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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,355 4 ERNEST GARDUNO, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Michael E. Martinez, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 J.K. Theodosia Johnson, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 GARCIA, Judge. 17 {1} Defendant appeals from the district c ourt’s order revoking his probation. The 182 district court concluded that Defendant violated his probation by committing the act 1 of shoplifting. On appeal, Defendant conte nds that there was in sufficient evidence to 2 support the revocation of his probation, and th e district court abused its discretion in 3 not granting a continuance. This Court i ssued a calendar notice proposing to affirm. 4 Defendant has filed a memorandum in oppos ition to this Court’s notice of proposed 5 disposition, which we have duly cons idered. Unpersuaded, we affirm. 6 Sufficiency of the Evidence 7 {2} Defendant contends that there was insu fficient evidence to demonstrate that he 8 was shoplifting and, thus, support the revocation of his probation. See State v. Green , 9 2015-NMCA-007, ¶ 22, 341 P.3d 10 (stating that proof of a probation violation “must 10 be established with a reasonable certainty, such that a reasonable and impartial mind 11 would believe that th e defendant violated the terms of probation”). Specifically, 12 Defendant argues that he wa s not attempting to leave the store with multiple unbagged 13 items; rather, Defendant conte nds that he was looking for an item at the front of the 14 store when he was stopped by a loss prevention officer. We pointed out in our 15 calendar notice that contrary tes timony is not a basis for reversal. See State v. Rojo , 16 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P. 2d 829 (“Contrary evidence supporting 17 acquittal does not provide a basis for reversalbecause the jury is free to reject [the 18 d]efendant’s version of the facts.”). 193 {3} Defendant maintains that the district court abused its di scretion in revoking 1 Defendant’s probation, becauseDefendant presented a reas onable explanation of his 2 actions that night. [MIO 4] It is not, how ever, the function of the appellate court to 3 reweigh evidence; rather, we de fer to the district court’s de terminations of weight and 4 credibility. See State v. Vigil , 1975-NMSC-013, ¶ 16, 87 N.M. 345, 533 P.2d 578 5 (holding that it is for the factfinder to determine the credibility of the witnesses and 6 the weight to be given to their testimony, and the factfinder may reject a defendant's 7 version of an incident); see also State v. Gonzales , 1999-NMCA-027, ¶ 9, 126 N.M. 8 742, 975 P.2d 355 (“It is a bedrock principle of appellate practice th at appellate courts 9 do not decide the facts in a case.”). Thus, we conclude De fendant has failed to 10 demonstrate error in this regard. Moreover, to the extent Defendant contends that the 11 district court erred in its assessment of Defendant’s credibility, we conclude that 12 Defendant has failed to demonstr ate error for the same reason. 13 Denial of Continuance 14 {4} Defendant contends that the districtcourt erred in refusing to grant a 15 continuance. In this Court’s calendar notice, we pointed out that the district court 16 provided an extension of time for “preparation and presentation of a defense.” [CN 4] 17 Thus, we suggested that to the extent De fendant was arguing that the district court 18 should have also continued the presentati on of the State’s evidence, Defendant had 194 provided no indication of how the district c ourt’s failure to postpone the hearing in its 1 entirety had prejudiced Defendant. [CN 3-4] 2 {5} In response, Defendant asserts that hewas prejudiced by the district court’s 3 failure to postpone the State’s presentation of evidence, because—if the district court 4 had continued the revocation hearing—the defense could have effectively cross5 examined the Wal-Mart employee with the requested (but not produced) video. [MIO 6 2, 5] We note that Defendant has not actually described the content of the video and 7 how it would have allowed him to impeach the Wal-Mart employee. See State v. 8 Guerra , 2012-NMSC-027, ¶ 30, 284 P.3d 1076 (recognizing that in the absence of 9 demonstrating harm done by alleged errors, there is no due process violation); In re 10 Ernesto M., 1996-NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of 11 prejudice is not a showing of prejudice. ”). Moreover, any prejudice asserted by 12 Defendant stemming from not bei ng able to prepare for cro ss-examination prior to the 13 State’s presentation of evidence, could have been easily remedied by recalling the 14 Wal-Mart employee during the presentation of Defendant’s case. Because we 15 conclude that Defendant ha s failed to establish prejudice stemming from the district 16 court’s refusal to postpone the entire proceeding, we conclude th at Defendant has not 17 demonstrated that reversible error occurred. 18 {6} For the reasons stated above and in this Court’s notice of proposed disposition, 195 we affirm the revocation of Defendant’s probation. 1

{7} IT IS SO ORDERED. 2

__________________ ______________ 3 TIMOTHY L. GARCIA, Judge 4 WE CONCUR: 5

_______________________________ 6 CYNTHIA A. FRY, Judge 7

_______________________________ 8 RODERICK T. KENNEDY, Judge 9