An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-927


Filed: 21 February 2006


         v.                        Harnett County
                                No. 05 CRS 50807

    Appeal by defendant from judgment entered 25 April 2005 by Judge Franklin F. Lanier in Harnett County Superior Court. Heard in the Court of Appeals 6 February 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General Mabel Y. Bullock, for the State.

    Jeffrey Evan Noecker for defendant-appellant.

    MARTIN, Chief Judge.

     Defendant appeals from a judgment revoking probation and activating a sentence of a minimum of ten months and a maximum of twelve months imposed on defendant's convictions of possession with intent to sell or deliver cocaine, maintaining a dwelling for keeping and selling controlled substances, and possession of drug paraphernalia.
    Defendant was placed on probation on 17 February 2005 for a period of thirty months. On 4 April 2005 a violation report was filed alleging defendant violated terms and conditions of probation by failing (1) to report for scheduled office visits on 16 March 2005 and 24 March 2005; (2) to abide by curfew on 22 March 2005, 23 March 2005, and 28 March 2005; (3) to make the first payment on themonetary condition of probation; and (4) to pay the probation supervision fee.
    The supervising probation officer testified that although defendant missed a scheduled visit on 2 March 2005, he called her office that day and reported that his stepfather had died suddenly. However, on 16 March 2005 and 24 March 2005, defendant neither reported for his scheduled visit nor contacted her. The surveillance officer visited defendant's residence after the daily 6:00 p.m. curfew and found defendant was not home (1) at 10:40 p.m. on 22 March 2005, (2) at 8:35 p.m. on 23 March 2005, and (3) at 7:48 p.m. on 28 March 2005. Defendant failed to make any payments on the monetary condition of probation and he failed to pay the supervision fee.
    Defendant testified that he did report to or contact the probation officer on the days in question but the probation officer was not in the office. He was at home on 22 March 2005 when the surveillance officer came to his residence but the person who answered the door falsely stated he was not home. He was at work on the evening of 23 March 2005 and was unable to find transportation home.
    Defendant contends the court failed to make sufficient findings of fact demonstrating that it considered defendant's evidence.
    A probationary sentence may be activated if “the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a validcondition 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). Evidence of failure to comply with a term or condition of probation is sufficient to support a finding that the violation was willful or without lawful excuse unless the defendant succeeds in carrying his burden of showing lawful excuse or lack of willfulness. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). The trial judge, as the fact finder, is not required to accept the defendant's testimony or evidence as true. State v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974). Evidence which contradicts or disputes the prosecution's evidence merely creates credibility issues for the trial judge to resolve. State v. Darrow, 83 N.C. App. 647, 649, 351 S.E.2d 138, 140 (1986). Language such as “based upon the evidence presented” which prefaces the court's findings is sufficient to show the court considered the defendant's evidence. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983).
    We are satisfied that the court's findings in the present case show consideration of defendant's evidence. The judge, in open court, stated that “after hearing the evidence presented,” he found that defendant willfully committed each of the four violations alleged in the violation report. The court's written order contains similar prefatory language: “After considering the record . . . together with the evidence presented by the parties . . . the Court finds . . .” defendant committed the violations alleged inparagraphs 1, 2, 3 and 4 of the violation report dated 4 April 2005. The judgment is
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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