State v. Bowman, COA23-384, ___ N.C. App. ___ (Nov. 21, 2023)

In this Forsyth County case, defendant appealed the revocation of his probation, arguing (1) he did not receive notice that his probation could be revoked at the hearing, and (2) that the State did not prove he committed a new criminal offense. The Court of Appeals disagreed, finding no error. 

While on probation for 15 counts of third-degree exploitation of a minor, defendant admitted to looking at child abusive materials during a group therapy session. This led to an investigation by defendant’s probation officer; defendant eventually admitted to looking at child pornography on his girlfriend’s phone. The probation officer filed a report, and the matter came for a hearing in September 2022, where defendant’s probation was revoked and his sentence was activated.

Taking up (1), the Court of Appeals rejected defendant’s argument that he was not given adequate notice that his probation could be revoked at the hearing. Here, the report filed by defendant’s probation officer described conduct that could be criminal, specifically viewing child pornography. Although the report did not explicitly allege defendant violated probation by committing this criminal offense, the court explained that “[t]he Report’s description of Defendant’s alleged behavior was sufficient to give Defendant notice of possible probation revocation.” Slip Op. at 8. 

Considering (2), the court explained that while the trial court did not explicitly reference the new crime that defendant committed (third-degree exploitation of a minor), the evidence admitted at the hearing was sufficient to support the trial court’s determination that defendant committed the offense when revoking his probation. The court noted that defendant’s admissions, along with the evidence gathered from his girlfriend’s phone, were sufficient to support the conclusion that defendant “possessed material containing a visual representation of a minor engaging in sexual activity and committed third-degree exploitation of a minor.” Id. at 11. 

Judge Collins concurred in the result only.