 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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. 30,730

10 MARVIN N.,

11          Child-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 William C. Birdsall, District Court Judge

14   Gary K. King, Attorney General
15   Santa Fe, New Mexico
16   Francine A. Chavez, Assistant Attorney General
17   Albuquerque, NM

18 for Appellee

19 Jacqueline Cooper, Acting Chief Public Defender
20 B. Douglas Wood III, Assistant Appellate Defender
21 Santa Fe, NM

22 for Appellant


23                                 MEMORANDUM OPINION

24 CASTILLO, Chief Judge.
 1        Child seeks reversal of the district court’s revocation of his probation. On

 2 appeal, Child contends that there was insufficient evidence to support the revocation

 3 of his probation. For the reasons that follow, we affirm.

 4 BACKGROUND

 5        In September 2009, Child was placed on probation for driving under the

 6 influence, driving without a license, and driving with an expired registration. In

 7 relevant part, Child’s probation terms required that Child satisfactorily complete

 8 “outpatient and/or residential treatment and follow all aftercare recommendations,”

 9 and prohibited Child from “consum[ing], possess[ing], or be[ing] in the presence of

10 anyone possessing weapons, alcohol or drugs.”

11        Child argues that the evidence presented below was insufficient to result in the

12 revocation of his probation. Applying the rules of evidence, we must determine

13 whether there was sufficient evidence to uphold the decision below, viewing the

14 evidence in a light most favorable to the verdict and indulging all reasonable

15 inferences and resolving all conflicts in the evidence in favor of the district court’s

16 judgment. State v. Erickson K., 2002-NMCA-058, ¶ 21, 132 N.M. 258, 46 P.3d 1258.

17 The question is whether the district court’s “decision is supported by substantial

18 evidence, not whether the court could have reached a different conclusion.” In re

19 Ernesto M., Jr., 1996-NMCA-039, ¶ 15, 121 N.M. 562, 915 P.2d 318.

                                              2
 1        A juvenile probation violation must be proved beyond a reasonable doubt.

 2 Erikson, 2002-NMCA-058, ¶ 21. To establish a violation of a probation agreement,

 3 “evidence tending to establish his own willful conduct beyond a reasonable doubt

 4 must have been presented to the court.” In re Bruno R., 2003-NMCA-057, ¶ 11, 133

 5 N.M. 566, 66 P.3d 339. While the burden of proving a willful violation always

 6 remains on the State, after the State presents a prima facie case of a violation, the

 7 burden shifts to Child to come forward with evidence that the failure to comply was

 8 through no fault of his own. State v. Martinez, 108 N.M. 604, 606-07, 775 P.2d 1321,

 9 1323-24 (Ct. App. 1989). There is no shifting of the burden of proof, but a shifting

10 of the burden of going forward with evidence to meet or rebut a presumption that has

11 been established by the evidence. Id. In Martinez, we stated that

12        [o]nce the state offers proof of a breach of a material condition of
13        probation, the defendant must come forward with evidence to excuse
14        non-compliance. If the [district] court finds that his failure to comply
15        was not willful, but resulted from factors beyond his control and through
16        no fault of his own, then probation should not be revoked. However, if
17        defendant fails to carry his burden, then the [district] court is within its
18        discretion in revoking.

19 Id. (citations omitted).

20 DISCUSSION

21        The evidence is uncontroverted that Child was discharged from his aftercare

22 program. The parties disagree over whether there was sufficient evidence that Child’s


                                               3
 1 probation violation was willful. However, the evidence does not support the argument

 2 that Child’s violation was through no fault of his own. The State called Child’s

 3 juvenile probation officer who testified that she had gone through the entire agreement

 4 with Child to ensure that he understood the agreement and what conditions he was

 5 required to follow. Child was on notice that in order to maintain his probation, he was

 6 required to successfully complete the required treatment and aftercare programs. This

 7 meant that he was required to make good faith efforts to comply with the program’s

 8 requirements.

 9        Here, Child failed to illustrate either a lack of willfulness or lawful excuse.

10 Instead, Child argued that he had been wrongly discharged, claiming that he had not

11 engaged in any of the misconduct that caused his dismissal. However, the district

12 court heard testimony from both Child’s case manager and the facility manager

13 regarding Child’s discharge and the incident in question. The case manager testified

14 that on April 17 and 18, 2010, Child had been home on a pass from his aftercare

15 facility. The day after Child returned, the facility staff was notified that there were

16 facility residents drinking alcohol on the premises. The facility manager observed

17 Child talking with slurred speech, acting out of character, and socializing with an

18 intoxicated resident. The case manager searched the facility, including the residents’

19 personal lockers and bedrooms. During the search, the case manager found an empty


                                              4
 1 bottle of vodka under Child’s top bunk mattress and a glass that both staff members

 2 testified smelled like alcohol within arm’s reach of the top bunk. The case manger

 3 instructed Child to open his personal locker that was locked at the time of the search.

 4 Inside, he found a bottle containing a red liquid. The case manager tested the red

 5 liquid using an oral swab test that is normally used inside an individual’s mouth to test

 6 for alcohol. The test indicated that the red liquid contained alcohol.

 7        The facility manager testified that Child had a number of issues at the facility,

 8 including not attending some drug and alcohol counseling sessions. He further

 9 testified that he had received reports that Child tested positive for cocaine and THC,

10 but the test results were not entered into evidence. The facility manager testified that

11 he took part in the discharge decision, and Child was discharged for his misconduct

12 in possessing alcohol and his positive drug test results.

13        Child argues that without a finding that he was actually in possession of alcohol

14 beyond a reasonable doubt, the State’s case is insufficient. However, while the district

15 court did not find that Child possessed alcohol, this does not mean that the court

16 declined to consider any evidence of Child’s possession of alcohol and intoxication

17 at the facility to support its conclusion that Child had willfully violated the conditions

18 of his probation. We hold that based on the above outlined testimony, there was

19 sufficient evidence of Child’s misconduct, combined with firsthand knowledge of the


                                               5
 1 testifying staff members that Child was discharged based on his misconduct.

 2        Child additionally argues that the Court erroneously admitted evidence

 3 regarding Child’s failed drug tests and the results of the mouth swab test conducted

 4 on the liquid found in Child’s locker. Child argues that the evidence of the drug tests

 5 constituted hearsay because the testifying facility manager had received second-hand

 6 information, and the reliability of using an oral swab test in a liquid had not been

 7 properly established. Assuming that such evidence was admitted improperly, we

 8 consider the effect of their improper admission. “Error may not be predicated upon

 9 a ruling which admits or excludes evidence unless a substantial right of the party is

10 affected[.]” Rule 11-103(A) NMRA. Child concedes that the district court gave no

11 substantive value to the results of the mouth swab test and that the district court stated

12 that the drug test results were not admissible as substantive evidence that Child had,

13 in fact, failed such tests. Instead, this evidence was admitted to establish the

14 witnesses’ knowledge of Child’s history at the facility. We deem it noteworthy that

15 this was a bench trial, and “the general rule pertaining to that type of trial appears to

16 give a judge more flexibility in making admissibility determinations than in jury

17 trials.” See, e.g., Tartaglia v. Hodges, 2000-NMCA-080, ¶ 30, 129 N.M. 497, 10 P.3d

18 176. We presume that a judge is able to properly weigh the evidence, and thus the

19 erroneous admission of evidence in a bench trial is harmless unless it appears that the


                                               6
 1 judge must have relied upon the improper evidence in rendering a decision. State v.

 2 Hernandez, 1999-NMCA-105, ¶ 22, 127 N.M. 769, 987 P.2d 1156. Because other

 3 substantial evidence supports the revocation of Child’s probation and Child concedes

 4 that any allegedly erroneously admitted evidence was given no substantive value, any

 5 erroneous admission of evidence was harmless.

 6        In sum, the State presented sufficient evidence that Child violated his probation

 7 agreement. Because there was competent evidence that Child willfully violated a

 8 substantial condition of his probation, the district court did not err in revoking his

 9 probation.

10 CONCLUSION

11        For the foregoing reasons, we affirm the revocation of Child’s probation.

12        IT IS SO ORDERED.



13                                         ____________________________________
14                                          CELIA FOY CASTILLO, Chief Judge

15 WE CONCUR:



16 ________________________________
17 CYNTHIA A. FRY, Judge




                                              7
1 ________________________________
2 MICHAEL E. VIGIL, Judge




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