STATE OF NORTH CAROLINA
v. Richmond County
No. 01 CRS 53392
STACY RYAN SMITH
Attorney General Roy Cooper, by Assistant Attorney General
Kristine L. Lanning and Special Deputy Attorney General
William P. Hart, for the State.
William D. Spence for defendant-appellant.
WYNN, Judge.
Defendant Stacy Ryan Smith appeals from judgment of the trial
court revoking his probation and activating his suspended sentence.
Defendant contends there was insufficient evidence that the alleged
probation violations were willful and without lawful excuse.
Defendant argues his compliance with the conditions of probation
substantially improved, and that the trial court failed to make
sufficient findings of fact. For the reasons stated herein, we
affirm the judgment of the trial court.
The procedural and factual history of the instant appeal is as
follows: On 28 October 2002, Defendant pled guilty pursuant to a
plea agreement to assault inflicting serious injury. Defendant wassentenced to a term of nineteen to twenty-three months'
imprisonment. The trial court suspended Defendant's sentence and
placed him on supervised probation for thirty-six months.
On 18 February 2003, Defendant's probation officer filed a
probation violation report alleging Defendant had failed to comply
with the terms of his probation. Specifically, the report alleged
Defendant: (1) tested positive for cocaine on 4 February 2003; (2)
failed to complete community service; (3) failed to report to his
probation officer; (4) was away from his residence on specified
dates; (5) was in violation of the monetary obligation of his
probation; (6) failed to pay court-ordered supervision fees; (7)
failed to pay child support; (8) failed to obtain full-time
employment; and (9) failed to comply with his recommended treatment
program. On 11 April 2003, a second probation violation report was
filed. The report alleged Defendant: (1) failed to report to his
probation officer; (2) was away from his residence on specified
dates; and (3) had been charged with a criminal offense.
On 5 May 2003, the trial court held a probation violation
hearing in Superior Court, Richmond County. Defendant denied the
allegations in the probation violation report. Defendant testified
that transportation problems prevented him from complying with
several conditions of his probation; that he called when he could
not make his appointments with his probation officer; that he had
no income and thus could not pay all his obligations; and that he
was employed part-time at a poultry farm. The trial court found
there were reasonable grounds to believe that Defendant hadviolated his probation. In particular, the trial court found that:
(1) Defendant had used an illegal substance; (2) failed to report
to his probation officer; (3) was away from his residence on
specified dates; (4) failed to obtain full-time employment; and (5)
failed to comply with his recommended treatment. However, the
trial court continued judgment to give Defendant the opportunity to
“prove” himself.
On 2 June 2003, the trial court held another hearing on
Defendant's probation violations. The trial court found that since
the prior hearing Defendant had: (1) failed to obtain full-time
employment; (2) tested positive for cocaine use; and (3) failed to
complete his community service. Accordingly, based on its findings
at the hearing, as well as the hearing on 5 May 2003, the trial
court revoked Defendant's probation and activated his suspended
sentence. Defendant appealed.
___________________________________________________
Defendant argues the trial court erred in revoking his
probation on the grounds that: (1) his failure to comply with the
conditions of probation was not willful; (2) his compliance
substantially improved; and (3) the trial court failed to make
sufficient findings as to each condition it deemed violated. We
affirm the judgment of the trial court.
Defendant first argues there was insufficient evidence for the
trial court to find that his probation violations were willful and
without lawful excuse. We do not agree. This Court has stated:
Any violation of a valid condition of probation is
sufficient to revoke [a] defendant's probation. All thatis 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. The burden is on [the] defendant to present
competent evidence of his inability to comply with the
conditions of probation; and that otherwise, evidence of
[the] defendant's failure to comply may justify a finding
that [the] defendant's failure to comply was wilful(sic)
or without lawful excuse.
State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987)
(citations omitted).
In the case sub judice, it was alleged in the 18 February 2003
violation report that Defendant violated his probation by being
away from his residence on 15 December 2002, and again on 9 and 11
January 2003. Defendant's probation officer testified that he
attempted to make contact with Defendant at home on those dates,
but that Defendant was not there. Defendant offered no evidence as
to his whereabouts on those dates. 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, 328 S.E.2d 833, 835 (1985). Accordingly, we
conclude it was within the trial court's discretion to revoke
Defendant's probation. Because there was sufficient grounds to
revoke Defendant's probation, we need not consider Defendant's
remaining probation violations.
Defendant next argues the trial court erred by revoking his
probation because he had substantially improved. We do not agree.
Initially, we note that Defendant cites no authority in support of
this contention, in violation of our Rules of Appellate Procedure. See N.C. R. App. P. 28(b)(5). Nonetheless, even assuming arguendo
that Defendant's argument is properly before the Court, it is
wholly without merit. At the June hearing, Defendant admitted to
using cocaine after he was given a second chance by the trial
court. Accordingly, the trial court could properly conclude that
there was no substantial improvement in Defendant's probationary
efforts.
Finally, Defendant argues the trial court failed to make
sufficient findings of fact to show that it had weighed and
considered his evidence. Defendant contends he presented competent
evidence that his probation violations were not willful and without
lawful excuse, and that the trial court was required to make
findings to show that it considered his evidence. We are not
persuaded.
The trial court found that based on the record, as well as the
evidence presented by the parties, Defendant had violated the terms
of his probation as alleged in the probation violation report.
When the court introduces its findings with words such as “based
upon the evidence presented,” the court sufficiently shows that it
considered all the evidence, including evidence presented by the
defendant. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d
423, 426 (1983). The court is not required to make specific
findings of fact regarding each of the defendant's allegations.
Id. This Court has stated:
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 tojustify 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). Accordingly, we affirm the judgment of the
trial court.
Affirmed.
Judges TYSON and GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***