1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
4 errors or other deviations from the official paper version filed by the Court of Appeals and does
5 not include the filing date.
6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. NO. 29,451
10 ADAM MARTINEZ,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
13 J.C. Robinson, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Navin H. Jayaram, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
1 Defendant appeals from the district court order revoking probation and
2 imposing the suspended sentence and commitment. Defendant contends that he
3 was not provided the opportunity to present a defense at his probation revocation
4 hearing. This Court issued a calendar notice proposing to affirm. Defendant has
5 filed a memorandum in opposition, which this Court has duly considered. Because
6 we remain unpersuaded, we affirm.
7 DISCUSSION
8 Defendant was sentenced on August 5, 2008, to attend and complete an in-
9 patient substance abuse treatment program at Second Chance Rehabilitation Center
10 (“Center”) for a minimum of two years. [DS 3] Defendant was discharged by the
11 Center in December 2008. [Id.] Jeannie Balvin, an employee at the Center,
12 initiated the proceedings to remove Defendant from the program for non-
13 compliance. [DS 3-4] Ms. Balvin asserted the following grounds for Defendant’s
14 discharge: Defendant was a negative influence, caused disruptions, was
15 disrespectful, kept people up late at night, was lying to get into other areas of the
16 Center, had been doing poorly in his course work, was disruptive in the course
17 room, was destructive, and refused to clean. [RP 228-30] The district court entered
18 an order revoking Defendant’s probation.
2
1 The State bears the burden of proving that a probation violation occurred
2 with reasonable certainty. See State v. Sanchez, 2001-NMCA-060, ¶ 13, 130 N.M.
3 602, 28 P.3d 1143. After the State offers proof of a breach of a material condition
4 of probation, the defendant has the opportunity to come forward with evidence to
5 excuse the noncompliance. See State v. Martinez, 108 N.M. 604, 606, 775 P.2d
6 1321, 1323 (Ct. App. 1989). Defendant continues to assert that he was not
7 permitted the opportunity to present evidence showing he did not willfully violate
8 the terms of his probation, and claims that this amounts to a violation of his right to
9 due process. [MIO 7]
10 A defendant is entitled to minimum due process rights in a probation
11 revocation hearing. See Sanchez, 2001-NMCA-060, ¶ 13 (acknowledging a right
12 to written notice of the violation, disclosure of evidence against the defendant, and
13 the right to confront and cross-examine adverse witnesses). In this Court’s
14 calendar notice, we proposed to conclude that Defendant was afforded due process
15 and that Defendant had not satisfied the requirement that he make at least a
16 minimal showing of prejudice in support of his claim. [CN 5] See State v.
17 Campbell, 2007-NMCA-051, ¶ 18, 141 N.M. 543, 157 P.3d 722, cert. quashed,
18 2008-NMCERT-002, 143 N.M. 667, 180 P.3d 674.
3
1 In his memorandum in opposition, Defendant contends that he was unable
2 (1) to present his defense that he was discharged from the facility due to lack of
3 money; (2) to present a defense to the allegation that he had misused cleaning
4 supplies; and (3) to present evidence that he was assaulted by a security guard.
5 [MIO 11-12] Specifically, Defendant takes issue with the district court not
6 allowing a staff member to testify that employees were not being paid on time, and,
7 similarly, not permitting a resident to testify that he had overheard staff members
8 complaining that they were not paid on time. [MIO 8-10] Defendant contends that
9 he should have been permitted to question a resident as to whether there were
10 money problems at the Center, but the district court excluded the testimony
11 because the resident was not qualified to provide testimony regarding the Center’s
12 financial status. [MIO 9-10] Defendant further contends that he should have been
13 permitted to present testimony by a resident that there were problems with cleaning
14 supplies, despite the State’s objection that the testimony was cumulative. [MIO 9]
15 And, Defendant argues he should have been permitted to submit evidence that he
16 was assaulted by a security guard at the center. [MIO 11]
17 To the extent the district court prevented Defendant from soliciting
18 testimony that was irrelevant, cumulative, not based on personal knowledge, or
19 was hearsay, this Court concludes that the inability to present such evidence did
20 not violate Defendant’s right to due process. Cf. Peterson Props. v. Valencia
4
1 County Valuation Protests Bd., 89 N.M. 239, 242, 549 P.2d 1074, 1077 (Ct. App.
2 1976) (holding that taxpayer was not denied due process where irrelevant evidence
3 was properly excluded). Moreover, Defendant was permitted to solicit testimony
4 that the staff member testifying had not been paid on time [MIO 8]; testimony from
5 the same staff member that Defendant did well on his course work and that the
6 staff member had never seen Defendant refuse to clean [MIO 2]; testimony that the
7 quality of the food had declined [MIO 5]; and testimony that the center was often
8 out of cleaning supplies and Ms. Balvin would have to purchase them herself [MIO
9 3]. Defendant was also permitted the opportunity to cross-examine Ms. Balvin
10 regarding her motives. [CN 4] In this Court’s calendar notice, we proposed to
11 conclude that Defendant had not demonstrated prejudice, given that Defendant was
12 permitted to present the evidence identified above. [CN 5] Defendant has not
13 demonstrated that this Court’s proposed ruling was in error. See State v. Ibarra,
14 116 N.M. 486, 489, 864 P.2d 302, 305 (Ct. App. 1993) (“A party opposing
15 summary disposition is required to come forward and specifically point out errors
16 in fact and/or law.”).
17 Finally, the district court’s revocation of Defendant’s probation is
18 sufficiently supported by Ms. Balvin’s testimony. As a result, this Court cannot
19 conclude that the district court abused its discretion in revoking Defendant’s
20 probation. See State v. Phillips, 2006-NMCA-001, ¶ 10, 138 N.M. 730, 126 P.3d
5
1 546 (recognizing that a district court’s revocation of probation is reviewed for an
2 abuse of discretion).
3 CONCLUSION
4 For the reasons stated above and in this Court’s notice of proposed
5 disposition, we affirm.
6
1 IT IS SO ORDERED.
2
3 MICHAEL E. VIGIL, Judge
4 WE CONCUR:
5
6 CYNTHIA A. FRY, Chief Judge
7
8 RODERICK T. KENNEDY, Judge
7