State v. Bryant

326 S.E.2d 910 (1985)

STATE of North Carolina
v.
Michael BRYANT.

No. 843SC552.

Court of Appeals of North Carolina.

March 19, 1985.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. H.A. Cole, Jr., Raleigh, for the State.

John H. Harmon, New Bern, for defendant-appellant.

PHILLIPS, Judge.

The only question presented by this appeal is whether the order revoking defendant's probation has the evidentiary support that the law requires. Relying upon the paucity of the State's evidence, which established only defendant's failure to make the payments ordered, defendant contends that the order is without support since the evidence does not show that he was able to make the payments. If this was a civil case and defendant had been found in civil contempt for not making the payments ordered, his point would be well taken. Brower v. Brower, 70 N.C.App. 131, 318 S.E.2d 542 (1984). But in a criminal proceeding to revoke probation if a defendant fails to offer evidence of his inability to comply with the probationary terms, evidence establishing his non-compliance is sufficient to justify a finding that the failure was wilful or without lawful excuse. State v. Young, 21 N.C.App. 316, 204 S.E.2d 185 (1974).

Affirmed.

WEBB and MARTIN, JJ., concur.