State v Allen, (05-497) 01/17/2006

Appeal by defendant from judgment entered 29 November 2004 by Judge J.B. Allen in Durham County Superior Court. Heard in the Court of Appeals 9 January 2006.

Attorney General Roy Cooper, by Assistant Attorney General Yvonne B. Ricci, for the State.

Brannon Strickland, PLLC, by Anthony M. Brannon and Marlet M. Edwards, for defendant appellant.

McCULLOUGH, Judge.

    Defendant pled guilty on 11 August 2004 in Durham County Superior Court to possession with intent to manufacture, sell or deliver a Schedule II controlled substance. The court ordered defendant imprisoned for a term of eight to ten months. The court suspended execution of the sentence and placed defendant on supervised probation for a period of 24 months.
     On 13 October 2004 a violation report was executed charging that defendant committed the following violations of conditions of probation: (1) failed to report to her probation officer by missing an appointment on 6 October 2004; (2) failed to abide by curfew on eight different occasions between 19 August 2004 and 7 October2004; (3) failed to pay court costs and attorneys fees; (4) failed to pay monthly probation supervision fee of $30; (5) failed to obtain prior approval of probation officer before changing residence; and (6) failed to notify probation officer of new address and failed to submit to a court-ordered DNA test. At the conclusion of the probation revocation hearing on 29 November 2004, the court found that defendant willfully and without lawful excuse committed all of the alleged violations except the third. The court revoked probation and activated the sentence.
     Two witnesses testified at the probation revocation hearing: Frank Shipp, an adult probation and parole officer in Durham County, and defendant.
    Mr. Shipp testified that he was assigned to supervise defendant and that because defendant was residing in Person County, an intensive probation officer in that county assumed close supervision of her there. Based upon a conversation he had with the Person County officer and a narrative report he received from the officer indicating that defendant had violated conditions of probation, he filed the subject violation report. He related how defendant committed each of the charged violations. With regard to the third charged violation, he acknowledged that a payment schedule had not been established.
    Defendant testified that during this time frame, she was working two jobs and attending school. She stated that most of the missed curfews “probably” came from her attending classes on Tuesday and Thursday evenings and having to await a ride with afriend whose class did not end until 8:30 p.m. and the weekend missed curfews “probably” came from her tutoring at a neighbor's house. She asserted that her probation officer, Jody Blackwell, gave her permission to be away from her home to tutor as long as she was there when he performed a curfew check. She also gave her probation officer a copy of her class schedule, including a schedule of her Tuesday and Thursday classes. She changed residences after her landlord evicted her when she was arrested for failing to submit to the DNA test. She called her probation officer on 29 September to notify him that she was moving. The probation officer asked her to provide him with a new address. She stayed with friends, relatives and at motels until she found another residence. She called her probation officer on 18 October to provide him with her new address.
    Defendant first contends that the court erred by revoking probation based solely upon unreliable hearsay evidence as Officer Shipp's testimony was based solely upon information related to him by Officer Blackwell, who did not testify.
    Although formal rules of evidence do not apply in a probation revocation hearing, one's probation may not be revoked solely on the basis of hearsay evidence. State v. Hewett, 270 N.C. 348, 356, 154 S.E.2d 476, 482 (1967). When both competent and incompetent evidence is admitted in a probation revocation hearing, it is presumed that the court disregards the incompetent evidence. State v. Coleman, 64 N.C. App. 384, 385, 307 S.E.2d 207, 208 (1983). As long as there is competent evidence to support a finding of asingle violation of probation, the court's order revoking probation must be affirmed. Id.
    In the case at bar, the trial court specifically found that the violation reports and statements made to Officer Shipp by Officer Blackwell constituted reliable and admissible hearsay evidence. Defendant never objected to the court's consideration of the evidence on the ground it was inadmissible hearsay. Moreover, the court had other competent evidence to support findings of violations of one or more conditions of probation. Defendant admitted that she committed the violations.
    Defendant also contends that the evidence is insufficient to support the court's finding that defendant willfully and without lawful excuse committed the violations. To revoke probation, all that is required is evidence sufficient to support a conclusion that defendant violated a valid condition of probation without lawful excuse. State v. Robinson, 248 N.C. 282, 287, 103 S.E.2d 376, 380 (1958). Defendant has the burden of presenting evidence of her 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 willful or without lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985).
    As stated above, defendant admitted that she committed all of the alleged violations. She offered explanations or reasons for missing curfew on Tuesday and Thursday evenings and weekends but she did not offer excuses for missing curfew on two Wednesdayevenings. She gave no reason or excuse for failing to submit a DNA sample, for failing to pay the monthly probation supervision fee, or for failing to keep an appointment with her probation officer on 6 October 2004.
    We hold the evidence supports the court's finding and conclusion that defendant willfully and without lawful excuse violated valid terms and conditions of probation. We affirm the judgment.
    Affirmed.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

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