IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-352

No. COA20-24

Filed 20 July 2021

Columbus County, No. 13 CRS 050656

STATE OF NORTH CAROLINA

v.

GERALD LAMONT HEMINGWAY, Defendant.

Appeal by Defendant from judgment entered 14 August 2019 by Judge Douglas 

B. Sasser in Columbus County Superior Court. Heard in the Court of Appeals 22 

September 2020.

Attorney General Joshua H. Stein, by Assistant Attorney General Narcisa 

Woods, for the State.

Yoder Law PLLC, by Jason Christopher Yoder, for defendant-appellant.

MURPHY, Judge.

¶ 1 The trial court could not revoke Defendant’s probation solely for a positive drug 

test. However, the trial court did not abuse its discretion when it revoked his 

probation for a violation of N.C.G.S. § 15A-1343(b)(1). There is sufficient evidence in 

the Record to support the trial court’s finding that Defendant committed new criminal 

offenses in violation of N.C.G.S. § 15A-1343(b)(1). 
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¶ 2 Before denying Defendant the opportunity to confront and cross examine an 

adverse witness, the trial court must make a finding of good cause pursuant to 

N.C.G.S. § 15A-1345(e). When the trial court does not exercise its discretion, we 

cannot determine whether it abused its discretion and the case must be remanded to 

the trial court for further findings. Here, based upon our review of the Record, it does 

not appear as though the trial court exercised its discretion in determining whether 

good cause exists. 

BACKGROUND

¶ 3 In August 2017, Defendant Gerald Lamont Hemingway pled guilty to one 

count of possession with intent to sell or distribute marijuana. Defendant was 

sentenced to 8 to 19 months in prison and his sentence was suspended for 24 months 

of supervised probation. As part of the standard conditions of his probation (AOCCR-603C), Defendant was not to commit any criminal offense in any jurisdiction and 

Defendant could “[n]ot use, possess, or control any illegal drug or controlled substance 

unless it ha[d] been prescribed for [him] by a licensed physician and [was] in the 

original container with the prescription number affixed on it[.]” See N.C.G.S. § 15A1343(b)(15) (2019). 

¶ 4 The State alleged Defendant violated the conditions of his probation in two 

violation reports by (1) committing new criminal offenses; and (2) testing positive for 

cocaine. Paragraph 3 of the Violation Report dated 20 March 2018 alleges:
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Of the conditions of probation imposed in that judgment, 

[Defendant] has willfully violated:

. . .

3. General Statute 15A-1343(b)(1) “Commit no criminal 

offense in any jurisdiction” in that [Defendant] HAS THE 

FOLLOWING CHARGES THAT ARE VIOLATIONS OF

[Defendant’s] CURRENT PROBATION: 18CR050542 

FELONY POSSESSION OF COCAINE, MAINTAIN 

VEH/DWELL/PLACE CS (F) OFFENSE DATE [13 March 

2018];

18CR050550 (F) CONSPIRE TO TRAFFIC IN COCAINE 

OFFENSE DATE [13 March 2018]

18CR050551 (F) SELL COCAINE, MAINTAIN 

VEH/DWELL/PLACE CS (F) 

OFFENSE DATE [12 March 2018]

18CR050552 (F) SELL COCAINE, MAINTAIN 

VEH/DWELL/PLACE CS (F) 

OFFENSE DATE [12 March 2018]

18CR050557 (F) CONSPIRE TO TRAFFIC COCAINE

(F) CONSPIRE TO TRAFFIC COCAINE OFFENSE 

DATE [13 March 2018]

18CR050558 (F) SELL OR DELIVER COUNTERFEIT CS 

(F) PWISD COUNTERFEIT CS OFFENSE DATE [13 

March 2018] 

Paragraph 1 of the Violation Report dated 4 April 2018 alleges:

Of the conditions of probation imposed in that judgment, 

[Defendant] has willfully violated:

1. Condition of Probation “Not use, possess or control any 

illegal drug or controlled substance unless it has been 
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prescribed for [Defendant] by a licensed physician and is in 

the original container with the prescription number affixed 

on it . . .” in that

[Defendant] TESTED POSITIVE FOR COCAINE ON [4 

April 2018]. 

¶ 5 A properly noticed probation violation hearing was held on 14 August 2019. At 

the probation violation hearing, Probation Officer Amy Cartrette (“Cartrette”) 

testified Defendant tested positive for cocaine on 4 April 2018, but Defendant had 

denied using cocaine. Lieutenant Barett Thompson (“Lieutenant Thompson”) also 

testified about two purchases he initiated with Defendant through a paid informant. 

The paid informant did not testify at the probation violation hearing. 

¶ 6 Both purchases occurred on 12 March 2018. After meeting with Defendant at 

his residence, the paid informant returned to a predetermined area to meet 

Lieutenant Thompson. Lieutenant Thompson and other officers searched the paid 

informant and found a “white powder substance” from the “agreed-upon transaction 

between the [paid informant] and the target, [Defendant].” Later in the afternoon on 

12 March 2018, the paid informant went back to Defendant’s residence to conduct a 

second purchase. 

¶ 7 These purchases were used as the basis for obtaining a search warrant for 

Defendant’s house, where Lieutenant Thompson found 

a pair of pants that [Defendant] stated were his pants. 

They contained $625[.00] in cash in the pocket. Located in 

the bathroom were three small off-white rocks and a small 
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bag of green leafy substance. . . . All the evidence was 

placed in the Evidence of Columbus County Sheriff’s Office, 

and $500[.00] of the $625[.00] in the pants pocket matched 

the source buy money used from the day before. 

Defendant was subsequently charged with possession of cocaine, possession of 

marijuana, maintaining a dwelling place, and sale and delivery of cocaine. 

¶ 8 The trial court revoked Defendant’s probation, finding:

3. The condition(s) violated and the facts of each violation 

are as set forth . . .

a. In Paragraph(s) 3 of the Violation Report or Notice dated 

[20 March 2018].

b. In Paragraph(s) 1 of the Violation Report or Notice dated 

[4 April 2018].

. . .

4. Each of the conditions violated as set forth above is valid; 

[Defendant] violated each condition willfully and without 

valid excuse; and each violation occurred at a time prior to 

the expiration or termination of the period of [Defendant]’s 

probation. 

Each violation is, in and of itself, a sufficient basis upon 

which this [c]ourt should revoke probation and activate the 

suspended sentence. 

¶ 9 According to the trial court’s written findings, Defendant’s probation was 

revoked for (1) committing new criminal offenses and (2) testing positive for cocaine. 

However, at the probation revocation hearing, the judge orally stated “[t]he basis of 

the revocation is that [Defendant] has committed a new criminal offense.” Defendant 
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timely appealed and requests the judgment be vacated and his case be remanded for 

a new probation revocation hearing. 

ANALYSIS

¶ 10 Defendant argues the trial court erred in revoking his probation and he is 

entitled to a new probation violation hearing. Specifically, Defendant argues 

pursuant to the Justice Reinvestment Act (“JRA”), 2011 N.C. Sess. Laws 192, his 

probation cannot be revoked solely for a positive drug test; there was insufficient 

evidence for the trial court to conclude Defendant had committed new crimes, namely 

the sale, delivery and/or possession of illegal narcotics; and he was deprived of his

constitutional right to confrontation pursuant to the Due Process Clause, as well as 

his statutory right to confrontation in a probation revocation hearing pursuant to 

N.C.G.S. § 15A-1345(e). 

A. Positive Drug Test

¶ 11 We agree with Defendant in that the trial court “erred in revoking [his] 

probation after finding that [Defendant] ‘tested positive for cocaine on [4 April 2018].’”

To revoke a defendant’s probation, the trial court need only 

find that the defendant has willfully violated a valid 

condition of probation or that the defendant has violated 

without lawful excuse a valid condition upon which the 

sentence was suspended. Additionally, once the State has 

presented competent evidence establishing a defendant’s 

failure to comply with the terms of probation, the burden 

is on the defendant to demonstrate through competent 

evidence an inability to comply with the terms. If the trial 
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court is then reasonably satisfied that the defendant has 

violated a condition upon which a prior sentence was 

suspended, it may within its sound discretion revoke the 

probation. 

State v. Stephenson, 213 N.C. App. 621, 624, 713 S.E.2d 170, 173 (2011) (internal 

citations and marks omitted). Further, pursuant to the JRA, 

for violations occurring on or after 1 December 2011, the 

trial court may only revoke a defendant’s probation where 

the defendant (1) commits a new criminal offense in 

violation of [N.C.G.S.] § 15A-1343(b)(1); (2) absconds by 

willfully avoiding supervision or by willfully making the 

defendant’s whereabouts unknown to the supervising 

probation officer, in violation of [N.C.G.S.] § 15A1343(b)(3a); or (3) violates any condition after previously 

serving two periods of confinement in response to 

violations (“CRV”) pursuant to [N.C.G.S.] § 15A-1344(d2). 

State v. Krider, 258 N.C. App. 111, 113-14, 810 S.E.2d 828, 830, modified and aff’d 

per curiam, 371 N.C. 466, 818 S.E.2d 102 (2018) (internal citations and marks 

omitted); see Justice Reinvestment Act, 2011 N.C. Sess. Laws 192. “For all other 

violations, the trial court may either modify the conditions of the defendant’s 

probation or impose a 90-day period of CRV.” Id. at 114, 810 S.E.2d at 830. 

¶ 12 N.C.G.S. § 15A-1343(b) sets out regular conditions of probation that “apply to 

each defendant placed on supervised probation unless the presiding judge specifically 

exempts the defendant from one or more of the conditions in open court and in the 

judgment of the court[,]” including:
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(b) Regular Conditions. -- As regular conditions of 

probation, a defendant must:

(1) Commit no criminal offense in any jurisdiction.

. . .

(15) Not use, possess, or control any illegal drug or 

controlled substance unless it has been prescribed for him 

or her by a licensed physician and is in the original 

container with the prescription number affixed on it; not 

knowingly associate with any known or previously 

convicted users, possessors, or sellers of any such illegal 

drugs or controlled substances; and not knowingly be 

present at or frequent any place where such illegal drugs 

or controlled substances are sold, kept, or used.

N.C.G.S. § 15A-1343 (2019).

¶ 13 While at the probation revocation hearing, the judge orally stated “[t]he basis 

of the revocation is that [Defendant] has committed a new criminal offense[,]” the 

trial court’s written findings found Defendant’s probation was revoked for (1) 

committing new criminal offenses and (2) testing positive for cocaine. “[I]f there is 

some conflict between oral findings and ones that are reduced to writing, the written 

order controls for purposes of appeal.” State v. Johnson, 246 N.C. App. 677, 684, 783 

S.E.2d 753, 759 (2016); see Durham Hosiery Mill Ltd. P’ship v. Morris, 217 N.C. App. 

590, 593, 720 S.E.2d 426, 428 (2011) (“The general rule is that the trial court’s written 

order controls over the trial judge’s comments during the hearing.”). Accordingly, the 

written order controls and our analysis is based on the trial court revoking 
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Defendant’s probation for committing new criminal offenses in violation of N.C.G.S. 

§ 15A-1343(b)(1) and testing positive for cocaine in violation of N.C.G.S. § 15A1343(b)(15). 

¶ 14 Defendant is correct that pursuant to the JRA, his probation cannot be revoked 

solely for his violation of N.C.G.S. § 15A-1343(b)(15).1 However, Defendant’s 

probation may have been properly revoked where there was sufficient evidence to 

show Defendant committed new crimes in violation of N.C.G.S. § 15A-1343(b)(1). See 

Krider, 253 N.C. App. at 113-14, 310 S.E.2d at 830 (“[T]he trial court may . . . revoke 

a defendant’s probation where the defendant . . . commits a new criminal offense in 

violation of [N.C.G.S.] § 15A-1343(b)(1)[.]”).

¶ 15 Although the trial court’s order indicated “[e]ach violation is, in and of itself, a 

sufficient basis upon which this [c]ourt should revoke probation and activate the 

suspended sentence[,]” Defendant’s positive drug test, “in and of itself,” is not a 

sufficient basis upon which the trial court could revoke probation. The trial court’s 

finding this violation is adequate to revoke probation is reversed. 

 

1 In his brief, Defendant also contends “the trial court lacked jurisdiction to revoke 

[Defendant’s] probation based on the violations alleged in paragraph one of the [4] April 2018 

violation report.” The trial court was certainly without statutory authority to revoke his 

probation merely for a positive drug test. However, the lack of authority to invoke a certain 

remedy does not impact the trial court’s jurisdiction over the alleged probation violation. The 

improper use of an unauthorized remedy is an error of law, reviewable and correctable on 

appeal, which does not equate to the power of the trial court to act in the first place. 

Defendant’s argument as to lack of jurisdiction is without merit. 
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B. New Criminal Offenses

¶ 16 Defendant argues there was insufficient evidence for the trial court to conclude 

he committed new criminal offenses in violation of N.C.G.S. § 15A-1343(b)(1). 

Alternatively, Defendant argues if there was sufficient evidence of a violation of 

N.C.G.S. § 15A-1343(b)(1), he is entitled to a new probation revocation hearing 

because there was a violation of the right(s) to confrontation. 

1. Sufficiency of Evidence

¶ 17 First, Defendant argues it was error to revoke his probation for commission of 

new criminal offenses, namely sale, delivery and/or possession of illegal narcotics, 

because the evidence presented in this case was insufficient to both link Defendant 

with the substances seized from his home, and to show that any of the substances 

purportedly connected to him were actually cocaine. We disagree.

¶ 18 Relying on the United States Supreme Court decision in Gagnon v. Scarpelli, 

our Supreme Court has held “[a] probation revocation proceeding is not a formal 

criminal prosecution, and probationers thus have ‘more limited due process rights.’” 

State v. Murchison, 367 N.C. 461, 464, 758 S.E.2d 356, 358 (2014) (quoting Gagnon 

v. Scarpelli, 411 U.S. 778, 789, 36 L. Ed. 2d 656, 666 (1973), superseded by statute, 

Parole Commission and Reorganization Act, Pub. L. No. 94-223, 90 Stat. 228 (1976)). 

“Consistent with this reasoning, [our Supreme Court has] stated that ‘a proceeding 

to revoke probation is not a criminal prosecution’ and is ‘often regarded as informal 
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or summary.’” Id. (quoting State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 479

(1967)). In addition, “[f]ormal rules of evidence do not apply” in probation revocation 

hearings. N.C.G.S. § 15A-1345(e) (2019). “Similarly, our Rules of Evidence, other 

than those concerning privileges, do not apply in proceedings for ‘sentencing, or 

granting or revoking probation.’” Murchison, 367 N.C. at 464, 758 S.E.2d at 358

(quoting N.C.G.S. § 8C-1, Rule 1101(b)(3) (2013)). Accordingly, the trial court has 

“great discretion to admit any evidence relevant to the revocation of [the] defendant’s 

probation.” Id. at 465, 758 S.E.2d at 359 (internal citations and marks omitted).

¶ 19 The following testimony occurred at Defendant’s probation revocation hearing:

[THE STATE]: Lieutenant Thompson, on [12 March] 2018, 

at approximately 12:00 in the afternoon, did you and other 

detectives with the Narcotics Unit conduct a [purchase] 

with [Defendant] as the target?

[LIEUTENANT THOMPSON]: Yes, ma’am.

[DEFENSE COUNSEL]: Objection.

THE COURT: Wish to be heard?

[DEFENSE COUNSEL]: No.

THE COURT: Overruled.

[THE STATE]: Can you tell the [c]ourt about that?

[LIEUTENANT THOMPSON]: Yes, ma’am. The source of 

information was met; searched; the vehicle was searched; 

given money from source buy funds; followed; watched go 

to [Defendant’s] target location; watched whenever they 
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left; followed back to the predetermined staging area. At 

that point in time, they were searched again, along with 

the conveyance, and the evidence was turned over to myself 

by the source of information.

[THE STATE]: Were there source buy funds given to the 

[paid informant] in this case?

[LIEUTENANT THOMPSON]: Yes, ma’am.

. . . 

[THE STATE]: And did [the paid informant] return and 

turn over any contraband or evidence to the detectives?

[LIEUTENANT THOMPSON]: Yes, ma’am.

[THE STATE]: And what was seized?

[LIEUTENANT THOMPSON]: A white powder substance.

[THE STATE]: Okay. And was that what was the agreedupon transaction between the [paid informant] and the 

target, [Defendant]?

[LIEUTENANT THOMPSON]: Yes, ma’am.

. . . 

[THE STATE]: Okay. All right. And can you tell the [c]ourt 

about the second transaction.

[LIEUTENANT THOMPSON]: Yes, ma’am. [The paid 

informant] was met, predetermined staging area outside 

the town of Chadbourn; again, source of information, 

vehicle was searched by myself; money was provided by --

from the source buy funds of $1,000[.00]. Again, the source 

of information was followed to the target location; watched 

turn in; watched when they left the target area; followed 
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back to the predetermined location. The evidence at that 

time was turned over to myself. The source of information 

and the vehicle were searched again.

[THE STATE]: Okay. And was that evidence that was 

turned over to you consistent with what was discussed as 

to the buy concerning [Defendant]?

[LIEUTENANT THOMPSON]: Yes ma’am.

[THE STATE]: That it was prearranged that the [paid 

informant] was going to buy from [Defendant]?

[LIEUTENANT THOMPSON]: Yes, ma’am. 

. . . 

[LIEUTENANT THOMPSON]: . . . [Paid informant] went 

into the residence with [Defendant]. [Defendant] asked 

[the paid informant] what she needed. [The paid 

informant] advised two ounces of powder. [Defendant] 

then got the powder and told [the paid informant] that was 

all he had and also gave [the paid informant] some crack 

for $1,000[.00]. [The paid informant] also gave [Defendant] 

$1,000[.00] for the powder and the crack.

¶ 20 Through this testimony, the State presented sufficient evidence to link 

Defendant with the substances seized from his home. Lieutenant Thompson’s 

testimony illustrates the following facts: he executed two separate purchases between 

Defendant and the paid informant; the paid informant told him she purchased 

“powder and [] crack” from Defendant during the purchases; he obtained and executed 

a search warrant the day after the purchases at Defendant’s residence and seized 

three small off-white rocks from Defendant’s bathroom and $625.00 from Defendant’s 
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pants pocket; $500.00 of the $625.00 found in Defendant’s pants pocket matched the 

serial numbers of the money provided for the purchases; he searched the paid 

informant and the vehicle she rode in to meet Defendant before and after each 

purchase and confirmed the paid informant had no illegal substances on her person 

before the purchases occurred; and he followed the paid informant to and from 

Defendant’s residence and confirmed the paid informant made no stops. 

¶ 21 While we agree with Defendant that the testimony as to “powder” and “offwhite rocks” would not be sufficient, we hold the evidence as to “crack,” which was 

not opposed to on appeal, constituted sufficient evidence of a controlled substance, 

namely cocaine as defined in N.C.G.S. § 90-90. N.C.G.S. § 90-90(1)(d) (2019) (“The 

following controlled substances are included in [Schedule II controlled substances]: . 

. . [c]ocaine[.]”). The hearsay evidence of the paid informant was relevant for 

determining whether Defendant had violated a condition of his probation by 

committing a criminal offense. See N.C.G.S. § 15A-1343(b)(1) (2019). Lieutenant

Thompson’s testimony was sufficient to show Defendant committed a new criminal 

offense, specifically the sale and/or delivery of cocaine in violation of N.C.G.S. § 90-

95(a)(1). See N.C.G.S. § 90-95(a)(1) (2019) (making it unlawful “[t]o manufacture, sell 

or deliver, or possess with intent to sell or deliver, a controlled substance[.]”).

2. Confrontation 

a. No Sixth Amendment Right
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¶ 22 Defendant argues he has both a constitutional right to confrontation and a 

statutory right to confrontation. However, a Sixth Amendment right to confrontation 

in a probation revocation hearing does not exist. See State v. Braswell, 283 N.C. 332, 

337, 196 S.E.2d 185, 188 (1973) (holding a hearing to determine whether the terms 

of a suspended sentence have been violated is not a criminal prosecution and 

therefore protections of the Sixth Amendment are inapplicable to adult probation 

revocation proceedings). Defendant’s constitutional argument, to the extent it sounds 

in due process, collapses into his statutory argument below because N.C.G.S. § 15A1345(e) codifies the due process requirements concerning confrontation in probation 

revocation hearings. See State v. Hunter, 315 N.C. 371, 377, 338 S.E.2d 99, 104 (1986) 

(“[N.C.G.S. § 15A-1345(e)] guarantees notice, bail, a preliminary hearing and a 

revocation hearing with counsel present. At the revocation hearing, the trial judge 

must make findings to support his decision on whether to revoke or extend probation. 

He must also make a summary record of the proceedings. . . . [T]he statute guarantees 

full due process before there can be a revocation of probation and a resulting prison 

sentence.”); see also N.C.G.S. § 15A-1345(e) (2019).

b. Statutory Right

¶ 23 Defendant further argues the trial court erred in failing to find good cause 

before denying him an opportunity to confront and cross-examine Lieutenant

Thompson’s paid informant, an adverse witness, as required by N.C.G.S. § 15A-
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1345(e) and “asks this Court to vacate the judgments revoking probation and remand 

his case for a new revocation hearing.” As the trial court did not exercise its discretion 

in determining whether good cause exists for denying Defendant the right to confront 

the paid informant, we remand for reconsideration of the good cause issue.

¶ 24 N.C.G.S. § 15A-1345(e) provides that at a probation revocation hearing, a 

defendant “may confront and cross-examine adverse witnesses unless the [trial] court 

finds good cause for not allowing confrontation.” N.C.G.S. § 15A-1345(e) (2019). 

While N.C.G.S. § 15A-1345(e) confers upon a defendant a right to confrontation, it 

commits to the discretion of the trial court whether “good cause [exists] for not 

allowing confrontation.” N.C.G.S. § 15A-1345(e) (2019).

¶ 25 Lieutenant Thompson testified he oversaw two purchases in March 2018 with 

a paid informant. Before Lieutenant Thompson provided details about the purchases, 

Defendant objected to Lieutenant Thompson’s testimony: 

[DEFENSE COUNSEL]: Your Honor, objection. I realize 

the Rules of Evidence don’t apply in probation violation 

cases, but we do have some very fundamental 

constitutional rights, including due process, equal 

protection, and confrontation.

And if [the State is] soliciting hearsay about a [purchase] 

from an officer who wasn’t present at the [purchase], it’s 

hearsay, and it denies [Defendant] the right to confront the 

accuser, who would be the person that allegedly bought the 

narcotics from [Defendant]. And that’s a fundamental 

problem.
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I recognize that -- but it’s just no right of confrontation to 

bring an officer in and say, [“]I know there was a [purchase] 

and so-and-so bought such and such from somebody.[”] I 

don’t believe that due process and equal protection -- even 

though we do know that the Rules of Evidence don’t apply 

to probation matters, it’s just a - - it’s a fundamental 

constitutional right. 

The trial court overruled Defendant’s objection and Lieutenant Thompson began to 

testify. Defendant objected again:

[THE STATE:] And how much was given on that day at 

that time, the 12:00 hour?

[LIEUTENANT THOMPSON:] At that time, $200[.00].

[THE STATE:] $200[.00]. Okay. And that [paid informant] 

was whom?

. . .

[LIEUTENANT THOMPSON:] [Paid informant’s name]. 

[THE STATE:] And [the paid informant], she was searched 

before and after the [purchase]?

[LIEUTENANT THOMPSON:] Yes, sir -- I mean, yes, 

ma’am.

[THE STATE:] And the vehicle that she rode in was 

searched before and after?

[LIEUTENANT THOMPSON:] Yes, ma’am.

[THE STATE:] And did she return and turn over any 

contraband or evidence to the detectives?

[LIEUTENANT THOMPSON:] Yes, ma’am. 
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[THE STATE:] And what was seized?

[LIEUTENANT THOMPSON:] A white powder substance.

[THE STATE:] Okay. And was that what was the agreedupon transaction between the [paid informant] and the 

target, [Defendant]?

[LIEUTENANT THOMPON:] Yes, ma’am.

[DEFENSE COUNSEL]: Objection. That’s hearsay.

THE COURT: Hearsay is admissible. Overruled. 

[DEFENSE COUNSEL]: By the confrontation, Your 

Honor; we don’t have this lady here to confront.

THE COURT: State v. Murchison. Again, understanding 

the nature of these proceedings, the [trial court] overrules 

the objection. 

¶ 26 The State, in reliance on State v. Jones, 269 N.C. App. 440, 838 S.E.2d 686 

(2020),2 contends Defendant did not request testimony from the paid informant or 

subpoena the paid informant to testify at the probation revocation hearing. However, 

we need not extend the rationale of Jones where, as here, there is no evidence to 

suggest Defendant knew the State would be offering testimony involving a paid 

informant, nor is there any evidence in the Record to suggest Defendant knew the 

 

2 A petition for discretionary review has been filed and is currently pending before the 

North Carolina Supreme Court, No. 85P20. 
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paid informant existed.3 Further, without knowledge of the paid informant’s identity, 

Defendant would have no way to issue a subpoena, let alone serve one, or request the 

trial court to issue a material witness order in accordance with N.C.G.S. § 15A-803. 

See N.C.G.S. § 15A-803(a) (2019) (“A judge may issue an order assuring the 

attendance of a material witness at a criminal proceeding. This material witness 

order may be issued when there are reasonable grounds to believe that the person 

whom the State or a defendant desires to call as a witness in a pending criminal 

proceeding possesses information material to the determination of the proceeding and 

may not be amenable or responsive to a subpoena at a time when his attendance will 

be sought.”). Such an application of Jones would be in direct conflict with general 

principles of due process. 

¶ 27 We believe the trial court’s denial of Defendant’s objection because of “the 

nature of these proceedings” was an indication that it did not exercise its discretion 

to decide whether good cause exists under the facts of this case. See State v. Lang, 

301 N.C. 508, 510-11, 272 S.E.2d 123, 125 (1980) (holding the trial court judge did 

not exercise his discretion when he denied the jury’s request for a transcript by 

stating “the transcript is not available to the jury”). Based on the Record before us, 

we cannot determine whether the trial court abused its discretion in determining 

 

3 The Concurrence discusses a “search warrant,” which is not included in the Record 

on appeal. 
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whether good cause exists because the trial court did not exercise its discretion to 

begin with. 

¶ 28 Lieutenant Thompson’s paid informant was an adverse witness who did not 

testify. Pursuant to N.C.G.S. § 15A-1345(e), the trial court was required to make a 

finding of good cause before denying Defendant’s statutory right to confront and 

cross-examine an adverse witness. N.C.G.S. § 15A-1345(e) (2019); see State v. 

Morgan, 372 N.C. 609, 616, 831 S.E.2d 254, 259 (2019) (“[W]hen the General 

Assembly has inserted the phrase ‘the court finds’ in a statute setting out the 

exclusive circumstances under which a defendant’s probation may be revoked, the 

specific finding described in the statute must actually be made by the trial court and 

such a finding cannot simply be inferred from the record.”). The trial court’s ruling

contained no findings referencing the existence of good cause and it is unclear from 

the face of the Record whether the trial court required a showing of good cause when 

it denied Defendant the right to confront the paid informant. We are unable to 

determine if the trial court abused its discretion in determining whether good cause 

exists for not allowing confrontation, and we must remand to the trial court for 

consideration of the issue. On remand, the trial court shall exercise its discretion in 

determining whether good cause exists for not allowing Defendant to confront and 

cross-examine the paid informant, and make findings in accordance with the 

requirements of N.C.G.S. § 15A-1345(e). 
STATE V. HEMINGWAY

2021-NCCOA-352

Opinion of the Court

CONCLUSION

¶ 29 We reverse that portion of the order finding Defendant’s positive drug test was 

an adequate ground for revoking his probation. Defendant’s probation could only be 

revoked for a violation of N.C.G.S. § 15A-1343(b)(1). There was sufficient evidence 

linking Defendant to the substances involved in the purchase and identifying the 

substances as illegal narcotics, and for the trial court to find Defendant was in 

violation of N.C.G.S. § 15A-1343(b)(1). The trial court did not abuse its discretion in 

revoking Defendant’s probation on those grounds. 

¶ 30 However, the trial court did not exercise its discretion when it did not make 

any findings related to good cause. As the trial court did not make specific findings 

that denying Defendant the right to confront the paid informant was because of good 

cause, we remand for further findings pursuant to N.C.G.S. § 15A-1345(e). 

REVERSED IN PART; VACATED AND REMANDED IN PART.

Judge DIETZ concurs.

Judge TYSON concurs in part and concurs in the result in part with separate 

opinion. 
No. COA20-24 – State v. Hemingway

TYSON, Judge, concurring in part and concurring in the result in part. 

¶ 31 The majority’s opinion correctly concludes Defendant did not show any abuse 

in the trial court’s discretion when it found and concluded Defendant had committed 

new crimes and revoked Defendant’s probation in violation of N.C. Gen. Stat. § 15A1343(b)(1)(2019). Sufficient evidence in the record supports the finding and 

conclusion Defendant committed new criminal offenses in violation of that statute. I 

concur with these conclusions of the majority’s opinion. I also concur with the 

majority’s opinion, which correctly concludes Defendant’s constitutional argument is 

frivolous. 

¶ 32 I also conclude the trial court properly denied Defendant’s untimely motion to 

cross-examine law enforcement’s confidential informant (“CI”) at his probation 

violation hearing. The revocation of Defendant’ probation based upon his commission 

of new criminal acts and charges is properly affirmed, even without Sheriff’s 

Lieutenant Thompson’s (“Lt. Thompson”) testimony, much less the testimony of the 

CI. Although unnecessary, to affirm Defendant’s revocation, I concur in the result to 

remand for the trial court to enter its “good cause” finding. 

¶ 33 Defendant pled guilty to possession with the intent to sell or deliver marijuana 

in August 2017. He was sentenced to a term of eight to nineteen months in prison, 

which was suspended, and he was placed upon 24 months of supervised probation. 

In March 2018, April 2018, and June 2019, his probation officer filed reports citing 

multiple violations. The first violation alleged Defendant had failed to pay scheduled 
STATE V. HEMINGWAY

2021-NCCOA-352

TYSON, J., concurring 

fees and had accrued new drug charges. The second violation report alleged he had 

tested positive for cocaine and had illegally possessed the same. The third violation 

alleged he failed to report for required appointments and was charged with additional 

criminal charges. A probation violation hearing was held in August 2019. Defendant 

denied the allegations in the reports. 

¶ 34 At the violation hearing, Defendant’s probation officer testified regarding his 

positive drug tests, the new criminal charges, and the other violations. Lt. Thompson 

testified regarding two controlled sales and buys between Defendant and a CI. Lt. 

Thompson did not witness either of the drug sales. Based upon the information 

obtained through the controlled buys, he secured a search warrant for Defendant’s 

home. Lt. Thompson met with and searched the CI’s vehicle before and following the 

scheduled buys. After he searched the informant’s vehicle, he retrieved the leftover 

marked money, three white rocks, and a bag of a leafy green substance. The State 

did not call either the CI or the SBI analyst to testify at the violation hearing. Neither 

witness was subpoenaed by Defendant.

¶ 35 Defendant objected to Lt. Thompson’s testimony regarding hearsay from the 

CI and to the drug lab results. The trial court overruled Defendant’s hearsay 

objection, but it sustained his objection to the lab results. Lt. Thompson testified, 

based on his training and experience, the leafy green substance recovered was 

marijuana.
STATE V. HEMINGWAY

2021-NCCOA-352

TYSON, J., concurring 

¶ 36 The trial court found Defendant had willfully violated the conditions of his 

probation as was alleged in the March report by committing new criminal offenses of 

selling and possessing illegal narcotics. The court also independently found 

Defendant had willfully violated his probation as alleged in the April report by testing 

positive for illegal drugs. The court dismissed his remaining violations and orally 

revoked Defendant’s probation on the basis Defendant had committed new criminal 

offenses. The written order entered recited alternative bases to revoke and activate 

Defendant’s suspended sentences. Defendant timely appealed. 

I. Issue

¶ 37 The issue in this case is whether the trial court’s ruling should be affirmed 

based upon Defendant’s waivers and failure to subpoena witnesses, and this Court’s 

precedential opinion and conclusion in State v. Jones, 269 N.C. App. 440, 445, 838 

S.E.2d 686, 690 (2020). 

II. Analysis

¶ 38 “A proceeding to revoke probation is not a criminal prosecution.” State v. 

Duncan, 270 N.C. 241, 245, 154 S.E.2d 53, 57 (1967). N.C. Gen. Stat. § 15A-1345(e) 

gives a probationer a right to confrontation at a revocation hearing, but it leaves the 

trial court with discretion to determine whether “good cause” exists for not allowing 

confrontation. N.C. Gen. Stat. § 15A-1345(e) (2019). The trial court properly 

exercised its discretion when it denied Defendant’s untimely motion. 
STATE V. HEMINGWAY

2021-NCCOA-352

TYSON, J., concurring 

¶ 39 The State must present competent evidence tending to show a defendant’s 

failure to comply with the terms and conditions of probation to support the trial 

court’s conclusion the defendant has committed a violation that warrants revocation 

under the statute. State v. Terry, 149 N.C. App. 434, 437, 562 S.E.2d 537, 540 (2002). 

“Once the State has presented competent evidence establishing a defendant’s failure 

to comply with the terms of probation, the burden is on the defendant to demonstrate 

through competent evidence an inability to comply with the terms.” Id. at 437–38, 

562 S.E.2d 540.

¶ 40 “If the trial court is then reasonably satisfied that the defendant has violated 

a condition upon which a prior sentence was suspended, it may within its sound 

discretion revoke the probation.” Id. at 438, 562 S.E.2d 540.

¶ 41 N.C. Gen. Stat. § 15A-1345(e) is a statutory codification of the probationer’s 

due process right. A probationer’s failure to compel or subpoena a witness to attend 

the violation hearing and be available to testify constitutes a waiver of the statutory 

right to confrontation. Terry, 149 N.C. App. at 438, 562 S.E.2d 540 (the defendant 

did not at any stage in the proceedings request her professor be subpoenaed nor did 

defendant suggest the professor had additional information other than what the 

professor had already reported to the probation officer).

¶ 42 This case is controlled by this Court’s precedential holding in State v. Jones, 

269 N.C. App. at 445, 838 S.E.2d at 690. In Jones, the trial court revoked defendant’s 
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2021-NCCOA-352

TYSON, J., concurring 

probation and activated his suspended sentences after finding the defendant had 

willfully violated probation by committing new crimes. Id. 

¶ 43 The defendant in Jones pled guilty to possession of a firearm by a felon and 

discharging a weapon into occupied property. Id. at 441, 838 S.E.2d at 687. His 

sentence was suspended, and he was placed on thirty-six months’ supervised 

probation. Id. at 441, 838 S.E.2d at 688. Less than a year later, officers investigating 

potential criminal activity observed defendant outside a store for about an hour and 

followed his car. Id. The officers conducted a traffic stop after defendant exceeded 

the speed limit. He failed to present identification after an officer asked him to exit 

the vehicle. Id. 

¶ 44 The officer observed and recovered a handgun from inside the vehicle, and 

placed the defendant under arrest. Id. at 441-42, 838 S.E.2d at 688. Defendant Jones 

filed a motion to suppress. Id. at 443, 838 S.E.2d at 688. The arresting officer 

testified, and the trial court denied Jones’ motion. Id. at 443, 838 S.E.2d at 689. A 

probation violation report was filed, alleging he had willfully violated probation by 

absconding and committing new crimes. Id. at 442, 838 S.E.2d at 688.

¶ 45 At the defendant’s probation violation hearing, the trial court allowed the 

transcript of the law enforcement officer’s testimony from the suppression hearing to 

be introduced and admitted. Id. at 443, 838 S.E.2d at 688. The defendant appealed 

and asserted his due process right to confrontation was violated when the officer 
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TYSON, J., concurring 

whose testimony was used against him was not physically present at his probation 

violation hearing and “good cause” did not exist justifying the officer’s absence. Id. 

¶ 46 This Court affirmed the trial court’s ruling to revoke the defendant’s probation. 

Id. at 445, 838 S.E.2d at 690. Nothing in the record showed the defendant in Jones

had subpoenaed the officer to compel his attendance under N.C. Gen. Stat. § 15A1345(e) or otherwise sought to assure the officer’s presence at the revocation hearing. 

Id. at 445, 838 S.E.2d at 689. The transcript of the officer’s testimony offered by the 

State was held to be competent evidence and was properly admitted to show the 

defendant had committed new crimes in violation of his probation. Id. 

¶ 47 Here, the facts are similar to those in Jones. Both defendants were afforded 

their statutory due process rights at their probation violation hearings: (1) to have 

evidence against them disclosed; (2) the opportunity to appear and speak on their 

own behalf; and (3) to present relevant evidence under N.C. Gen. Stat. § 15A-1345(e).

¶ 48 Concerning probationers’ statutory confrontation rights, the trial court retains 

discretion to determine “good cause” for not allowing confrontation. N.C. Gen. Stat § 

15A-1345(e). Both the defendants here and in Jones had the ability to subpoena the 

State’s or their own witnesses but failed to do so. Neither defendant demanded nor 

objected to a lack of an express finding for “good cause” by the trial court, another 

waiver of that right. 
STATE V. HEMINGWAY

2021-NCCOA-352

TYSON, J., concurring 

¶ 49 The State, in both cases, presented sufficient evidence to support the trial 

court’s conclusions the defendants had committed new crimes. This Court, in Jones, 

found the State had shown competent evidence establishing defendant’s violation by 

proof of the new criminal charges and the transcript of the officer’s testimony from 

the suppression hearing. Jones, 269 N.C. App. at 445, 838 S.E.2d at 690. The trial 

court properly acted within its discretion to revoke that defendant’s probation. Id. at 

444, 838 S.E.2d at 690. 

¶ 50 Here, the trial court found Defendant had committed new criminal acts and 

charges had been filed against him. The probation officer’s testimony of Defendant’s 

new crimes was sufficient to meet the competent evidence standard under N.C. Gen. 

Stat. § 15A-1345(e) to revoke Defendant’s probation. The majority’s opinion suggests 

no evidence shows Defendant knew the State could potentially offer testimony 

involving the CI or that the CI even existed to justify the remand. 

¶ 51 This notion is contradicted by the filed and served probation violation reports 

and Defendant’s underlying knowledge of the basis of the new charges filed against 

him. Defendant was made aware of the nature of the charges brought against him 

through the warrant to search his home based upon the controlled buys with the CI 

and the subsequent felony charges and indictments served upon him. 

¶ 52 The majority’s opinion correctly concludes Defendant’s constitutional 

argument is frivolous. A probation violation hearing is not a criminal prosecution, 
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2021-NCCOA-352

TYSON, J., concurring 

and a constitutional right to confrontation in a revocation hearing does not exist. 

State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973) (citation omitted). 

Although N.C. Gen. Stat. § 15A-1345(e) allows the trial court to make a finding of 

“good cause” to deny the opportunity for confrontation, the statute does not require 

the court to do so to avoid reversible error, particularly where a defendant has the 

burden on appeal to show prejudice, failed to subpoena the witness, or has waived his 

rights by failure to object. See Jones, 269 N.C. App. at 444, 838 S.E.2d at 690. 

¶ 53 Even if Defendant had timely objected, he has failed to show any prejudice as 

the trial court correctly found the State had provided competent evidence based upon 

the violation reports, the probation officer’s testimony, and the new criminal charges 

alone. Lt. Thompson’s testimony, much less any appearance by the CI, was 

unnecessary to the other competent evidence admitted to uphold Defendant’s 

revocation. See Jones, 269 N.C. App. at 445, 838 S.E.2d at 689. Defendant’s 

arguments are without merit.

III. Conclusion

¶ 54 Defendant failed to subpoena witnesses, waived any objection, and has not 

carried his burden to show prejudice. This Court’s ruling in Jones is binding 

precedent upon these facts and the order entered. In re Civil Penalty, 324 N.C. 373, 

384, 379 S.E.2d 30, 37 (1989). The trial court did not err by revoking his probation 

and activating his suspended sentence. The order is properly affirmed.