An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1556    


Filed: 15 July 2003


         v.                        Union County
                                No. 01 CRS 14073

    Appeal by defendant from judgment entered 14 June 2002 by Judge Susan C. Taylor in Union County Superior Court. Heard in the Court of Appeals 7 July 2003.

    Roy Cooper, Attorney General, by Margaret A. Force, Assistant Attorney General, for the State.

    Isabel Scott Day, Public Defender, Dean Paul Loven, by Assistant Public Defender, for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Wayne Thurmond Strickland, appeals a judgment revoking his probation and activating a ten-year sentence. For the reasons discussed herein, we affirm the trial court's determination.
    On 31 October 1991, defendant pled guilty to a charge of indecent liberties (Yadkin County file number 91 CRS 810). The trial court sentenced him to a term of ten years' imprisonment, then suspended the sentence and placed him on five years' probation to begin at the expiration of an active sentence imposed in Yadkin County file number 91 CRS 809. After his release in April of 1999, defendant was placed on probation in Yadkin County. He was nexttransferred to Wilkes County, then to Anson County, and finally to Union County for supervision. Following charges of probation violation, Judge Michael E. Helms, on 7 June 2000, modified the conditions of probation and placed defendant on intensive probation for six months.
    Upon a motion to modify the conditions of probation, Judge William H. Helms modified the conditions of probation on 26 October 2000. A violation report was subsequently filed on 31 October 2001, and Judge Christopher M. Collier transferred defendant to intensive probation on 4 February 2002. Judge Collier directed that defendant was “to continue with sex offender treatment at Blue Ridge treatment center and before he can be transferred to regular probation, Defendant must be in compliance and monies for sessions paid in full.”
    On 20 February 2002, another violation report was filed. It alleged that defendant had violated three conditions of probation: (1) defendant failed to report to his intensive probation officer on 11 February 2002 as instructed; (2) defendant was terminated from his sex offender treatment for noncompliance; and (3) defendant left his residence and failed to make his whereabouts known to his probation officer. Defendant admitted to being in violation, but denied the willfulness.
    Frank Bivens, an intensive probation/parole officer, testified at the probation hearing that defendant was transferred to him on 7 February 2002. He saw defendant that evening at the homeless shelter. Mr. Bivens told defendant that he wanted to see him thenext morning in his office, which was two blocks away from the homeless shelter. He did not hear from defendant again until after defendant was arrested in April 2002 for probation violations. When Mr. Bivens asked why defendant had failed to report, defendant said “he didn't know, no excuse.” Defendant admitted in open court that he knew Mr. Bivens's telephone number but failed to call him.
    Mr. Bivens received a letter in April 2002 from defendant's primary therapist in the Sex Offender Recovery Program which stated that defendant had been terminated from the program. Although defendant had previously been terminated by the program in January 2002, he had been permitted to return pending the outcome of his revocation hearing. Despite being ordered to return to treatment on 4 February 2002, defendant had not returned as of his subsequent termination in April 2002. The therapist stated in her letter that defendant had missed twelve out of fifty scheduled sessions, and she indicated that “[w]hen present his participation was less than minimal.” Defendant “refused to participate except when required to participate in rounds.” He also owed a balance of $885.00 to the program.
    Mr. Bivens spoke with defendant on his last evening at the homeless shelter after he had been asked to leave for unacceptable behavior. Defendant admitted that he never called Mr. Bivens because defendant “didn't know where [he] was going to be” or where he was going to be staying. Defendant had no contact with Mr. Bivens from 7 February 2002 until his arrest in April 2002.
    At the conclusion of the hearing, Judge Susan C. Taylor foundthat defendant had violated each of the conditions willfully and without valid excuse. The trial court further found that each violation, in and of itself, was a sufficient basis for the revocation of defendant's probation. Judge Taylor revoked defendant's probation and activated his suspended sentence of ten years. From this judgment, defendant appeals.
    In his sole assignment of error, defendant argues that the trial court erred by activating his sentence upon finding that he willfully and without lawful excuse violated the terms of his probation. We disagree.
    “All that is required to revoke probation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). The breach of any one condition is sufficient grounds to revoke probation. State v. Seay, 59 N.C. App. 667, 298 S.E.2d 53 (1982), appeal dismissed and disc. rev. denied, 307 N.C. 701, 301 S.E.2d 394 (1983). “[T]he burden is on the defendant to present competent evidence of his inability to comply; and that otherwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was willful or without lawful excuse.” State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). “In determining whether the evidence warrants the revocation of probation or a suspended sentence, the credibility of the witnesses and the evaluation and weight of their testimony are for the judge.” State v. Green, 29 N.C. App. 574, 579, 225 S.E.2d170, 174, cert. denied, 290 N.C. 665, 228 S.E.2d 455 (1976).
    In the instant case, defendant admitted violating the conditions of probation. Competent evidence in the form of the testimony of Mr. Bivens and defendant, along with the therapist's letter, clearly supports the trial court's findings that defendant's admitted violations were willful. Defendant failed to walk two blocks from the homeless shelter to report to Mr. Bivens as instructed. Although he had Mr. Bivens's telephone number, he failed to make his whereabouts known by contacting Mr. Bivens at any point in time after leaving the homeless shelter. Defendant missed approximately one-fourth of his scheduled sessions of sex offender treatment and failed to return for treatment after being ordered to return on 4 February 2002. The trial court did not err by finding that defendant had willfully violated three valid conditions of probation upon which his sentence was suspended. We find no abuse of discretion by the trial court in revoking defendant's probation and activating his suspended sentence. This assignment of error is without merit.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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