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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 31,876 4 JOSEPH SANDOVAL, 5 Defendant-Appellant. 6

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Teddy L. Hartley, District Judge 8 Gary K. King, Attorney General 9 Albuquerque, NM 10 for Appellee 11 Jacqueline L. Cooper, Chief Public Defender 12 Nina Lalevic, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15

MEMORANDUM OPINION 16 KENNEDY, Judge. 172 Joseph Sandoval (Defendant) appeals his conviction for DWI. We proposed 1 to affirm in a calendar notice, and Defendant has responded with a memorandum in 2 opposition and a motion to amend the docketing statement. We have carefully 3 considered Defendant’s arguments, but we find them unpersuasive. We deny 4 Defendant’s motion, and we affirm Defendant’s conviction. 5 Defendant was stopped after making a wide turn. According to the tape log of 6 the trial, the officer testifie d that Defendant “turned left of center,” and “went into the 7 oncoming traffic.” [RP 76] Defendant does not contend th at this was not included in 8 the officer’s testimony. Instead, Defendantclaims that the facts in the docketing 9 statement do not refer to that testimony, and this Court cannot rely on them. We point 10 out that factual recitations in the docketi ng statement are accepted as true unless the 11 record on appeal shows otherwise. State v. Calanche , 91 N.M. 390, 392, 574 P.2d 12 1018, 1020 (Ct. App. 1978). Here, the reco rd on appeal shows that the officer’s 13 testimony was not limited to Defendant maki ng a wide turn, but also included the 14 officer’s observations that, when Defendant turned, he turned left of center and “went 15 into the oncoming traffic.” [RP 76] As di scussed in our calendar notice, this provided 16 reasonable suspicion that Defendant was breaking or had broken the law. Therefore, 17 the district court correctly determined th at the officer had reasonable suspicion to 18 conduct the stop. To the extent that De fendant claims the officer was too far away 193 to observe Defendant’s driving, it was for th e district court to determine the credibility 1 of the witnesses. 2 Defendant continues to claim that the evidence was insufficient to support his 3 conviction. Defendant again suggests that , because the video had no audio, it was not 4 possible to know what happened during the fiel d sobriety tests. The officers testified 5 that Defendant had slurred speech, bloodshot eyes, smelled of alcohol, and admitted 6 to drinking. The district court watched the videotape and heard testimony that the 7 results of the tests indicated Defendant was under the influence of alcohol. The 8 district court was presented with eviden ce that Defendant’s BAC was over the legal 9 limit. In addition, the district court heard testimony from Defendant, including his 10 claim that he told the officer he had not been drinking alcohol, and his explanations 11 for problems he had with the te sts. [RP 78] It was the duty of the district court to 12 decide whether a particular witness’s testimony was credib le to determine the weight 13 to be given to the evidence and to resolv e any conflicts in the testimony presented by 14 the parties. See State v. Marquez , 2008-NMCA-133, ¶ 18, 145 N.M. 31, 193 P.3d 15 578. The evidence presente d to the district court was sufficient to support 16 Defendant’s conviction. 17 Defendant seeks to amend his docketi ng statement to include two claims. 18 Defendant also raises a third issue that was not included in his docketing statement. 194 Issues raised by an appellateattorney after picking through the record are disfavored. 1 State v. Moore , 109 N.M. 119, 128-29, 782 P.2d 91, 100-01 (Ct. App. 1989), 2 overruled on other grounds by State v. Salgado , 112 N.M. 537, 817 P.2d 730 (Ct. 3 App. 1991). Issues that are not viable are not “deserving of being added to the 4 docketing statement.” Moore , 109 N.M. at 129, 782 P.2d at 101. In order to be 5 included in an amendment of the docketing statement, an issue must be either properly 6 preserved or allowed to be raised for th e first time on appeal, and the issue must be 7 arguable or viable as opposed to devoid of merit. Id. 8 Defendant claims that the State violated discovery rules by failing to provide 9 the video until the morning of the trial in ma gistrate court. [MIO 8] Defendant made 10 an objection and was allowed to view the video. Defense counsel, State’s counsel, 11 and the magistrate district judge viewed th e video together. [MIO 3] Defense counsel 12 then unsuccessfully objected to the fact th at the video had no audio. Defendant was 13 convicted in magistrate court. When th e case was appealed to the district court, 14 Defendant objected to admission of the vi deo because there was no audio. [RP 77] 15 Prejudice from late disclosure of eviden ce occurs when the ev idence is material, 16 and the disclosure is so late that the defendant’s preparation for trial is undermined. 17 State v. Harper , 2011-NMSC-044, ¶ 20, 150 N.M. 745, 266 P.3d 25. Here, the 18 magistrate court allowed Defe ndant an opportunity to view the video before the trial 195 in that court. In addition, Defendant was well aware of the video, its contents, and the 1 fact that there was no audio on the video by the time the case went to trial in the 2 district court. Defendant was not prejudiced and, therefore, this issue is not viable. 3 Defendant claims that the State failed to prove that Defendant drove a car and 4 that within three hours of driving, his BAC was .08. [MIO 8] There is nothing to 5 indicate that this issue was brought to the attention of the district court. Because the 6 issue was not preserved, we deny Defe ndant’s motion to amend his docketing 7 statement to include this issue. 8 Defendant argues that his counsel was in effective for failing to ask for a jury 9 trial in the district court. According to De fendant, the case was first set for a jury trial, 10 but his attorney received a message that a motion needed to be filed in order for 11 Defendant to have a jury trial. [MIO 10] Defendant claims that his attorney was not 12 able to file a motion in time, but also concedes that no objection was made to the 13 bench trial. [Id.] First, the issue was not preserved. Second, the contentions made 14 by Defendant are not supported by the record. “Matters not of record present no issue 15 for review.” State v. Hunter , 2001-NMCA-078, ¶ 18, 131 N.M. 76, 33 P.3d 296. 16 Third, Defendant has not demonstrated that hi s counsel’s failure to request a jury trial 17 fell below the conduct of a reasonably compet ent attorney or that he was prejudiced 18 by his counsel’s actions. Finally, give n the evidence presented in support of 196 Defendant’s conviction, the issue is not vi able because the fact that Defendant was 1 convicted by a judge rather than a jury does not amount to re versible error. See State 2 v. Cruz , 110 N.M. 780, 781, 800 P.2d 214, 215 (Ct. App. 1990). Our conclusion does 3 not preclude Defendant from bringing a hab eas corpus proceeding in the future. 4 We deny Defendant’s motion to amend the docketing statement. For the 5 reasons discussed in this Opinion and in our calendar notice, we affirm Defendant’s 6 conviction. 7 IT IS SO ORDERED. 8

_______________________________ 9 RODERICK T. KENNEDY, Judge 10

WE CONCUR: 11

___________________________ 12 JONATHAN B. SUTIN, Judge 13

___________________________ 14 TIMOTHY L. GARCIA, Judge 15