An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-833


Filed: 20 April 2004


     v.                            Buncombe County
                                No. 01 CRS 62718

    Appeal by defendant from judgment entered 19 December 2002 by Judge Ronald K. Payne in Superior Court, Buncombe County. Heard in the Court of Appeals 22 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Donna D. Smith, for the State.

    Mary Exum Schaefer for defendant appellant.

    WYNN, Judge.

    By this appeal, Defendant, David Duane Scheffler, contends the trial court erred in revoking his probation and activating his sentence. Defendant asserts there was insufficient evidence that he willfully and without lawful excuse violated the terms of his probation. We affirm the judgment of the trial court.
    On 16 April 2002, Defendant pled guilty to felony breaking and entering and larceny after breaking and entering. The trial court sentenced Defendant to a suspended term of eight to ten months' imprisonment and placed him on supervised probation for a period of thirty-six months. As a monetary condition of probation, the trial court required Defendant to pay the sum of $915.00 according to a schedule to be determined by his probation officer. As regularconditions of probation, the judgment required Defendant to report as directed to his probation officer and to obtain prior approval of the probation officer of any change in address or employment.
    On 18 October 2002, Defendant's probation officer, Gregory Varner, executed a violation report alleging that Defendant violated the terms of probation by (1) failing to make three monthly payments of $55.00, thereby falling in arrears in the amount of $165.00; (2) failing to report to his probation officer as required, changing his address/living arrangements without prior approval of his probation officer, and failing to provide his probation officer with contact information; and (3) failing to provide his probation officer with verification of employment.
    At the probation revocation hearing held 19 December 2002, Mr. Varner testified that, as of the date of the hearing, Defendant had paid only $110.00 towards the monetary condition of probation. Defendant was scheduled to make monthly payments of $55.00 and was in arrears. Defendant informed Mr. Varner that his religious beliefs prevented him from working or having money. Defendant also changed residences on numerous occasions without Mr. Varner's prior knowledge or approval. Mr. Varner was often unaware of Defendant's whereabouts for “several weeks at a time,” during which time he was “unsupervisable.” Defendant missed scheduled appointments on 10 October 2002 and 15 October 2002.
    Defendant testified that he was unable to pay the monetary condition of probation because he had taken a vow of poverty based upon his religious beliefs. Defendant asserted that he went to theprobation office on 10 October 2002, but that his probation officer was not there. He missed the appointment on 15 October 2002 because of lack of transportation. Defendant further testified that he notified Mr. Varner when he changed residences, and that his attempts to obtain employment were unsuccessful.
    At the conclusion of the hearing, the trial court found that Defendant willfully and without lawful excuse committed the first two violations. The trial court declined to find that Defendant committed the third violation. The trial court entered judgment revoking probation and activating Defendant's sentence of eight to ten months' imprisonment. Defendant appealed.
    Defendant asserts there was insufficient evidence that he willfully and without lawful excuse violated the terms of his probation. 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, 328S.E.2d 833, 835 (1985). When the defendant does offer evidence of his ability or inability to comply with a condition of probation, the court must make findings of fact showing that it considered and evaluated this evidence. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983). 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).
    Here, the testimony of Mr. Varner established that Defendant committed the violations. By his own admission, Defendant voluntarily left the commune where Mr. Varner knew he was residing because of disagreements he was having with other residents. Defendant offered no evidence to rebut Mr. Varner's testimony that he failed to obtain prior approval of this change of residence. Defendant admitted that he had worked various short-term jobs to support himself and his travels in the past. He therefore had the ability to earn some income to pay the monetary condition of probation. We conclude the trial court did not abuse its discretion by revoking probation and activating the sentence.
    Judges HUNTER and McCULLOUGH concur.
    Report per Rule 30(e).

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