STATE OF NORTH CAROLINA
v. Gaston County
No. 00 CRS 8588
JOSE ANTONIO RAMOS
Attorney General Roy Cooper, by Assistant Attorney General
Floyd M. Lewis, for the State.
Leslie G. Fritscher, for defendant-appellant.
CALABRIA, Judge.
Jose Antonio Ramos (“defendant”) appeals from a judgment
revoking probation and activating a sentence of a minimum term of
24 months and a maximum term of 29 months imposed on a conviction
of taking indecent liberties with a minor. The original judgment
imposed 6 April 2000 placed defendant on probation for a period of
three years. As conditions of special probation, defendant was
ordered to serve an active term of six months in the Gaston County
Jail. He was also assigned to the intensive supervision program
for a period of six months. The court modified the terms of
probation on 4 October 2001 to permit defendant to resume residence
with his wife and children in Mecklenburg County.
The violation report executed 14 March 2002 charged defendantwith the following nine violations of conditions of probation or
special probation: (1) defendant failed to report as directed to
his probation officer for office visits on 22 January 2002 and 29
January 2002; (2) defendant failed to pay any of the court costs as
ordered in the probationary judgment; (3) defendant failed to pay
the monthly supervision fee; (4) defendant failed to obtain prior
approval from his probation officer before changing residences on
at least four occasions; (5) defendant communicated with, or
contacted, the victim; (6) defendant refused to reveal his cell
phone number to the probation officer in violation of the condition
that defendant answer all reasonable inquiries of the probation
officer; (7) defendant failed to maintain full-time employment; (8)
defendant violated curfew by failing to notify his probation
officers of changes in address so defendant was not at the place he
was expected to be when surveillance officers checked; and (9)
defendant left the county without prior approval of his probation
officer. Defendant denied all of the allegations except paragraphs
(2) and (3).
Nancy Mauney, defendant's intensive probation officer,
testified defendant came under her supervision on 16 January 2002
after he had absconded and been extradited back to North Carolina
from New York. Upon his assignment to her supervision, defendant
was given a letter notifying him to report for an office visit on
22 January 2002. Defendant failed to appear for that visit.
Defendant subsequently called Ms. Mauney to report he was in
another county, Cleveland County. Ms. Mauney personally tolddefendant to report to her office for a visit on 29 January 2002.
Defendant failed to appear for that visit. As of 23 April 2002,
defendant had not paid any amount toward the monetary conditions of
probation. On at least four separate occasions defendant failed to
obtain prior approval from Ms. Mauney before he changed residences.
Defendant refused to disclose his cell phone number to an intensive
case officer who was providing courtesy supervision of defendant
while defendant was present in Cleveland County. Defendant failed
to verify any employment. Because of defendant's frequent changes
of address without prior notification, surveillance officers
conducting curfew checks would not find defendant at the last known
address. Defendant also left Gaston County and traveled, without
permission, to Mecklenburg County on 20 January 2002 and to
Cleveland County on 22 January 2002.
Defendant testified he did call Ms. Mauney prior to making
changes in residence and that he did visit the probation office but
she was not there. He also stated he called his probation officer
twice daily, left voice mail messages, and even gave the probation
officer his cell phone number. He further testified he found
gainful employment, but his probation officer in Cleveland County
would not allow him to accept because of his status as a sexual
offender. He subsequently obtained employment after the filing of
the violation report and about two weeks before the hearing.
After hearing arguments of the prosecutor and of defendant's
counsel, the court announced in open court: “Based upon the
evidence that has been presented and the partial admission by thedefendant, the Court finds that the defendant willfully violated
conditions one, two, three, four, eight and nine. It is ordered
that his probation is revoked and the sentence is activated.”
Defendant contends the court abused its discretion by
concluding defendant violated conditions of probation without
considering defendant's evidence of lawful excuse. He also
contends the court abused its discretion by failing to consider
lesser alternatives such as continuation or modification of
probation.
“Probation is an act of grace by the State to one convicted of
a crime.” State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723,
725 (1980). A person on probation “carries the keys to his freedom
in his willingness to comply with the court's sentence.” State v.
Robinson, 248 N.C. 282, 285, 103 S.E.2d 376, 379 (1958).
To revoke probation
[a]ll 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).
Proof beyond a reasonable doubt is not necessary. State v. Tozzi,
84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). A finding of a
single violation is sufficient to revoke the defendant's probation.
Freeman, 47 N.C. App. at 176, 266 S.E.2d at 725. The judge's
finding of a willful violation, if supported by competent evidence,
will not be disturbed on appeal in the absence of a manifest abuseof discretion. State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148,
150 (1960).
The defendant has the burden of showing excuse or lack of
willfulness; otherwise, evidence of failure to comply is sufficient
to support a finding that the violation was willful or without
lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d
833, 835 (1985). Defense evidence or testimony which contradicts
or disputes prosecution evidence merely creates credibility issues
for the trial judge to resolve. State v. Darrow, 83 N.C. App. 647,
649, 351 S.E.2d 138, 140 (1986). As fact-finder, the trial judge
is not required to accept the defendant's testimony as true. State
v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974). When
the court prefaces its findings with words such as “[b]ased upon
the evidence presented,” the court sufficiently shows that it
considered all the evidence, including evidence presented by the
defendant. See State v. Williamson, 61 N.C. App. 531, 535, 301
S.E.2d 423, 426 (1983). The court is not required to make specific
findings of fact regarding each of the defendant's allegations.
Id.
We conclude the trial court's finding of willful violations is
supported by Ms. Mauney's testimony. To the extent defendant's
testimony conflicted with Ms. Mauney's testimony, a credibility
issue was raised for the trial judge to resolve. The trial judge
did show consideration of defendant's evidence by his prefacing
statement before announcing his findings and the judge did show
consideration of lesser alternatives by concluding in the judgment“that continuation, modification or special probation or criminal
contempt is not appropriate . . . .”
We hold the court did not abuse its discretion in revoking
probation and activating the sentence. The judgment is affirmed.
Affirmed.
Judges MARTIN and McCULLOUGH concur.
Report per Rule 30(e).
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