 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
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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. 29,675

10 JUAN SAN JUAN,

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 Hugh W. Dangler, Chief Public Defender
18 Kathleen T. Baldridge, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellant


21                                 MEMORANDUM OPINION

22 WECHSLER, Judge.
 1        Defendant appeals from the revocation of his probation. The notice proposed

 2 to affirm, and Defendant filed a timely memorandum in opposition pursuant to a

 3 granted motion for extension of time. Defendant additionally filed an unopposed

 4 motion to supplement the record proper with omitted pages. We grant Defendant’s

 5 motion to supplement. We remain, however, unpersuaded by Defendant’s arguments

 6 and therefore affirm.

 7 Issue 1

 8        Defendant continues to argue that “dismissal or some other remedy” is merited

 9 because the State violated Rule 5-805(F) NMRA when it filed its motion to revoke

10 probation [RP 190] almost a year after it received the probation officer’s probation

11 violation report. [DS 2, 5; MIO 6; RP 185, 187, 216] Defendant refers [MIO 7] to

12 State v. Franklin, 78 N.M. 127, 428 P.2d 982 (1967), and State v. Boyer, 103 N.M.

13 655, 712 P.2d 1 (Ct. App. 1985), in support of his position.

14        As discussed in our notice, Rule 5-805 requires reading Paragraphs E and F in

15 tandem and as only applicable once a defendant has been arrested for the alleged

16 probation violation. To do otherwise would have required the State to commence

17 probation revocation proceedings with Defendant in absentia, thereby depriving

18 Defendant of the opportunity to defend himself. See generally State v. Rael, 2008-

19 NMCA-067, ¶ 22, 144 N.M. 170, 184 P.3d 1064 (providing that the Rules of Criminal

                                             2
 1 Procedure are to be interpreted with logic and common sense to avoid absurd results);

 2 State v. Apache, 104 N.M. 290, 292, 720 P.2d 709, 711 (Ct. App. 1986) (providing

 3 that it would be “a violation of constitutional due process[] for a trial court to revoke

 4 a probationer’s probation, in absentia, when the probationer has absconded from the

 5 jurisdiction (emphasis omitted)). We note further that Rule 5-805(G)(5) only

 6 contemplates an initial hearing on a motion to revoke probation after the arrest of the

 7 defendant on a bench warrant issued for failure to report. Given that the State filed

 8 the motion to revoke probation within five days of Defendant’s arrest, and given that

 9 the hearing on the motion to revoke was thereafter held in a timely manner, we hold

10 that the State complied with Rule 5-805. See State v. Garcia, 121 N.M. 544, 547, 915

11 P.2d 300, 303 (1996) (recognizing that substantial compliance with the rules can be

12 sufficient). We accordingly affirm the district court’s denial of Defendant’s motion

13 to dismiss.

14 Issue 2

15        Defendant continues to argue that his due process rights were violated because

16 his probation officer was not sure she had personally participated during each attempt

17 to locate Defendant. [DS 5, 7; RP 185, 217; MIO 7-9] Defendant again refers to

18 Franklin and Boyer in support of his position. [MIO 9]

19        We recognize that due process requires the actual presence and testimony of the


                                               3
 1 person whose statements form the basis of revocation, unless the State makes an

 2 adequate showing and the district court makes a specific finding of “good cause” for

 3 not calling such person as a witness. See State v. Phillips, 2006-NMCA-001, ¶¶ 12,

 4 14, 16, 138 N.M. 730, 126 P.3d 546 (filed 2005). [DS 7; MIO 8] In the present case,

 5 while probation officer Cordova apparently did not participate in all of the home visits

 6 to locate Defendant [MIO 4], a second officer who did participate testified at trial [RP

 7 201, 217-18; MIO 4], and Defendant effectively stipulated to the substance of a third

 8 officer’s testimony that was identical to the testimony of the second officer. [RP 218;

 9 MIO 4-5] For this reason, we conclude that Defendant’s due process rights were not

10 violated. To the extent Defendant continues to assert that his Fourteenth Amendment

11 right to confront witnesses was violated [DS 3; MIO 8], we hold that, as discussed

12 above, Defendant was provided the opportunity to confront the witnesses testifying

13 against him.

14 Issues 3, 4 and 5

15        Defendant continues to challenge the district court’s decision to deny him credit

16 for time served on probation from the date the bench warrant was issued for his arrest

17 until the date of his arrest. See NMSA 1978, § 31-21-15© (1989) (providing that a

18 probationer is a fugitive from justice if a warrant for his return cannot be served and

19 that upon his return “the court shall determine whether the time from the date of


                                              4
 1 violation to the date of his arrest, or any part of it, shall be counted as time served on

 2 probation”). [DS 6; MIO 10] The district court’s decision to deny probation credit

 3 because of a probationer’s status as a fugitive from justice is reviewed for substantial

 4 evidence. See State v. Jimenez, 2004-NMSC-012, ¶ 14, 135 N.M. 442, 90 P.3d 461.

 5        “A defendant is entitled to credit for any time on probation, unless the [s]tate

 6 can show either (1) it unsuccessfully attempted to serve the warrant on the defendant

 7 or (2) any attempt to serve the defendant would have been futile.” Id. ¶ 8 (emphasis

 8 omitted). In the present case, several attempts were made to locate Defendant,

 9 including eight home visits, at least once per month. [RP 216-18; MIO 3] In

10 addition, officers questioned family members about Defendant’s whereabouts [RP

11 216-17; MIO 3, 4] and also sent a letter to the residence, which was not returned.

12 [RP 216; MIO 3] Although Defendant’s mother indicated that Defendant may have

13 been living with her other son, she indicated that she did not know where that son

14 lived. [RP 218; MIO 4] In light of the foregoing, we conclude that there was

15 substantial evidence to support the district court’s decision to treat Defendant as a

16 fugitive from justice within the meaning of Section 31-21-15©. See Jimenez, 2004-

17 NMSC-012, ¶ 14 (noting that in determining whether substantial evidence supports

18 a finding of fugitive status, facts are viewed in the light most favorable to the district

19 court’s decision).


                                               5
 1        We recognize that Defendant questions whether the district court erred by

 2 considering the State’s efforts to locate Defendant before the bench warrant was

 3 actually issued. [MIO 12] However, the State’s efforts to locate Defendant prior to

 4 issuance of the bench warrant were directly relevant to assessing the State’s actions

 5 after the warrant was issued. See id. (noting that substantial evidence includes

 6 “relevant evidence that a reasonable mind might accept as adequate to support a

 7 conclusion” (internal quotation marks and citation omitted)). Moreover, evidence was

 8 presented of efforts the State made to locate Defendant after the warrant was issued.

 9 To this end, Defendant’s probation officer testified, without specificity, that she

10 continued her efforts to locate Defendant after issuance of the bench warrant. [MIO

11 3-4] And, as for specific instances of efforts to locate Defendant, defense counsel

12 below acknowledged that, after the bench warrant was issued on March 31, 2008 [RP

13 191], there “was a visit” on October 31, 2008 [MIO 10; Ct.App.File, yellow clip,

14 Supp.RP/222], which the district court could have reasonably inferred to be an effort

15 to locate Defendant. [MIO 10] Further, after Defendant’s probation officer saw him

16 at a November 20, 2008 funeral, she contacted Defendant’s mother and advised

17 Mother to tell Defendant to turn himself in to authorities [MIO 4, 10; RP 217], in

18 another apparent and continued effort to locate Defendant.

19        Lastly, to the extent Defendant continues to assert that the State waived the


                                             6
 1 right to argue that he was a fugitive from justice after the date that his probation

 2 officer saw him at the funeral [MIO 10, DS 6], we disagree. As noted above,

 3 evidence was presented that the probation officer did make an effort to locate

 4 Defendant after the funeral. Moreover, although the probation officer may have seen

 5 Defendant at the funeral, there is no indication that it would have been possible to

 6 apprehend him at that time particularly given the circumstances of the encounter. See

 7 id. ¶ 15 (noting that to assert that a probationer is a fugitive from justice, the state

 8 must show that it attempted to serve the warrant or that it would have been futile to

 9 attempt to do so).

10        Based on the foregoing discussion, we affirm the revocation of Defendant’s

11 probation.

12        IT IS SO ORDERED.

13

14                                                ________________________________
15                                                JAMES J. WECHSLER, Judge
16 WE CONCUR:



17 _________________________________
18 MICHAEL D. BUSTAMANTE, Judge



19 _________________________________

                                              7
1 JONATHAN B. SUTIN, Judge




                             8
