Court of Appeals of New Mexico
Decision Information
Rule Set 12 - Rules of Appellate Procedure - cited by 9,502 documents
Citations - New Mexico Appellate Reports
In re Bruno R. - cited by 93 documents
State v. Leon - cited by 197 documents
State v. Martinez - cited by 138 documents
State v. Sutphin - cited by 509 documents
Decision Content
This decision of the New Mexico Court of Appeals was not selected for publication in the New Mexico Appellate Reports. Refer to Rule 12-405 NMRA for restrictions on the citation of unpublished decisions. Electronic decisions may contain computer-generated errors or other deviations from the official version filed by the Court of Appeals.
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-38112
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RUSSELL PERRIN,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Steven Blankinship, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
John C. Bennett, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
, Judge.
{1} Defendant appeals from an order revoking his probation. We issued a calendar notice proposing to affirm. Defendant has responded with a memorandum in opposition. We affirm.
{2} Defendant continues to challenge the sufficiency of the evidence to support the revocation of his probation. [MIO 5] “In a probation revocation proceeding, the [s]tate bears the burden of establishing a probation violation with a reasonable certainty.” State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. “To establish a violation of a probation agreement, the obligation is on the [s]tate to prove willful conduct on the part of the probationer so as to satisfy the applicable burden of proof.” In Re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339; see State v. Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321 (explaining that probation should not be revoked where the violation is not willful, in that it resulted from factors beyond a probationer’s control).
{3} Here, the State alleged that Defendant violated numerous conditions of probation: failed to follow the law, did not report, did not get permission to move, possessed a controlled substance, did not pay probation costs, and absconded from justice. [RP 184-86] The district court found that each of these violations occurred. [RP 225] The evidence indicated that Defendant was in possession of a recently-stolen motorcycle, did not report or pay fines, tested positive for methamphetamine and opiates, and was generally unavailable for three months. [MIO 3-5] Defendant relies on an unsubstantiated claim that he was in the hospital for part of this time. [MIO 4] The district court, sitting as fact-finder, was free to reject Defendant’s claim and the implication that some of the violations were not wilful. See State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that the fact-finder is free to reject a defendant’s version of events). The court was also free to reject Defendant’s claim [MIO 5] that he had not used controlled substances; instead, the court could rely on the positive test results.
{4} For the reasons set forth above, and in our calendar notice, we affirm the district court.
{5} IT IS SO ORDERED.
LINDA M. VANZI, Judge
WE CONCUR:
MEGAN P. DUFFY, Judge
BRIANA H. ZAMORA, Judge