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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. 30,534

 5 TYNEL DESHANE STEWARD,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF LINCOLN COUNTY
 8 Karen L. Parsons, District Judge

 9 Gary K. King, Attorney General
10 Ann M. Harvey, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13 Law Offices of Nancy L. Simmons, P.C.
14 Nancy L. Simmons
15 Albuquerque, NM

16 for Appellant

17                                 MEMORANDUM OPINION

18 WECHSLER, Judge.
 1        Defendant Tynel Steward appeals a district court judgment and order revoking

 2 probation. On appeal, Defendant argues that (1) the State presented insufficient

 3 evidence to support the district court’s conclusion that Defendant violated a condition

 4 of his probation, and (2) the manner the State presented evidence violated Defendant’s

 5 due process rights. We affirm.

 6 BACKGROUND

 7        Defendant appeals a judgment and order revoking probation entered by the

 8 district court on June 14, 2010. On July 17, 2008, Defendant entered a no contest plea

 9 to charges of (1) possession of a firearm or destructive device by a felon, (2) resisting,

10 evading, or obstructing an officer, (3) use or possession of drug paraphernalia, and (4)

11 concealing identity. The district court sentenced Defendant to a total of four years less

12 two days imprisonment but suspended the sentence and placed Defendant on

13 supervised probation. As part of his conditions of probation, Defendant agreed to

14 receive permission from his probation officer before leaving the county where he was

15 supervised and/or residing. The order stipulated that a failure to obtain such

16 permission could result in a revocation of Defendant’s probation.

17        On January 12, 2010, the State filed a notification of arrest and petition for

18 revocation of probation regarding Defendant, alleging four violations of Defendant’s

19 conditions of probation relating to an alleged arrest based on events occurring in Otero


                                               2
 1 County. The district court held an adjudicatory hearing on the alleged probation

 2 violations on May 21, 2010. At the conclusion of the hearing, the district court

 3 revoked Defendant’s probation. As the sole ground for revoking Defendant’s

 4 probation, the district court found that Defendant left his county of residence, Doña

 5 Ana County, without the permission of his probation officer.

 6        On appeal, Defendant challenges the sufficiency of the evidence presented by

 7 the State as to Defendant’s probation violation. Defendant also argues that the district

 8 court denied him due process “as the result of the State’s presentation of evidence.”

 9 STANDARD OF REVIEW

10        In reviewing an argument that the State presented insufficient evidence to

11 establish a probation violation, “we view the evidence in a light most favorable to the

12 [State], indulging all reasonable inferences and resolving all conflicts to uphold the

13 [district] court’s decision.” In re Bruno R., 2003-NMCA-057, ¶ 9, 133 N.M. 566, 66

14 P.3d 339. “[W]e apply a two-step process, reviewing the evidence first in accordance

15 with the standard just stated, and determining next whether the evidence, viewed in

16 this manner, could persuade a rational trier of fact” that Defendant violated the terms

17 of his probation. Id.

18 SUFFICIENCY OF THE EVIDENCE FOR PROBATION REVOCATION

19        A district court may revoke a defendant’s probation, after a hearing, if the state


                                              3
 1 establishes that the defendant failed to comply with a condition of probation. State

 2 v. Parsons, 104 N.M. 123, 127, 717 P.2d 99, 103 (Ct. App. 1986). The state must

 3 prove a violation of a condition of a defendant’s probation to a reasonable certainty.

 4 Id. Defendant argues that the State failed to prove that Defendant violated his

 5 probation by leaving Doña Ana County because the only evidence presented by the

 6 State “as to Defendant’s presence outside of Doña Ana [C]ounty was . . . that his

 7 probation officer faxed some documents regarding Defendant to Otero County based

 8 on her belief that he had been located in Otero County.”

 9        We begin by examining the testimony at the revocation hearing. Rebecca

10 Beaman, Defendant’s probation officer, was the only witness to testify at the

11 revocation hearing. The district court did not allow Beaman to answer questions

12 regarding whether Defendant violated his probation, how Beaman knew that

13 Defendant left Doña Ana County, how Beaman knew that Defendant had received

14 new charges, or whether Defendant was arrested based on Defendant’s hearsay and

15 confrontation clause objections and Beaman’s lack of personal knowledge. The

16 district court did, however, hear testimony from Beaman regarding her issuing an

17 “arrest and hold” warrant for Defendant. The following exchange took place:

18        State: Did you get a return on your warrant?

19        Beaman: No, I spoke with the Otero County Detention Center to
20        confirm that [Defendant] was there and then faxed that arrest and hold

                                             4
 1        to them.

 2        State: And you personally faxed that arrest and hold to them?

 3        Beaman: Yes, ma’am.

 4        State: And he was in Otero County?

 5        Beaman: Yes, ma’am.

 6        District court: When you faxed the arrest and hold, you faxed it (does
 7        not finish)

 8        Beaman: Yes, ma’am, I confirmed he was there and faxed it.

 9        District court: I am going to allow that testimony.

10 Beaman testified that when she issues an arrest and hold warrant, it is her general

11 business practice to fax a copy to the location where the “probationer may be housed.”

12 Beaman further testified that Defendant was supposed to have a verifiable address in

13 Doña Ana County and that Defendant did reside in Doña Ana County. Beaman also

14 testified that she did not give permission for Defendant to be in Otero County.

15        Viewing this testimony in the light most favorable to the State, the testimony

16 supports a finding that Defendant resided in Doña Ana County, Defendant did not

17 have permission to be in Otero County, and Defendant was in the Otero County

18 Detention Center. See In re Bruno R., 2003-NMCA-057, ¶ 9. Although the State did

19 not present any direct evidence of Defendant’s presence in Otero County, Beaman’s

20 testimony that she faxed an arrest and hold warrant for Defendant to the Otero County

                                             5
 1 Detention Center after receiving some information and speaking with the Otero

 2 County Detention Center was sufficient circumstantial evidence to support a

 3 reasonable inference of Defendant’s presence in Otero County. See State v. Lopez,

 4 2011-NMCA-071, ¶ 7, __ N.M. __, 256 P.3d 977 (holding that circumstantial

 5 evidence was sufficient to support the factfinder’s conclusion even though there was

 6 no direct evidence). The district court therefore did not err in determining that

 7 Defendant violated a condition of his probation by leaving Doña Ana County without

 8 the permission of his probation officer.

 9        Defendant further argues that, assuming the State presented sufficient evidence

10 that Defendant was in Otero County, the State failed to prove that Defendant’s

11 violation was willful as mandated by this Court in Parsons, 104 N.M. at 126-27, 717

12 P.2d at 102-03. In Parsons, 104 N.M. at 127-29, 717 P.2d at 103-05, this Court

13 remanded the defendant’s revocation of probation to the district court to determine

14 compliance with the United States Supreme Court’s decision in Bearden v. Georgia,

15 461 U.S. 660 (1983). In Bearden, 461 U.S. at 672, the Supreme Court held that a

16 court violates a defendant’s due process rights by revoking probation for failure to pay

17 a fine or restitution when the defendant is indigent and did not willfully fail to pay.

18 The Supreme Court held that a court “must inquire into the reasons for the failure to

19 pay” the fine or restitution and that if a defendant made “sufficient bona fide efforts”


                                              6
 1 to pay, “the court must consider alternative measures of punishment other than

 2 imprisonment.” Id. This Court, in Parsons, 104 N.M. at 125-27, 717 P.2d at 101-03,

 3 remanded to the district court to make a determination as to whether the defendant had

 4 the ability to pay a fine and probation costs when the defendant testified at the

 5 revocation hearing that he was unable to pay due to indigency.

 6        This Court has since interpreted Parsons as requiring that the State “prove

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

 8 proof.” In re Bruno R., 2003-NMCA-057, ¶ 11. However, this case does not involve

 9 Defendant’s ability to pay a financial obligation. The issue is whether Defendant

10 willfully left Doña Ana County without permission in violation of the conditions of

11 his probation. As we have discussed, the evidence in that regard is sufficient evidence

12 to show that Defendant willfully violated his probation. See Parsons, 104 N.M. at

13 128, 717 P.2d at 104 (stating that evidence establishing non-compliance with a

14 condition of probation is sufficient to justify a finding that the failure was willful

15 unless the defendant comes forward with evidence to excuse the non-compliance).

16 The district court did not err in finding that Defendant willfully violated the conditions

17 of his probation.

18 DUE PROCESS

19        Defendant further argues that the district court violated Defendant’s due process


                                               7
 1 rights under State v. Guthrie, 2011-NMSC-014, ¶ 2, __ N.M. __, 257 P.3d 904, which

 2 “guide[d] the due process inquiry of our courts to focus more on the need for, and the

 3 utility of, confrontation of a live witness in the context” of probation revocation

 4 hearings and determined that courts should determine “whether confrontation of the

 5 witness is essential to the truth-finding process.” The State contends that Defendant

 6 failed to preserve this argument.

 7        “To preserve a question for review it must appear that a ruling or decision by

 8 the district court was fairly invoked[.]” Rule 12-216(A) NMRA. In order to fairly

 9 invoke a ruling, “an objection must be made with sufficient specificity to alert the

10 mind of the trial court to the claimed error[.]” State v. Riley, 2010-NMSC-005, ¶ 24,

11 147 N.M. 557, 226 P.3d 656 (internal quotation marks and citation omitted). In this

12 case, Defendant objected to Beaman’s testimony that she faxed the arrest and hold

13 warrant to the Otero County Detention Center after receiving information that

14 Defendant was present and confirming that he was present based on hearsay and

15 confrontation clause grounds. Defendant did not object on due process grounds in

16 challenging this testimony. Defendant therefore failed to preserve this argument, and

17 we will not address it now on appeal. See State v. Sandoval, 2003-NMSC-027, ¶ 16,

18 134 N.M. 453, 78 P.3d 907 (refusing to address an unpreserved argument on appeal).

19 CONCLUSION


                                             8
1      For the foregoing reasons, we affirm.

2      IT IS SO ORDERED.



3                                              _______________________________
4                                              JAMES J. WECHSLER, Judge

5 WE CONCUR:



6 _______________________________
7 RODERICK T. KENNEDY, Judge



8 _______________________________
9 LINDA M. VANZI, Judge




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