Volume 148 — North Carolina Court of Appeals Reports

<bold>1. Witnesses — expert — qualifications</bold> <block_quote> The trial court did not err in a first-degree statutory sexual offense and taking indecent liberties with a minor case by finding a licensed professional counselor witness was an expert in the area of counseling behavior of sexually abused children under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 702, because: (1) the witness did not testify as to whether, in his expert opinion, the minor victim had been sexually abused, but instead testified that the victim's behavior was consistent with a child who had been sexually abused; and (2) the witness was in a better position than the jury, based on his training and experience, to determine what behavior was consistent or inconsistent with children who had been sexually abused.</block_quote> <bold>2. Evidence — hearsay — residual exception — unavailable witness</bold> <block_quote> The trial court did not err in a first-degree statutory sexual offense and taking indecent liberties with a minor case by allowing<page_number>Page 30</page_number> a licensed professional counselor expert witness's testimony to be introduced as substantive evidence based on the residual exception to the hearsay rule under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 804(b)(5), because: (1) the trial court found that the victim was unavailable; (2) the trial court found that the State presented sufficient guarantees of trustworthiness since the minor victim was personally present and had personal knowledge of the incidents at issue, the expert did not indicate that the victim had any motivation to make a false statement, the victim was not angry with defendant, neither the expert nor the victim's parents prompted the statement of the minor, and the victim did not recant her statements during the counseling sessions with the expert; and (3)the trial court attempted on two different occasions to speak with the minor victim to have her answer questions, and the victim did not respond in any meaningful manner.</block_quote> <bold>3. Evidence — hearsay — medical diagnosis exception</bold> <block_quote> The trial court did not err in a first-degree statutory sexual offense and taking indecent liberties with a minor case by permitting hearsay statements made by the minor victim to a pediatric nurse and to a doctor to be introduced as substantive evidence based on the medical diagnosis exception under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(4), because: (1) the interviews of the victim met the trustworthiness requirement; and (2) the minor victim's statements stating how and by whom she was inappropriately touched were reasonably pertinent to diagnosis since the identification of defendant as the perpetrator was pertinent to continued treatment of the possible psychological and emotional problems resulting from the sexual offense.</block_quote> <bold>4. Evidence — expert testimony — credibility of victim</bold> <block_quote> The trial court did not err in a first-degree statutory sexual offense and taking indecent liberties with a minor case by permitting a licensed professional counselor and a doctor to testify as to the credibility of the minor victim, because: (1) defendant made general objections to the statements during the trial, but at no time requested a limiting instruction; (2) an instruction limiting admissibility of testimony to corroboration is not required unless counsel specifically requests such instruction; and (3) the witnesses did not testify that the minor victim suffered from a post-traumatic stress disorder, but instead testified as to the general characteristics of children who suffer from sexual abuse.</block_quote><page_number>Page 31</page_number> <bold>5. Sexual Offenses — first-degree — sufficiency of evidence</bold> <block_quote> The trial court did not err by failing to dismiss the charge of first-degree sexual offense because there was sufficient evidence of genital penetration.</block_quote> <bold>6. Sexual Offenses — indecent liberties with a minor — sufficiency of</bold> <bold>evidence</bold> <block_quote> The trial court did not err by failing to dismiss the charges of taking indecent liberties with a minor, because there is sufficient testimony in the record to support five counts of this crime.</block_quote> <bold>7. Evidence — instructions — statements of minor victim — substantive</bold> <bold>purposes</bold> <block_quote> The trial court did not err in a first-degree statutory sexual offense and taking indecent liberties with a minor case by instructing the jury that the statements of the minor victim to a licensed professional counselor, a pediatric nurse, and a doctor were admitted as substantive evidence concerning the truth of what the victim stated at an earlier time, because the Court of Appeals has already determined that these statements were properly admitted as substantive evidence by meeting the requisite guarantees of trustworthiness.</block_quote>

<bold>1. Unfair Trade Practices — house construction — structural defects</bold> <block_quote> The trial court erred by concluding that defendants committed unfair and deceptive trade practices arising from the construction of a house where the court relied upon structural defects in plaintiff's home to conclude that defendants breached the implied warranty of habitability, but did not indicate substantial aggravating circumstances which would transform defendants' action into a Chapter 75 violation.</block_quote> <bold>2. Unfair Trade Practices — house construction — failure to inform buyer</bold> <bold>of builder's corporate existence</bold> <block_quote> The individual defendants' failure to inform plaintiffs of the existence of their corporate construction company did not support conclusions of unfair and deceptive trade practices where all of plaintiffs' damages arose from structural damages to their home. The individual defendants' failure to inform plaintiffs of their company's existence did not impact plaintiffs' damages.</block_quote> <bold>3. Construction Claims — home builders — individually liable</bold> <block_quote> The trial court did not err by concluding that defendants were individuality liable for their actions in breaching the implied warranty<page_number>Page 72</page_number> of habitability where the evidence showed that the initial offer to purchase was signed by defendants as individuals, their corporate building company was not mentioned in any document until five days before closing and after a majority of the construction had been completed, and there was ample evidence that both defendants were actively involved in the construction of plaintiffs' residence.</block_quote> <bold>4. Unfair Trade Practices — attorney fees — improperly awarded</bold> <block_quote> The trial court erred by awarding attorney fees to plaintiffs where the court erroneously concluded that defendant committed an unfair and deceptive trade practice.</block_quote>

<bold>Civil Procedure — Rule 60(b) motion — standing — trial court can set</bold> <bold>aside judgment on own initiative</bold> <block_quote> The trial court did not abuse its discretion by setting aside a judgment that was entered against defendant individuals directing them to remove their trailer from the pertinent subdivision that was in violation of a restrictive covenant even though the trial court extended relief to defendant individuals under defendant<page_number>Page 398</page_number> home corporation's N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 60(b) motion when defendant individuals did not make a request, because: (1) defendant home corporation had standing to move for relief under Rule 60(b); and (2) even if defendant home corporation did not have standing, the trial court had authority to set aside its earlier judgment on its own initiative.</block_quote>

<bold>1. Search and Seizure — search by parole officer — not in lieu of search</bold> <bold>warrant</bold> <block_quote> The trial court did not err by denying a defendant's motion to suppress marijuana eventually found after a parole officer attempted to gain entry into defendant's house pursuant to a parole condition allowing warrantless searches where defendant contended that the use of the parole officer's authority was in lieu of police officers obtaining a search warrant and was not in furtherance of the supervisory goals of probation. The fact that other police officers were in the area of defendant's home when the parole officer approached defendant did not affect the legality of the parole officer's conduct, and the Fourth Amendment does not limit searches pursuant to probation conditions to those searches that have a probationary purpose.</block_quote><page_number>Page 423</page_number> <bold>2. Search and Seizure — unlawful warrantless entry — subsequent warrant</bold> <bold>— independent source doctrine</bold> <block_quote> Assuming that a warrantless entry by officers into defendant's home was not justified by exigent circumstances and was unlawful, evidence thereafter seized from the home pursuant to a subsequently obtained search warrant was admissible under the independent source doctrine where the search warrant was obtained on the basis of an informant's tip that defendant was growing marijuana in his home, corroborating evidence obtained while officers were lawfully on the premises attempting to gain consent to search, and defendant's refusal to consent to a search; the warrant application contained no information concerning what the officers observed when they initially entered the home without a warrant; and there was no indication that the warrant was prompted by what the officers saw during the warrantless entry.</block_quote> <bold>3. Search and Seizure — warrant — probable cause — corroboration of tip</bold> <block_quote> A detective's affidavit provided a sufficient showing of probable cause to support issuance of a search warrant where an informant's anonymous tip was not reliable standing alone, but the information in the tip was sufficiently corroborated to provide reasonable cause to believe that a search of defendant's house would reveal marijuana.</block_quote> <bold>4. Appeal and Error — appointment of counsel refused — no prejudicial</bold> <bold>error</bold> <block_quote> There was no prejudicial error in a marijuana prosecution where the court refused to appoint appellate counsel without making findings and conclusions regarding defendant's financial status but defendant's counsel took all of the necessary steps to docket defendant's appeal and filed a brief on defendant's behalf. The denial of defendant's request for appointed counsel was not prejudicial to defendant's right to counsel.</block_quote>