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

 2 STATE OF NEW MEXICO,

 3         Plaintiff-Appellee,

 4 v.                                                                      NO. 29,176

 5 CLARYN C.,

 6         Child-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
 8 William C. Birdsall, District Judge

 9 Gary K. King, Attorney General
10 Francine A. Chavez, Assistant Attorney General
11 Santa Fe, NM

12 for Appellee

13   Hugh W. Dangler, Chief Public Defender
14   Santa Fe, NM
15   Stephen Taylor, Assistant Public Defender
16   Aztec, NM

17 for Appellant

18                               MEMORANDUM OPINION

19 KENNEDY, Judge.

20      Child appeals the revocation of her probation. In our notice, we proposed to

21 reverse on the basis that the State had not presented evidence of a wilful failure to

22 comply with probation requirements. The State has timely responded. We have
 1 considered its arguments. Finding them unpersuasive, we reverse.

 2        Child’s sole issue on appeal is the sufficiency of the evidence to support the

 3 determination that she violated the terms of her probation. In our first notice, we

 4 proposed to reverse on the basis that there did not appear to be any evidence of wilful

 5 conduct on the part of the Child. The State makes two arguments in its response.

 6        First, it argues that we improperly placed the burden on the State to prove that

 7 the violation was wilful. [MIO 4-5] In fact, the burden of proof is always upon the

 8 State to prove that there was a wilful violation of a probation agreement. See State v.

 9 Parsons, 104 N.M. 123, 127, 717 P.2d 99, 103 (Ct. App. 1986). After the State

10 presents a prima facie case of a violation, the burden then shifts to the defendant to

11 come forward with evidence that the failure to comply was through no fault of her

12 own. See State v. Martinez, 108 N.M. 604, 606, 775 P.2d 1321, 1323 (Ct. App. 1989).

13 There is no shifting of the burden of proof, but a shifting of the burden of going

14 forward with evidence to meet or rebut a presumption that has been established by the

15 evidence. See Mortgage Iv. Co. of El Paso v. Griego, 108 N.M. 240, 243-44, 771

16 P.2d 173, 176-77 (1989) (explaining the difference between the burden of persuasion

17 and the burden of going forward with evidence).

18        Here, the burden was upon the State to prove, beyond a reasonable doubt, that

19 Child violated the conditions of her probation. NMSA 1978, § 32A-2-24(B) (1993).


                                              2
 1 The case law is clear that a probation violation must be wilful. In re Bruno R., 2003-

 2 NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 399. Here, the State sought to revoke

 3 Child’s probation because she had been negatively discharged from Treatment Foster

 4 Care. [RP 42] The State was required to prove beyond a reasonable doubt that Child

 5 wilfully failed to complete Treatment Foster Care but argues only that the evidence

 6 presented by the witness from foster care was that “Child did not complete Treatment

 7 Foster Care and was discharged.” [MOP 4] We have described a wilfulness

 8 requirement as “proof that the person acted intentionally in the sense that he was

 9 aware of what he was doing.” State v. Sheets, 94 N.M. 356, 366, 610 P.2d 760, 770

10 (Ct. App. 1980). Wilfulness suggests a conscious, purposeful act. See State v.

11 Rosaire, 1996-NMCA-115, ¶ 16, 123 N.M. 250, 939 P.2d 597.

12        Here, evidence was presented that Child did not complete the Treatment Foster

13 Care program, but had in fact been discharged. [Id.] It does not appear that there was

14 any testimony showing the Child had engaged in some conscious, purposeful act

15 resulting in her discharge. Rather, the evidence simply noted that she had been

16 discharged. We cannot assume that her discharge was the result of some intentional

17 act on her part, such as absconding from the program. There is no evidence showing

18 that her discharge was caused by some wilful act on Child’s part. Thus, we conclude

19 that the State failed to satisfy its burden of persuasion.


                                               3
 1        We recognize the State’s second argument that the reasons in this case for the

 2 discharge could not be disclosed to the court because they were based on confidential

 3 information. We are unconvinced that the State is left with nothing upon which to

 4 explain Child’s discharge from the treatment program. However, their citations to

 5 NMSA 1978, Sections 32A-2-32 (1993) and 32A-2-14(A) (2003) point us to statutes

 6 explicitly allowing the disclosure of information to district attorneys, law enforcement

 7 and the courts.

 8        We conclude that the State has not been put to an impossible burden of

 9 establishing wilfulness on the part of a probationer who fails to comply with probation

10 requirements. Wilfulness can always be shown by intentional, conscious conduct.

11 The State must simply show that the probationer intentionally did some act that

12 resulted in a violation of the terms of her probation. In this case, it failed to make that

13 showing.

14        Therefore, for the reasons stated herein and in the calendar notice, we reverse

15 for insufficient evidence.

16               IT IS SO ORDERED.



17                                           ___________________________________
18                                           RODERICK T. KENNEDY, Judge

19 WE CONCUR:

                                                4
1 ___________________________
2 CYNTHIA A. FRY, Chief Judge



3 ___________________________
4 MICHAEL D. BUSTAMANTE, Judge




                                 5
