STATE OF NORTH CAROLINA
v. Craven County
Nos. 02 CRS 51051, 51052
KEITH ANDREW HAWK
Attorney General Roy Cooper, by Assistant Attorney General
Mary S. Mercer, for the State.
William D. Spence for defendant appellant.
McCULLOUGH, Judge.
Defendant Keith Andrew Hawk pled guilty to two counts of
indecent liberties with a child. The trial court found one
aggravating factor and one mitigating factor and determined the
aggravating factor outweighed the mitigating factor. The trial
court sentenced defendant to twenty to twenty-four months on each
count. However, the sentences were suspended, and defendant was
placed on supervised probation for three years. As a condition of
his probation, defendant was ordered to be on electronic house
arrest for the first six months, pay costs and fines totaling
$1,170, remain current with child support, and comply with all sex
offenders conditions, including completion of any treatment
recommended. Defendant's probation officer subsequently filed a probation
violation report with the trial court alleging defendant violated
his probation by failing to make required monetary payments; by
failing to remain current with his child support; by failing to
comply with the condition that he be assigned to electronic house
arrest because he did not pay his electric bill; and by violating
the special conditions of probation for sex offenders on the
grounds that defendant was found to be unacceptable for treatment.
Judge Douglas Albright held a hearing at the 12 November 2002
Criminal Session in Craven County. At the beginning of the
hearing, defendant through his counsel, admitted he was not current
with his child support in violation of his probation, but that it
was not willful. Defendant denied the other violations.
Defendant's probation officer informed the court that defendant had
a balance of $10 on his monetary condition; that defendant let his
power lapse for three hours on 3 September 2002; that defendant was
$1,900 behind on his child support; and that Neuse Center, New Bern
Family Services found defendant was unacceptable for treatment.
The staff psychologist at the Neuse Center testified that defendant
“refused to take any accountability for committing sexual offenses
against his children” and, therefore, “would not be considered
eligible for the outpatient treatment program[.]”
Defendant testified that, while he pled guilty to the sex
offenses, he admitted only to masturbating in front of his
children. He further testified that he was “willing to accept the
treatment plan as long as it respected what I was actually guiltyof[.]” Defendant testified that he does tree removal and trimming
work. He also testified that he got behind in child support
payments when he was in jail from February to July 2002, and that
he paid $330 on his child support from the time he got out of jail
on 24 July 2002 until he went back to jail on 10 October 2002.
Defendant admitted on cross-examination that he did not make a
child support payment for September or October.
After hearing all the evidence and arguments from counsel,
the trial court found defendant willfully and without lawful excuse
violated the terms and conditions of his probation. In its judgment
and commitment upon revocation of probation entered 11 November
2002, the trial court found that “by the evidence presented, the
court is reasonably satisfied in its discretion that the defendant
violated each of the conditions of the defendant's probation” and
“the defendant violated each condition willfully and without valid
excuse[.]” The court also found that each violation was a
sufficient basis upon which to revoke defendant's probation.
Accordingly, the trial court activated defendant's original
sentence. Defendant appeals.
Defendant contends the trial court erred in revoking his
probation. Defendant argues that there was insufficient evidence
that he violated any of the terms or conditions of his probation.
He also argues that the trial court made insufficient findings of
fact as to each condition which it deemed violated.
Any 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). 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). The defendant bears
the burden of presenting competent evidence of his inability to
comply with a probation condition, and if he fails to meet his
burden, evidence of his failure to comply may justify a finding
that the failure to comply was willful or without lawful excuse.
Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. “The findings of the
judge, if supported by competent evidence, and his judgment based
thereon are not reviewable on appeal, unless there is a manifest
abuse of discretion." State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d
148, 150 (1960).
Here, defendant admitted that he did not remain current with
child support in violation of his probation, but denied that it was
willful. At the probation hearing, defendant's probation officer
testified that defendant was $1,900 behind on his child support.
Defendant subsequently testified that he had paid $330 on his child
support from 24 July 2002 until 10 October 2002. Defendant, however
acknowledged that he did not make a payment in September or
October. This evidence is sufficient to support the trial court's
finding that defendant violated this condition of his probation.
State v. Morton, 252 N.C. 482, 114 S.E.2d 115 (1960) (stating therewas competent evidence to support revocation of defendant's
probation where defendant failed to make weekly support payments
for his family). Further, this finding of fact is sufficiently
definite to support the order revoking defendant's probation.
Because we conclude that the trial court properly revoked
defendant's probation on the ground that he failed to remain
current with his child support, we need not address whether the
trial court erred in revoking defendant's probation on the
remaining three violations. See Tozzi, 84 N.C. App. at 521, 353
S.E.2d at 253. Accordingly, we hold that the trial court did not
abuse its discretion and defendant's assignment of error is without
merit. The decision of the trial court is
Affirmed.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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