1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official paper version filed by the Court of Appeals and does 5 not include the filing date. 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO, 8 Plaintiff-Appellee, 9 v. NO. 30,730 10 MARVIN N., 11 Child-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 13 William C. Birdsall, District Court Judge
14 Gary K. King, Attorney General 15 Santa Fe, New Mexico 16 Francine A. Chavez, Assistant Attorney General 17 Albuquerque, NM
18 for Appellee
19 Jacqueline Cooper, Acting Chief Public Defender 20 B. Douglas Wood III, Assistant Appellate Defender 21 Santa Fe, NM
22 for Appellant
23 MEMORANDUM OPINION 24 CASTILLO, Chief Judge.
1 Child seeks reversal of the district court’s revocation of his probation. On 2 appeal, Child contends that there was insufficient evidence to support the revocation 3 of his probation. For the reasons that follow, we affirm. 4 BACKGROUND 5 In September 2009, Child was placed on probation for driving under the 6 influence, driving without a license, and driving with an expired registration. In 7 relevant part, Child’s probation terms required that Child satisfactorily complete 8 “outpatient and/or residential treatment and follow all aftercare recommendations,” 9 and prohibited Child from “consum[ing], possess[ing], or be[ing] in the presence of 10 anyone possessing weapons, alcohol or drugs.” 11 Child argues that the evidence presented below was insufficient to result in the 12 revocation of his probation. Applying the rules of evidence, we must determine 13 whether there was sufficient evidence to uphold the decision below, viewing the 14 evidence in a light most favorable to the verdict and indulging all reasonable 15 inferences and resolving all conflicts in the evidence in favor of the district court’s 16 judgment. State v. Erickson K., 2002-NMCA-058, ¶ 21, 132 N.M. 258, 46 P.3d 1258. 17 The question is whether the district court’s “decision is supported by substantial 18 evidence, not whether the court could have reached a different conclusion.” In re 19 Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318.
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1 A juvenile probation violation must be proved beyond a reasonable doubt. 2 Erikson, 2002-NMCA-058, ¶ 21. To establish a violation of a probation agreement, 3 “evidence tending to establish his own willful conduct beyond a reasonable doubt 4 must have been presented to the court.” In re Bruno R., 2003-NMCA-057, ¶ 11, 133 5 N.M. 566, 66 P.3d 339. While the burden of proving a willful violation always 6 remains on the State, after the State presents a prima facie case of a violation, the 7 burden shifts to Child to come forward with evidence that the failure to comply was 8 through no fault of his own. State v. Martinez, 108 N.M. 604, 606-07, 775 P.2d 1321, 9 1323-24 (Ct. App. 1989). There is no shifting of the burden of proof, but a shifting 10 of the burden of going forward with evidence to meet or rebut a presumption that has 11 been established by the evidence. Id. In Martinez, we stated that
12 [o]nce the state offers proof of a breach of a material condition of 13 probation, the defendant must come forward with evidence to excuse 14 non-compliance. If the [district] court finds that his failure to comply 15 was not willful, but resulted from factors beyond his control and through 16 no fault of his own, then probation should not be revoked. However, if 17 defendant fails to carry his burden, then the [district] court is within its 18 discretion in revoking.
19 Id. (citations omitted). 20 DISCUSSION 21 The evidence is uncontroverted that Child was discharged from his aftercare 22 program. The parties disagree over whether there was sufficient evidence that Child’s
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1 probation violation was willful. However, the evidence does not support the argument 2 that Child’s violation was through no fault of his own. The State called Child’s 3 juvenile probation officer who testified that she had gone through the entire agreement 4 with Child to ensure that he understood the agreement and what conditions he was 5 required to follow. Child was on notice that in order to maintain his probation, he was 6 required to successfully complete the required treatment and aftercare programs. This 7 meant that he was required to make good faith efforts to comply with the program’s 8 requirements. 9 Here, Child failed to illustrate either a lack of willfulness or lawful excuse. 10 Instead, Child argued that he had been wrongly discharged, claiming that he had not 11 engaged in any of the misconduct that caused his dismissal. However, the district 12 court heard testimony from both Child’s case manager and the facility manager 13 regarding Child’s discharge and the incident in question. The case manager testified 14 that on April 17 and 18, 2010, Child had been home on a pass from his aftercare 15 facility. The day after Child returned, the facility staff was notified that there were 16 facility residents drinking alcohol on the premises. The facility manager observed 17 Child talking with slurred speech, acting out of character, and socializing with an 18 intoxicated resident. The case manager searched the facility, including the residents’ 19 personal lockers and bedrooms. During the search, the case manager found an empty
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1 bottle of vodka under Child’s top bunk mattress and a glass that both staff members 2 testified smelled like alcohol within arm’s reach of the top bunk. The case manger 3 instructed Child to open his personal locker that was locked at the time of the search. 4 Inside, he found a bottle containing a red liquid. The case manager tested the red 5 liquid using an oral swab test that is normally used inside an individual’s mouth to test 6 for alcohol. The test indicated that the red liquid contained alcohol. 7 The facility manager testified that Child had a number of issues at the facility, 8 including not attending some drug and alcohol counseling sessions. He further 9 testified that he had received reports that Child tested positive for cocaine and THC, 10 but the test results were not entered into evidence. The facility manager testified that 11 he took part in the discharge decision, and Child was discharged for his misconduct 12 in possessing alcohol and his positive drug test results. 13 Child argues that without a finding that he was actually in possession of alcohol 14 beyond a reasonable doubt, the State’s case is insufficient. However, while the district 15 court did not find that Child possessed alcohol, this does not mean that the court 16 declined to consider any evidence of Child’s possession of alcohol and intoxication 17 at the facility to support its conclusion that Child had willfully violated the conditions 18 of his probation. We hold that based on the above outlined testimony, there was 19 sufficient evidence of Child’s misconduct, combined with firsthand knowledge of the
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1 testifying staff members that Child was discharged based on his misconduct. 2 Child additionally argues that the Court erroneously admitted evidence 3 regarding Child’s failed drug tests and the results of the mouth swab test conducted 4 on the liquid found in Child’s locker. Child argues that the evidence of the drug tests 5 constituted hearsay because the testifying facility manager had received second-hand 6 information, and the reliability of using an oral swab test in a liquid had not been 7 properly established. Assuming that such evidence was admitted improperly, we 8 consider the effect of their improper admission. “Error may not be predicated upon 9 a ruling which admits or excludes evidence unless a substantial right of the party is 10 affected[.]” Rule 11-103(A) NMRA. Child concedes that the district court gave no 11 substantive value to the results of the mouth swab test and that the district court stated 12 that the drug test results were not admissible as substantive evidence that Child had, 13 in fact, failed such tests. Instead, this evidence was admitted to establish the 14 witnesses’ knowledge of Child’s history at the facility. We deem it noteworthy that 15 this was a bench trial, and “the general rule pertaining to that type of trial appears to 16 give a judge more flexibility in making admissibility determinations than in jury 17 trials.” See, e.g., Tartaglia v. Hodges, 2000-NMCA-080, ¶ 30, 129 N.M. 497, 10 P.3d 18 176. We presume that a judge is able to properly weigh the evidence, and thus the 19 erroneous admission of evidence in a bench trial is harmless unless it appears that the
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1 judge must have relied upon the improper evidence in rendering a decision. State v. 2 Hernandez, 1999-NMCA-105, ¶ 22, 127 N.M. 769, 987 P.2d 1156. Because other 3 substantial evidence supports the revocation of Child’s probation and Child concedes 4 that any allegedly erroneously admitted evidence was given no substantive value, any 5 erroneous admission of evidence was harmless. 6 In sum, the State presented sufficient evidence that Child violated his probation 7 agreement. Because there was competent evidence that Child willfully violated a 8 substantial condition of his probation, the district court did not err in revoking his 9 probation. 10 CONCLUSION 11 For the foregoing reasons, we affirm the revocation of Child’s probation. 12 IT IS SO ORDERED.
13 ____________________________________ 14 CELIA FOY CASTILLO, Chief Judge
15 WE CONCUR:
16 ________________________________ 17 CYNTHIA A. FRY, Judge
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1 ________________________________ 2 MICHAEL E. VIGIL, Judge