State v Green, (04-1116) 10/18/2005

Appeal by defendant from judgments entered 10 March 2004 by Judge Cy A. Grant in Superior Court, Halifax County. Heard in the Court of Appeals 16 August 2005.

Attorney General Roy Cooper, by Assistant Attorney General Lisa H. Graham, for the State.

Kelly Scott Lee for defendant-appellant.

McGEE, Judge.

    Jermaine Jerome Green (defendant) pleaded guilty on 10 July 2003 to two counts of breaking and entering, two counts of larceny, and one count of common law robbery. The trial court imposed consecutive sentences having a combined term of thirty-six to forty-four months in prison. The trial court suspended the sentences and placed defendant on intensive probation for thirty months.
    In a probation violation report dated 5 February 2004, defendant's probation officer alleged that defendant violated a special condition of probation by failing to comply with his curfew on 17 January 2004 and 29 January 2004. In a probation violationreport dated 11 February 2004, defendant's probation officer alleged that defendant had been given a field drug test on 11 February 2004, and the results were positive. Defendant's probation officer further alleged in the 11 February 2004 report that defendant had willfully violated a special condition of probation that defendant "[n]ot use, possess or control any illegal drug or controlled substance unless it ha[d] been prescribed for . . . defendant by a licensed physician and [wa]s in the original container with the prescription number affixed on it[.]"
    At defendant's probation revocation hearing on 8 March 2004, defendant admitted missing the curfews due to a snowstorm. He said he went out and was unable to return home. Defendant also admitted he was guilty of the controlled substance violation. He conceded that "[he] did use drugs, but [he] also tried to get [him]self some kind of treatment[.]" The trial court continued the hearing until it could hear from defendant's probation officer. The hearing resumed on 10 March 2004, and defendant again admitted he was in violation of his probation as a result of a positive test for cocaine on 11 February 2004. Defendant's probation officer testified that defendant was tested on 11 February 2004, and that defendant tested positive for cocaine.
    At the conclusion of the 10 March 2004 hearing, the trial court found that continuation, modification or special probation was not appropriate. In the trial court's written judgments entered that same day, the trial court incorporated the 11 February 2004 violation report by reference and made the following findings:        (3) The condition(s) violated and the facts of each violation are as set forth . . . in paragraph(s) 1 in the Violation Report or Notice dated 02-11-2004.

            . . . .

(5) Each of the conditions violated as set forth above is valid; . . . defendant violated each condition willfully and without valid excuse; and each violation occurred at a time prior to the expiration or termination of the period of . . . defendant's probation. Each violation is, in and of itself, a sufficient basis upon which this Court should revoke probation and activate the suspended sentence.

The trial court made no findings as to whether defendant violated

his curfew.

    The trial court concluded that defendant had violated a valid condition of his probation "upon which the execution of the active sentence was suspended, and that continuation, modification or special probation or criminal contempt [was] not appropriate[.]" The trial court ordered that "defendant's probation be revoked, . . . the suspended sentence be activated, and . . . defendant be imprisoned[.]"
    The trial court activated defendant's suspended sentence of sixteen to twenty months' imprisonment for common law robbery. The trial court also consolidated defendant's four remaining convictions and activated the suspended sentence of ten to twelve months' imprisonment. Defendant appeals.
    Defendant contends the trial court erred by activating the suspended portion of his sentences. He argues there was insufficient evidence that he had willfully violated his curfew on 17 January 2004 and 29 January 2004. Defendant also argues thetrial court based its decision on evidence "outside the scope of the violation report."
    "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). In activating defendant's suspended sentences, the trial court found that defendant had willfully violated the condition that defendant "[n]ot use, possess or control any illegal drug or controlled substance" as alleged in the 11 February 2004 violation report. The trial court made no findings as to whether defendant had violated his curfew on two occasions.
    Defendant admitted the controlled substance probation violation in open court on both days the trial court heard the matter. Also, defendant's probation officer testified that she tested defendant with a field test kit on 11 February 2004 and that defendant tested positive for cocaine. Therefore, the trial court did not abuse its discretion by finding that defendant had violated the controlled substance condition of his probation and that the violation was willful and without valid excuse. The trial court did not err by revoking defendant's probation and activating his sentences because the breach of any one condition is sufficient grounds to revoke probation. See State v. Seay, 59 N.C. App. 667, 670-71, 298 S.E.2d 53, 55 (1982), disc. review denied, 307 N.C. 701, 301 S.E.2d 394 (1983).
    Defendant asserts that the record on appeal does not supportthe trial court's order because the 11 February 2004 violation report in 02 CRS 51103 was erroneously left out of the record on appeal. Defendant filed a copy of the violation report with our Court on 13 September 2005, and the record on appeal was amended on 14 September 2005 to include the violation report. The record is now complete and any contended defect has been cured. See In re D.J.D., ___ N.C. App. ___, ___, 615 S.E.2d 26, 31 (2005).
    Defendant did not argue his remaining assignment of error in his brief and that assignment of error is deemed abandoned. N.C.R. App. P. 28(b)(6).
    Affirmed.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

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