              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA17-921

                              Filed: 20 February 2018

Rutherford County, Nos. 15 CRS 52149, 52446-48; 16 CRS 344

STATE OF NORTH CAROLINA

             v.

KELLA MELTON


      Appeal by defendant from judgments entered 8 February 2017 by Judge J.

Thomas Davis in Rutherford County Superior Court. Heard in the Court of Appeals

24 January 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
      Hyde, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katy
      Dickinson-Schultz, for defendant-appellant.


      ARROWOOD, Judge.


      Kella Melton (“defendant”) appeals from judgments revoking her probation

and activating her suspended sentences. On appeal, defendant argues that the trial

court abused its discretion in revoking her probation. For the reasons stated herein,

we reverse the trial court’s judgments.

                                 I.       Background

      On 14 July 2015 in Rutherford County Superior Court, defendant was given a

suspended sentence based on a conviction for possession of methamphetamine and
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simple possession of a Class IV controlled substance in case number 14 CR 53301.

This sentence was modified to an active sentence on 18 December 2015.

      On 31 May 2016 in Rutherford County Superior Court, defendant pleaded no

contest to identity theft, four counts of obtaining property by false pretenses, and

three counts of uttering a forged endorsement in case numbers 15 CRS 52149, 52446-

48, and 16 CRS 344. The trial court sentenced defendant to consecutive sentences of

13 to 25 months, 7 to 18 months, and 7 to 18 months, but suspended the sentences

and placed defendant on 30 months of supervised probation.

      On 4 November 2016, defendant’s probation officer, Officer Tiffany Nelson,

swore out probation violation reports, relating to defendant’s probation for 14 CR

53301, 15 CRS 52149, 52446-48, and 16 CRS 344, alleging that, on or about

2 November 2016, defendant willfully violated her probation by absconding in

violation of N.C. Gen. Stat. § 15A-1343(b)(3a) (2017), failing to report to her

supervising officer as directed in violation of § 15A-1343(b)(3), and being in arrears

towards her court indebtedness in violation of § 15A-1343(b)(9). As a result of the

violation reports, defendant was arrested on 9 December 2016. Defendant did not

meet with Officer Nelson again until 17 January 2017.

      The matter came on for hearing on 8 February 2017. At the hearing, Officer

Nelson testified that defendant failed to report for scheduled meetings with her on

2 August 2016,     4 October 2016,      12 October 2016,    28 October 2016,      and



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2 November 2016.        Prior to defendant’s failure to attend the 28 October and

2 November 2016 meetings, defendant met with Officer Nelson on 26 October 2016.1

Officer    Nelson    testified    that,     when defendant        failed    to   appear    for   the

2 November 2016 meeting, she attempted to contact defendant numerous times by

phone and by visiting defendant’s address. Defendant’s phone was disconnected, and

she was not present at the address. Officer Nelson also called and left messages with

defendant’s parents, asking for defendant to call her.                     On cross-examination,

however, she was unable to identify with any specificity when she made the contacts,

and she testified she did not have written record of these contacts with her at the

hearing.    At the close of the State’s evidence, defendant moved to dismiss for

insufficient evidence of absconding. The motion was denied. Defendant offered

evidence through defendant’s testimony.

       At the close of all evidence, the trial court found that defendant violated her

probation by absconding, failing to report to her scheduled appointments with her

probation officer, and failing to adequately pay the funds due on her probation. The

trial court also found that each violation in and of itself was a sufficient basis upon

which to revoke probation. Defendant’s probation was revoked, and the trial court

activated her sentences in 14 CR 53301, 15 CRS 52149, 52446-48, and 16 CRS 344.


       1  Although defendant testified she met with Officer Nelson on 28 October 2016 at the hearing,
the trial court found as fact, and defendant did not challenge on appeal, that defendant and Officer
Nelson did not meet on 28 October 2016. However, on appeal, defendant claims for the first time that
the scheduled 28 October 2016 appointment actually occurred on 26 October 2016.

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      On 10 February 2017, defendant gave notice of appeal.         Subsequently, on

2 March 2017, the trial court issued an order stating that probation was revoked in

error with regard to case number 14 CR 53301 because the sentence in that case had

previously been modified to an active sentence on 18 December 2015. Therefore, only

the probation revocations involving 15 CRS 52149, 52446-48, and 16 CRS 344 are at

issue in this appeal.

                                  II.    Discussion

      Defendant argues that the trial court abused its discretion by revoking her

probation because there was insufficient evidence to support a finding that she

absconded under N.C. Gen. Stat. § 15A-1343(b)(3a) as alleged by the violation reports.

We agree.

                    A hearing to revoke a defendant’s probationary
             sentence only requires 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 or that the defendant has violated
             without lawful excuse a valid condition upon which the
             sentence was suspended.

State v. Young, 190 N.C. App. 458, 459, 660 S.E.2d 574, 576 (2008) (citation and

quotation marks omitted).        When the State presents “competent evidence

establishing a defendant’s failure to comply with the terms of probation, the burden

is on the defendant to demonstrate through competent evidence an inability to comply




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with the terms.” State v. Talbert, 221 N.C. App. 650, 652, 727 S.E.2d 908, 910-11

(2012) (citation and quotation marks omitted).

      We review a trial court’s decision to revoke a defendant’s probation for abuse

of discretion. State v. Miller, 205 N.C. App. 291, 293, 695 S.E.2d 149, 150 (2010)

(citation omitted). A trial court abuses its discretion “when a ruling is manifestly

unsupported by reason or is so arbitrary that it could not have been the result of a

reasoned decision.” State v. Murchison, 367 N.C. 461, 464, 758 S.E.2d 356, 358 (2014)

(citation and quotation marks omitted).

      A trial court may only revoke a defendant’s probation in circumstances where

the defendant: (1) commits a new criminal offense, in violation of N.C. Gen. Stat. §

15A-1343(b)(1), (2) absconds by willfully avoiding supervision or by willfully making

her whereabouts unknown to the supervising probation officer, in violation of § 15A-

1343(b)(3a), or (3) violates any condition of probation after previously serving two

periods of confinement in response to violations, pursuant to § 15A-1344(d2). N.C.

Gen. Stat. § 15A-1344(a) (2017).

      We first consider defendant’s argument that the trial court erred by making

an oral finding that defendant absconded from 2 November 2016 until she was

arrested on 9 December 2016, instead of limiting its consideration of the evidence to

the dates alleged in the violation reports.        Specifically, defendant claims that

considering evidence up until her arrest was in error because the violation reports



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only specifically allege that defendant absconded from “on or about” 2 November 2016

to the date the reports were filed, 4 November 2016. We agree.

      In order to provide a defendant with notice of the allegations against him, as

required by N.C. Gen. Stat. § 15A-1345(e), probation violation reports must contain

a statement of the specific violations alleged. See State v. Moore, ___ N.C. ___, ___,

807 S.E.2d 550, 555 (2017) (quoting State v. Hubbard, 198 N.C. App. 154, 159, 678

S.E.2d 390, 394 (2009)). However, we note that, after making the contested oral

finding, the trial judge entered written judgments finding defendant violated her

probation by absconding from supervision, as alleged in the violation reports, which

the judgments incorporated by reference. Because the written findings are more

favorable to defendant than those announced from the bench, we consider the written

judgments as reflective of the trial court’s will. See State v. Morston, 336 N.C. 381,

410, 445 S.E.2d 1, 17 (1994).

      Therefore, we review for whether there was sufficient evidence to support a

finding that defendant absconded in violation of N.C. Gen. Stat. § 15A-1343(b)(3a)

based on the dates alleged in the violation reports—on or about 2 November to

4 November 2016.    For the reasons that follow, the evidence was insufficient to

support such a finding.

      Prior to our Legislature’s enactment of the Justice Reinvestment Act of 2011

(“JRA”), the term “abscond” was not defined by statute. State v. Williams, 243 N.C.



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App. 198, 205, 776 S.E.2d 741, 746 (2015) (citations omitted). Instead, our case law

used the term to refer to instances where a defendant failed to remain in the court’s

jurisdiction or failed to report to a probation officer as directed. See, e.g., State v.

Hunnicutt, 226 N.C. App. 348, 355, 740 S.E.2d 906, 911 (2013). Presently, “abscond”

is defined by statute, and a defendant on supervised probation only absconds when

he “willfully avoid[s] supervision” or “willfully mak[es] [his] whereabouts unknown

to [his] supervising probation officer[.]” N.C. Gen. Stat. § 15A-1343(b)(3a). This

change was in line with the JRA’s purpose to be “part of a national criminal justice

reform effort” which, among other changes, “made it more difficult to revoke

offenders’ probation and send them to prison.” State v. Johnson, ___ N.C. App. ___,

___, 783 S.E.2d 21, 26 (2016). Under the statutory definition set out in § 15A-

1343(b)(3a), we have held that a defendant absconds when he willfully makes his

whereabouts unknown to his probation officer, and the probation officer is unable to

contact the defendant. See State v. Trent, ___ N.C. App. ___, ___, 803 S.E.2d 224, 232,

temporary stay allowed, ___ N.C. ___, 802 S.E.2d 725 (2017).

      Here, the State presented evidence of the alleged violations through Officer

Nelson’s testimony. Officer Nelson testified that defendant absconded a week after

the 26 October 2016 meeting because she failed to attend the 28 October and 2

November meetings, and did not contact Officer Nelson thereafter, even though the

officer attempted to call and visit defendant multiple times over the course of two



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days, and called and left messages with defendant’s parents for defendant to call her.

However, on cross-examination, Officer Nelson could not support her testimony with

records:

             Q: You made how many phone calls trying to find her?

             [Officer Nelson]: Numerous.

             Q: One, two, three, four?

             [Officer Nelson]: More than four.

             Q: You went back to the residence, correct?

             [Officer Nelson]: Yes.

             Q: What times and dates?

             [Officer Nelson]: I don’t have that information with me.

             ....

             Q: What numbers did you call?

             [Officer Nelson]: Her primary number is her cell phone,
             and her secondary number is for her mother’s home phone.

             ....

             Q: . . . . Do you recall the number of times and dates that
             you made calls to those numbers?

             [Officer Nelson]: I don’t have that information with me at
             this time.

      After the State offered its evidence, defendant testified that she did not

willfully abscond because at the time of the alleged violation: her cell phone was


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missing, she was not at home when the officer visited, Officer Nelson left no messages

at the home, her parents told her that Officer Nelson had not come by or called her,

and she “had just [seen] [Officer Nelson] at the end of October[,]” so it did not

otherwise occur to her to contact Officer Nelson.

       The case the State relies on to support its argument that the trial court did not

err in its determination that defendant absconded, State v. Trent, ___ N.C. App. ___,

803 S.E.2d 224, temporary stay allowed, ___ N.C. ___, 802 S.E.2d 725 (2017), is

notably distinct from the case at bar. In Trent, we held the trial court did not abuse

its discretion by determining the defendant violated N.C. Gen. Stat. § 15A-

1343(b)(3a) when: the defendant’s probation officer was unable to locate him at home

on 24 April 2016 or 5 May 2016, the defendant’s wife told the probation officer that

the defendant had not been home from 24 April to 5 May 2016, the probation officer

had “absolutely no means of contacting” the defendant, and the defendant admitted

at his revocation hearing that he did not attempt to contact his probation officer, even

though he knew his probation officer was looking for him. Id. at ___, 803 S.E.2d at

231.

       Here, unlike in Trent, where the defendant admitted he knew his probation

officer attempted to contact him, the State failed to present competent evidence that

defendant’s failure to contact Officer Nelson from 2 November to 4 November 2016

was willful. Although Officer Nelson testified that she attempted to call and visit



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defendant, and left messages with defendant’s parents for defendant to contact her,

there was no showing that a message was given to defendant or, more generally, that

defendant knew Officer Nelson was attempting to contact her. Thus, although there

was competent evidence that Officer Nelson attempted to contact defendant, there

was insufficient evidence that defendant willfully refused to make herself available

for supervision from 2 November to 4 November 2016 (the only time period we can

consider under the violation report and the court’s written finding).

      We note that, as explained in Trent and emphasized by the State on appeal,

defendant had a duty to keep her probation officer apprised of her whereabouts.

Trent, ___ N.C. App. at ___, 803 S.E.2d at 232. However, this duty does not relieve

the State of its burden to provide competent evidence that defendant refused to make

herself available for supervision. Where, as here, the State’s evidence only includes

that a defendant failed to attend scheduled meetings, and the probation officer is

unable to reach a defendant after merely two days of attempts, only leaving messages

with a defendant’s relatives, the evidence is insufficient to reasonably satisfy a trial

judge that defendant willfully failed to keep her probation officer informed of her

whereabouts.

      We are not unsympathetic to the probation officer’s situation. It is clear that

defendant is far from a model probationer and should be held accountable for her

failures to comply. However, under the JRA, our Legislature has expressed a clear



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intent that activation of probationary sentences should only be used as a last resort

and after the use of the other tools available such as two “quick dips” pursuant to

N.C. Gen. Stat. § 15A-1344(d2). See Moore, ___ N.C. at ___, 807 S.E.2d at 554

(explaining that the JRA amended the law to decrease the conditions whose violation

would land a probationer back in prison to carry out the JRA’s purpose “to reduce

prison populations and spending on corrections and then to reinvest the savings in

community-based programs”) (citation and internal quotation marks omitted). In the

present case it does not appear that even with defendant’s lack of compliance she has

been subjected to any such intermediate punishment.          Given this fact, when

considered together with the two-day period between the missed appointments and

the absconding allegation, and the fact that the probation officer could not testify

with any specificity and did not have records regarding her attempts to locate

defendant during that two-day period, we are compelled to find that this case does

not support a judgment of revocation.

      There was insufficient competent evidence to establish defendant’s willful

violation of N.C. Gen. Stat. § 15A-1343(b)(3a). Therefore, the trial court abused its

discretion by revoking defendant’s probation based on § 15A-1343(b)(3a).         The

judgment is reversed and the matter is remanded for further proceedings consistent

with this opinion.

      REVERSED AND REMANDED.



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Judges CALABRIA and ZACHARY concur.




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