State v. Tsosie

• Court: New Mexico Court of Appeals
• Decided: May 7, 2015
• Docket: 34,351
• Status: Unpublished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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 34,351

5 JASPER TSOSIE,

6 Defendant-Appellant,

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

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

11 for Appellee

12 Jorge A. Alvarado, Chief Public Defender 13 Kathleen T. Baldridge, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 MEMORANDUM OPINION

17 WECHSLER, Judge. 1 {1} Defendant appeals the revocation of his probation. We issued a notice of

2 proposed summary disposition, proposing to affirm. Defendant has filed a

3 memorandum in opposition. After due consideration, we remain unpersuaded by

4 Defendant’s assertions of error. We therefore affirm.

5 {2} Defendant renews his challenge to the sufficiency of the evidence to establish

6 that he violated the terms and conditions of probation. As we previously observed in

7 the notice of proposed summary disposition, the State presented evidence that

8 Defendant failed to attend and complete counseling and treatment. Defendant does not

9 controvert this evidence. [MIO 1, 6] Nor do we understand Defendant to dispute that

10 attendance and completion constituted a condition of his probation. [MIO 1-2] Instead,

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

12 was willful. [MIO 1, 5-6] See generally In re Bruno R., 2003-NMCA-057, ¶ 11, 133

13 N.M. 566, 66 P.3d 339 (“To establish a violation of a probation agreement, the

14 obligation is on the State to prove willful conduct on the part of the probationer so as

15 to satisfy the applicable burden of proof.”).

16 {3} Although wilful conduct is a requisite, the State’s proof of a breach of a

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

18 inference; the defendant bears the burden of presenting evidence to excuse non-

19 compliance, by demonstrating that the violation resulted from factors beyond his

2 1 control. See State v. Parsons, 1986-NMCA-027, ¶ 25, 104 N.M. 123, 717 P.2d 99

2 (“Once the state offers proof of a breach of a material condition of probation, the

3 defendant must come forward with evidence [to show that his non-compliance] was

4 not willful.”).

5 {4} In this case, the State presented evidence that Defendant failed to attend and

6 successfully complete counseling and treatment as required by the general and specific

7 conditions of his probation. [DS 4-5; CR-13-1607 RP 50; CR-13-5512 RP 41]

8 Additionally, the State presented evidence that a probation officer reviewed the

9 conditions of probation with Defendant at intake. [DS 4; MIO 4] This evidence was

10 sufficient to give rise to a reasonable inference that Defendant was aware of the

11 requirement that he attend and complete treatment. See generally State v. Romero,

12 1968-NMCA-078, ¶ 17, 79 N.M. 522, 445 P.2d 587 (“An inference is merely a logical

13 deduction from facts and evidence.” (quoting State v. Jones, 1935-NMSC-062, ¶ 21,

14 39 N.M. 395, 48 P.2d 403)).

15 {5} It is not clear that Defendant offered any direct evidence to excuse his non-

16 compliance, by virtue of lack of knowledge or otherwise. The memorandum in

17 opposition focuses on Defendant’s “voluntary” participation in counseling and

18 treatment before he was placed on probation, as well as his most recent probation

19 officer’s failure to specifically advise him that the First Nations program was

3 1 mandatory. [MIO 4, 6] However, as we previously observed in the notice of proposed

2 summary disposition, the fact that Defendant’s participation may initially have been

3 voluntary does not diminish the mandatory nature of his continuing attendance and

4 completion of counseling and treatment as clearly required by the general and specific

5 conditions of his probation. [DS 4-5; MIO 2; CR-13-1607 RP 50; CR-13-5512 RP 41]

6 And given the evidence that Defendant was made aware of the terms and conditions

7 of his probation at intake, we reject Defendant’s suggestion that more specificity was

8 required.

9 {6} For the foregoing reasons, we affirm.

10 {7} IT IS SO ORDERED.

11 ________________________________ 12 JAMES J. WECHSLER, Judge

13 WE CONCUR:

14 ________________________________ 15 MICHAEL E. VIGIL, Chief Judge

16 ________________________________ 17 TIMOTHY L. GARCIA, Judge