An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1666


Filed: 15 July 2003


         v.                        Alamance County
                                No. 00 CRS 59333

    Appeal by defendant from judgment entered 29 August 2002 by Judge James C. Spencer in Alamance County Superior Court. Heard in the Court of Appeals 7 July 2003.

    Roy Cooper, Attorney General by Sonya M. Allen, Assistant Attorney General, for the State.

    Robert W. Ewing for defendant-appellant.

    STEELMAN, Judge.

    Defendant appeals from an order revoking her probation and activating a sentence of eight to ten months for three convictions of obtaining property by false pretenses, two convictions of forgery, two convictions of uttering, and one conviction of resisting a public officer. For the reasons discussed herein, we affirm the trial court's determination.
    The violation report charged that defendant violated the terms of probation requiring her: (1) to complete community service; (2) to report as directed to her probation officer; (3) to be at her residence after curfew; and (4) to pay the monetary condition. At a hearing, defendant admitted that she committed the violations. She asserted that she did not willfully or without lawful excusecommit them.
    Steve Kearns, the intensive probation parole officer assigned to defendant, testified that defendant failed to appear each of the three times he scheduled an appointment for her to make community service arrangements. After each missed appointment, he counseled defendant on the importance of meeting the community service requirements. Notwithstanding, she missed each appointment and she never called to advise that she could not keep the appointments. Similarly, defendant failed to keep five scheduled appointments with Mr. Kearns and failed to notify him of her inability to attend. Defendant offered no excuse for missing two visits. She failed to keep one appointment on 4 July 2001 because “it was too hot and she couldn't get a ride to the office on that occasion.” Defendant was not home at curfew checks seven times. One time, she explained, she was at a neighbor's house because her air conditioner was not working. She did not notify Mr. Kearns in advance of her decision to stay with the neighbor. Another time, she left a note on the door stating she was at a neighbor's house, but when the surveillance officer checked, defendant was not there. Defendant was not home when Mr. Kearns went to her residence on the evening of 25 August 2001. Defendant offered no reason for not being home that evening. Defendant also was not home for three consecutive evenings on 8, 9 and 10 October 2001. Defendant stated she was in the hospital on those dates but hospital records failed to verify her assertion. Finally, defendant had not paid anything toward satisfying the monetary condition of probation.     Defendant testified that she has multiple health problems, including cervical cancer and Crohn's disease, which have caused her to violate the conditions of probation. She wears a colostomy bag, which has to be changed every four months at a hospital. She is taking six prescription medications. Some of the times when she was not at home, she was ill and receiving care at her mother's home. Because of her health problems, she is unable to work. Defendant testified that she sent money through a relative to pay the monetary condition of probation.
    After hearing the above testimony, the court found that defendant willfully and without valid excuse committed all of the violations. The court concluded that each violation was in and of itself a sufficient basis upon which to revoke defendant's probation. Defendant appeals.
    In her sole assignment of error, defendant argues that the trial court abused its discretion by revoking her probation because the evidence proved that her failure to follow the terms of probation was not a willful violation.     We disagree.
    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). 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). 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 abuse of discretion. State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).
    In the instant case, a consistent thread in the testimony of Mr. Kearns is that he would have excused violations, or not included them in the report, if defendant had simply called him. He instructed her on several occasions to call him if she could not keep an appointment. Defendant does not dispute that she did not call Mr. Kearns. The testimony of Mr. Kearns also indicates that defendant failed to abide by curfew rules and failed to keep appointments for reasons other than health, such as because the weather was “too hot” or because she was unable to obtain transportation. We find no abuse of discretion.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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