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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om the official paper ve rsion 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. 34,265 4 FRANK COSTELON, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY 7 Fernando R. Macias, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Jorge A. Alvarado, Chief Public Defender 12 Tania Shahani, Assistant Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 GARCIA, Judge. 17 {1} Frank Emanuel Costelon (Defendant) appeals from the order dismissing his 182 motion to set aside the judgment and se ntence convicting him for distribution of 1 marijuana. This Court’s first notice proposed to affirm. Defendant filed a 2 memorandum opposing this Court’s proposed disposition and moved to amend his 3 docketing statement. Having given due consideration to Defendant’s arguments in 4 opposition, we affirm. Moreover, Defendant’s motion to amend his docketing 5 statement is DENIED

. 6 {2} Initially, we note that a party responding to a proposed disposition of this Court 7 must point out specific errors in fact or law. See Hennessy v. Duryea , 8 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have repeatedly 9 held that, in summary calendar cases, th e burden is on the party opposing the proposed 10 disposition to clearly point out errors in f act or law.”). In response to this Court’s 11 calendar notice, appellate counsel include d a discussion describing the facts and 12 proceedings. A number of the facts provide d are attributed to written and verbal 13 communications with Defendant, and counsel has not indicated whether these facts 14 were actually before the district court. Unlike trial counsel, we note that a defendant 15 is not an officer of th e Court and is not bound by a duty of candor towards the 16 tribunal. Moreover, counsel doe s not point out whether any of the facts asserted are 17 contrary to those relied on by this Court in our notice of proposed disposition. We 18 suggest that repetition of facts known to this Court and inclusion of information that 193 has not been asserted as being before the district court is not an efficient use of 1 counsel’s or this Court’s time and is of little use in assessing whether this Court 2 should proceed with its proposed summary disposition. We encourage counsel to 3 follow the rules of appellate pro cedure and case law more closely. 4 {3} Defendant continues to argue that the district court erred in denying his Rule 5 1-060 NMRA motion to set aside the judgmen t and conviction on gr ounds that he was 6 denied effective assistance of counsel when his trial counsel failed to file a motion to 7 suppress evidence after contraband was f ound on his person while he was subjected 8 to a strip search at the Doña Ana County De tention Center. This Court’s first notice 9 proposed to affirm on the basis of the district court’s findings that Defendant was not 10 strip searched, but rather, the contraband found taped to his underarms was visually 11 observed while he was changing clothes during the booking process. [RP 357, 370, 12 454] See Duncan v. Kerby , 1993-NMSC-011, ¶ 7, 115 N.M. 344, 851 P.2d 466 13 (recognizing that we review the district court’s factual findings to determine if 14 substantial evidence supports the court’s findings). 15 {4} The memorandum in opposition relies on De fendant’s version of the facts as 16 communicated by him to defense counselvia written corres pondence and verbal 17 communications. There is no indication thatany of these facts were presented as 18 evidence in the record. Evenassuming they were, the district court judge found that 194 Defendant was not strip searched, and the record appears to support his findings. [RP 1 357, 370, 454] Thus, the district court apparently conclude d that Defendant’s 2 testimony was not credible, and this Court de fers to the district court on matters of 3 credibility. See State v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 4 (recognizing that it is for the fact-finder [in this case, the judge] to resolve any conflict 5 in the testimony of the witnesses and to determine where the weight and credibility 6 lay). Given that it is for the trial court to weigh evidence and assess credibility, we 7 affirm the district court’s decision that trial counsel was not in effective for failing to 8 file a motion to suppress. See State v. Chandler , 1995-NMCA-033, ¶ 35, 119 N.M. 9 727, 895 P.2d 249 (indicating that trial counselis not ineffective for failing to make 10 a motion that is not supported by the record). 11 {5} Defendant has also moved this Court to amend his docketing statement pursuant 12 to Rule 12-208(E) NMRA to add a new issu e: whether trial coun sel was ineffective 13 on remand. The essential requirements to show good cause for our allowance of an 14 amendment to an appellant’s docketing stat ement are: (1) that the motion be timely, 15 (2) that the new issue sought to be raisedwas either (a) properly preserved below or 16 (b) allowed to be raised for the first time on appeal, and (3) the issues raised are 17 viable. See State v. Moore , 1989-NMCA-073, ¶ 42, 109 N.M. 119, 782 P.2d 91, 18 overruled on other grounds by State v. Salgado , 1991-NMCA-044, 112 N.M. 537, 817 195 P.2d 730. For the reasons that follow, we deny Defendant’s motion to amend the 1 docketing statement on the ground that the issue raised is not a viable appellate issue. 2 {6} Defendant argues that trial counsel was ineffective on remand for failing to 3 investigate if Defendant’s claim was actually meritorious. In particular, Defendant 4 asserts that trial counsel failed to: 1) i nvestigate Dona Ana County Detention Center’s 5 policies and procedures at the time of Defe ndant’s arrest; 2) subpoena previous trial 6 counsel; 3) retain an expert witness to testify about what a reasonably competent 7 attorney would have done in similar ci rcumstances; or 4) raise Defendant’s Brady v. 8 Maryland , 373 U.S. 83 (1963), violation for withholding evidence. [DS 16] However, 9 because we affirm the distri ct court’s finding that Defendant was not strip searched, 10 the facility’s policies and procedures and case law regarding the propriety of strip 11 searches are irrelevant. 12 {7} Insofar as Defendant argues the State withheld evidence from him in 2003, we 13 are not persuaded Defendant presents a viab le issue. [DS 17] De fendant contends that 14 the State failed to disclose an incident report in 2003 that was later provided to him 15 through an open records request. [DS 18] De fendant asserts that the initial discovery 16 provided by the State contained Bates-stampedpage numbers, and that a gap existed 17 in the numbering where the incident report was likely taken out and deliberately 18 withheld by the prosecutor. [DS 18] Defe ndant does not indicate what information 196 was contained in the alleged incident report that prejudiced him to such a degree that 1 reversible error occurred. See State v. Hoxsie , 1984-NMSC-027, ¶ 8, 101 N.M. 7, 677 2 P.2d 620 (“In the absence of prejudice, there is no reversible error.”), rev’d on other 3 grounds, Gallegos v. Citizens Ins. Agency , 1989-NMSC-055, 108 N.M. 722, 779 P.2d 4 99. 5 {8} Given that Defendant has failed to demonstrate a viable appellate issue, his 6 motion to amend the docketing statement is DENIED . With respect to the issues 7 raised in Defendant’s original docketing statement and argued in his memorandum in 8 opposition, we affirm for the reasons stat ed above and in th is Court’s notice of 9 proposed disposition. 10 {9} For all of these reasons and those stated in this Court’s first notice, we affirm. 11 {10} IT IS SO ORDERED. 12

_________________ _______________ 13 TIMOTHY L. GARCIA, Judge 14 WE CONCUR: 15

_______________________________ 16 MICHAEL D. BUSTAMANTE, Judge 177 _______________________________ 1 JONATHAN B. SUTIN, Judge 2