IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1

STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. NO. 28,490 4 JOSEPH P. DOWNS, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF COLFAX COUNTY 7 John M. Paternoster, District Judge 8 Gary K. King, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Hugh W. Dangler, Chief Public Defender 12 J.K. Theodosia Johnson, Assi stant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 CASTILLO, Judge. 17 Defendant appeals his convictions for careless driving, failure to stop upon 18 accidents involving damage, failureto give information, and failure to report accidents 192 immediately. [RP 54-55] We issued a calendar notice proposing to summarily affirm 1 on October 16, 2008. [Ct. App. file-blu e clip] Defendant has responded with a 2 memorandum in opposition and a motion to amend the docketing statement. After due 3 consideration, we remain unpersuaded by Defendant’s various assertions of error. We 4 therefore affirm. 5 We will begin with Defendant’s motion to amend the docketing statement, by 6 which Defendant seeks to assert that he received ineffective assistance of counsel and 7 that the evidence was insufficient to support his conviction for careless driving. [MIO 8 1, 8-12] With respect to Defendant’s cl aim of ineffective assistance of counsel, we 9 deny the motion to amend the docketing statement on the ground that the record 10 before us is insufficient. There is a two-fold test for proving ineffective assistance of 11 counsel: the defendant must show that the counsel’s performance fell below that of 12 a reasonably competent attorney and that the defendant was prejudiced by the 13 deficient performance. See State v. Hester , 1999-NMSC-020, ¶ 9, 127 N.M. 218, 979 14 P.2d 729. The burden of proof is on the defendant to prove both prongs. Id. In his 15 motion to amend, Defendant claims that hi s counsel refused to listen to him and was 16 not aware of relevant statutes and case la w. However, there is nothing in the record 17 to support these assertions. Defendant also claims that he was prejudiced by his 18 counsel’s failure to subpoena Ralph Nuno as a witness. However, as discussed more 193 below, we do not believe that Defendant has established th at he was prejudiced by the 1 absence of Nuno as a witness. See In re Ernesto M., Jr. , 1996-NMCA-039, ¶ 10, 121 2 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”). 3 We are therefore not in a position to consid er the claim of ineffective assistance of 4 counsel. See State v. Powers , 111 N.M. 10, 12, 800 P.2d 1067, 1069 (Ct. App. 1990) 5 (holding that an insufficient factual basi s precludes appellate review of a claim of 6 ineffective assistance of counsel). We note, however, that Defendant may pursue 7 habeas proceedings as a more appropriate mechanism for obtaining review. See State 8 v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61 (“If facts necessary to 9 a full determination are not part of the reco rd, an ineffective a ssistance claim is more 10 properly brought through a habeas corpus petition[.]”); State v. Martinez , 11 1996-NMCA-109, ¶ 25, 122 N.M. 476, 927 P.2d 31 (“This Court has expressed its 12 preference for habeas corpus proceedings over remand when the record on appeal 13 does not establish a prima facie case of ineffective assistance of counsel.”). 14 Defendant also argues that the eviden ce was not sufficient to convict him of 15 careless driving. [MIO 8-10] However, Defendant has not presented a sufficient 16 recitation of the testimony of the witnesses and evidence against him at trial for us to 17 evaluate his claim that the evidence was not sufficient. SeeRule 12-213(A)(3) NMRA 18 (“A contention that a verdict, judgment or finding of fact is not supported by 194 substantial evidence shall be deemed waived unless the summary of proceedings 1 includes the substance of the evidence bearing upon the proposition.”). For these 2 reasons, we determine that the issues Defendant seeks to raise in his motion to amend 3 the docketing statement are not vi able and we deny the motion. See State v. Moore , 4 109 N.M. 119, 128-29, 782 P.2d 91, 100-01 (Ct. App. 1989) (stating that issues 5 sought to be presented in a motion to ame nd the docketing statement must be viable), 6 superseded by rule on other grounds as stated in State v. Salgado , 112 N.M. 537, 817 7 P.2d 730 (Ct. App. 1991). We now turnto Defendant’s other issues. 8 Defendant argues that the district co urt erred in refusing to grant him a 9 continuance to secure the pres ence of Nuno. [MIO 4-5] “The grant or denial of a 10 continuance is within the sound discreti on of the trial court, and the burden of 11 establishing abuse of discretion rests with the defendant.” State v. Salazar , 12 2007-NMSC-004, ¶ 10, 141 N.M. 148, 152 P.3d 135. “Defendant must establish not 13 only an abuse of discretion, but also th at the abuse was ‘to the injury of the 14 defendant.’” Id. (quoting State v. Nieto , 78 N.M. 155, 157, 429 P.2d 353, 355 (1967)). 15 There are a number of factors that trial courts should consider in 16 evaluating a motion for continuance, including the length of the 17 requested delay, the likelihood th at a delay would accomplish the 18 movant’s objectives, the existence of previous continuances in the same 19 matter, the degree of inconvenience to the parties and the court, the 20 legitimacy of the motives in requesting the delay, the fault of the movant 21 in causing a need for the delay, and the prejudice to the movant in 22 denying the motion. 235 State v. Torres , 1999-NMSC-010, ¶ 10, 127 N.M. 20, 976 P.2d 20. 1 Defendant argues that Nuno’s testimony wa s critical to the defense. Defendant 2 represents that Nuno would have testifie d that another driver was “driving like an 3 idiot” and that he caused th e near accident. [MIO 3] However, Defendant makes no 4 argument and gives us no information regarding the other Torresfactors. 5 Additionally, it appears that Nuno’s testimony would have been cumulative of the 6 testimony of Defendant and hi s other witnesses. Under these circumstances, we see 7 no basis for determining that the district court abused its discretion in denying 8 Defendant’s motion for a continuance. 9 We also reject Defendant’s argument that the trial court’s denial of a 10 continuance denied him his rights to compulso ry process, a fair trial, and due process 11 of law under the state and federal constitutions. [MIO5-6] There is no indication that 12 any state constitutional claims were preserve d, and we therefore do not address them. 13 Cf. State v. Gomez , 1997-NMSC-006, ¶¶ 22-23, 122 N.M . 777, 932 P.2d 1 (discussing 14 requirements for preserving state constitu tional claims for appellate review). 15 Additionally, we do not believethat Defendant has estab lished that he was unable to 16 put on a defense or that a potential avenueof defense was unavailable to him because 17 of the absence of Nuno. Cf. March v. State , 105 N.M. 453, 456, 734 P.2d 231, 234 18 (1987) (trial court denied defendant his right to due process and right to subpoena 196 witnesses where the refusal to grant a conti nuance to secure the presence of a witness 1 resulted in a complete deprivation of a de fense of incapacity). We therefore reject 2 these claims. 3 We also reject Defendant’s argument that the State was required to present the 4 same testimony in the de novo district court trial as it did in the magistrate court trial. 5 Defendant cites to no authority in support of this contention. This Court will not 6 consider propositions that are unsupported by citation to authority. See ITT Educ. 7 Servs., Inc. v. Taxation & Revenue Dep’t , 1998-NMCA-078, ¶ 10, 125 N.M. 244, 959 8 P.2d 969. We also disagree with Defendant ’s argument that the State was required to 9 subpoena Nuno as a witness b ecause his testimony was crucial. [MIO 7] We find no 10 indication in the record, and Defendant does not argue, that the State made any 11 representations that it would call Nuno as a witness at the district court trial. Cf. State 12 v. Candelaria , 2008-NMCA-120, ¶¶ 20-21, 144 N.M. 797, 192 P.3d 792 (rejecting the 13 state’s argument that it had no duty to subpoena the complaining officer where the 14 state made representations that it would make the officer available for trial and the 15 defendant reasonably relied on those representations). We therefore reject 16 Defendant’s argument that the State had a duty to subpoena Nuno. 17 Finally, Defendant argues that the districtcourt erred in finding that the State 18 was not required to file a w itness list in this case. Rule 5-501(A)(5) NMRA requires 197 the State to provide the defense with a list of all witnesses which the prosecutor 1 intends to call at trial. In this case, th ere is no indication that the State complied with 2 this requirement. However, we do not be lieve that Defendant was prejudiced by the 3 State’s failure to provide a witness list. See State v. Manus, 93 N.M. 95, 104, 597 4 P.2d 280, 289 ( 1979) (stating th at a defendant must show prejudice from the state’s 5 failure to comply with disclosure rules), overruled on other grounds by Sells v. State , 6 98 N.M. 786, 653 P.2d 162 (1979). There were no surprise witnesses in the de novo 7 district court trial. The witnesses at th e district court trial had appeared at the 8 magistrate court trial. See State v. Quintana , 86 N.M. 666, 668-69, 526 P.2d 808, 9 810-11 (Ct. App. 1974) (stating that where the defense knew of the existence of the 10 witnesses before trial, there was substantial compliance with the rule). Defendant also 11 argues that he was prejudicedby the State’s failure to provide a witness list because 12 he was not aware until trial that the State did not plan to call Nuno as a witness. [MIO 13 7-8] However, as Defendant represents th at Nuno’s testimony in the magistrate court 14 trial was entirely favorable to him, wedo not think that it was reasonable for 15 Defendant to expect that the State would call him as a witness at the de novo district 16 court trial. For these reasons, we hold that Defendant was not prejudiced by the 17 State’s failure to file a witness list. 18 For these reasons, we affirm Defendant’s convictions. 198 IT IS SO ORDERED. 1

________________________________ 2 CELIA FOY CASTILLO, Judge 3 WE CONCUR: 4

_________________________________ 5 JAMES J. WECHSLER, Judge 6

_________________________________ 7 MICHAEL D. BUSTAMANTE, Judge 8