State v. Thorne, ___ N.C. App. ___, 2021–NCCOA–534 (Oct. 5, 2021)

The defendant was placed on 36 months of supervised probation after pleading guilty to one count of conspiracy to obtain property by false pretenses. The defendant’s probation officer subsequently filed a violation report alleging that the defendant had violated his probation by using illegal drugs, and an addendum alleging that the defendant had absconded from probation. At the violation hearing, the defendant admitted to using illegal drugs, but denied that he absconded. The state presented testimony at the violation hearing from a probation officer who was not involved in supervising the defendant, but read from another officer’s notes regarding the defendant’s alleged violations. The trial court found the defendant in violation, revoked his probation for absconding, and activated his suspended 10 to 21 month sentence. The defendant filed a pro se notice of appeal, which was defective, but the court granted his petition for writ of certiorari and addressed the merits.

On appeal, the defendant argued that his confrontation rights under G.S. 15A-1345(e) were violated when the trial court allowed another probation officer to testify from the supervising officer’s notes, over the defendant’s objection. However, at the hearing the defendant did not state that the objection was based on his statutory confrontation right, nor did he request that the supervising officer be present in court or subjected to cross-examination. The court held that, at most, it could be inferred that the defendant’s objection was based on hearsay grounds or lack of personal knowledge. The court rejected the defendant’s argument that the issue was preserved despite the absence of an objection because the trial court acted contrary to a statutory mandate, per State v. Lawrence, 352 N.C. 1 (2000). In this case, the trial court did not act contrary to the statute because the objection made at the hearing was insufficient to trigger the trial court’s obligation to either permit cross-examination of the supervising officer or find good cause for disallowing confrontation. Therefore, the officer’s testimony based on the notes in the file was permissible, and it established that the defendant left the probation office without authorization on the day he was to be tested for drugs, failed to report to his probation officer, did not respond to messages, was not found at his residence on more than one occasion, and could not be located for 22 days. Contrasting these facts with State v. Williams, 243 N.C. App. 198 (2015), in which the evidence only established that the probationer had committed the lesser violation of failing to allow his probation officer to visit him at reasonable times, the evidence here adequately showed that the defendant had absconded. The court therefore affirmed the revocation, but remanded the case for correction of a clerical error because the order erroneously indicated that both violations justified revocation, rather than only the absconding per G.S. 15A-1344(d2).