State v. Green ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: _________________
Filing Date: September 22, 2014
Docket No. 31,787
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
JOHN GREEN,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Carl J. Butkus, District Judge
Gary K. King, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM
for Appellee
Jorge A. Alvarado, Chief Public Defender
Kimberly Chavez Cook, Assistant Public Defender
Santa Fe, NM
for Appellant
OPINION
HANISEE, Judge.
{1} This appeal follows the revocation of Defendant’s probation and his ensuing return
to incarceration in order to conclude his original term of imprisonment in full. In 2003, after
pleading guilty to second-degree kidnapping and murder, Defendant was sentenced to
nineteen years, of which nine were suspended by the district court. In 2008, after about five
years in prison, Defendant was released on probation. Within months of his release,
however, the State began to allege what became a series of ensuing violations that
1
culminated in the revocation of Defendant’s probation. Ultimately, the district court ordered
Defendant to serve the balance of his sentence in prison, including a previously imposed one
year habitual offender enhancement. Defendant appeals both the revocation of his probation,
as well as the conditions of probation. We affirm.
BACKGROUND
{2} In 2001 Defendant was indicted for the kidnapping, rape, and murder of Kathryn
Dockweiller, an Albuquerque attorney, in 1988. Defendant was allowed to plead guilty,
pursuant to North Carolina v. Alford, 400 U.S. 25 (1970) (holding that a district court may
accept a defendant’s guilty plea despite an absence of admission to criminal wrongdoing),
to second-degree murder, contrary to NMSA 1978, § 30-2-1(B) (1980) and kidnapping,
contrary to NMSA 1978, § 30-4-1 (1973).1 During the plea hearing, Defendant did not
oppose the State’s request that the district court take judicial notice of the grand jury
proceedings and content of the indictment to establish a factual basis for the plea.
{3} The record reveals that Detective Bill Peters of the cold-case unit of the Bernalillo
County Sheriff’s Department provided testimony to the grand jury that indicted Defendant.
He informed the grand jury that Ms. Dockweiller had disappeared on May 12, 1988, and was
found several days later in a shallow grave, still bound and gagged. The Office of the
Medical Investigator (OMI) concluded that the nature and manner of death had been
homicide by strangulation. Pursuant to the death investigation conducted by OMI, vaginal
swabs were taken from Ms. Dockweiller that revealed the presence of semen within Ms.
Dockweiller’s body that had been deposited there “at or near the time of her death.”
Defendant was originally a suspect in Ms. Dockweiller’s murder, and following a report
from his ex-wife over a decade later, wherein she disclosed her discovery of Ms.
Dockweiller’s calendar concealed within Defendant’s vehicle, Detective Peters obtained a
search warrant for Defendant’s DNA, which was found to match the DNA obtained from
Ms. Dockweiler’s body. Based on this discovery, Defendant was indicted and chose to plead
guilty in lieu of trial.
{4} Following the plea colloquy, the district court observed that the murder of Ms.
Dockweiller was in fact the second murder Defendant had committed. A pre-sentencing
report informed the district court that Defendant had been previously sentenced to serve a
twenty-year period of imprisonment in Texas based upon an unrelated homicide and attempt
1
We note that on the “Repeat Offender Plea and Disposition Agreement” (plea
agreement), the words “no contest” are crossed out and the phrase “guilty pursuant to
Alford” is written in its place. The plea agreement, which also established the sentencing
parameters agreed to by the parties, was signed by the prosecutor as well as by Defendant
and his attorney.
2
to commit criminal rape in 1979.2 Based on the circumstances of the instant case and in light
of Defendant’s past criminal history, the district court ordered that he serve the statutory
maximum penalty of nine years for the second-degree murder of Ms. Dockweiller, nine
additional years for her kidnapping, and an extra year because he was a habitual offender.
Due to the ten-year sentencing cap established within the plea agreement, however, the
district court suspended nine of Defendant’s nineteen year cumulative sentence. It imposed
the maximum available period of probation of five years, alongside two years of supervised
parole. In its judgment and sentence, the district court ordered probation to be wholly
conditioned upon Defendant “obey[ing] all rules, regulations[,] and orders of the [p]robation
[a]uthorities.”
{5} When Defendant was released from prison, he signed a sex offender behavioral
contract. Although not required to register as a sex offender under the Sex Offender
Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995, as
amended through 2013), Defendant was compelled to comply with various sex-offender-
related terms of probation, including abstention from the purchase, possession, or
subscription to “any sexually oriented or sexually stimulating material.” In the contract,
Defendant agreed that probation authorities were free to examine any computer Defendant
could access for inappropriate content, including, but not limited to pornography. Within
months of Defendant’s release and placement on probation in 2008, probation authorities
alleged that he was in violation of specific prohibitions to which he had agreed. Specifically,
the probation violation report alleged that Defendant had associated with other probationers
and parolees, responded to personal dating ads on the internet, and left the county without
permission. He was arrested on the probation violations, and the State sought revocation of
his probation.
{6} At the time, Defendant challenged the allegations on the grounds that the sex
offender behavioral contract he was required to sign was not reasonably related to the
charges of conviction, and that the “overbroad, pervasive, and undifferentiated restrictions”
associated with sex offender probation violated his due process rights. He relied on State v.
Williams, in which we held that a defendant not convicted of a sex offense under SORNA
cannot be subjected to SORNA requirements. 2006-NMCA-092, ¶ 12, 140 N.M. 194, 141
P.3d 538. The State, through the New Mexico Corrections Department (NMCD), filed a
response, maintaining that the crimes of conviction, considered alongside what was known
regarding his prior murder conviction, justified the probationary supervision he received.
NMCD asserted that probation authorities have broad discretion to supervise probationers
with those conditions it deems appropriate and that NMSA 1978, Section 31-21-4 (1963)
requires that the post-release probationary treatment of persons convicted of crimes “shall
take into consideration their individual characteristics, circumstances, need[s,] and
2
Although the record does not shed light on how much of his sentence Defendant
actually served in Texas, it was clearly less than the twenty years as he murdered Ms.
Dockweiller in 1988, merely nine years later.
3
potentialities.” Following a hearing, the district court denied Defendant’s motion to modify
the terms and conditions of his probation, yet did not then revoke Defendant’s probation.
{7} In May 2011 Defendant was again arrested for what were alleged to be additional
probation violations. This time, the probation report asserted that Defendant: (1) was in
violation of his behavioral contract as he was found to have pornographic imagery on his
computer; (2) had responded to personal advertisements on his laptop computer in violation
of the behavioral contract; and (3) had violated his probation by associating with other
probationers and parolees. During the ensuing violation hearing, Officer Baum, Defendant’s
probation supervisor, testified that when Defendant had initially signed the behavioral
contract and Defendant had reviewed the conditions contained within it, specifically
including the conditions on computer usage that disallowed pornography and sexually
explicit material. The officer testified that upon opening and examining Defendant’s
computer, he observed a “photo of a nude woman.” Officer Baum testified that he asked
Defendant if “there [were] any porn images” on the computer, and Defendant replied that
there were. Officer Baum stated that he and a colleague later conducted a forensic
examination of the computer and found numerous pornographic images. Over Defendant’s
objection as to foundation, a collage of the images found were entered into evidence as
State’s Exhibit 2 (Exhibit 2) during Defendant’s revocation hearing. Following the hearing,
the court revoked Defendant’s probation and ordered that he serve the remainder of his
original sentence.
{8} Defendant appeals the revocation of his probation on three bases, arguing that: (1)
the requirement that he sign a sex offender behavior contract was an illegal condition of
probation; (2) there was insufficient evidence to support any of the probation violations
found by the district court or, in the alternative, he lacked notice that his conduct could
constitute violations of the conditions of probation; and (3) the images found on Defendant’s
laptop lacked a proper foundation and should have been determined to be inadmissible.
LEGALITY OF CONDITIONS OF PROBATION
{9} New Mexico law places squarely within purview of the district court the authority
to order a defendant to “satisfy any other conditions reasonably related to . . . rehabilitation.”
NMSA 1978, § 31-20-6(F) (2007). An award of probation is a discretionary act of the
sentencing court, and a challenge to its terms and conditions is reviewed on appeal only for
an abuse of discretion. Williams, 2006-NMCA-092, ¶ 3. “However, a sentencing court may
not impose an illegal sentence. [I]t does not have the discretion to impose a probation term
or condition that is contrary to law.” Id. ¶ 4. “We review the legality of a [criminal] sentence
under the de novo standard of review.” Id.
The Conditions of Probation Imposed by NMCD were Authorized by the District Court
{10} Defendant first contends that the conditions of probation to which he was required
to adhere were illegal because NMCD lacked the authority to mandate that his release be
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conditioned upon his being party to any “sex offender behavior contract” that included
conditions not expressly provided within the district court’s judgment and sentence. To
support his argument, Defendant relies upon Section 31-20-6, which requires that the
sentencing court attach to its order “reasonable conditions as it may deem necessary to
ensure that the defendant will observe the laws of the United States and the various states
and the ordinances of any municipality.” Defendant additionally relies on State v. Martinez,
which states that “[c]onditions [of probation] may not be added by amendment subsequent
to imposition of a valid original judgment.” 1972-NMCA-135, ¶ 4, 84 N.M. 295, 502 P.2d
320.
{11} Considering this same issue, our Court determined that a district court’s enumeration
of a special probationary condition that the defendant “comply with any other reasonable
conditions specified by the Probation and Parole Division[,]” is sufficient indicia to justify
placement of a defendant on sex offender supervision. State v. Leon, 2013-NMCA-011, ¶ 24,
292 P.3d 493 (internal quotation marks omitted), cert. quashed, 2013-NMCERT-010, 313
P.3d 251. In Leon, we cited to Martinez, where the defendant “argued that the conditions
imposed by the probation office were without legal effect because they were not part of the
district court’s order deferring his sentence.” Leon, 2013-NMCA-011, ¶ 25. We determined
that the language of the order in Martinez made the conditions imposed by the probation
office the conditions of the defendant’s probation. 1972-NMCA-135, ¶ 5.
{12} Here, the district court’s order generally stated that “Defendant is ordered to be
placed on supervised probation . . . on condition that Defendant obey all rules, regulations[,]
and orders of the [p]robation [a]uthorities.” As in both Martinez and Leon, the district court’s
judgment and sentence incorporates language which justified specific, individual
requirements of probation. “That the terms and conditions set by the probation office were
not spelled out in the order itself did not establish that those terms and conditions were not
imposed by the court.” Leon, 2013-NMCA-011, ¶ 26. On both our precedent and the facts
of this case, we determine that the conditions of probation were sufficiently stated in the
district court’s original judgment and sentence.
{13} Relying on United States v. Carter, 463 F.3d 526 (6th Cir. 2006), Defendant
nonetheless argues that NMCD failed to adequately justify its decision imposing sex
offender conditions upon Defendant and that it never established that a sexual offense was
committed in the first place. Carter stated that a district court must justify special conditions
of supervised release at the time of sentencing and must “state in open court the reasons for
its imposition of the particular sentence[.]” Id. at 528 (internal quotation marks and citation
omitted). But we do not find Carter to be helpful or supportive of Defendant’s position.
Specifically, Carter does not support Defendant’s contention that NMCD was required “to
state its reasons and rationale for mandating special sex offender conditions of probation.”
Carter imposes, in a federal context, explanatory requirements solely upon the district court,
not upon any probationary entity. More importantly, this requirement is imposed pursuant
to federal statute, 18 U.S.C. § 3553(c) (2010), a mandate the New Mexico Legislature has
not adopted. See State v. Lack, 1982-NMCA-111, ¶ 15, 98 N.M. 500, 650 P.2d 22
5
(“Authority to grant probation is a matter of legislative grace, and the district court’s power
to impose probation is purely statutory.”).
{14} We conclude that Defendant has not established that Carter, or any argument he has
made regarding the behavioral contract, is able to overcome the probationary discretion
authorized by Martinez and Leon that extends from the district court to probation authorities
when worded as the district court did in this case. The behavioral contract Defendant was
required to sign upon his release from prison and commencement of probation was a proper
exercise of probationary authority pursuant to the judgment and sentence that followed and
was based upon the plea agreement Defendant also signed. Defendant’s signature on the plea
agreement, provided in the presence of his attorney, acknowledged his understanding of its
terms that included the five-year period of probation and warned that any violation could
lead to Defendant’s return to incarceration for the balance of the original sentence imposed.
The District Court Did Not Err in Denying Defendant’s Motion to Modify the
Conditions of Probation
{15} Defendant next argues that the district court abused its discretion in denying
Defendant’s motion to modify the conditions of release as no reasonable relationship existed
between Defendant’s convictions and the conditions of probation. He additionally argues
that there was insufficient evidence in the record to support sex offender probation. Among
other conditions, the sex offender supervision behavioral contract required that Defendant
abstain from purchasing, possessing, or subscribing “to any sexually oriented or sexually
stimulating material.” He was also prohibited from possessing pornography. Defendant
asserts that he was not convicted of a sexual offense, nor was there a factual basis or
evidence supporting an inference that a sexual offense occurred, and therefore, these
conditions were not reasonably related to his convictions of second-degree murder and
kidnapping.
{16} Under the abuse of discretion standard appropriate for our review of conditions of
probation, “we will not set . . . aside [the terms and conditions of a probation] unless they[:]
(1) have no reasonable relationship to the offense for which the defendant was convicted,
(2) relate to activity which is not itself criminal in nature, and (3) require or forbid conduct
which is not reasonably related to deferring future criminality.” Williams, 2006-NMCA-092,
¶ 3 (emphasis, alteration, internal quotation marks, and citation omitted). “To be reasonably
related, the probation condition must be relevant to the offense for which probation was
granted.” State v. Gardner, 1980-NMCA-122, ¶ 19, 95 N.M. 171, 619 P.2d 847. On appeal,
it is Defendant’s burden to persuade us that the district court erred and abused its discretion
in holding that a reasonable relationship existed between Defendant’s kidnapping and
murder convictions and his conditions of probation. Leon, 2013-NMCA-011, ¶ 28; State v.
Baca, 2004-NMCA-049, ¶ 16, 135 N.M. 490, 90 P.3d 509. We determine Defendant failed
to do so, and we remain unpersuaded by his conclusions to the contrary.
{17} As we have stated, Defendant pleaded guilty to the second-degree kidnapping of Ms.
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Dockweiler. The statute at the time of her kidnapping and murder defined kidnapping as “the
unlawful taking, restraining or confining of a person, by force or deception, with intent that
the victim . . . (3) be held to service against the victim’s will.” Section 30-4-1(A)(3). Our
Supreme Court has recognized that “ ‘h[olding] for service[s]’ ” can include holding a victim
for sexual purposes. See State v. McGuire, 1990-NMSC-067, ¶¶ 8, 12, 110 N.M. 304, 795
P.2d 996. The district court record indeed contains evidence supporting the State’s assertion
that there was a sexual element to Defendant’s crime. There was testimony before the grand
jury that Defendant’s semen was located within Ms. Dockweiler’s deceased body and that
it was “deposited at or near the time of her death.” Furthermore, Defendant had been indicted
by the grand jury on a charge of first degree criminal sexual penetration, a fact that the
district court addressed at the hearing on Defendant’s motion to modify in response to
Defendant’s assertion that the State did not present evidence that it believed a sex crime was
committed. Lastly, the pre-sentence report indicates that this was not the first instance in
which Defendant was charged with a sexually based crime; Defendant was previously
charged with “[a]ttempt to [c]ommit [c]riminal [r]ape” in the state of Texas.
{18} Thus, Defendant’s contention that the requirement that he sign and adhere to a sex
offender behavior contract bore no relation to facts suitable for the district court’s or
probation authorities’ reliance is inaccurate and incomplete. His contention that these things
are too remote in time or that he “never had an opportunity to challenge those assertions”
misunderstands the distinction between what would have been required to convict him of sex
offenses during a trial on the merits and what is properly relied upon to inform those tasked
with maintaining community safety at the time Defendant was permitted to leave prison
before his sentence was complete.
{19} Again in this regard, we rely on Leon, 2013-NMCA-011, ¶¶ 27-34. There, the
defendant pled no contest to contributing to the delinquency of a minor and selling or giving
alcohol to a minor. Id. ¶ 2. Upon suspension of his sentence, the defendant was ordered by
NMCD to sign a sex offender behavior contract. The defendant already had a prior felony
conviction for a sex offense. Id. ¶ 3. This Court acknowledged that the defendant’s current
convictions involved criminal contact with minors and based on these circumstances, in
addition to the defendant’s criminal history, the district court did not err in determining that
a sex offender behavior contract was reasonably related to the current convictions,
rehabilitation, and public safety. Id. ¶¶ 30-31.
{20} Although we recognize that in the case before us Defendant had not been convicted
of a sexual offense, as had the defendant in Leon, such is not fatal to the conditions of
Defendant’s probation. Defendant was in fact charged with a sexual offense on two prior
occasions and indicted by a grand jury on one of those charges. As in Leon, Defendant’s
current conviction involved criminal contact with Ms. Dockweiller, and what is more crucial
to our analysis is, not only was it criminal contact, but of a sexual nature. What had become
the cold case of Ms. Dockweiller’s murder was solved solely as a result of the discovery that
the semen found in her deceased body was Defendant’s. It would be inappropriate that our
Legislature’s instruction that probation authorities study a defendant’s case to determine that
7
individual’s “characteristics, circumstances, needs and potentialities[,]” Section 31-21-4,
somehow be viewed to require exclusion of such a material fact. Given the available facts
regarding Defendant’s current convictions, considered alongside his alarmingly similar
criminal history, we cannot conclude that the district court abused its discretion in ruling that
the conditions of his probation were reasonably related to his current convictions,
rehabilitation, or public safety. See Leon, 2013-NMCA-011, ¶ 27 (“The court has broad
discretion to effect rehabilitation and may impose conditions designed to protect the public
against the commission of other offenses during the term, and which have as their objective
the deterrence of future misconduct.” (internal quotation marks and citation omitted)); Baca,
2004-NMCA-049, ¶ 36 (“The general purposes of probation . . . are rehabilitation and
deterrence for community safety[.]”).
SUFFICIENCY OF EVIDENCE TO SUPPORT PROBATION REVOCATION
{21} Defendant next asserts that there was insufficient evidence to support any of the
alleged probation violations upon which his probation was revoked. The probation violation
report alleged numerous violations, one being violation of the sex offender behavior contract
that directly prohibited possession of sexual images on Defendant’s laptop.3 Defendant
contends that this condition was overly vague such that a “reasonable person would not have
known that the nude images would be considered pornography[,]” and thus he contends that
the evidence was insufficient to support revocation of his probation. The State argues that
the images depict pornographic, sexually oriented, or sexually stimulating photographic
depictions, the very content Defendant was disallowed from possessing and was forewarned
would constitute violative conduct.
{22} Proof of a probation violation need not be established beyond a reasonable doubt.
State v. Martinez, 1989-NMCA-036, ¶ 4, 108 N.M. 604, 775 P.2d 1321. Instead, the
evidentiary standard is that the violation must be established with a reasonable certainty,
such that a reasonable and impartial mind would believe that the defendant violated the
terms of probation. State v. Sanchez, 2001-NMCA-060, ¶ 13, 130 N.M. 602, 28 P.3d 1143.
The burden of proving a violation with reasonable certainty lies with the State. Leon, 2013-
NMCA-011, ¶ 36. “We review [a district] court’s decision to revoke probation under an
abuse of discretion standard. To establish an abuse of discretion, it must appear the [district]
court acted unfairly or arbitrarily, or committed manifest error.” Martinez, 1989-NMCA-
036, ¶ 5 (citations omitted). We conclude that the State has met its burden, and the district
3
Because we affirm the district court’s ruling with regard to the violation of the sex
offender behavior contract, contrary to Condition 5 of Defendant’s conditions of probation,
we will not reach the issue of whether there was sufficient evidence to prove the State’s
remaining allegations of probation violations. See Leon, 2013-NMCA-011, ¶ 37 (stating that
“although [the d]efendant challenges the sufficiency of the evidence supporting each of his
probation violations, if there is sufficient evidence to support just one violation, we will find
the district court’s order was proper”).
8
court did not abuse its discretion in revoking Defendant’s probation.
{23} Upon his release from custody, Defendant signed the sex offender behavior contract,
and he acknowledged that he “read, or . . . had read to [him], and underst[ood] these
additional supervision conditions.” The contract stated, under condition A of the
“computers/electronics/entertainment” provision, that Defendant was prohibited from
possessing “any sexually oriented or sexually stimulating material.” The condition explains
that this “includes, but is not limited to: [s]exual devices, books, magazines, video/audio
tapes, DVDs, CD ROMs, and [i]nternet websites.” Condition C of the same provision stated
that any computer to which Defendant had access would be subject to examination for
inappropriate content, including but not limited to pornography or adult websites. Officer
Baum had reviewed the conditions of probation with Defendant, and specifically informed
Defendant that probation authorities would have “full access to [his] computer to do any
searches on it for pornography or sexually explicit material.” He testified that he informed
Defendant that he was not to possess “any sexually explicit material[,]” including
“[p]ictures[,] [n]aked women [or] [m]en. Anything that’s sexually explicit.”
{24} Baum additionally testified that upon performing a field visit, he and another
probation officer located and searched Defendant’s computer. Baum explained that in
conducting the computer search he initially saw “a photo of a nude woman,” and that
Defendant “acknowledged that there was pornography on his computer[.]” Baum testified
that he was present during a forensic examination that was conducted on Defendant’s
computer and viewed the resulting report containing the nude images. Exhibit 2 is the report
and collage of nude images the State entered into evidence. At the conclusion of the hearing,
the district court found that Defendant violated paragraph C of the
“computers/electronics/entertainment” provision of the sex offender behavior contract, ruling
that the images discovered on Defendant’s computer were in fact pornography and revoked
Defendant’s probation.
{25} Although our case law contains little guidance on the definition of adult pornography,
we are helped by our Supreme Court’s definition of “ ‘sexually explicit exhibition’ ” and our
Legislature’s definition of “sexual conduct” in the context of sexual exploitation of children
and sexually oriented material harmful to minors, respectively. Our Supreme Court has
defined the term “sexually explicit exhibition” as a “graphic and unequivocal display or
portrayal of nudity or sexual activity.” State v. Myers, 2009-NMSC-016, ¶ 19, 146 N.M. 128,
207 P.3d 1105. Furthermore, our Legislature defines “sexual conduct” as an “act of
masturbation, . . . physical contact with a person’s clothed or unclothed genitals, pubic area,
buttocks or, if such person be female, breast[.]” NMSA 1978, § 30-37-1(C) (1973). We
conclude each of these definitions encompasses that which is “sexually oriented” within the
terms of Defendant’s sex offender behavior contract. Moreover, each such category was
included within the many images collected by Defendant on his laptop hard drive.
{26} What Defendant contends to be “mere nudity,” we, like the district court before us,
hold to be at least nine images of or depicting sexual activity and/or physical contact with
9
unclothed female genitals or buttocks. Given the highly sexual nature of these images, in
conjunction with Officer Baum’s testimony that he informed Defendant that possession of
these types of images were disallowed under the sex offender behavior contract, we conclude
that not only did Defendant have notice of the prohibitions, but that there was sufficient
evidence for a reasonable mind to conclude that Defendant violated this condition of
probation and that the district court’s revocation of Defendant’s probation did not constitute
an abuse of discretion.
ADMISSIBILITY OF PHOTOGRAPHS
{27} As his last point of appeal, Defendant argues that the photographs contained in
Exhibit 2 were improperly admitted on the basis that the State failed to properly authenticate
or lay a sufficient foundation for their admission. “We review the district court’s evidentiary
rulings for an abuse of discretion.” State v. Neal, 2007-NMCA-086, ¶ 36, 142 N.M. 487, 167
P.3d 935. Although Defendant acknowledges that the rules of evidence do not apply to
probation revocation hearings, he nonetheless argues that his due process rights were
violated because Exhibit 2 was improperly admitted.
{28} At the probation revocation hearing, Officer Baum testified that, after he saw the
initial nude photograph on Defendant’s computer, he arrested Defendant for a probation
violation, and was present while another officer conducted a forensic examination on
Defendant’s computer. Baum testified that he saw the report containing the images that was
generated from the examination and printed that report. Baum identified Exhibit 2 as the
report he printed from the scan of Defendants computer based on a sticky note he placed on
the document and the document itself. When the State sought admission of Exhibit 2 into
evidence, Defendant objected on the grounds that the State had failed to lay the proper
foundation. Defendant argued that another officer ran the software on Defendant’s computer,
and Baum merely “went and grabbed documents off the printer[, and] he ha[d] no idea how
it all happened before then.” Defendant asserted that it was too far of a stretch for Baum “to
say that [the images] that came off the printer necessarily [were] on [Defendant’s]
computer.” The district court disagreed and admitted the photos into evidence, explaining
that Baum “was present at all times that the forensic examination was conducted[,]” and that
he was “able to identify it . . . in court as the material that he saw at the time that the scan
was done.”
{29} Defendant now argues that Officer Baum could not provide proper authentication
testimony to establish that Exhibit 2 was originally located on Defendant’s computer. He
also suggests that the images were placed on the computer by the software used by probation
authorities, and notes that Baum cannot testify that the images were not already stored on
the software prior to the forensic analysis of Defendant’s computer. Defendant additionally
contests Baum’s identification of the document containing the images, asserting that “[i]t is
inconceivable that Officer Baum actually recognized the images themselves from a single
prior viewing” and that “Baum’s recognition of the sticky note is an improper authentication
for admission of the attached packet.”
10
{30} The primary problem with Defendant’s challenge to the admission of Exhibit 2 is that
rules of evidence do not apply during probation revocation hearings. See Rule 11-
1101(D)(3)(d) NMRA; Rule 11-901 NMRA. Moreover, Defendant fails to cite any authority
in support of his request that we apply an evidentiary standard to the contrary. Despite the
detail in which he addresses what he perceives to be the failed evidentiary and admissibility
underpinnings of Exhibit 2, we will not consider this argument. See State v. Vaughn, 2005-
NMCA-076, ¶ 42, 137 N.M. 674, 114 P.3d 354 (stating that “this Court will not consider an
argument that lacks citation to any legal authority in support of that argument”).
{31} Defendant additionally argues that he was denied the opportunity to question the
officer who performed the forensic scan of his computer regarding the forensic software or
the administration of the scan. Defendant asserts that the technique used in the software
search to locate the images on Defendant’s computer is vital to establishing that Defendant
had knowledge that the images were on his computer, and the district court erred in finding
knowing possession “without any foundational testimony.” Although Defendant
acknowledges that he is not alleging a confrontation violation, he maintains that his due
process rights were violated as a result of allowing Officer Baum to lay the foundation for
the admission of Exhibit 2. We disagree.
{32} In our review of the record we notice that Officer Baum testified that after he located
the first nude image on Defendant’s computer, he questioned Defendant about whether
“there [were] any porn images” on the computer, and Defendant acknowledged that there
were. In probation violation hearings, the district court performs two separate roles, fact
finding and disposition. Martinez, 1989-NMCA-036, ¶ 11. In this context, Officer Baum’s
testimony bore the capacity to establish that Defendant knew there was prohibited material
on his computer. “It is the court’s sound judgment that is invoked, and the exercise of that
judgment will not be reversed on appeal unless it was mistakenly exercised.” Id. (internal
quotation marks and citation omitted). Given this testimony, we cannot conclude that the
district court’s decision to revoke Defendant’s probation was “clearly against the logic and
effect of the facts and circumstances of the case[,]” or that its ruling was “clearly untenable
or not justified by reason.” State v. Layne, 2008-NMCA-103, ¶ 6, 144 N.M. 574, 189 P.3d
707 (internal quotation marks and citation omitted). Accordingly, we affirm.
CONCLUSION
{33} For the foregoing reasons, we affirm the revocation of Defendant’s probation.
{34} IT IS SO ORDERED.
_____________________________________
J. MILES HANISEE, Judge
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WE CONCUR:
_____________________________________
MICHAEL D. BUSTAMANTE, Judge
_____________________________________
M. MONICA ZAMORA, Judge
12