An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-902


Filed: 1 June 2004


     v.                            Cabarrus County
                                Nos. 02 CRS 6936,
                                    11389 and 11390

    Appeal by defendant from judgment dated 24 March 2003 by Judge Mark E. Klass in Cabarrus County Superior Court. Heard in the Court of Appeals 12 May 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Kathleen M. Waylett, for the State.

    Bryan Gates for defendant-appellant.

    BRYANT, Judge.

    Herman Henry Miller, Jr. (defendant) appeals a judgment and commitment upon revocation of probation dated 24 March 2003.
     On 28 October 2002, defendant pled guilty to possession of a firearm by a felon and assault on a government official. After consolidating the offenses for judgment, the trial court ordered a suspended sentence of twenty to twenty-four months imprisonment and placed defendant on supervised probation for thirty-six months. In addition, the trial court ordered defendant to pay $1,645.00 as a monetary condition of probation. This amount included $900.00 in restitution and a monthly probation supervision fee. On 13 February 2003, defendant's probation officer filed a violationreport alleging defendant had violated six conditions of his probation.
    At the probation violation hearing on 24 March 2003, Intensive Probation Officer Dana Nance testified that defendant had tested positive for marijuana on three occasions and failed to report for three mandatory office visits. Defendant missed four curfews and, at the time of the hearing, was in arrears by $255.00 on his court- ordered and probationary fines. Officer Nance testified that defendant had failed to obtain gainful employment and had paid no money toward his violation.
    Defendant testified that he had completed his community service and had paid $90.00 toward his fines. At the end of the hearing, Officer Nance acknowledged finding the receipt for defendant's $90.00 payment. Defendant brought a note from his employer that indicated he had obtained employment four days prior to the hearing. Defendant also told the trial court that “I have the money to pay all of my fines and everything.” He stated that he worked on cars and motorcycles and that “I make my change.” Defendant related that he was “trying to swing between both of them,” meaning his child support obligation and the monetary condition of his probation. Defendant testified he missed two of the mandatory office visits because of transportation difficulties after performing his community service. While he admitted having a problem with marijuana, defendant indicated he was unable to schedule an appointment for treatment initially because of transportation difficulties, then later because of a lack of funds,and finally because had gone on the wrong date.
    The trial court found that defendant had willfully and without valid excuse violated four conditions of his probation: the condition that (1) defendant not use any illegal drug or controlled substance, (2) he report as directed by his probation officer, (3) he not be away from his residence during specified hours, and (4) he pay the total amount due as directed by the trial court or his probation officer. After finding that “[e]ach violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence[,]” the trial court revoked defendant's probation, consolidated a misdemeanor offense of injury to personal property with the two offenses for judgment, and activated defendant's suspended sentence.


    The issue is whether the trial court abused its discretion in revoking defendant's probation.
    Defendant contends the trial court did not consider the impact of his indigency on whether his violation of the probation conditions was willful. He argues the trial court was required to make findings of fact that clearly showed its consideration and evaluation of evidence of a lawful excuse.
    “All that is required to revoke probation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). The breach of any one condition constitutes sufficient grounds torevoke probation. State v. Seay, 59 N.C. App. 667, 670-71, 298 S.E.2d 53, 55 (1982). A trial court's decision to revoke probation upon a finding of a willful violation will not be disturbed absent a manifest abuse of its discretion. State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000).
    In this case, a review of defendant's testimony shows that he offered no explanation for missing his curfew four times. Furthermore, defendant admitted to a problem with marijuana. Although he gave three different explanations for his failed attempts to obtain treatment, at least one of those failures was the result of a lack of planning rather than a lack of funds. In addition, defendant attributed his failure to attend two mandatory office visits to problems in arranging for a ride from his community service but gave no explanation for not attending the third mandatory visit. Even though defendant admitted to possessing the money to pay the monetary conditions of probation, he indicated that he was trying to “swing” between his child support obligation and his monetary condition of probation. Accordingly, defendant's own testimony was sufficient evidence to support the trial court's findings that he had willfully violated valid conditions of his probation without lawful excuse. Defendant has therefore shown no abuse of discretion by the trial court in revoking his probation and activating his sentence. See id.
    No error.
    Chief Judge MARTIN and Judge McGEE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***