STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 99 CRS 050919
DARRELL EUGENE DIGSBY
Attorney General Roy Cooper, by Assistant Attorney General
Donald R. Teeter, for the State.
Nancy R. Gaines for defendant-appellant.
WYNN, Judge.
Following the revocation of defendant's probation on the basis
that “he violated special condition number one in that he tested
positive for marijuana on February 22nd, 2001[,]” and “was away
from his place of residence on twelve different occasions,”
defendant presents one issue on appeal-_whether the trial court
erred by allowing his probation officer to testify based on a
letter written by a person not present in court, Cathy Corey. We
uphold the trial court's revocation of his probation and activation
of defendant's suspended sentence of 16-19 months imprisonment.
On appeal, defendant challenges testimony by his probation
officer, David Windham, that according to a letter from CathyCorey, a Court liaison with TASC, a licensed drug-treatment agency,
defendant was terminated from his required drug-treatment program
because he tested positive for drugs. Nonetheless, although the
trial court initially allowed this testimony and the admission of
the letter into evidence, the trial judge subsequently stated after
defense counsel's closing arguments that he was not going to
consider Cathy Corey's letter or its contents. Instead, the trial
court stated that,
The Court finds that the defendant
through his attorney in open court has
admitted that he violated special condition
number one in that he tested positive for
marijuana on February 22nd, 2001.
The Court finds this violation was
willful and without lawful excuse.
The defendant through counsel has further
admitted in open court that he was away from
his place of residence on twelve different
occasions and that the violation was willful
and without lawful excuse.
Those twelve occasions have already been
stated into the record in open court by the
defendant's attorney.
The Court makes no findings with respect
to violation numbers three, four, and five.
The requirement that the State present evidence to show
defendant's willful violation of probation, may be waived upon a
defendant's “in-court admission of the willful or without lawful
excuse violation as contained in the written notice (or report) of
violation[.]” State v. Williamson, 61 N.C. App. 531, 534, 301
S.E.2d 423, 425 (1983). Further, “[a]ny violation of a valid
condition of probation is sufficient to revoke [a] defendant'sprobation.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250,
253 (1987).
The evidence tends to show that defendant did indeed admit to
violating certain terms of probation, as found by the trial court.
Significantly, defendant did not contest the willfulness of these
violations. Such an unqualified admission was sufficient to
support the trial court's revocation of defendant's probation. See
State v. Sawyer, 10 N.C. App. 723, 724, 179 S.E.2d 898, 900 (1971)
(affirming the revocation of the defendant's probation, despite
several alleged errors in his revocation hearing, where the
defendant admitted that he had violated two conditions of his
probation). Accordingly, even assuming arguendo that the trial
court considered the letter of Cathy Corey to any extent, defendant
cannot show prejudicial error. See State v. Braswell, 283 N.C.
332, 337, 196 S.E.2d 185, 189 (1973) (holding that the admission of
the probation officer's testimony, as to the defendant's statement
to the judge concerning his use of drugs in violation of a
condition of probation was harmless error even if erroneous, where
the defendant was found to have violated two other conditions of
probation as well as the condition relating to drugs).
Having so concluded, the judgment revoking defendant's
probation and activating his suspended sentence is,
Affirmed.
Judges MCGEE and CAMPBELL concur.
Report per Rule 30(e).
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