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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA10-1528 NORTH CAROLINA COURT OF APPEALS Filed: STATE OF NORTH CAROLINA v. LOVITA R. BOUKNIGHT Durham County No. 09 CRS 42966 6 September 2011

Appeal by defendant from judgment entered 15 June 2010 by Judge Orlando F. Hudson in Durham County Superior Court. in the Court of Appeals 16 August 2011. Attorney General Roy Cooper, by Assistant Attorney General Karissa J. Davan, for the State. Marie H. Mobley, for the Defendant. ERVIN, Judge. Defendant Lovita R. Bouknight appeals from a judgment Heard

revoking her probation and activating her suspended sentence. On appeal, Defendant argues that the conditions of probation that she allegedly violated were invalid since there was no

evidence that she had been directed to comply with them and that the record did not contain sufficient evidence to support a finding that she had violated the relevant terms and conditions of probation. After careful consideration of Defendant's

challenges to the trial court's judgment in light of the record

-2and the applicable law, we conclude that Defendant's arguments lack merit and that the trial court's judgment should be

affirmed. I. Factual Background On 6 October 2009, Defendant entered pleas of guilty to three counts of identity theft, two counts of forgery of an endorsement, three counts of obtaining property by false

pretenses, and one count of uttering an instrument bearing a forged endorsement. Based upon Defendant's pleas, Judge Allen

Baddour consolidated Defendant's convictions for judgment and sentenced Defendant to a minimum term of fifteen months and a maximum term of eighteen months imprisonment in the custody of the North Carolina Department active of Correction. and Judge placed Baddour her on

suspended

Defendant's

sentence

supervised probation for a period of thirty-six months subject to a number of terms and conditions, including requirements that she pay attorney's fees, restitution, and the costs in a total amount of $2,540.50; be imprisoned for one day in the Durham County jail; not go on or about the premises of Raleigh-Durham Checkcashers; probation; comply to with the usual terms and for conditions stolen of

submit

warrantless

searches

goods, not

controlled substances, contraband, and

child pornography;

use or possess controlled substances; provide a breath, blood,

-3or urine sample for drug testing purposes; and provide a DNA sample. On 24 November 2009, Defendant's probation officer, Rashawn Urquhart, signed a probation violation report alleging that

Defendant had violated the terms and conditions of her probation in the following respects: 1. Regular Condition of Probation[.] "Report as directed by the Court or the probation officer to the officer at reasonable times and places" in that . . . the defendant failed to report to court intake processing on 10/07/09. Monetary Condition of Probation[.] "The defendant shall pay to the Clerk of Superior Court the `Total Amount Due' as directed by the Court or the probation officer" in that the defendant is in arrears 71.00 towards her court indebtedness. Regular Condition of Probation[.] "Remain within the jurisdiction of the Court unless granted written permission to leave by the Court or the probation officer" in that on or about 11/02/09 the defendant left her place of residence at 31 Willow Bridge Avenue Durham, [N.C.,] failed to make her whereabouts known to her probation officer and has not been located in the court's jurisdiction by any reasonable efforts, thus absconding.

2.

3.

Although an order for Defendant's arrest in connection with this violation report was issued on 4 December 2009, it was not

served until 13 May 2010, when Defendant was stopped and charged

-4with no operator's license, possession of drug paraphernalia, and providing fictitious information to a law enforcement

officer. A probation revocation hearing was conducted before the

trial court on 15 June 2010. testified probation convicted that she was on

At that hearing, Ms. Urquhart assigned 2007, to be Defendant's was

initially 23 October offenses.

officer of

when

Defendant

unrelated

Defendant

subsequently

absconded from the supervision associated with that probationary judgment. On 7 October 2009, Ms. Urquhart was assigned to

supervise Defendant in connection with the probationary sentence imposed upon her on the prior day. After Defendant failed to report for intake on 6 or 7

October 2009, Ms. Urquhart used information available from her files in an attempt to locate Defendant. First, Ms. Urquhart

went to an address located on Roxboro Road in Durham that she found in Defendant's file which Ms. Urquhart ultimately

determined was "not a valid address."

Secondly, Ms. Urquhart

had a telephone conversation with a man who identified himself as Defendant's boyfriend and obtained an address on Willow

Bridge Avenue in Durham.

At the time that Ms. Urquhart went to

that location, the man who answered the door said that Defendant had never resided there. Subsequently, Defendant's boyfriend

-5admitted that he had lied to Ms. Urquhart and explained that he and Defendant were homeless. messages Defendant Defendant's with to Defendant's report to Finally, Ms. Urquhart left phone sister the and boyfriend office. that directing Although Defendant

probation Ms.

boyfriend

assured

Urquhart

"didn't want to go [to] jail" and would "show up for probation," Defendant neither contacted Ms. Urquhart nor reported to the probation office between 7 October 2009, when Ms. Urquhart was assigned responsibility for supervising Defendant, and 13 May 2010, when Defendant was arrested for various traffic-related violations and taken into custody. In fact, Ms. Urquhart had Moreover, with her

never met Defendant prior to the revocation hearing. Defendant had not made any payments associated

probation-related indebtedness. On the other hand, Defendant testified that, while she had previously lived on Roxboro Road, she moved from that location following her mother's death. Defendant had lived on Willow Walter

Bridge Avenue and "still [had] mail that goes there."

Rhinehart, the owner of the Willow Bridge Avenue property, was the complaining witness in the cases which led to the imposition of the probationary sentence imposed upon Defendant on 6 October 2009. Although Defendant initially claimed that she had gone to

the probation department to "fill out the paperwork" during the

-6week following her plea, she admitted on cross-examination that, during the seven months she was on probation, she had never reported to the probation office in person. In addition,

Defendant testified that she had tried to reach Ms. Urquhart many times and had left more than ten messages with Ms.

Urquhart's secretary, but that Ms. Urquhart had never returned her calls. Defendant had not made any payments toward her

probation-related monetary obligations because she believed that she was not required to make any such payments until she had met with Ms. Urquhart and worked out a specific payment plan. On

cross-examination, Defendant admitted that she had been told by her attorney that she would owe money following the imposition of her probationary sentence. Finally, Defendant acknowledged

that she had been on probation before and had previously been cited for absconding supervision. After the presentation of the parties' evidence and the arguments of counsel, the trial court found that Defendant had willfully violated the terms of her probation and that her

testimony was not credible. stated that:

More particularly, the trial court

[COURT]: Well, you know, I give people a break. All you've got to do is just tell me the truth, be truthful with me, have clean hands, and I'll give you a break.

-7But that's not what . . . she's done. She can't blame the probation officer because she's homeless. She didn't report. She didn't make any of those phone calls that. . . don't exist on the machine. She didn't make those calls. She never tried to be involved on her probation, and she's not entitled to a break because of that. So play it straight. As a result, the trial and court entered her a judgment suspended revoking sentence.

Defendant's

probation

activating

Defendant noted an appeal to this Court from the trial court's judgment. II. Legal Analysis A. Standard of Review "It is the general rule that when judgment is suspended in a criminal action upon good behavior or other conditions, the proceedings to ascertain whether or not the conditions have been violated are addressed to the sound discretion of the judge[.] . . . The findings of the judge, if supported by competent

evidence, and his judgment based thereon are not reviewable on appeal, unless there is a manifest abuse of discretion." v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 State (1960)

(citations omitted).

"A probation revocation hearing `is not

governed by the rules of a criminal trial[,]' and therefore `a jury is not required . . . nor must the proof of violation be beyond a reasonable doubt.' . . . `The evidence need [only] be

-8such that reasonably satisfies the trial judge in the exercise of his sound discretion that the defendant has violated a valid condition on which the sentence was suspended.'" State v.

Belcher, 173 N.C. App. 620, 624, 619 S.E.2d 567, 570 (2005) (quoting State v. Freeman, 47 N.C. App. 171, 175, 266 S.E.2d 723, 725, disc. review denied, 301 N.C. 99, 273 S.E.2d 304

(1980)).

Thus, the ultimate issues raised for our consideration

by Defendant's appeal from the trial court's judgment are the extent, if any, to which the trial court's determination that Defendant violated a valid term or condition of probation has adequate evidentiary support and, if so, whether the trial court abused its discretion by determining that Defendant's probation should be revoked. B. Alleged Violations of Probation 1. Reporting Requirement a. Validity On appeal, Defendant challenges the validity of the trial court's conclusion of her that Defendant by violated to the terms to that and the the

conditions probation

probation In

failing Defendant

report argues

office.

essence,

conditions of probation that Defendant allegedly violated were invalid because they "were not actually ordered as conditions to her probation." We disagree.

-9According to N.C. Gen. Stat.

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