Opinion
No. COA16-136
08-16-2016
STATE OF NORTH CAROLINA v. TEDDY JOE MOORE, Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney General Tenisha S. Jacobs, for the State. Leslie Rawls for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Buncombe County, Nos. 13 CRS 62966, 61789 Appeal by defendant from judgments entered 6 August 2015 by Judge Alan Z. Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 1 August 2016. Attorney General Roy Cooper, by Special Deputy Attorney General Tenisha S. Jacobs, for the State. Leslie Rawls for defendant-appellant. ELMORE, Judge.
Defendant appeals from two judgments entered upon revocation of his probation. Because the evidence supports the trial court's finding that defendant absconded supervision in violation of N.C. Gen. Stat. § 15A-1343(b)(3a) (2015), we affirm.
On 30 April 2014, defendant pled guilty to four counts of felonious larceny, one count of felonious breaking or entering, and three misdemeanors. The trial court consolidated the offenses into two judgments, imposed consecutive prison sentences of ten to twenty-one months, suspended, and placed defendant on forty-eight months of supervised probation.
On 13 May 2015, defendant was charged with willfully violating multiple conditions of his probation, including the regular condition that he "[n]ot abscond by willfully avoiding supervision or by willfully making [his] whereabouts unknown to the supervising probation officer" in N.C. Gen. Stat. § 15A-1343(b)(3a). A violation of the "[n]ot abscond" condition in subdivision (b)(3a) is one of three grounds for revoking a defendant's probation authorized by N.C. Gen. Stat. § 15A-1344(a) (2015). See State v. Nolen, 228 N.C. App. 203, 205, 743 S.E.2d 729, 730 (2013).
The remaining grounds for revocation under N.C. Gen. Stat. § 15A-1344(a) are (1) a violation of the regular condition of probation in N.C. Gen. Stat. § 15A-1343(b)(1) (2015) ("Commit no criminal offense in any jurisdiction."), and (2) a violation of any condition of probation after serving two periods of confinement in response to violation under N.C. Gen. Stat. § 15A-1344(d2) (2015). See Nolen, 228 N.C. App. at 205, 743 S.E.2d at 730.
The trial court held a violation hearing on 3 August 2015. Probation Officer Anthoni Clegg testified, inter alia, that defendant was not at his last known address during a curfew check on 14 April 2015. Defendant phoned the officer "a few minutes" later and explained "that he went to the store and he was coming back." However, defendant was also absent from the residence when Officer Clegg returned on the afternoon of 26 April 2015 and mid-morning on 28 April 2015. Officer Clegg left tags on defendant's doorknob instructing him to contact the officer. These tags were undisturbed when Officer Clegg came back to the residence, leading him to suspect "that [defendant] wasn't coming home" and "the residence hadn't been occupied." Officer Clegg made "more" unsuccessful attempts to visit defendant and left messages with a neighbor, to no avail. He could not contact defendant by telephone because defendant "doesn't have a phone." At the time he filed the violation reports on 13 May 2015, Officer Clegg had not had contact with defendant since 14 April 2015; nor did he hear from defendant thereafter.
Defendant did not testify or offer evidence. After hearing the arguments of counsel, the trial court announced its decision as follows:
[T]he Court does find from the evidence of the probation officer and the state and the Court's review of the record proper and questions of the probation officer does find that the defendant violated willfully without valid excuse the probation condition that he not abscond supervision and finds that defendant did willfully avoid supervision by absconding.The court found several additional violations alleged in the two reports. It entered judgments revoking defendant's probation and activating his suspended sentences.
Therefore his probation will be revoked in each file and his sentences will be activated.
The court found defendant tested positive for marijuana in November 2014, February 2015, and March 2015; possessed drug paraphernalia in January 2015; failed to perform community service; and made no payments on his court fee.
On appeal, defendant claims that the trial court erred in revoking his probation because the State's evidence did not establish his violation of N.C. Gen. Stat. § 15A- 1343(b)(3a). According to defendant, the mere fact "that he was not home three times when the probation officer came by" does not show that he willfully absconded supervision.
The following principles govern our review of judgments revoking probation:
[A] proceeding to revoke probation is not a criminal prosecution and is often regarded as informal or summary. Thus, the alleged violation of a valid condition of probation need not be proven beyond a reasonable doubt. Instead, all that is required in a hearing of this character 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. Accordingly, the decision of the trial court is reviewed for abuse of discretion.State v. Murchison, 367 N.C. 461, 464, 758 S.E.2d 356, 358 (2014) (citations, internal quotation marks, and alterations omitted). A trial court abuses its discretion only if its decision is "manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Maness, 363 N.C. 261, 279, 677 S.E.2d 796, 808 (2009) (citation and internal quotation marks omitted).
We conclude the evidence supports the trial court's finding that defendant "did willfully avoid supervision by absconding" in violation of N.C. Gen. Stat. § 15A-1343(b)(3a). At the time the violation reports were filed, Officer Clegg had been unable to contact defendant for approximately one month. Moreover, all indications were that defendant either no longer resided at his last known address or was deliberately disregarding the doorknob tags instructing him to contact Officer Clegg. Unlike the cases cited by defendant, he did not remain in telephone contact with his probation officer or otherwise keep the officer apprised of his whereabouts. See State v. Johnson, ___ N.C. App. ___, ___, 783 S.E.2d 21, 26 (2016) ("[D]efendant informing his probation officer he would not attend an office visit the following day and then subsequently failing to report for the visit, does not, without more, violate N.C. Gen. Stat. § 15A-1343(b)(3a) . . . ."); id. at ___, 783 S.E.2d at 27 (holding that defendant's violation of house arrest on two dates by taking unauthorized trips to the store, a park, and an apartment complex did not constitute absconding, where his probation officer "was able to monitor and keep continuous track of [d]efendant's locations and movements through the use of the electronic monitoring device [d]efendant wore"); State v. Williams, ___ N.C. App. ___, ___, ___, 776 S.E.2d 741, 742, 744-46 (2015) (holding that evidence that defendant was "back and forth" at his reported address, missed scheduled office and home visits, and traveled without permission to New Jersey did not establish a violation of N.C. Gen. Stat. § 15A-1343(b)(3a), where defendant remained in telephone contact with his probation officer). Accordingly, we hold the trial court did not abuse its discretion by revoking defendant's probation. See State v. Johnson, ___ N.C. App. ___, ___, 782 S.E.2d 549, 554 (2016).
AFFIRMED.
Judges DAVIS and DIETZ concur.
Report per Rule 30(e).