This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6

STATE OF NEW MEXICO , 7 Plaintiff-Appellee, 8

v. NO. 30,760 9 EDWARD DAVIS , 10 Defendant-Appellant. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Neil C. Candelaria, District Judge 13 Gary K. King, Attorney General 14 Santa Fe, NM 15 for Appellee 16 Law Office of Jamison Barkley, LLC 17 Jamison Barkley 18 Santa Fe, NM 19 for Appellant 20 MEMORANDUM OPINION 21 VIGIL, Judge. 222 Defendant appeals his conviction for criminal sexual contact of a minor. In our 1 notice, we proposed to affirm the convic tion. Defendant has timely responded to our 2 proposal, along with a motion to amend the docketing statement to include additional 33 issues. We deny the motion to amend the docketing statement as it does not comply 1 with 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). We have considered Defe ndant’s arguments against our proposed 4 affirmance and not being persuaded, we affirm. 5 In our notice, we proposed to conclude that the district court did not err in 6 excluding the testimony of Detective Chadwell, who had investigated a previous 7 allegation of criminal sexual contact that the victim had allegedly made against a 8 different person. We proposed to concludethat the district court did not abuse its 9 discretion pursuant to State v. Johnson , 1997-NMSC-036, 123 N.M. 640, 944 P.2d 10 869. In response, Defendant argues that the exclusion of Detective Chadwell’s 11 testimony violated his right to confront th e witnesses against hi m. Defendant must 12 show that the evidence was relevant or necessary to his defense before his 13 confrontation rights are at issue. Cf. State v. Stephen F., 2007-NMCA-025, ¶ 18, 141 14 N.M. 199, 152 P.3d 842, aff’d 2008-NMSC-037, 144 N.M. 360, 188 P.3d 84. As we 15 pointed out in our calendar notice, Defendant failed to make any showing regarding 16 how the evidence was relevant or necessary to his defense. 17 Defendant appears to be arguing that he sought to have evidence of prior 18 allegations admitted, which is different from evidence of se xual history. The alleged 19 allegations, however, re late to sexual conduct and are included in the ambit of the 204 Rape Shield Law. See State v. Casillas , 2009-NMCA-034, ¶¶ 25, 26, 145 N.M. 783, 1 205 P.3d 830. Defe ndant relies on Manlove v. Sullivan , 108 N.M. 471, 475 n.2, 775 2 P.2d 237, 241 n.2 (1989), to make the distinction. Manlove was decided years before 3 the Supreme Court set out the current test in Johnsonfor evaluating when such 4 evidence is admissible. Neverthe less, the distinction made in Manlove between sexual 5 conduct and evidence of fabrication is found in Johnson

. 6 It simply appears here that Defendant was unable to make a clear enough 7 showing that he sought the evidence solely to attack the veracity of the victim’s 8 allegations. The evidence to be pres ented here is nothing like that in Manlove . It was 9 the testimony of a police detective who was trying through interview of the victim to 10 verify an allegation made by her mother of sexual contact by another person. The 11 victim never verified the allegation. De fendant has not shown how that evidence is 12 relevant or necessary to his defense. 13 Defendant argues that even assuming that Johnsonapplies, the first factor does 14 not weigh against him. The first factor re quires a clear showing that the complainant 15 committed the prior acts. 1997-NMSC-036, ¶ 27. In its arguments to the district 16 court, the State pointed out that it was notthe victim here, but her mother who made 17 the prior allegations. [RP 191] In fact, the victim never disclosed any prior sexual 18 activity. Allegations made by the victim’s mother were referred to CYFD, but the 19 victim herself never reporte d any sexual activity. Defendant argues that saying that 205 the victim did not make the prior allegations is impractical and unworkable. He 1 argues that children often report to a parent who then reports to authorities. But, in 2 those cases, the authorities’ follow-up corroborat es a child’s report to its parent. Here, 3 the victim did not follow up her mother’s allegation with a report of her own 4 regarding sexual activity. Thus, there is no clear showing that the victim committed 5 the prior acts. 6 We continue to hold that the districtcourt did not abuse its discretion in 7 applying the Johnsonfactors and excluding the evidence. 8 The two issues regarding instructing th e jury on the meaning of “breast” have 9 not been addressed in the memorandum in re sponse to the calendar notice. Therefore, 10 we deem them to have been abandoned. State v. Salenas , 112 N.M. 268, 269, 814 11 P.2d 136, 137 (Ct. App. 1991). 12 For the reasons stated herein and inthe notice of proposed disposition, we 13 affirm. 14 IT IS SO ORDERED. 15

_______________________________ 16 MICHAEL E. VIGIL, Judge 17 WE CONCUR: 18

_________________________________ 196 CELIA FOY CASTILLO, Chief Judge 1

_________________________________ 2 JAMES J. WECHSLER, Judge 3