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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3          Plaintiff-Appellee,

 4 v.                                                                            No. 35,326

 5 ARMANDO ARAGON,

 6          Defendant-Appellant.


 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Michael E. Martinez, District Judge

 9 Hector H. Balderas, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Bennett J. Baur, Chief Public Defender
13 Kathleen T. Baldridge, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant


16                                 MEMORANDUM OPINION

17 BUSTAMANTE, Judge.
 1   {1}   Defendant Armando Aragon appeals from the revocation of his probation. We

 2 issued a notice of proposed summary disposition, proposing to affirm. Defendant has

 3 filed a memorandum in opposition. After due consideration, we remain unpersuaded

 4 by Defendant’s assertions of error. We therefore affirm.

 5   {2}   In our notice of proposed summary disposition, we suggested that the State

 6 presented evidence, to a reasonable degree of certainty, that Defendant violated his

 7 probation by damaging the property of another and by using alcohol; therefore, we

 8 proposed to affirm. [See generally CN] In his memorandum in opposition, Defendant

 9 renews his challenge to the sufficiency of the evidence to support the revocation of his

10 probation. [MIO 1] More specifically, Defendant challenges the sufficiency of the

11 evidence to establish that he willfully damaged property or consumed alcohol. [Id. at

12 1, 4] See In re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339 (“To

13 establish a violation of a probation agreement, the obligation is on the State to prove

14 willful conduct on the part of the probationer so as to satisfy the applicable burden of

15 proof.”).

16   {3}   We acknowledge that willful conduct is a requisite. However, as we have

17 previously stated, “[o]nce the [S]tate offers proof of a breach of a material condition

18 of probation, [D]efendant must come forward with evidence [to show that his

19 non-compliance] was not willful.” State v. Parsons, 1986-NMCA-027, ¶ 25, 104 N.M.


                                              2
 1 123, 717 P.2d 99; see also State v. Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 604,

 2 775 P.2d 1321 (explaining that probation should not be revoked where the violation

 3 is not willful, in that it resulted from factors beyond a probationer’s control).“ [I]f

 4 [D]efendant fails to carry his burden, then the trial court is within its discretion in

 5 revoking [Defendant’s probation].” Martinez, 1989-NMCA-036, ¶ 8.

 6   {4}   In this case, the State presented evidence, discussed in greater detail in the

 7 notice of proposed disposition, that Deputy De La Cruz was dispatched to investigate

 8 a domestic disturbance at a trailer park; at the entrance of the trailer park, he made

 9 contact with Defendant who was wearing clothing that matched the description he had

10 received from dispatch; the deputy spoke with Defendant; Defendant told the deputy

11 that he knew he was in trouble; Defendant admitted that he had broken a window; the

12 deputy testified that Defendant smelled like alcohol; Defendant was stumbling as he

13 walked; Defendant swayed as he stood; and during a pat down for weapons, the

14 deputy had to hold Defendant upright to keep him from falling. [DS 3-4; MIO 2] The

15 deputy and Defendant went to the trailer where Defendant’s girlfriend was living, and

16 the deputy observed a broken window in the living room with most of the glass inside

17 the trailer. [DS 4; MIO 2] Defendant admitted that when he saw his girlfriend look out

18 the window, he ran toward it, hit it with his closed fist, and it broke; however, he

19 maintains that he did not intend to break the window. [DS 4; MIO 2-3] Additionally,


                                              3
 1 the State presented evidence that Defendant’s probation officer had discussed the

 2 probation orders and standard conditions of probation with Defendant. [DS 5; MIO

 3 3] This was sufficient to give rise to a reasonable inference that Defendant was aware

 4 that, as part of his probation agreement, he was prohibited from violating the laws of

 5 the State of New Mexico and he was not permitted to possess, consume or use alcohol

 6 while he was on probation. [See MIO 1-2] See generally State v. Romero,

 7 1968-NMCA-078, ¶ 17, 79 N.M. 522, 445 P.2d 587 (“An inference is merely a logical

 8 deduction from facts and evidence.” (quoting State v. Jones, 1935-NMSC-062, ¶ 21,

 9 39 N.M. 395, 48 P.2d 403)).

10   {5}   Defendant has not demonstrated that he offered any evidence to excuse his non-

11 compliance with the terms of his probation. Instead, he contends that “the evidence

12 clearly shows that [he] accidentally broke a window and smelled of alcohol.” [MIO

13 1; see also id. at 6]

14   {6}   As we discussed in our notice of proposed disposition, to the extent there was

15 conflicting testimony, contrary testimony is not a basis for reversal. See State v. Rojo,

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

17 acquittal does not provide a basis for reversal because the jury is free to reject [the

18 d]efendant’s version of the facts.”). Rather it was for the district court to weigh the

19 evidence and assess credibility, and we will not engage in a reweighing of the


                                               4
 1 evidence on appeal. See State v. Apodaca, 1994-NMSC-121, ¶ 3, 118 N.M. 762, 887

 2 P.2d 756 (stating that the appellate court views the evidence in the light most

 3 favorable to the verdict, resolving all conflicts and indulging all reasonable inferences

 4 in favor of the verdict); State v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866

 5 P.2d 1156 (“This court does not weigh the evidence and may not substitute its

 6 judgment for that of the fact finder so long as there is sufficient evidence to support

 7 the verdict.” (internal quotation marks and citation omitted)). To the extent that

 8 Defendant claims that, absent a chemical test, there was insufficient evidence to

 9 establish that he had consumed alcohol [MIO 5-6], we are not persuaded. See State v.

10 Baldwin, 2001-NMCA-063, ¶ 16, 130 N.M. 705, 30 P.3d 394 (pointing out that a fact-

11 finder can rely on “human experience” in deciding whether a defendant was under the

12 influence); Sanchez v. Wiley, 1997-NMCA-105, ¶¶ 2, 19, 124 N.M. 47, 946 P.2d 650

13 (holding that a witness could rely on his knowledge in testifying that the defendant

14 was “drunk”).

15   {7}   For the reasons stated in this opinion and in our notice of proposed summary

16 disposition, we affirm.

17   {8}   IT IS SO ORDERED.

18

19                                     _______________________________________
20                                     MICHAEL D. BUSTAMANTE, Judge

                                               5
1 WE CONCUR:


2
3 MICHAEL E. VIGIL, Chief Judge


4
5 RODERICK T. KENNEDY, Judge




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