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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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 fr om 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. 32,292 & 32,291 4 (consolidated) 5 ANTHONY VIGIL, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY 8 Abigail Aragon, District Judge 9 Gary K. King, Attorney General 10 Santa Fe, NM 11 M. Anne Kelly, Assistant Attorney General 12 Albuquerque, NM 13 for Appellee 14 Jorge A. Alvarado, Chief Public Defender 15 Allison H. Jaramillo, Assist ant Appellate Defender 16 Santa Fe, NM 17 for Appellant 18 MEMORANDUM OPINION 19 VIGIL, Judge. 202 {1} Defendant Anthony Vigil appeals an order of the district court revoking his 1 probation. Because sufficient evidence to es tablish with a reasonable certainty that 2 Defendant consumed alcohol in violation of his probation was presented to the district 3 court, we affirm. 4 BACKGROUND 5 {2} In 2011, Defendant had two criminal cases pending against him, one for larceny 6 and receiving stolen property, and the other for DWI (7th or greater offense) and 7 related traffic offenses. Defendant agreedto plead guilty to larceny and DWI (4th 8 offense) in exchange for guaranteed concurrent probationary sentences and dismissal 9 of the remaining charges. He was placedon supervised probation for three years 10 beginning June 27, 2011. Defe ndant signed an order of probation, agreeing to abide 11 by the following pertinent terms: (1) “STATE LAWS: I will not violate any of the 12 laws or ordinances of the St ate of [New Mexico], or any other jurisdiction. I shall not 13 endanger the person or property of another” and (2) “ALCOHOL: I shall not possess, 14 use or consume any alcoholic beverages.” 15 {3} On August 13, 2011, while on probation, Defendant was a passenger in his 16 truck driven by his girlfriend, Katherine H ouk, when she lost control and flipped the 17 vehicle, causing her serious injuries. De fendant was not at the scene when police 18 arrived. Moreover, police di scovered unopened beer cans in the truck, and they could 193 smell alcohol within the truc k, making them suspect that Defendant was the driver. 1 On August 25, 2011, the State filed a mo tion to revoke Defendant’s probation for 2 violating the above provisions. 3 {4} At the revocation hearing, Ms. Houk te stified that she and Defendant were 4 drinking alcohol at his boss’ house the eveni ng before the accident and that they both 5 had one beer on the morning of the accident . She said that she and Defendant were 6 traveling in his truck on an errand to cash his pay check the morning of the accident, 7 although she could not remember who was driving. She admitted to losing memory 8 of some of the events leading up to th e accident as a result of her injuries. 9 {5} The investigating officer, Officer Duran, al so testified. He explained that his 10 investigation revealed that Ms. Houk had b een driving the vehicle because the driver’s 11 side had blood on it and she was the only one bleeding. Officer Duran said he 12 questioned Defendant in October of 2011 about the accident and recorded the 13 interview. He stated that Defendant toldhim that Ms. Houk was driving his truck at 14 a high rate of speed. Officer Duran also said that Defendant admitted to drinking 15 alcohol the night before the accident, but th at this admission occurred before he had 16 initiated the recording. Another State witne ss testified that he had not seen Defendant 17 drink any alcohol at the gathering the night before the accident, though he was not 18 paying attention. 194 {6} The district court found that Defendant “did consume alcoholic beverages and 1 endangered the person of Katherine Houk” and entered an order revoking Defendant’s 2 probation. The court based its finding th at Defendant consumed alcohol on Ms. 3 Houk’s testimony that she saw him dri nk and Officer Duran’s testimony that 4 Defendant admitted he drank. The court based its endangerment finding on the 5 testimony that Ms. Houk had been consumi ng alcoholic beverage s, that while under 6 the influence of alcohol she drove the vehi cle in Defendant’s presence, and that the 7 vehicle belonged to Defendant and thus he had the right to either deny or allow her to 8 drive the vehicle. After Defendant underwent a diagnostic evaluation, the district 9 court sentenced Defendant to a total of f our years incarceration, with his three-year 10 sentence enhanced by one year pursuant to the habitual offender enhancement. 11 Defendant appeals the revocation of his probation. 12 DISCUSSION 13 Sufficiency of the Evidence Supporting the Probation Revocation 14 {7} “[T]he evidentiary requirement for violation of probation is that the violation 15 be established with reasonable certainty.” State v. Sanchez , 2001-NMCA-060, ¶ 13, 16 130 N.M. 602, 28 P.3d 1143. “The proof must be that which inclines a reasonable and 17 impartial mind to the belief that defendant had violatedthe terms of probation.” Id. 18 (internal quotation marks and citation omitted). The proof “need not be established 195 beyond a reasonable doubt.” State v. Martinez , 1989-NMCA-036, ¶ 4, 108 N.M. 604, 1 775 P.2d 1321. 2 {8} “We review the trial court’s decisi on to revoke probation under an abuse of 3 discretion standard. To establish an abuse of discretion, it must appear the trial court 4 acted unfairly or arbitrarily, or committed manifest error.” Id. ¶ 5 (citations omitted). 5 1. Endangering the Person of Ms. Houk 6 {9} Defendant challenges the fi nding that he violatedcondition one related to 7 endangering Ms. Houk by challenging (1) the constitutionality of the condition, and 8 (2) the sufficiency of the evid ence that he endangered Ms. Houk. 9 a. Constitutional Arguments 10 {10} Defendant raises two constitutional challenges regarding the revocation of his 11 probation for violating condition one. First, he asserts thatthe State failed to provide 12 sufficient notice it intended to revokehis probation for endangering Ms. Houk. 13 Second, he argues that the condition is unconstitutionally vague because it fails to 14 provide fair notice of what conduct is prohibited. 15 {11} Defendant argues that the probation viol ation report failed togive him notice 16 regarding the allegation of endangerment of Ms. Houk’s because the report incorrectly 17 stated that he was arrested for leaving th e scene of the accident, rather than alleging 18 he endangered Ms. H ouk by letting her drive his truck while intoxicated. However, 196 Defendant acknowledges that the report includes language from condition one 1 regarding the promise not to endanger another. He also acknowledges that the State 2 moved to continue the revocation hearing at one point so that it could present a 3 witness that would testify how Defendant failed to comply with condition one “by 4 endangering” Ms. Houk. The State responds that Defendant failed to raise the notice 5 issue in the district court, and in any ev ent, that Defendant had sufficient notice. 6 {12} Regardless, Defendant maintains that c ondition one cannot be enforced as it is 7 unconstitutionally vague. Defendant claims that the language in condition one fails 8 to provide fair notice as to what behavi or is prohibited because what it means to 9 “endanger” a person, particularly an adult, is unclear. He argues that the condition is 10 not defined with sufficient definiteness to inform citizens of the prohibited conduct 11 and to prevent law enforcement from arbitrary and discrimi natory enforcement. The 12 State again responds that Defendant failed to raise any of these arguments at the 13 revocation hearing. The State points out that defense counsel’s argument below was 14 that there was no evidence De fendant knew Ms. Houk was intoxicated, not that he did 15 not know that letting her drive his truc k while intoxicated would endanger her. 16 b. Sufficiency of the Evidence Argument 17 {13} Defendant also argues that the State nonetheless failed to present sufficient 18 evidence to establish with reasonable certainty that De fendant violated condition one 197 by endangering Ms. Houk. He asserts that there was no evidence to suggest that he 1 acted with “willful disregard” of Ms. Houk’s safety or that he placedher in a situation 2 which resulted in a “reasonable probability or possibility that she would be 3 endangered.” He points out that Ms. Houk, an adult, chose to drink and drive and 4 contends he was merely a passenger and did not cause th e accident. Thus, Defendant 5 asserts, he committed no act or omission that could form the basis of revoking his 6 probation for violating condition one. The State responds that proof of a probation 7 violation does not equate to proof required to prove the commission of a criminal 8 offense and that proving Defendant knowingl y allowed Ms. Houk to drive his vehicle, 9 knowing she had been drinking alcohol, was sufficient to prove a probation violation 10 in this case. 11 {14} All of these issues are challenging and raise several questions regarding the 12 court’s determination that Defendant violated condition one by endangering Ms. 13 Houk. However, we need not resolve them here because we affirm the district court’s 14 order based on the sufficiency of the evid ence that condition two was violated with 15 reasonable certainty. See State v. Leon , 2013-NMCA-011, ¶ 37, 292 P.3d 493 (“[I]f 16 there is sufficient evidence to support just one violation, we will find the district 17 court’s order was proper.”), cert. quashed , 2013-NMCERT-010, 313 P.3d 251. 18 2. Consuming Alcohol 198 {15} Defendant also challenges the credib ility of the State’s evidence that he 1 consumed alcohol in violation of his probation. He asserts that Ms. Houk was 2 intoxicated when she allegedly saw Defend ant consume alcohol and had suffered head 3 trauma that affected her memory and that Officer Duran did not have a recording of 4 Defendant’s alleged admissi on to consuming alcohol. 5 {16} The State responds that the testimony of Ms. Houk and Officer Duran is 6 sufficient to support the district court fi nding that Defendant consumed alcohol. We 7 agree. See State v. Salas , 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 8 (recognizing that it is for the fact finder (in this case, the judge) to resolve any conflict 9 in the testimony of the witnesses and to determine where the weight and credibility 10 lay). Ms. Houk testified she saw Defendant drink alcohol and Officer Duran testified 11 that Defendant admitted to drinking alcohol . Defendant presented his case at the 12 hearing, attacking Ms. Houk’s memoryand Officer Duran’s credibility. By 13 concluding that Defendant consumed alcohol , the district court necessarily found the 14 testimony regarding his consumpti on of alcohol to be credibleand we refuse to disturb 15 that finding. 16 CONCLUSION 17 {17} The order of the district court revoki ng Defendant’s probation is affirmed. 18 {18} IT IS SO ORDERED

. 199 _____________________________ 1 MICHAEL E. VIGIL, Judge 2 WE CONCUR: 3

___________________________________ 4 TIMOTHY L. GARCIA, Judge 5

_________________________________ 6 M. MONICA ZAMORA, Judge 7