State v. Cunningham, 305 S.E.2d 193 (N.C. Ct. App. 1983). · Go Syfert
State v. Cunningham, 305 S.E.2d 193 (N.C. Ct. App. 1983). Cases Citing This Book View Copy Cite
38 citation events (32 in the last 25 years) across 4 distinct courts.
Strongest positive: State v. Moore (nc, 2017-12-08)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Under fire: who is questioning this case
Citations from separate opinions of courts that could overrule this case. This is a warning signal, not a treatment change. The flag color above is unaffected.
Dissent State v. Moore (2017)
“Id. at 475 , 305 S.E.2d at 196 .”
Top citers, strongest first. 6 distinct citers. How cited ↗
cited Cited as authority (rule) State v. Moore
N.C. · 2017 · confidence medium
App. 470, 475 , 305 S.E.2d 193, 196 (1983).
cited Cited as authority (rule) State v. Tindall
N.C. Ct. App. · 2013 · confidence medium
App. 470, 475 , 305 S.E.2d 193, 196-97 (1983).
discussed Cited as authority (rule) State v. Stines (2×)
N.C. Ct. App. · 2009 · confidence medium
App. 470, 475 , 305 S.E.2d 193, 196-97 (1983) (holding that evidence was insufficient to support trial court’s order revoking defendant’s suspended sentence in part because State sought to prove additional conduct not contained in notice to defendant of alleged probation violations). *201 Additionally, in a variety of other contexts, North Carolina courts have held that procedural due process requires notice sufficient to inform the recipient in advance of a hearing of the bases for the proceedings against him or her so that the individual will have a meaningful opportunity to respond.
discussed Cited as authority (rule) Harris v. United States (2×)
D.C. · 1992 · confidence medium
State v. Cunningham, 63 N.C.App. 470 , 305 S.E.2d 193, 196 (1983) (that which has "sufficient probative force to generate in the minds of reasonable men the conclusion that the defendant [violated his probation]"); State v. Mingua, 42 Ohio App.2d 35 , 327 N.E.2d 791, 795 (1974) (that of a "substantial nature" to justify revocation); State ex rel.
cited Cited "see" State v. Tanner
N.C. Ct. App. · 2024 · signal: see · confidence high
See State v. Cunningham, 63 N.C.
discussed Cited "see" State v. Sheehan (2×)
Ariz. Ct. App. · 1991 · signal: see · confidence high
See State v. Cunningham, 63 N.C.App. 470, 474-75 , 305 S.E.2d 193, 196 (1983) (a nuisance activity such as loud playing of music not a violation).
Retrieving the full opinion text from the archive…
State of North Carolina
v.
Norman E. Cunningham, III
825SC925.
Court of Appeals of North Carolina.
Aug 2, 1983.
305 S.E.2d 193
1983 N.C. App. LEXIS 3116
Attorney General Edmisten, by Assistant Attorney General Alfred N. Salley, for the State. , Lanier and Hall, by Fredric C. Hall, for defendant appellant.
Johnson, Wells, Hill.
Cited by 9 opinions  |  Published
JOHNSON, Judge.

Defendant excepts to and assigns as error the trial court’s Findings of Fact Nos. 2, 3, 6, 8 and Conclusions of Law Nos. 1, 2 and 3. Defendant contends that these findings and conclusions are not supported by competent evidence and that the trial court’s order revoking his suspended sentence was based on insufficient evidence.

The trial judge may not exercise his discretionary authority to activate a suspended sentence unless the breach of a condition of probation is established by “substantial evidence of sufficient probative force to generate in the minds of reasonable men the conclusion that defendant has in fact breached the condition in question.” State v. Millner, 240 N.C. 602, 605, 83 S.E. 2d 546, 548 (1954).

The alleged violation that defendant consistently played loud music that disrupted the peace and quiet of the Southerlands and the trial court’s Findings of Fact Nos. 6 and 7 are supported by the testimony of Mrs. Southerland. She testified that since 15 February 1982 defendant has continually played loud music throughout the day and as late as 2 to 3 a.m., and that the music has prevented her and her husband from sleeping. However, this conduct does not violate the suspensory condition of good behavior. In North Carolina, “good behavior” means “law-abiding” in the context of suspension of a sentence upon conviction of a crime. State v. Seagraves, 266 N.C. 112, 145 S.E. 2d 327 (1965). Behavior that will warrant a finding that a defendant has violated the “good behavior” condition must be conduct which constitutes a violation of some criminal law of the State. State v. Millner, supra; State v. Seagraves, supra. In the case sub judice, we are constrained to hold that although the conduct of the defendant in playing music through a speaker located twenty-five feet from the Southerland’s back door, which is undoubtedly disturbing to the Southerlands, may constitute a nuisance, it does not amount to conduct which constitutes violation of a criminal law of this State.[*475] Therefore, the trial court erroneously found this conduct to violate the suspensory condition of good behavior.

We next consider defendant’s assignment of error regarding the trial court’s Findings of Fact Nos. 2, 3, and 8 and Conclusions of Law Nos. 1, 2, and 3. We agree with defendant that the trial court erroneously based the revocation of defendant’s suspended sentence upon those findings and conclusions.

Defendant was properly served with a statement of the alleged violations of his suspended sentence. G.S. 15A-1345(d); State v. Duncan, 270 N.C. 241, 154 S.E. 2d 53 (1967). The State alleged that the condition of good behavior was violated by defendant’s repeated playing of loud music, which greatly disturbed the Southerlands and by defendant’s taking of their personal property without permission. However, the State sought to prove additional conduct in violation not contained in the notice served upon defendant — that defendant trespassed upon and damaged real and personal property belonging to the Southerlands. The record does not show that defendant received notice or a statement of an alleged violation consisting of trespass or damage to property. Therefore, entry of an order revoking defendant’s suspended sentence upon Findings of Fact Nos. 2, 3, and 8 and Conclusions of Law Nos. 1, 2, and 3 was error.

In addition, a careful examination of the evidence of record clearly shows that evidence presented by the State that defendant trespassed upon and damaged real and personal property belonging to the Southerlands was irrelevant and improperly admitted because this evidence had no logical tendency to prove either of the two facts which were properly in issue. State v. Swift, 290 N.C. 383, 226 S.E. 2d 652 (1976).

For the reasons stated herein, we hold that the evidence was insufficient to support the trial court’s order revoking defendant’s suspended sentence. The trial court’s order is, therefore,

Reversed.

Judges WELLS and HILL concur.