Opinion
A-1-CA-40723
06-15-2023
STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRIAN SIZEMORE a/k/a BRIAN EUGENE SIZEMORE, Defendant-Appellant.
Benjamin Cross, District Court Judge Raul Torrez, Attorney General Santa Fe, NM for Appellee Bennett J. Baur, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant
Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.
APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY 8 Benjamin Cross, District Court Judge
Benjamin Cross, District Court Judge Raul Torrez, Attorney General Santa Fe, NM for Appellee
Bennett J. Baur, Chief Public Defender Nina Lalevic, Assistant Appellate Defender Santa Fe, NM for Appellant
MEMORANDUM OPINION
MEGAN P. DUFFY, JUDGE
{¶1} Defendant appeals the district court's order revoking his probation. In this Court's notice of proposed disposition, we proposed to summarily affirm. Defendant filed a memorandum in opposition, which we have duly considered. Remaining unpersuaded, we affirm.
{¶2} In his memorandum in opposition, Defendant maintains that there is insufficient evidence to revoke his probation. [MIO 4] Defendant continues to argue that the evidence was insufficient to support his revocation because it was possible that he showed up to the probation office as ordered without signing the sign-in sheet and that he may have been seen by other officers. [MIO 5] However, as we explained in our notice of proposed disposition, the State offered testimony from Defendant's probation officer that Defendant did not show up as ordered. [CN 3] Defendant had an opportunity to cross-examine the probation officer on any perceived weaknesses or inconsistencies in the testimony, and we reiterate that this Court does not reweigh the evidence on appeal See State v. Griffin, 1993-NMSC-071, ¶ 17, 116 N.M. 689, 866 P.2d 1156 (noting that this Court does not reweigh the evidence, and we may not substitute our judgment for that of the fact-finder, as long as there is sufficient evidence to support the verdict); see also State v. Salas, 1999-NMCA-099, ¶ 13, 127 N.M. 686, 986 P.2d 482 (explaining that it is for the jury to resolve any conflicts and determine weight and credibility in the testimony). Consequently, we conclude that the revocation of Defendant's probation was supported by sufficient evidence.
{¶3} Defendant also maintains that it was error for the district court to allow Defendant's probation officer to testify to knowledge or statements of other compliance officers [MIO 6] and that Defendant's revocation was the result of cumulative error [MIO 8]. Defendant has failed, however, to assert any new facts, law, or argument that persuade this Court that our notice of proposed disposition was erroneous. See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 ("Our courts have repeatedly held that, in summary calendar cases, the burden is on the party opposing the proposed disposition to clearly point out errors in fact or law."); State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating that "[a] party responding to a summary calendar notice must come forward and specifically point out errors of law and fact," and the repetition of earlier arguments does not fulfill this requirement), superseded by statute on other grounds as stated in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. We therefore refer Defendant to our analysis therein.
{¶4} Accordingly, for the reasons stated in our notice of proposed disposition and herein, we affirm the revocation of Defendant's probation.
{¶5} IT IS SO ORDERED.
WE CONCUR: JENNIFER L. ATTREP, Chief Judge, JACQUELINE R. MEDINA, Judge