STATE OF NORTH CAROLINA
v. Alamance County
No. 00 CRS 59333
SABRINA M. SUMMERS
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.
AFFIRMED.
Judges WYNN and TYSON concur.
Report per Rule 30(e).
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