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