State v Barnes, 156 NC App 697 (02-952) 03/18/2003

Appeal by defendant from judgment dated 15 April 2002 by Judge James F. Ammons, Jr. in Harnett County Superior Court. Heard in the Court of Appeals 4 March 2003.

Attorney General Roy Cooper, by Associate Attorney General Amy E. Pickle, for the State.

George E. Kelly, III for defendant appellant.

BRYANT, Judge.

    Jennifer Mae Barnes (defendant) appeals from a 15 April 2002 judgment revoking her probation and activating a suspended sentence on a charge of uttering. Defendant entered a plea of “No Contest” to one count of uttering on 10 October 2001. The trial court sentenced defendant to eight to ten months imprisonment, suspended the sentence, and placed defendant on thirty months supervised probation. In March of 2002, defendant's probation officer filed a verified probation violation report with the trial court alleging defendant violated her probation by willfully: (1) testing positive for cocaine in January and February 2002; (2) failing to contact the community service coordinator after being placed on probation;(3) missing a number of office visits in October and November of 2001 and January and February of 2002; (4) missing curfew on various occasions between October of 2001 and January of 2002; (5) failing to make required monetary payments; and (6) failing to pay the monthly probation supervision fee.
    At a 15 April 2002 hearing, the trial court began by summarizing the allegations in the probation violation report. Defendant acknowledged the positive drug test but denied any willful use of cocaine. Defendant's counsel stated defendant believed a person gave her a cigarette laced with cocaine without her knowledge. When the trial court asked defendant if she wanted to add anything to her counsel's statement, defendant responded, “No, sir.” Defendant also acknowledged her failure in contacting the community service coordinator but testified that her medical condition prohibited her from completing the community service requirement. Specifically, defendant testified that she had a brain tumor removed in December of 2001 and that she subsequently suffered from seizures. Defendant submitted several medical documents to the trial court tending to confirm she did in fact have surgery to remove a brain lining lesion. Defendant further admitted that she missed curfew and office visits. Defendant, however, testified that her medication made her sleepy and contributed to her missed office appointments and missed curfews. Defendant also stated that she had made payments toward her monetary obligations.
    Defendant's probation officer testified that he was aware ofdefendant's medical condition, but that he required some proof of the medical condition. He had requested that defendant supply him proof of her medical appointments, but she had not complied. In January or February of 2001, defendant did supply him with documents dealing with the medications she was taking. Defendant's probation officer further testified that based on the information he received about defendant's medications, he would have no problem asking for the community service requirement to be waived. Although he initially testified that defendant had not paid any money, he stated that he would check to see if defendant had made any payments in response to her assertions she had in fact made payments.
    The trial court then asked the probation officer his recommendation, and he responded, “[r]evocation.” Defendant did not cross-examine the probation officer and did not request that she be allowed to cross-examine the probation officer. Defendant asked the trial court to consider reinstating probation on whatever terms and conditions the trial court might consider. The trial court found “by the evidence presented, the [trial court] is reasonably satisfied in its discretion that [defendant] violated . . . conditions of . . . probation.” Specifically, the trial court found defendant willfully violated conditions of probation, as specified in the verified probation violation report: (1) against using, possessing, or controlling any illegal drugs or controlled substance by testing positive on two occasions for cocaine use; (2) requiring completion of community service in thatdefendant failed to contact the community service coordinator after being placed on probation; (3) requiring defendant report to her probation officer in that she failed to report for scheduled office visits; (4) requiring defendant not be away from her residence during specified hours in that she missed curfew on fourteen occasions; and (5) requiring defendant to pay a certain amount to the Clerk of Superior Court in that defendant was in arrears on her obligations to pay court costs, restitution, attorney's fees, and a community service fee. The trial court further found “each violation is, in and of itself, a sufficient basis upon which this [c]ourt should revoke probation and activate the suspended sentence.” The trial court concluded defendant had violated a valid condition of probation, and ordered probation revoked and her sentence activated.

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The issues are whether: (I) the trial court failed to hold a formal hearing in compliance with N.C. Gen. Stat. § 15A-1345; (II) there was sufficient evidence to support the trial court's findings defendant violated conditions of probation and those violations were each sufficient to revoke probation; and, (III) the trial court was required to continue and/or modify defendant's probation.

Defendant first contends the trial court erred in denying her a formal hearing in violation of N.C. Gen. Stat. § 15A-1345. Defendant argues that the trial court did not allow her to present evidence or cross-examine the probation officer. We disagree. A probation revocation hearing is not a criminal prosecution; therefore, the proceedings are informal in nature. See State v. Terry, 149 N.C. App. 434, 437, 562 S.E.2d 537, 540 (2002). Section 15A-1345 provides the requirements for a probation revocation hearing:
Before revoking or extending probation, the court must, unless the probationer waives the hearing, hold a hearing to determine whether to revoke or extend probation and must make findings to support the decision and a summary record of the proceedings. . . . At the hearing, evidence against the probationer must be disclosed to [her], and the probationer may appear and speak in [her] own behalf, may present relevant information, and may confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.

N.C.G.S. § 15A-1345(e) (2001).

In this case, the record shows the trial court properly conducted a hearing under section 15A-1345. At the beginning of the hearing, the trial court disclosed the probation violations to defendant. The trial court then allowed defendant to present evidence. Defendant's attorney admitted defendant had tested positive for cocaine and stated defendant did not willfully ingest the cocaine, but defendant declined the trial court's invitation to expand on her attorney's explanation. Defendant did however testify to her medical condition being a lawful excuse to missing curfew, missing appointments, and not completing community service. The evidence against defendant was disclosed through testimony by the probation officer and the verified probation violation report. Defendant did not ask to cross-examine her probation officer andmade no attempt to do so. Accordingly, this assignment of error is overruled. See State v. Duncan, 270 N.C. 241, 246-47, 154 S.E.2d 53, 58 (1967) (assignment of error was not supported where record did not show trial court refused to allow defendant to testify or call witnesses or cross-examine prosecution witnesses).

    Defendant next argues there was insufficient evidence to support the trial court's finding she violated conditions of her probation.
    The test to determine whether sufficient evidence has been produced by the State in a probation revocation hearing is whether there is evidence sufficient 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. Lucas, 58 N.C. App. 141, 145, 292 S.E.2d 747, 750 (1982) (quoting State v. Hewitt, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967)). A verified probation violation report is competent evidence sufficient to support revocation of probation. See Duncan, 270 N.C. at 246-47, 154 S.E.2d at 58; State v. Gamble, 50 N.C. App. 658, 661, 274 S.E.2d 874, 876 (1981). Once the State meets its burden, the burden then shifts to defendant to “present competent evidence of his inability to comply with the conditions of probation . . . [;] otherwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was wil[l]ful or without lawfulexcuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987).
    “The breach of any single valid condition upon which the sentence was suspended will support an order activating the sentence.” State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973). “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.” State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960). “[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.” State v. Sellars, 61 N.C. App. 558, 560, 301 S.E.2d 105, 106 (1983).
    Here, defendant admitted the allegations that she had tested positive for cocaine and had failed to contact her community service coordinator. Furthermore, defendant did not present any evidence of a lawful excuse for failing to meet her monetary obligations or for testing positive for cocaine, either of which would, contrary to defendant's contention, justify the trial court's revocation of her probation. We conclude that there is evidence in the record to support the trial court's findings defendant willfully and without lawful excuse violated the conditions of her probation by testing positive for cocaine andfailing to meet her monetary obligations.   (See footnote 1) Accordingly, we hold that the trial court did not abuse its discretion, and defendant's assignment of error is overruled.

III

    Defendant finally contends the trial court erred by not continuing and/or modifying her probation instead of revoking it based on the evidence of her medical condition.
    A trial court's decision to revoke probation will not be reversed absent a “manifest abuse of discretion.” State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000). As discussed above, defendant produced no evidence to show she did not willfully ingest cocaine and violation of this condition alone was a sufficient basis to revoke probation. Accordingly, the trial court did not abuse its discretion in revoking defendant's probation.
    Affirmed.
    Judges HUNTER and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1