State v. Shine

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA13-1183
NORTH CAROLINA COURT OF APPEALS
Filed: 6 May 2014
STATE OF NORTH CAROLINA
v. Person County
Nos. 13 CRS 329-30
DEZMOND HARDISON SHINE
Appeal by defendant from judgments entered 14 June 2013 by
Judge W. Osmond Smith, III, in Person County Superior Court.
Heard in the Court of Appeals 7 April 2014.
Attorney General Roy Cooper, by Associate Attorney General
Christopher McLennan, for the State.
Sue Genrich Berry for defendant-appellant.
ELMORE, Judge.
Defendant appeals from judgments entered upon revocation of
his probation. Because the trial court entered the necessary
findings of fact in support of revocation, we affirm.
Defendant pled guilty to four counts of sale of cocaine on
22 March 2012. The trial court sentenced defendant to two
consecutive prison terms of ten to twelve months each,
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suspended, and placed defendant on supervised probation for
thirty-six months.
Violation reports filed on 18 March 2013 charged defendant
with violating multiple conditions of his probation, including
the regular condition that he “[c]ommit no criminal offense in
any jurisdiction.” N.C. Gen. Stat. § 15A-1343(b)(1) (2013).
Specifically, the reports alleged that defendant committed the
crimes of (1) possession with intent to manufacture, sell, or
deliver (“PWIMSD”) a Schedule II controlled substance, and (2)
maintaining a vehicle, dwelling, or place for keeping or selling
a controlled substance on 5 March 2013, and that the “CHARGES
ARE PENDING . . . IN PERSON COUNTY DISTRICT COURT.”
At defendant’s revocation hearing, Roxboro Police Officer
Ryan Ford testified that he stopped a car driven by defendant on
the afternoon of 5 March 2013. The passenger seated in the
front seat had an open container of alcohol. Defendant told the
officer that the car “was leased to his girlfriend from
Enterprise.” Officer Ford stated during the hearing that “when
I asked him if there was anything in the trunk, [defendant]
immediately . . . became nervous, and he actually approached the
trunk, and . . . said there was nothing in there[.]” Officer
Ford searched the trunk and found “25 individual packaged
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baggies of crack cocaine.” Defendant acknowledged that he did
not have a driver’s license but disavowed any knowledge of the
cocaine.
At the conclusion of the hearing, the trial court announced
as follows:
The Court finds the defendant violated the
valid conditions of his probation as alleged
in each case. With regard to paragraph
number six in one case and f[our] in the
other case, the Court finds he committed the
crime of possession with intent to sell and
deliver a Schedule II controlled substance.
I do not find, I’m not reasonably satisfied
he violated the crime of maintaining a
vehicle to violate the laws.
Based on this finding, the trial court revoked defendant’s
probation and activated the sentences as originally imposed.
The trial court credited defendant with the forty-nine days of
prior confinement. Defendant gave notice of appeal in open
court.
Defendant claims that the trial court erred in revoking his
probation for commission of a new criminal offense without
making proper findings of fact to support the revocation. He
notes that, because he had not been convicted of the pending
charges alleged in the violation reports, the trial court was
required to make an independent determination that he had
committed a new offense in violation of N.C. Gen. Stat. § 15A-
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1343(b)(1). Defendant contends that the trial “court fail[ed]
to find facts to support an independent judgment of
revocation[.]”
Initially, we note that defendant committed his alleged
probation violations subsequent to the 1 December 2011 effective
date of the Justice Reinvestment Act of 2011 (“JRA”). See 2011
N.C. Sess. Laws 192, § 4.(d); 2011 N.C. Sess. Laws 412, § 2.5.
“[F]or probation violations occurring on or after 1 December
2011, the JRA limited trial courts’ authority to revoke
probation to those circumstances in which the probationer: (1)
commits a new crime in violation of N.C. Gen. Stat. § 15A-
1343(b)(1); (2) absconds supervision in violation of N.C. Gen.
Stat. § 15A-1343(b)(3a); or (3) violates any condition of
probation after serving two prior periods of [confinement in
response to violation] under N.C. Gen. Stat. § 15A-1344(d2).”
State v. Nolen, __ N.C. App. __, __, 743 S.E.2d 729, 730 (2013)
(citing N.C. Gen. Stat. § 15A-1344(a) (2013)). Therefore,
although the trial court found additional violations alleged by
the probation officer, we confine our review to the violation
that resulted in revocation – defendant’s commission of a new
crime in violation of N.C. Gen. Stat. § 15A-1343(b)(1).
In order to revoke probation, “[a]ll that is required is
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that the evidence be sufficient to reasonably satisfy the judge
in the exercise of his sound discretion that the defendant has
willfully violated a valid condition of probation.” State v.
White, 129 N.C. App. 52, 58, 496 S.E.2d 842, 846 (1998), aff’d
in part, disc. review improvidently allowed in part, 350 N.C.
302, 512 S.E.2d 424 (1999). The trial court is required to make
findings of fact pursuant to N.C. Gen. Stat. § 15A-
1345(e)(2013). “The findings of fact by the judge must show
he exercised his discretion to that effect.” State v.
Williamson, 61 N.C. App. 531, 534, 301 S.E.2d 423, 426 (1983)
(citation omitted). Moreover, “[t]he minimum requirements of
due process in a final probation revocation hearing” require
written “findings of fact as to the evidence relied on” and the
“reasons for revoking probation.” Id. at 533-34, 301 S.E.2d at
425.
We find no merit to defendant’s position. The judgments
entered by the trial court incorporate the contents of the sworn
violation reports and include findings “that the defendant
violated each of the conditions of [his] probation as set forth”
in the reports’ numbered paragraphs, and that he did so
“willfully and without valid excuse[.]” See generally State v.
Duncan, 270 N.C. 241, 246, 154 S.E.2d 53, 58 (1967) (deeming the
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verified violation report to be competent evidence of probation
violations). Regarding the allegation that defendant violated
N.C. Gen. Stat. § 15A-1343(b)(1) by committing the new offenses
of PWIMSD a Schedule II controlled substance and maintaining a
vehicle for keeping or selling a controlled substance, the
judgments specify that the trial court did “NOT FIND DEFENDANT
WILLFUL[] OF MAINTAINING A VEHICLE[.]” Finally, the trial court
found that it was authorized to “revoke defendant’s probation
for the willful violation of the condition[] that he[] not
commit any criminal offense, G.S. 15A-1343(b)(1)[.]” These
findings fully support revocation under N.C. Gen. Stat. § 15A-
1344(a). State v. Henderson, 179 N.C. App. 191, 197, 632 S.E.2d
818, 822 (2006); State v. Monroe, 83 N.C. App. 143, 146, 349
S.E.2d 315, 317 (1986).
Although not designated as a separate argument in his
appellate brief, defendant also suggests that the evidence was
insufficient to support a finding by the trial court that he
possessed the cocaine found in the car’s trunk by Officer Ford.
We do not agree. Given the minimal proof standard that prevails
at a revocation hearing, the sworn violation reports filed by
the probation officer and Officer Ford’s hearing testimony were
more than adequate to support the trial court’s findings. See
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State v. Tisdale, 153 N.C. App. 294, 298, 569 S.E.2d 680, 682
(2002) (“[W]here contraband material is found in a vehicle under
the control of an accused, even though the accused is the
borrower of the vehicle, this fact is sufficient to give rise to
an inference of knowledge and possession which may be sufficient
to carry the case to the jury.”) (citations and quotation marks
omitted); see also Duncan, 270 N.C. at 246, 154 S.E.2d at 58.
Affirmed.
Judges McGEE and DAVIS concur.
Report per Rule 30(e).