State v. Lynn C.

• Decision Date: 10 December 1987
• Docket Number: No. 10268,10268
• Citation: 1987 NMCA 146,106 N.M. 681,748 P.2d 978
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. LYNN C., a child, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 978

748 P.2d 978

106 N.M. 681

STATE of New Mexico, Plaintiff-Appellee, v. LYNN C., a child, Defendant-Appellant.

No. 10268.

Court of Appeals of New Mexico.

Dec. 10, 1987.

Certiorari Denied Jan. 20, 1988.

[106 NM 682] Hal Stratton, Atty. Gen., Santa Fe, for plaintiff-appellee.

Jacquelyn Robins, Chief Public Defender, Lynne Fagan, Appellate Defender, Bruce Rogoff, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

APODACA, Judge.

Respondent appeals from the trial court's order revoking her probation. We proposed summary affirmance in our calendar notice. Respondent filed a memorandum in opposition to our proposed disposition. Not being persuaded by her arguments and authorities, we affirm.

Proof beyond a reasonable doubt is the standard for establishing probation violations in children's court probation revocation hearings. State v. Doe, 104 N.M. 107, 717 P.2d 83 (Ct.App.1986). Respondent argues her due process rights of confrontation and cross-examination were violated because the state's case consisted entirely of hearsay. See State v. Vigil, 97 N.M. 749, 643 P.2d 618 (Ct.App.1982). Our calendar notice proposed affirmance on the basis that the record contained sufficient evidence, other than the challenged hearsay, to support a finding that respondent violated the conditions of her probation. See, e.g., State v. Carter, 116 Ariz. 595, 570 P.2d 763 (1977). Compare State v. Vigil. The evidence consisted of the following: respondent's admissions of violating the rules of the group home where respondent resided; smoking in violation of the probation conditions; and her nonhearsay assertions to the group home director that she was not going to stay at the home or work the program.

Yet, respondent does not argue in her memorandum that her admissions of violating the rules are insufficient to support a finding of a probation violation. The trial court's order, however, expressly stated respondent admitted violating the allegations of Count 1 of the state's petition to revoke probation. Under these circumstances, we find no violation of respondent's due process rights of confrontation and cross-examination. See State v. Vigil. We conclude that her admissions of violating the group home rules are sufficient proof to establish a probation violation under Doe. Compare State v. Lay, 26 Ariz.App. 64, 546 P.2d 41 (1976).

Respondent, citing Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), contends the smoking incidents cannot constitutionally be used as a basis for revoking her probation. She also argues such evidence was based on hearsay. It is unclear from respondent's docketing statement whether she admitted the incidents of smoking or whether the group home director testified respondent stated to her that she smoked. In either event, the evidence of respondent's smoking incidents is not based on hearsay; neither does there appear to be any serious dispute that she smoked in violation of the home rules. See State v. Sisneros, 98 N.M. 201, 647 P.2d 403 (1982) (docketing statement assertions accepted as true); SCRA 1986, 11-801(D)(2)(a) (admissions of party-opponent not hearsay).

The more serious question presented is whether it is constitutionally permissible to revoke respondent's probation for smoking. We believe respondent's reliance on Robinson is misplaced, for it is distinguishable. In Robinson, the Court struck down a statute making the "status" of narcotic addiction alone a criminal offense. Here, respondent was not convicted under a statute making nicotine addiction a criminal offense. We hold that a children's court can validly impose a smoking restriction as a condition of probation. The relevant consideration is not whether a court can impose as a condition of probation that respondent not smoke, but rather,...