This decision was not selected for publication inthe New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions. Please also note that this electronic decision may contain computer-g enerated errors or other deviations from the official paper version filed by the Supreme Court. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. 36,006 4 JOSEPH STEWARD, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 7 Matthew E. Chandler, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Bennett J. Baur, Chief Public Defender 12 Will O’Connell, Assistan t Appellate Defender 13 Santa Fe, NM 14 for Appellant 15 MEMORANDUM OPINION 16 ZAMORA, Judge. 17
{1} Joseph Steward (Defendant) appeals his convictions for driving while under the 18 influence (DWI) and assault on the basis th at there was insufficient evidence. This 19 Court’s calendar notice proposed summaryaffirmance, and Defendant filed a 202 memorandum in opposition to the proposed disposition. Not persuaded by 1 Defendant’s arguments, we affirm. 2
{2} Defendant continues to argue that th ere was no evidence he drove his pickup 3 truck while intoxicated because the officer was unable to testify that he saw Defendant 4 drive or that Defendant drank to the point of impairment, and no field sobriety tests 5 or blood alcohol tests were performed. [MIO5-6] Defendant’s ne ighbor testified that 6 she witnessed him rev up his engine, drive over a log, hit a fence, and damage the 7 fence, before driving off and then returning after several minutes. [RP 95, 96] The 8 officer on the scene also testified that De fendant smelled of al cohol and had bloodshot 9 watery eyes. [RP 89-90] He further te stified that Defendant became loud and 10 belligerent when asked about the threats made to his neighbors, and that Defendant 11 told the officer if he took out his gun they “would get it on.” [RP 91] The neighbor 12 witnessed Defendant driving the truck, after which there was circumstantial evidence 13 to infer that Defendant drove while intoxicated. See State v. Mailman , 14 2010-NMSC-036, ¶ 28, 148 N.M. 702, 242 P.3d 269 (“Actual physical control is not 15 necessary to prove DWI unless there are no witnesses to the vehicle’s motion and 16 insufficient circumstantial evidence to in fer that the accused actually drove while 17 intoxicated.” (emphasis omitted)). Defendant does not dispute the evidence relied 18 upon in the notice of proposed disposition. See State v. Mondragon , 1988-NMCA- 193 027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stati ng that “[a] party responding to a 1 summary calendar notice must come forward and specifically point out errors of law 2 and fact”), superceded in statute on other groundsas stated in State v. Harris , 2013- 3 NMCA-031, 297 P.3d 374. We therefore concl ude that there was sufficient evidence 4 from which the fact finder could determine that Defendant was DWI. 5
{3} Defendant further argues th e testimony that he made an idle threat while 6 standing fifty yards away fro m the neighbor’s family fails to establish the family 7 reasonably feared an immediate battery. [MIO 6] He argues that since this was the 8 only evidence offered to show that an assau lt occurred, the eviden ce fails to establish 9 an essential element of the crime. [Id.] We disagree. No t only was there evidence that 10 Defendant yelled and threatenedto shoot them all, but th e neighbor testified she was 11 concerned for herself and her family who were all standing outside. [RP 96] 12 Defendant does not dispute this eviden ce relied upon in the proposed disposition. See 13 Mondragon , 1988-NMCA-027, ¶ 10. Based on this ev idence, we conclude that there 14 was sufficient evidence to support De fendant’s convicti on for assault. See State v. 15 Salgado , 1999-NMSC-008, ¶ 25, 126 N.M. 691, 974 P.2d 661 (stating that 16 “substantial evidence” is defined as “suc h relevant evidence as a reasonable mind 17 might accept as adequate to support a c onclusion” (internal quotation marks and 18 citation omitted)). 194 {4} Last, Defendant contends that the Stat e failed to prove the validity of the 1 alleged prior convictions usedto enhance his DWI convic tion. [MIO 6] He contends 2 that the documentation provided by the State only established that he was previously 3 charged with the offense. [Id.] Because De fendant did not raise this issue in his 4 docketing statement, we construe it as a motion to amend the docketing statement. In 5 cases assigned to the summary calendar, this Court will grant a motion to amend the 6 docketing statement to include additional issues if the motion (1) is timely, (2) states 7 all facts material to a consideration of the new issues sought to be raised, (3) explains 8 how the issues were properly preserved or why they may be raised for the first time 9 on appeal, (4) demonstrates just causeby explaining why the issues were not 10 originally raised in the doc keting statement, and (5) complies in other respects with 11 the appellate rules. See State v. Rael , 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100 12 N.M. 193, 668 P.2d 309. 13
{5} This Court will deny motions to amend thatraise issues that are not viable, even 14 if they allege fundamentalor jurisdictional error. See State v. Moore , 15 1989-NMCA-073, ¶¶ 36-51, 109 N.M. 119, 782 P.2d 91, superceded by rule on other 16 grounds as recognized in State v. Salgado , 1991-NMCA-044, 112 N.M. 537, 817 P.2d 17 730. Defendant has not explained whether the issue was properly preserved or why 18 it can be raised for the first time on appeal. See Rael , 1983-NMCA-081, ¶¶ 7-8. Nor 195 has Defendant cited a case st anding for the proposition that documentation such as a 1 dated, file-stamped judgment and sentence properly verifying prior convictions is not 2 evidence of a conviction. [RP 110-127] See In re Doe , 1984-NMSC-024, ¶ 2, 100 3 N.M. 764, 676 P.2d 1329 (stating that we are entitled to assume, when arguments are 4 unsupported by cited authority, that supporti ng authorities do not exist). Because the 5 issue Defendant seeks to add to his docke ting statement is not viable, the motion to 6 amend is denied. See Moore , 1989-NMCA-073, ¶¶ 36-51. 7
{6} For all of these reasons, and those stated in the notice of proposed disposition, 8 we affirm Defendant’s convictions. 9
{7} IT IS SO ORDERED. 10

11 M. MONICA ZAMORA, Judge 12 WE CONCUR: 13

14 MICHAEL E. VIGIL, Judge 15

16 TIMOTHY L. GARCIA, Judge 17