An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1165


Filed: 21 June 2005


         v.                        Mecklenburg County
                                Nos. 04 CRS 3314-18

    Appeal by defendant from judgments entered 8 April 2004 by Judge Mark Klass in Superior Court, Mecklenburg County. Heard in the Court of Appeals 30 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Jane L. Oliver, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant.

    McGEE, Judge.

    Defendant Roy Brent Smith pled guilty on 2 October 2003, to felony possession of stolen goods, two counts of felony larceny, and two counts of felony breaking and entering. The trial court sentenced defendant to five consecutive sentences of nine to fourteen months in prison, suspended the sentences and placed defendant on supervised probation for thirty-six months.      Defendant's probation officer filed five probation violation reports on 16 January 2004. Each violation report alleged that defendant: (1) failed to report to his probation officer after being released from custody on 25 November 2003 and, as of 6 January 2004, defendant had not contacted his probation officer;and (2) left his residence in Charlotte without the permission of his probation officer.     
    At a probation violation hearing on 8 April 2004, defendant admitted the violations, but denied that the violations were willful. Defendant's probation officer testified that when defendant was released from custody in Transylvania County, defendant was supposed to contact his probation officer; that defendant had supplied the probation office with an address in Charlotte; and when defendant's probation officer went to the address, he was informed that defendant did not live there.     Defendant testified that his co-defendant in the Transylvania County case had been gunned down at the Charlotte address and that defendant did not stay at the Charlotte address because he feared for his own safety. Defendant admitted that he had not reported to his probation officer after his release because he "was scared [he] would end up in jail." Defendant also admitted that he had no contact with his probation officer until he was taken into custody in Madison County, following his arrest on new charges. The trial court found defendant willfully violated probation without lawful excuse and activated defendant's sentences. Defendant appeals.
    The dispositive issue is whether defendant willfully violated a condition of his probation without lawful excuse.
    It is well settled that "'[p]robation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime.'" State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (quoting State v. Duncan, 270 N.C. 241,245, 154 S.E.2d 53, 57 (1967)). All that is required in a hearing to revoke probation 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). A verified probation violation report is competent evidence sufficient to support revocation of probation. State v. Gamble, 50 N.C. App. 658, 661, 274 S.E.2d 874, 876 (1981). Once the State meets its burden, the burden then shifts to defendant to "present competent evidence of his inability to comply with the conditions of probation; and that otherwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was willful or without lawful excuse." State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). "Any violation of a valid condition of probation is sufficient to revoke [a] defendant's probation." Id.
    The State presented sufficient evidence to show that defendant willfully violated the conditions of his probation without lawful excuse. It was alleged that defendant violated his probation by being away from his residence. Defendant's probation officer testified that he attempted to make contact with defendant at the address defendant gave him but was told that defendant did not live there. A defendant has the burden of showing excuse or lack of willfulness; otherwise, evidence of failure to comply is sufficientto 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).     The evidence in the record supports the trial court's findings that defendant willfully and without lawful excuse violated the conditions of his probation by leaving his residence. The trial court's judgments revoking defendant's sentences are affirmed.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***