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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. 35,801

 5 ANTHONY RAEL,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 David N. Williams, 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 Anthony Rael appeals from the district court’s order revoking

19 probation. This Court entered a calendar notice proposing to affirm the district court.
 1 Defendant filed a memorandum in opposition to the proposed disposition. Not

 2 persuaded by Defendant’s arguments, we affirm.

 3   {2}   Defendant appeals the district court’s order on the basis that it erred in

 4 admitting the victim’s prior inconsistent testimony as substantive proof in his

 5 probation violation hearing over objection by the defense. [MIO 2] This Court’s

 6 calendar notice proposed to affirm on the grounds that, under Rule 11-1101(D)(3)(d)

 7 NMRA, the rules of evidence do not apply to “granting or revoking probation.” See

 8 State v. Green, 2015-NMCA-007, ¶ 30, 341 P.3d 10 (reiterating that the “rules of

 9 evidence do not apply during probation revocation hearings”). Defendant now more

10 specifically asserts that the district court failed to provide a minimum of due process

11 when it relied solely on hearsay evidence as substantive proof that Defendant violated

12 his probation. [MIO 5] To the extent Defendant argues the issue differently than

13 originally raised and argued in the docketing statement, we construe it as a motion to

14 amend the docketing statement.

15   {3}   In cases assigned to the summary calendar, this Court will grant a motion to

16 amend the docketing statement to include additional issues if the motion (1) is timely,

17 (2) states all facts material to a consideration of the new issues sought to be raised, (3)

18 explains how the issues were properly preserved or why they may be raised for the

19 first time on appeal, (4) demonstrates just cause by explaining why the issues were not



                                                2
 1 originally raised in the docketing statement, and (5) complies in other respects with

 2 the appellate rules. See State v. Rael, 1983-NMCA-081, ¶¶ 7-8, 10-11, 14-17, 100

 3 N.M. 193, 668 P.2d 309. This Court will deny motions to amend that raise issues that

 4 are not viable, even if they allege fundamental or jurisdictional error. See State v.

 5 Moore, 1989-NMCA-073, ¶¶ 36-51, 109 N.M. 119, 782 P.2d 91, superceded by rule

 6 on other grounds as stated in State v. Salgado, 1991-NMCA-044, 112 N.M. 537, 817

 7 P.2d 730.

 8   {4}   Recognizing that the Rules of Evidence do not apply in revocation proceedings,

 9 Defendant argues that due process nevertheless dictates the bounds of evidence

10 admission and exclusion in probation revocation proceedings. [MIO 5-6] Defendant

11 further argues that without the victim’s hearsay statements that Defendant caused her

12 injuries, the only substantive evidence presented was the victim’s testimony denying

13 that Defendant was the perpetrator. [MIO 8] Defendant contends that the district court

14 erred in discounting the only substantive evidence before it—the victim’s testimony

15 denying Defendant was the perpetrator—with impeachment evidence—her prior

16 inconsistent statements—in order to revoke probation. [Id.]

17   {5}   According to the memorandum in opposition, however, the victim’s testimony

18 was not the only substantive testimony. Two officers, the victim’s mother, and the

19 victim’s uncle all testified at the hearing that immediately following the incident the



                                              3
 1 victim identified Defendant as the perpetrator. [MIO 2-4] While we understand

 2 Defendant’s argument to be that the other witness’s testimonies were hearsay, we

 3 reiterate that the “rules of evidence do not apply during probation revocation

 4 hearings.” Green, 2015-NMCA-007, ¶ 30. Moreover, the victim herself also admitted

 5 that she made detailed statements identifying Defendant as the perpetrator that were

 6 recorded on the officer’s lapel video. [MIO 2] It appears from the memorandum in

 7 opposition that the lapel video was admitted as an exhibit. [Id.] The victim also

 8 acknowledged in her testimony recorded jail calls between her and Defendant in

 9 which she concocted a plan to get the charges against Defendant dropped. [MIO 3]

10 Based on all the evidence presented at the hearing the district court determined that

11 the victim was not credible and, as the district court was in the best position to

12 determine the credibility of the witnesses, we will not reweigh that credibility

13 determination. See State v. Guthrie, 2011-NMSC-014, ¶ 22, 150 N.M. 84, 257 P.3d

14 904 (recognizing that on appeal we defer to the district court’s factual findings in

15 probation revocation proceedings); State v. Urioste, 2002-NMSC-023, ¶ 6, 132 N.M.

16 592, 52 P.3d 964 (“As a reviewing court we do not sit as a trier of fact; the district

17 court is in the best position to resolve questions of fact and to evaluate the credibility

18 of witnesses.”).




                                               4
 1   {6}   While the full scope of rights afforded to a defendant in a criminal trial do not

 2 apply to probation violation proceedings, we recognize that basic due process rights,

 3 including “at a minimum, notice and an opportunity to be heard[,]” are nevertheless

 4 required. Guthrie, 2011-NMSC-014, ¶¶ 10, 14 (“Because loss of probation is loss of

 5 only conditional liberty, the full panoply of rights due a defendant in a criminal trial

 6 do not apply.” (alterations, internal quotation marks, and citation omitted)). “The right

 7 protected in probation revocation[ cases] is not the [S]ixth [A]mendment right to

 8 confrontation, guaranteed every accused in a criminal trial, but rather the more

 9 generally worded right to due process of law secured by the [F]ourteenth

10 [A]mendment.” Id. ¶ 12. Among the components of due process is the right to

11 confront and cross-examine adverse witnesses, unless there is good cause for not

12 allowing confrontation within the meaning of the Fourteenth Amendment. See id. {7}

13         However, in cases recognizing such a due process right, at issue are

14 circumstances where the state completely fails to produce a witness. Id. ¶¶ 40-41;

15 State v. Castillo, 2012-NMCA-116, ¶ 2, 290 P.3d 727 (applying Guthrie and

16 concluding “that [the d]efendant’s Fourteenth Amendment right to due process was

17 violated by the district court’s allowance of testimony regarding [the d]efendant’s

18 polygraph results by someone other than the person who actually administered and

19 interpreted the polygraph test” in the probation revocation hearing). For example, in



                                               5
 1 Guthrie, and the case discussed therein, “probation officers who had not personally

 2 supervised the probationers presented the only live testimony in support of

 3 revocation.” Guthrie, 2011-NMSC-014, ¶ 17. In contrast, here, the State produced the

 4 victim as well as other witnesses and Defendant had the opportunity to confront them.

 5 See id. ¶¶ 33, 38 (noting that where the state needs to prove a contested allegation

 6 based on subjective interpretation, to ensure the reliability of the accusation, it needs

 7 to produce and make the witness available for cross-examination, and that in situations

 8 where “the violation is that the probationer is alleged to have committed a crime, but

 9 has not yet been convicted, . . . we would be hard pressed to envision a situation in

10 which personal testimony and confrontation would not be required” (emphasis in

11 original)). Because we conclude that Defendant was afforded the due process

12 contemplated under our case law in a probation revocation proceeding, we deny the

13 motion to amend as non-viable. See Moore, 1989-NMCA-073, ¶ 42 (“By viable, we

14 meant to describe an argument that was colorable, or arguable, and to distinguish

15 arguments that are devoid of any merit.”).

16   {8}   For all these reasons, and those stated in this Court’s calendar notice, we see no

17 basis for concluding that the district court abused its discretion. See State v. Martinez,

18 1989-NMCA-036, ¶ 5, 108 N.M. 604, 775 P.2d 1321 (stating that the district court’s




                                               6
1 revocation of a defendant’s probation is reviewed for an abuse of discretion). We

2 therefore affirm the district court’s order.

3   {9}   IT IS SO ORDERED.


4
5                                          M. MONICA ZAMORA, Judge

6 WE CONCUR:


7
8 MICHAEL E. VIGIL, Judge


 9
10 HENRY M. BOHNHOFF, Judge




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