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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO STATE OF NEW MEXICO, 3 Plaintiff-Appellee, v. No. 32,902 ROBERT BOYNTON, 6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY William G. Shoobridge, District Judge Gary K. King, Attorney General Santa Fe, NM for Appellee The Sawyers Law Group James W. Klipstine, Jr. Hobbs, NM for Appellant

16 MEMORANDUM OPINION BUSTAMANTE, Judge.

1 {1} Defendant appeals his conviction for fourth degree felony larceny over $500.00, which was enhanced due to his habitual offender status. [RP 167] Our notice proposed to affirm and Defendant filed a memorandum in opposition. We remain unpersuaded by Defendant’s arguments and therefore affirm.

5 {2} Defendant continues to argue that the district court erred in allowing the State to use evidence it had not disclosed prior to trial. [DS 4; MIO 1-2] See generally State v. Desnoyers, 2002-NMSC-031, ¶ 25, 132 N.M. 756, 55 P.3d 968 (providing that we review the admission of evidence involving alleged discovery violations for abuse of discretion), abrogated on other grounds by State v. Forbes, 2005-NMSC-027, 138 10 N.M. 264, 119 P.3d 144. As provided in our notice, even if the evidence was not disclosed by the State in this case, Defendant nonetheless did have notice that the photos would be used well before trial given the State’s disclosure of the evidence in another case that was eventually dismissed. [DS 3; MIO 2] See generally In re Ernesto 14 M., 1996-NMCA-39, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a showing of prejudice.”). Given the lack of prejudice of any non-disclosure, we conclude that the district court did not abuse its discretion.

17 {3} For the reasons set forth herein and in our notice, we affirm.

18 {4} IT IS SO ORDERED.

2 MICHAEL D. BUSTAMANTE, Judge WE CONCUR:

5 TIMOTHY L. GARCIA, Judge

7 M. MONICA ZAMORA, Judge