State v. Moss

• Court: Court of Appeals of North Carolina
• Decided: June 18, 2025
• Docket: 24-1024
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-1024

Filed 18 June 2025

Cabarrus County, No. 20CRS053990-120

STATE OF NORTH CAROLINA

v.

DANA DENZIL MOSS

Appeal by defendant from judgment entered 16 May 2024 by Judge Martin B.

McGee in Cabarrus County Superior Court. Heard in the Court of Appeals

20 May 2025.

Attorney General Jeff Jackson, by Assistant Attorney General Joseph R. Mouer, for the State.

The Law Office of Joseph E. Gerber, PLLC, by Joseph E. Gerber, for defendant- appellant.

ARROWOOD, Judge.

Dana Denzil Moss (“defendant”) appeals from judgment and commitment upon

revocation of probation entered 16 May 2024. Defendant’s probation was revoked

and the trial court activated his suspended sentence and imposed 10 to 21 months

imprisonment. On appeal, defendant argues the trial court lacked subject matter STATE V. MOSS

Opinion of the Court

jurisdiction to revoke probation after it had expired because a 326-day retroactive

probation revocation was not for good cause as required by N.C.G.S. § 15-1344(f). In

the alternative, defendant argues that even if the trial court had jurisdiction, it

committed prejudicial error in finding that each of defendant’s alleged violations were

independently sufficient to revoke probation. Additionally, defendant alternatively

argues that even if the trial court had jurisdiction, it prejudicially erred in not

allowing defendant to confront witnesses with personal knowledge as to his alleged

violations. For the following reasons, we affirm the trial court.

I. Background

On 9 November 2020, defendant was indicted for four offenses: (1) felony

possession with intent to manufacture, sell, or distribute a Schedule II controlled

substance; (2) misdemeanor possession of a Schedule VI controlled substance; (3)

misdemeanor possession of drug paraphernalia; and (4) felony maintaining a

dwelling that was used for keeping and selling controlled substances. On

25 June 2021, defendant pleaded guilty to one consolidated Class H felony and was

sentenced to 10 to 21 months imprisonment. However, defendant’s sentence was

suspended and he was placed on 24 months of supervised probation.

In November 2022, Officer Hunter Wood (“Officer Wood”) worked for the

Kannapolis Police Department and conducted a narcotics investigation on

defendant’s brother, Kareem Russell (“Mr. Russell”). During this investigation,

Officer Wood obtained a search warrant for a residence in Charlotte, North Carolina

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belonging to Mr. Russell and another search warrant for a residence belonging to

defendant’s mother, Wanda Moss (“Ms. Moss”). On 19 January 2023, Officer Wood,

along with other members of the Charlotte Mecklenburg Police Department, executed

both search warrants on the residences. However, Officer Wood only searched the

residence belonging to Mr. Russell and Ms. Moss’s home was searched by Investigator

Wagner and other members of the Cabarrus County Sheriff’s Office. A vehicle located

on the curtilage of Ms. Moss’s property was searched and the vehicle contained 18.7

grams of oxycodone, 4.8 grams of MDMA, 4.5 grams of cocaine, 2.1 grams of crack

cocaine, 55.5 pounds of marijuana, shipping labels addressed to defendant, a 9mm

Taurus G2C handgun and a 12-gauge shotgun, which had been altered to have the

serial numbers removed. The vehicle was registered to defendant.

On the day defendant’s vehicle was searched, he was on probation for the

judgment entered 25 June 2021 pursuant to his guilty plea. On 25 January 2023,

defendant was charged with six violations of his probation: (1) defendant tested

positive for marijuana on 27 September 2021 and 23 January 2023; (2) defendant had

paid $293.13 on a total amount due to the Clerk of Superior Court, leaving defendant

$558.87 in arrears; (3) defendant had paid $306.87 towards supervision fees, leaving

him $453.13 in arrears; (4) defendant was found to be in possession of a 9mm Taurus

G2C and a 12-gauge shotgun on 19 January 2023; (5) defendant was charged with

possession of marijuana paraphernalia and possession of drug paraphernalia on

23 January 2023; and (6) defendant was charged with trafficking in marijuana,

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trafficking in opium or heroin, possession with intent to manufacture, sell, or

distribute cocaine, possession with intent to manufacture, sell, or distribute MDMA,

maintaining a vehicle or dwelling with controlled substances, possession of a weapon

of mass destruction, and altering or removing a serial number from a firearm.

On 25 January 2023, the Cabarrus County Clerk of Court issued an order for

arrest for defendant. On 27 January 2023, the Cabarrus County trial court issued an

order for a preliminary hearing on defendant’s probation violation. On 25 June 2023,

defendant’s probation expired.

The hearing for defendant’s probation violation did not take place until

13 May 2024. During the hearing, counsel for defendant objected to testimony from

Officer Wood, who testified as to what other officers had found at Ms. Moss’s home,

when he was not present on the scene. Specifically, defendant’s counsel objected on

hearsay grounds, stating that because Officer Wood was not present when the vehicle

was searched, he could not testify as to what Ms. Moss, who was present at the scene,

said that day. The State noted that rules of evidence do not apply during probation

hearings and the trial court agreed, stating that good cause existed for not allowing

confrontation under the circumstances presented. Officer Wood then went on to

testify that Ms. Moss said the vehicle found on her property was locked and defendant

had the keys to the vehicle.

Ms. Moss testified on behalf of defendant. Although Ms. Moss testified that

she did not tell officers that defendant had the keys to the vehicle found on her

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property, she was later impeached by evidence of her being convicted of three counts

of obtaining property by false pretenses. Defendant did not testify during the

probation hearing.

After closing arguments, the trial court held that defendant had willfully

violated his probation with regards to all six probation violations he was cited for.

Specifically, the trial court found that good cause existed to not allow defendant to

confront the officers who searched his vehicle and good cause existed to revoke

defendant’s probation and reinstate his sentence because defendant willfully violated

his probation by committing a criminal offense.

On 16 May 2024, the trial court entered a Judgment and Commitment Upon

Revocation of Probation Form (“probation revocation form”). On this form, the trial

court checked three boxes: (1) Box 2 which indicated the trial court held a hearing

for defendant’s probation violation report and the trial court is “reasonably satisfied

in its discretion that the defendant violated each of the conditions of the defendant’s

probation as set forth below”; (2) Box 4 which indicates “[e]ach violation is, in and of

itself, a sufficient basis upon which this Court should revoke probation and activate

the suspended sentence”; and (3) Box 5(a), which indicates the trial court may revoke

defendant’s probation “for the willful violation of the condition(s) that he/she not

commit any criminal offense under N.C.G.S. § 15A-1343(b)(1)[.]” Defendant entered

oral notice of appeal during his probation hearing on 13 May 2024.

II. Discussion

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On appeal, defendant argues the trial court lacked subject matter jurisdiction

to belatedly revoke defendant’s probation because the trial court revoked defendant’s

probation 326 days after it had expired without good cause shown as required by

N.C.G.S. § 15A-1344(f). Alternatively, defendant argues that even if the trial court

had jurisdiction to revoke his probation, the trial court (1) prejudicially erred in

finding that each alleged violation listed on the probation revocation form was

independently sufficient to revoke probation and (2) prejudicially erred in not

allowing confrontation of witnesses with personal knowledge as to three alleged

violations. We address each argument in turn.

A. Retroactive Probation Revocation

Defendant first argues the trial court lacked subject matter jurisdiction to

revoke defendant’s probation 326 days after his probation expired because the

retroactive probation revocation was not for good cause shown as required by

N.C.G.S. § 15A-1344(f). Specifically, defendant argues the trial court’s finding for

good cause was an abuse of discretion not supported by the record. We disagree.

N.C.G.S. § 15A-1344(f) provides:

The court may extend, modify, or revoke probation after the expiration of the period of probation if all of the following apply: (1) Before the expiration of the period of probation the State has filed a written violation report with the clerk indicating its intent to conduct a hearing on one or more violations of one or more conditions of probation. (2) The court finds that the probationer did violate one or more conditions of probation prior to the expiration of

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the period of probation. (3) The court finds for good cause shown and stated that the probation should be extended, modified, or revoked. (4) If the court opts to extend the period of probation, the court may extend the period of probation up to the maximum allowed under G.S. 15A-1342(a).

N.C.G.S. § 15A-1344(f) (2024). It is undisputed in this case that the State filed a

written violation report prior to defendant’s probation expiring on 25 June 2023 and

the trial court indicated its intent to hold a hearing on these alleged violations when

it filed an order for a preliminary hearing on 27 January 2023. It is also undisputed

that the trial court did find that defendant violated one or more conditions of his

probation prior to the expiration of his probation period. However, defendant argues

the State did not show good cause that defendant’s probation should be revoked and

his sentence reinstated.

“Consistent with [our Supreme Court’s] determinations in Rankin and

Morgan, the ‘good cause’ contemplated by N.C.G.S. § 15A-1344(f)(3) therefore must

be shown by the State” and “whether good cause exists, being fact-intensive and

dependent on circumstances which result in the delay of a probation revocation

hearing, is a finding of fact delegated to the discretion of the trial court.” State v.

Geter, 383 N.C. 484, 491–92 (2022). Thus, a trial court’s finding of good cause to

revoke probation and reinstate a sentence is reviewed for abuse of discretion. Id. at

494. However, this discretion “must not be exercised absolutely, arbitrarily, or

capriciously[.]” Id. at 493.

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“What constitutes ‘good cause shown and stated’ is a case-by-case, fact-specific

determination which requires a trial court to consider the particular circumstances

which mandate that good cause be shown.” Id. “In reaching its conclusion the court

should consider all the facts in evidence, and not act on its own mental impression or

facts outside the record, although . . . it may take into consideration facts within its

judicial knowledge.” Shankle v. Shankle, 289 N.C. 473, 483 (1976). However, the

“chief consideration in determining whether a defendant’s probation should be

revoked despite the expiration of the term of probation is whether substantial justice

would be advanced or offended by the post-expiration revocation. Geter, 383 N.C. at

494 (citing Shankle v. Shankle, 289 N.C. 473, 483 (1976)).

Here, the trial court’s revocation of defendant’s probation 326 days after his

probation expired was supported by evidence presented in the record and at the

probation hearing. First, defendant had two pending criminal charges against him

at the time of the probation hearing. These charges had not gone to trial at the time

of the hearing because the case had been continued multiple times. Although the

State contends in its brief that defendant could have asked for an earlier hearing on

either the probation violation or his pending criminal charges, the State admits in its

brief that the reason defendant’s charges had not gone to trial was because the State

requested these continuances. Thus we are unpersuaded that this argument by the

State has merit; however we still agree that the trial court did not abuse its discretion

in finding good cause.

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Second, sufficient evidence was presented during the probation hearing to

support a finding that defendant violated his probation. The State presented

evidence obtained from defendant’s vehicle during a search of Ms. Moss’s property.

The vehicle found on the curtilage of Ms. Moss’s property was registered to defendant.

Inside the vehicle, police found 18.7 grams of oxycodone, 4.8 grams of MDMA, 4.5

grams of cocaine, 2.1 grams of crack cocaine, 55.5 pounds of marijuana, a 9mm Taurus

G2C handgun, and a 12-gauge shotgun, which had been altered to have the serial

numbers removed. Furthermore, police found shipping labels addressed to defendant

and found other documents addressed to defendant in the vehicle. Finally, Ms. Moss

admitted to police that she could not open the vehicle and that her son, defendant,

Thus, the delay in the probation hearing due to defendant’s pending charges

and the evidence presented at the probation hearing support the trial court’s

conclusion that it had good cause to revoke defendant’s probation and reinstate

defendant’s sentence. The trial court’s findings were not arbitrary or capricious and

substantial justice would be advanced by retroactively revoking defendant’s

probation and reinstating his sentence. Thus, the trial court did not abuse its

discretion in finding there was good cause to revoke defendant’s probation after it had

expired.

B. Sufficiency of Alleged Violations

Defendant alternatively argues that even if the trial court did not abuse its

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discretion in finding it had good cause to revoke defendant’s probation retroactively,

the trial court prejudicially erred in finding that each alleged probation violation was

independently sufficient to revoke his probation. The State argues that this finding

was a clerical error and that sufficient competent evidence was presented to show

that it was more probable than not that defendant committed new criminal offenses

while he was on probation. We agree.

N.C.G.S. § 15A-1344(d2) states,

When a defendant under supervision for a felony conviction has violated a condition of probation other than G.S. 15A- 1343(b)(1) or G.S. 15A-1343(b)(3a), the court may impose a period of confinement of 90 consecutive days to be served in the custody of the Division of Community Supervision and Reentry of the Department of Adult Correction. The court may not revoke probation unless the defendant has previously received a total of two periods of confinement under this subsection.

N.C.G.S. § 15A-1344(d2). Under N.C.G.S. § 15A-1343(b)(1), a regular condition of

probation is that a defendant must “[c]ommit no criminal offense in any jurisdiction.”

N.C.G.S. § 15A-1343(b)(1).

Defendant argues the trial court committed reversible error by indicating in

Box 4 of the probation revocation form that each of defendant’s six violations were

independently sufficient to revoke his probation. Specifically, defendant argues that

violations 1-3, which related to a positive marijuana test and the defendant being in

arrears, were not criminal offenses under N.C.G.S. § 15A-1343(b)(1) and the trial

court should have imposed a period of confinement of 90 days. The State argues the

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trial court checking Box 4 on the form was merely a clerical error and the trial court

intended to revoke probation because it found defendant committed criminal offenses

while on probation.

This Court confronted a nearly identical issue in State v. Daniels, where the

trial court had checked both Box 4 and Box 5a on the probation revocation form after

defendant was found to have tested positive for marijuana, was delinquent on court

payments, and committed a new criminal offense. Daniels, 290 N.C. App. 443, 444

(2023). In that case, this Court held that it would remand a probation revocation

decision “when the trial court considered an erroneous basis in its discretionary

punishment decision” and this Court was “unable to determine what weight the trial

court gave to each of the violations of law, including the erroneous one, in reaching

its decision[.]” Id. at 446. The Court sought to ensure the trial court “exercised its

discretion and restrained Defendant’s liberty as a conscious and fully informed

decision.” Id. Accordingly, this Court noted that because it was able to ascertain that

the trial court properly weighed evidence of probation violations by checking Box 5a

on the probation revocation form, the trial court did not abuse its discretion in

revoking defendant’s probation. Id. at 447.

Here, the trial court stated during the probation hearing that after considering

all the evidence presented during the probation hearing, the trial court was

“reasonably satisfied that [defendant has] willfully violated the conditions provided

in subsection five” of the probation revocation form. Additionally, just like the trial

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court in Daniels, the trial court here also indicated by checking Box 5a on the

probation revocation form that defendant had willfully violated the condition that he

not commit any criminal offense. Thus, we ascertain from the record that the trial

court properly weighed the evidence in concluding that defendant violated his

probation by committing a criminal offense and the trial court did not prejudicially

err in also checking Box 4 on the probation revocation form.

C. Confrontation of Witnesses

Defendant also argues that the trial court prejudicially erred in not allowing

defendant to confront the officers who searched his vehicle because the trial court did

not have good cause as required by N.C.G.S. § 15A-1345(e). We disagree.

During a probation hearing, “the probationer . . . may confront and cross-

examine adverse witnesses unless the court finds good cause for not allowing

confrontation.” N.C.G.S. § 15A-1345(e). “[A] Sixth Amendment right to confrontation

in a probation revocation hearing does not exist.” State v. Hemingway, 278 N.C. App.

538, 548 (2021). In general, a trial court has “great discretion to admit any evidence

relevant to the revocation of defendant’s probation.” State v. Murchison, 367 N.C.

461, 465 (2014) (internal citations omitted). When hearsay evidence is relevant for

determining whether defendant had violated a condition of his probation by

committing a criminal offense, the trial court may admit this evidence as it is not

bound by the rules of evidence. Id.

Here, Officer Wood was the only officer to testify during the probation hearing.

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Defendant objected to Officer Wood’s testimony on hearsay and the Sixth Amendment

because he was not the officer who searched defendant’s vehicle. However, Officer

Wood was the charging officer in the case and not only did he speak with defendant

during his custodial interview when defendant was arrested, but he was also in direct

communication with the officers who conducted the search on defendant’s vehicle.

Because the Sixth Amendment does not apply to this probation hearing and hearsay

statements may be admitted during probation hearings, the trial court did not abuse

its discretion in allowing Officer Wood to testify as to what other officers told him

about the case.

III. Conclusion

For the foregoing reasons, we affirm the trial court.

AFFIRMED.

Chief Judge DILLON and Judge HAMPSON concur.

Report per Rule 30(e).

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