September 2, 2020- State of New Mexico v. Rider Arroyo, No. A-1-CA-38506

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Odyssey.
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-38506
5 RIDER ARROYO,
6 Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
8 Mark T. Sanchez, District Judge
9 Hector H. Balderas, Attorney General
10 Santa Fe, NM
11 for Appellee
12 Bennett J. Baur, Chief Public Defender
13 Douglas B. Wood, III, Assistant Appellate Defender
14 Santa Fe, NM
15 for Appellant
16 MEMORANDUM OPINION
17 VARGAS, Judge.
18 {1} Defendant appeals from an order revoking his probation. We issued a calendar
19 notice proposing to affirm. Defendant has responded with a memorandum in
20 opposition. Not persuaded, we affirm.
Court of Appeals of New Mexico
Filed 9/2/2020 9:38 AM

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1 {2} Defendant challenges the sufficiency of the evidence to support the revocation
2 of his probation. [MIO 4] “In a probation revocation proceeding, the [s]tate bears the
3 burden of establishing a probation violation with a reasonable certainty.” See State
4 v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. “To establish a violation of a
5 probation agreement, the obligation is on the [s]tate to prove willful conduct on the
6 part of the probationer so as to satisfy the applicable burden of proof.” In Re Bruno
7 R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339; see State v. Martinez,
8 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321 (explaining that probation
9 should not be revoked where the violation is not willful, in that it resulted from
10 factors beyond a probationer’s control).
11 {3} Here, the State alleged that Defendant violated three conditions of probation:
12 reporting, employment, and status. [RP 84] The district court found that Defendant
13 violated the “terms” of his probation. [RP 107] Defendant’s docketing statement and
14 memorandum in opposition both note that the district court revoked probation based
15 on the failure to report. [DS 3; MIO 2]
16 {4} The State relied on the testimony of Kristen Mueller, who had reviewed
17 Defendant’s probation file, but did not appear to have first-hand knowledge of the
18 reporting violation. [DS1-2; MIO 2] The district court also took judicial notice of the
19 court’s file. [DS 2] Although Defendant’s docketing statement did not provide us

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1 with a detailed description of the evidence, we presumed that Mueller’s testimony and
2 the court’s file was consistent with the allegations made in the petition to revoke
3 probation, which support the failure to report violation. [RP 80] See State v. Aragon,
4 1999-NMCA-060, ¶ 10, 127 N.M. 393, 981 P.2d 1211 (stating that there is a
5 presumption of correctness in the rulings or decisions of the trial court, and the party
6 claiming error bears the burden of showing such error).
7 {5} Defendant’s memorandum in opposition does not dispute our presumption that
8 Mueller’s testimony was consistent with the factual allegations specified in the
9 petition. Instead, Defendant continues to argue that the State’s failure to call the
10 probation officer who attempted to contact Defendant, and to whom Defendant failed
11 to respond or otherwise report, violated his right to confrontation.
12 {6} State v. Guthrie, 2011-NMSC-014, 150 N.M. 84, 257 P.3d 904
13 comprehensively addresses the right to confrontation, as it applies in probation
14 revocation proceedings. In recognition of the “inherent flexibility” of due process in
15 this context and the informality of probation revocation proceedings, our New
16 Mexico Supreme Court explained that the right to confront and cross-examine
17 adverse witnesses generally applies unless “good cause” exists for a departure.
18 Id.¶¶ 11-12, 33. Good cause is determined on a case-by-case basis, giving due
19 consideration to “pragmatism . . . fairness and the utility of confrontation in [each]

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1 particular factual context.” Id. ¶ 33. The centrality of the assertion to which the
2 evidence is directed is a significant consideration, id. ¶ 34, as well as the “inherent
3 reliability” of the evidence. Id. ¶ 36. And critically, the Court explained that
4 confrontation is needful only with respect to “contested relevant facts[.]” Id. ¶ 35.
5 {7} In Guthrie, a probationer’s failure to complete a mandatory inpatient treatment
6 program was at issue. The Court ultimately concluded that the State was not required
7 to call an individual from the treatment program to testify to the “objective, negative,
8 and rather routine fact” that the probationer had failed to complete the program. Id.
9 ¶ 46. In so ruling, the Court repeatedly relied on the fact that the probationer’s
10 non-compliance was undisputed. See id. ¶¶ 17, 34, 45, 48.
11 {8} Here, Defendant claims that he sufficiently contested the reporting issue with
12 his testimony that he was told he could report by phone. [MIO 4; DS 3] However,
13 neither Defendant’s docketing statement or the memorandum in opposition state that
14 Defendant testified that he did in fact report by phone, or that he introduced any
15 evidence to support the assertion. In addition, the State claimed that Defendant had
16 not reported for a three-month period, and could not be located by the probation
17 officer at his reported residence. [RP 84] In the absence of a specific factual challenge
18 that would undermine the validity of the failure to report allegation, we conclude that

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1 the district court had good cause not to require the in-court testimony of the probation
2 officer who oversaw Defendant’s case.
3 {9} For the reasons set forth above, we affirm.
4 {10} IT IS SO ORDERED.
5 __________________________________
6 JULIE J. VARGAS, Judge
7 WE CONCUR:
8 _________________________________
9 J. MILES HANISEE, Chief Judge
10 _________________________________
11 ZACHARY A. IVES, Judge