An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-817


Filed: 18 May 2004


         v.                        Buncombe County
                                No. 01 CRS 64545

    Appeal by defendant from judgment entered 19 December 2002 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 3 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Wendy L. Greene, for the State.

    Carol Ann Bauer, for defendant-appellant.

    CALABRIA, Judge.

    On 10 July 2002, defendant pled guilty pursuant to a plea agreement to breaking or entering and larceny after breaking or entering. Defendant's sentence, a term of eight to ten months in the North Carolina Department of Correction, was suspended and defendant was placed on supervised probation for thirty-six months.
    On 16 October 2002, a probation violation report was filed alleging that defendant had failed to comply with the terms of his probation. Specifically, the report alleged that defendant had failed to report to his probation officer; failed to abide by his curfew; failed to register as a sex offender; failed to make hiswhereabouts known to his probation officer; and was in violation of the monetary obligation of his probation.
    On 5 December 2002, a probation violation hearing was held in Buncombe County Superior Court. Defendant denied the allegations in the probation violation report. Defendant testified that he was homeless, and the rules at the shelter and his lack of transportation caused him difficulty meeting the terms of his probation. Defendant stated that he did try to contact his probation officer when he missed an appointment; that he was away from his residence, the North Carolina Rescue Mission (“Rescue Mission”), on 14 and 15 October 2002, because they ran out of beds; that he believed he was away from the Rescue Mission on 3 October 2002 because it was raining and he got stuck at a bus shelter; that he was never told what amount of money needed to be paid towards his monetary obligations, and his officer never insisted that he immediately begin making monthly payments; and that he registered as a sex offender using the address of A Hope, where he received his mail, because at the time he had not been approved at any shelter. Defendant also testified that prior to being incarcerated on the alleged probation violations, he had been seeking a permanent residence and had an invitation from a friend to become a roommate. The probation officer had attempted to examine the apartment to approve it, as required by the terms of probation, but the friend was not home when the officer stopped by and the officer did not have a phone number for the friend.     The trial court found defendant had not willfully violated his probation when the shelter had been unable to accommodate him on 14 and 15 October 2002. However, the court found defendant had willfully violated the other terms of his probation as alleged in the 16 October 2002 report. The trial court did not proceed to disposition on 5 December 2002, but rather continued the matter and instructed defendant to find a permanent residence with a telephone number. Meeting these terms would enable the probation officer to more easily locate defendant, and defendant would be able to properly register as a sex offender as required by a prior offense. On 19 December 2002, defendant informed the court that his friend would not allow him to move in because the friend intended to move shortly and too many people were living there. Since defendant had failed to comply with the requirement that he find a home, the court revoked defendant's probation on the basis of the October violations and activated his suspended sentence. Defendant appeals.
    Defendant first argues that the trial court failed to make sufficient findings of fact to show that it had weighed and considered his evidence. Defendant contends that he presented competent evidence that his probation violations were not willful and without lawful excuse, and that the court was required to make detailed findings to justify the revocation of his probation. We are not persuaded.
    After the parties presented the evidence, the trial court found defendant had violated certain terms of his probation asalleged in the probation violation report. The court is not required to make specific findings of fact regarding each of the defendant's allegations. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983). As we previously explained:
        Although the Judge could have been more explicit in the findings by stating that he had considered and evaluated defendant's evidence . . . and found it insufficient to justify breach of the probation condition, we hold that his failure to do so does not constitute an abuse of discretion. It would not be reasonable to require that a judge make specific findings of fact on each of defendant's allegations tending to justify his breach of conditions.

Id. (emphasis added). Furthermore, the trial court demonstrated it considered defendant's evidence by finding that defendant did have a lawful excuse for being away from his residence on 14 and 15 October 2002. Accordingly, the assignment of error is overruled.
    Defendant next argues that there was insufficient evidence for the trial court to find that his probation violations were willful and without lawful excuse. “'[P]robation or suspension of sentence is an act of grace' and not a right.” State v. Alston, 139 N.C. App. 787, 794, 534 S.E.2d 666, 670 (2000) (quoting State v. Baines, 40 N.C. App. 545, 550, 253 S.E.2d 300, 303 (1979)). “Any [single] violation of a valid condition of probation is sufficient to revoke defendant's probation.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987) (citations omitted). To revoke probation, there need only be evidence satisfying a trial court, in its discretion, “that the defendant violated a valid condition of probation without lawful excuse.” Id. Moreover, for the court tofind defendant did not willfully violate the terms of his probation, the defendant must “present competent evidence of his inability to comply with the conditions of probation.” Id. If defendant fails to demonstrate his violations were not willful, “evidence of defendant's failure to comply [with the probation terms] may justify a finding that defendant's failure to comply was wilful or without lawful excuse.” Id.
    In the case sub judice, the report alleged, inter alia, defendant violated his probation by being away from the shelter on the night of 3 October 2002. Defendant's statements concerning his whereabouts on that date were equivocal and included the following concessions: (1) “I don't remember exactly” and (2) that sometime around 3 October 2002, “it was quite rainy, and I would maybe have gotten stuck under a bus shelter, but I'm not quite sure if that was the night or not.” Defendant's vague speculation for his whereabouts was insufficient evidence of a lawful excuse for his probation violation. Since the court need find only one violation was willful to revoke probation, and defendant failed to meet his burden regarding this violation, we conclude it was within the trial court's discretion to revoke defendant's probation. The order of the court is
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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