Opinion
No. COA03-937
Filed May 4, 2004 This case not for publication
Appeal by defendant from judgments entered 12 November 2002 by Judge W. Douglas Albright in Craven County Superior Court. Heard in the Court of Appeals 19 April 2004.
Attorney General Roy Cooper, by Assistant Attorney General Mary S. Mercer, for the State. William D. Spence for defendant appellant.
Craven County Nos. 02 CRS 51051, 51052.
Defendant Keith Andrew Hawk pled guilty to two counts of indecent liberties with a child. The trial court found one aggravating factor and one mitigating factor and determined the aggravating factor outweighed the mitigating factor. The trial court sentenced defendant to twenty to twenty-four months on each count. However, the sentences were suspended, and defendant was placed on supervised probation for three years. As a condition of his probation, defendant was ordered to be on electronic house arrest for the first six months, pay costs and fines totaling $1,170, remain current with child support, and comply with all sex offenders conditions, including completion of any treatment recommended. Defendant's probation officer subsequently filed a probation violation report with the trial court alleging defendant violated his probation by failing to make required monetary payments; by failing to remain current with his child support; by failing to comply with the condition that he be assigned to electronic house arrest because he did not pay his electric bill; and by violating the special conditions of probation for sex offenders on the grounds that defendant was found to be unacceptable for treatment.
Judge Douglas Albright held a hearing at the 12 November 2002 Criminal Session in Craven County. At the beginning of the hearing, defendant through his counsel, admitted he was not current with his child support in violation of his probation, but that it was not willful. Defendant denied the other violations. Defendant's probation officer informed the court that defendant had a balance of $10 on his monetary condition; that defendant let his power lapse for three hours on 3 September 2002; that defendant was $1,900 behind on his child support; and that Neuse Center, New Bern Family Services found defendant was unacceptable for treatment. The staff psychologist at the Neuse Center testified that defendant "refused to take any accountability for committing sexual offenses against his children" and, therefore, "would not be considered eligible for the outpatient treatment program[.]"
Defendant testified that, while he pled guilty to the sex offenses, he admitted only to masturbating in front of his children. He further testified that he was "willing to accept the treatment plan as long as it respected what I was actually guiltyof[.]" Defendant testified that he does tree removal and trimming work. He also testified that he got behind in child support payments when he was in jail from February to July 2002, and that he paid $330 on his child support from the time he got out of jail on 24 July 2002 until he went back to jail on 10 October 2002. Defendant admitted on cross-examination that he did not make a child support payment for September or October.
After hearing all the evidence and arguments from counsel, the trial court found defendant willfully and without lawful excuse violated the terms and conditions of his probation. In its judgment and commitment upon revocation of probation entered 11 November 2002, the trial court 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" and "the defendant violated each condition willfully and without valid excuse[.]" The court also found that each violation was a sufficient basis upon which to revoke defendant's probation. Accordingly, the trial court activated defendant's original sentence. Defendant appeals.
Defendant contends the trial court erred in revoking his probation. Defendant argues that there was insufficient evidence that he violated any of the terms or conditions of his probation. He also argues that the trial court made insufficient findings of fact as to each condition which it deemed violated.
Any violation of a valid condition of probation is sufficient to revoke defendant's probation. State v. Tozzi, 84 N.C. App. 517,521, 353 S.E.2d 250, 253 (1987). To revoke probation "[a]ll that is required . . . is that the evidence be such as to reasonably satisfy the judge in the exercise of his 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 defendant bears the burden of presenting competent evidence of his inability to comply with a probation condition, and if he fails to meet his burden, evidence of his failure to comply may justify a finding that the failure to comply was willful or without lawful excuse. Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. "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).
Here, defendant admitted that he did not remain current with child support in violation of his probation, but denied that it was willful. At the probation hearing, defendant's probation officer testified that defendant was $1,900 behind on his child support. Defendant subsequently testified that he had paid $330 on his child support from 24 July 2002 until 10 October 2002. Defendant, however acknowledged that he did not make a payment in September or October. This evidence is sufficient to support the trial court's finding that defendant violated this condition of his probation. State v. Morton, 252 N.C. 482, 114 S.E.2d 115 (1960) (stating therewas competent evidence to support revocation of defendant's probation where defendant failed to make weekly support payments for his family). Further, this finding of fact is sufficiently definite to support the order revoking defendant's probation. Because we conclude that the trial court properly revoked defendant's probation on the ground that he failed to remain current with his child support, we need not address whether the trial court erred in revoking defendant's probation on the remaining three violations. See Tozzi, 84 N.C. App. at 521, 353 S.E.2d at 253. Accordingly, we hold that the trial court did not abuse its discretion and defendant's assignment of error is without merit. The decision of the trial court is
Affirmed.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).