STATE OF NORTH CAROLINA
v. Davidson County
No. 03 CRS 58359
PATRICIA MONROY
Attorney General Roy Cooper, by Assistant Attorney General
Mary S. Mercer, for the State.
Eric A. Bach, for defendant appellant.
McCULLOUGH, Judge.
Defendant appeals from a judgment entered upon revocation of
her probation. We affirm.
On 23 June 2004, defendant entered pleas of guilty to charges
of felonious breaking and entering and larceny. The trial court
consolidated the offenses for judgment, sentenced defendant to a
suspended term of eleven to fourteen months' imprisonment, and
placed her on supervised probation for two years.
In a report filed 7 December 2004, defendant's probation
officer charged her with the following violations of the terms and
conditions of probation: (1) failure to make any payments toward
the monetary conditions of her probation; (2) failure to pay her
monthly probation supervision fee; (3) non-compliance with therules of the Day Reporting Center by (a) “attempting to remove
cas[h] from the cash drawer” during a substance abuse treatment
session; (b) “fail[ing] to attend[] skills classes as
instructed[;]” (c) “fail[ing] to provide daily job search lists[;]”
(d) “fail[ing] to be at approved location during curfew hours[;]”
and (e) “fail[ing] to enroll in an education program.”
At the revocation hearing, Davidson County Probation Officer
Melissa Bailey testified regarding defendant's several violations.
Although allowing for “some medical conditions” that may have
prevented defendant from satisfying the monetary conditions of
probation, Bailey noted that “she was still to come to our [bi-
weekly] job skills classes, which she did not. Sometimes she
didn't have transportation, other times she just didn't show up.”
Defendant missed “more than half of” the classes, and did not call
Bailey to tell her that she would not be able to attend. Moreover,
Bailey provided defendant with transportation to the classes, but
“she was taken off of the transportation van due to her not being
at the residence where we sent the van . . . on two separate
occasions.” Bailey also relayed information from an instructor
working for defendant's substance abuse provider, who discovered
defendant with her hand in the provider's cash box during a class.
Defendant was not at her residence on one occasion when Bailey
visited her during curfew. Defendant later explained to Bailey
that “she had moved back to her prior residence.” Finally,
defendant failed to enroll in courses to get her high school
equivalency degree, as required by the Day Reporting Center. Defendant testified that her probation officer would not allow
her to accept the only jobs she could find. She had applied for
disability based upon carpal tunnel syndrome, bone spurs in her
neck, and depression but had been turned down “two or three
times[.]” Defendant had no knowledge of the cash box incident and
had missed only two life skills classes for medical reasons. She
did not turn in her daily job search lists due to the futility of
searching for a job without a driver's license or car. Regarding
the curfew violation, defendant averred, “One time in six months I
was not at the appropriate place.” When asked about her failure to
enroll in classes toward her degree, she explained, “I checked into
it, [but] I could not even start doing any classes until December
at that point because I guess I waited too long trying to get
everything else in order with my health issues and then the new
classes were going to start in January.” When asked why she did
not follow through with registering in December, she said, “I was
really on a tight schedule.”
The court announced its findings in open court, as follows:
I am reasonably satisfied in my discretion
that this probationer has willfully, without
lawful excuse, violated each condition of her
probation as set out in paragraphs one through
three of the violation report. That each of
those violations is sufficient in and of
itself . . . to permit revocation of her
suspended sentence. Had there been some
payments, some efforts in some of this that
looked like a sincere effort, I would view it
differently. I don't see any substantial
effort to comply.
The judgment entered by the court includes findings that shewillfully and without a valid excuse violated each condition
alleged in the violation report, and that “[e]ach violation is, in
and of itself, a sufficient basis upon which this Court should
revoke probation and activate the suspended sentence.”
On appeal, defendant argues that the trial court “fail[ed] to
make adequate findings concerning the specific violation committed
by . . . defendant and the violation being willful and without
lawful excuse.” She notes she offered evidence of her inability to
pay the costs of her probation due to her physical disabilities and
depression, and of the probation officer's refusal to approve two
jobs located by defendant. In light of this evidence, defendant
contends that the trial judge “failed to make the necessary
findings of fact concerning [her] violation of probation being
willful.” She avers that “the lack of findings of fact in this
case requires that [her] case be reversed” and remanded for
rehearing.
Defendant's argument is not properly before this Court,
inasmuch as it does not correspond to any assignment of error set
forth by defendant in the record on appeal. Under N.C.R. App. P.
10(a), “the scope of review on appeal is confined to a
consideration of those assignments of error set out in the record
on appeal[.]” The assignment of error cited by defendant in her
appellant's brief reads as follows:
The trial court erred in revoking the
defendant's probation when the State failed to
establish that the defendant's violations of
probation were willful. The Defendant asserts
as a legal basis: Chapter 15A of the NorthCarolina General Statutes, the Due Process
Clause of the Fifth Amendment of the United
States Constitution, and the N.C. Constitution
Art. I, §[§] 19, 21, 23, and 28. The Defendant
asserts constitutional error, structural
error, prejudicial error, or in the
alternative plain error.
(Emphasis added.) This assignment of error challenges the
sufficiency of the State's evidence on the issue of willfulness.
As set forth above, however, defendant's briefed argument and
citations to authority concern the sufficiency of the trial court's
findings of fact on the issue of willfulness. Because defendant's
assignment of error does not support the argument found in her
brief to this Court, “this matter is not properly presented for our
consideration.” State v. Williamson, 333 N.C. 128, 138, 423 S.E.2d
766, 771 (1992); Koufman v. Koufman, 330 N.C. 93, 97-98, 408 S.E.2d
729, 731 (1991)); accord Bustle v. Rice, 116 N.C. App. 658, 659,
449 S.E.2d 10, 11 (1994) (“[W]here the issue presented in the
appellant's brief does not correspond to a proper assignment of
error, the matter is not properly considered by the appellate
court.”).
Although it is not cited in her appellant's brief, we note
defendant's fourth assignment of error faults the trial court for
“making [in]sufficient findings regarding which specific terms of
probation that [she] had violated without excuse.” We read this
assignment of error as asserting a failure by the court to identify
which of defendant's specific acts it found to be unexcused, rather
than a lack of sufficient findings to establish that her violations
were willful. To the extent this fourth assignment of error can bebroadly construed to encompass defendant's argument on appeal, we
observe that she adduced no evidence tending to justify her attempt
to take money from the cash box, her violation of curfew, or her
failure to enroll in classes toward her high school degree. It is
well established that the violation of even a single condition of
probation provides sufficient grounds for the trial court to revoke
a defendant's probation. See, e.g., State v. Braswell, 283 N.C.
332, 337, 196 S.E.2d 185, 188 (1973). Accordingly, because the
court found each of defendant's violations to be sufficient to
revoke her probation, the lack of particularized findings on the
willfulness of her failure to maintain employment or to satisfy the
monetary conditions of probation was harmless. See N.C. Gen. Stat.
§ 15A-1443(a) (2005).
The record on appeal contains additional assignments of error
which are not addressed by defendant in her brief to this Court.
Pursuant to N.C.R. App. P. 28(b)(6), we deem them abandoned.
Affirmed.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***