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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. 32,880
 5                                                                       Consolidated with 32,967

 6 HENRY CASTILLO,

 7          Defendant-Appellant.


 8 APPEAL FROM THE DISTRICT COURT OF LEA COUNTY
 9 Mark Terrence Sanchez, District Judge

10 Gary K. King, Attorney General
11 Santa Fe, NM

12 for Appellee

13 Bennett J. Baur, Acting Chief Public Defender
14 Santa Fe, NM

15 Sergio J. Viscoli, Assistant Appellate Defender
16 Albuquerque, NM

17 for Appellant
 1                             MEMORANDUM OPINION

 2 BUSTAMANTE, Judge.

 3   {1}   Defendant appeals from the revocation of his probation. We previously issued

 4 a notice of proposed summary disposition in which we consolidated Defendant’s

 5 related appeals in Ct. App. Nos. 32,880 and 32,967, and proposed to affirm.

 6 Defendant has filed a memorandum in opposition, which we have duly considered.

 7 Because we remain unpersuaded by Defendant’s assertions of error, we uphold the

 8 revocation of Defendant’s probation.

 9   {2}   Defendant raised five issues in his docketing statement, which we reduced to

10 four for purposes of discussion. Because our analysis relative to each of these issues

11 was previously set forth in the notice of proposed summary disposition, we will avoid

12 lengthy repetition here.

13   {3}   First, with respect to the timeliness of the adjudicatory hearing, as we

14 previously noted and as Defendant acknowledges, [MIO 3] the deadline appears to

15 have been met by virtue of the application of Rule 5-104(A) NMRA; and moreover,

16 the imposition of sanctions for any delay was not mandatory. See Rule 5-805(L)

17 NMRA. We therefore reject Defendant’s assertion of error.

18   {4}   Second, with respect to the establishment of identity, we remain of the opinion

19 that the State made a satisfactory showing, albeit indirectly. See State v. Jimenez,


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 1 2003-NMCA-026, ¶¶ 10-16, 133 N.M. 349, 62 P.3d 1231 (setting forth the applicable

 2 standard of proof, and holding that a probationer’s own actions may supply a tacit

 3 admission which is sufficient to establish identity), rev’d on other grounds, 2004-

 4 NMSC-012, 135 N.M. 442, 90 P.3d 461. Nothing in the memorandum in opposition

 5 persuades us otherwise. [MIO 4]

 6   {5}   Third, with respect to the recall of two of the State’s witnesses in rebuttal, [MIO

 7 4-5] we remain unpersuaded that the district court erred or otherwise abused its

 8 discretion. See Rule 11-1101(D)(3)(d) NMRA (providing that the rules of evidence

 9 do not apply to probation revocation proceedings); State v. Hernandez, 1993-NMSC-

10 007, ¶ 36, 115 N.M. 6, 846 P.2d 312 (holding that the district courts have broad

11 discretion in the application of Rule 11-615 NMRA); and see, e.g., Goodloe v.

12 Bookout, 1999-NMCA-061, ¶ 9, 127 N.M. 327, 980 P.2d 652 (illustrating that the rule

13 of exclusion was not violated and no prejudice resulted where a witness was called in

14 rebuttal).

15   {6}   Fourth and finally, we reject Defendant’s continuing assertion that the district

16 court’s determination was against the manifest weight of the evidence. [MIO 5-6] As

17 we previously observed, the State met its burden of proof by presenting the testimony

18 of various probation officers. And while Defendant continues to argue that his non-

19 compliance was adequately explained or excused by the evidence that he presented,


                                                3
1 [MIO 5-6] the district court as finder of fact was not required to credit that testimony.

2 See generally State v. Sanchez, 1990-NMCA-017, ¶ 10, 109 N.M. 718, 790 P.2d 515

3 (observing that while acting as the finder of fact at a probation revocation proceeding,

4 the trial court could properly weigh the evidence and the credibility of the witnesses).

5   {7}   For the foregoing reasons, we affirm.

6   {8}   IT IS SO ORDERED.



7
8                                          MICHAEL D. BUSTAMANTE, Judge

9 WE CONCUR:


10
11 RODERICK T. KENNEDY, Chief Judge


12
13 JAMES J. WECHSLER, Judge




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