Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-300

NORTH CAROLINA COURT OF APPEALS

Filed: 4 September 2007

STATE OF NORTH CAROLINA

         v.                        Craven County
                                No. 05 CRS 5334
DELBERT LEE MIDGETTE
    

    Appeal by Defendant from judgment entered 18 September 2006 by Judge Kenneth F. Crow in Superior Court, Craven County. Heard in the Court of Appeals 27 August 2007.

    Attorney General Roy Cooper, by Associate Attorney General Melody R. Hairston, for the State.

    Russell J. Hollers III, for Defendant-appellant.

    
    WYNN, Judge.

     In a probation revocation hearing, “ [t]he evidence need [only] be such that reasonably satisfies the trial judge in the exercise of his sound discretion that the defendant has violated a valid condition on which the sentence was suspended.”   (See footnote 1)  Here, because the record shows sufficient evidence supporting the trial court's determination that Defendant willfully violated his probation, we affirm the trial court's order revoking Defendant's probation .
    Defendant Delbert Lee Midgette was convicted of selling and delivering cocaine in September 2004. The trial court sentencedhim to a suspended term of twelve to fifteen months imprisonment and placed him on supervised probation for twenty-four months with special terms to report to the Sheriff of Pamlico County to serve an active term of sixty days.
    On 8 August 2006, a probation violation report was filed alleging that Defendant had failed to comply with the terms of his probation by tampering with his house arrest electronic monitoring equipment and failing to pay court-ordered fees and restitution. Following a hearing, the trial court found that Defendant willfully violated his probation; thus, the trial court revoked his probation and activated the suspended sentence.
    Defendant appeals contending that the trial court erred by finding that he willfully violated conditions of his probation and in revoking his probation. We disagree.
    In an action to revoke probation, “the State must show that the defendant, without lawful excuse, willfully violated a condition of probation[.]” State v. Alston, 139 N.C. App. 787, 789-90, 534 S.E.2d 666, 668 (2000). If the State meets its burden, the defendant must then show an inability to comply with the conditions. Id. at 790, 534 S.E.2d at 66. Findings of fact and the judgment of the trial court will not be overturned absent an abuse of discretion. Id. Any violation of a probation condition is sufficient to revoke probation. State v. Tozzi, 84 N.C. App. 517, 353 S.E.2d 250 (1987).
    At the probation violation hearing the probation officer Jeffrey Hayes testified that Defendant was required to wear anankle bracelet with an electronic transmitter as a condition of electronic house arrest. On 8 August 2006, the probation officer received a telephone call from the electronic house arrest center that Defendant's equipment failed. The probation officer immediately called Defendant, who was at home. Defendant explained that the ankle bracelet had fallen off while he was in the shower. When the probation officer arrived at Defendant's home, he examined the ankle bracelet and noticed a plastic piece broken off the transmitter portion of the ankle bracelet. The probation officer indicated that he was not aware of an equipment failure in the same manner of Defendant's equipment failure and in his opinion it would take “some degree of force” to pry the plastic piece off in that manner. Based on his examination of the transmitter, the probation officer arrested Defendant for probation violation.
    However, Defendant disputes that he removed the ankle bracelet from his leg and claims that he did not tamper with the bracelet. Defendant asserts that he was taking a shower when the ankle bracelet fell off of his leg. But, Defendant admits that he was behind in his payments for his court-ordered fees and restitution. Defendant explained that he was unable to work because of a medical condition. Also, Defendant contends he could no longer work as a crab potter, and he was awaiting a decision from the Social Security Administration on whether he qualified for disability benefits. However, on cross-examination Defendant admitted that his attorney told him not to work, “because if I would I'd be violated when I applied for disability.”     Although Defendant presented conflicting evidence by testifying that he did not remove or tamper with the ankle bracelet, the trial judge as finder of fact is in a unique position to view the witnesses and weigh their credibility. See, e.g., Waters v. Humphrey, 33 N.C. App 185, 234 S.E.2d 462 (1977). The trial court specifically found the testimony of Defendant to be “incredible and nonbelievable” while he found the probation officer gave “credible testimony and believable testimony consistent with the physical evidence.” Accordingly, the trial court did not abuse its discretion in finding Defendant willfully violated the conditions of his probation.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).


Footnote: 1
     State v. Belcher, 173 N.C. App. 620, 624, 619 S.E.2d 567 , 570 (2005)(citation omitted).

*** Converted from WordPerfect ***