Court of Appeals of New Mexico

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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
CEDRYCH YOUNG,
Defendant-Appellant.

NO. A-1-CA-37193

COURT OF APPEALS OF NEW MEXICO

September 24, 2018

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY, Mark A. Macaron, District Judge

COUNSEL

Hector H. Balderas, Attorney General, Santa Fe, NM, for Appellee

Bennett J. Baur, Chief Public Defender, Kathleen T. Baldridge, Assistant Appellate Defender, Santa Fe, NM, for Appellant

JUDGES

MICHAEL E. VIGIL, Judge. WE CONCUR: LINDA M. VANZI, Chief Judge, DANIEL J. GALLEGOS, Judge

AUTHOR: MICHAEL E. VIGIL

MEMORANDUM OPINION

VIGIL, Judge.

{1}       Defendant Cedrych Young appeals from an order revoking his probation. We issued a calendar notice proposing to affirm. Defendant has responded with a memorandum in opposition. Not persuaded, we affirm.

{2}       Issue 1: Defendant continues to challenge the denial of his motion to suppress. [MIO 5] A ruling on a motion to suppress evidence presents a mixed question of law and fact. State v. Garcia, 2005-NMSC-017, ¶ 27, 138 N.M. 1, 116 P.3d 72. We review findings of fact using the substantial evidence standard. Id. We review the application of law to the facts de novo, viewing the facts in the light most favorable to the prevailing party. Id.

{3}       In this case, Defendant claims that the officers lacked exigent circumstances to search his residence. [MIO 5] However, there is no need for exigent circumstances because the officers entered the residence after Defendant’s wife gave them consent to do so. [MIO 3] See State v. Cline, 1998-NMCA-154, ¶ 18, 126 N.M. 77, 966 P.2d 785 (holding that the wife, as one with common authority over the premises, has authority to consent to a search).

{4}       Issue 2: Defendant continues to challenge the sufficiency of the evidence to support the revocation of his probation. [MIO 7] “In a probation revocation proceeding, the [s]tate bears the burden of establishing a probation violation with a reasonable certainty.” State v. Leon, 2013-NMCA-011, ¶ 36, 292 P.3d 493. “To establish a violation of a probation agreement, the obligation is on the [s]tate to prove willful conduct on the part of the probationer so as to satisfy the applicable burden of proof.” In Re Bruno R., 2003-NMCA-057, ¶ 11, 133 N.M. 566, 66 P.3d 339; see State v. Martinez, 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321 (explaining that probation should not be revoked where the violation is not willful, in that it resulted from factors beyond a probationer’s control).

{5}       Here, the district court found that Defendant violated his probation by failing to report for his July 3, 2017 probation appointment, and by possession of a firearm. [MIO 4] The State presented evidence that Defendant failed to report on July 3, and Defendant does not provide any indication that he was unable to appear for his appointment. [MIO 4, 7-8] With respect to the firearm, a person is in possession of a firearm when, “on the occasion in question, he knows what [the firearm] is, he knows it is on his person or in his presence[,] and he exercises control over it.” UJI 14-130 NMRA. Here, Defendant was found sitting on a couch (apparently alone) with a firearm in plain view on the couch. [MIO 3] When the officers came in the house he initially reached for the gun and then hesitated and sat up. [MIO 3] Under these circumstances, we conclude that the definition of possession has been satisfied.

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

{7}       IT IS SO ORDERED.

MICHAEL E. VIGIL, Judge

WE CONCUR:

LINDA M. VANZI, Chief Judge

DANIEL J. GALLEGOS, Judge