OPINION
Although originally charged with aggravated burglary, contrary to NMSA 1978, § 30-16-4(C), defendant, was convicted of breaking and entering in violation of NMSA 1978, § 30-14-8 (Cum.Supp.1982). His docketing statement raised two issues upon which we proposed summary affirmance. NMSA 1978, Crim., Child.Ct., Dom. Rel. & W/C App.R. 207 (Spec.Supp.1983). His timely memorandum in opposition dоes not contest the proposed disposition on these issues, but rather constitutes a motion to amend the docketing statement to raise an additional issue. For the reasons which follow, we deny the motion to amend and affirm the judgment and sentence.
The original docketing statеment states these basic facts of the case: A thirteen-year-old girl awakened one night to find a partially-clothed man in her bed. The girl struggled with the man and hit him in the face with a hammer; then went to get her parents. They ordered the man out of the apartment and called policе. The man, bleeding from the face, put on his clothes after leaving the apartment, and left the building. There was evidence that the intruder was very intoxicated. Police officers found the defendant, with blood on his face, walking away from the apartment. They took him back to the apartment where members of the girl’s family identified him as the man found in the apartment.
Defendant testified that he had a problem with alcohol, and that he had drunk a substantial quantity of alcohol on the day in question. He remembered some of the things he did that day and night, but he had no recollection of being in the apartment. He admitted the possibility of being there, but firmly believed that he could not or would not have committed an act such as was described by the young girl.
The defense tendered the testimony of an expert witness, concerning certain effects of intoxication. The cоurt refused to admit that testimony. Defendant objected to instructing the jury on the crime of aggravated burglary, arguing that the evidence was insufficient to support the element of specific intent. The court, nevertheless, instructed on aggravated burglary and, at the request of both the State аnd the defendant, on breaking and entering. The issues raised in the original docketing statement alleged error in the exclusion of the expert testimony and error in submitting aggravated burglary to the jury.
We proposed summary affirmance of those issues because both propositions went to рroofs of a higher offense of which defendant was acquitted. Thus, any alleged error was harmless. State v. Horton,
A docketing statement is rеquired to contain “a concise, accurate statement of the case containing all facts material to a consideration of the issues raised.” NMSA 1978, Crim., Child.Ct., Dom.Rel. & W/C App.R. 205(a)(3) (Spec.Supp.1983). No issue was raised initially in the docketing statement concerning defendant’s conviсtion for breaking and entering. Accordingly, facts material to that conviction would not be expected to appear in that docketing statement. Nevertheless, the docketing statement did contain the assertion: “[The girl’s mother] stated that she did not notice the damage to thе door until the next day and could not provide a very good description of the damage that was done to the door.” Based on that sentence, defendant now has moved to amend his docketing statement to include an issue questioning sufficiency of the evidence to support the “breaking” element of breaking and entering.
Although we look with disfavor upon the addition of issues not raised in the docketing statement, see State v. Jacobs,
The appellate court may, upon its own motion or upon motion of either party and for good cause shown, order or allow an amended docketing statement, or, after the transcript of proceedings has been filed, order or allow a supplemental transcript of proceedings. The fact that counsel on appеal was not the trial counsel shall be considered by the court in determining if good cause has been shown. [Emphasis added.]
Prior cases have established that a motion to amend will be considered timely when filed prior to the expiration of the original briefing time in cases assigned to a non-summary calendar, Jacobs, supra, and prior to the expiration of the time for filing a memorandum in opposition in cases assigned to the summary calendar, State v. Norush,
Defendant’s motion to amend seeks to raise the issue of “[w]hether or not the State met the burden of proof on the element of ‘breaking’ to sustain the defendant’s conviction.” Authorities are cited for the elements of breaking and entering and for the proposition that the State has the burden of proving beyond a reasonable doubt every element of the crime charged. The grounds for the motion to amend are that trial сounsel is not appellate counsel and that appellate counsel’s review of the docketing statement finds it to have “omitted an issue that raised a jurisdictional question of fundamental error.” We quote pertinent parts of the motion to amend:
At the time the state rested their [sic] case the defendant argues there was very little evidence showing “breaking.” * * The defendant argues that the State failed to fulfill this burden in as much as they were more concerned with a conviction on the one count of aggravated burglary * * * *
The State did call [the mother] and she did testify that she did not notice the damage to the door until the next day and she could not provide a very good description of that damage.
* * * * The evidence testified to by [the mother] does not tie the defendant to the damage. Further, at least from the docketing statement and phone conversations with trial counsel and with the defendant it would seem there is little more to support the States [sic] contention. If such would be the case upon complete review of the record the defendant’s conviction could not stand. The defendant feel's that this is in fact the case and that this case should be recalendared so that the entire record can be reviewed by appellate counsel and so that this issue can be briefed for this court to consider fully.
App.R. 205(a)(3) provides that a docketing statement contain an accurate statement of all facts material to a consideration of the issues raised. App.R. 205(a)(4), (Spec.Supp.1983), then requires a statement of the issues and prohibits general conclusory statements. We deem it self-evident that the rules applicable to docketing statеments apply with equal, if not greater, force to requests to amend docketing statements and to fulfill showings of good cause that would persuade us to allow any motion to amend. See State v. Sisneros,
Finally, the motion to amend should recite the reason why the new issue was not originally raised. Our rules presuppose that trial counsel, who is required to file the docketing statement, is familiar with the case and will state such issues as are supported by the facts. Jacobs, supra. It would seem likely, in this case, that some reason must have existed to suggest to trial counsel for defendant, trial counsel for the State, the trial court, as well as the jury, that there was sufficient evidence of breaking to permit defendant’s conviction on the charge of breaking and entering. See State v. Anaya,
The motion to amend an amended docketing statement filed in this casе is deficient in the following respects: (1) It cites no authority for the proposition that the new issue is jurisdictional or fundamental error, although such authority exists. Doe, supra. (2) It does not contain all facts material to the issue. By its own contents, it admits that there was the testimony of the mother plus “little more.” What this “little more” is, we are not told. (3) It is replete with conclusory statements, not facts. A statement “that there was very little evidence” does not aid this court in evaluating an issue of insufficiency. (4) We are not told why the issue was omitted by trial counsel.
In the final analysis, defendant’s “Conclusion” that the case should be recalendared because “[djefendant states that the State failed to prove an essential element of breaking and entering” does not demonstrate, by itself, any good cause to allow the amendment. The conclusion is completеly suppositious. Because defendant assesses the evidence to be insufficient does not adequately raise an appealable issue.
Mindful of the sentiments expressed in Olguin v. State,
To recapitulate: In cases assigned to a summary calendar, a motion to amend the docketing statement (when asserting other than fundamental error or jurisdictional issues) will be granted only if:
1. It is timely;
2. It states all facts material to a consideration of the new issues attempted to be raised;
3. It states those issues and how they were preserved or shows why they did not have to be preserved;
4. It states the reason why the issues were nоt originally raised and shows just cause or excuse for not originally raising them; and
5. It complies in other respects with the appellate rules insofar as necessary under the circumstances of the case.
We expect such motions to be concise and to the point. We have little hesitation to grant motions to amend which honestly and candidly raise new issues perceived to constitute genuine reversible error, and which meet the above five criteria. We do not espouse such liberality in granting motions to amend which appear to us designed sоlely for the purpose of obtaining a limited calendar assignment regardless of the viability of any issues attempted to be raised. See State v. Toussaint,
The motion to amend in this case appears to us to fall into the latter category. While we expressly do not decide the motion on that ground, we note that the docketing statement recitation concerning the damage to the door, together with the other facts of this case, appear sufficient under the appropriate standard of appellate review to directly or inferеntially support the element of breaking by this defendant. See State v. Tovar,
The motion to amend is denied. The judgment and sentence is affirmed.
IT IS SO ORDERED.