State v Cain, (05-76) 08/02/2005

Appeal by defendant from judgment entered 19 July 2004 by Judge Kenneth C. Titus in Durham County Superior Court. Heard in the Court of Appeals 18 July 2005.

Attorney General Roy Cooper, by Assistant Attorney General Brenda Eaddy, for the State.

James N. Freeman, Jr., for defendant-appellant.

MARTIN, Chief Judge.

    On 19 January 2001, defendant Lillie Mae Cain pled guilty to assault with a deadly weapon inflicting serious injury. The trial court sentenced defendant to twenty-five to thirty-nine months imprisonment, suspended the sentence and placed defendant on thirty-six months supervised probation.     As a condition of her probation, defendant was ordered to pay $10,000.00 in restitution. The trial court modified the original judgment on 10 December 2002 by suspending defendant's restitution obligation. Defendant's probationary sentence was again modified on 17 December 2003. The trial court extended defendant's term of probation for a period of sixty months, ordered that the first six months be intensiveprobation, reinstated defendant's restitution obligation and ordered defendant to “obtain a substance abuse assessment and complete all recommended treatment.”
    Defendant's probation officer filed a probation violation report on 2 June 2004. The report alleged that defendant: (1) tested positive for cocaine and marijuana eight times; (2) failed to report to her probation officer on 4 January 2004 and 3 March 2004; (3) failed to abide by her curfew on sixteen occasions; and (4) failed to pay money towards her restitution obligation.
    Judge Kenneth C. Titus held a probation violation hearing on 19 July 2004. Defendant's probation officer, Kenneth Battle, testified that defendant was required to report to him every Wednesday afternoon, but she failed to report on 4 January and 3 March of 2004. Officer Battle also testified that defendant tested positive for cocaine eight times and that defendant admitted to him that she was using drugs. Officer Battle further testified that defendant was not home by her established curfew of 7:00 p.m. on several occasions. Finally, Officer Battle testified that defendant was obligated to pay $86.00 per month towards her restitution; that he and defendant believed this amount was reasonable taking into account her job at Bojangles; and that defendant had not paid any money towards her restitution.
    Defendant admitted failing to report to Officer Battle twice. Defendant testified that she did not know she was supposed to meet Officer Battle on 4 January 2004 because he had been on vacation the previous week and that she went to his office the next day. Asto the 3 March 2004 date, defendant testified that she called Officer Battle from the Health Center that afternoon and informed Officer Battle that she might not be able to make it to his office by 5:00 p.m. because she was at the Health Center. She testified that Officer Battle told her to bring a note and that she did so the next day. Defendant admitted being late for curfew on May 14, 21 and 28. Defendant, however, testified that Officer Battle gave her until 8:00 p.m. to arrive home during the month of May 2004 because she was working at a daycare and she had to stay with the daycare owner until the last child was picked up. Defendant further testified that on the other occasions, she was home sleeping soundly due to taking her asthma medication. Defendant admitted not paying any money towards restitution, but testified that her work hours at Bojangles had decreased. Defendant also admitted on cross-examination that she used drugs while on probation. After hearing all the evidence and arguments from counsel, the trial court found defendant willfully and without lawful excuse violated the terms and conditions of her probation and activated defendant's original sentence. Defendant appeals.
    Defendant contends the trial court erred in revoking her probation because there was insufficient evidence that she willfully violated a condition of her probation without lawful excuse.     It is well settled that “'probation 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 wilful or without lawful excuse.” State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987)(citation omitted). “Any violation of a valid condition of probation is sufficient to revoke [a] defendant's probation.” Id.
    We conclude the State presented sufficient evidence to show that defendant willfully violated the conditions of her probation without lawful excuse. Here, defendant admitted she failed to report twice, that she missed three curfew checks, that she failed to pay her monetary obligations, and that she used illegal drugs during her probationary period. Although defendant informed the trial court that she did not comply with the monetary conditions of her probation because her work hours were decreased, defendantoffered no excuse for violating the condition that she not use any illegal drug or controlled substance. Defendant's admission, without offering any evidence to justify testing positive for cocaine and marijuana, was sufficient within itself to sustain the trial court's determination that her failure to comply was without lawful excuse. See State v. Alston, 139 N.C. App. 787, 794-95, 534 S.E.2d 666, 671 (2000). We conclude that there is evidence in the record to support the judge's findings that defendant willfully and without lawful excuse violated the conditions of her probation.
    Defendant also contends the trial court failed to make sufficient findings of fact to show that it had weighed and considered her evidence. Defendant specifically points out that “the written order does not even acknowledge that Ms. Cain requested a hearing, much less present findings of fact sufficient to show that the trial court considered her evidence.”
    The trial court is not required to make specific findings of fact regarding each of the defendant's allegations tending to justify her breach of conditions. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983). When the court introduces its findings with words such as “based upon the evidence presented,” the court sufficiently shows that it considered all the evidence, including evidence presented by the defendant. Id.
The transcript of the probation violation hearing shows that Judge Titus heard testimony from defendant's probation officer and defendant at the probation violation hearing. The transcript further shows that the trial court demonstrated it considereddefendant's evidence and concluded defendant willfully violated her probation by failing to pay her restitution obligation and by testing positive for cocaine. In its written judgment and commitment upon revocation of probation, however, the trial court checked box 2.b., which indicates that defendant waived a violation hearing and admitted violating each of the conditions of her probation. Based on the probation violation hearing transcript, it is clear that the court intended to have checked box 2.a., which states: “a hearing was held before the Court and, by the evidence presented, the court is reasonably satisfied in its discretion that the defendant violated each of the conditions of the defendant's probation.” Thus, the error in the judgment sheet is merely clerical and we remand this case to the trial court for correction of the clerical error. See State v. Coleman, 161 N.C. App. 224, 237, 587 S.E.2d 889, 897 (2003) (remanding to the trial court for correction of a clerical error where the trial court marked the improper verdict on a form). We further note that the finding set out in box 2.a. is sufficient to show that the trial court considered all of the evidence, see Williamson, supra., and supports the trial court's conclusion that defendant violated her probation. Accordingly, we affirm the trial court's judgment and commitment and remand this for correction of clerical error in accordance with this decision.
    Affirmed; remanded for correction of clerical error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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