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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA07-573

NORTH CAROLINA COURT OF APPEALS

Filed: 4 December 2007

STATE OF NORTH CAROLINA

    v.                        Cumberland County
                            Nos. 05 CRS 63813
WILLIAM YATES                        05 CRS 69681
                                06 CRS 52796
                                06 CRS 59498-59500

    Appeal by defendant from judgments entered 16 January 2007 by Judge Thomas H. Lock in Cumberland County Superior Court. Heard in the Court of Appeals 30 November 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Ebony J. Pittman, for the State.

    Sofie W. Hosford, for defendant-appellant.

    TYSON, Judge.

    William Yates (“defendant”) appeals from judgments entered revoking his probation and activating his suspended sentences for three counts of felonious larceny pursuant to N.C. Gen. Stat. § 14- 72(A), two counts of conspiracy to commit felonious larceny pursuant to N.C. Gen. Stat. § 14-2.4(a), felony fleeing to elude arrest pursuant to N.C. Gen. Stat. § 20-141.5(b), breaking and entering pursuant to N.C. Gen. Stat. § 14-54(a), possession of stolen motor vehicles pursuant to N.C. Gen. Stat. § 20-106, and felonious possession of cocaine pursuant to N.C. Gen. Stat. § 90- 95(d)(2). We affirm.

I. Background

    On 13 September 2006, defendant pled guilty to three counts of felonious larceny, two counts of conspiracy to commit felonious larceny, felonious fleeing to elude arrest, felonious breaking and entering, possession of stolen motor vehicles, and felonious possession of cocaine. Pursuant to a plea agreement, defendant was sentenced to five consecutive sentences of six to eight months. Those sentences were suspended, defendant was placed on supervised probation for thirty-six months and he was ordered to pay restitution and probation fees. The terms of defendant's probation required him to: (1) submit to drug tests; (2) complete fifty hours of community service; (3) maintain regular office visits with his probation officer; (4) comply with a curfew; and (5) submit to a substance abuse evaluation.
    On 30 November 2006, defendant's probation officer filed five probation violation reports alleging numerous violations of several of the conditions of probation. The reports alleged defendant had violated his probation by: (1) testing positive for cocaine and marijuana on one occasion; (2) failing to complete any community service hours; (3) failing to report to scheduled visits with the probation officer on four occasions; (4) violating curfew on eleven occasions; (5) failing to pay monthly court indebtedness; (6) failing to pay probation supervision fees; (7) failing to obtain satisfactory employment; (8) failing to report for substance abuse evaluation; and (9) having several criminal charges pending against him as of the date of the reports.
    On 10 January 2007, defendant's probation officer filed five addenda to the reports, alleging defendant had willfully violated his probation when ammunition, firearms, and illegal drugs were discovered at his house during a search incident to defendant's arrest.
    At the probation revocation hearing on 16 January 2007, defendant moved to continue the hearing based upon inadequate time to prepare a response or defense on the allegations contained in the 10 January 2007 addenda to the probation violation reports. The trial court denied defendant's motion, but continued the hearing to later that day to allow defendant and his counsel time to confer on the addenda.
    Later that day at the hearing, defendant admitted he willfully violated the condition that he “[n]ot use, possess or control any illegal drug or controlled substance unless it has been prescribed for the defendant by a licensed physician and is in the original container with the prescription number affixed on it. . . .” This violation was listed as the first violation on all five of the probation violation reports. After hearing all the evidence, the trial court found defendant had willfully violated certain conditions of his probation and activated his suspended sentences. Defendant appeals.
II. Issues

    Defendant argues the trial court erred by: (1) not making the requisite findings of fact in revoking his probation and (2)abusing its discretion in denying his motion to continue the probation revocation hearing.
III. Revocation of Probation

    Defendant argues the trial court abused its discretion by failing to make specific findings of fact regarding which conditions of probation he had violated. Defendant contends the five reports were all dated 30 November 2006, each one listed different violations, and that this Court cannot undertake meaningful appellate review without more specific findings of fact by the trial court. Defendant argues he is entitled to a new probation revocation hearing. We disagree.
    A trial court retains the discretion to revoke probation upon evidence which is sufficient to satisfy the court that a defendant has willfully violated a condition of his probation. State v. Darrow, 83 N.C. App. 647, 648-49, 351 S.E.2d 138, 139 (1986). It is well established that a single willful violation is sufficient to support revocation of probation. State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973).
    Defendant bears the burden to present sufficient and competent evidence that he was unable to comply with the conditions of his probation, or that his violations were not willful. State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). Absent such evidence, failure to comply “may justify a finding that defendant's failure to comply was wilful or without lawful excuse.” Id. A trial court must make findings of fact showing it consideredthe evidence presented at the revocation hearing. State v. Belcher, 173 N.C. App. 620, 624-25, 619 S.E.2d 567, 570 (2005).
    Here, the five probation violation reports share six identical violations. In addition, four of the violations ultimately found by the trial court to support revocation are listed on each of the five reports. As far as identifying which violations were used to support revocation, the trial court referred to the “original violation report” at the hearing and referenced a report that alleged eight violations. Only one of the reports contained eight violations, providing a clear indication of the violations under review. Throughout the hearing the discussion centered on this “original violation report,” with defendant admitting or denying each of the eight allegations contained in that report.
    The trial court found as fact that it had reviewed the evidence presented at the hearing and it was “reasonably satisfied in its discretion that the defendant violated each of the conditions[]” numbered 1, 3, 4, 5, 6, and 8 of the violation report dated 30 November 2006. Paragraph numbered 1 stated defendant tested positive for cocaine and marijuana on 28 September 2006. This violated the condition that defendant “[n]ot use, possess or control any illegal drug or controlled substance unless it has been prescribed for the defendant by a licensed physician and is in the original container with the prescription number affixed on it. . . .” This violation was listed as the first violation on all five probation violation reports. At the hearing, defendant admitted that he had willfully violated this condition.    One violation is sufficient to support a trial court's decision to revoke probation and this violation was alleged on all of the reports. Braswell, 283 N.C. at 337, 196 S.E.2d at 188. We need not analyze any other violations used to support the revocation of defendant's probation. Defendant had notice that violation of this condition was alleged to revoke his probation and he admitted its violation was willful. The trial court did not abuse its discretion in revoking defendant's probation. This assignment of error is overruled.
IV. Motion to Continue

    Defendant contends the trial court abused its discretion by denying his motion to continue the revocation hearing. Defendant argues he and his attorney should have been allowed more time to respond to the allegations in the addenda which were filed only five days prior to the revocation hearing. We disagree.
A. Standard of Review

    A trial court may allow or deny a motion to continue in its sound discretion, and its decision will not be overturned absent a gross abuse of discretion. State v. Jones, 172 N.C. App. 308, 311- 12, 616 S.E.2d 15, 18 (2005). To show that the denial of a motion to continue was prejudicial, a defendant must show that he did not have adequate time to confer with his attorney and to prepare a defense, as well as show how his defense would have been better prepared if he had been given adequate time. Id. at 312, 616 S.E.2d at 18.
B. Analysis

    The addenda were issued 10 January 2007, and the hearing was scheduled to be held 16 January 2007. At the hearing, defense counsel stated he had not had time to confer with defendant regarding the additional allegations contained in the addenda. The trial court questioned the witnesses with regard to their availability and decided to continue the hearing until later that day to allow defendant and his attorney additional time to confer.
    Defendant has not shown the trial court abused its discretion in denying his motion to continue the hearing to a later date. Because at least one other originally alleged probation violation exists to support revocation of defendant's probation, any error in not allowing defendant additional time to prepare a response to the allegations listed in the addenda could not have prejudiced his defense or resulted in a different outcome. This assignment of error is overruled.
V. Conclusion

    Sufficient evidence was presented at the hearing to revoke defendant's probation. Defendant admitted he willfully violated a condition of his probation. The trial court did not abuse its discretion in denying defendant's motion to continue the revocation hearing. The trial court's judgments are affirmed.
    Affirmed.
    Judges GEER and STEPHENS concur.
    Report per Rule 30(e).

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