An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1694


Filed: 20 April 2004


v .                         Buncombe County
                            No. 01 CRS 55480


    Appeal by defendant from judgment and commitment upon revocation of probation entered 24 October 2003 by Judge Robert D. Lewis in Buncombe County Superior Court. Heard in the Court of Appeals 14 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Brenda Eaddy for the State.

    Carol Ann Bauer for defendant-appellant.

    ELMORE, Judge.

    Gamaliel Pedroza (defendant) lived with his fiancee and once burned some of her belongings in the driveway of their trailer home. Defendant was charged with and pled guilty to burning personal property and felonious failure to appear on the aforementioned crime. He received a suspended sentence of six to eight months, and was placed on supervised probation for twenty- four months. As a special condition of his probation, defendant was required to “become and remain gainfully employed; abide by any special requests of probation officer as to curfew, geographic or associate restrictions” among other conditions.    During a hearing for his first probation violation his sentence was modified to include a forty-five day jail sentence with three months of intensive probation following his release from jail. Defendant violated his probation by having positive drug screens, not making court ordered payments, failing to report to his probation officer, missing curfews, and failing to provide documentation of gainful employment.
    During a hearing for his second probation violation defendant's probation was revoked and his suspended sentence activated. Defendant's probation officer alleged that defendant failed to abide by the officer's request that he change his residence. Defendant appeals from that judgment revoking his probation.

    A trial court's decision to revoke probation will not be reversed absent a “manifest abuse of discretion.” State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000). Defendant brings two assignments of error on appeal, which we will consider in turn.
    First, defendant contends that the trial court erred by not addressing in the findings of fact that the defendant presented evidence to show that the geographic requirements by the probation officer were unreasonable. We disagree.
    When a defendant puts on evidence of his inability to fulfill a condition of probation, or of lawful excuse, he is entitled tohave his evidence considered and evaluated by the trial court, and the trial judge has a duty to make findings of fact which clearly show that he did consider and did evaluate the defendant's evidence. State v. Hill, 132 N.C. App. 209, 510 S.E.2d 413 (1999); State v. Jones, 78 N.C. App. 507, 509, 337 S.E.2d 195, 197 (1985); State v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974). Other than a claim of inability to comply or lawful excuse, the trial court is not required to make findings of fact concerning the evidence in support of every contention of the defendant.
    In the present case, the only evidence defendant presented was the testimony of the victim, his fiancee. The evidence established both her support of defendant, and the fact that he had not moved out of the shared residence. Defendant did not contend that he was unable to fulfill this condition of probation, and in fact admitted that he had not moved. Defendant's counsel made the following closing argument: “Your honor, we hope that you'll find that the requirement by the probation officer that he move out was not a reasonable requirement and that he be allowed to return to his residence and be kept on probation.” Defendant's counsel presented no authority or legal basis for the argument.
    The trial transcript is a little more than fourteen pages long, and the evidence was brief. It is clear from the transcript that the trial court did in fact consider defendant's evidence in that the trial court asked questions of defendant's counsel before making a determination.    A condition which is a violation of the defendant's constitutional right and, therefore, beyond the power of the court to impose is per se unreasonable. State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970); State v. Simpson, 25 N.C. App. 176, 179-80, 212 S.E.2d 566, 569, cert. denied, 287 N.C. 263, 214 S.E.2d 436 (1975). However, a condition which is directly related to and grows out of the offense for which the defendant was convicted is proper. Simpson, 25 N.C. App. at 180, 212 S.E.2d at 569.
    In the case at bar defendant was convicted of burning personal property and assaulting his fiancee. The trial court ordered as a condition of probation that the defendant not reside with her. At the time of the probation violation hearing defendant and the victim were still unmarried. Although changing residence would have been difficult, this condition was clearly directly related to and grew out of the offense for which the defendant was convicted, and was consistent with proper punishment for the crime. We hold that under the circumstances of this case this condition neither violated the defendant's constitutional rights nor was otherwise unreasonable. See State v. Simpson, 25 N.C. App. 176, 212 S.E.2d 566, cert. denied, 287 N.C. 263, 214 S.E.2d 436 (1975) (the trial court was affirmed in revoking the defendant's probation when defendant argued that the condition allegedly breached by the defendant was in violation of his constitutional right to work.)
    Because the condition of probation was reasonable, and the trial court clearly considered defendant's evidence, the trialcourt did not err in failing to make findings of fact pertaining to defendant's contention that the condition was unreasonable.
    Second, defendant contends that the trial court abused its discretion by ordering that defendant's probation violation was willful and without lawful excuse and by activating defendant's suspended sentence. This assignment of error has no merit.
    The competent evidence showed that defendant did wilfully violate his probation. At the violation hearing, defendant's evidence showed that he had not moved out of the house. Defendant offered no evidence of an inability to comply with the condition of probation or a lawful excuse, except that the condition was “unreasonable.” As explained above, we conclude that the condition was reasonable. We therefore affirm the trial court's revocation of defendant's probation.
    Judge TIMMONS-GOODSON concurs.
    Judge WYNN concurs in result only.
    Report per Rule 30(e).

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