STATE OF NORTH CAROLINA
v. Cabarrus County
Nos. 99 CRS 14971-72
KENNETH JOSEPH EUDY
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Anne Bleyman for defendant appellant.
WYNN, Judge.
Defendant, Kenneth Joseph Eudy, argues on appeal that the
trial court lacked jurisdiction to enter judgments revoking his
probation and activating his suspended prison sentences. We affirm
the judgments of the trial court.
Defendant pled guilty on 13 December 1999 to two counts of
taking indecent liberties with a minor. The trial court sentenced
him to consecutive suspended terms of fifteen to eighteen months'
imprisonment and placed him on supervised probation for a period of
three years.
Probation violation reports dated 5 August 2002 charged
Defendant with failing to pay $100.00 of his supervision fee,changing his address without notifying his probation officer, and
refusing to submit to a drug test on 9 July 2002. The reports also
charged Defendant with violating special conditions of the sex
offender control program, including failing to register with the
sheriff's department as a sex offender on 1 May 2002, registering
a false address with the sheriff's department on 31 July 2002,
changing his address without prior approval, and failing to attend
sexual abuse treatment program meetings on four occasions.
Additional reports dated 7 August 2002 charged Defendant with
failing to report to his probation officer on two additional
occasions, failing to attend a sexual abuse treatment program
meeting, and absconding from supervision on 31 July 2002. In a
report dated 31 October 2002, Defendant was charged with violating
an additional special condition of the sex offender control program
by living with a seventeen-year-old girl.
At his revocation hearing, the State adduced the testimony of
Defendant's probation officer, Laura Bame, who detailed Defendant's
non-compliance with the terms of his probation, and Cabarrus County
Deputy Sheriff Lewis Burgess, who confirmed Defendant had
registered with his department using a false address in Albermarle,
North Carolina, while residing in an apartment at 453 Harris Street
in Concord, North Carolina. The State introduced into evidence a
copy of Defendant's lease to the Concord apartment. The State
withdrew its allegation regarding the monetary conditions of
probation. Defendant admitted the charged violations but stated he
attended all scheduled meetings and appointments until April of2002, when he “went on the run” from additional criminal charges.
He acknowledged living with his seventeen-year-old girlfriend, but
expressed his intention to marry her.
After hearing the parties' evidence, the trial court announced
in open court as follows:
The Court finds that the defendant willfully
without lawful excuse violated the terms and
conditions of his probation in each of these
cases with the exception of the payment of the
money owed. All of the violations the Court
finds to have occurred and the sentences are
placed into effect.
In its judgments revoking probation and activating his suspended
sentences, however, the court found only two of the violations
charged in the 7 August 2002 reports: (1) failure to report to
scheduled appointments with the probation officer on 1 August 2002
and 5 August 2002; and (2) failure to attend a meeting of the
sexual offender treatment program on 5 August 2002. The judgments
provide that each of Defendant's violations is alone sufficient to
support revocation.
___________________________________________________
On appeal, Defendant argues the trial court erred in finding
that he willfully failed to register as a sex offender, absent
evidence that the State provided proper notice of his obligations
under the Sex Offender Registration Program. See N.C. Gen. Stat.
§ 14-208.8 (2001). Having failed to raise this issue in the trial
court, Defendant is precluded from raising it for the first time on
appeal. See N.C.R. App. P. 10(b)(1) (2003). We also note that the
trial court did not rely on Defendant's failure to register as asex offender as a ground for revoking his probation. The judgments
cite instead Defendant's failure in August of 2002 to report to his
probation officer on two scheduled occasions and to attend a
meeting of his sexual offender treatment program. The State
adduced substantial evidence to support the court's findings, and
Defendant admitted the violations, explaining that he was “on the
run” from additional felony charges.
Defendant further contends the trial court lacked jurisdiction
to revoke his probation, both because the State failed to properly
notify him of his obligation to register as a sex offender and
because the 13 September 1999 indictments charging him with
statutory rape were fatally defective. As discussed above, the
trial court did not revoke Defendant's probation based upon his
failure to register as a sex offender. Assuming, arguendo, that
Defendant was not properly notified of the sex offender
registration program, the trial court retained jurisdiction to
revoke Defendant's probation based on his willful violations of the
other conditions of his probation. Likewise, the State did not
prosecute Defendant under the challenged indictments. Instead, it
proceeded against Defendant by informations filed 13 December 1999,
charging him with two counts of taking indecent liberties with a
minor. Defendant and his counsel signed the informations, waiving
indictment on the indecent liberties charges. See N.C. Gen. Stat.
§ 15A-642(c) (2001). The informations were sufficient to confer
jurisdiction on the trial court. See State v. Willis, 285 N.C.
195, 201, 204 S.E.2d 33, 37 (1974). We overrule this assignment oferror.
The record on appeal contains additional assignments of error
not addressed by Defendant in his brief to this Court. By rule, we
deem them abandoned. See N.C.R. App. P. 28(b)(6) (2003).
Affirmed.
Judges HUNTER and McCULLOUGH concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***