An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-802


Filed: 3 June 2003


         v.                        New Hanover County
                                No. 00 CRS 60576

    Appeal by defendant from judgment entered 27 February 2002 by Judge Ernest B. Fullwood in New Hanover County Superior Court. Heard in the Court of Appeals 12 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Anne G. Kirby, for the State.

    Lynne Rupp for defendant-appellant.


    Anwar Idrissa Hall (“defendant”) pled guilty to felony larceny in New Hanover County Superior Court on 1 August 2001. The trial court suspended defendant's active term of a minimum term of imprisonment of eleven months and a maximum of fourteen months' imprisonment, and placed defendant on supervised probation for thirty-six months. On or about 4 January 2002, defendant's probation officer filed a probation violation report alleging that defendant had violated the following terms and conditions of probation: (1) that defendant was $165.00 in arrears on his monetary obligation of $1,875.00; (2) that defendant failed to make his whereabouts known to his probation officer; and (3) thatdefendant failed to obtain a substance abuse assessment as ordered in the 1 August 2001 probationary judgment.
    A probation revocation hearing was held on 27 February 2002. Defendant waived his right to counsel and represented himself during the hearing. At the outset, defendant admitted to violating the terms and conditions of probation as alleged in the violation report. The State called as its witness Derrick DelCastihlo (“DelCastihlo”), defendant's probation officer. DelCastihlo testified that he discussed with defendant the need to obtain a substance abuse assessment under the terms and conditions of his probation as early as their first meeting in October 2001. When defendant failed to get an assessment, on 12 December 2001, DelCastihlo allowed defendant thirty days to obtain the assessment. DelCastihlo further testified that defendant made one payment in the amount of $55.00 on the monetary condition of his probation. Therefore, defendant was $165.00 in arrears on the $1,875.00 restitution he had been ordered to pay via monthly installments of $55.00 beginning on 1 August 2001. Further testimony from DelCastihlo revealed that he met with defendant on 12 December 2001 and informed him that there was an outstanding habitual felon warrant for his arrest. According to DelCastihlo, when he further informed defendant that police had been notified and were coming to serve the warrant, defendant fled. Defendant absconded supervision until he was arrested on the habitual felon warrant in January 2002.
    Defendant testified in his own behalf, stating that he fledfrom DelCastihlo's office on 12 December 2001 and thereafter absconded supervision because he “knew [he] had [a] habitual felon warrant and I was not going to sit there and just let them lock me up.” As for his failure to get a substance abuse assessment, defendant protested that he did not “see how that should have been forced on [him] . . . to get [him] violated that quick.” With respect to the arrearage on his monetary obligation, defendant explained that he “was [not] working or nothing at that time, because . . . [he] was waiting for [his] position to come back at [his] job, so [he] did [not] have . . . money at that time to pay.” Significantly, defendant admitted to having been able to make other payments while he was working. Defendant further testified that “the pressure that was on [him] made [him] leave [his] job and [his] place of residence[.]”
    After hearing the evidence and the arguments of the respective parties, the trial court found that defendant had willfully and without lawful excuse violated the terms and conditions of his probation, as detailed in the violation report. The trial court, therefore, revoked defendant's probation and activated defendant's suspended sentence. Defendant appeals.


    On appeal, defendant argues that the trial court abused its discretion in finding that he willfully violated the terms of his probation as alleged in the 4 January 2002 probation violation report. Specifically, defendant contends that the trial court's findings show that the court failed to consider the evidence hepresented. We disagree.
    It is well settled that “'probation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime.'” State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (quoting State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)). Our Supreme Court has determined that in a hearing regarding probation violations
        all that is required . . . is that the evidence be such 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). The defendant bears the burden of presenting competent evidence of his inability to comply with a probation condition, and if he fails to meet his burden, evidence of his failure to comply may justify a finding that the failure to comply was willful or without lawful excuse. State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). The trial judge, as the finder of fact, may reject any or all of defendant's evidence as untrue. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983).
    In the instant case, the State presented the testimony of defendant's probation officer, DelCastihlo, regarding defendant's failure to comply with certain terms and conditions of his probation. Moreover, at the beginning of the hearing, defendant admitted to having violated those terms and conditions of probation. Defendant, however, subsequently offered testimony inexcuse of those violations. Defendant testified that he absconded supervision because police officers were searching for him in order to serve him with an outstanding felony warrant. As to his failure to obtain a substance abuse assessment, defendant testified that he did not think it was appropriate to require him to seek an assessment shortly after being placed on probation. Defendant submitted that he should have had until February 2002, the end of his intensive probation, to obtain the substance abuse assessment. Moreover, defendant acknowledged being in arrears on his monetary obligation, despite having been employed and able to make payments for a portion of his probationary term. Defendant maintained that he was “forced” into violating the terms and conditions of his probation.
    Contrary to defendant's contentions, the record does indeed show that the trial court considered his evidence. See Williamson, 61 N.C. App. at 535, 301 S.E.2d at 426 (rejecting the defendant's argument where the judgment failed to contain detailed findings regarding the trial court's evaluation of his evidence). Here, as in Williamson, the record shows that the trial court heard and evaluated the probation officer's testimony as to defendant's failure to comply with the terms and conditions of his probation, as well as defendant's testimony regarding his inability to comply with those terms and conditions. The trial court then rejected, as it may, defendant's explanation for his failure to comply with the terms and conditions of his probation. See id. We conclude that there was competent evidence to support the trial court's findingthat defendant willfully and without lawful excuse, violated certain terms and conditions of his probation. Accordingly, the trial court properly revoked defendant's probation and activated his suspended sentence.
    Having so concluded, the judgment of the trial court is affirmed.
    Judges TYSON and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***