This memorandum opinion was not selected for publi cation in the New Mexico 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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 file d 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. 31,928 4 PATRICK RICHARDSON, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY 7 James Waylon Counts, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jacqueline Cooper, Ch ief Public Defender 12 Kathleen T. Baldridge, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 VIGIL, Judge. 17 Defendant-Appellant Patrick Richardson (Defendant) appeals his convictions 18 for contributing to the delinquency of a minor (CDM) and fourth-degree criminal 192 sexual penetration of a mi nor (CSPM). We issued a notice of proposed summary 1 disposition proposing to uphold the convicti ons. Defendant ha s filed a memorandum 2 in opposition. After due consid eration, we remain unpersuade d. We therefore affirm. 3 Defendant has raised a single issue, contending that the district court erred in 4 denying his motion for a new trial. [DS 3; MIO 1-10] The motion was premised on 5 claims of prosecutorial misconduct and/or ineffective assistance of counsel, based on 6 an improvident decision by the defense to present Defendant’s te stimony that he had 7 a prior felony conviction, when Defendant had in fact only been convicted of a 8 misdemeanor. 9 In order to establish any basis for relie f on a theory of prosecutorial misconduct 10 or ineffective assistance of counsel, a showing of prejudice is required. See State v. 11 Martinez , 2007-NMCA-160, ¶ 24, 143 N.M. 96, 173 P.3d 18 (“When there is no 12 showing of prejudice, [a] claim of ineff ective assistance of counsel must fail.”); State 13 v. Velasquez , 99 N.M. 109, 112, 654 P.2d 562, 565 (Ct. App. 1982) (stating that the 14 defendant has the burden to show that prosecutorial misconduct was prejudicial). 15 “Prejudice is shown when there is a r easonable probability that, but for counsel’s 16 unprofessional errors, the result of the pr oceeding would have been different.” State 17 v. Schoonmaker , 2008-NMSC-010, ¶ 32, 143 N.M. 373, 176 P.3d 1105 (internal 18 quotation marks and citation omitted). In his memorandum in opposition Defendant 19 asserts that his erroneous admission to a prior felony conviction was prejudicial. [MIO 203 5, 9] However, “[a]n assertion of prejudice is not a showing of prejudice[,]” and in 1 this case we perceive no prejudice. In re Ernesto M. , 1996-NMCA-039, ¶ 10, 121 2 N.M. 562, 915 P.2d 318. 3 As we previously observed, Defendant’s convictions were supported by 4 overwhelming and essentially uncontradicted evidence of guilt, including Defendant’s 5 own admissions. [DS 2; MIO 6-7, 9] The victim’s consent appears to have been the 6 only point of dispute. [DS 2] On this issue the jury found in Defendant’s favor, 7 insofar as it returned a guilty verdict on th e lesser-included offense of CSP IV, rather 8 than CSP II. [DS 2; MIO 6-7, 9; RP 103-05, 115] See generally State v. Moore , 2011- 9 NMCA-089, ¶ 11, 150 N.M. 512, 263 P.3d 289 (observing that the consent of a 10 statutorily defined child is not a defense to CSP IV), cert. denied, 2011-NMCERT11 008, __ N.M. __, 268 P.3d 513. Under the circumstances, weconclude that the district 12 court did not abuse its discretion in denying Defendant’s moti on for new trial. See, 13 e.g., State v. McDonald, 1998-NMSC-034, ¶ 29, 126 N.M . 44, 966 P.2d 752 (holding 14 that the district court did not abuse its discretion in denying a motion for new trial 15 based on the incidental mention of unflattering character eviden ce, where there was 16 overwhelming evidence of guilt, including the defendant’s own testimony). 17

Accordingly, for the reasons stated above and in the notice of proposed 18 summary disposition, we affirm. 194 IT IS SO ORDERED. 1

_______________________________ 2 MICHAEL E. VIGIL, Judge 3 WE CONCUR: 4

_________________________________ 5 JONATHAN B. SUTIN, Judge 6

_________________________________ 7 CYNTHIA A. FRY, Judge 8