State v. Bouler, No. COA09-1501 (N.C. App. 6/15/2010)

• Decision Date: 15 June 2010
• Docket Number: No. COA09-1501.,COA09-1501.
• Court: North Carolina Court of Appeals
• Parties: STATE OF NORTH CAROLINA, v. TONY ALAN BOULER.

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STATE OF NORTH CAROLINA, v. TONY ALAN BOULER.

No. COA09-1501.

Court of Appeals of North Carolina.

Filed June 15, 2010.

Appeal by defendant from judgment entered 3 August 2009 by Judge Arnold O. Jones, II in Superior Court, Wayne County, No. 08 CRS 50484. Heard in the Court of Appeals 7 June 2010.

Attorney General Roy Cooper, by Assistant Attorney General Newton G. Pritchett, Jr., for the State.

Lisa Skinner Lefler for defendant-appellant.

UNPUBLISHED OPINION

STEELMAN, Judge.

There was sufficient evidence in the record to show that defendant was in constructive possession of firearms, in violation of defendant's probation. Because this violation of a valid condition of probation was sufficient, in and of itself, to revoke defendant's probation, we need not address the other violation pertaining to controlled substances. The trial court did not abuse its discretion in revoking defendant's probation.

I. Factual and Procedural Background

On 7 May 2008, defendant Tony Alan Bouler, Jr. (defendant) entered a plea of guilty to one count of possession or distribution of methamphetamine precursor chemicals and one count of possession with intent to manufacture, sell, or deliver methamphetamine. Defendant's plea was entered pursuant to a plea arrangement, whereby the two charges would be consolidated for judgment and all other charges would be dismissed. On 8 May 2008, the trial court entered a consolidated judgment and sentenced defendant to 18 to 22 months imprisonment. This sentence was suspended, and defendant was placed on supervised probation for 24 months. As an intermediate sanction, defendant was to serve a sentence of special probation in the Department of Corrections of 5 months. As a regular condition of probation, defendant was prohibited from possessing firearms. As a special condition of probation, defendant was required to submit at reasonable times to warrantless searches of his person, premises, and vehicle by a probation officer for the purposes of checking for controlled substances and contraband. Defendant was not to use, possess, or control any illegal drug or controlled substance unless it has been prescribed for defendant by a licensed physician and is in the original container with the prescription number affixed on it. Defendant was also not to possess any firearm, explosive device, or other deadly weapon.

On 19 June 2009, defendant's probation officer filed a probation violation report alleging the following violations: (1) a warrantless search of defendant's residence produced "16 large green pills in a capsule in a bottle, 10 white oval pills in bottle with Michelle Hood address 295 B Falling Creek Church Rd., 27 pink pills Bisacadyl tablet, 10 brown oval pills AZO standard" and (2) defendant had two shotguns as well as two different types of ammunition in his residence.

On 3 August 2009, the trial court conducted a probation revocation hearing. The trial court found that defendant violated the terms and conditions of his probation as alleged in paragraphs one and two of the violation report and found that each violation, in and of itself, was a sufficient basis for revocation of defendant's probation and activation of his sentence.

Defendant appeals.

II. Revocation of Defendant's Probation

Defendant brings forward only one argument in his brief, contending that the trial court erred by failing to make adequate findings of fact to support the revocation of defendant's probation. We disagree.

Under N.C. Gen. Stat. § 15A-1344 (2009), a trial court has authority to reduce, terminate, continue, extend, modify, or revoke probation upon a finding that defendant violated the conditions of probation. It is well-established that "[p]roceedings to revoke probation are often regarded as informal or summary." State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 479 (1967). "An alleged violation by a defendant of a condition upon which his sentence is suspended `need not be proven beyond a reasonable doubt. All that is required is that the evidence 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.'" State v. Tennant, 141 N.C. App. 524, 526, 540 S.E.2d 807, 808 (2000) (quoting State v. Robinson, 248 N.C. 282, 285-86, 103 S.E.2d 376, 379 (1958)). When there is evidence in the record to support the trial court's findings of fact, appellate courts are bound by them. State v. Morton, 252 N.C. 482, 483, 114 S.E.2d 115, 116 (1960) (citation omitted); see also Hewett, 270 N.C. at 356-57, 154 S.E.2d at 482.

The trial court found as a fact that:

"The condition(s) violated and the facts of each violation are as set forth . . . in paragraph(s) 1-2 in the Violation Report or Notice dated 06/19/2009."

Paragraphs 1-2 of the Violation Report state:

The defendant had . . . 10 white oval pills in bottle with Michelle Hood address 295 B Falling Creek Church Rd., . . .

The defendant had a 12 gauge pump shotgun,.308 Browning Bolt Action, 12 gauge single shot gun. Ammo: 8 quantity 12 gauge shotgun shells 35 quantity .38 handgun ammo.

Defendant argues that these findings are not sufficient to support revocation because they fail to show whether defendant possessed, or knew of the presence of, the items forbidden by his probation.

Defendant was not in actual possession of any of the firearms found by the probation officers. Rather, the trial court's finding was based upon constructive possession. "Constructive possession exists when a person lacking actual...