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Criminal Practice – Probation Revocation – Absconding – Insufficient Evidence

Holding: Although defendant’s probation officer testified that she attempted to call and visit defendant between the dates at issue (Nov. 2 to Nov. 4, 2016) 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 her probation officer was attempting to contact her. Thus, there was insufficient evidence that defendant willfully refused to make herself available for supervision from Nov. 2 to Nov. 4, 2016.

We reverse the revocation of defendant’s probation and remand for further proceedings.

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

State v. Melton (Lawyers Weekly No. 011-074-18, 12 pp.) (John Arrowood, J.) Appealed from Rutherford County Superior Court (J. Thomas Davis, J.) Joseph Hyde for the state; Katy Dickinson-Schultz for defendant. N.C. App.

 


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