1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date.

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 STATE OF NEW MEXICO,

8 Plaintiff-Appellee, 

9 v. NO. 29,594

10 EMANUEL B., 

11 Child-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

13 William C. Birdsall, District Judge

14 Gary K. King, Attorney General

15 Santa Fe, NM

16 for Appellee

17 Hugh W. Dangler, Chief Public Defender

18 Kathleen T. Baldridge, Assistant Appellate Defender

19 Santa Fe, NM

20 for Appellant

21 MEMORANDUM OPINION

22 VIGIL, Judge.
2

1 Child appeals the revocation of his probation. [RP 71] He relies on State v.

2 Erickson K., 2002-NMCA-058, ¶¶ 21-25, 132 N.M. 258, 46 P.3d 1258, arguing

3 that the revocation was not supported by firsthand knowledge. [DS 3] Our notice

4 proposed to affirm. Child filed a memorandum in opposition. We have considered

5 the arguments in Child’s memorandum, but are not persuaded the evidence is

6 insufficient to support the revocation of his probation. Accordingly, we affirm.

7 DISCUSSION 

8 A juvenile probation violation must be proved beyond a reasonable doubt. 

9 Id. ¶ 21. On appeal, we view the evidence in the light most favorable to the State

10 and indulge all reasonable inferences in favor of the trial court’s order. Id.

11 Child is correct that Erickson K. requires firsthand knowledge. In that case,

12 we found the evidence insufficient where the only evidence was the Juvenile

13 Probation Officer’s hearsay testimony that the child had absconded from a

14 treatment program. Id. ¶ ¶ 22, 24. We held that to support revocation of probation

15 the State must produce firsthand knowledge of the situation. 

16 This case is distinguishable because there was much more than the scant

17 hearsay evidence produced in Erickson K. The evidence is that Child was home

18 from residential treatment on a pass, and went to a park. [RP 61] Child’s Mother

19 testified that when she next saw him he appeared to be intoxicated and smelled of
3

1 alcohol. [DS 2; RP 61] An officer from the Juvenile Probation Office also testified

2 that Child appeared to be intoxicated. [DS 2; RP 62] Most significantly, Child’s

3 mental health therapist from the treatment program testified that Child was

4 discharged from the program based on Child’s conduct during Child’s home pass.

5 [DS 3; RP 62-63] This testimony, along with the other evidence, makes this case

6 distinguishable from Erickson K. In Erickson K., the State did not present a staff

7 member from the residential treatment center, which we considered necessary. Id.

8 ¶ 22. Here, the State did present a staff member to verify that Child was

9 discharged [DS 3], and why. The State also presented the testimony of two

10 witnesses whose testimony further explained the situation that resulted in Child

11 being discharged from the residential treatment program.

12 Child argues that without a finding that he was intoxicated, the State’s case

13 is insufficient. He relies on the fact that when the juvenile probation officer

14 attempted to testify about the read out from the portable breath testing machine, the

15 court would not allow it. [RP 62] A review of the tape log indicates that the court,

16 in making it ruling revoking probation, observed that it “would” have found him

17 guilty of consuming alcohol, but because it had prohibited the juvenile probation

18 officer from testifying to the test result, it would not find him guilty of testing

19 positive for alcohol. [RP 63] The court did, however, revoke his probation because
4

1 he violated probation by being terminated from his residential treatment program.

2 [RP 63] 

3 Child relies on the court’s failure to find a positive alcohol test result to

4 argue that the evidence is insufficient to support revocation: “[T]he children’s

5 court found that there was no evidence that [Child] was intoxicated, but in the same

6 breath determined that Child’s discharge from the [residential treatment program]

7 for the non-existent intoxication was sufficient to revoke his probation.” [MIO 5] 

8 It is clear to us that the court did not find that Child tested positive, but it is

9 not clear that the court declined to consider any evidence of intoxication. As we

10 have noted, Child’s Mother and the juvenile probation officer both testified that

11 Child appeared to be intoxicated. In addition, there was also evidence, from

12 Child’s treatment therapist at the program—someone with firsthand

13 knowledge—that the program terminated Child based on his misconduct while he

14 had been released to his Mother. Consequently, we conclude that there was ample

15 evidence of Child’s misconduct, combined with firsthand knowledge that Child

16 was terminated from the treatment program based on his misconduct. We do not

17 read Erickson K. as requiring that every witness who testifies have firsthand

18 knowledge of every fact in the case. We hold that the evidence was sufficient to

19 prove beyond a reasonable doubt that Child violated his probation, and affirm. 
5
6

1 IT IS SO ORDERED.

2 

3 MICHAEL E. VIGIL, Judge

4 WE CONCUR:

5 

6 MICHAEL D. BUSTAMANTE, Judge

7 

8 CELIA FOY CASTILLO, Judge