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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. 36,043

 5 ADRIAN TRUJILLO,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
 8 Louis P. McDonald, 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 ZAMORA, Judge.

18   {1}    Defendant appeals from the district court’s order revoking his probation,

19 committing him to the Department of Corrections, and unsatisfactorily discharging
 1 him from probation. This Court issued a notice of proposed disposition in which we

 2 proposed to affirm. Defendant has filed a memorandum in opposition, which we have

 3 duly considered. Unpersuaded, we affirm.

 4   {2}   Defendant’s singular challenge on appeal is whether the State sufficiently

 5 proved that he violated the conditions of his probation. [DS 2] In our calendar notice,

 6 we recognized that in a probation revocation proceeding, the State bears the burden

 7 of establishing a violation with reasonable certainty. [CN 2] See State v. Sanchez,

 8 2001-NMCA-060, ¶ 11, 130 N.M. 602, 28 P.3d 1143. To satisfy this burden, the State

 9 is required to introduce proof which would incline “a reasonable and impartial mind

10 to the belief that a defendant has violated the terms of probation.” State v. Martinez,

11 1989-NMCA-036, ¶ 4, 108 N.M. 604, 775 P.2d 1321. On appeal, this Court reviews

12 the decision to revoke probation for an abuse of discretion. See id. ¶ 5. “To establish

13 an abuse of discretion, it must appear the [district] court acted unfairly or arbitrarily,

14 or committed manifest error.” Id.

15   {3}   Based on the facts as laid out in Defendant’s docketing statement, we proposed

16 to conclude in our calendar notice that the district court did not abuse its discretion in

17 finding that Defendant violated a standard condition of his probation—by failing to

18 get permission from his probation officer before changing his residence—and we




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 1 proposed to affirm the district court’s revocation of Defendant’s probation on that

 2 basis. [CN 2-3]

 3   {4}   In response to this Court’s notice of proposed disposition, Defendant argues

 4 that the evidence was insufficient to establish that his violation was willful. [MIO 3-5]

 5 See In re Bruno R., 2003-NMCA-057, ¶ 13, 133 N.M. 566, 66 P.3d 339 (stating that

 6 “if violation of probation is not willful, but resulted from factors beyond a

 7 probationer’s control, probation may not be revoked”). We acknowledge that willful

 8 conduct is a requisite. However, as we have previously stated, “[o]nce the state offers

 9 proof of a breach of a material condition of probation, the defendant must come

10 forward with evidence [to show that his] non-compliance . . . was not willful.” State

11 v. Parsons, 1986-NMCA-027, ¶ 25, 104 N.M. 123, 717 P.2d 99. “[I]f defendant fails

12 to carry his burden, then the [district] court is within its discretion in revoking

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

14   {5}   In the present case, there is no indication that Defendant came forward with

15 evidence to show that his non-compliance—failure to get permission from his

16 probation officer before changing his residence—was somehow not willful, aside from

17 the bare assertion in his memorandum in opposition that he “maintains that his failure

18 . . . was not willful and should not form the basis of a probation revocation.” [MIO 4-

19 5] Even in light of his assertion, we are not convinced that Defendant carried his



                                               3
1 burden, and we conclude that the district court was within its discretion in revoking

2 his probation.

3   {6}   Accordingly, we affirm the revocation of Defendant’s probation.

4   {7}   IT IS SO ORDERED.


5
6                                        M. MONICA ZAMORA, Judge

7 WE CONCUR:


8
9 JAMES J. WECHSLER, Judge


10
11 J. MILES HANISEE, Judge




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