Opinion
NO. COA10-1528
09-06-2011
STATE OF NORTH CAROLINA v. LOVITA R. BOUKNIGHT
Attorney General Roy Cooper, by Assistant Attorney General Karissa J. Davan, for the State. Marie H. Mobley, for the Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Durham County
No. 09 CRS 42966
Appeal by defendant from judgment entered 15 June 2010 by Judge Orlando F. Hudson in Durham County Superior Court. Heard in the Court of Appeals 16 August 2011.
Attorney General Roy Cooper, by Assistant Attorney General Karissa J. Davan, for the State.
Marie H. Mobley, for the Defendant.
ERVIN, Judge.
Defendant Lovita R. Bouknight appeals from a judgment revoking her probation and activating her suspended sentence. On appeal, Defendant argues that the conditions of probation that she allegedly violated were invalid since there was no evidence that she had been directed to comply with them and that the record did not contain sufficient evidence to support a finding that she had violated the relevant terms and conditions of probation. After careful consideration of Defendant's challenges to the trial court's judgment in light of the record and the applicable law, we conclude that Defendant's arguments lack merit and that the trial court's judgment should be affirmed.
I. Factual Background
On 6 October 2009, Defendant entered pleas of guilty to three counts of identity theft, two counts of forgery of an endorsement, three counts of obtaining property by false pretenses, and one count of uttering an instrument bearing a forged endorsement. Based upon Defendant's pleas, Judge Allen Baddour consolidated Defendant's convictions for judgment and sentenced Defendant to a minimum term of fifteen months and a maximum term of eighteen months imprisonment in the custody of the North Carolina Department of Correction. Judge Baddour suspended Defendant's active sentence and placed her on supervised probation for a period of thirty-six months subject to a number of terms and conditions, including requirements that she pay attorney's fees, restitution, and the costs in a total amount of $2,540.50; be imprisoned for one day in the Durham County jail; not go on or about the premises of Raleigh-Durham Checkcashers; comply with the usual terms and conditions of probation; submit to warrantless searches for stolen goods, controlled substances, contraband, and child pornography; not use or possess controlled substances; provide a breath, blood, or urine sample for drug testing purposes; and provide a DNA sample.
On 24 November 2009, Defendant's probation officer, Rashawn Urquhart, signed a probation violation report alleging that Defendant had violated the terms and conditions of her probation in the following respects:
1. Regular Condition of Probation[.] "Report as directed by the Court or the probation officer to the officer at reasonable times and places" in that . . . the defendant failed to report to court intake processing on 10/07/09.Although an order for Defendant's arrest in connection with this violation report was issued on 4 December 2009, it was not served until 13 May 2010, when Defendant was stopped and charged with no operator's license, possession of drug paraphernalia, and providing fictitious information to a law enforcement officer.
2. Monetary Condition of Probation[.] "The defendant shall pay to the Clerk of Superior Court the 'Total Amount Due' as directed by the Court or the probation officer" in that the defendant is in arrears 71.00 towards her court indebtedness.
3. Regular Condition of Probation[.] "Remain within the jurisdiction of the Court unless granted written permission to leave by the Court or the probation officer" in that on or about 11/02/09 the defendant left her place of residence at 31 Willow Bridge Avenue Durham, [N.C.,] failed to make her whereabouts known to her probation officer and has not been located in the court's jurisdiction by any reasonable efforts, thus absconding.
A probation revocation hearing was conducted before the trial court on 15 June 2010. At that hearing, Ms. Urquhart testified that she was initially assigned to be Defendant's probation officer on 23 October 2007, when Defendant was convicted of unrelated offenses. Defendant subsequently absconded from the supervision associated with that probationary judgment. On 7 October 2009, Ms. Urquhart was assigned to supervise Defendant in connection with the probationary sentence imposed upon her on the prior day.
After Defendant failed to report for intake on 6 or 7 October 2009, Ms. Urquhart used information available from her files in an attempt to locate Defendant. First, Ms. Urquhart went to an address located on Roxboro Road in Durham that she found in Defendant's file which Ms. Urquhart ultimately determined was "not a valid address." Secondly, Ms. Urquhart had a telephone conversation with a man who identified himself as Defendant's boyfriend and obtained an address on Willow Bridge Avenue in Durham. At the time that Ms. Urquhart went to that location, the man who answered the door said that Defendant had never resided there. Subsequently, Defendant's boyfriend admitted that he had lied to Ms. Urquhart and explained that he and Defendant were homeless. Finally, Ms. Urquhart left phone messages with Defendant's sister and boyfriend directing Defendant to report to the probation office. Although Defendant's boyfriend assured Ms. Urquhart that Defendant "didn't want to go [to] jail" and would "show up for probation," Defendant neither contacted Ms. Urquhart nor reported to the probation office between 7 October 2009, when Ms. Urquhart was assigned responsibility for supervising Defendant, and 13 May 2010, when Defendant was arrested for various traffic-related violations and taken into custody. In fact, Ms. Urquhart had never met Defendant prior to the revocation hearing. Moreover, Defendant had not made any payments associated with her probation-related indebtedness.
On the other hand, Defendant testified that, while she had previously lived on Roxboro Road, she moved from that location following her mother's death. Defendant had lived on Willow Bridge Avenue and "still [had] mail that goes there." Walter Rhinehart, the owner of the Willow Bridge Avenue property, was the complaining witness in the cases which led to the imposition of the probationary sentence imposed upon Defendant on 6 October 2009. Although Defendant initially claimed that she had gone to the probation department to "fill out the paperwork" during the week following her plea, she admitted on cross-examination that, during the seven months she was on probation, she had never reported to the probation office in person. In addition, Defendant testified that she had tried to reach Ms. Urquhart many times and had left more than ten messages with Ms. Urquhart's secretary, but that Ms. Urquhart had never returned her calls. Defendant had not made any payments toward her probation-related monetary obligations because she believed that she was not required to make any such payments until she had met with Ms. Urquhart and worked out a specific payment plan. On cross-examination, Defendant admitted that she had been told by her attorney that she would owe money following the imposition of her probationary sentence. Finally, Defendant acknowledged that she had been on probation before and had previously been cited for absconding supervision.
After the presentation of the parties' evidence and the arguments of counsel, the trial court found that Defendant had willfully violated the terms of her probation and that her testimony was not credible. More particularly, the trial court stated that:
[COURT]: Well, you know, I give people a break. All you've got to do is just tell me the truth, be truthful with me, have clean hands, and I'll give you a break.As a result, the trial court entered a judgment revoking Defendant's probation and activating her suspended sentence. Defendant noted an appeal to this Court from the trial court's judgment.
But that's not what . . . she's done. She can't blame the probation officer because she's homeless. She didn't report.
She didn't make any of those phone calls that. . . don't exist on the machine. She didn't make those calls. She never tried to be involved on her probation, and she's not entitled to a break because of that. So play it straight.
II. Legal Analysis
A. Standard of Review
"It is the general rule that when judgment is suspended in a criminal action upon good behavior or other conditions, the proceedings to ascertain whether or not the conditions have been violated are addressed to the sound discretion of the judge[.] . . . The findings of the judge, if supported by competent evidence, and his judgment based thereon are not reviewable on appeal, unless there is a manifest abuse of discretion." State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960) (citations omitted). "A probation revocation hearing 'is not governed by the rules of a criminal trial[,]' and therefore 'a jury is not required . . . nor must the proof of violation be beyond a reasonable doubt.' . . . 'The 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.'" State v. Belcher, 173 N.C. App. 620, 624, 619 S.E.2d 567, 570 (2005) (quoting State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725, disc. review denied, 301 N.C. 99, 273 S.E.2d 304 (1980)). Thus, the ultimate issues raised for our consideration by Defendant's appeal from the trial court's judgment are the extent, if any, to which the trial court's determination that Defendant violated a valid term or condition of probation has adequate evidentiary support and, if so, whether the trial court abused its discretion by determining that Defendant's probation should be revoked.
B. Alleged Violations of Probation
1. Reporting Requirement
a. Validity
On appeal, Defendant challenges the validity of the trial court's conclusion that Defendant violated the terms and conditions of her probation by failing to report to the probation office. In essence, Defendant argues that the conditions of probation that Defendant allegedly violated were invalid because they "were not actually ordered as conditions to her probation." We disagree.
According to N.C. Gen. Stat. § 15A-1343(b)(3), "a defendant must . . . [r]eport as directed by the court or his probation officer to the officer at reasonable times and places and in a reasonable manner, permit the officer to visit him at reasonable times, answer all reasonable inquiries by the officer and obtain prior approval from the officer for, and notify the officer of, any change in address or employment" as a "regular condition[] of probation." Although the necessity for compliance with this condition of probation is clearly enunciated in the probationary judgment that Judge Baddour entered on 7 October 2009, (R28) Defendant argues that the record fails to establish that she was properly informed of her obligation to report to the probation office. In support of this contention, Defendant notes that N.C. Gen. Stat. § 15A-1343(c) provides that "[a] defendant released on supervised probation must be given a written statement explicitly setting forth the conditions on which he is being released" and that, "[i]f any modification of the terms of that probation is subsequently made, he must be given a written statement setting forth the modifications." Based upon this statutory language, Defendant argues that "the record is devoid of evidence that the court or the probation officer told [Defendant] to report" for processing at the probation office. In other words, Defendant appears to argue that, in the absence of a written notation on the judgment form directing her to "report on this day to the probation office," the record failed to establish that she had been informed of this reporting requirement. This argument lacks merit.
At Defendant's revocation hearing, Ms. Urquhart testified that she repeatedly attempted to locate Defendant by visiting two different addresses she had discovered or been given and by leaving messages with Defendant's sister and boyfriend directing Defendant to report to the probation office. Even so, Defendant never contacted Ms. Urquhart or reported to Ms. Urquhart's office during the seven months that Defendant was on probation. Based upon this evidence, we conclude that, even in the absence of any testimony by Defendant, Ms. Urquhart's testimony adequately supports a conclusion that Defendant was properly informed of the requirement that she report to the probation office.
In addition, Defendant's own testimony establishes that Defendant was aware that she was subject to a reporting requirement. At the revocation hearing, Defendant never claimed that she did not know she was required to report to the probation office; instead, Defendant testified that she had attempted to comply with this reporting requirement. In her testimony, Defendant admitted that she did not report to the probation office on the date that she entered her pleas of guilty and that she never went to the probation office to meet with Ms. Urquhart at any time after that date. In addition, Defendant admitted that she had previously been on probation and that she knew that, if she failed report to her probation officer, a warrant would be issued for her arrest. Finally, Defendant did not deny that Ms. Urquhart had left messages for her, claim that she had not received Ms. Urquhart's messages, or assert that the individuals with whom Ms. Urquhart left these messages were not her sister and boyfriend. On the contrary, Defendant testified that, after being placed on probation, she made repeated calls to Ms. Urquhart and that Ms. Urquhart never responded to the numerous messages that Defendant left for her. The trial court, however, explicitly found that Defendant's testimony concerning her efforts to contact the probation office was not credible. Thus, we conclude that Defendant's testimony amply demonstrates that she was aware of her obligation to report to the probation office. In view of the fact that lack of adequate notice is the only basis upon which Defendant challenges the validity of this condition of probation on appeal, we further conclude that the requirement that Defendant report to the probation office was a valid condition of probation.
b. Violation of Reporting Condition
Secondly, Defendant contends that the record contains no evidence tending to show that she failed to comply with the reporting requirement imposed upon her in Judge Baddour's probationary judgment. In advancing this argument, Defendant relies primarily on her claim that the record contains "no evidence that [Defendant] was actually directed by the Court or the probation officer to report for intake processing on 7 October 2009" and that, "[w]ithout evidence that she was directed to report, the court was without sufficient evidence to find that [Defendant] violated probation[.]" However, as we have previously concluded, the record contains ample evidence tending to show that Defendant was aware of the existence of this reporting requirement. In addition, Defendant asserts that, although she did not report to the probation office on 7 October 2009, she "did report to intake approximately a week later." A careful examination of the record reveals, however, that, while Defendant initially testified that she had reported to the probation office, she conceded on cross-examination that she had not actually done so. In addition, Ms. Urquhart testified that she had never met with Defendant at the probation office and had never heard from Defendant during the time that Defendant was subject to her supervision. The conflict between the testimony of Defendant and that of Ms. Urquhart concerning the extent to which Defendant actually reported to the probation office amounted to nothing more than a credibility issue which the trial court, and not this Court, has the responsibility for resolving:
Although the violation report specifies that Defendant failed to report for processing on 7 October 2009, the evidence adduced at the hearing showed that Defendant, who admitted that she did not report when she was first placed on probation, also failed to report at any time during the ensuing seven months and had not reported as of the date upon which she was arrested and charged with various traffic-related violations and served with the order for her arrest relating to the violation notice.
A trial judge "passes upon the credibility of the witnesses and the weight to be given their testimony and the reasonable inferences to be drawn therefrom." . . . "It is clear beyond the need for multiple citation that the trial judge, sitting without a jury, has discretion as finder of fact with respect to the weight and credibility that attaches to the evidence." . . . "[I]t is not for an appellate court to determine de novo the weight and credibility to be given to evidence disclosed by the record on appeal."Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) (quoting Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968), Smithwick v. Frame, 62 N.C. App. 387, 392, 303 S.E.2d 217, 221 (1983), and Coble v. Coble, 300 N.C. 708, 712-13, 268 S.E.2d 185, 189 (1980). As a result, the record establishes that, while "Defendant's evidence clearly conflicts with [her probation officer's] testimony," "[t]his does no[thing] more, however, than raise an issue of credibility, which in this proceeding is a question for the trial court to decide," State v. Darrow, 83 N.C. App. 647, 649, 351 S.E.2d 138, 140 (1986) (citing State v. Booker, 309 N.C. 446, 450, 306 S.E. 2d 771, 774 (1983)), and which the trial court resolved against Defendant. Thus, we conclude that the record contains more than sufficient evidence to support the trial court's finding that Defendant violated the probationary condition requiring her to report to her probation officer.
2. Other Conditions of Probation
"It is well established that '[t]he breach of any single valid condition upon which sentence was suspended will support an order activating the sentence.'" State v. Byrd, 23 N.C. App. 63, 66, 208 S.E.2d 216, 218 (1974) (quoting State v. Braswell, 283 N.C. 332, 337, 196 S.E. 2d 185, 188 (1973)). A careful examination of Defendant's brief shows that Defendant has not contended before this Court that the trial court abused its discretion by concluding that her probation should be revoked for willfully failing to report to the probation office on any basis other than the alleged absence of record support for such a determination, and we believe that any such contention would have lacked merit had it been advanced. Thus, having upheld the trial court's decision to revoke Defendant's probation and to activate Defendant's sentence for failing to report to the probation officer, we need not address the remainder of Defendant's challenges to the trial court's judgment.
C. Correction of Clerical Error
In her brief, Defendant notes the existence of a discrepancy between the entries on the trial court's judgment revoking her probation and activating her suspended sentence and the transcript. More particularly, although the transcript clearly reflects that Defendant denied having willfully violated the terms and conditions of Judge Baddour's probationary judgment and insisted upon a hearing concerning the merits of the allegations set out in the violation notice, the trial court's judgment indicates that Defendant "waived a violation hearing and admitted that [she] violated each of the conditions of [her] probation[.]" "When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record 'speak the truth.'" State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (quoting State v. Linemann, 135 N.C. App. 734, 738, 522 S.E.2d 781, 784 (1999)); see also State v. Taylor, 156 N.C. App. 172, 177, 576 S.E.2d 114, 117-18 (2003) (defining a clerical error as "'an error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination'") (quoting State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000)). As a result, we conclude that this case should be remanded to the Durham County Superior Court for the limited purpose of correcting the clerical error contained in the trial court's judgment in order that the record correctly reflects that Defendant did not admit having willfully violated the terms and conditions of Judge Baddour's probationary judgment.
III. Conclusion
Thus, for the reasons set forth above, we conclude that the trial court did not commit any prejudicial error in the proceedings leading to the revocation of Defendant's probation and the activation of her suspended sentence. As a result, the trial court's judgment should be, and hereby is, affirmed, with the limited exception that this case should be, and hereby is, remanded to the Durham County Superior Court for the correction of the clerical error noted above.
AFFIRMED; REMANDED FOR CORRECTION OF CLERICAL ERROR.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).