An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-852


Filed: 21 March 2006


v .                         Halifax County
                            Nos. 01 CRS 56407
TIMOTHY WAYNE MILLS,                02 CRS 1758

    Appeal by defendant from judgment entered 14 March 2005 by Judge Alma L. Hinton in the Superior Court in Halifax County. Heard in the Court of Appeals 22 February 2006.

    Attorney General Roy Cooper, by Assistant Attorney General Ebony J. Pittman, for the State.

    Gilda C. Rodriguez, for defendant-appellant.

    HUDSON, Judge.

    On 4 December 2002, defendant Timothy Wayne Mills was convicted of felony child abuse and taking indecent liberties with a child, and sentenced to 36 to 53 months in prison for the child abuse charge and 24 to 36 months for the indecent liberties with a child charge, to be served consecutively. Defendant's sentences were suspended and he was placed on probation for 60 months. On 9 February 2005, a probation violation report was filed against defendant for having knives in his possession. After a hearing, the court found that defendant had willfully violated his probation and revoked defendant's probation. Defendant appeals. We affirm.
    At the hearing, defendant and his probation officer, Michael Reynolds (“Reynolds”), testified, and the following is a summary ofthe testimony. On 9 February 2005, defendant arrived at his community service work site, placing a bag of his personal belongings in a shed approximately one quarter mile from the location where he was working. When asked that day what was in the bag, defendant stated that the bag contained tattoo tools and knives. Defendant's supervisor at the work site called probation officers, claiming that defendant was threatening to harm himself with weapons in his possession. Ms. Mahala Burch, the probation officer on duty when the call came in, called Intensive Officer Rodney Robertson and a Halifax County deputy. Defendant was arrested and Reynolds met him at the county jail. Defendant stated that he had received the knives as payment for tattoo work he performed, and that he had not returned home to place the knives in his collectible display. Defendant stated that he did not plan to harm himself, and no mental health professional evaluated him.
    Defendant argues that the evidence was insufficient to find that he had violated a condition of his probation. We do not agree.
    This Court has discussed the rules applicable to a probation revocation proceeding:
        Probation is an act of grace by the State to one convicted of a crime. It is a matter of discretion with the trial court. The matter is not governed by the rules of a criminal trial. Consequently, a jury is not required as defendant contends nor must the proof of violation be beyond a reasonable doubt. The evidence need be such that reasonably satisfies the trial judge in the exercise of his sound discretion that the defendant has violated a valid condition on which the sentence was suspended. Because of this andalso because it is a matter which a judge hears and not a jury, the rules of evidence need not be strictly enforced.

State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725, disc. review denied, 301 N.C. 99, 273 S.E.2d 304 (1980).
    Defendant first contends that the evidence against him was insufficient because the testimony against him was uncorroborated hearsay evidence, citing State v. Pratt, 21 N.C. App. 538, 540-41, 204 S.E.2d 906, 907-8 (1974) for the proposition that a probation may not be revoked based solely on hearsay. The State presented testimony from Reynolds about his review of a probation violation report prepared by another probation officer present at the scene of the incident and about Reynolds' own discussions with defendant following his arrest. In addition, defendant himself testified that he brought a bag containing two knives to the community service work site. Thus, even were the rules of evidence to fully apply in his hearing, the State presented non-hearsay evidence sufficient to support his probation violation.
    Defendant also contends that the knives he had in his bag were not deadly weapons in violation of the condition of probation. N.C. Gen. Stat. § 14-269 provides that
        (a) It shall be unlawful for any person willfully and intentionally to carry concealed about his person any bowie knife, dirk, dagger, slung shot, loaded cane, metallic knuckles, razor, shurikin, stun gun, or other deadly weapon of like kind, except when the person is on the person's own premises.

        (d) This section does not apply to an ordinary pocket knife carried in a closed position. Asused in this section, 'ordinary pocket knife' means a small knife, designed for carrying in a pocket or purse, that has its cutting edge and point entirely enclosed by its handle, and that may not be opened by a throwing, explosive, or spring action.

N.C. Gen. Stat. § 14-269 (2005). Defendant admits that the knives he carried were not “ordinary pocket knives” as described in sub- section (d); rather defendant describes them as “collectible knives.” Defendant testified that he knew he was not allowed to possess deadly weapons, but he did not believe the knives fell into that category since he only intended to display them in his collection. However, it is the nature of the weapons, not the possessor's intent, which determines their classification pursuant to the statute. On these facts, we do not conclude that the trial court erred in revoking defendant's probation. Defendant's assignment of error is overruled.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***