Defendant appeals from a judgment revoking his probation and activating his sentence. We affirm.
Defendant was arrested on 2 October 1996 and charged with taking indecent liberties with a minor in violation of N.C. Gen.Stat.
On 26 May 1999, defendant's probation officer, James Donoghue (Donoghue), was contacted by X's mother, who informed Donoghue that defendant had recently telephoned her and was on his way to her house. In response, Donoghue drove past the mother's home, where he observed defendant inside the house speaking with the mother. When Donoghue turned his car around, he saw defendant walking out of the mother's residence and placed him under arrest. Donoghue then went inside the house where he saw X.
Donoghue's probation violation report charged defendant with violating the condition of his probation, which mandated that he "[h]ave no contact with [X]." At the probation violation hearing, Donoghue testified for the State that he had instructed defendant on many occasions not to go to the house where X was living and not to have any contact by telephone or letter with X. On cross-examination, Donoghue testified that although he did not know if defendant had actually communicated with X on 26 May 1999, he determined that X had been inside her mother's residence when defendant was present. Defendant stipulated to Donoghue's recitation of the facts and did not present any evidence. After considering the evidence and arguments of the parties, the court found that defendant wilfully and without lawful excuse violated a condition of his probation and that the violation was a sufficient basis to revoke his probation. Accordingly, the court activated defendant's sentence. Defendant appeals.
Our Supreme Court has held that "[a] person convicted of [a] crime is not given a right to probation by the United States Constitution." State v. Hewett, 270 N.C. 348, 351, 154 S.E.2d 476, 478 (1967) (citations omitted). Rather, "[p]robation or suspension of sentence comes as an act of grace to one convicted of, or pleading guilty to, a crime." State v. Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967) (citing Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935)). An individual on probation is said to "carr[y] the keys to his freedom in his willingness to comply with the court's sentence." State v. Robinson, 248 N.C. 282, 285, 103 S.E.2d 376, 379 (1958).
A proceeding "to revoke probation [is] often regarded as informal or summary," Duncan, 270 N.C. at 246, 154 S.E.2d at 57 (citing 21 Am.Jur.2d, Criminal Law § 568), and the court is not bound by strict rules of evidence, see id. at 245, 154 S.E.2d at 57. An alleged violation by a defendant of a condition upon which his sentence is suspended "need not be proven beyond a reasonable doubt. All 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 violated a valid condition upon which the sentence was suspended." Robinson, 248 N.C. at 285-86, 103 S.E.2d at 379 (internal citations omitted). "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).
"`[O]ur Courts have continuously held that a suspended sentence may not be activated for failure to comply with a term of probation unless the defendant's failure to comply is willful or without lawful excuse.'" State v. White, 129 N.C. App. 52, 57, 496 S.E.2d 842, 846 (1998) (quoting State v. Sellars, 61 N.C. App. 558, 560, 301 S.E.2d 105, 106 (1983)), aff'd in part, 350 N.C. 302, 512 S.E.2d 424 (1999). "[T]he burden of proof is upon the State to show that the defendant has violated one of the conditions of his probation." State v. Seagraves, 266 N.C. 112, 113, 145 S.E.2d 327, 329 (1965).
Defendant's assignments of error relate to the sufficiency of evidence presented at the probation violation hearing. Focusing on the word "contact," defendant argues that he did not "contact" X, because there was no evidence that he touched or spoke with her
Therefore, defendant was on notice of the meaning of "contact" in the context of his probation. In addition, he was instructed with precision as to conduct that would constitute a violation of probation. Nevertheless, evidence was presented that defendant wilfully telephoned X's mother at her home, then drove there and went inside. Defendant presented no evidence of a lawful excuse for his action. This evidence is sufficient to support a finding that defendant wilfully and knowingly violated a condition of his probation. See, e.g., Hewett, 270 N.C. 348, 154 S.E.2d 476 (holding revocation of defendant's probation was proper because there was enough competent evidence in the record to support that defendant had wilfully failed to avoid injurious or vicious habits); Duncan, 270 N.C. 241, 154 S.E.2d 53 (finding competent evidence to support revocation of defendant's probation where defendant failed to satisfy the conditions that he work faithfully at suitable, gainful employment, that he remain in a specified area, and that he report to his probation officer at specified times); State v. Morton, 252 N.C. 482, 114 S.E.2d 115 (1960) (stating there was competent evidence to support revocation of defendant's probation where defendant failed to make weekly support payments for his family); White, 129 N.C. App. 52, 496 S.E.2d 842 (upholding revocation of probation where defendant was wilfully in presence of victim by not immediately leaving premises of individual who called victim over to his property); State v. Tozzi, 84 N.C. App. 517, 353 S.E.2d 250 (1987) (affirming revocation of probation where defendant left his authorized residence without permission from his probation officer and missed several probation meetings); State v. Darrow, 83 N.C. App. 647, 351 S.E.2d 138 (1986) (holding revocation of probation was proper where defendant violated condition of his probation by contacting victim); State v. Monroe, 83 N.C. App. 143, 349 S.E.2d 315 (1986) (finding revocation of probation valid where evidence established that defendant breached a condition of his probation by knowingly writing bad checks); State v. Crouch, 74 N.C. App. 565, 328 S.E.2d 833 (1985) (affirming revocation of probation where defendant failed to make payments to the clerk of court as required as a condition of his probation); State v. Coffey, 74 N.C. App. 137, 327 S.E.2d 606 (1985) (finding that the evidence supported the court's finding that defendant failed to report to her probation officer as required, which was sufficient to support the court's order revoking her probation); State v. Williamson, 61 N.C. App. 531, 301 S.E.2d 423 (1983) (affirming revocation of probation where defendant was in arrears in his restitution payments, which he had been ordered to pay as a condition of probationary judgment); State v. Camp, 59 N.C. App. 38, 295 S.E.2d 766 (1982) (holding revocation of probation was valid where defendant violated a condition of his suspended sentence by communicating with the Polk County Sheriff's Department by telephone without justifiable reason); State v. Lucas, 58 N.C. App. 141, 292 S.E.2d 747 (1982) (finding revocation of probation was proper where evidence supported the judge's finding that defendant wilfully and without lawful excuse violated a condition of his probation by refusing to attend and complete the Hegira House program); State v. Blevins, 54 N.C. App. 147, 282 S.E.2d 524 (1981) (holding no abuse of discretion in trial court's finding that defendant wilfully violated the conditions of his suspended sentence by failing to pay restitution to victim of his crime of false pretenses).
Defendant's suggestion that he must have touched or visually observed X in order to
Accordingly, we hold that the trial court did not abuse its discretion in finding that defendant's actions constituted a knowing and wilful violation of his probation. The action of the trial court is affirmed.
GREENE and MARTIN, JJ., concur.