State v. Fischer

This memorandum opinion was not selected for publication in the New Mexico Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO, 3 Plaintiff-Appellee, 4 v. NO. 31,200 5 MICHAEL FISCHER, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 8 Diane Dal Santo, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 for Appellee 12 Jacqueline L. Cooper, Chief Public Defender 13 Will O’Connell, Assistant Appellate Defender 14 Santa Fe, NM 15 for Appellant 16 MEMORANDUM OPINION 17 WECHSLER, Judge. 18 Defendant appeals the sufficiency of the evidence to support violation of his 1 probation. In our notice, we proposed to affirm. Defendant has timely responded. 2 We have considered his arguments and not being persuaded, we affirm. 3 Defendant continues to argue that he did not wilfully fail to report to his 4 probation officer as he was first in the hospital having surgery and then at home under 5 doctor’s orders for bed rest. He argues that, under those circumstances, it was 6 impossible for him to report. As we pointed out in our notice, however, there was 7 some portion of time between the surgery and later bed rest orders that was 8 unaccounted for. During that time, there does not appear to have been any medical 9 excuse and Defendant did not report to his probation officer. Therefore, there is 10 sufficient evidence to support the conclusion that Defendant did not comply with the 11 reporting requirement of his probation. 12 Further, Defendant continues to argue that the evidence was insufficient to 13 support that he used illegal drugs. Even if we discount the evidence of a drug test as 14 not being properly admissible, there was evidence that Defendant himself admitted to 15 using illegal drugs. That admission alone is sufficient to support the conclusion that 16 Defendant violated the condition of his probation that he not use illegal drugs. See 17 State v. Sanchez, 109 N.M. 718, 720, 790 P.2d 515, 517 (Ct. App. 1990), abrogated 18 on other grounds by State v. Wilson, 2011-NMSC-001, 149 N.M. 273, 248 P.3d 315. 19 For the reasons stated herein and in the notice of proposed disposition, we 2 1 affirm. 2 IT IS SO ORDERED. 3 _________________________________ 4 JAMES J. WECHSLER, Judge 5 WE CONCUR: 6 __________________________________ 7 CELIA FOY CASTILLO, Chief Judge 8 __________________________________ 9 CYNTHIA A. FRY, Judge 3