. Herrera , 11 2001-NMCA-073, ¶ 36, 131 N.M. 22, 33 P.3d 22 (setting out the factors for a prima 12 facie case of ineffective assistance). 13
{5} Defendant bases his claim on trial c ounsel’s advancement of the meritless 14 causation argument previously discussed. [MIO 5] More specifically, Defendant 15 contends that trial counsel’s relian ce upon an inapplicable and obsolete jury 16 instruction, together with counsel’s failure to recognize that the current relevant 17 authority on causation did not support his argumen t, should be said to satisfy the first 18 two prongs of the standard. [MIO 7-9] Fo r the present purposes, we will assume that 194 this is so. However, Defendant fails to make any showing with respect to the third 1 prong. Nothing in the record before us suggests that trial counsel’s advancement of 2 the meritless causation argument actually effected the outcome. See State v. Jensen , 3 2005-NMCA-113, ¶ 18, 138 N.M. 254, 118 P.3d 762 (“The type of prejudice required 4 to establish a prima facie case of ineffective assistance of counsel is that there exists 5 a reasonable probability that without counsel's errors, the result of the trial would have 6 been different such that confidence in th e outcome of the trial is undermined.”). {6} 7 In light of the foregoing, weconclude that Defendant has failed to make a prima 8 facie showing of ineffective assistance of counsel. We therefore deny his motion to 9 amend. To the extent that Defendant may wish to pursue the matter further, we 10 suggest that habeas proceedings w ould be the appropriate avenue. See generally State 11 v. Baca , 1997-NMSC-059, ¶ 25, 124 N.M. 333, 950 P.2d 77 (“A record on appeal that 12 provides a basis for remanding to the trial court for an evidentiary hearing on 13 ineffective assistance of counsel is rare. Ordinarily, such claims are heard on petition 14 for writ of habeas corpus[.]”); State v. Martinez , 1996-NMCA-109, ¶ 25, 122 N.M. 15 476, 927 P.2d 31 (“This Court has expres sed its preference for habeas corpus 16 proceedings over remand when the record on appeal does not establish a prima facie 17 case of ineffective assistance of counsel.”). 185 {7} For the reasons stated above and in th e notice of proposed summary disposition, 1 we affirm. 2
{8} IT IS SO ORDERED. 3

4 M. MONICA ZAMORA, Judge 5 WE CONCUR: 6

7 JONATHAN B. SUTIN, Judge 8

9 STEPHEN G. FRENCH , Judge 10