An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1410


Filed: 5 July 2005


         v.                        Harnett County
                                Nos. 03 CRS 54055, 54101,
ALVIN EUGENE CREW                        54102, 04 CRS 413    

    Appeal by defendant from judgments entered 28 June 2004 by Judge Franklin F. Lanier in Superior Court, Harnett County. Heard in the Court of Appeals 20 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Robert K. Smith, for the State.

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

    McGEE, Judge.

     Defendant Alvin Eugene Crew pleaded guilty on 16 February 2004 to second degree kidnapping, using drugs or instruments to destroy an unborn child, and two counts of misdemeanor habitual assault. Defendant's sentences were suspended and he was placed on supervised probation for thirty-six months.
    Probation violation reports were filed on 7 June 2004 alleging that defendant had failed to comply with the terms of his probation. Specifically, the reports alleged that defendant had: tested positive for marijuana; admitted to using marijuana; failed to comply with the monetary conditions of his probation; and possessed a firearm resulting in a pending charge for assault bypointing a gun.
    A probation violation hearing was held on 28 June 2004. The trial court found that defendant had willfully violated the terms of his probation, revoked defendant's probation, and activated his suspended sentences. Defendant appeals.
     Defendant argues that there was insufficient evidence to support the trial court's decision that he willfully violated his probation.
     The burden of proof is on the State to show that a defendant violated one of the conditions of his probation. State v. Seagraves, 266 N.C. 112, 145 S.E. 2d 327 (1965). In the present case, the evidence presented by the State to prove defendant's probation violations was the verified probation violation report. Our Court has stated that:
        The trial court is not bound by strict rules of evidence in probation hearings and the probation violation alleged need not be proven beyond a reasonable doubt. All that is required is that the evidence be sufficient to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation. Because formal rules of evidence do not apply at a probation revocation hearing, a probation officer's written report of a probation violation is admissible in evidence.

State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998) (citations omitted) (emphasis added); State v. Dement, 42 N.C. App. 254, 255, 255 S.E.2d 793, 794 (1979) ("Sufficient evidence was presented in the verified and uncontradicted violation report served upon the defendant to support the trial court's findings and conclusions.")(citing State v. Duncan, 270 N.C. 241, 154 S.E.2d 53(1967)) . There was therefore competent evidence in the record to support the trial court's conclusion that defendant violated his probation.
     Once the State presented evidence that defendant had violated his probation, the burden shifted to defendant to show excuse or lack of willfulness. If a defendant fails to carry this burden, evidence of failure to comply may justify 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)(citing State v. Young, 21 N.C. App. 316, 204 S.E.2d 185 (1974)). In this case, defendant offered no competent evidence to explain or to excuse his probation violation. Defendant's positions with respect to the probation violation allegations were only presented to the trial court through the statements of his counsel. Defendant's counsel admitted (1) that defendant had not complied with the monetary conditions of his probation but denied "the willfulness thereof," and (2) that defendant had smoked marijuana "one time after . . .  he'd been released." Our Court held in Crouch that "counsel's statements were not competent evidence" and that the Court's "review of representative cases disclose[d] no circumstances where statements of counsel have been treated as evidence, while the cases repeatedly state that the findings and conclusions of the trial court in such hearings must be based on competent evidence." Crouch, 74 N.C. App. at 567, 328 S.E.2d at 835. Since defendant presented no competent evidence showing excuse or lack of willfulness as to any of the probation violations set forth in theprobation violation report, he failed to carry his burden.
    The trial court stated in its judgment that it was reasonably satisfied, in its discretion, that defendant violated the conditions of his probation. "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)(citations omitted). We therefore conclude the trial court did not abuse its discretion in revoking defendant's probation. Defendant's sole assignment of error is overruled. We affirm the judgment of the trial court.
    Affirmed .
    Judges HUDSON and LEVINSON concur.
     Report per Rule 30(e).

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