January 6, 2020- State of New Mexico v. Baynes H., No. A-1-CA-38473

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-38473	4
BAYNES H.	5
Child-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY	7
Fred Van Soelen, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
for Appellee	11
Bennett J. Baur, Chief Public Defender	12
B. Douglas Wood III	13
Santa Fe, NM	14
for Appellant	15
MEMORANDUM OPINION	16
VANZI, Judge.	17
{1} 	Baynes H. (Child) appeals from the district court’s order revoking his	18
probation. [RP 177-78]1 In this Court’s notice of proposed disposition, we proposed	19
1 All references to the record proper are to case number D-905-JR-2017-
00108.
Court of Appeals of New Mexico
Filed 1/6/2020 11:00 AM

2
to summarily affirm. Child filed a memorandum in opposition (MIO), which we	1
have duly considered. Remaining unpersuaded, we affirm.	2
{2} 	In Child’s docketing statement, he contended that the State failed to provide	3
sufficient evidence of his probation violations. [DS 7] In his memorandum in	4
opposition, Child continues to challenge the sufficiency of the evidence presented,	5
but now specifically argues that there was insufficient evidence to establish beyond	6
a reasonable doubt that the violations were willful. [MIO 4] “Before a court can find	7
[a c]hild to have violated his probation, evidence tending to establish his own willful	8
conduct beyond a reasonable doubt must have been presented to the court.” In re	9
Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339; see also NMSA	10
1978, § 32A-2-24(B) (2009) (“The standard of proof in probation revocation	11
proceedings shall be evidence beyond a reasonable doubt and the hearings shall be	12
before the court without a jury.”); State v. Erickson K., 2002-NMCA-058, ¶ 21, 132	13
N.M. 258, 46 P.3d 1258 (providing that, in determining whether there was sufficient	14
evidence to support a district court’s revocation of a child’s probation, we apply the	15
Rules of Evidence and view the evidence presented in the “light most favorable to	16
the [s]tate indulging all reasonable inferences in favor of the [district] court’s	17
judgment”). While the burden of proving a willful violation always remains on the	18
State, after the State presents a prima facie case of a violation, a child must come	19
forward with evidence that the failure to comply was not willful. See State v.	20

3
Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321 (requiring a	1
defendant to put forth some “evidence to excuse non-compliance” in order to	2
challenge the willfulness of a probation violation).	3
{3} 	In the present case, Child was required to check in with his juvenile probation	4
officer daily. [DS 3-4; see also RP 146] In his memorandum in opposition, Child	5
argues he “had just undergone a life change in being evicted from his home[,]” and	6
“such a change may have rendered communication impossible or at least more	7
difficult than usual.” [MIO 6] Child fails, however, to show that he presented	8
evidence to the district court establishing that he was unable to comply with this	9
condition. See id. ¶ 8 (concluding that a district court properly exercises its discretion	10
to revoke probation when a defendant fails to come forward with evidence that a	11
failure to comply with conditions was not willful); see also State v. Cordova, 2014-	12
NMCA-081, ¶ 10, 331 P.3d 980 (“[A]rgument of counsel is not evidence.” (internal	13
quotation marks and citation omitted)). Accordingly, we conclude the district court	14
did not err in revoking Child’s probation based on his failure to contact his JPO daily	15
and need not analyze Child’s arguments regarding the other violations of his	16
probation. See State v. Leon, 2013-NMCA-011, ¶ 37, 292 P.3d 493 (stating, with	17
reference to an adult probationer, that sufficient evidence to support even one	18
violation supports affirmance of a district court’s revocation of probation).	19

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{4} 	Additionally, Child continues to argue that revocation of his probation was	1
improper because the State failed to file a witness list as required by Rule 10-	2
231(A)(5) NMRA, and cumulative error mandates reversal of the district court’s	3
decision. [MIO 3, 7] In our notice of proposed disposition, we proposed to affirm on	4
these issues because Child had actual, prior notice of the only witness at the	5
revocation hearing, and he failed to demonstrate cumulative error. Child has not	6
asserted any facts, law, or argument in his memorandum in opposition that persuade	7
this Court that our notice of proposed disposition was erroneous on either of these	8
issues. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d	9
683 (“Our courts have repeatedly held that, in summary calendar cases, the burden	10
is on the party opposing the proposed disposition to clearly point out errors in fact	11
or law.”); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d	12
1003 (stating that “[a] party responding to a summary calendar notice must come	13
forward and specifically point out errors of law and fact[,]” and the repetition of	14
earlier arguments does not fulfill this requirement), superseded by statute on other	15
grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374.	16
{5} 	Accordingly, for the reasons stated in our notice of proposed disposition and	17
herein, we affirm the district court's order.	18

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{6} 	IT IS SO ORDERED.	1
_________________________	2
LINDA M. VANZI, Judge	3
WE CONCUR:	4
______________________________	5
JULIE J. VARGAS, Judge	6
______________________________	7
KRISTINE BOGARDUS, Judge	8