State v. Cunningham

305 S.E.2d 193 (1983)

STATE of North Carolina
v.
Norman E. CUNNINGHAM, III.

No. 825SC925.

Court of Appeals of North Carolina.

August 2, 1983.

Atty. Gen. Rufus L. Edmisten, Raleigh, by Asst. Atty. Gen. Alfred N. Salley, Asheville, for the State.

Lanier & Hall by Fredric C. Hall, Kenansville, for defendant-appellant.

JOHNSON, Judge.

Defendant except to and assigns as error the trial court's Findings of Fact Nos. 2, 3, 6, 8 and Conclusions of Law Nos. 1, 2 and 3. Defendant contends that these findings and conclusions are not supported by competent evidence and that the trial court's order revoking his suspended sentence was based on insufficient evidence.

The trial judge may not exercise his discretionary authority to activate a suspended sentence unless the breach of a condition of probation is established by "substantial evidence of sufficient probative force to generate in the minds of reasonable men the conclusion that defendant has in fact breached the condition in question." State v. Millner, 240 N.C. 602, 605, 83 S.E.2d 546, 548 (1954).

The alleged violation that defendant consistently played loud music that disrupted the peace and quiet of the Southerlands and the trial court's Findings of Fact Nos. 6 and 7 are supported by the testimony of Mrs. Southerland. She testified that since 15 February 1982 defendant has continually played loud music throughout the day and as late as 2 to 3 a.m., and that the music has prevented her and her husband from sleeping. However, this conduct does not violate the suspensory condition of good behavior. In North Carolina, "good behavior" means "law-abiding" in the context of suspension of a sentence upon conviction of a crime. State v. Seagraves, 266 N.C. 112, 145 S.E.2d 327 (1965). Behavior that will warrant a finding that a defendant has violated the "good behavior" condition must be conduct which constitutes a violation of some criminal law of the State. State v. Millner, supra; State v. Seagraves, supra. In the case sub judice, we are constrained to hold that although the conduct of the defendant in playing music through a speaker located twenty-five feet from the Southerland's back door, which is undoubtedly disturbing to the Southerlands, may constitute a nuisance, it does not amount to conduct which constitutes violation of a criminal law of this State. Therefore, the trial court erroneously found this conduct to violate the suspensory condition of good behavior.

We next consider defendant's assignment of error regarding the trial court's Findings of Fact Nos. 2, 3, and 8 and Conclusions of Law Nos. 1, 2, and 3. We agree with defendant that the trial court erroneously based the revocation of defendant's suspended sentence upon those findings and conclusions.

Defendant was properly served with a statement of the alleged violations of his suspended sentence. G.S. 15A-1345(d); State v. Duncan, 270 N.C. 241, 154 S.E.2d 53 (1967). The State alleged that the condition of good behavior was violated by defendant's repeated playing of loud music, which greatly disturbed the Southerlands and by defendant's taking of their personal property without permission. However, the State sought to prove additional conduct in violation not contained in the notice served upon defendant—that defendant trespassed upon and damaged real and personal property belonging to the Southerlands. The record does not show that defendant received notice or a statement of an alleged violation consisting of trespass or damage to property. Therefore, entry of an order revoking defendant's suspended sentence upon Findings of Fact Nos. 2, 3, and 8 and Conclusions of Law Nos. 1, 2, and 3 was error.

In addition, a careful examination of the evidence of record clearly shows that evidence presented by the State that defendant trespassed upon and damaged real and personal property belonging to the Southerlands was irrelevant and improperly admitted because this evidence had no logical tendency to prove either of the two facts which were properly in issue. State v. Swift, 290 N.C. 383, 226 S.E.2d 652 (1976).

For the reasons stated herein, we hold that the evidence was insufficient to support the trial court's order revoking defendant's suspended sentence. The trial court's order is therefore

Reversed.

WELLS and HILL, JJ., concur.