STATE OF NORTH CAROLINA
v. Wilkes County
Nos. 03 CRS 2952
JAIME JON ANDRADE 03 CRS 2968
Attorney General Roy Cooper, by Assistant Attorney General M.
Janette Soles, for the State.
Moshera H. Mohamed for defendant-appellant.
LEVINSON, Judge.
Defendant Jaime Jon Andrade was on probation in two separate
Yadkin County matters. On or about 1 April 2003, defendant was
convicted of felony breaking and/or entering and felony larceny.
The trial court sentenced defendant to a suspended term of 8-10
months, and placed him on supervised probation for 36 months. On
that same date, defendant pled no contest to felony possession of
a Schedule II controlled substance (two counts), misdemeanor
possession of drug paraphernalia, misdemeanor possession of up to
1/2 ounce of marijuana, and misdemeanor maintaining a vehicle/
dwelling place used for the keeping or selling of a controlled
substance. All of the drug-related charges were consolidated intoone judgment and the trial court sentenced defendant to a suspended
term of 6-8 months, and placed him on supervised probation for 36
months. At some time subsequent, defendant's probation was
apparently transferred to Wilkes County.
On 22 July 2003, defendant's probation officer filed a
probation violation report in both cases in Wilkes County Superior
Court, alleging the following violations: (1) “defendant violated
the conditions of electronic house arrest by cutting his
transmitter band”; and (2) as of 22 July 2003, defendant was
“$165.00 in arrears on his court payments having paid nothing”.
This matter was heard by Judge William Z. Wood, Jr. during the 4
August 2003 criminal session of Wilkes County Superior Court.
The State presented the testimony of defendant's probation
officer Zachary Henderson. Henderson testified that defendant
violated the terms and conditions as indicated on the 22 July 2003
probation violation report. As to the allegation that defendant
had cut the electronic transmitter band from his leg, Henderson
noted that in order for the device to show that the band had been
tampered with, a great deal of force would have to be applied to
the band. Henderson explained that when defendant was arrested and
brought into his office he was not able to give a coherent answer
to any of Henderson's questions. Henderson also noted that
defendant “would frequently fall over as if he was about to fall
out of his chair,” whereupon Henderson would catch him and sit him
back up in the chair. Henderson testified that defendant appeared
to be under the influence of a controlled substance, but was unableto test defendant because that had not been made a condition of his
probation.
At the hearing, defendant presented the testimony of both
himself and his girlfriend. Defendant testified that on the night
of 22 July 2003, prior to his arrest, that he and his girlfriend,
Diane Bailey, had been asleep at his residence. Bailey testified
she was suddenly awakened by her landlord, Bill, dragging her out
of bed. After Bill dragged Bailey out of bed, he beat her up.
Defendant remained asleep during the altercation. Defendant
testified that he was sleeping deeply because he had not been
sleeping well for the previous two days. Defendant explained that
he had seen his ex-girlfriend's new boyfriend in the trailer park
looking at his truck and had been staying awake just in case the
man tried to damage his vehicle. Both defendant and Bailey
testified that they did not become aware that the transmitter band
was off of defendant's leg until his probation officer called his
home on the next morning. Bailey testified that she subsequently
found the transmitter band in defendant's bedroom, laying at the
foot of the bed. Defendant admitted that the electronic monitoring
personnel had been out at his residence four times previously
because of trouble with his transmitter band. Defendant denied
tampering with his transmitter band at any time.
Defendant admitted that he was in $240.00 arrears on his
monetary obligation of probation. Defendant explained, however,
that up until the week before his arrest he had been employed part-
time and his living expenses and other monetary obligations made itimpossible to pay the monetary obligation of probation. Defendant
testified that he was now working full-time and currently had the
money to fully comply with the monetary conditions of his
probation.
After hearing all of the evidence and arguments of counsel,
the trial court found and concluded that defendant had willfully
and without lawful excuse violated the terms and conditions of
probation as alleged in the 22 July 2003 probation violation
report. Consequently, the court revoked defendant's probation and
activated his suspended sentence. Defendant appeals.
Defendant argues that the trial court erred in revoking his
probation in that “there was no competent evidence” to show that he
violated the terms and conditions of his probation. We disagree.
It is well settled that “'probation 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)). To that end,
a proceeding to revoke probation is not bound by the strict rules
of evidence requiring proof of an alleged violation beyond a
reasonable doubt. State v. Hill, 132 N.C. App. 209, 211, 510
S.E.2d 413, 414 (1999). Rather, the State need only present that
amount of evidence “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, 154S.E.2d 476, 480 (1967). Once the State presents that quantum of
evidence, “[t]he burden is on defendant to present competent
evidence of his inability to comply with the conditions of
probation; . . . otherwise, evidence of defendant's failure to
comply may justify a finding that defendant's failure to comply was
wilful or without lawful excuse.” State v. Tozzi, 84 N.C. App.
517, 521, 353 S.E.2d 250, 253 (1987). The Court noted in Tozzi,
“Any violation of a valid condition of probation is sufficient to
revoke [a] defendant's probation.” Id.
We note at the outset that defendant admitted to being in
arrears on his monetary obligation of probation. He, however,
submitted that until recently, he was unable to make payment on
that obligation because he was only employed part-time and had
other expenses and obligations that needed to be paid. Notably,
however, the record evidence tends to show that defendant had made
no payment on his “court payments,” but by his own testimony, there
was a period of time during which defendant was living with his
mother and did not have these other extraneous expenses, and could
have made his court payments. Further, the State's evidence as to
defendant's removal of his transmitter band was such as to
“reasonably satisfy the [court] in the exercise of his sound
discretion that the defendant ha[d] willfully violated” the term
and condition of probation requiring that defendant comply with all
of the rules and regulation of the Electronic House Arrest Program.
See Hewett, 270 N.C. at 353, 154 S.E.2d at 480. Contrary to
defendant's argument, the record shows that the court fullyconsidered defendant's evidence but rejected that evidence as not
credible. See State v. Williamson, 61 N.C. App. 531, 533, 301
S.E.2d 423, 425 (1983) (providing that the trial court, sitting as
finder of fact in a probation revocation hearing, is not required
to accept a defendant's evidence as true).
Having determined that there was sufficient evidence to
support the trial court's finding that defendant willfully violated
the terms and conditions of his probation as alleged in the 22 July
2003 violation report, we hold that the trial court did not abuse
its discretion in revoking defendant's probation and activating his
suspended sentences. The judgments of the trial court are
therefore affirmed.
Affirmed.
Judges TIMMONS-GOODSON and CALABRIA concur.
Report per Rule 30(e).
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