STATE OF NORTH CAROLINA
v. Forsyth Count
y
Nos. 99CRS3304<
br>
MARGARET BETH BARRON 99CRS42396
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Angel E. Gray, for the State.
Robert W. Ewing for defendant-appellant.
HUNTER, Judge.
On or about 5 January 2000, defendant was sentenced as an
habitual felon on an underlying charge of obtaining a controlled
substance by fraud. In light of defendant's mental condition and
drug addiction, the trial court suspended defendant's sentence of
100-129 months' imprisonment and placed her on supervised probation
for sixty months. The court also ordered that defendant serve a
split active sentence of twenty-six months and enroll in Mary
Francis Treatment Center while in custody. On 9 March 2000, the
trial court entered an amended judgment in which the split sentence
and enrollment in the treatment center were deleted. The amended
judgment required that defendant be on supervised probation forsixty months, with regular conditions of probation as detailed in
N.C. Gen. Stat. § 15A-1343(b) and the following special conditions
of probation: (1) submit to warrantless searches by her probation
officer; (2) not use, possess, or control any illegal drug or
substance; (3) submit to urine or breath analysis, and (4) enroll
in a residential drug treatment program for twelve to twenty-four
months. The first six months of defendant's probationary period
were to be under the Intensive Probation Supervision Program.
After completing the first six months of intensive probation,
defendant was assigned a new probation officer, K. W. Broome, to
complete the remaining portion of her probationary sentence. On 22
May 2001, Broome filed a violation report stating that defendant
had violated Regular Condition of Probation #6 by failing to attend
a scheduled appointment on 22 May 2001. The report also noted that
defendant had threatened to kill her mother, was “a threat to
herself and others,” and failed to “follow up with medical
appointments with [a particular physician].”
This matter was heard in the superior court on or about 9 July
2001. The State's evidence tends to show the following: After
being assigned defendant's case, Broome met with her on 17 May 2001
and explained the terms of her probation. At that time, Broome
informed defendant that her first office visit was scheduled for
9:00 a.m. on 22 May 2001. When Broome arrived at his office on 22
May 2001, he found a message from defendant indicating that she
could not attend the 9:00 a.m. appointment because of a doctor's
appointment which had also been scheduled for that same morning. Shortly thereafter, Broome also received a telephone call from
Penny Powers, an employee at Step One Advising (a drug treatment
program), who informed Broome that defendant had also called to
cancel an appointment for that morning due to sickness. Powers
told Broome that she suspected that defendant was “back into her
old habits of using prescription drugs.”
Troubled by Powers' telephone call, Broome telephoned
defendant and spoke with her for approximately five to seven
minutes. During the conversation, Broome noticed that defendant
was incoherent and mumbling on the telephone, and told her that he
would be traveling to her residence later that day. When Broome,
accompanied by another probation officer who was familiar with
defendant, arrived at defendant's residence, he was met at the door
by defendant's parents. Defendant's parents informed Broome that
defendant had threatened to take the car “and go over to 14th
Street . . . and buy drugs,” and had threatened to kill them both.
The parents stated that they were frightened of their daughter, and
“scared to leave her [at the house] or sleep at night.” The two
probation officers then went upstairs to find defendant's bedroom
door locked. Defendant initially refused to open the door, but
after about ten minutes, the two persuaded defendant to open the
door. Upon being questioned about her doctor's appointment,
defendant gave nonsensical answers, and replied that she was “too
sick to go to the doctor.” Although defendant stated that she had
bronchitis and was “running a hundred and two [degree]
temperature,” Broome noted that he did not notice anything unusualabout her physical appearance. Broome formed an opinion that
defendant was under the influence of a prescription drug. He
therefore requested a urine sample for a drug test. After giving
Broome a urine sample and getting dressed, defendant accompanied
Broome to his office.
While en route to his office, Broome informed defendant that
he was placing her under arrest “for her mother's safety . . . as
well as her own.” After arriving at the office, defendant was not
cooperative. In fact, Broome testified that defendant was “rolling
up and down the hallway threatening, cursing.” Defendant also
attempted to stab herself in the neck with a letter opener. On
cross-examination, Broome noted that after completing the violation
report, he learned from defendant's physician that defendant had
indeed been diagnosed with bronchitis on or about 15 May 2001.
Notably, defendant had cancelled her 22 May 2001 follow-up
appointment with her medical doctor. Defendant did not present any
evidence.
After hearing the evidence and arguments of counsel, the trial
court found and concluded that defendant willfully violated the
terms of her probation. The Court revoked defendant's probation
and activated defendant's suspended sentence. Defendant appeals.
We affirm.
The first issue presented by defendant on appeal is whether
the trial court erred in finding and concluding that she willfully
violated the terms of her probation and in revoking her probation.
It is well settled that “'probation or suspension of sentence is anact of grace' and not a right.” State v. Alston, 139 N.C. App.
787, 794, 534 S.E.2d 666, 670 (2000) (quoting State v. Baines, 40
N.C. App. 545, 550, 253 S.E.2d 300, 303 (1979)). To that end, the
State need only present evidence “as to reasonably satisfy the
judge in the exercise of his sound discretion that the defendant
has willfully violated a valid condition of probation or that the
defendant has violated without lawful excuse a valid condition upon
which the sentence was suspended.” State v. Hewett, 270 N.C. 348,
353, 154 S.E.2d 476, 480 (1967). Moreover, “[a]ny violation of a
valid condition of probation is sufficient to revoke [a]
defendant's probation.” State v. Tozzi, 84 N.C. App. 517, 521, 353
S.E.2d 250, 253 (1987).
In the case sub judice, the State presented the testimony of
defendant's probation officer, Broome, which tends to show that
defendant failed to attend a scheduled meeting with Broome on 22
May 2001. Broome testified that he became suspicious of
defendant's excuse for missing her appointment after talking with
defendant's counselor at Step One Advising, and then defendant over
the telephone. Broome stated that he subsequently traveled to
defendant's residence, where he spoke with defendant's parents, who
expressed their fear of defendant and detailed her threats to
physically harm them. Broome also stated that he talked to
defendant and formed the opinion that she was under the influence
of a prescription drug. After he had obtained a urine sample from
defendant for drug testing, Broome instructed defendant to get
dressed and accompany him to his office. Broome testified thatonce at his office, defendant again began to speak incoherently --
ranting and raving about her educational background and the fact
that she was a good person -- and later “rolling up and down the
hallway” in Broome's office, cursing, and attempting to stab
herself in her neck. Subsequently, Broome discovered that
defendant did have an appointment with a physician on 22 May 2001.
However, she had called to cancel that appointment. Broome noted
that a drug test analysis, performed after the probation violation
reports were completed, indicated that defendant had been under the
influence of prescription medication on 22 May 2001.
On these facts, we conclude that the trial court had before it
that quantum of evidence to support a finding that defendant,
willfully and without lawful excuse, failed to attend a scheduled
appointment with her probation officer. While defendant argues
that her failure to attend the appointment was not willful nor
without lawful excuse, we disagree. It is well established that in
matters such as these, the credibility of the witnesses and the
evaluation and weight of their testimony is for the judge. State
v. Booker, 309 N.C. 446, 450, 306 S.E.2d 771, 774 (1983). This one
violation of probation alone is sufficient to support the
revocation of defendant's probation and activation of her suspended
sentence. See Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. We
therefore need not further consider the propriety of the trial
court's decision based upon the other ground utilized by the trial
court in revoking defendant's probation. In sum, we hold that the trial court did not err in concluding
that defendant willfully violated the terms of her probation and
in revoking her probation. Accordingly, the judgment of the trial
court is affirmed.
Affirmed.
Judges MARTIN and BRYANT concur.
Report per Rule 30(e).
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