State v Fairley, (02-1001) 04/15/2003

Appeal by defendant from judgments entered 4 March 2002 by Judge Peter M. McHugh in Moore County Superior Court. Heard in the Court of Appeals 7 April 2003.

Attorney General Roy Cooper, by Associate Attorney General Wendy L. Greene, for the State.

Bryan Gates for defendant-appellant.

MARTIN, Judge.

    Defendant Ronald David Fairley pled guilty to failure to register as a sex offender in 98CRS10831 on 3 April 2000, and the trial court suspended his sentence and placed him on probation for 36 months. Thereafter, defendant also pled guilty to failure to register as a sex offender in 00CRS52071 on 8 January 2002, and again, the trial court suspended his sentence and placed him on probation for 36 months. In each case, defendant was to serve six months of his probationary period under intensive supervision, which required that defendant abide by a curfew established by his intensive probation officer. Defendant was later continued on supervised probation beyond the initial six-month period in98CRS10831 for non-related violations.
    On or about 29 January 2002, defendant's probation officer filed a probation violation report in 98CRS010831, in which the officer alleged that defendant violated the following special conditions of probation: (1) defendant was absent from his residence during curfew on or about 26 January 2002, and (2) defendant was in the company of Julita Hobson on 24 January 2002, in violation of the special condition of probation prohibiting defendant from knowingly associating with previously convicted users, possessors or sellers of controlled substances. Defendant's probation officer also filed two additional probation violation reports on 21 February 2002-- one violation report for 98CRS010831 and the other for 00CRS52071. These reports both alleged identical violations: (1) defendant failed to report to his probation officer on 22 and 29 January 2002 and 5 February 2002; and (2) defendant was not at his residence during curfew hours on 27 December 2001, 22, 27, 30, and 31 January 2002, and on 4 February 2002.
    At the hearing of these alleged probation violations, Intensive Surveillance Officers Connie Burns and Paul Stark, who had conducted defendant's curfew checks and office visits, testified for the State. Officer Burns testified that defendant failed to report to regularly scheduled appointments with her on 22 and 29 January 2002, and 5 February 2002. She stated that defendant provided no explanation for missing those appointments. Although she was unable to give specific dates or times that she observed defendant's curfew violations, Officer Burns also notedthat defendant had violated curfew on the dates listed in the violation reports. Officer Burns further testified to unsubstantiated reports that defendant had been seen in the company of known drug offender Julita Hobson. Officer Stark testified to specific dates and instances during which he visited defendant's residence for curfew checks. He noted that on the occasions that he conducted his curfew checks, he would first knock on the door of defendant's residence with his hand. If defendant did not immediately respond, Officer Stark stated that he would then use his flashlight to knock on the front door of the residence. If defendant still did not respond, Officer Stark would sometimes take the additional step of knocking on defendant's bedroom window. Officer Stark testified that generally, he would give defendant a reasonable chance to respond to his knocks. He stated that he would wait thirty seconds to one minute after knocking before concluding that defendant was not at home and had violated his curfew. Officers Stark and Burns both testified that when they discussed defendant's violation of curfew with him, he generally denied being absent during curfew and claimed that he never heard the surveillance officer's knock. Defendant did, however, admit to Officer Stark that he was absent during one of the curfew checks. Defendant told the probation officer that he had been at church on that one occasion.
    Defendant did not present any evidence. After hearing the State's evidence and the arguments of counsel, the trial court found that defendant had violated his probationary curfew as setforth in the 29 January 2002 and two 21 February 2002 violation reports. The court also found that defendant had violated that term of probation requiring that he report to his probation officers for regular weekly visits. The court dismissed the second allegation of the 29 January 2002 violation report, after finding that the State had failed to prove that defendant had been in the company of known drug offender Julita Hobson. Finding that defendant's violations were willful and without lawful excuse, the court revoked his probation and activated his suspended sentences. Defendant appeals.

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    On appeal, defendant argues only that there was not sufficient evidence that he willfully and without lawful excuse violated the terms of his probation as found by the trial court, so as to justify the revocation of his probation. Specifically, defendant contends, “The under-a-minute curfew checks combined with [defendant's] statements that he had been home asleep were insufficient evidence to support that the violations were willful.”     It is well settled that “'probation or suspension of sentence is an act 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)). Accordingly, the State need only present that amount of 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 withoutlawful 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). This Court has previously held, “Any 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 present case, the testimony of defendant's probation officers establish that defendant failed to answer his door in response to knocks by his probation officers on 27 December 2001, 22, 26, 27, 30 and 31 January 2002, and 4 February 2002, as alleged in the subject violation reports. Officer Stark testified to his method of conducting his curfew checks, and noted that defendant had always been at home when the officer visited him at his first residence, but failed to comply with curfew after moving to a second residence. Contrary to defendant's arguments on appeal, the trial court was vested with the authority as fact-finder and weigher of the evidence to accept such evidence as sufficient to satisfy the court that defendant had willfully, and without lawful excuse violated curfew as alleged in the violation report. See State v. Booker, 309 N.C. 446, 450, 306 S.E.2d 771, 774 (1983) (trial court determines credibility of the witnesses). Moreover, defendant admitted, in at least one instance, to having violated his curfew. This one violation of probation alone is sufficient to support the revocation of defendant's probation and activation of his suspended sentence. See Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. Finally, we note that defendant has failed to take issuewith the court's finding that he had also violated probation by failing to report for regularly scheduled appointments on three occasions as alleged in the subject probation violation reports-- a finding that would also support the revocation of his probation. See id.
    The judgment of the trial court revoking defendant's probation is affirmed.
    Affirmed.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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