An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1447


Filed: 5 July 2006


         v.                             Rockingham County
                                     Nos. 04 CRS 2135-38

    Appeal by defendant from judgments entered 8 August 2005 by Judge Michael E. Helms in Rockingham County Superior Court. Heard in the Court of Appeals 19 June 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General W. Richard Moore, for the State.

    Bruce T. Cunningham, Jr., for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Daniel King appeals from the revocation of his probation. Based on our review of the record, we hold the trial court did not err and, therefore, we affirm.


    On 27 May 2004, defendant pled guilty to four counts of indecent liberties with a minor. The trial court sentenced defendant to four consecutive sentences of fourteen to seventeen months' imprisonment, suspended the sentences, and placed defendant on thirty months' supervised probation for each offense. Defendant was placed in the sex offender control program under special conditions of his probation.
    On 16 June 2005, defendant's probation officer, Thomas E.Grant, Jr., filed four probation violation reports. Officer Grant alleged that defendant engaged in the following conduct in violation of the conditions of his probation: (1) was alone with a minor child under the age of eighteen years old without any adult supervision; (2) engaged in “sexual behavior” with a minor child under the age of eighteen years old; and (3) engaged in “sexual behavior” with a former victim. All four reports alleged violations (1) and (2) and three of the reports alleged violation (3).
    A probation violation hearing was held on 7 August 2005, in Rockingham County Superior Court. At the beginning of the hearing, the trial court asked defense counsel whether defendant admitted or denied the violations as alleged in the violation reports. Defense counsel stated, “Your Honor, we would admit the violation but deny the willfulness.” The trial court then read the violation reports into the record.
    Officer Grant, the probation officer assigned to supervise defendant's probation, testified that defendant took a polygraph test on 15 June 2005, as part of his required treatment under the terms of his probation. During the polygraph examination, defendant admitted having sexual intercourse with a seventeen-year- old female within ten days of taking the polygraph test. Steve Coats, the polygraph examiner, communicated this information to Officer Grant. Officer Grant also spoke with the female and learned she was actually sixteen years old. The female's mother confirmed her daughter was only sixteen years old. The trail courtfound that defendant willfully violated probation conditions (1) and (2) and that each was a basis for revocation of defendant's four convicted offenses. Defendant now appeals.


    Defendant first contends his constitutional due process rights to an impartial judge were violated because the trial judge, rather than the district attorney, questioned State witness Officer Grant at the probation violation hearing. Probation revocation proceedings are “often regarded as informal or summary” because “probation or suspension of sentence is an act of grace and not of right.” State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 57 (1967). “'[T]he rights of an offender in a proceeding to revoke his conditional liberty under probation or parole are not coextensive with the federal constitutional rights of one accused in a criminal prosecution.'” Id. at 246, 154 S.E.2d at 58 (citation omitted). A revocation of probation proceeding is not a criminal prosecution and no formal trial is required. Id. at 245, 154 S.E.2d at 57.
    Here, defendant argues the trial judge's questioning of Officer Grant creates the appearance of bias and entitles defendant to a new probation violation hearing to protect his due process rights. The State argues the questions asked by the trial court constituted a legitimate inquiry into the facts alleged in Officer Grant's reports. We agree with the State.
    Indeed, trial judges have the discretion to examine witnesses even in a formal setting where a case is being tried before a jury. State v. Colson, 274 N.C. 295, 308, 163 S.E.2d 376 (1968) (stating “'[j]udges do not preside over the courts as moderators, but as essential and active factors or agencies in the due and orderly administration of justice. It is entirely proper, and sometimes necessary, that they ask questions of a witness so that the “truth, the whole truth, and nothing but the truth” be laid before the jury.'”) (citation omitted), cert. denied, 393 U.S. 1087, 21 L. Ed. 2d 780 (1969). Here, in the informal setting of a probation violation hearing, it was entirely proper for the trial judge to examine Officer Grant. This assignment of error is without merit.

    Defendant next contends that the trial court failed to make adequate findings as to his probation violations. The gravamen of defendant's argument on appeal is that there was insufficient evidence to show he willfully violated conditions of his probation. To the extent defendant attempts to argue that the trial court failed to make adequate findings, defendant did not assign error to this alleged failure and, thus, did not preserve this issue for appellate review. See State v. Worrell, 119 N.C. App. 592, 594, 459 S.E.2d 63, 64, disc. review denied, 341 N.C. 656, 462 S.E.2d 525 (1995); N.C.R. App. P. 10(a) (“The scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal.”).
    This Court has stated:
            Any violation of a valid condition of probation is sufficient to revoke defendant's probation. All that is required to revokeprobation is evidence satisfying the trial court in its discretion that the defendant violated a valid condition of probation without lawful excuse. The burden is on 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) (citations omitted).
    Here, Officer Grant's written reports of defendant's violations of conditions of his probation were admissible in evidence. State v. White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998), aff'd in part, review dismissed in part, 350 N.C. 302, 512 S.E.2d 424 (1999); see also State v. Dement, 42 N.C. App. 254, 255, 255 S.E.2d 793, 794 (1979) (“Sufficient evidence was presented in the verified and uncontradicted violation report served upon the defendant to support the trial court's findings and conclusions.”). Thus, there was competent evidence in the record to support the trial court's conclusion that defendant violated conditions of his probation.
    Once the State presented evidence that defendant had violated conditions of his probation, the burden shifted to defendant to show excuse or lack of willfulness. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 834-35 (1985). If a defendant fails to carry this burden, evidence of failure to comply with probation conditions may justify a finding that the violation was willful or without lawful excuse. Id. Here, defendant admitted he violatedconditions of his probation, but offered no evidence to explain or to excuse his probation violations. Because defendant presented no evidence showing excuse or lack of willfulness as to the probation violations set forth in the probation violation reports, he failed to carry his burden. Thus, we conclude there was competent evidence in the record to support the trial court's conclusion that defendant willfully violated conditions of his probation. Therefore, this assignment of error is overruled.

    Finally, defendant contends his constitutional right of confrontation was violated because Officer Grant testified about statements made by third parties, citing N.C. Gen. Stat. § 15A-1345(e) (At a probation revocation hearing, the probationer “may present relevant information, and may confront and cross-examine adverse witnesses unless the court finds good cause for not allowing confrontation.”). This Court has concluded, however, that N.C. Gen. Stat. § 15A-1345 does not require that the State produce a witness for examination by a defendant in a probation revocation hearing.
    In State v. Terry, 149 N.C. App. 434, 436-37, 562 S.E.2d 537, 539 (2002), the probation officer testified about his conversations with the defendant's professor regarding her class schedule. In rejecting the defendant's argument that she was denied her constitutional and statutory right to cross-examine the professor, this Court first pointed out that “proceedings to revoke probation are informal in nature such that the trial court is not bound bythe strict rules of evidence.” Id. at 437, 562 S.E.2d at 540. This Court then observed that the information from the professor merely confirmed other evidence presented, and the defendant had not requested that the professor be subpoenaed. Id. at 438, 562 S.E.2d at 540. Similarly, in State v. Gamble, 50 N.C. App. 658, 274 S.E.2d 874 (1981), the defendant contended he was denied the right to cross-examine adverse witnesses when the State presented no witnesses, but rather, merely read the probation violation report into the record. Id. at 662, 274 S.E.2d at 877. This Court found no violation of the defendant's rights, reasoning: “[t]he State presented no witnesses against the defendant, and defendant failed to request that he be allowed to examine his probation officer or anyone else. . . . We thus overrule defendant's assignment of error here.” Id.
    In the instant case, defendant was allowed the opportunity to cross-examine Officer Grant about defendant's probation violations and did so at the hearing. As in Terry, the information about which Officer Grant testified merely confirmed that defendant violated the conditions of his probation, which had already been admitted by defendant through his counsel. Further, the record contains no indication that defendant sought to have Mr. Coats, the minor female, or the minor female's mother subpoenaed. In light of Terry and Gamble, we conclude defendant has failed to demonstrate that his right to cross-examine and confront adverse witnesses was violated.
    Assuming, arguendo, the trial court erred in allowing OfficerGrant to testify about hearsay statements, any such error was not prejudicial to defendant because Officer Grant's testimony was not necessary to support the trial court's conclusion that defendant willfully violated conditions of his probation. As stated above, defendant admitted he violated conditions of his probation and, thereafter, failed to present any evidence showing excuse or lack of willfulness as to the probation violations set forth in Officer Grant's reports. Therefore, this assignment of error is overruled.     Accordingly, we conclude the trial court did not abuse its discretion in revoking defendant's probation and, thus, we find
    No prejudicial error.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

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