State v. Persing

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-535 NORTH CAROLINA COURT OF APPEALS Filed: 18 November 2014 STATE OF NORTH CAROLINA Moore County Nos. 11 CRS 50844-45 11 CRS 50850, 50865-66 11 CRS 50871, 50873 11 CRS 50875-76 v. ROBERT THOMAS PERSING, JR., Defendant. Appeal by defendant from judgments entered 11 December 2013 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 20 October 2014. Attorney General Roy Cooper, by Assistant Attorney General Gaines M. Weaver, for the State. Bryan Gates for defendant-appellant. GEER, Judge. Defendant Robert Thomas Persing, Jr. appeals from judgments entered upon defendant the argues revocation of that trial the his probation. court's On finding appeal, that he committed the offense of felony larceny while on probation was not supported by the evidence. Although defendant argues that he believed the property he took was abandoned, that issue was a question for the trial court to decide. Because the evidence -2before the trial court was sufficient to support its finding that defendant committed a new offense on probation, we affirm. Facts On 7 January 2013, defendant entered a guilty plea to 10 counts of felony larceny. defendant's convictions The trial court consolidated nine of into four judgments and sentenced defendant to four consecutive sentences of six to eight months imprisonment, but suspended each sentence and placed defendant on probation for 60 months.1 The court also ordered defendant to pay restitution in each judgment, totaling $8,825.00. On 28 August 2013, defendant's probation officer violation reports for each of defendant's sentences. violation report, the officer alleged that defendant filed In each was in arrears with respect to his payment of court-ordered restitution and fees and had committed a new criminal offense of felony larceny, that was still pending in Moore County Superior Court. Defendant had allegedly taken scrap metal from a dumpster belonging to and on the premises of Sunbelt Mechanical, L.L.C. After a hearing on 9 and 10 December 2013, the trial court entered judgments revoking defendant's probation based on its finding that defendant had committed a new criminal offense, and 1 The trial court's disposition of defendant's 10th conviction for felony larceny in file number 11 CRS 50902 is not included in the record on appeal and is not part of the subsequent probation revocation proceedings. -3activated defendant's four consecutive sentences. Defendant trial erred in he had timely appealed to this Court. Discussion Defendant revoking his first argues probation that based the on its court finding committed a new offense of felony larceny. that "'[P]robation is an act of grace by the State to one convicted of a crime'" and thus "a proceeding to revoke probation is not bound by strict rules of evidence and an alleged violation of a probationary condition need not be proven beyond a reasonable doubt." State v. Hill, 132 N.C. App. 209, 211, 510 S.E.2d 413, 414 (1999) (quoting State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725 (1980)). evidence Instead, "'all that is required . . . is that the be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended.'" Id. (emphasis added) (quoting State v. Robinson, 248 N.C. 282, 28586, 103 S.E.2d 376, 379 (1958)). For probation violations occurring on or after 1 December 2011, a trial court may only revoke probation where the defendant: "(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 -4of probation after serving two prior periods of [confinement resulting from 1344(d2)." violations] under N.C. Gen. Stat. § 15A- State v. Nolen, ___ N.C. App. ___, ___, 743 S.E.2d 729, 730 (2013) (citing N.C. Gen. Stat. § 15A-1344(a) (2011)). When a defendant serving probation has been charged with, but not yet convicted of, committing a new crime, a trial court may revoke the defendant's probation when it independently finds the defendant committed a new crime. See, e.g., State v. Monroe, 83 N.C. App. 143, 145-46, 349 S.E.2d 315, 317 (1986); State v. Debnam, 23 N.C. App. 478, 480-81, 209 S.E.2d 409, 410-11 (1974). Here, the trial court found, after the presentation of evidence by both the State and rebuttal evidence by defendant, that defendant violated the terms of his probation by committing a new crime: larceny. The elements of larceny are "(1) taking the property of another; (2) carrying it away; (3) without the owner's consent; and (4) with the intent to deprive the owner of the property permanently." State v. Wilson, 154 N.C. App. 686, 690, 573 S.E.2d 193, 196 (2002); N.C. Gen. Stat. § 14-72 (2013). The officer State and presented Detective evidence Bobby from Roger of defendant's the probation Aberdeen Police Department that defendant took scrap metal from a dumpster on the premises of Sunbelt Mechanical. Sunbelt Mechanical collected scrap metal from its operations in the dumpster for -5later recycling and had not given defendant permission to take the scrap metal. Defendant admitted that he took the scrap metal, which he then sold to a scrap yard. Defendant, however, testified that he thought the scrap metal had been thrown away because it was in a dumpster. The trial court was entitled to discount defendant's testimony that he thought State's the scrap evidence, discretion in we metal was cannot concluding say that abandoned, the and trial defendant on the abused court had crime or larceny and violated his probation. based its committed a new See Robinson, 248 N.C. at 286, 103 S.E.2d at 379 ("In determining whether the evidence warrants the revocation of a suspended sentence, the credibility of the witnesses and the evaluation and weight of their testimony, are for the judge."). Because probation the is fully trial court's supported by revocation its finding of defendant's that defendant committed a new crime, we need not address defendant's second argument regarding the court's findings that he violated his probation by failing to pay court-ordered fees and restitution. See State v. Belcher, 173 N.C. App. 620, 625, 619 S.E.2d 567, 570 (2005). Accordingly, we affirm the trial court's judgments revoking defendant's probation. Affirmed. -6Judges CALABRIA and McCULLOUGH concur. Report per Rule 30(e).

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