STATE OF NORTH CAROLINA
v. Lenoir County
Nos. 02 CRS 56142
DOUGLAS CANNON, 02 CRS 56143
Attorney General Roy Cooper, by Assistant Attorney General
Elizabeth N. Strickland, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant.
Defendant appeals from five judgments entered upon the
revocation of his probation. Finding no error, we affirm.
On 26 June 2003, defendant was found guilty of 10 counts of forgery of an instrument. The trial court imposed five consecutive suspended sentences of four to five months imprisonment and placed defendant on supervised probation for 36 months. Violation reports filed on 12 August 2003, a month and a half later, alleged that defendant had provided an invalid home address to his probation officer, leaving the officer unable to locate him. After finding that defendant had committed the charged violation, the trial court entered judgments on 19 November 2003, modifying the terms of hisprobation to include 120 days of house arrest with electronic monitoring.
In two subsequent reports filed 15 December 2003, defendant was charged with violating the condition that he submit to electronic house arrest and monitoring. His probation officer had allowed defendant until 11 December 2003 to make arrangements for the installation of the electronic monitoring system at his residence, but defendant failed to do so. At the revocation hearing, Lenoir County Probation Officer Tammy Sue Everett informed the court that following the modification of defendant's probation on 19 November 2003, she transferred supervision of defendant to Officer Coonce in Jones County, North Carolina, defendant's county of residence.
Although directed to make contact with defendant, Coonce "had numerous problems" locating defendant at home, which Coonce reported to Everett via email. Everett offered the following description of Coonce's difficulties with defendant:
When [Coonce] would go, other family members would be there, the defendant would not be there. On December 10th[, 2003,] Mr. Coonce went back to the residence. He had a slight confrontation with the defendant's nephew. Mr. Coonce was politely cussed out. He told [Coonce] there was no equipment going in the house. He would have to do something else.
After defendant's family refused to allow the installation of the equipment required to monitor defendant on house arrest, defendant was told to report to Everett's office on 11 December 2003. Defendant contacted Everett's supervisor and was instructed to come to Everett's office that afternoon. Defendant was arrested on 15December 2003, having failed to report to Everett's office. Days later, he went to see Everett and "stated that it was all a misunderstanding."
Defendant testified that he "would always be around during the time I was supposed to be around," but that Officer Coonce never called or left a message for him. When he tried to contact Coonce, "there was always like an answering machine going off." Defendant believed he had complied with his probation and was home whenever he was supposed to be. As for Coonce's experience with defendant's family, defendant testified, "What went on that day, Mr. Coonce came to the house. My nephew was there. I don't know what went on. I only heard what went on after I got home." Defendant called Coonce the following day, and was told to contact Officer Everett in Kinston. Because Everett "wasn't available at the time," defendant returned to her office on 15 December 2003, in order to explain what had happened. Everett refused to listen to his explanation or give him another chance. On cross-examination, defendant admitted he was ordered to submit to electronic house arrest at his residence on 19 November, but had never been hooked up or monitored under the house arrest program.
At the conclusion of the hearing, the court found defendant in violation of his probation as alleged in the two reports filed 15 December 2003. The court revoked his probation and activated his suspended sentences.
On appeal, defendant argues that the trial court erred in finding his violation willful and without lawful excuse. Accordingto defendant, the evidence showed that his efforts to comply with his probation were thwarted by his nephew without his knowledge or consent. Citing his testimony that he attempted to contact Everett immediately after learning about Coonce's encounter with his nephew, defendant argues the State failed to show that his non- compliance with house arrest was willful.
In order to support the trial court's decision to revoke a defendant's probation, "[a]ll 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." State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998), disc. review improvidently allowed in part, aff'd in part per curiam, 350 N.C. 302, 512 S.E.2d 424 (1999). The court is "not bound by strict rules of evidence and an alleged violation of a probationary condition need not be proven beyond a reasonable doubt." State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, 414 (1999).
Additionally, once the State has presented competent evidence establishing a defendant's failure to comply with the terms of probation, "the burden is on the defendant to demonstrate through competent evidence an inability to comply with the terms." State v. Terry, 149 N.C. App. 434, 437-38, 562 S.E.2d 537, 540 (2002). "If the trial court is then reasonably satisfied that the defendant has violated a condition upon which a prior sentence was suspended, it may within its sound discretion revoke the probation." Id. at 438, 562 S.E.2d at 540. We find no abuse of discretion by the trial court. The State showed that defendant was ordered by the trial court to submit to electronic monitoring and house arrest as a condition of being continued on probation following his initial violations in August 2003. His probation officer set a deadline of 12 December 2003 for defendant to arrange to have the necessary equipment installed at his home. Defendant then repeatedly failed to be at his residence at times arranged by Coonce. Moreover, by his own admission, defendant was absent from his residence without explanation on 10 December 2003, the day before his deadline, when Coonce came to install his electronic monitoring equipment. In his absence, defendant's family refused to allow Coonce to complete the installation and advised him that no such equipment would be allowed at the residence. Although defendant was then required to report to Everett's office by the next day, 11 December 2003, he waited until 15 December 2003 to make contact.
Defendant offered no excuse of any sort for his absences and missed appointments with Coonce, instead insisting that he was always at home when he was supposed to be. As finder of fact, the trial court was entitled to accept the State's evidence and find defendant's testimony not credible. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983). The record thus supports the trial court's finding that defendant willfully disregarded the requirements of probation as alleged.
The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant toN.C.R. App. P. 28(b)(6), we deem them abandoned.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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