{ "id": 4168632, "name": "STATE OF NORTH CAROLINA v. CARL LEWIS HUBBARD", "name_abbreviation": "State v. Hubbard", "decision_date": "2009-07-07", "docket_number": "No. COA08-1314", "first_page": "154", "last_page": "161", "citations": [ { "type": "official", "cite": "198 N.C. App. 154" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "663 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641540 ], "year": 2008, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0470-01" ] }, { "cite": "116 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "150" } ], "opinion_index": 0 }, { "cite": "253 N.C. 43", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622041 ], "year": 1960, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0043-01" ] }, { "cite": "191 N.C. App. 776", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4159678 ], "year": 2008, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0776-01" ] }, { "cite": "154 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "480" } ], "opinion_index": 0 }, { "cite": "270 N.C. 348", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568006 ], "year": 1967, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0348-01" ] }, { "cite": "305 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "196" } ], "opinion_index": 0 }, { "cite": "63 N.C. App. 470", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525437 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/63/0470-01" ] }, { "cite": "192 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "296", "parenthetical": "explaining that the purpose of an indictment in a criminal case is to put the defendant on notice of the charges against him so that he may prepare a defense and be protected from a second prosecution for the same act" } ], "opinion_index": 0 }, { "cite": "282 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564162 ], "year": 1972, "pin_cites": [ { "page": "243-44", "parenthetical": "explaining that the purpose of an indictment in a criminal case is to put the defendant on notice of the charges against him so that he may prepare a defense and be protected from a second prosecution for the same act" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0240-01" ] } ], "analysis": { "cardinality": 633, "char_count": 17096, "ocr_confidence": 0.763, "pagerank": { "raw": 2.1017902630167786e-07, "percentile": 0.7619144977178206 }, "sha256": "944b92fead8688eef752ce881c09c77cbb326d4da0d9f011299e5d2cef4cb8d3", "simhash": "1:6b2ed92ba72a22f7", "word_count": 2680 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CARL LEWIS HUBBARD" ], "opinions": [ { "text": "STEPHENS, Judge.\nI. Procedural History and Factual Background\nOn 16 April 2008, Defendant Carl Lewis Hubbard pled guilty to possession of a firearm by a felon. The Honorable Edwin G. Wilson, Jr. sentenced Defendant to a prison term of 16 to 20 months, suspended the sentence, and placed Defendant on supervised probation for 36 months, including six months intensive probation. The Regular Conditions of Defendant\u2019s probation included the following:\n(6) Report as directed by the Court or the probation officer to the officer at reasonable times and places and in reasonable manner, permit the officer to visit at reasonable times, answer all reasonable inquiries by the officer and obtain prior approval from the officer for, and notify the officer of, any change in address or employment.\n21. Comply with the Special Conditions of Probation-Intermediate Punishments ....\nThe Special Conditions of Probation-Intermediate Punishments included the following:\n4. Intensive Supervision Program .... Submit to supervision by officers assigned to the Intensive Probation Program . . . for a period of 6 months . . . and comply with the rules adopted by that program.\nOn 27 June 2008, Defendant\u2019s Probation Officer Ricky Wallace filed a probation violation report alleging that Defendant had violated a condition of Defendant\u2019s probation. The report alleged:\nOf the conditions of probation imposed . . . [Defendant has willfully violated:\n1. Other Violation\nS.O Michael Horn went to residence on 06/23/08 at 7:50 PM to check [Defendant\u2019s] curfew. The [Defendant] was home but he was so drunk that he could hardly walk. Officer Horn told this [Defendant] to stop drinking and go to bed. Officer Horn returned at 8:20 PM and [Defendant\u2019s] girlfriend was outside because she was scared to go back into [the] residence and [Defendant] was still drinking and raising cain. Officer Horn took [Defendant] into custody for his safety [and] the safety of his girlfriend and small child. This [Defendant] failed to report in a reasonable manner to his probation officer during a curfew check.\nAt the probation violation hearing, Officer Michael Vance Horn, an intensive surveillance officer with the North Carolina Department of Correction, testified that a curfew was imposed on Defendant as part of Defendant\u2019s intensive supervision program and that Horn was responsible for conducting curfew checks on Defendant. Horn further testified that during Horn\u2019s first visit with Defendant, Horn explained that compliance with curfew meant that Defendant had to be in his home between the hours of 6:00 p.m. and 6:00 a.m., and\n[i]n regards to his personal conduct, I told him that as long as he drank \u2014 if he drank one beer there would be no problem. If he was intoxicated and he put \u2014 my safety felt endangered that he would be [cited for a probation violation] right then.\nHorn testified further as follows: on 23 June 2008, at approximately 7:50 p.m., Horn went to Defendant\u2019s residence to conduct a curfew check. Horn found Defendant at home but \u201chighly intoxicated.\" Horn testified that he \u201cexplained to [Defendant] that he needed to quit drinking at that point. . . and to go to bed[.]\u201d At 8:15 p.m., Horn received a phone call from Defendant\u2019s girlfriend advising Horn that Defendant was in his front yard \u201cyelling, carrying on.\u201d At approximately 8:20 p.m., Horn returned to Defendant\u2019s residence and observed Defendant entering his home. Horn went to Defendant\u2019s door and asked Defendant \u201cwhat he was still doing up, that he had had plenty of time to go lay down.\u201d Horn testified that Defendant \u201ccommenced to start yelling.\u201d Horn told Defendant it was not necessary to yell, but Defendant \u201ckept yelling and cursing different things[.]\u201d Horn then placed Defendant under arrest for violating Defendant\u2019s probation.\nWhen asked which condition of probation Defendant had violated, Horn responded,\n[i]t will be number 13, submit at a reasonable time to warrantless searches, that\u2019s warrantless searches; number 6,1 believe. I can\u2019t find it right here, I\u2019m trying to read.\nThe trial court then interjected, \u201cI took it to be the intensive term?\u201d Horn responded, \u201cYes, ma\u2019am, part of the intensive supervision.\u201d Horn then testified, \u201c[i]t says in number \u2014 the intensive supervision submit to a supervising officer, sign intensive program and down here 6 to 9 months . . . [a]nd that would be at a reasonable time and a reasonable manner.\u201d When asked by defense counsel if Horn could read that condition specifically, verbatim, Horn explained that it was \u201c[Officer] Wallace\u2019s responsibility and not mine\u201d to determine which condition Defendant had violated. Horn was able to testify that Defendant\u2019s probation did not prohibit Defendant from possessing or consuming alcohol.\nAs Defendant\u2019s probation officer, Wallace was responsible for supervising Defendant\u2019s compliance with the terms and conditions of Defendant\u2019s probation. Wallace testified that the single violation he assigned to Defendant based upon Wallace\u2019s supervision of Defendant was\nregular condition number 6, that the Defendant report as directed by the Court or the probation officer to the officer at reasonable times, reasonable places[,] and in a reasonable [manner].\nWallace further testified that curfew is an ordinary condition of intensive probation, and that surveillance officers conduct curfew checks twice a week. Additionally, Wallace would visit Defendant once a month at Defendant\u2019s residence, and Defendant would report to Wallace\u2019s office once a month. Wallace testified that he had also explained to Defendant that \u201cpart of his intensive supervision is that . . . he\u2019s not at home drunk.\u201d\nAt the conclusion of the arguments, the trial court announced:\nAfter hearing the evidence I\u2019m satisfied in the exercise of my discretion that the Defendant did violate the terms and conditions of his probation, specifically that he failed to comply with the condition of his probation that he submit to supervision by officers of the intensive probation program and comply with the rules adopted by that program.\nAfter making oral findings regarding Defendant\u2019s failure to comply with the rules of Defendant\u2019s intensive probation, the trial court stated, \u201cI don\u2019t know that I even have to read whether it was a violation of the terms of his regular probation.\u201d\nOn that same day, the trial court entered judgment and commitment upon revocation of probation, finding: \u201cThe condition(s) violated and the facts of each violation are as set forth ... in paragraph(s) 1 in the Violation Report. . . dated 06/27/08.\u201d The judgment and commitment revoked Defendant\u2019s probation and activated his suspended sentence. From this judgment and commitment, Defendant appeals.\nII. Discussion\nWe first address Defendant\u2019s argument that the trial court lacked subject matter jurisdiction to enter judgment and commitment revoking Defendant\u2019s probation for the violation of a condition of probation of which Defendant had no notice.\nBefore revoking or extending a defendant\u2019s probation, \u201c[t]he State must give the [defendant] notice of the [probation violation] hearing and its purpose, including a statement of the violations alleged.\u201d N.C. Gen. Stat. \u00a7 15A-1345(e) (2007). The purpose of the notice mandated by this section is to allow the defendant to prepare a defense and to protect the defendant from a second probation violation hearing for the same act. See, e.g., State v. Russell, 282 N.C. 240, 243-44, 192 S.E.2d 294, 296 (1972) (explaining that the purpose of an indictment in a criminal case is to put the defendant on notice of the charges against him so that he may prepare a defense and be protected from a second prosecution for the same act). Relying on State v. Cunningham, 63 N.C. App. 470, 305 S.E.2d 193 (1983), Defendant contends that he did not have sufficient notice of the alleged violation for which Defendant\u2019s probation was ultimately revoked. Defendant\u2019s argument is without merit.\nIn Cunningham, the probation violation report served upon defendant alleged that defendant had played loud music disturbing his neighbors and removed property signs posted by defendant\u2019s neighbors, in violation of the good behavior condition of defendant\u2019s probation. Id. at 475, 305 S.E.2d at 196. However, at the revocation hearing, the State sought to prove additional conduct not contained in the report \u2014 that defendant trespassed upon and damaged real and personal property belonging to defendant\u2019s neighbors. The trial court revoked defendant\u2019s probation for defendant\u2019s playing loud music as well as for defendant\u2019s trespass and damage to property. Id. This Court reversed the probation revocation based on defendant\u2019s trespass and damage to property because \u201c[t]he record does not show that defendant received notice or a statement of an alleged violation consisting of trespass or damage to property.\u201d Id.\nHere, the probation violation report alleged that Defendant \u201cfailed to report in a reasonable manner to his probation officer during a curfew check.\u201d Wallace testified that this language referred to Regular Condition number six in that Defendant failed to \u201creport as directed by the Court or the probation officer to the officer at reasonable times, reasonable places[,] and in reasonable [manner].\u201d The trial court interpreted the language to mean that Defendant \u201cfailed to . . . submit to supervision by officers of the intensive probation program and comply with the rules adopted by that program\u00e9]\u201d in violation of Special Condition number four. However, while the condition of probation which Defendant allegedly violated might have been ambiguously stated in the report, the report also set forth the specific facts that the State contended constituted the violation:\nS.O Michael Horn went to residence on 06/23/08 at 7:50 PM to check [Defendant\u2019s] curfew. The [Defendant] was home but he was so drunk that he could hardly walk. Officer Horn told this [Defendant] to stop drinking and go to bed. Officer Horn returned at 8:20 PM and [Defendant\u2019s] girlfriend was outside because she was scared to go back into [the] residence and [Defendant] was still drinking and raising cain.\nUnlike Cunningham, the evidence at the revocation hearing established these same facts. Based on this evidence, the trial court found as fact the allegations contained in the report and, therefore, revoked Defendant\u2019s probation. Thus, in contrast to Cunningham, Defendant received notice of the specific behavior Defendant was alleged and found to have committed in violation of Defendant\u2019s probation. We thus conclude that the probation violation report served upon Defendant gave Defendant sufficient notice of the alleged violation pursuant to N.C. Gen. Stat. \u00a7 15A-1345(e). Accordingly, the assignments of error upon which Defendant\u2019s argument is based are overruled.\nDefendant next argues that the trial court erred in revoking Defendant\u2019s probation as the State presented insufficient evidence that Defendant violated the condition set forth in the violation report. We disagree.\nA trial court may revoke a defendant\u2019s probation where the evidence is sufficient to \u201creasonably satisfy the [trial court] in the exercise of [its] sound discretion that the defendant has willfully violated a valid condition of probation or that the defendant has violated without lawful excuse a valid condition upon which the sentence was suspended.\u201d State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). \u201cFindings made in support of revoking probation must be supported by competent evidence . . . .\u201d State v. Sherrod, 191 N.C. App. 776, 777, 663 S.E.2d 470, 472 (2008). A trial court\u2019s judgment revoking a defendant\u2019s probation will be disturbed only upon a showing of a manifest abuse of discretion. State v. Guffey, 253 N.C. 43, 45, 116 S.E.2d 148, 150 (1960).\nAs stated supra, the probation violation report alleged that Defendant \u201cfailed to report in a reasonable manner to his probation officer during a curfew check.\u201d The trial court interpreted this allegation to mean that Defendant violated Special Condition number four, and the trial court found specifically that Defendant failed \u201cto comply with the rules of the intensive probation program.\u201d\nIn support of this finding, the trial court announced:\nThe officers testified, and I find it to be completely credible, that they informed [Defendant] of the curfews [sic]; that they told him they had to be able to communicate with him and talk to him during those curfews, that seems quite reasonable to me; nothing unreasonable about that requirement.\nIt\u2019s also, I think, of note that they didn\u2019t arrest him for violating his probation the first time they went out there. They waited until he continued to be disruptive and failed to follow their instructions about not disrupting things at his home, and when the officer went back out there he cursed at them and threatened them.\nThe trial court\u2019s written order found as fact the allegation contained in the violation report:\nS.O Michael Horn went to residence on 06/23/08 at 7:50 PM to check [Defendant\u2019s] curfew. The [Defendant] was home but he was so drunk that he could hardly walk. Officer Horn told this [Defendant] to stop drinking and go to bed. Officer Horn returned at 8:20 PM and [Defendant\u2019s] girlfriend was outside because she was scared to go back into [the] residence and [Defendant] was still drinking and raising cain. Officer Horn took [Defendant] into custody for his safety [and] the safety of his girlfriend and small child.\nHorn testified that he advised Defendant that Defendant \u201cneeded to be home between the hours of. . . 6:00 p.m. and 6:00 a.m.\u201d He also told Defendant that \u201c[i]f [Defendant] was intoxicated and he put\u2014 my safety felt endangered that he would be subject to being violated right then.\u201d\nWallace testified that a curfew is a normal condition of intensive probation and that Wallace \u201ctalked [to Defendant] about him drinking and him not drinking; him being on intensive probation, and part of his intensive supervision is that, just like Mr. Horn explained, he\u2019s not at home drunk.\u201d\nHorn testified that when he visited Defendant the first time on the evening in question, Defendant \u201cwas highly intoxicated. His girlfriend and small child ... was [sic] actually standing outside. When I got out of the car she advised that she was scared to go in . . . and that [Defendant] was highly intoxicated.\u201d When Horn returned later that evening, Defendant\u2019s girlfriend and child were across the street as the girlfriend was \u201cscared to come back into the residence.\u201d Defendant\u2019s condition had worsened and Defendant \u201ckept yelling and cursing different things, and at that time [Horn] placed [Defendant] under arrest for a probation violation.\u201d When the prosecutor asked Horn, \u201cDid you feel like at that time that your safety was compromised in the discharge of your duties with respect to this Defendant?\u201d, Horn responded, \u201cYes, I did. I felt like it could escalate into a violent confrontation considering what crime that he was on probation for.\u201d\nWe conclude that this evidence is sufficient to support the trial court\u2019s findings made in support of revoking Defendant\u2019s probation. Although Defendant argues that the State failed to offer the rules adopted by the Intensive Supervision Program into evidence, and did not produce evidence that not being intoxicated was a rule of intensive supervision, both Horn and Wallace testified that compliance with Defendant\u2019s curfew, part of the Intensive Supervision Program, meant that Defendant could not be drunk in his home. Defendant failed to object to this testimony or to offer any evidence to the contrary.\nWe hold that the trial court did not abuse its discretion in revoking Defendant\u2019s probation and activating Defendant\u2019s suspended sentence.\nAFFIRMED.\nJudges JACKSON and STROUD concur.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Floyd M. Lewis, for the State.", "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CARL LEWIS HUBBARD\nNo. COA08-1314\n(Filed 7 July 2009)\n1. Probation,and Parole\u2014 violation report \u2014 sufficient notice of violation\nA probation violation report gave defendant sufficient notice of the alleged violation pursuant to N.C.G.S. \u00a7 15A-1345(e). While the condition of probation which defendant allegedly violated might have been ambiguously stated, the report also set forth the specific facts that the State contended constituted the violation.\n2. Probation and Parole\u2014 violation \u2014 intensive supervision rules \u2014 findings\nThe evidence was sufficient to support the trial court\u2019s findings made in support of revoking defendant\u2019s probation where the violation alleged that defendant failed to report in a reasonable manner during a curfew check and the court interpreted this to mean that defendant violated a condition of the intensive probation program by being drunk and disruptive.\nAppeal by Defendant from judgment entered 8 August 2008 by Judge Catherine C. Eagles in Forsyth County Superior Court. Heard in the Court of Appeals 26 March 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Floyd M. Lewis, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for Defendant." }, "file_name": "0154-01", "first_page_order": 180, "last_page_order": 187 }