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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. A-1-CA-37657 4 BENJAMIN B. LERMAN, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Fred T. Van Soelen, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 Martha Anne Kelly, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Gary C. Mitchell, P.C. 14 Gary C. Mitchell 15 Ruidoso, NM 16 for Appellant 17 MEMORANDUM OPINION 18 VANZI, Judge. 192 {1} Defendant appeals his conviction of childsolicitation following a jury trial. [DS 1 1] This Court issued a notice of proposedsummary disposition, proposing to affirm. 2 [CN 10-11] Defendant has filed a memo randum in opposition to that disposition, 3 which we have duly considered. As we are unpersuaded by Defendant’s arguments, 4 we affirm. 5 {2} With regard to various constitutional challenges to the statute under which he 6 was convicted, Defendant’s memorandum inopposition invites this Court to overrule 7 its opinion in State v. Ebert , 2011-NMCA-098, 150 N.M. 576, 263 P.3d 918. [MIO 8 unnumbered page 3] For th e reasons expressed in Ebert , itself, we find Defendant’s 9 arguments regarding free speech, the co mmerce clause, and due process to be 10 unpersuasive. We decline Defendant’s invitation to revisit that opinion. 11 {3} Defendant also continues to assert th at criminal sexual communication is a 12 lesser included and more specific offense than child solicitation. [MIO unnumbered 13 pages 9-10] In doing so, Defendant continues to assert thatthe elements of criminal 14 sexual communication are a subset of the elem ents of child solicitation pursuant to the 15 modified Blockburger test articulated in our case law. [Id.] As our notice of proposed 16 summary disposition pointed out, however, child solicitation—unlike criminal sexual 17 communication—does not require that Defendant have sent a child “obscene images 18 of [his] intimate parts.” [CN 3] As a re sult, the elements of criminal sexual 19 communication are not a subset of the elem ents of child solicitation. Having failed to 203 address this central flaw in his own reas oning despite the extended discussion of that 1 flaw in our notice of proposed summary disposition [CN 3-5], Defendant has failed 2 to meet his burden on appeal. See State v. Mondragon , 1988-NMCA-027, ¶ 10, 107 3 N.M. 421, 759 P.2d 1003 (explaining that a memorandum in opposition to summary 4 disposition “must come forward and specifically point out errors of law and fact”). 5 {4} Defendant also continues to assert that the district court should have instructed 6 the jury with regard to the defense of entrapment, relying upon “his arguments set 7 forth in his docketing statement.” [MIO unnumbered page 11] Repetition of earlier 8 arguments, however, does not satisfy a party’s burden in responding to a summary 9 calendar notice. See id

. 10 {5} Finally, counsel complains that this Court’s notice of summary disposition 11 “berated [him] for not providing [this] Court with the [a]ffidavits” supporting a search 12 warrant. [MIO unnumbered page 11] In fact, this Court admonished counsel for his 13 failure to comply with Rule 12-208 NMR A, which neither requires nor permits the 14 attachment of exhibits to a docketing statem ent. [CN 9-10] Instead, that rule requires 15 trial counsel to summarize the material facts. Rule 12-208(D)(3). Defendant’s 16 docketing statement did not do so, as dem onstrated by the fact that his memorandum 17 in opposition now summarizes two single-spacedpages of additional relevant facts. 18 [MIO unnumbered page 12-13] 194 {6} Unless counsel believed both that this Court would simply overlook the facts 1 relied upon by the district court and also that the State would fail to bring those facts 2 to our attention in its own memorandum inopposition, his omission of relevant facts 3 was an exceedingly poor appellate strategy. And, as pointed out in our notice of 4 proposed summary disposition, it is also a strategy that exposes counsel to the risk of 5 sanction for contempt. [CN 10] 6 {7} Having reviewed the additional facts contained in Defendant’s memorandum, 7 we do not agree with his characterization th at the police “stopped a person for no other 8 reason than walking through a public mall at a reasonable hour, having a cell phone 9 and looking nervous.” [MIO unnumbered page 17] Instead, we note that Defendant’s 10 memorandum does not assert any factual error in our notice of proposed summary 11 disposition, which described the months-l ong investigation that preceded Defendant 12 setting up a meeting at a shopping mall with a sheriff’s deputy portraying herself as 13 a 15-year-old girl before arriving “roughly on time, walk[ing] past the meeting place 14 twice, [being] seen sending a text messageto the deputy who was portraying the 15- 15 year-old girl, and then in apparent re sponse to her sending a new meeting location 16 proceed[ing] to that new loca tion.” [CN 6, 9; See MIO 12- 13] We conclude that the 17 facts known to the deputies on the scene weresufficient to support a reasonable belief 18 that a crime was being committed and that Defendant was the person committing that 195 crime. See Benavidez v. Shutiva , 2015-NMCA-065, ¶ 12, 350 P.3d 1234 (defining 1 probable cause). 2 {8} The judgment and sentence of the district court is affirmed. 3 {9} IT IS SO ORDERED. 4

__________________________________ 5 LINDA M. VANZI, Judge 6 WE CONCUR: 7

_________________________________ 8 J. MILES HANISEE, Judge 9

_________________________________ 10 JENNIFER L. ATTREP, Judge 11