Appeal by defendant from judgment entered 31 August 2000 by
Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard
in the Court of Appeals 5 November 2001.
Attorney General Roy A. Cooper, by Assistant Attorney General
Diane W. Stevens, for the State.
Stowers & James, by Paul M. James, III, for defendant.
BIGGS, Judge.
Defendant appeals from an order revoking his probation. We
affirm the trial court.
The relevant facts are as follows: On 18 May 2000, a
probation violation report was filed alleging that defendant
violated certain terms and conditions of his probation.
Specifically, the report alleged that defendant violated “Regular
Condition of Probation No. 5 that he remain within the jurisdiction
of the [c]ourt unless granted permission to leave by the [c]ourt or
his probation officer, in that on or about 27 April 2000, he left
his place of residence . . . [and] failed to make his whereabouts
known to his probation officer.” Further, it alleged thatdefendant violated “regular condition of intensive probation 3F
that he not be away from his residence between the hours of 6:00
p.m. and 6:00 a.m. Violation occurred on the following dates and
times, 4/13/00 - 1740 hrs.[,] 4/14/00 - 2050 hrs., 4/17/00 - 2023
[hrs].” A hearing on the matter was conducted on 31 August 2000.
Based on the evidence presented, the trial court determined
that defendant had willfully violated the terms and conditions of
his probation and revoked the probation. Defendant's sentence of
15-18 months for his guilty pleas on 9 March 2000, to the charges
of sale of cocaine and possession with intent to sale or distribute
cocaine, was thereafter activated.
Defendant gave notice of appeal on 6 September 2000.
Defendant contends that the trial court erred in ordering his
probation revoked as there was insufficient evidence of a willful
violation of the terms of his probation as shown by the State. We
disagree and affirm the trial court.
A proceeding “'to revoke probation [is] often regarded as
informal or summary,'”
State v. Tennant, 141 N.C. App. 524, 540
S.E.2d 807, __ (2000) (quoting
State v. Duncan, 270 N.C. 241, 246,
154 S.E.2d 53, 57 (1967)), “and the court is not bound by strict
rules of evidence,”
Duncan 270 N.C. at 245, 154 S.E.2d at 57. An
alleged violation by a defendant of a condition upon which his
sentence is suspended “need not be proven beyond a reasonable
doubt[;] . . . 'all that is required . . . is that the evidence be
such as to reasonably satisfy the judge in the exercise of hissound discretion that the defendant has violated a valid condition
upon which the sentence was suspended.'”
State v. Hill, 132 N.C.
App. 209, 510 S.E.2d 413 (1999) (quoting
State v. Robinson, 248
N.C. 282, 285-86, 103 S.E.2d 376, 379 (1958));
see also, State v.
White, 129 N.C. App. 52, 496 S.E.2d. 842 (1998). “”The findings of
the judge, if supported by competent evidence, and his judgment
based thereon are not reviewable on appeal, unless there is a
manifest abuse of discretion.””
Tennant, 141 N.C. App. at 526,
540 S.E.2d at 808, (quoting
State v. Guffey, 253 N.C. 43, 45, 116
S.E.2d 148, 150 (1960)) (citations omitted).
“'[O]ur Courts have continuously held that a suspended
sentence may not be activated for failure to comply with a term of
probation unless the defendant's failure to comply is willful or
without lawful excuse.'”
White, 129 N.C. App. at 57, 496 S.E.2d at
846 (quoting
State v. Sellars, 61 N.C. App. 558, 560, 301 S.E.2d
105, 106 (1983)),
aff'd in part, 350 N.C. 302, 512 S.E.2d 424
(1999). “”[T]he burden of proof is upon the State to show that the
defendant has violated one of the conditions of his probation.'”
Tennant, 141 N.C. App. at 527, 540 S.E.2d at 808 (quoting
State v.
Seagraves, 266 N.C. 112, 113, 145 S.E.2d 327, 329 (1965)).
In the case
sub judice, the State offered the testimony of
Officer Black to support the allegations in the violation report
that defendant had moved from his place of residence and failed to
make his whereabouts unknown to his probation officer and that he
had violated his curfew on three occasions. Officer Black
testified that on at least four separate occasions, the last ofwhich was 27 April 2000, he or his surveillance officer had visited
the 810 Willow Street residence during curfew hours but were unable
to locate defendant at that residence on any of those occasions.
He explained that on each of the visits to the residence, he or his
surveillance officer left notes at the door. Defendant did not
respond to those notes or otherwise make his whereabouts known to
the probation officer. Officer Black also testified that he went
to defendant's employment and was advised that defendant no longer
worked there.
Defendant presented the testimony of his girlfriend, Ms.
Elaine Gamble, who stated that on 27 April 2000, defendant was
living with her at 810 Willow Street. When questioned about
defendant's residency on the 13, 14 and 17 April 2000, Ms. Gamble
repeatedly answered that defendant was living with her. She
further testified that when defendant was not at work, “[h]e would
be home or he'll be asleep . . . in the back room.” Defendant
presented no evidence of a lawful excuse for his failure to contact
the probation office in response to the notes left by the officer
or to otherwise make his whereabouts known. In fact, Ms. Gamble,
testified that she told defendant that the probation office was
trying to reach him; yet, there was no effort on defendant's part
to contact Officer Black. Nevertheless, defendant contends that
since the probation officer could not testify that he had actual
knowledge that defendant had moved, the State had presented
insufficient evidence to convince a reasonable trier of fact that
defendant had violated the conditions of his probation. Wedisagree.
It is within the trial court's discretion to determine the
weight and credibility that should be given to all evidence
presented.
Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17 (1994).
“The trial court must itself determine what pertinent facts are
actually established by the evidence before it, and it is not for
an appellate court to determine
de novo the weight and credibility
to be given to evidence disclosed by the record on appeal.”
Coble
v. Coble, 300 N.C. 708, 712-13, 268 S.E.2d 185, 189 (1980)
(citations omitted).
We conclude that there is evidence in the record to support
the judge's findings that defendant “willfully and without lawful
excuse” violated the conditions of his probation by moving from his
residence without permission and failing to abide by his curfew on
at least two of the occasions outlined in the violation report.
Accordingly, we hold that the trial court did not abuse its
discretion and defendant's assignment of error is overruled.
Affirmed.
Chief Judge EAGLES and Judge MARTIN concur.
Report per Rule 30(e).
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