STATE OF NORTH CAROLINA
v. Cumberland County
Nos. 02 CRS 52695-96
MAJOR JOHN WRIGHT
Attorney General Roy Cooper, by Assistant Attorney General
Creecy C. Johnson, for the State.
Geoffrey W. Hosford, for defendant-appellant.
LEVINSON, Judge.
On 16 December 2002, defendant pled guilty to two counts of
taking indecent liberties with a child and was sentenced to
consecutive terms of nineteen to twenty-three months imprisonment.
The trial court suspended defendant's sentences and placed him on
supervised probation for thirty-six months.
On 16 August 2005, defendant went to the home of Shakira
Fisher. Fisher was fifteen years old and was home alone with her
two year old sister. Fisher testified that she answered a knock at
the door and found defendant standing there with a bag of clothes.
Fisher knew defendant because his “wife was like my grandma.”
Defendant came into the house and said the bag of clothes were forthe baby for church.
Fisher testified that defendant put the
clothes by the couch and then refused to leave. Defendant told her
that her “butt was big” and testified further that he “was grabbing
hisself” in “his private parts” and calling me cute.”
On 24 August 2005, probation violation reports were filed
alleging that defendant had failed to report to his probation
officer and had failed to abide by the terms of the sex offender
control program. Specifically, the report claimed that defendant
violated the conditions that he: (1) participate in a sexual abuse
treatment program; (2) not be alone with any minor below the age of
eighteen; and (3) not engage in any sexual behavior with a minor
below the age of eighteen.
On 20 February 2006, the trial court held a probation
violation hearing at which defendant
denied the allegations. The
trial court found that defendant willfully violated the terms of
his probation, finding that “[e]ach violation is, in and of itself,
a sufficient basis” to revoke probation.
Defendant appeals from
the revocation of his probation.
Defendant first argues that there is a clerical error in the
judgments and asks the Court to remand the matter for correction.
Specifically, defendant notes that the judgments indicate that the
trial court found him in violation of all the allegations set out
in the violation reports. However, defendant claims the trial
court only found him in violation by having been in contact with
minors and engaging in sexual behavior in their presence.
We
agree, as the trial court specifically stated that he would notrule either on those allegations in the violation report set forth
in paragraph 1 or the first allegation included in paragraph 2.
Accordingly, we remand for correction of this clerical error.
Defendant next argues that the trial court abused its
discretion by revoking his probation because he demonstrated a
lawful excuse for violating his probation. Defendant contends the
trial court failed to consider his mental state or his explanation
for his presence at Fisher's home. Defendant claims that he did
not plan the encounter and that Fisher misinterpreted his actions
as sexual behavior. Defendant asserts that the trial court failed
to make findings that show it considered and evaluated his
evidence.
After careful review of the record, briefs and contentions of
the parties, we affirm.
“Any violation of a valid condition of
probation is sufficient to revoke defendant's probation. 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.” State v. Tozzi, 84
N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987)(citations omitted).
Furthermore, t
he defendant has the burden of showing excuse or lack
of wilfulness. If the defendant fails to carry this burden,
evidence of failure to comply is sufficient to support a finding
that the violation was wilful or without lawful excuse. Id.
(citing State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835
(1985)).
At the probation hearing, defendant argued that the encounterwas unplanned and that Fisher's testimony was exaggerated.
Defendant's counsel also argued that the trial court should
consider defendant's mental state,
citing a letter from Janet O.
Cardassi, a licensed psychological associate. Cardassi stated that
sometimes defendant would admit to committing sexual abuse, and
other times he would deny it. Cardassi also noted that defendant
had previously received a concussion and had filed for disability
due to seizures and memory loss. However, the trial
court
apparently concluded that defendant's testimony did not satisfy his
burden of showing excuse or lack of wilfulness. See State v.
Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423
, 426 (1983)(“'The
trial judge, as the finder of the facts, is not required to accept
defendant's evidence as true.'” (quoting State v. Young, 21 N.C.
App. 316, 321, 204 S.E.2d 185, 188 (1974)).
The trial court found that based on the record and the
evidence presented by the parties, defendant had violated the terms
of his probation as alleged in the probation violation reports.
The trial court specifically announced at the revocation hearing
that defendant had violated the conditions of his probation as
alleged in the violation report pertaining to his being in contact
with minors and engaging in sexual behavior in their presence.
When the court prefaces its findings with words such as “[b]ased
upon the evidence presented,” the court sufficiently shows that it
considered all the evidence, including evidence presented by the
defendant. Id. The court is not required to make specific
findings of fact regarding each of the defendant's allegations. Id. This Court has stated:
Although the Judge could have been more
explicit in the findings by stating that he
had considered and evaluated defendant's
evidence . . . and found it insufficient to
justify breach of the probation condition, we
hold that his failure to do so does not
constitute an abuse of discretion. It would
not be reasonable to require that a judge make
specific findings of fact on each of
defendant's allegations tending to justify his
breach of conditions.
Id.
Accordingly, we conclude the trial court did not abuse its
discretion by revoking defendant's probation.
Affirmed; remanded for correction of a clerical error
.
Judges McCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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