An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1277


Filed: 20 May 2003


         v.                        Gaston County
                                No. 00 CRS 8588

    Appeal by defendant from judgment entered 7 May 2002 by Judge James W. Morgan in Gaston County Superior Court. Heard in the Court of Appeals 19 May 2003.

    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.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

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