Opinion
No. 07-500.
Filed 2 October 2007.
Cumberland County No. 03-CRS-50348.
Appeal by defendant from judgment entered 12 February 2007 by Judge James Floyd Ammons, Jr., in Cumberland County Superior Court. Heard in the Court of Appeals 24 September 2007.
Attorney General Roy Cooper, by Assistant Attorney General Letitia C. Echols, for the State. Daniel F. Read for defendant-appellant.
On 6 October 2003, Paul Riley Grace (defendant) pled guilty to taking indecent liberties with a child. The trial court sentenced defendant to sixteen to twenty months imprisonment, suspended the sentence and placed defendant on thirty-six months supervised probation. As conditions of his probation, defendant was ordered to register as a sex offender and abide by the sex offender program. Defendant was also ordered to serve an active term of thirty days in the custody of the Cumberland County Sheriff.
In December of 2004, defendant's probation officer filed a probation violation report alleging that defendant violated the sex offender special conditions of his probation by residing in a household with a minor and socializing or communicating with individuals under the age of eighteen without being accompanied by a responsible adult. Based upon a finding that defendant violated his probation, the trial court modified defendant's probation on 14 February 2005 and ordered defendant to serve forty-three days in the Cumberland County Jail with credit for time served. Defendant's probation officer filed another violation report in June of 2006. The report alleged that defendant violated both regular conditions and sex offender special conditions of his probation. The trial court found defendant had violated the terms of his probation and entered an order which extended defendant's original term of probation by six months.
In January of 2007, defendant's probation officer filed a third violation report. The report alleged in paragraph one that defendant had violated the sex offender special condition number ten by lingering or spending time at locations where persons under eighteen years of age are likely to be present "in that the offender on several occasions did enter the First Baptist Childcare Center[;]" and sex offender special condition number eleven by working or volunteering for any business or organization that provides services to or employs persons under eighteen years of age "in that the offender indicated that he would be going on the First Baptist Church annual Youth Ski Trip that is to be held in January 2007."
Judge James F. Ammons, Jr., held a probation violation hearing on 12 February 2007. Defendant, through counsel, denied the violations and the willfulness. Defendant's probation officer testified that she received information that defendant had volunteered to go on a youth ski trip and that defendant was found in the child care area of the church. The director of the church child care center testified that defendant had been "instructed not to be in the church during the weekday when children are present for the — day care center[;]" that on 30 November 2006 she saw defendant enter the building during the weekday; that signs for the church child care are posted on the two entrances; and that she wrote a letter in December of 2006 to defendant's probation officer "about [defendant's] presence in the building." Lieutenant Jessie Devane, a member of the First Baptist Church for thirty-five years, testified that he was present at a Youth League team luncheon in November of 2006; that parents and youth were present at the luncheon in which they planned a youth ski trip; that defendant was present and indicated he wanted to attend the ski trip; that defendant was told to pick up the poinsettias for the youth ski trip fund raiser outside the church building; and that he subsequently contacted defendant's probation officer.
Defendant testified that he heard a ski trip was being planned and that he was later informed there would be youth on the trip, so he "no longer pursued it." Defendant further testified that he came to the church office to drop off money for the poinsettias fund raiser. On cross-examination defendant testified that he attended a luncheon in which the ski trip was discussed, but no youths were in attendance. Defendant also testified that he went to the church twice during the day, but never saw a child care center sign.
The trial court entered Judgment and Commitment Upon Revocation of Probation and found that "by the evidence presented, the Court is reasonably satisfied in its discretion that the defendant violated each of the conditions of the defendant's probation as set forth" "in paragraph(s) 1 in the Violation Report or Notice dated 01/03/2007" and "the defendant violated each condition willfully and without valid excuse[.]" Accordingly, the trial court activated defendant's original sentence. Defendant appeals.
The sole issue before this Court is whether the trial court erred in revoking defendant's probation and activating his suspended sentence. It is well settled that "`probation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime.'" State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (quoting State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967)). In order to revoke a defendant's probation, the evidence need only "reasonably satisfy the [trial court] in the exercise of [its] sound 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). The breach of any one condition of probation is sufficient grounds to revoke a defendant's probation. State v. Seay, 59 N.C. App. 667, 670-71, 298 S.E.2d 53, 55 (1982), disc. review denied, 307 N.C. 701, 301 S.E.2d 394 (1983). A verified probation violation report is competent evidence that a violation occurred. State v. Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 58 (1967). A defendant has the burden of presenting competent evidence demonstrating an inability to comply with the terms of probation. State v. Tozzi, 84 N.C. App. 517, 521, 353 S.E.2d 250, 253 (1987). "[E]vidence of [a] defendant's failure to comply may justify a finding that [a] defendant's failure to comply was wilful or without lawful excuse." Id. A trial court's judgment revoking a defendant's probation will only be disturbed upon a showing of a manifest abuse of discretion. State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).
We conclude the State presented sufficient evidence to show that defendant willfully violated the conditions of his probation without lawful excuse. Here, it was alleged that defendant violated his probation by entering the church childcare center and by volunteering for the youth ski trip. Testimony at the hearing reflects that defendant attended a Youth League team luncheon, in which youth were present and entered the church's childcare center. Defendant admits attending the luncheon and entering the church during child care center hours on two occasions. Defendant has the burden of showing lawful excuse or lack of willfulness; otherwise, evidence of failure to comply is sufficient to support a finding that the violation was willful or without lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). We hold that there is evidence in the record to support the trial court's findings that defendant willfully and without lawful excuse violated the conditions of his probation. We further hold that it was within the trial court's discretion to revoke defendant's probation and activate his sentence. See Seay, 59 N.C. App. at 670-71, 298 S.E.2d at 55 (breach of any one condition is sufficient grounds to revoke probation). Accordingly, the trial court's judgments revoking defendant's sentences are affirmed.
Affirmed.
Judges WYNN and ELMORE concur.
Report per Rule 30(e).