State v Solomon

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-513 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 STATE OF NORTH CAROLINA v. Cabarrus County No. 09 CRS 9699 MELISSA DAWN SOLOMON Appeal by defendant from judgment entered 7 January 2011 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 17 October 2011. Attorney General Roy Cooper, by Assistant Attorney General Eryn E. Linkous, for the State. Jon W. Myers for defendant appellant. McCULLOUGH, Judge. Defendant appeals from revocation of probation and activation of a sentence of six to eight months imposed upon a conviction of embezzlement. The court entered the original sentence on 9 March 2009 and placed defendant on probation for 30 months. On 21 June 2010, defendant s probation officer filed a violation report alleging that defendant violated probation by -2(1) testing positive for methamphetamines, cocaine, and opiates on 17 May 2010; (2) by failing to report for a scheduled appointment with her probation officer on 12 May 2010; (3) by failing to make one or more payments toward her court indebtedness; (4) by failing to make one or more payments for her probation supervision fee; and (5) by failing to attend her treatment program, with the exception of one session on 5 May 2010, since 16 March 2010. January 2011, without lawful court found the court At the conclusion of a hearing on 7 found that defendant willfully excuse committed all of the violations. that each violation, in and sufficient basis for revoking probation. of itself, and The was a The court activated the sentence. Defendant contends the evidence does not support the court s findings that she willfully and without lawful excuse failed to pay the two monetary conditions, failed to attend treatment sessions, and failed to keep an appointment with the probation officer. All that is We disagree. required in a hearing [upon a violation report] 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 -3or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended. State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). Evidence which term shows the defendant failed to comply with a or condition of probation is sufficient to support a finding that the violation was willful or without lawful excuse unless the defendant can present evidence to persuade the court that the violation was not committed willfully or without lawful excuse. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985). A sworn violation report is sufficient evidence to support a finding of a violation of a condition of probation. State v. Dement, 42 N.C. App. 254, 255, 255 S.E.2d 793, 794 (1979). Defendant s own testimony established that she chose to pay for softball, Brownies, Cub Scouts and dance lessons for her children instead obligations. She of did paying not her offer court-ordered probation testimony evidence any or contesting the allegation that she missed all treatment sessions but one in the Spring of 2010. Moreover, defendant has not challenged the court s finding that she willfully and without lawful excuse violated a condition of probation by testing positive for methamphetamines, cocaine, and opiates on 17 May -42010. Thus, even if the findings of the other violations are accepted as error, the error is harmless violation of one condition of probation probation. because only is needed one to revoke See State v. Belcher, 173 N.C. App. 620, 625, 619 S.E.2d 567, 570 (2005). Defendant also contends that the court erred by failing to make findings evidence. of fact which reflected We reject this contention. consideration of her At the conclusion of the hearing, the court announced that it found defendant willfully violated the terms and conditions of probation and that it adopted as findings of fact the allegations in the probation violation report. A court is not required to make explicit findings on each of defendant s allegations tending to justify his breach of conditions. State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983). Defendant lastly contends that the court erred in revoking probation because she was not provided with a written statement explicitly setting forth the conditions of probation. Defendant, however, never raised this issue in the trial court. Error may not be asserted on appeal unless the error was brought to the attention of the trial court by appropriate and timely request, objection, or motion. N.C. Gen. Stat. § 15A-1446(a) -5(2009); N.C.R. App. P. 10(a)(1) (2010). Acknowledging her failure to raise the issue in the court below, defendant has asked this Court to find plain error. error for two reasons. challenges to instructions. the contains defendant all First, plain error review is limited to admissibility of evidence and jury State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d 550, 563 (1997). available, We decline to find plain of the Second, even if plain error review were may not terms prevail and because conditions of the judgment probation in writing, and defendant does not claim she did not receive the written judgment. Defendant s reliance upon State v. Lambert, 146 N.C. App. 360, 368, 553 S.E.2d 71, 78 (2001), is misplaced because in that case the court orally modified the terms and conditions of probation but failed modifications in the written judgment. We affirm the judgment. Affirmed. Judges McGEE and ELMORE concur. Report per Rule 30(e). to include the oral

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