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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. A-1-CA-37193

 5 CEDRYCH YOUNG,

 6          Defendant-Appellant.

 7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 8 Mark A. Macaron, 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 VIGIL, Judge.
 1   {1}   Defendant Cedrych Young appeals from an order revoking his probation. We

 2 issued a calendar notice proposing to affirm. Defendant has responded with a

 3 memorandum in opposition. Not persuaded, we affirm.

 4   {2}   Issue 1: Defendant continues to challenge the denial of his motion to suppress.

 5 [MIO 5] A ruling on a motion to suppress evidence presents a mixed question of law

 6 and fact. State v. Garcia, 2005-NMSC-017, ¶ 27, 138 N.M. 1, 116 P.3d 72. We review

 7 findings of fact using the substantial evidence standard. Id. We review the application

 8 of law to the facts de novo, viewing the facts in the light most favorable to the

 9 prevailing party. Id.

10   {3}   In this case, Defendant claims that the officers lacked exigent circumstances to

11 search his residence. [MIO 5] However, there is no need for exigent circumstances

12 because the officers entered the residence after Defendant’s wife gave them consent

13 to do so. [MIO 3] See State v. Cline, 1998-NMCA-154, ¶ 18, 126 N.M. 77, 966 P.2d

14 785 (holding that the wife, as one with common authority over the premises, has

15 authority to consent to a search).

16   {4}   Issue 2: Defendant continues to challenge the sufficiency of the evidence to

17 support the revocation of his probation. [MIO 7] “In a probation revocation

18 proceeding, the [s]tate bears the burden of establishing a probation violation with a

19 reasonable certainty.” State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. “To



                                               2
 1 establish a violation of a probation agreement, the obligation is on the [s]tate to prove

 2 willful conduct on the part of the probationer so as to satisfy the applicable burden of

 3 proof.” In Re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339; see State

 4 v. Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321 (explaining that

 5 probation should not be revoked where the violation is not willful, in that it resulted

 6 from factors beyond a probationer’s control).

 7   {5}   Here, the district court found that Defendant violated his probation by failing

 8 to report for his July 3, 2017 probation appointment, and by possession of a firearm.

 9 [MIO 4] The State presented evidence that Defendant failed to report on July 3, and

10 Defendant does not provide any indication that he was unable to appear for his

11 appointment. [MIO 4, 7-8] With respect to the firearm, a person is in possession of a

12 firearm when, “on the occasion in question, he knows what [the firearm] is, he knows

13 it is on his person or in his presence[,] and he exercises control over it.” UJI 14-130

14 NMRA. Here, Defendant was found sitting on a couch (apparently alone) with a

15 firearm in plain view on the couch. [MIO 3] When the officers came in the house he

16 initially reached for the gun and then hesitated and sat up. [MIO 3] Under these

17 circumstances, we conclude that the definition of possession has been satisfied.

18   {6}   For the reasons set forth above, we affirm.

19   {7}   IT IS SO ORDERED.



                                               3
1                          ______________________________
2                          MICHAEL E. VIGIL, Judge




3 WE CONCUR:



4 ____________________________
5 LINDA M. VANZI, Chief Judge



6 ____________________________
7 DANIEL J. GALLEGOS, Judge




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