Opinion
No. 07-464.
Filed March 4, 2008.
Jackson County Nos. 06CRS3075-76.
Appeal by Defendant from judgments dated 13 November 2006 by Judge C. Phillip Ginn in Superior Court, Jackson County. Heard in the Court of Appeals 26 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State. Jarvis John Edgerton, IV for Defendant-Appellant.
Michael Dale Caldwell (Defendant) was convicted of two counts of sexual activity by a substitute parent in cases 99 CRS 211 and 99 CRS 214 on 18 January 2000. The trial court sentenced Defendant to two consecutive terms of twenty to twenty-five months in prison, but suspended the sentences and placed Defendant on supervised probation for a period of sixty months, to begin at the expiration of his active sentences in two other cases, case 99 CRS 212 and case 99 CRS 216.
Defendant's probation officer, Karen Martin (Ms. Martin), filed two violation reports dated 27 October 2006. Ms. Martin alleged that Defendant willfully violated the following conditions of his probation: 1. Sex Offender Special Condition Number
ACCORDING TO A [STATEMENT] OBTAIN[ED] FROM THE VICTIM [S.N.M.] . . . DEF[ENDANT] WAS AT THE SKATE WAY PARK IN FRANKLIN. . . . DEF[ENDANT] MADE CONTACT WITH HER. THIS BUSINESS IS A PLACE FREQUENTED BY CHILDREN UNDER THE AGE OF 18.
2. Special Condition of Probation "[n]ot assault, communicate with, or be in the presence of . . ." in that . . . DEFENDANT MADE CONTACT WITH HIS VICTIM [S.N.M.] AT THE SKATEWAY PARK, IN FRANKLIN. . . . DEF[ENDANT] MADE CONTACT BY SPEAKING TO [S.N.M.]
Following a hearing, the trial court adopted paragraphs one and two of the violation reports as its findings of fact and further found that Defendant had willfully violated the conditions of his probation. The trial court entered judgments revoking Defendant's probation and sentenced Defendant to two consecutive terms of twenty to twenty-five months in prison. Defendant appeals.
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 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).
Defendant argues the State failed to tender sufficient evidence to support the revocation of Defendant's probation. Specifically, Defendant argues the State "did not provide a basis for the Hearing Court to determine the conditions of probation" because the State did not produce copies of the original judgments suspending Defendant's sentences. Defendant also argues the State "did not provide a basis to determine which conditions were allegedly violated" and "did not provide a basis to determine [Defendant] willfully violated a valid condition of probation."
In State v. Langley, 3 N.C. App. 189, 164 S.E.2d 529 (1968), the State alleged that the defendant had violated the conditions of his probation and the trial court found that the defendant had willfully violated the terms of his "suspended sentence." Id. at 190, 164 S.E.2d at 530. However, "[t]here [was] no finding by the judge as to what were the terms of `[the defendant's] suspended sentence' or probationary sentence or whether one was still in effect. There [was] no finding in what manner the defendant may have violated the conditions imposed." Id. at 192, 164 S.E.2d at 531. Our Court held as follows:
When the judge holding the revocation hearing has the probation judgment before him, it is not necessary to formally introduce it into evidence. However, some reference to the judgment and the specific terms thereof that the defendant is alleged to have violated should appear in the record of the hearing.
Id. Therefore, our Court vacated the order revoking the defendant's probation and remanded the case "for further hearing for the judge, in the exercise of his discretion, to determine and set out in his order whether the defendant ha[d] violated the terms of the probation judgment, and if so, what specific condition or conditions therein he ha[d] violated." Id. at 193, 164 S.E.2d at 532.
In the present case, there is no indication that the trial court had the probation judgments before him at the revocation hearing. However, unlike in Langley, the trial court in the present case did make findings as to a condition of probation that Defendant had violated and the manner in which Defendant had violated that condition. Cf. id. at 192, 164 S.E.2d at 531. In the judgment suspending Defendant's sentence in case 99 CRS 211, attached as an appendix to Defendant's brief, the trial court ordered that "[D]efendant is to have no contact with the prosecuting witness or family unless authorized by the probation officer." This condition of probation is reflected in paragraphs one and two of the probation violation reports, which were adopted as the trial court's findings of fact. Specifically, the reports alleged, and the trial court found, that Defendant made contact with the victim, S.N.M., in violation of a condition of his probation.
Moreover, there was evidence to support the trial court's finding that Defendant made contact with [S.N.M.]. S.N.M. testified that while she was working at Skateway in Franklin on 15 October 2006, serving drinks and food, Defendant and another man came in and sat down in the first booth. S.N.M. testified that the man "[o]rdered drinks and then would change his mind, just more or less harassing me." After the man got a drink, he went back to where Defendant was sitting and the two remained there. S.N.M. testified that Defendant looked her "up and down and smil[ed] and [gave] [her] a grin." S.N.M. testified that she became scared and locked herself in the employee area. When S.N.M. came out, Defendant and the man were gone.
Sandra Gravit (Ms. Gravit) testified that she was S.N.M.'s mother and that when S.N.M. returned home on 15 October 2006, S.N.M. was shaking and would not eat. S.N.M. told Ms. Gravit that Defendant and another man had come in to Skateway and ordered drinks and stuff and tried to intimidate [S.N.M.] and just harass her, ordering drinks and
saying they didn't want them, that kind of stuff. Then after that, [Defendant] just kept looking [S.N.M.] up and down sitting across from her, and she said she went into the employee room, locked herself in, and at that time she didn't come out until she felt like [Defendant] was probably gone at that time.
We hold that the evidence supported the finding that Defendant violated the condition of his probation that prohibited him from making contact with S.N.M. The violation of this one condition of probation was sufficient to support the revocation of Defendant's probation. See Seay, 59 N.C. App. at 670-71, 298 S.E.2d at 55. Accordingly, we affirm the judgments revoking Defendant's probation.
Affirmed.
Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).