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2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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
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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. 29,594
10 EMANUEL B.,
11 Child-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 William C. Birdsall, District Judge
14 Gary K. King, Attorney General
15 Santa Fe, NM
16 for Appellee
17 Hugh W. Dangler, Chief Public Defender
18 Kathleen T. Baldridge, Assistant Appellate Defender
19 Santa Fe, NM
20 for Appellant
21 MEMORANDUM OPINION
22 VIGIL, Judge.
1 Child appeals the revocation of his probation. [RP 71] He relies on State v.
2 Erickson K., 2002-NMCA-058, ¶¶ 21-25, 132 N.M. 258, 46 P.3d 1258, arguing
3 that the revocation was not supported by firsthand knowledge. [DS 3] Our notice
4 proposed to affirm. Child filed a memorandum in opposition. We have considered
5 the arguments in Child’s memorandum, but are not persuaded the evidence is
6 insufficient to support the revocation of his probation. Accordingly, we affirm.
7 DISCUSSION
8 A juvenile probation violation must be proved beyond a reasonable doubt.
9 Id. ¶ 21. On appeal, we view the evidence in the light most favorable to the State
10 and indulge all reasonable inferences in favor of the trial court’s order. Id.
11 Child is correct that Erickson K. requires firsthand knowledge. In that case,
12 we found the evidence insufficient where the only evidence was the Juvenile
13 Probation Officer’s hearsay testimony that the child had absconded from a
14 treatment program. Id. ¶ ¶ 22, 24. We held that to support revocation of probation
15 the State must produce firsthand knowledge of the situation.
16 This case is distinguishable because there was much more than the scant
17 hearsay evidence produced in Erickson K. The evidence is that Child was home
18 from residential treatment on a pass, and went to a park. [RP 61] Child’s Mother
19 testified that when she next saw him he appeared to be intoxicated and smelled of
2
1 alcohol. [DS 2; RP 61] An officer from the Juvenile Probation Office also testified
2 that Child appeared to be intoxicated. [DS 2; RP 62] Most significantly, Child’s
3 mental health therapist from the treatment program testified that Child was
4 discharged from the program based on Child’s conduct during Child’s home pass.
5 [DS 3; RP 62-63] This testimony, along with the other evidence, makes this case
6 distinguishable from Erickson K. In Erickson K., the State did not present a staff
7 member from the residential treatment center, which we considered necessary. Id.
8 ¶ 22. Here, the State did present a staff member to verify that Child was
9 discharged [DS 3], and why. The State also presented the testimony of two
10 witnesses whose testimony further explained the situation that resulted in Child
11 being discharged from the residential treatment program.
12 Child argues that without a finding that he was intoxicated, the State’s case
13 is insufficient. He relies on the fact that when the juvenile probation officer
14 attempted to testify about the read out from the portable breath testing machine, the
15 court would not allow it. [RP 62] A review of the tape log indicates that the court,
16 in making it ruling revoking probation, observed that it “would” have found him
17 guilty of consuming alcohol, but because it had prohibited the juvenile probation
18 officer from testifying to the test result, it would not find him guilty of testing
19 positive for alcohol. [RP 63] The court did, however, revoke his probation because
3
1 he violated probation by being terminated from his residential treatment program.
2 [RP 63]
3 Child relies on the court’s failure to find a positive alcohol test result to
4 argue that the evidence is insufficient to support revocation: “[T]he children’s
5 court found that there was no evidence that [Child] was intoxicated, but in the same
6 breath determined that Child’s discharge from the [residential treatment program]
7 for the non-existent intoxication was sufficient to revoke his probation.” [MIO 5]
8 It is clear to us that the court did not find that Child tested positive, but it is
9 not clear that the court declined to consider any evidence of intoxication. As we
10 have noted, Child’s Mother and the juvenile probation officer both testified that
11 Child appeared to be intoxicated. In addition, there was also evidence, from
12 Child’s treatment therapist at the program—someone with firsthand
13 knowledge—that the program terminated Child based on his misconduct while he
14 had been released to his Mother. Consequently, we conclude that there was ample
15 evidence of Child’s misconduct, combined with firsthand knowledge that Child
16 was terminated from the treatment program based on his misconduct. We do not
17 read Erickson K. as requiring that every witness who testifies have firsthand
18 knowledge of every fact in the case. We hold that the evidence was sufficient to
19 prove beyond a reasonable doubt that Child violated his probation, and affirm.
4
5
1 IT IS SO ORDERED.
2
3 MICHAEL E. VIGIL, Judge
4 WE CONCUR:
5
6 MICHAEL D. BUSTAMANTE, Judge
7
8 CELIA FOY CASTILLO, Judge
6