STATE OF NORTH CAROLINA
v. Alamance County
No. 03 CRS 61815
ANDREW J. ROYSTER,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General J.
Philip Allen, for the State.
Russell J. Hollers III for defendant-appellant.
GEER, Judge.
Defendant Andrew J. Royster appeals from a judgment revoking
his probation and activating his suspended sentence. His sole
argument on appeal is that the trial court erred in finding that he
"willfully" violated a valid condition of his probation. Based on
our review of the record, we find sufficient evidence to support
the trial judge's findings and affirm.
On 22 April 2004, defendant was sentenced to 15 to 18 months
imprisonment for habitual misdemeanor assault. The trial court
suspended the sentence, placed defendant on supervised probation
for 24 months, and imposed a special condition of probationrequiring defendant to enroll in and complete a domestic violence
program.
On 5 January 2006, Probation Officer Dawn L. Baughman filed a
probation violation report, alleging that defendant had violated
the conditions of his probation by, among other things, failing to
report to his probation officer on four occasions and failing to
enroll in and complete the domestic violence program. A hearing
was held on 9 February 2006, at which Officer Baughman testified
regarding the four scheduled appointments that defendant missed.
Officer Baughman did not know the reason why defendant failed to
report for two of the missed visits. With respect to the other
visits, the officer testified that defendant informed her he had
either forgotten or overlooked the appointments.
Officer Baughman further testified that defendant never
enrolled in the domestic violence program as ordered by the
sentencing court. She testified that she had discussed with
defendant his failure to enroll in and complete the program, and he
informed her that he was enrolled in an anger management class.
Officer Baughman then stressed to defendant that his participation
in anger management classes was not a substitute for the domestic
violence program and that his failure to enroll would be a
violation of his probation.
At the hearing, defendant admitted he violated each of the
conditions of his probation as set forth in the violation report,
but denied the violations were willful. Regarding his failure to
report for the scheduled meetings, defendant testified that hesuffered from gout, and he missed the meetings because he could not
get his swollen foot into a shoe. He also testified that he
contacted his probation officer and rescheduled the missed
meetings. With respect to his failure to enroll in a domestic
violence program, defendant claimed he was mistakenly led to
believe that his anger management classes were an acceptable
substitute for the court-ordered program. Defendant also sought to
excuse his failure to enroll in the domestic violence program by
testifying that the program would cost $490.00 and take 12 months
to complete. According to defendant, when he learned this
information, he had less than 12 months remaining on his probation,
and, therefore, could not complete the program before his probation
ended. On cross-examination, defendant admitted that Officer
Baughman had informed him at their first meeting that he would be
required to complete the domestic violence program.
At the end of the hearing, the court found that Officer
Baughman "is completely credible, and that [defendant] is not
worthy of belief," and concluded that defendant willfully and
without lawful excuse violated the terms of his probation by
failing to report to his probation officer on four occasions and by
failing to enroll in and complete the domestic violence program.
The trial court then revoked defendant's probation and activated
his suspended sentence.
In his sole argument on appeal, defendant contends the court
below abused its discretion in finding defendant's probation
violations were willful. As this Court has held: All that is required to revoke probation 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)
(internal citations omitted). Although defendant attempted to meet
his burden by presenting evidence of his inability to comply with
the conditions of his probation, "'[t]he findings of the judge, if
supported by competent evidence, and his judgment based thereon are
not reviewable on appeal, unless there is a manifest abuse of
discretion.'" State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d
807, 808 (2000) (quoting State v. Guffey, 253 N.C. 43, 45, 116
S.E.2d 148, 150 (1960)).
Defendant first argues that the trial court abused its
discretion in finding that he willfully failed to attend his
scheduled appointments. In his brief, he does not explain how he
was unable to comply with this condition of his probation, but
rather suggests that a failure to attend four of the required
appointments cannot be "a sufficient basis, on its own, for
activating the suspended sentence." Defendant cites no authority
for this proposition. In fact, the contrary is well-established:
"Any violation of a valid condition of probation is sufficient to
revoke defendant's probation." Tozzi, 84 N.C. App. at 521, 353
S.E.2d at 253 (emphasis added). Accordingly, the trial court didnot abuse its discretion in finding that defendant willfully failed
to attend some of his required meetings.
Defendant next contends that the trial court abused its
discretion in finding that he willfully failed to complete the
domestic violence program when he was not aware until too late that
anger management classes were not a substitute for the prescribed
program. Defendant's argument mistakenly assumes that the burden
was on the probation officer to remind defendant that a failure to
complete the specifically-ordered domestic violence program could
result in the revocation of his probation.
In any event, there was ample evidence at the hearing that the
probation officer did indeed remind defendant that he needed to
complete the domestic violence program, that anger management
classes were not a substitute, and that failure to comply would
constitute a violation of his probation. Accordingly, the trial
court did not abuse its discretion in finding that defendant
willfully failed to enroll in and complete the court-ordered
domestic violence program.
Since the court did not unreasonably determine that defendant
violated at least one valid condition of his probation, we affirm
the trial court's revocation of defendant's probation and the
activation of his suspended sentence.
Affirmed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).
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