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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-32


Filed: 4 September 2007


         v.                        Watauga County
                                No. 05 CRS 51955
                                    05 CRS 51074    

    Appeal by defendant from judgment entered 24 March 2006 by Judge James L. Baker, Jr. in Superior Court, Watauga County. Heard in the Court of Appeals 27 August 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Katherine A. Murphy, for the State.

    Eric A. Bach, for defendant-appellant.

    WYNN, Judge.

    Unless a defendant proves that he had a lawful excuse or did not act willfully, evidence of his violation of his probation is sufficient to support a finding of willfulness or lack of lawful excuse.   (See footnote 1)  Because we find that the defendant here made no such showing, we affirm the trial court's revocation of his probation and activation of his sentence.    
    On 11 August 2005, Defendant Mark Lindsey Hardy entered guilty pleas to two counts of intimidating a witness, misdemeanor breaking or entering, misdemeanor stalking, resisting a public officer, and four counts of violating a domestic violence protective order. Thetrial court entered a sentence of two consecutive terms of ten to twelve months in prison, then suspended that sentence and placed Defendant on supervised probation for thirty-six months. As a special condition of probation, the court directed that Defendant “[n]ot assault, communicate with, be in the presence of, or be found in or on the premises of [V.C.].”   (See footnote 2)  Additionally, the court directed that Defendant is “not to be on or about the premises of any place where [V.C.] might be.”
    On 17 October 2005, Defendant's probation officer filed violation reports charging Defendant with violating the condition that he not “assault, communicate with, or be in the presence” of V.C., alleging that Defendant contacted V.C. as she was walking to her residence on 15 October 2005 . A hearing concerning the possible revocation of Defendant's probation was held on 24 March 2006, where V.C. testified that, on 15 October 2005, she was walking on a sidewalk “when all of sudden” Defendant appeared. Frightened because she had previously been stalked and beaten by Defendant following their prior romantic relationship and cohabitation, V.C. tried to evade Defendant. According to V.C., Defendant spoke to her and said, “[V], [V], please talk to me. I love you. . . . I just want to tell you [my daughter's] getting married.” V.C. stated that Defendant would stand in her path, regardless of which direction she moved. A man and woman came to her assistance and asked Defendant to leave her alone; V.C. thensprayed Defendant with pepper spray and moved across the street with the assistance of the man and woman . When the man threatened to call the police, Defendant fled.
    Defendant testified that he was walking to the post office on 15 October 2005 , when he unexpectedly encountered V.C. He claimed that he immediately stopped to let her walk by, and that V.C. was ten to fifteen feet away from him when she directed him to stay away from her. According to Defendant, V.C. also asked some passing tourists to call the police. He told the tourists there was no reason to call the police because he was just walking to the post office, and V.C. then sprayed him with pepper spray.
    The trial court found V.C.'s version of the encounter more credible and concluded that Defendant willfully and without lawful excuse committed the violation alleged in the violation reports. At the conclusion of the hearing, the trial court entered judgment revoking Defendant's probation and activating his two consecutive sentences of ten to twelve months' imprisonment.
    Defendant now appeals, contending that the trial court failed to make necessary findings of fact as to (I) the willfulness of his probation violations, and (II) the exact prohibited conduct committed by Defendant. Because the trial court's findings support both a conclusion of willfulness and that Defendant's conduct violated the special conditions of his probation, we address both arguments together and affirm.
     A judge may activate a suspended sentence if “the evidence be such as to reasonably satisfy the judge in the exercise of hissound discretion that the defendant has willfully violated a valid condition 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 a defendant's violation is sufficient to support a finding of willfulness or lack of lawful excuse, unless the defendant can successfully carry his burden of showing that he in fact had a lawful excuse or did not act willfully. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985).
    Nevertheless, the trial judge, as the fact finder, is not required to accept a defendant's testimony or evidence as true. State v. Young, 21 N.C. App. 316, 321, 204 S.E.2d 185, 188 (1974). Moreover, evidence that 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). Because such a decision is addressed to the discretion of a trial judge, it will not be disturbed unless it is shown that the ruling “could not have been the result of a reasoned decision.” State v. Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985).
    In the instant case, the trial court found that Defendant did commit the violation alleged in the probation report, namely, that he willfully communicated with and was in the presence of V.C. This finding is supported by V.C.'s testimony that Defendant approached her, blocked her path, and spoke to her, which the judge found more credible. Furthermore, Defendant had stalked and beaten V.C. in the past. In light of this evidence, we find no abuse ofdiscretion or lack of reason in the trial court's conclusion that Defendant's encounter with V.C. was more than a chance or inadvertent occurrence and that his actions on 15 October 2005 were a violation of the conditions of his probation.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
     State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985).
Footnote: 2
     Because this case involves a domestic violence protection order, we use initials here to protect the identity of the individual under protection.

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