An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1461


Filed: 5 July 2005


         v.                        Montgomery County
                                No. 01 CRS 51921

    Appeal by defendant from judgment entered 23 June 2004 by Judge Clarence E. Horton in Superior Court, Montgomery County. Heard in the Court of Appeals 20 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Jill A. Bryan, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Kelly D. Miller, for defendant-appellant.

    McGEE, Judge.

    Defendant appeals from a judgment revoking his probation and activating his suspended sentence of six to eight months' imprisonment. Defendant pleaded guilty to possession of cocaine on 8 February 2002 and was placed on supervised probation for a period of thirty months.
    A violation report filed 3 July 2002 charged defendant with testing positive for cocaine use on two occasions and failing to satisfy the monetary conditions of his probation. After finding defendant guilty of the charged violations, the trial court modified the terms of defendant's probation on 9 October 2002, requiring defendant to surrender his driver's license and to submitto in-house treatment for substance abuse.
    A second violation report filed 10 March 2004 charged defendant with testing positive for cocaine use on four occasions, non-compliance with the monetary conditions of his probation, and testing positive for cocaine use during the course of his court- ordered substance abuse treatment. At a hearing held 23 June 2004, defendant's probation officer introduced evidence that defendant tested positive for cocaine use on 12 September 2003, 29 September 2003, 13 October 2003, and 21 January 2004, as well as on "numerous" occasions at defendant's treatment facility, including 22 June 2004, the night before defendant's revocation hearing. The probation officer further testified that defendant was $395.00 in arrears toward the original monetary obligation of his probation and was also $225.00 in arrears toward his supervision fees.
    Defendant testified that he believed he was released from probation upon completion of the substance abuse treatment ordered by the trial court on 9 October 2002. Defendant also testified that he completed his six-month course of treatment at Western Carolina Rescue Mission and that he had been attending the Day Reporting Center for several months. Defendant blamed his positive drug screens on medicines prescribed by his doctor for pain. When asked by his counsel if he was using cocaine, defendant replied, "No, sir. I don't -- I don't use no cocaine. I was an alcoholic . . . for a long time. That's how I got arrested." On cross- examination, defendant insisted that he "never liked no marijuana or cocaine[,]" and did not use cocaine.     In finding defendant had willfully violated the conditions of his probation requiring that he not possess or use controlled substances and requiring him to comply with the terms of his substance abuse treatment, the trial court found that defendant "clearly has a severe problem with cocaine." While acknowledging that "it's hard when you're addicted to quit sometimes[,]" the trial court noted that defendant refused to acknowledge his addiction or his obligation to submit to probation. Believing that defendant "needs intensive treatment for this addiction," which defendant would not obtain due to his denial of the problem, the trial court revoked defendant's probation and activated his suspended sentence.
    On appeal, defendant argues that the evidence presented at his revocation hearing was insufficient to support the trial court's finding that defendant's violations were willful and without lawful excuse. Defendant argues that "[t]he record shows [his] alleged violations were not willful, but were caused by his addiction to cocaine for which he sought treatment."
    It is well-established that "a proceeding to revoke probation 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) (citing State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)). "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 validcondition of probation." State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998). Where the State presents such evidence, the burden shifts to a defendant to "present competent evidence of [the defendant's] inability to comply with the conditions of probation; . . . otherwise, evidence of defendant's failure to comply may justify a finding that defendant's failure to comply was wil[l]ful or without lawful excuse." State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987).
    We find the testimony of defendant's probation officer sufficient to support the trial court's finding that defendant willfully violated the conditions of his probation by using cocaine on several occasions, as alleged in the report filed 10 March 2004. Defendant has offered no authority to support the proposition that addiction to cocaine is a "lawful excuse" for its possession or use in violation of N.C. Gen. Stat. § 90-95(a)(1) (2004). The trial court was therefore within its discretion to determine that defendant willfully violated the terms of his probation.
    Judges HUDSON and LEVINSON concur.
    Report per Rule 30(e).

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