This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions.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 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. 32,715 4 PATRICK URIAH FOLEY, 5 Defendant-Appellant. 6
APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY 7 Lisa B. Riley, District Judge 8 Gary K. King, Attorney General 9 Albuquerque, NM 10 for Appellee 11 Robert E. Tangora, L.L.C. 12 Robert E. Tangora 13 Santa Fe, NM 14 for Appellant 15
MEMORANDUM OPINION 162 WECHSLER, Judge. 1 {1} Defendant Patrick Foley appeals his conviction for re sidential burglary. In our 2 notice of proposed summary disposition, we proposed to affirm. Defendant has filed 3 a memorandum in opposition and a motion to amend the docketing statement, both of 4 which this Court has duly considered. As we do not find De fendant’s arguments 5 persuasive, we deny his motion to amend and we affirm his conviction. 6 Denial of the Motion for a Directed Verdict 7 {2} Defendant contends that the district c ourt erred in refusing to grant his motion 8 for a directed verdict on the charge of residential burglary. [DS unnumbered page 2] 9 In our notice of proposed summary dispositi on, we proposed to hold that there was 10 sufficient evidence to support the underlying ch arge, such that the district court did 11 not err in denying the motion. See State v. Sena , 2008-NMSC-053, ¶ 10, 144 N.M. 12 821, 192 P.3d 1198 (stating the standard of review for a motion for a directed verdict). 13 In Defendant’s memorandum in opposition, he continues to argue, pursuant to State 14 v. Franklin , 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982, and State v. Boyer , 1985- 15 NMCA-029, 103 N.M. 655, 712 P.2d 1, that th e evidence was insufficient. [MIO 6-8] 16 As he presents no new facts or authority th at would persuade this Court that reversal 17 is warranted on this basis, he has failed to demonstrate reversible error. 18 Discovery Violation 193 {3} Defendant contends that the district court erred in admitting into evidence 1 photographs that were not disclosed to him until after the trial had begun. [DS 2 unnumbered page 2] In our notice of propos ed summary disposition, we proposed to 3 hold that the district court did not abuse its discretion in admitting the photographs 4 because Defendant did not demonstrate thatthe late disclosure prejudiced him. See 5 State v. Harper , 2011-NMSC-044, ¶ 16, 150 N.M. 745, 266 P.3d 25 (stating that “the 6 mere showing of violation of a discovery order, without a showing of prejudice, is not 7 grounds for sanctioning a party”). 8 {4} In his memorandum in opposition, Defendant now explains that in fact the 9 photographs were made available to him in the State’s general “open-file” disclosure, 10 but that he simply failed to take advantage of the disclosure to review the materials 11 that the State had in its possession. [MIO 3] He provides no authority to suggest that 12 this open-file disclosure does not constitutea proper disclosure of discovery. As he 13 has failed to establish that the State committe d a discovery violation, the district court 14 did not err in refusing to sanction the State. 15 {5} In addition, even if there had beena discovery violation, Defendant’s 16 memorandum in opposition fails to demonstrate th at he established in the district court 17 that he was prejudiced by the violation. Heasserts that he was prejudiced because if 18 he had known about the photogr aphs, he would have b een able to provide an 194 explanation for the broken window that theydepicted. [MIO 6] However, Defendant 1 was aware that the State intended to in troduce evidence of a broken window, as this 2 information was contained in the criminal complaint and in police reports. [RP 14; DS 3 unnumbered page 2] In additi on, he was apprehended inhis uncle’s house in the 4 course of the burglary, and he himself info rmed a police officer that he had broken the 5 window. [RP 14] Because Defendant was aware of the fact of the broken window, he 6 would have been able to provide an explan ation, regardless of any failure to disclose 7 the photographs. Therefore, he has failed to demonstrate prejudice. See id . ¶ 20 8 (indicating that prejudice is not clearly s hown when the “defendant has knowledge of 9 the contents of the unproduced evidence”). 10 Admission of a Videotape 11 {6} In his docketing statement, Defendant ar gued that the district court erred in 12 admitting into evidence a copy of a videot aped interview of him without proof of 13 authenticity. [DS unnumbered page 3] We proposed to fi nd no error, and Defendant 14 has failed to respond to this Court’s analysis of this issue in his memorandum in 15 opposition. Accordingly, he has abandoned the claim of error. See State v. Johnson , 16 1988-NMCA-029, ¶ 8, 107 N.M. 356, 758 P.2d 306 (indicating that when a case is 17 decided on the summary calendar, an issu e is deemed abandoned where a party fails 18 to respond to the proposed disposition of the issue). 195 Motion to Amend the Docketing Statement 1 {7} Defendant moves to amend th e docketing statement to add a claim that his trial 2 counsel was ineffective for failing to revi ew the photographs that were provided by 3 the State in its open-file discovery. [MIO 1, 8-11] However, heacknowledges that in 4 order to establish a prima facie case of ineffective assistance of counsel on direct 5 appeal, he is required to demonstrate that trial counsel’s failure prejudiced him. See 6 State v. Arrendondo, 2012-NMSC-013, ¶ 38, 278 P.3d 517 (“For a successful 7 ineffective assistance of counsel claim, a de fendant must first demonstrate error on the 8 part of counsel, and then show that the e rror resulted in prejudice.” (internal quotation 9 marks and citation omitted)). As we have already explained, Defendant cannot 10 demonstrate that the failure to review the photographs prejudiced him, since he and 11 his counsel were already aware of the ev idence of the broken window. To the degree 12 that there may have been some expl anation for the broken window other than 13 Defendant’s having broken it, counsel was on notice that such an explanation should 14 be produced for the jury, even withouthaving reviewed the photographs. Because 15 Defendant fails to demonstrate prejudi ce based on the failure to review the 16 photographs, Defendant’s motion to amend the docketing statement does not present 17 this Court with an issue that is viable. We therefore deny his motion. See Rule 12- 186 208(F) NMRA (“The Court of Appeals may, upon good cause shown, allow the 1 amendment of the docketing statement.”); see also State v. Sommer , 2 1994-NMCA-070, ¶ 11, 118 N.M . 58, 878 P.2d 1007 (denying the defendant’s motion 3 to amend the docketing statement when th e argument sought to be raised was not 4 viable). 5 {8} Accordingly, for the reasons stated in this opinion and in our notice of proposed 6 summary disposition, we affirm. 7 {9} IT IS SO ORDERED. 8

__________ ______________________ 9 JAMES J. WECHSLER, Judge 10
WE CONCUR: 11

________________________________ 12 MICHAEL D. BUSTAMANTE, Judge 13

________________________________ 14 JONATHAN B. SUTIN, Judge 15