Volume 133 — North Carolina Court of Appeals Reports

<bold>Vendor and Purchaser — realtor — square footage — reliance on</bold> <bold>appraisal</bold> <block_quote> Summary judgment was improperly granted on claims for breach of fiduciary duty and negligent misrepresentation against a realtor arising from plaintiff's purchase of a house with fewer square feet than represented where the realtor had relied upon the square footage in an appraisal. There was a genuine issue of material fact as to whether defendant exercised reasonable care in obtaining and communicating to plaintiff the heated square footage; a real estate agent's reliance on a reliable appraiser for computation of square footage is evidence of the agent's compliance with her standard of care but is not conclusive. Summary judgment on fraud and unfair and deceptive trade practices claims was proper because there was no evidence that defendant knew it had communicated false square footage information.</block_quote>

<bold>1. Indictment and Information — date of offense — correction</bold> <block_quote> The trial court did not err in a prosecution for a first-degree burglary and first-degree statutory rape by granting the prosecution's motion to correct the date of the offenses. Time is not an essential element of these crimes, defendant was obviously aware that the date on the indictment was incorrect, defendant was neither misled nor surprised as to the nature of the charges, and there was no evidence of an alibi or any other defense wherein time would be material.</block_quote> <bold>2. Confessions and Incriminating Statements — defendant not in</bold> <bold>custody — Miranda warnings not required</bold> <block_quote> A defendant in a burglary and statutory rape prosecution was not in custody and Miranda warnings were not required where defendant took affirmative steps to contact the police after they contacted him and made an appointment to meet at the police station at a time convenient to him; defendant arrived at the station under his own volition and agreed to speak with the officers; at no time was he searched, handcuffed, or restricted in his movement; officers told him he was free to leave before questioning began; he was told on at least four occasions during questioning that he was free to leave and asked whether he understood; he replied in the affirmative each time; these exchanges occurred before defendant spoke with the officers, before he incriminated himself, and before he wrote the confession;<page_number>Page 532</page_number> and defendant left the station alone at the end of the interview. Finding that defendant was not in custody is independent of finding that he voluntarily gave his statement.</block_quote> <bold>3. Confessions and Incriminating Statements — confession —</bold> <bold>voluntary</bold> <block_quote> A defendant's confession to first-degree burglary and first-degree rape was voluntary where defendant voluntarily went to the police station; he was neither deceived nor held incommunicado, nor were there oral or physical threats or shows of violence against him; officers told defendant that it would "be best if he cooperated," but no promises were made; while one detective was larger than defendant, that factor does not indicate that defendant would be threatened; the choice of a detective of the same sex and race as defendant to interrogate him may have been "manipulative," but defendant did not show that this had any bearing on inculcating hope or fear in defendant; and there was no indication that defendant was under the influence of impairing substances or that his mental capacity was debilitated.</block_quote> <bold>4. Criminal Law — prosecutor's argument — defendant as "sexual</bold> <bold>predator"</bold> <block_quote> There was no error in a prosecution for first-degree burglary and first-degree statutory rape where the prosecutor in closing arguments labeled defendant a "sexual predator." The use of the term was slight and was confined to one paragraph of the argument; given the abundance of evidence indicating guilt, including defendant's confession, there is no reasonable possibility that this characterization of defendant may have affected the verdict.</block_quote> <bold>5. Evidence — prior crime or act — prior burglaries — rape</bold> <bold>victim's demeanor — admissible</bold> <block_quote> The trial court did not err in a prosecution for first-degree burglary and first-degree statutory rape by allowing testimony regarding previous burglaries to the home and the victim's demeanor after the rape. The testimony of the victim's mother about her suspicion that defendant was involved in recent burglaries at her home, and a detective's repetition of the statements, were admissible to show opportunity, preparation, knowledge, identity, and absence of mistake, entrapment, or accident. The statements regarding the victim's demeanor after the rape are directly relevant as to whether the rape occurred.</block_quote><page_number>Page 533</page_number> <bold>6. Burglary and Unlawful Breaking or Entering — misdemeanor</bold> <bold>breaking or entering as lesser included offense — instruction</bold> <bold>refused</bold> <block_quote> The trial court did not err in a prosecution for first-degree burglary by refusing to instruct on the lesser include offense of misdemeanor breaking or entering where the State clearly established each of the elements of first-degree burglary and there was no evidence showing the commission of a lesser included offense.</block_quote> <bold>7. Discovery — prosecution's failure to disclose exculpatory</bold> <bold>evidence — no prejudice</bold> <block_quote> There was no prejudicial error in a prosecution for first-degree burglary and first-degree rape from the State's failure to disclose hair samples taken from the crime scene and photographs of the victim's bathroom window. The district attorney did not have DNA analysis performed on the hair samples, so that their inculpatory or exculpatory nature is unknown and the information that the bathroom window was possibly the point of entry, which contradicts defendant's confession, was in evidence through other testimony. Moreover, defendant's confession and the overwhelming evidence against him vastly diminish the effect of the photographs and hair samples.</block_quote> <bold>8. Sentencing — structured — presumptive range — evidence of</bold> <bold>mitigating factors — no evidence of aggravating factors</bold> <block_quote> The trial court did not abuse its discretion by sentencing defendant within the Structured Sentencing presumptive range where there was evidence of several mitigating factors, but no aggravating factors. A trial court is not required to justify a decision to sentence a defendant within the presumptive range by making findings of aggravation and mitigation.</block_quote>