Appeal by defendant from judgment entered 10 October 1996 by Judge J.B. Allen, Jr., in Alamance County Superior Court. Heard in the Court of Appeals 27 January 1998.
The opinion of the court was delivered by: Eagles, Judge.
In this criminal case, defendant was accused of violating his probation by being "in the presence of any child, male or female, under the age of 16 years, at any time." On 10 October 1996, the trial court held that defendant had violated his probation and activated defendant's sentence but reduced his active sentence from twenty years to ten years in prison. Defendant appeals.
On 16 March 1988, defendant was sentenced to twenty years in prison upon conviction of two counts of attempted first degree rape and one count of first degree sexual offense. Defendant's sentence was suspended and he was placed on supervised probation for five years. On 9 September 1993, Judge Allen changed defendant's probation to intensive supervision because of a probation violation.
On 12 January 1994, the Alamance County Department of Social Services substantiated a finding of sexual abuse of Isaac Spencer, defendant's stepson. At the hearing upon a motion to modify the conditions of the defendant's probation for good cause without a charge of violation on 7 April 1994, the trial court reviewed a report from Mary Gratch-Adams, District Administrator of the Guardian Ad Litem program, which disclosed, among other things, that the defendant had sexually abused Isaac Spencer. As a result, Judge Allen again modified defendant's probation. Before the modification, Special Condition of Probation #3 stated "he defendant shall not be in the presence of Geneva Tabon, Lakisha Glover, and Kenneth White, or any female under the age of 16 years, at any time." Judge Allen modified condition #3 to read: "he defendant, Julius White, shall not be in the presence of any child, male or female, under the age of 16 years, at any time."
On 24 June 1996, Terry Dameron, defendant's probation officer, filed a violation report alleging that defendant had violated his probation by failing to report to his probation officer nine different times. On 12 July 1996 Judge Allen entered an order continuing defendant on probation with the proviso that "Subject continued on probation, pay $150.00 Attorney's Fees. If he violates probation in any way, get Judge J.B. Allen, Jr. to issue warrant for arrest." On 1 October 1996, ten days before defendant was scheduled to be taken off probation, probation officer Terry Dameron filed the probation violation report at issue here. The defendant was alleged to have violated Special Condition #3 by being in the presence of Isaac Spencer, his ten year old stepson.
An attorney was appointed for defendant on 7 October 1996 and the revocation hearing was held 10 October 1996. Evidence at the hearing showed that defendant was married to Linda Spencer, and Isaac Spencer was his stepson. On 14 September 1996, Isaac Spencer was visiting his aunt, Brenda Farrish. Isaac, then ten years old, was outside in the front yard playing football with some relatives, all of whom were under the age of sixteen. Defendant's nineteen year old niece, Nicole, accompanied by defendant drove into Bob Mason's driveway. Bob Mason is Brenda Farrish's next-door neighbor. While defendant was not driving the car, his attorney referred to the vehicle as defendant's car. Mr. Mason called Isaac over to the car in which defendant was sitting. Defendant made no comment. Isaac walked to the passenger side car door. Mr. Mason asked Isaac if he knew "this fellow." Defendant stated: "Of course he does. He is my own." Isaac then returned to playing football in the yard. Defendant left the car and visited his aunt, Ms. Farrish, in her home for about thirty minutes. As he was leaving his aunt's home, he said "Bye" to the children playing football.
The trial court concluded that defendant had violated Special Condition #3 by being in the presence of a child under the age of sixteen and revoked defendant's probation. The trial court activated defendant's sentence but reduced his active sentence from twenty years to ten years in prison. Defendant appeals.
We first consider whether the trial court erred in denying defendant's pre-trial motion to dismiss the probation violation report. Defendant argues that the modification made by Judge Allen that prohibits the defendant from being in the "presence" of any child under the age of sixteen was unconstitutionally vague and violates the Fourteenth Amendment of the United States Constitution and Art. 1 of the North Carolina Constitution. We disagree.
We hold that in this context the term "presence" is not unconstitutionally vague. First, G.S. 15A-1343(b2)(3) requires special conditions for sex offenders and persons convicted of sexual abuse of a minor including "ot communicating with, be in the presence of, or found in or on the premises of the victim of the offense." In addition, other arguably more vague conditions have been upheld by our Supreme Court. For example in State v. Hewett, a special condition requiring a probationer to "avoid injurious or vicious habits" was held not to be unconstitutionally vague. 270 N.C. 348, 356, 154 S.E.2d 476, 482 (1967). The term "presence" is arguably more precise than "injurious or vicious habit." Accordingly, we hold that "presence" is not unconstitutionally vague. This assignment of error is overruled.
We next consider whether the trial court erred in failing to recuse himself from the revocation proceeding. The defendant argues that Judge Allen should have recused himself based on his bias because he was the judge who imposed the sentence modification that the defendant challenged as unconstitutional. We disagree.
The burden is upon the movant to "demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the Judge that he would be unable to rule impartially." State v. Monserrate, 125 N.C. App. 22, 32, 479 S.E.2d 494, 501 (1997) (quoting State v. Honaker, 111 N.C. App. 216, 219, 431 S.E.2d 869, 871 (1993)), disc. review denied, 345 N.C. 645, 483 S.E.2d 716 (1997). The Code of Judicial Conduct does not require a judge to recuse himself in a probation revocation hearing when the Judge has obtained knowledge of the facts of the case from previous judicial proceedings. Id. at 33, 479 S.E.2d at 501. Accordingly, this assignment of error is also overruled.
We next consider whether the trial court erred when it denied defendant's motion to continue the probation violation hearing made at the beginning of the 10 October 1996 probation violation hearing. Defendant argues that counsel was appointed only three days before the hearing, counsel had inadequate time to prepare and the requested continuance should have been granted. Finding no abuse of discretion, we disagree.
A trial Judge's decision as to whether to continue a probation hearing is discretionary and may be reversed only upon a showing of an abuse of discretion. State v. Hewett, 270 N.C. 348, 354, 154 S.E.2d 476, 481 (1967). The defendant argued that he needed more time so he could subpoena Mr. Mason, an eyewitness in the case against the defendant. At the hearing, the defense counsel stated: "We had thought, erroneously, that the State, having the burden of proof, would have Mr. Mason here to testify." However, the State argued that Mr. Mason's testimony would not add anything to the proceeding because there is "nothing about this incident that's going to be in controversy factually." After argument the trial court denied the requested continuance. On this record we discern no abuse of discretion. This assignment of error is overruled.
We next consider whether the trial court erred in denying the defendant's motion to dismiss the probation violation proceeding made at the close of the State's evidence and at the end of all the evidence. The defendant argues that remaining as a passenger in a parked car while a child comes to the vicinity of the car not at the probationer's invitation or calling out "Bye" to children thirty feet away as you leave cannot be construed as being in the "presence" of a child. Defendant argues that the ...