State v. Stotts ( 2022 )

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
No. A-1-CA-40237
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
BRIAN STOTTS,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
Angie K. Schneider, District Judge
Hector H. Balderas, Attorney General
Santa Fe, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Charles D. Agoos, Assistant Appellate Defender
Santa Fe, NM
for Appellant
MEMORANDUM OPINION
MEDINA, Judge.
{1} This matter was submitted to the Court on the brief in chief, pursuant to the
Administrative Order for Appeals in Criminal Cases Involving the Law Offices of the
Public Defender, From the Twelfth Judicial District Court in In re Pilot Project for
Criminal Appeals, No. 2021-002, effective September 1, 2021. Having considered the
brief in chief, concluding the briefing submitted to the Court provides no possibility for
reversal and determining that this case is appropriate for resolution on Track 1 as
defined in that order, we affirm for the following reasons.
{2} Defendant appeals from the district court’s order revoking his probation.
Defendant contends the evidence is insufficient to show that his conduct constituted
attempted robbery [BIC 4-5], and even if it is sufficient, the district court abused its
discretion by revoking his probation because Defendant did not intend to hurt anyone
and should have been given behavioral health treatment. [BIC 5-6]
{3} Our case law indicates that this Court does not need to address the sufficiency of
the evidence to support multiple violations of the terms of a defendant’s probation
because “if there is sufficient evidence to support just one violation, we will find the
district court’s order was proper.” State v. Leon, 2013-NMCA-011, ¶ 37, 292 P.3d 493.
In the current case, the district court revoked Defendant’s probation for violating two
terms of his probation: (1) he violated a law by committing the crime of attempted
robbery; and (2) he purchased alcohol. [RP2 327, 330-332, 376] Although under Leon,
we do not need to address the sufficiency of the evidence that Defendant’s conduct
constituted attempted robbery, if there is sufficient evidence that Defendant purchased
alcohol in violation of his probation, we do so given the qualitative difference between
the two grounds for revoking Defendant’s probation in this case. See id.; see also State
v. Marquart, 1997-NMCA-090, ¶¶ 8, 20-21, 123 N.M. 809, 945 P.2d 1027 (holding that
remand is appropriate for the revoking court to consider whether the remaining,
affirmable motor vehicle violation warrants revocation if the drug and drug paraphernalia
charges, constituting other probation violations cannot stand).
{4} Proof of a probation violation “must be established with a reasonable certainty,
such that a reasonable and impartial mind would believe that the defendant violated the
terms of probation.” State v. Green, 2015-NMCA-007, ¶ 22, 341 P.3d 10. On appeal, we
“view[] the evidence in a light most favorable to the State and indulg[e] all reasonable
inferences in favor of the [district] court’s judgment.” State v. Erickson K., 2002-NMCA-
058, ¶ 21, 132 N.M. 258, 46 P.3d 1258. “The burden of proving a violation with
reasonable certainty lies with the [s]tate.” Green, 2015-NMCA-007, ¶ 22. “Once the
state offers proof of a breach of a material condition of probation, the defendant must
come forward with evidence to excuse non[]compliance.” Leon, 2013-NMCA-011, ¶ 36
(internal quotation marks and citation omitted).
{5} At the probation revocation hearing, the following testimony was given by Davina
Garcia, the clerk at the Allsup’s where Defendant was accused of purchasing alcohol
and committing attempted robbery.1 Ms. Garcia testified that Defendant was a regular
customer at the Allsup’s and purchased a bottle of Crystal Palace vodka with cash. [CD
10/30/20 8:35:40-8:36:29, 8:39:17-:19] She also testified that not long after Defendant
1We note that the brief in chief did not provide this Court with all facts necessary to a consideration of the
issues presented on appeal. See Rule 12-318(A)(3) NMRA (requiring briefs in chief to contain “a
summary of the facts relevant to the issues presented for review”). We also note that Administrative
Order, No. 2021-002, creates a pilot project that is “focused on accelerating the processing of criminal
appellate cases in which the defendant is represented by the Law Offices of the Public Defender.” This
purpose is frustrated if this Court is unable to rely on briefs from the appellant that do not provide a
sufficient summary of the facts relevant to the issues under review. We advise counsel to carefully follow
Rule 12-318(A)(3) and orders of this Court, including the Administrative Order, in future briefing filed with
this Court.
purchased the alcohol, he returned to the Allsup’s and was on his cell phone for a long
time, standing off to the side, before coming to the counter. [Id. 8:37:20-8:38:00] After a
time, Defendant, a large man, walked up to the counter, and held up his phone to Ms.
Garcia’s face. [Id.] The message Ms. Garcia read on Defendant’s phone stated that this
is a robbery, told Ms. Garcia to give him all her money, and stated that Defendant did
not have a weapon. [Id. 8:38:00-:15] Ms. Garcia testified that she looked at Defendant
and was so terrified by the look in his eyes, that she jumped back and said, “Oh my
God! What are you doing?” [Id. 8:38:15-:26] Ms. Garcia stated that because Defendant
was a regular customer, she was familiar with Defendant and was terrified at that
moment because of the serious look in his eyes, the dilation of his pupils, and because
he was sweating profusely from his face and head. [Id. 8:49-45-8:50:44]
{6} Ms. Garcia stated that she “started freaking out” and Defendant “started freaking
out, too.” [Id. 8:38:26-:35] She said Defendant got nervous, paced around the store,
then walked in and out of the store within a matter of seconds. [Id. 8:38:38-:50] Ms.
Garcia stated that she was really scared and kept putting her arms in the air whenever
Defendant would come back into the store, and that Defendant was waving his arms
around. [Id. 8:38:50-8:39:19, 8:53:20-:26] Ms. Garcia testified that Defendant told her he
had to do this because they were charging him $10,000 for his son’s funeral. [Id.
8:56:44-8:57:04] Ms. Garcia explained that she thought Defendant was trying to justify
why he was robbing her, that she took the threat of the robbery seriously, and that she
was scared for her life. [Id. 8:42:12-:30, 8:56:03-:08]
{7} After going in and out of the store and explaining why he was robbing Ms.
Garcia, Defendant eventually purchased a cigarillo and left the store without taking
anything. [BIC 3, 5]
{8} “Robbery consists of the theft of anything of value from the person of another or
from the immediate control of another, by use or threatened use of force or violence.”
NMSA 1978, § 30-16-2 (1973). “Attempted robbery is ‘an overt act in furtherance of and
with intent to commit [robbery] and tending but failing to effect its commission.’” State v.
Bernal, 2006-NMSC-050, ¶ 19, 140 N.M. 644, 146 P.3d 289 (quoting NMSA 1978, § 30-
28-1 (1963) (attempt statute)).
{9} We conclude that the State satisfied its burden of proving a violation of laws with
reasonable certainty, and Defendant did not provide evidence of an excuse for
noncompliance. Defendant’s cell phone message informed Ms. Garcia that Defendant
was robbing her; his statement explained why he was robbing her, evincing an intent to
do so; and the look in Defendant’s eyes, his posture, and his demeanor conveyed a
threat to Ms. Garcia, indicated that he was serious about it, and caused her to fear for
her life. These actions, though not openly violent, were threatening and constitute
adequate evidence from which “a reasonable and impartial mind would be inclined to
conclude,” Leon, 2013-NMCA-011, ¶ 36, that Defendant made “an overt act in
furtherance of and with intent to commit [robbery] and tending but failing to effect its
commission.” Bernal, 2006-NMSC-050, ¶ 19 (internal quotation marks and citation
omitted).
{10} Also, Ms. Garcia’s testimony that Defendant purchased the bottle of vodka
provides sufficient proof that Defendant violated the condition of his probation that he
not possess alcohol. [RP2 331] Cf. State v. Roybal, 1992-NMCA-114, ¶ 9, 115 N.M. 27,
846 P.2d 333 (indicating that the testimony of a single witness constitutes sufficient
evidence to uphold a conviction). While this violation alone constitutes adequate
grounds upon which to affirm the revocation of Defendant’s probation, see Leon, 2013-
NMCA-011, ¶ 37, the evidence used as proof that Defendant committed attempted
robbery combined with his possession of alcohol persuades us that the revocation of
Defendant’s probation is amply supported and should be affirmed.
{11} To the extent Defendant claims that the district court abused its discretion by
revoking his probation because he did not intend to hurt anyone and he was doing well
on probation until his six-year-old son died in a house fire [BIC 3, 5-6; RP2 332], we are
not at liberty to control the district court’s broad discretion when a probation violation is
established to impose any particular remedy authorized by statute. See NMSA 1978, §
31-21-15(B) (1989, amended 2016) (permitting the district court, after a probation
violation is established, to “continue the original probation, revoke the probation and
either order a new probation with any condition provided for in [NMSA 1978,] Section[s]
31-20-5 [(2003)] or [-6 (2007)] or require the probationer to serve the balance of the
sentence imposed or any lesser sentence” or for deferred sentences, “the court may
impose any sentence which might originally have been imposed”); see also State v.
Rivera, 2004-NMSC-001, ¶ 21, 134 N.M. 768, 82 P.3d 939 (explaining that “[t]he
probation statutes themselves are structured in such a manner to give the sentencing
court the broad power to ensure that the goal of rehabilitation is indeed being achieved,”
noting that Section 31-21-15 provides many options to the district court and
encompasses such a broad power of revocation “as to allow the court to revoke a
defendant’s probation based on a defendant’s misbehavior occurring before the
commencement of probation”). As our courts have long recognized, “[p]robation is not a
right but a privilege.” State v. Mendoza, 1978-NMSC-048, ¶ 5, 91 N.M. 688, 579 P.2d
1255; see id. (“A probationer is a person convicted of an offense, and the suspension of
his sentence remains within the control of the [trial] court” (internal quotation marks and
citation omitted)).
{12} For the foregoing reasons, we hold that Defendant has not established error in
the revocation of his probation and affirm.
{13} IT IS SO ORDERED.
JACQUELINE R. MEDINA, Judge
WE CONCUR:
JENNIFER L. ATTREP, Judge
MEGAN P. DUFFY, Judge