IN RE BRUNO R., No. 22

• Decision Date: 10 February 2003
• Docket Number: No. 828, No. 22, No. 829.
• Parties: In the Matter of BRUNO R., a Child, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

66 P.3d 339

133 N.M. 566

2003 NMCA 57

In the Matter of BRUNO R., a Child, Defendant-Appellant.

Nos. 22,828, 22,829.

Court of Appeals of New Mexico.

February 10, 2003.

Certiorari Denied April 2, 2003.

Patricia Madrid, Attorney General, Ann M. Harvey, Assistant Attorney General, Santa Fe, NM, for Appellee State of NM.

John B. Bigelow, Chief Public Defender, Samantha J. Fenrow, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

Certiorari Denied, No. 27,958, April 2, 2003.

OPINION

KENNEDY, Judge.

{1} Bruno R. (Child) appeals the determination of his probation revocation hearing where the trial court issued two Orders Revoking Probation, which have been consolidated on appeal. Following a hearing at which the trial court heard witnesses' testimony, it ruled that Child violated conditions of his Probation Agreements prohibiting the use of drugs and travel outside the state without prior approval from Child's Juvenile Probation/Parole Officer (JPPO). The trial court dismissed a claim that Child violated the clause in his Probation Agreement prohibiting Child from misbehaving in school.

{2} On appeal, Child argues that the trial court's determination to revoke his probation should be reversed on three grounds: (1) the trial court erred in finding that he violated his probation by leaving New Mexico without his JPPO's permission because the JPPO failed to provide emergency contact information for Child's mother to use should an emergency situation arise during the JPPO's non-business hours; (2) Child's alleged admission that he used marijuana lacked the necessary corroborating evidence required by the Children's Code and therefore the court should not have found that he violated probation based on his admission alone; and (3) the State did not prove Child was on probation because it failed to enter the Probation Agreement into evidence during the hearing.

{3} We reverse the trial court's decision to revoke Child's probation: (1) Child did not willfully violate his Probation Agreement when he left the state with his mother; and (2) Child's out-of-court admission that he used marijuana was not supported by sufficient corroborating evidence as required by the procedures set forth in the Children's Code, the Rules of Evidence, or the corpus delecti rule.

BACKGROUND

{4} Child is a special education student who has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). He has been in treatment since he was about seven years old and was sixteen years old at the time of the hearing to revoke his probation. In the summer of 2000, Child was placed on probation for possessing an alcoholic beverage by a minor contrary to NMSA 1978, § 60-7B-1(C) (1998) and aggravated assault with a deadly weapon in violation of NMSA 1978, § 30-3-2(A) (1963). Child's mother was specifically made a party to both the delinquency petitions and the Probation Agreements. The terms of Child's Probation Agreement required him to steer clear of alcohol, drugs, and weapons, as well as to avoid being in the presence of any person using or possessing such things. Child was also forbidden to leave Doña Ana County without first obtaining permission and a travel pass from his JPPO.

Leaving Dona Ana County

{5} On Saturday, September 8, 2001, Child's uncle (mother's brother-in law) died in Arizona. Child's mother determined that she would go to the funeral that weekend and that Child would accompany her. She attempted to contact Child's JPPO, Abe Martinez, but since the death occurred on a weekend, she was unable to do so. Martinez does not have Saturday office hours and never provided any emergency contact information to Child or his mother, and Child's mother, therefore, had no way to get in touch with Martinez during non-working hours.

{6} Martinez testified that Child's mother left a message on his voice mail explaining the situation; specifically, her message informed Martinez that there was a family emergency in Arizona, and that she and Child were leaving the state. Child's mother testified that she also contacted Donny Heath, a community corrections surveillance officer assigned to work with Child and his family, to inform him that she and Child were going to the funeral. Heath was not called as a witness. Child's mother testified that during the course of her conversation with Heath, she explained the situation and she formed the impression that Heath gave her permission to go to Arizona with Child. However, neither the record nor the mother's testimony established that Heath actually gave Child's mother permission to leave the state. Rather, Child's mother testified to nothing more than that Heath never said she could not take Child on a trip out of the state. The parties do not dispute the fact that Child left Doña Ana County without obtaining authorization for the trip from Martinez. Additionally, the record does not indicate that Child's mother attempted to contact Martinez the following Monday or that Heath had the authority to act as an after-hours surrogate for Martinez.

Drug Use

{7} Martinez appeared at the hearing and testified, but he forgot to bring his file, and he had no documentary evidence to present to the court. Martinez testified that in August and September 2001, Child admitted to Martinez that he used marijuana in violation of the Probation Agreement. Martinez testified that based on Child's alleged admissions, he ordered two drug tests to be administered. According to Martinez's testimony at the hearing, the two tests came back positive for marijuana. On the witness stand, Martinez did not know the name of the lab that performed the tests, only that Child's urine samples were sent to Albuquerque for analysis. No evidence was presented whether they were screening tests, or whether any screening tests had been confirmed by subsequent analysis. No test results were presented to the court as evidence.

{8} Martinez testified and was cross-examined by Child's attorney, and the paucity of the evidence was factually established. Child's attorney argued in her motion to dismiss and in her closing argument that the lack of confirming tests or evidence of test results at all was insufficient evidence upon which to base a finding of a probation violation. At the close of the hearing, when the court recited its basis for finding the marijuana violation, the court's only comment was that Child "told Mr. Martinez" he had used marijuana. The trial court found that Child violated his Probation Agreement both by leaving the state without permission and by using marijuana. The disposition hearing resulted in Child's probation for his aggravated assault and possession of alcohol charges being increased from one to two years.

DISCUSSION

Standard of Review

{9} In reviewing a sufficiency of the evidence contention, we view the evidence in a light most favorable to the prosecution, indulging all reasonable inferences and resolving all conflicts to uphold the trial court's decision. State v. Sanders, 117 N.M. 452, 456, 872 P.2d 870, 874 (1994). Nonetheless, we apply a two-step process, reviewing the evidence first in accordance with the standard just stated, and determining next whether the evidence, viewed in this manner, could persuade a rational trier of fact of guilt on each essential element of the charge. Id. Applying this standard of review, we hold that the evidence establishing the violations was insufficient as a matter of law and reverse the trial court.

A Probation Violation Requires Willful Conduct

{10} Child argues that he left the state without permission from Martinez because Martinez failed to provide emergency weekend contact information to Child or his mother. In addition, Child avers that his mother reasonably believed Heath was Martinez's agent, vested in Martinez's absence with apparent authority to allow mother to take Child to Arizona. We need not address this second contention as we agree with Child that his leaving the state was not willful.

{11} We believe that Child was placed in an untenable position when his mother decided to go to his uncle's funeral. On the one hand, his Probation Agreement was explicit that he was not permitted to leave the state without prior approval by Child's JPPO. On the other hand, the same agreement explicitly required Child to obey his mother. To establish a violation of a probation agreement, the obligation is on the State to prove willful conduct on the part of the probationer so as to satisfy the applicable burden of proof. See State v. Parsons, 104 N.M. 123, 128, 717 P.2d 99, 104 (Ct.App. 1986). This same standard applies to juvenile cases. Before a court can find Child to have violated his probation, evidence tending to establish his own willful conduct beyond a reasonable doubt must have been presented to the court. NMSA 1978, § 32A-2-24(B) (1993); In re Aaron L., 2000-NMCA-024, ¶ 24, 128 N.M. 641, 996 P.2d 431 ("Children's Code and the Children's Rules both mandate that juveniles be afforded the same rights and procedures in revocation proceedings that they are afforded in delinquency proceedings.").

{12} Here, the evidence does not support a finding that satisfies this burden. In this case, a party to the Probation Agreement, namely Child's mother, acted willfully to violate it, but no evidence was presented that Child did anything other than obey his mother. All the evidence in this case centers on the mother's decisions and actions. Child's mother decided to leave the state and take Child with her, she made assumptions about Heath's authority to give her permission to leave that were consistent only with her needs, and it was Child's mother who failed to follow up with Martinez the following Monday (or thereafter). No evidence in this case shows that Child himself acted in any willful fashion save going along with what his mother was doing.

{13} In State v. Martinez, 108 N.M. 604, 606-07, 775 P.2d 1321, 1323-24 (Ct.App. 1989), the Court...