State v. Patrick

• Court: New Mexico Court of Appeals
• Decided: November 6, 2009
• Docket: 29,506
• Status: Unpublished

Opinion

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 Please 2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 3 Please also note that this electronic memorandum opinion may contain computer-generated 4 errors or other deviations from the official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. 29,506

10 DAVID PATRICK,

11 Defendant-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 13 Stephen K. Quinn, District Judge

14 Gary K. King, Attorney General 15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender 18 Navin H. Jayaram, Assistant Appellate Defender 19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 VIGIL, Judge. 1 Defendant David D. Patrick appeals the district court order revoking his

2 probation and imposing the sentence of incarceration. His sole issue on appeal is

3 whether there was sufficient evidence to revoke his probation considering that the

4 State offered only the probation officer’s testimony that the violations occurred.

5 We affirm.

6 The degree of proof required to support a finding of a violation of 7 probation is met when the evidence establishes a violation of the 8 conditions of probation with . . . such reasonable certainty as to satisfy 9 the conscience of the court of the truth of the violation. It does not 10 have to be established beyond a reasonable doubt.

11 State v. Baca, 80 N.M. 527, 528, 458 P.2d 602 (Ct. App. 1969). “A

12 defendant’s probation may be revoked if, after a hearing, it is established that he

13 has failed to comply with a condition of his probation.” State v. Parsons, 104

14 N.M. 123, 127, 717 P.2d 99, 103 (Ct. App. 1986).

15 The district court order on report of probation violation, and the subsequent

16 amended order, found that Defendant had violated his conditions of probation as

17 set forth in counts one, three, and five of the probation violation report prepared by

18 Officer Wesley Hatley. [RP 245-48, 299, 314] These three counts alleged

19 violations of standard conditions of probation numbers two, five, and nine,

20 respectively, of Defendant’s probation agreement. [RP 246-47] There appears to

21 be no dispute that Defendant signed and understood the probation agreement.

22 Standard condition of probation number two states: 2 1 I will report to my Probation/Parole Officer as often as required and 2 will submit completed and truthful written reports as required by my 3 Probation/Parole Officer. All communication with my 4 Probation/Parole Officer will be truthful and accurate and I will 5 promptly reply to any correspondence or communication I may 6 receive from the Probation Office. [RP 246]

7 According to the tape log in the record proper, Officer Wesley Hatley testified that

8 on October 29, 2008, he conducted a home visit and told Defendant, apparently by

9 phone, “he had to come to the probation office.” [RP 297, 1:33:18] Officer Hatley

10 testified that Defendant did not report on or after October 29. [Id., 1:32:20] Thus,

11 the district court had evidence before it that Defendant did not report to his

12 probation officer as required, and thus violated standard condition of probation

13 number two.

14 Standard condition of probation number five states: “I will follow all orders

15 and instructions of my Probation/Parole Officer including actively participating in

16 and successfully completing any level of supervision and/or treatment program,

17 which may include Community Corrections, [Intensive Supervision Program],

18 Elec[tronic] Monitoring or other supervision/treatment program, as deemed

19 appropriate by the Probation/Parole Officer.” [RP 246-47] Officer Hatley’s

20 testimony included the fact that Defendant had cut off the ankle monitor without

21 permission. [RP 297, 1:33:18 - 1:35:36] Defendant’s mother dropped off the

22 ankle monitor at the probation office on October 30, 2008. [Id.] Cutting off the

3 1 ankle monitor violated standard condition number five’s requirement that

2 Defendant actively participate in and successfully complete the level of supervision

3 deemed appropriate by the probation officer.

4 Standard condition of probation number nine states: “I will not buy, sell,

5 consume, possess or distribute any controlled substances except those legally

6 prescribed for my use by a State Certified Medical Doctor. I will also provide

7 urine or breath test specimens for laboratory analysis upon request of the Probation

8 and Parole division.” [RP 247] Our review of the hearing tape log does not reveal

9 any direct testimony that Defendant had used controlled substances, but we

10 presume some evidence of this was before the court. The docketing statement does

11 not assert that no such evidence was before the court, and recites the allegation that

12 Defendant had told Officer Hatley that he would be “dirty” if he provided a urine

13 sample. [DS 4 (unnumbered)] We note Officer Hatley’s testimony that Defendant

14 possessed a “wizzinator,” a device used to cheat on urine tests. [RP 297, 1:36:31]

15 We conclude that sufficient evidence of the alleged violation of standard condition

16 number nine.

17 Finally, we find nothing in the record suggesting that Officer Hatley,

18 Defendant’s probation officer and the only witness for the State, was not directly

19 involved in the events as to which he testified. Cf. State v. Phillips, 2006-

20 NMCA-001, 138 N.M. 730, 126 P.3d 546 (finding insufficient evidence where

4 1 officer read from documents of unclear origin at the hearing and there was no

2 showing why the person who submitted the documents was unavailable).

3 We conclude that sufficient evidence supported the revocation of

4 Defendant’s probation, and affirm the district court.

5 IT IS SO ORDERED.

6 7 MICHAEL E. VIGIL, Judge 8 WE CONCUR:

9 10 MICHAEL D. BUSTAMANTE, Judge

11 12 ROBERT E. ROBLES, Judge