State v. Bustamante

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO,
3 Plaintiff-Appellee,
4 v. No. A-1-CA-37670
5 CRYSTAL BUSTAMANTE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
8 Lee A. Kirksey, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 William A. O’Connell, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Chief Judge.
1 {1} Defendant appeals from a district court order revoking her probation. We issued
2 a calendar notice proposing to affirm. Defendant has responded with a memorandum
3 in opposition. Not persuaded, we affirm.
4 {2} Defendant continues to challenge the sufficiency of the evidence to support the
5 revocation of her probation. “In a probation revocation proceeding, the [s]tate bears
6 the burden of establishing a probation violation with a reasonable certainty.” State v.
7 Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. “To establish a violation of a probation
8 agreement, the obligation is on the [s]tate to prove willful conduct on the part of the
9 probationer so as to satisfy the applicable burden of proof.” In Re Bruno R.,
10 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339; State v. Martinez,
11 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321 (explaining that probation
12 should not be revoked where the violation is not willful, in that it resulted from factors
13 beyond a probationer’s control).
14 {3} Here, the State alleged that Defendant violated numerous conditions of
15 probation. [RP 230-31] The State’s petition summarized facts in support of these
16 violations. [RP 234] Defendant conceded that she did not appear at several
17 appointments with her probation officer. [MIO 1] However, she claimed that her
18 domestic partner initially prevented her from going to some of the appointments, and
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1 that she thereafter did not go because she claimed that the probation officer treated her
2 unfairly. [MIO 2-3] The district court, sitting as fact-finder, was free to reject
3 Defendant’s veracity or that these violations were not wilful. See State v. Sutphin,
4 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that the fact-finder is
5 free to reject a defendant’s version of events).
6 {4} For the reasons set forth above, we affirm.
7 {5} IT IS SO ORDERED.
8
9 LINDA M. VANZI, Chief Judge
10 WE CONCUR:
11
12 JULIE J. VARGAS, Judge
13
14 JENNIFER L. ATTREP, Judge
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