Volume 104 — North Carolina Court of Appeals Reports

1. Homicide 28.1 (NCI4th) — manslaughter — self-defense instruction not given — no error Defendant was not entitled to a self-defense instruction in a manslaughter prosecution under facts that involved defendant going out to a parked vehicle and returning with a crowbar. There was no evidence on which the jury could have found the defendant's actions necessary to protect himself nor reasonable under the circumstances. Am Jur 2d, Homicide 480, 519. 2. Criminal Law 86.2 (NCI3d) — homicide — impeachment of defendant — prior convictions — admissible There was no error in a manslaughter prosecution from the admission of prior larceny convictions to impeach defendant where defendant contended that these convictions were obtained in violation of his right to counsel. Defendant failed to carry his burden to show by a preponderance of the evidence that he had not waived his right to counsel. N.C.G.S. <cross_reference>15A-980</cross_reference>. Am Jur 2d, Homicide 540. 3. Criminal Law 1188 (NCI4th) — manslaughter — sentencing — prior convictions — findings as to indigency There was evidence to support the findings of the trial court concerning prior convictions when sentencing defendant for manslaughter where defendant contended that, when he was previously convicted in 1971 and 1977, the trial court incorrectly found that defendant was not indigent and chose not to retain private counsel. The decision to use the defendant's prior convictions as statutory factors to aggravate his sentence was not in error.<page_number>Page 195</page_number> Am Jur 2d, Habitual Criminals and Subsequent Offenders <block_quote> What constitutes former "conviction" within statute enhancing penalty for second or subsequent offense. 5 ALR2d 1080.</block_quote> 4. Criminal Law 1114 (NCI4th) — manslaughter — sentencing — lack of remorse There was sufficient evidence to support the nonstatutory aggravating circumstance of lack of remorse when sentencing defendant for manslaughter where the State introduced evidence that, after the defendant had beaten his father, he visited a local bar, drank a beer and was gone for at least an hour before returning home and that he told an officer four hours after the beating that his father had gotten what he deserved. Am Jur 2d, Homicide 554.

<p>1. Insurance § 79.1 (NCI3d)— rate making — failure to distribute funds</p> <p>The Insurance Commissioner did not err by failing to distribute funds held in escrow under N.C.G.S. § 58-36-25(b) following a remand to the Commissioner by the Court of Appeals for further findings. The final determination in N.C.G.S. § 58-36-25(b) means all proceedings arising out of a disapproval order in a rate filing, including proceedings on remand.</p> <p>Am Jur 2d, Insurance §§ 30, 59.</p> <p>2. Insurance § 79.1 (NCI3d)— rate making —remand for further findings — scope of proceedings</p> <p>The Insurance Commissioner erred when considering a rate making proceeding on remand for additional findings by receiving evidence beyond what was appropriate to comply with the mandate. While the Commissioner is authorized to receive additional evidence, he may consider only that evidence necessary to explain how in fact he resolved the conflicting evidence, what adjustments he made, and which calculations he considered more reliable when he entered the disapproval order.</p> <p>Am Jur 2d, Insurance §§ 22, 30.</p>

1. Rules of Civil Procedure 12.1 (NCI3d) — Rule 12(b)(6) motions — properly Rule 12(b)(1) motions — treated as 12(b)(1) motions Defendants' motions for dismissal under N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 12(b)(6) were treated as 12(b)(1) motions on appeal where the argument focused on the trial court's jurisdiction to hear the appeal from the Board of Education and the parties conceded at oral argument that the proper motions would have been under Rule 12(b)(1). Am Jur 2d, Motions, Rules, and Orders 4. 2. Schools 13 (NCI3d) — career ladder — promotion denied — appeal to superior court A teacher who is denied a promotion under the career ladder program may appeal to the local board of education<page_number>Page 426</page_number> and then to superior court. N.C.G.S. <cross_reference>115C-305</cross_reference> is construed consistently with N.C.G.S. <cross_reference>115C-45</cross_reference>(c) to require a party to exhaust his or her administrative remedies before seeking redress in the courts; therefore, a teacher may not seek judicial review in superior court without first appealing the school personnel action to the local board of education, and an appeal to the local board of education does not preclude an appeal to superior court. Furthermore, the local board's review of a decision by a three-member panel of trained evaluators as provided in N.C.G.S. 115C-363.3(c) constitutes the final administrative action required before a party participating in the career ladder program may appeal to superior court. <block_quote> Am Jur 2d, Administrative Law 595, 597-599; Schools 149, 151, 156.</block_quote>