State v. Joe

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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-36672
5 PRINCE A. JOE,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
8 Karen L. Townsend, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VANZI, Judge.
18 {1} Defendant appeals the revocation of his probation. We previously issued a
19 notice of proposed summary disposition, proposing to affirm. Defendant has filed a
1 memorandum in opposition. After due consideration, we remain unpersuaded. We
2 therefore affirm.
3 {2} Defendant renews his challenge to the sufficiency of the evidence to establish
4 that he violated the terms and conditions of probation. [DS 5; MIO 5-9]
5 {3} As we previously observed in the notice of proposed summary disposition, [CN
6 2-3] the State presented evidence that Defendant violated an order of protection,
7 thereby violating the terms and conditions of his probation. See State v. McGee, 2004-
8 NMCA-014, ¶ 23, 135 N.M. 73, 84 P.3d 690 (“[V]iolation of an order of protection
9 constitutes a crime[.]”). Defendant does not controvert this. [MIO 2-4, 7] Instead,
10 Defendant challenges the sufficiency of the evidence to establish that the violation
11 was willful. [MIO 1, 6-9] See In re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566,
12 66 P.3d 339 (“To establish a violation of a probation agreement, the obligation is on
13 the [s]tate to prove willful conduct on the part of the probationer so as to satisfy the
14 applicable burden of proof.”).
15 {4} Although willful conduct is a requisite, the State’s proof of a breach of a
16 material condition of probation is generally sufficient to give rise to a reasonable
17 inference in this regard; the defendant bears the burden of presenting evidence to
18 excuse non-compliance, by demonstrating that the violation was not willful. See State
19 v. Aslin, 2018-NMCA-043, ¶ 9, 421 P.3d 843 (“[O]nce the state establishes to a
2
1 reasonable certainty that the defendant violated probation, a reasonable inference
2 arises that the defendant did so willfully, and it is then the defendant’s burden to show
3 that failure to comply was either not willful or that he or she had a lawful excuse.”),
4 cert. granted, 2018-NMCERT-___ (S-1-SC-36999, June 25, 2018); State v. Parsons,
5 1986-NMCA-027, ¶ 25, 104 N.M. 123, 717 P.2d 99 (“Once the state offers proof of
6 a breach of a material condition of probation, the defendant must come forward with
7 evidence [to show that his non-compliance] was not willful.”).
8 {5} As previously mentioned, in this case the State presented evidence that
9 Defendant violated the terms and conditions of his probation by violating an order of
10 protection. Additionally, Defendant admitted that he was aware of the order of
11 protection. [MIO 4] This was sufficient to give rise to a reasonable inference that
12 Defendant’s violation was willful. See Aslin, 2018-NMCA-043, ¶ 9. Although
13 Defendant attempted to rebut the State’s showing by asserting that he assumed or
14 believed the order of protection had been dismissed, [DS 4; MIO 7-8; RP 130, 132]
15 Defendant does not dispute that he had merely been informed that the order of
16 protection would expire. [DS 4; CN 4; MIO 7; RP 133] Under the circumstances, the
17 trial court was free to disbelieve Defendant’s testimony and to conclude that the
18 violation was in fact willful. See State v. Gonzales, 1997-NMSC-050, ¶ 18, 124 N.M.
19 171, 947 P.2d 128.
3
1 {6} IT IS SO ORDERED.
2
3 LINDA M. VANZI, Judge
4 WE CONCUR:
5
6 JENNIFER L. ATTREP, Judge
7
8 MEGAN P. DUFFY, Judge
4