May 4, 2020- State of New Mexico v. Russell Perrin, No. A-1-CA-38112

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Odyssey.
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-38112	4
RUSSELL PERRIN,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY	7
Steven Blankinship, District Judge	8
Hector H. Balderas, Attorney General	9
Santa Fe, NM	10
for Appellee	11
Bennett J. Baur, Chief Public Defender	12
John C. Bennett, Assistant Appellate Defender	13
Santa Fe, NM	14
for Appellant	15
MEMORANDUM OPINION	16
VANZI, Judge.	17
{1} 	Defendant appeals from an order revoking his probation. We issued a calendar	18
notice proposing to affirm. Defendant has responded with a memorandum in	19
opposition. We affirm.	20
Court of Appeals of New Mexico
Filed 5/4/2020 11:26 AM

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{2} 	Defendant continues to challenge the sufficiency of the evidence to support the	1
revocation of his probation. [MIO 5] “In a probation revocation proceeding, the [s]tate	2
bears the burden of establishing a probation violation with a reasonable certainty.”	3
State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. “To establish a violation of a	4
probation agreement, the obligation is on the [s]tate to prove willful conduct on the	5
part of the probationer so as to satisfy the applicable burden of proof.” In Re Bruno	6
R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339; see State v. Martinez,	7
1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321 (explaining that probation	8
should not be revoked where the violation is not willful, in that it resulted from factors	9
beyond a probationer’s control).	10
{3} 	Here, the State alleged that Defendant violated numerous conditions of	11
probation: failed to follow the law, did not report, did not get permission to move,	12
possessed a controlled substance, did not pay probation costs, and absconded from	13
justice. [RP 184-86] The district court found that each of these violations occurred.	14
[RP 225] The evidence indicated that Defendant was in possession of a recently-stolen	15
motorcycle, did not report or pay fines, tested positive for methamphetamine and	16
opiates, and was generally unavailable for three months. [MIO 3-5] Defendant relies	17
on an unsubstantiated claim that he was in the hospital for part of this time. [MIO 4]	18
The district court, sitting as fact-finder, was free to reject Defendant’s claim and the	19

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implication that some of the violations were not wilful. See State v. Sutphin,	1
1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314 (noting that the fact-finder is	2
free to reject a defendant’s version of events). The court was also free to reject	3
Defendant’s claim [MIO 5] that he had not used controlled substances; instead, the	4
court could rely on the positive test results.	5
{4} 	For the reasons set forth above, and in our calendar notice, we affirm the district	6
court.	7
{5} 	IT IS SO ORDERED.	8
9
LINDA M. VANZI, Judge	10
WE CONCUR:	11
12
MEGAN P. DUFFY, Judge	13
14
BRIANA H. ZAMORA, Judge	15