September 1, 2020- State of New Mexico v. Lamarcus L. Scott, No. A-1-CA-38630

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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-38630	4
LAMARCUS L. SCOTT,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY	7
Angie K. Schneider, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
for Appellee	11
Bennett J. Baur, Chief Public Defender	12
MJ Edge, Assistant Appellate Defender	13
Santa Fe, NM	14
for Appellant	15
MEMORANDUM OPINION	16
VARGAS, Judge.	17
{1} 	Defendant appeals the district court’s order revoking his probation. In this	18
Court’s notice of proposed disposition, we proposed to summarily affirm. Defendant	19
filed a memorandum in opposition, which we have duly considered. Remaining	20
unpersuaded, we affirm.	21
Court of Appeals of New Mexico
Filed 9/1/2020 11:14 AM

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{2} 	In our calendar notice, we proposed to conclude the evidence was sufficient	1
to prove Defendant knowingly possessed items of contraband. [CN 3] In his	2
memorandum in opposition, Defendant continues to maintain there was no evidence	3
that he knew what the opaque balloons contained and, therefore, the State did not	4
prove a probation violation to a reasonable certainty. [MIO 4] However, Defendant	5
acknowledges he made statements indicating he received the items, which were	6
recovered in Defendant’s stool sample, before returning to jail from furlough. [MIO	7
2, 4] In addition, Defendant does not assert any facts, law, or argument in his	8
memorandum in opposition that persuade this Court that our notice of proposed	9
disposition was erroneous in regard to this issue. See State v. Mondragon, 1988-	10
NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that a party responding to	11
a summary calendar notice must come forward and specifically point out errors of	12
law and fact, and the repetition of earlier arguments does not fulfill this requirement),	13
superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-	14
031, ¶ 3, 297 P.3d 374; see also Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124	15
N.M. 754, 955 P.2d 683 (“Our courts have repeatedly held that, in summary calendar	16
cases, the burden is on the party opposing the proposed disposition to clearly point	17
out errors in fact or law.”).	18
{3} 	Defendant also reasserts his argument that the law should not allow revocation	19
of a term of probation that has not begun. [MIO 2-4] Acknowledging that we are	20

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bound by precedent, Defendant asks that we certify this case to the Supreme Court	1
to revisit its ruling in State v. Lopez, 2007-NMSC-011, 141 N.M. 293, 154 P.3d 668.	2
[MIO 2-4] “[W]e ordinarily do not certify an issue to our [S]upreme [C]ourt for	3
reconsideration of an earlier case unless subsequent legislation, decisions of the New	4
Mexico Supreme Court, or decisions of the United States Supreme Court place in	5
question the underpinnings of the decision being challenged.” State v. Bencomo,	6
1990-NMCA-028, ¶ 9, 109 N.M. 724, 790 P.2d 521. Defendant does not argue that	7
any of these circumstances are present. Rather, Defendant claims that adhering to	8
Lopez can lead to absurd results, and cites only to the Lopez dissent and an out of	9
state case that was issued prior to Lopez as support. [MIO 3-4] We therefore decline	10
to certify this case to our Supreme Court.	11
{4} 	Accordingly, for the reasons stated in our notice of proposed disposition and	12
herein, we affirm the district court’s order revoking Defendant’s probation.	13
{5} 	IT IS SO ORDERED.	14
_________________________________	15
JULIE J. VARGAS, Judge	16
WE CONCUR:	17
_________________________________	18
MEGAN P. DUFFY, Judge	19
_________________________________	20
BRIANA H. ZAMORA, Judge	21