State v. Lundvall

• Court: New Mexico Court of Appeals
• Decided: May 8, 2017
• Docket: 35,553
• Status: Unpublished

Opinion

This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date.

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

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. 35,553

5 SAMUEL LUNDVALL,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Angela J. Jewell, District Judge

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

11 for Appellee

12 Bennett J. Baur, Chief Public Defender 13 Tania Shahani, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 VANZI, Chief Judge.

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

19 proposed disposition proposing to affirm, and Defendant has responded with a 1 memorandum in opposition. We have carefully considered the arguments raised in

2 that memorandum but continue to believe that affirmance is warranted in this case.

3 Therefore, for the reasons set out below and in our notice of proposed summary

4 disposition, we affirm.

5 {2} In our notice we proposed to find there was sufficient evidence to support the

6 revocation, pointing to testimony from Defendant’s probation officer as well as

7 Defendant’s own testimony. Specifically, there was evidence that Defendant failed to

8 report to his probation officer because he left her only one message and did not return

9 her telephone call ordering him to report immediately. There was also evidence that

10 Defendant had not called the Norchem drug testing hotline and therefore failed to

11 report for drug testing, and that Defendant was not home or did not respond when his

12 probation officer attempted to visit him in person. In response, Defendant argues that

13 the State failed to prove his violations were willful, as the State was required to do.

14 See In re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339. Defendant

15 points out that he was homeless and that he had been hit by a vehicle, suffering an

16 injury to his leg that required him to have a cast on his leg and to stay in the hospital

17 for an unstated period of time. [MIO 4] He also points to his testimony that he left one

18 message for his probation officer explaining his situation and believed that message

19 was sufficient to explain the difficulties he was facing in meeting his probation

20 requirements. [Id. 6]

2 1 {3} We hold that there was evidence from which the district court could infer that

2 Defendant’s probation violations were willful. See State v. Motes, 1994-NMSC-115,

3 ¶ 11, 118 N.M. 727, 885 P.2d 648 (noting that, because intent is subjective, it is rarely

4 proved by direct evidence and is almost always inferred from other facts in the case).

5 The district court as the fact-finder was allowed to weigh the evidence and disbelieve

6 Defendant’s explanations for his failure to call the drug-testing hotline as well as his

7 failure to directly contact his probation officer. See State v. Rojo, 1999-NMSC-001,

8 ¶ 19, 126 N.M. 438, 971 P.2d 829. Furthermore, as we stated in the notice of proposed

9 disposition, on appeal we must view the evidence in the light most favorable to the

10 district court’s decision, indulging all inferences in favor of that decision and

11 resolving all conflicts in the evidence in support of that decision. Bruno R., 2003-

12 NMCA-057, ¶ 9. In doing so, we are left with the facts that Defendant did not call the

13 Norchem drug-testing hotline and did not directly contact his probation officer, and

14 therefore did not comply with the requirements of his probation.

15 {4} Defendant renews his argument that our opinion in a prior appeal was wrongly

16 decided, and that the four-year enhancement he received following his prior probation

17 violation was illegal. [MIO 7] We continue to believe, as we discussed in our notice,

18 that the doctrine of law of the case or, alternatively, the doctrine of issue preclusion

19 answers this argument. Defendant has already had an opportunity to challenge the

3 1 enhancement and was unsuccessful. For the reasons discussed in our notice, he may

2 not challenge the enhancement again in this subsequent appeal.

3 {5} Based on the foregoing as well as the discussion contained in the notice of

4 proposed summary disposition, we affirm the revocation of Defendant’s probation.

5 {6} IT IS SO ORDERED.

6 __________________________________ 7 LINDA M. VANZI, Chief Judge

8 WE CONCUR:

9 _________________________________ 10 M. MONICA ZAMORA, Judge

11 _________________________________ 12 HENRY M. BOHNHOFF, Judge