 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 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 STATE OF NEW MEXICO,

 8          Plaintiff-Appellee,

 9 v.                                                                                    NO. 30,456

10 RALPH FLORES,

11          Defendant-Appellant.


12 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
13 Stephen K. Quinn, District Judge

14 Gary K. King, Attorney General
15 Santa Fe, NM

16 for Appellee

17 Trace L Rabern Attorney and Counselor at Law LLC
18 Trace L Rabern
19 Santa Fe, NM

20 for Appellant



21                                 MEMORANDUM OPINION
 1 CASTILLO, Judge.

 2        Ralph Flores (Defendant) appeals from the order on report of probation

 3 violation. [RP 150 There are three record propers for district court Nos. D-0905-CR-

 4 0200600323, D-0905-CR-0200600570, and D-0905-CR-0200600569. The order on

 5 report of probation violation is the same for all three cases. All citations to the record

 6 proper in this opinion and in the calendar notice are to the record proper for D-0905-

 7 CR-0200600323.] Defendant raises one issue on appeal: whether allowing the State

 8 to go forward on an allegation of a probation violation that was not included as a

 9 ground for revocation in the probation violation report or the motion to revoke

10 resulted in prejudice to the Defendant to such an extent that a new hearing is merited.

11 [DS 4] This Court’s calendar notice proposed summary affirmance. [Ct. App. File,

12 CN1] Defendant has filed a memorandum in opposition that we have duly considered.

13 [Ct. App. File, MIO] Unpersuaded, however, we affirm.

14 DISCUSSION

15        “We review the trial court’s decision to revoke probation under an abuse of

16 discretion standard.” State v. Martinez, 108 N.M. 604, 606, 775 P.2d 1321, 1323 (Ct.

17 App. 1989). In order to establish an abuse of discretion, “it must appear the trial court

18 acted unfairly, or arbitrarily, or committed manifest error.” Id.

19        In this case, the State filed a report of probation violation on January 11, 2010.


                                               2
 1 [RP 111] The report alleged that Defendant had violated probation condition No. 2

 2 (failure to report) and probation condition No. 9 (buying, selling, consuming drugs).

 3 [RP 111-13] The report further sets forth supporting evidence with regard to both

 4 alleged violations. [RP 112-13] On January 13, 2010, the State filed a motion to

 5 revoke Defendant’s probation on the basis that Defendant had violated probation

 6 condition No. 2 (Count 1), and probation condition No. 9 (Count 2). [RP 115] After

 7 the hearing, the district court entered the order on report of probation violation. [RP

 8 150] The order indicates that the district court found that Defendant had violated

 9 probation condition No. 2 (failure to report), Count 1, and revoked Defendant’s

10 probation based on that violation. [RP 150] The district court dismissed Count 2,

11 violation of probation condition No. 9 (buying, selling, consuming drugs). [RP 151]

12        The district court dismissed Count 2 for two reasons. First, the State failed to

13 disclose the correct report containing the drug test results for a drug test performed on

14 January 6, 2010, which supported the current probation violation report and the

15 motion to revoke Defendant’s probation filed on January 11, 2010, and January 13,

16 2010, respectively, until about ten minutes before the probation violation hearing.

17 [DS 2; RP 148, tape log at 4:22:10 - 4:23:27 PM] Second, the State then tried to

18 support the current allegations regarding Defendant’s violation of probation condition

19 No. 9 with a report of drug test results for a drug test that had been performed on


                                               3
 1 September 8, 2009, when that drug test report was not the basis for the probation

 2 violation report or the motion to revoke Defendant’s probation filed on January 11 and

 3 13, 2010. [DS 2-3; RP 148, tape log at 4:22:39 - 4:23:27 PM]



 4        In the docketing statement, Defendant discusses at length the prejudice

 5 Defendant would have suffered if the district court had based its decision to revoke

 6 Defendant’s probation on (a) the untimely disclosure of the report regarding the

 7 January 6, 2010, drug test, or (b) on the September 8, 2009, drug test that had not

 8 formed the basis for the current motion to revoke Defendant’s probation. [DS 2-4]

 9 Defendant contends that the testimony about the positive drug test from September 8,

10 2009, even though excluded, improperly influenced the district court’s decision to

11 hold that Defendant had, nevertheless, violated his probation and, therefore,

12 Defendant is entitled to a new hearing. [DS 4]

13        In the memorandum in opposition, Defendant continues to argue that even

14 though the district court eventually agreed that it was proper to exclude the extensive

15 evidence of other alleged drug violations, the evidence of other violations so unfairly

16 tainted the proceedings so as to render the trial court’s decision on the “technical

17 count,” Count 1 -Reporting, unfair. [MIO 6] Defendant cites State v. Franklin, 78

18 N.M. 127, 129, 428 P.2d 982, 984 (1967), in support of his contentions. [Id.] As


                                              4
 1 such, Defendant also contends that he was entitled to an opportunity to explain the

 2 alleged violations for Count 1—Failure to Report, and to offer mitigating evidence

 3 with regard to what he considers a “technical” violation of his probation, the failure

 4 to report. [MIO 8-9] Thus, Defendant also argues that he was prejudiced because his

 5 probation was revoked and he was incarcerated for his remaining three years for the

 6 “technical” violation of failing to report. [MIO 9] Defendant further argues that he

 7 was denied due process because he was not provided with written notice of the exact

 8 nature of the evidence that the State would present regarding Count 2 (buying, selling

 9 consuming drugs). [MIO 11] Finally, Defendant argues that, although it was not

10 established explicitly on the record, the district court “most certainly relied” on the

11 “mistaken and discarded evidence” of Count 2 (buying, selling consuming drugs).

12 [MIO 12] We disagree.

13        The State’s probation violation report and the motion to revoke Defendant’s

14 probation asserted, in Count 1, that Defendant had failed to report and had a long

15 history of failing to report in violation of this probation condition No. 2. [RP 112-13]

16 At the hearing, Defendant’s probation officer testified that at a prior probation

17 revocation report hearing, Defendant was ordered to serve time and, upon release,

18 Defendant was ordered to report to his probation officer within 24 hours. Defendant

19 was released on December 8, 2009, and he did not report. Defendant’s failure to


                                              5
 1 report within 24 hours of December 8, 2009, was discovered on January 5, 2010,

 2 when Defendant was arrested for this reason. [RP 146, tape log at 3:13:52 - 3:16:06

 3 PM; RP 148, tape log at 4:06:07 PM; RP 148, tape log at 4:16:06 PM] We have

 4 therefore concluded that the record does not support Defendant’s several contentions

 5 in the memorandum that his failure to report was a “technical” violation. Certainly,

 6 the district court had adequate basis for revoking Defendant’s probation based solely

 7 on Defendant’s history of failing to report to his probation officer pursuant to the

 8 probation agreement and the district court’s orders. In light of the probation officer’s

 9 testimony, and to the extent the district court may have disregarded Defendant’s

10 attempts to explain his failures to report, we note that the tape logs indicate that

11 Defendant did not testify at the probation revocation hearing and, in any case, the

12 district court as fact finder is not required to believe Defendant’s version of events.

13 See State v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789 (“The

14 reviewing court does not weigh the evidence or substitute its judgment for that of the

15 fact finder as long as there is sufficient evidence to support the verdict.”); see also

16 State v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829 (“Contrary

17 evidence supporting acquittal does not provide a basis for reversal because the jury

18 is free to reject [the d]efendant’s version of the facts.”).

19        We hold that the district court appropriately disregarded both the untimely and


                                               6
 1 the stale drug test results as bases for revoking Defendant’s probation. Moreover, as

 2 Defendant discusses in the memorandum, the district court appropriately disregarded

 3 the drug test results to the extent that Defendant was not given prior written notice of

 4 the type of evidence that the State intended to rely upon with regard to Count 2

 5 (buying, selling, consuming drugs). [MIO 11] Thus, we agree with Defendant that

 6 if the district court had not disregarded the drug-related evidence, Defendant’s due

 7 process rights would have been violated.

 8        Instead, however, the district court appropriately based its decision to revoke

 9 Defendant’s probation on Defendant’s failure to report, which under the facts of this

10 case and given Defendant’s consistent failure to report, is an express condition of

11 Defendant’s probation, and it is far from a “technical” [MIO 9] violation. To the

12 extent that Defendant continues to contend in the memorandum in opposition that the

13 district court “most certainly relied” upon and must have been prejudiced by the drug-

14 related evidence [MIO 12], we continue to point out that the hearing on Defendant’s

15 probation violation report was tried to the district court judge, not a jury. Although

16 Defendant argues that the district court heard inadmissible, prejudicial testimony or

17 comments, “[i]n a non-jury case, the trial court is presumed to have disregarded

18 incompetent evidence, absent a showing that the court was influenced thereby.” In

19 re I.N.M., 105 N.M. 664, 669, 735 P.2d 1170, 1175 (Ct. App. 1987). Defendant has


                                              7
 1 made no such showing, and he acknowledges in the memorandum that prejudice “was

 2 not established explicitly on the record .” [MIO 12] See In re Ernesto M., Jr., 1996-

 3 NMCA-039, ¶ 10, 121 N.M. 562, 915 P.2d 318 (“An assertion of prejudice is not a

 4 showing of prejudice.”).

 5        Under the circumstances of this case, therefore, we hold that the district court

 6 did not abuse its discretion in revoking Defendant’s probation based on the evidence

 7 that supported Count 1, Defendant’s failure to report, as ordered by the district court.

 8 CONCLUSION

 9        We affirm the district court’s order on report of probation violation.

10        IT IS SO ORDERED.



11                                         ___________________________________
12                                         CELIA FOY CASTILLO, Judge

13 WE CONCUR:




14 __________________________________
15 MICHAEL D. BUSTAMANTE, Judge




                                              8
1 __________________________________
2 JONATHAN B. SUTIN, Judge




                                  9
