This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO, 2 Plaintiff-Appellee, 3

v. No. 34,502 4 CHRISTOPHER HERNANDEZ, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 7 Michael E. Martinez, Pro Tem District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 John J. Woykovsky, Assistant Attorney General 11 Albuquerque, NM 12 for Appellee 13 Bennett J. Baur, Chief Public Defender 14 Tania Shahani, Assistant Appellate Defender 15 Santa Fe, NM 16 for Appellant 17 MEMORANDUM OPINION 18 ZAMORA, Judge. 192 {1} Defendant appeals from the district c ourt’s order revoking his probation on the 1 grounds that Defendant cut off his GPS ankle bracelet and failed to stay at his 2 approved residence. Defendant challenges the sufficiency of the evidence to support 3 these alleged violations of his probation ag reement. We hold that sufficient evidence 4 was presented to support the revocation of Defendant’s probation. We therefore 5 affirm. 6 DISCUSSION 7 {2} Because the parties are familiar with the facts and procedural history of this 8 case, we reserve discussion of the pertinent facts for our analysis. 9 {3} Proof of a probation violation “must be established with a reasonable certainty, 10 such that a reasonable and impartial mind would believe that the defendant violated 11 the terms of probation.” State v. Green , 2015-NMCA-007, ¶ 22, 341 P.3d 10. “The 12 burden of proving a violation with reasonable certainty lies with the [s]tate.” Id. “Once 13 the state offers proof of a breach of a material conditi on of probation, the defendant 14 must come forward with evid ence to excuse non-compliance.” State v. Leon , 15 2013-NMCA-011, ¶ 36, 292 P.3d 493 (internal quotation marks and citation omitted). 16 If the defendant establishes that the violation was not willful or otherwise resulted 17 from circumstances beyond his or her control or fault, and the district court finds 18 consistently with the defendant’s excu se, then probation s hould not be revoked. See 193 State v. Martinez , 1989-NMCA-036, ¶ 8, 108 N.M. 604, 775 P.2d 1321. If the 1 defendant does not carry this burden, then the district court is within its discretion to 2 revoke probation. See id. 3 {4} “We review [the] district court’s d ecision to revoke probation under an abuse 4 of discretion standard. To establish an abuse of discretion, it must appear the district 5 court acted unfairly or arbitrarily, or committed manifest error.” Green , 6 2015-NMCA-007, ¶ 22 (alteration, internal quotation marks, and citation omitted). On 7 appeal, we “view[] the evidence in a light most favorable to the [s]tate and indulg[e] 8 all reasonable inferences in favor of the [district] court’s judgment.” State v. Erickson 9 K. , 2002-NMCA-058, ¶ 21, 132 N.M. 258, 46 P.3d 1258. 10 {5} At the probation revocation hearing, the State presented evidence that on April 11 19, 2014, Defendant was issued a GPS ankl e bracelet under the terms of a Community 12 Custody Program (CCP), under which he re mained on house arrest monitored by the 13 GPS bracelet. The rules of CCP required Defe ndant to be responsib le for all the GPS 14 and other house arrest equipment; check in by phone twice a day, in the morning and 15 afternoon; submit to two urinalyses (UAs ) a week; and report when called or when 16 alerted by the GPS ankle bracelet to do so. Officer Sanchez, the CCP tracker assigned 17 to Defendant, testified that he made sure Defendant understood the rules, Defendant’s 18 responsibilities, and how to use all the GPS equipment. 194 {6} Michael Abeyta, an employee with the Bernalillo County Detention Center, 1 testified that on April 19, 2014, he was a ssigned to monitor the GPS ankle bracelet by 2 computer and received a page on the computer showing that Defendant had cut his 3 bracelet. More specifically, the page indicated that Defendant had a “strap tamper,” 4 which means that the bracelet was on and powered and that someone broke the 5 connection and cut off the bracelet. Mr. Ab eyta paged Defendant’s bracelet, which 6 sent an audible beep and a voice alert instructing Defendant to call his officer and 7 report in. Defendant did not re spond to the alert on the bracelet and did not call, as he 8 was alerted and required to do. The computer showed th at the GPS bracelet was cut 9 and remained at the address lis ted in Defendant’s file, so Mr. Abeyta traveled to that 10 address. 11 {7} When Mr. Abeyta arrived, he knocked on the door of the residence for about 12 five to ten minutes, but no one answered the door or acknowledged his presence. The 13 lights were off, it was dark inside, the door was locked, and it appeared as if no one 14 was home. Mr. Abeyta testified that it was a single-story home with no other 15 attachments or residences on the property. Mr. Abeyta could not see the bracelet 16 inside the home. While Mr. Abeyta was at the residence, he received a call from his 17 sergeant explaining that he had gotten a call from the Albuquerque Police Department 18 (APD), explaining that Defendant’s girlfriend reported a domestic violence altercation 195 and stated that Defendant had left the home and cut off his bracel et. Defendant never 1 returned the bracelet to CCP ; CCP eventually retrieved all the other equipment from 2 Defendant except for the bracelet. Officer Sanchez completed an escape report for 3 Defendant and filed it with the court. 4 {8} On appeal, Defendant contends that the evidence was too speculative to 5 conclude that Defendant had cut off his bracelet. Defendant contends that the absence 6 of direct evidence that Defendant cut off his bracelet combined with his testimony at 7 the sentencing phase—that he lived in the back of the home and did not hear Mr. 8 Abeyta knocking—provides greater support fo r the conclusion that the ankle bracelet 9 had simply malfunctioned. We disagree. On appeal, we indulge in reasonable 10 inferences that support the judgment of th e fact-finder and disregard all evidence and 11 inferences that support a different result. See State v. Rojo , 1999-NMSC-001, ¶ 19, 12 126 N.M. 438, 971 P.2d 829; see also State v. Montoya , 2015-NMSC-010, ¶ 52, 345 13 P.3d 1056 (“Contrary evidence supporting ac quittal does not provide a basis for 14 reversal because the jury is free to reject [the d]efendant’s version of the facts.” 15 (internal quotation marks and citation omitte d)). We will not invade the province of 16 the fact-finder by second-guessing its decision concerning the credibility of witnesses, 17 by reweighing the evidence, or by substituting our judgment for that of the fact-finder. 18 See State v. Garcia , 2016-NMSC-034, ¶ 15, 384 P.3d 1076. Therefore, to the extent 196 that Defendant’s testimony at the sentencing phase is argued to be contrary evidence, 1 we may disregard it and disregard the in ference that his ankle bracelet was not 2 functioning properly. Also, direct evidence is not required to establish a violation. See 3 State v. Trevor M. , 2015-NMCA-009, ¶ 14, 341 P.3d 25 (stating that the test for 4 sufficiency of the evidence to prove a j uvenile probation violation is “whether 5 substantial evidence of either a direct or circumstantial nature exists to support a 6 verdict of guilt beyond a reasonable doubt with respect to every element essential to 7 a conviction” (internal quotation marks and citation omitted)). {9} We believe it 8 is reasonable to infer that Defendant cu t the ankle bracelet based on the complete 9 absence of the ankle bracelet, particularly from his ankle, af ter the “strap tamper” alert 10 in combination with the evid ence that the computer reporte d a break in the connection 11 while it was present at the residence, and that knowing the rules and equipment, 12 Defendant failed to report in or answer the door. We hold that the State satisfied its 13 burden of presenting evidence from which “a reasonable and impartial mind would 14 be inclined to conclude th at the defendant has violated the terms of probation.” Leon , 15 2013-NMCA-011, ¶ 36. Defendant ’s assertion that he did not hear Mr. Abeyta 16 knocking was a matter of credibility that was rejected by the district court. Thus, 17 Defendant did not carry his burden of establishing an excuse for his noncompliance, 187 and the district court was within its discretion to revoke Defendant’s probation. See 1 Martinez , 1989-NMA-036, ¶ 8. 2 {10} Defendant also contends that the evidence was insufficient to establish that 3 Defendant failed to stay at his approved residence, because the State’s proof of this 4 violation constituted hearsay evidence. See State v. Vigil , 1982-NMCA-058, ¶ 13, 97 5 N.M. 749, 643 P.2d 618 (explaining that where the sufficiency of the evidence 6 supporting the violation is challenged base d on the use of hearsay to prove the 7 violation, our review determines whether the evidence was “suffi cient to verify that 8 [the] defendant violated conditions of probation”). We need not address Defendant’s 9 challenge to the evidence supporting the second violation, because “if there is 10 sufficient evidence to support just one violati on, we will find the district court’s order 11 was proper.” Leon , 2013-NMCA-011, ¶ 37. Nevertheless, we take this opportunity to 12 point out that Defendant’s challenge to th e sufficiency of the evidence, based on the 13 argument that the district court relied on hearsay evidence in revoking his probation 14 for both alleged violations , was waived. 15 {11} Mr. Abeyta’s testimony about the call he received from APD regarding the 16 domestic violence report, Defe ndant’s absence, and his ankle bracelet was far from 17 the sole evidence presented by the State pr oving that Defendant cut off his bracelet 18 and did not factor into our assessment that the evidence was sufficient to revoke 198 Defendant’s probation. The evidence was su fficient to prove the probation violation 1 without any reliance on the hearsay evidence. 2 {12} Because there was sufficient evidence of one material breach of Defendant’s 3 probation agreement and because Defendant waived his specific challenges to the 4 second probation violation, wedo not address whether re vocation was proper for the 5 second alleged violation. 6 CONCLUSION 7 {13} For the foregoing reasons, we affirm the district court’s order revoking 8 Defendant’s probation. 9 {14} IT IS SO ORDERED. 10

11 M. MONICA ZAMORA, Judge 12 WE CONCUR: 13

14 LINDA M. VANZI, Chief Judge 15

16 J. MILES HANISEE, Judge 17