State v. Creighton M

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. NO. 29,210
5 CREIGHTON M.,
6 Child-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 Sandra A. Price, District Judge
9 Gary K. King, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Hugh W. Dangler, Chief Public Defender
13 Will O’Connell, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 KENNEDY, Judge.
18 Creighton M. (Child) appeals from the judgment and disposition, adjudicating
19 Child to have violated his probation and committing him to the custody of CYFD for
20 a period of a year with residential treatments as appropriate. [RP 167] Child contends
21 that the evidence presented at Child’s probation revocation hearing was not sufficient
1 to support finding that Child violated his probation. [DS 3] This Court’s calendar
2 notice proposed summary affirmance. [Ct. App. File, CN1] Child has filed a
3 memorandum in opposition. [Ct. App. File, MIO] Unpersuaded, we affirm.
4 DISCUSSION
5 In the memorandum, Defendant continues to contend that the State presented
6 insufficient evidence to prove that Child violated the terms of his probation. [MIO 2]
7 Child’s memorandum confirms the facts this Court relied upon in the calendar notice
8 except for the admission of laboratory test results for cocaine ingestion. [MIO 1-3]
9 The memorandum reveals that the State did not present evidence that Child had
10 violated his probation by ingesting cocaine. [MIO 2-3] Child acknowledges, however,
11 that the State presented evidence that Child violated the probation condition that
12 prohibited him from possessing or consuming alcohol, and Child continues to assert
13 that the State’s evidence on this issue was insufficient to support revocation of his
14 probation. [MIO 3-5] In continuing to argue for reversal of the revocation of his
15 probation, Child relies on State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and
16 State v. Boyer, 103 N.M. 655, 712 P.2d 1 (Ct. App. 1985). We are not persuaded.
17 NMSA 1978, Section 32A-2-24 (B) (1993), provides in applicable part that
18 “[t]he standard of proof in probation revocation proceedings shall be evidence beyond
19 a reasonable doubt and the hearings shall be before the court without a jury.”
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1 “Before a court can find Child to have violated his probation, evidence tending to
2 establish his own willful conduct beyond a reasonable doubt must have been presented
3 to the court.” In re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339;
4 see also In re Aaron L., 2000-NMCA-024, ¶ 24, 128 N.M. 641, 996 P.2d 431 (“[The]
5 Children’s Code and the Children’s Rules both mandate that juveniles be afforded the
6 same rights and procedures in revocation proceedings that they are afforded in
7 delinquency proceedings[.]”). In determining whether there was sufficient evidence
8 to support the district court’s revocation of Child’s probation, we apply the Rules of
9 Evidence and view the evidence presented in a light most favorable to the State
10 indulging all reasonable inferences in favor of the district court’s judgment. State v.
11 Erickson K., 2002-NMCA-058, ¶ 21, 132 N.M. 258, 46 P.3d 1258.
12 In this case, the State filed a petition to revoke Child’s probation on August 27,
13 2008. [RP 143] The State asserted that Child had violated conditions numbers 1, 2,
14 4, and 8 of his probation agreement. [Id.] The alleged violations included the
15 following: Child did not have permission to be away from his residence on August
16 23, 2008; Child had not notified surveillance of his whereabouts when seen driving
17 on August 23, 2008; Child was observed to be under the influence of alcohol by
18 Officer Stock on August 23, 2008; and Child tested positive for cocaine on August 26,
19 2008. [Id.] The memorandum indicates that the State presented evidence to support
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1 revocation of Child’s probation on the grounds that he was observed to be under the
2 influence of alcohol by Officer Stock on August 23, 2008. [MIO 2-3]
3 Officer Stock testified that on August 23, 2008, he observed Child at his place
4 of employment, a car wash establishment, and could smell alcohol on Child. [DS 2,
5 MIO 1] In addition, Child swayed back and forth when he spoke to the officer. [Id.]
6 Officer Stock also testified that Child eventually admitted to drinking a couple of
7 beers the night before. [DS 2, MIO 2] The officer further testified that Child had
8 bloodshot, watery eyes. [DS 2, 3, MIO 2] Child testified that on August 23, 2008,
9 he was working with a chemical (acid) at the car wash, which was why he smelled of
10 alcohol at the time he talked with Officer Stock. [DS 3, MIO 2] Child denied
11 admitting to Officer Stock that he had been drinking. [Id.]
12 We hold that the State presented substantial evidence that Child had violated
13 his probation agreement by consuming alcohol. To the extent the officer’s and
14 Child’s testimony conflicted, the district court determined Officer Stock’s testimony
15 to be more credible than Child’s testimony. See State v. Mora, 1997-NMSC-060, ¶
16 27, 124 N.M. 346, 950 P.2d 789 (“The reviewing court does not weigh the evidence
17 or substitute its judgment for that of the fact finder as long as there is sufficient
18 evidence to support the verdict.”); see State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M.
19 438, 971 P.2d 829 (“Contrary evidence supporting acquittal does not provide a basis
4
1 for reversal because the jury is free to reject [the defendant’s] version of the facts.”).
2 CONCLUSION
3 We affirm the judgment and disposition revoking Child’s probation.
4 IT IS SO ORDERED.
5 ___________________________________
6 RODERICK T. KENNEDY, Judge
7 WE CONCUR:
8 ___________________________
9 MICHAEL D. BUSTAMANTE, Judge
10 ___________________________
11 LINDA M. VANZI, Judge
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