State v. Joe

• Court: New Mexico Court of Appeals
• Decided: March 7, 2019
• Docket: A-1-CA-36672
• Status: Unpublished

Opinion

This decision was not selected for publication in the 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 Please see Rule 12-405 NMRA for restrictions on the citation of non-precedential dispositions.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-generated errors or other deviations from the official paper version filed by the Supreme Court.

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. No. A-1-CA-36672

5 PRINCE A. JOE,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 Karen L. Townsend, District Judge

9 Hector H. Balderas, Attorney General 10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 VANZI, Judge.

18 {1} Defendant appeals the revocation of his probation. We previously issued a

19 notice of proposed summary disposition, proposing to affirm. Defendant has filed a 1 memorandum in opposition. After due consideration, we remain unpersuaded. We

2 therefore affirm.

3 {2} Defendant renews his challenge to the sufficiency of the evidence to establish

4 that he violated the terms and conditions of probation. [DS 5; MIO 5-9]

5 {3} As we previously observed in the notice of proposed summary disposition, [CN

6 2-3] the State presented evidence that Defendant violated an order of protection,

7 thereby violating the terms and conditions of his probation. See State v. McGee, 2004-

8 NMCA-014, ¶ 23, 135 N.M. 73, 84 P.3d 690 (“[V]iolation of an order of protection

9 constitutes a crime[.]”). Defendant does not controvert this. [MIO 2-4, 7] Instead,

10 Defendant challenges the sufficiency of the evidence to establish that the violation

11 was willful. [MIO 1, 6-9] See In re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566,

12 66 P.3d 339 (“To establish a violation of a probation agreement, the obligation is on

13 the [s]tate to prove willful conduct on the part of the probationer so as to satisfy the

14 applicable burden of proof.”).

15 {4} Although willful conduct is a requisite, the State’s proof of a breach of a

16 material condition of probation is generally sufficient to give rise to a reasonable

17 inference in this regard; the defendant bears the burden of presenting evidence to

18 excuse non-compliance, by demonstrating that the violation was not willful. See State

19 v. Aslin, 2018-NMCA-043, ¶ 9, 421 P.3d 843 (“[O]nce the state establishes to a

2 1 reasonable certainty that the defendant violated probation, a reasonable inference

2 arises that the defendant did so willfully, and it is then the defendant’s burden to show

3 that failure to comply was either not willful or that he or she had a lawful excuse.”),

4 cert. granted, 2018-NMCERT-___ (S-1-SC-36999, June 25, 2018); State v. Parsons,

5 1986-NMCA-027, ¶ 25, 104 N.M. 123, 717 P.2d 99 (“Once the state offers proof of

6 a breach of a material condition of probation, the defendant must come forward with

7 evidence [to show that his non-compliance] was not willful.”).

8 {5} As previously mentioned, in this case the State presented evidence that

9 Defendant violated the terms and conditions of his probation by violating an order of

10 protection. Additionally, Defendant admitted that he was aware of the order of

11 protection. [MIO 4] This was sufficient to give rise to a reasonable inference that

12 Defendant’s violation was willful. See Aslin, 2018-NMCA-043, ¶ 9. Although

13 Defendant attempted to rebut the State’s showing by asserting that he assumed or

14 believed the order of protection had been dismissed, [DS 4; MIO 7-8; RP 130, 132]

15 Defendant does not dispute that he had merely been informed that the order of

16 protection would expire. [DS 4; CN 4; MIO 7; RP 133] Under the circumstances, the

17 trial court was free to disbelieve Defendant’s testimony and to conclude that the

18 violation was in fact willful. See State v. Gonzales, 1997-NMSC-050, ¶ 18, 124 N.M.

19 171, 947 P.2d 128.

3 1 {6} IT IS SO ORDERED.

2 3 LINDA M. VANZI, Judge

4 WE CONCUR:

5 6 JENNIFER L. ATTREP, Judge

7 8 MEGAN P. DUFFY, Judge