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Two More Absconding Revocations Overturned

Published for NC Criminal Law on March 01, 2018.

It seems to be getting harder, not easier, to say what it means to abscond from probation.

The regular, statutory absconding condition says that supervised probationers must “[n]ot abscond by willfully avoiding supervision or by willfully making the defendant’s whereabouts unknown to the supervising probation officer.” G.S. 15A-1343(b)(3a). Absconding violations are important, of course, because they are among the limited categories of violations for which a person may be revoked. G.S. 15A-1344(a).

You can read everything I’ve ever written about absconding on this blog here. Those posts include case summaries of cases like State v. Johnson, __ N.C. App. __, 783 S.E.2d 21 (2016) (not absconding to miss one appointment), State v. Williams, __ N.C. App. __, 776 S.E.2d 741 (2015) (not absconding to miss appointments and travel out of state when probationer’s whereabouts were not actually unknown to the officer), and State v. Trent, __ N.C. App. __, 803 S.E.2d 224 (2017), temp. stay allowed, __ N.C. __, 802 S.E.2d 725 (2017) (defendant absconded by being absent for over two weeks with his whereabouts unknown).

Two recent cases give us some additional data points on what it means for a probationer to abscond. Or, not to abscond, as it turns out.

The first is State v. Krider. In Krider, the defendant was on supervised probation for a felony drug offense. His probation officer tried to visit him at home, but he wasn’t there. A woman at the house told the officer that the defendant didn’t live there. Seven days later the officer filed a violation report alleging that the defendant absconded. The violation report read as follows:


The defendant was arrested about two months later.

At the ensuing violation hearing, the officer testified that that the defendant “absconded probation and his whereabouts were unknown for two months.” The officer said he never attempted to contact the defendant at him at home again after learning from the woman at the house that he didn’t live there. The trial judge revoked.

The defendant appealed, arguing that the evidence did not support the trial judge’s finding that he had absconded. Over a dissent, the court of appeals agreed. The majority distinguished the case from Trent (where an absconding violation was affirmed) because in this case the State did not prove the identity of the woman who told the defendant’s probation officer that he no longer lived at his identified residence (in Trent, it was the defendant’s wife who told the probation officer that the probationer left the residence). Additionally, the officer here never made a return visit to the house to verify the woman’s information. Add to that the defendant’s unrebutted testimony that he tried to call the officer and left voice mails for him, and the court concluded that the State failed to present sufficient evidence to prove to the trial court’s reasonable satisfaction that the defendant had absconded.

The dissenting judge would have deemed the evidence sufficient, focusing on the officer’s testimony that the defendant made his whereabouts unknown for two months.

The second case is State v. Melton. In Melton, the defendant was on supervised probation for identity theft and other crimes. Her officer alleged that she absconded. At the violation hearing, the probation officer testified that the defendant met with the officer on 26 October but then missed scheduled meetings on 28 October and 2 November 2016. The missed meetings prompted the officer to “attempt[] to contact defendant numerous times by phone and by visiting defendant’s address.” The trial judge revoked her probation based on absconding.

As in Krider, the court of appeals overturned the revocation (although this time reversing it and remanding for further proceedings, rather than merely vacating it). The court concluded that there was insufficient evidence to support a finding of absconding. In particular, the court found it significant that the officer made only two attempts to contact the probationer and left messages only with the probationer’s relatives.

So what is going on here? Two cases, decided on the same day, where the court of appeals—applying an abuse-of-discretion standard of review—concluded that the evidence was insufficient for the trial court to find that a probationer absconded—even to the fairly low bar of the trial judge’s “reasonable satisfaction.”

Neither case turned on improper notice. The violation reports were sufficient to put the defendant on notice that absconding would be an issue at the violation hearing. They were not mere accumulations of technical violations (failures to report, failures to remain in the jurisdiction, or failures to provide a valid address) that have been an issue in previous absconding cases. See Williams, 243 N.C. App. at 205.

No, it wasn’t about the notice. In both cases the issue was the evidence presented by the State at the violation hearing. And in both cases, there were enough issues with how that evidence was presented for the court of appeals to conclude that the trial court abused its discretion by being reasonably satisfied with it. In Krider, the court highlighted the State’s failure to provide evidence of the identity of the woman (or “whether she even lived at the residence,” slip op. at 10) who told the officer the probationer didn’t live at the house. The State did not cross-examine or otherwise impeach the defendant’s testimony that he had tried to call his officer, left voicemail, but never heard back. Id. at 11. In Melton, the court was troubled by the officer’s lack of information during cross-examination about the specific times and dates that the officer went to the probationer’s residence (“I don’t have that information with me”), or when and how many times the officer tried to call (“I don’t have that information with me at this time”).

It’s also worth noting that both of these cases were fairly “quick-draw” absconding violations. In Krider, the officer filed the absconding violation 7 days after being informed that the defendant didn’t live at the house. In Melton, the officer filed the absconding violation 9 days after her last successful meeting with the probationer. Neither report was filed as quickly as the one in Johnson, 783 S.E.2d at 21, where the officer filed it 3 days after the probationer’s lone missed appointment. But neither took full advantage of the 10-day investigation timeline applicable to most probationers as a matter of administrative policy (Chapter D.0503).

There may be more to follow on these cases—at least with respect to Krider, based on the dissent. For now, though, when we look at all the post–Justice Reinvestment absconding cases, it appears that the State is in the best position to establish an absconding violation when it can establish a lengthy lack of communication between officer and probationer (as in State v. Nicholas Johnson, __ N.C. App. __, 782 S.E.2d 549 (2016) (“multiple months” without communication, as discussed here), or when it can show that the probationer is clearly aware of the officer’s attempts to find him or her, but nonetheless fails to check in (as in Trent—although remember that even Trent has been temporarily stayed).

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