In State v. Krider, __ N.C. App. __, 810 S.E.2d 828 (2018) (discussed here), a divided court of appeals vacated the defendant’s probation revocation based on absconding. Last week, the supreme court affirmed the court of appeals. Today’s post considers what Krider tells us about absconding—and what constitutes sufficient proof of any probation violation.
In Krider, the defendant was on felony probation for cocaine possession. About six months into Mr. Krider’s yearlong probation period, his probation officer visited his listed address. The defendant wasn’t there. A week later, the officer filed a violation report alleging that Krider had absconded. At the ensuing violation hearing, the probation officer testified that when he visited the house, an “elderly black female” told him that the defendant didn’t live there. The trial judge found the defendant absconded and revoked probation.
The court of appeals vacated the revocation, concluding that there was insufficient evidence that Mr. Krider absconded. The court flagged several issues as important in reaching that conclusion. First, the State didn’t put on any evidence of the identity of the woman who told the officer that the defendant didn’t live at the house—or whether she even lived there herself. Second, the officer did not make any attempt to revisit the residence or otherwise verify the defendant’s whereabouts. Third, there was no evidence that the defendant was aware of the officer’s attempt to find him, and thus no indication that he was willfully making his whereabouts unknown. And fourth, the State failed to refute the defendant’s testimony that he made several attempts to reach out to his probation officer.
Based on those issues, the court of appeals decided that the case couldn’t be meaningfully distinguished from State v. Williams, 243 N.C. App. 198 (2015) (discussed here)—the case where the defendant’s prolonged absence (and travel to New Jersey) was clearly a technical violation, but didn’t rise to the level of absconding. And so the court found itself bound by the prior panel’s decision in Williams to overturn the revocation in Krider.
Judge Murphy dissented, noting some ways Krider’s case was different from Williams and other recent absconding cases. For example, unlike the defendant in Williams, Krider didn’t keep his probation officer informed by telephone of his whereabouts. Unlike the defendant in State v. Johnson, __ N.C. App. __, 783 S.E.2d 21 (2016), Krider was not wearing an electronic monitor that made his whereabouts known. With those distinctions in mind—and reviewing the matter for an abuse of discretion by the trial judge—Judge Murphy would have affirmed the revocation.
The case made its way to the supreme court, which issued its decision last week. It was a short one: a brief per curiam opinion, affirming the court of appeals’ decision that the trial judge lacked sufficient evidence to revoke probation based on absconding.
Until recently, it had been hard to find many appellate cases overturning a trial judge’s decision at a probation violation hearing based on insufficiency of the evidence. See State v. Tennant, 141 N.C. App. 524, 527–28 (1990) (collecting many cases where the evidence was sufficient to find a violation). Probation violation hearings are informal; the rules of evidence do not apply; the standard of proof is to the judge’s reasonable satisfaction; and the appellate courts review those decisions for abuse of discretion. Lately, however, a series of absconding cases—including Krider, Williams, and State v. Melton, __ N.C. App. __, 811 S.E.2d 678 (2018)—have turned on insufficiency of the evidence.
It will be interesting to see whether these recent cases signify a trend toward a more searching review of the evidence in all probation cases, or whether that approach will be limited to absconding violations. In the meantime, the State will surely want to avoid (and the defendant will surely want to highlight) the evidentiary issues deemed significant in Krider and Williams. In Melton, the insufficiency stemmed largely from the limited range of dates referenced in the probation violation report; much of the hearing testimony on the defendant’s absence covered behavior that occurred after absconding date alleged in the violation report. With that case in mind, officers will want to allege a range of dates broad enough to cover all the behavior relevant to the court’s evaluation of the absconding, not just the “final” date marking the end of the officer’s investigation into the matter.