State v. Jones, A-1-CA-39160

Case DateSeptember 21, 2022
CourtCourt of Appeals of New Mexico

STATE OF NEW MEXICO, Plaintiff-Appellee,

HENRY JONES, Defendant-Appellant.

No. A-1-CA-39160

Court of Appeals of New Mexico

September 21, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.


Hector H. Balderas, Attorney General Santa Fe, NM Charles J. Gutierrez, Assistant Attorney General Albuquerque, NM for Appellee.

Bennett J. Baur, Chief Public Defender Carrie Cochran, Assistant Appellate Defender Santa Fe, NM for Appellant.



{¶1} After entering a no contest plea, Defendant Henry Jones received a suspended sentence and five years of probation. Defendant's probation was revoked on July 15, 2020, the district court found him to be a fugitive, and he was sentenced to four years


imprisonment. Defendant appeals, and we affirm in part, reverse in part, and remand for recalculation of Defendant's sentence.

{¶2} Because this is a memorandum opinion and the parties are familiar with the facts and procedural history, we discuss the facts only as they become necessary to our analysis.


{¶3} Defendant challenges (1) the sufficiency of the evidence supporting a willful violation of his probation, and (2) the sufficiency of the evidence supporting a finding that Defendant was a fugitive. We address each issue in turn.

I. Sufficient Evidence Supported the Finding That Defendant Violated the Conditions of Probation

{¶4} When reviewing the sufficiency of the evidence supporting a probation violation, we first "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." In re Bruno R., 2003-NMCA-057, ¶ 9, 133 N.M. 566, 66 P.3d 339. The burden to establish a probation violation "with a reasonable certainty" is on the State, which "must introduce evidence that a reasonable and impartial mind would be inclined to conclude that the defendant has violated the terms of probation." State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. Any probation violation "must entail willful conduct on the part of the probationer," and if the violation "resulted from factors beyond a probationer's control, probation may not be revoked." State v. Williams,


2021-NMCA-021, ¶ 6, 489 P.3d 949 (alteration, internal quotation marks, and citations omitted).

{¶5} The terms of Defendant's probation (1) stated that "[u]pon acceptance, [D]efendant may transfer his probation to the [s]tate of Tennessee," and (2) required him to pay certain fees and fines. Defendant admits that Tennessee denied his application to transfer, that he did not return to New Mexico, and that he did not pay the fees and fines. Defendant argues, however, that he did not willfully fail to either return to New Mexico after his transfer was denied or to make the payments. We turn to consider the evidence presented at the revocation hearing.

{¶6} Defendant testified that he knew in 2016 that the transfer had been denied but that he never received a travel permit or instructions to return to New Mexico and believed he could not leave Tennessee without a travel permit. Instead, Defendant explained that he thought his probation officer was working to submit another transfer application. Defendant continued to work and reside in Tennessee until his arrest at a roadblock in December 2019. In addition, Defendant maintained that he attempted to pay the fees at the Tennessee office but that the office would not accept payment because the transfer of probation had not yet been accepted. Defendant's position on appeal is that the violation was not willful because he had no travel permit, and Tennessee refused to accept his payment.


{¶7} The district court, however, rejected Defendant's testimony and found the probation officer's testimony to be credible. The probation officer testified that Defendant was permitted to return to Tennessee while the transfer was pending acceptance by both Tennessee and New Mexico. After Tennessee denied the transfer, the probation officer ordered Defendant to return to New Mexico and granted him an extension of time to make the trip. The probation officer confirmed that Defendant understood he had to return to New Mexico. The Tennessee probation office issued a notice of departure and case closure, and the probation officer presumed that Tennessee had provided Defendant with a travel permit. Defendant did not report to the New Mexico probation office and did not pay the fees and fines. This evidence supports a finding that the violation was willful, and not resulting from factors outside of Defendant's control. Defendant knew he had to return to New Mexico and knew that Tennessee would not accept payment. Although we recognize that Defendant testified that he believed he needed a travel permit, Defendant did nothing to remedy the lack of a travel permit. See State v. Martinez, 1989-NMCA-036, ¶¶ 8-10, 108 N.M. 604, 775 P.2d 1321 (upholding a willful violation where the defendant was arrested while on probation over a long weekend, tried to call the probation office but it was closed, and "did nothing after his initial attempt because he figured it was already too late"). Regardless, the district court generally rejected...

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