Volume 154 — North Carolina Court of Appeals Reports

<bold>1. Identification of Defendants — showup procedure — motion to suppress</bold> <bold>— suggestiveness</bold> <block_quote> The trial court did not err in a robbery with a dangerous weapon case by failing to suppress eyewitness identifications of defendant based on a showup procedure used at the restaurant where the crime occurred, because defendant failed to demonstrate that the showup was impermissibly suggestive and created a substantial likelihood of irreparable misidentification when: (1) the eyewitnesses had sufficient opportunity to observe defendant earlier in the evening before the showup and one of the witnesses was familiar with defendant; (2) the time period was sufficiently proximate to support the reliability of the identification; (3) the potential suggestiveness of the showup was mitigated by the fact<page_number>Page 411</page_number> that the eyewitnesses were shown a different individual shortly before defendant was brought to the restaurant and none of the eyewitnesses identified the first suspect even though he wore a shirt with the same logo as the shirt worn by one of the robbers; (4) although defendant was handcuffed when he first arrived at the showup, this alone is insufficient to make the showup impermissibly suggestive; and (5) the trial court considered that the eyewitnesses' in-court identifications were based on their recollection of the crime and not the subsequent showup.</block_quote> <bold>2. Evidence — exclusion of expert testimony — eyewitness confidence,</bold> <bold>eyewitness memory, and showups</bold> <block_quote> The trial court did not err in a robbery with a dangerous weapon case by excluding expert testimony about eyewitness confidence, eyewitness memory, and showups, because: (1) the overwhelming evidence of defendant's guilt was sufficient to permit a jury to draw inferences without the aid of expert testimony; and (2) the probative value of the expert's testimony was outweighed by its likely danger to mislead the jury and confuse the issues.</block_quote> <bold>3. Appeal and Error — preservation of issues — failure to assign</bold> <bold>error</bold> <block_quote> The trial court did not abuse its discretion in a robbery with a dangerous weapon case by denying defendant's oral motion in limine regarding eyewitness confidence, because while defendant offered an objection to this evidence at trial, he failed to assign error to the evidentiary rulings by the trial court on this issue as required by N.C.R. App. P. 10(a).</block_quote> <bold>4. Appeal and Error — preservation of issues — questions regarding</bold> <bold>eyewitness memory — failure to develop argument</bold> <block_quote> Although defendant contends the trial court abused its discretion in a robbery with a dangerous weapon case by sustaining the State's objections to defendant's two questions regarding eyewitness memory during jury voir dire, this assignment of error is overruled because: (1) defendant failed to develop this argument; and (2) defendant failed to demonstrate that the trial court's decision was arbitrary or that he was prejudiced by exclusion of the questions.</block_quote><page_number>Page 412</page_number> <bold>5. Appeal and Error — preservation of issues — questions regarding</bold> <bold>publication — failure to develop argument</bold> <block_quote> Although defendant contends the trial court abused its discretion in a robbery with a dangerous weapon case by prohibiting defendant from cross-examining a detective about procedures in a publication from the U.S. Justice Department, this assignment of error is overruled because: (1) defendant failed to develop this argument; and (2) defendant failed to demonstrate that the trial court's decision was arbitrary or that he was prejudiced by exclusion of the questions.</block_quote>

<bold>1. Appeal and Error — appealability — interlocutory order — sovereign</bold> <bold>immunity affects substantial right</bold> <block_quote> Although the appeal from the denial of a motion to dismiss is not a final judgment and is generally not appealable, defendant county's appeal is properly before the Court of Appeals because<page_number>Page 427</page_number> it is based upon the defense of sovereign immunity which affects a substantial right warranting immediate appellate review.</block_quote> <bold>2. Immunity — sovereign — county employees — health and life insurance</bold> <bold>benefits — motion to dismiss — due process — claims under contract</bold> <bold>law — § 1983 claim</bold> <block_quote> The trial court did not err by denying defendant county's motion to dismiss on the ground of sovereign immunity plaintiff's due process, breach of contract, impairment of contractual obligations, and <cross_reference>42 U.S.C. § 1983</cross_reference> claims based on the county's retroactive change in policy requiring county employees declared disabled to have completed twenty years of continuous service to receive health and life insurance benefits rather than the five years required when plaintiff became employed by the county and when he began disability retirement because: (1) defendant is not immune against the due process claim since it was brought pursuant to Article I, Section 19 of the North Carolina Constitution; (2) while sovereign immunity remains a valid defense in tort actions, it is not a proper defense in suits arising from contract law; and (3) defendant is not immune from plaintiff's § 1983 claim since the alleged federal violation occurred as a result of defendant's official action.</block_quote>

<bold>1. Alienation of Affections; Criminal Conversation — common law</bold> <bold>tort — recognized by North Carolina Supreme Court</bold> <block_quote> The Court of Appeals has no authority to abolish the torts of alienation of affection and criminal conversation even though defendant contends the torts are archaic, antiquated, and offensive to the concept of feminine equality, because: (1) neither tort is a statutory creation, and both emanate from the common law and have been recognized by our Supreme Court; and (2) the Court of Appeals has no authority to overrule decisions of our Supreme Court.</block_quote> <bold>2. Evidence — exclusion of statements made to defendant by plaintiff's</bold> <bold>wife — harmless error</bold> <block_quote> The trial court did not err in an alienation of affections and criminal conversation case by excluding testimony concerning statements made to defendant by plaintiff's wife concerning her relationship with plaintiff, because some of the excluded evidence was later admitted through the testimony of plaintiff's wife, rendering harmless its exclusion during defendant's testimony, and defendant made no offer of proof as to the other testimony.</block_quote> <bold>3. Appeal and Error — preservation of issues — failure to cite authority</bold> <bold>— general objections — failure to show prejudice</bold> <block_quote> Although defendant contends the trial court erred in an alienation of affections and criminal conversation case by permitting plaintiff to cross-examine defendant concerning property owned by defendant's father and to cross-examine plaintiff's wife concerning the pendency of charges against her for embezzlement from her place of employment, this assignment of error is dismissed because: (1) defendant did not preserve this issue for appeal by failing to cite any authority and by interposing only general objections at trial; and (2) defendant has neither argued nor demonstrated that he was prejudiced by the challenged cross-examinations.</block_quote><page_number>Page 524</page_number> <bold>4. Child Support, Custody, and Visitation — support-amount</bold> <block_quote> The trial court did not err in an alienation of affections and criminal conversation case by permitting plaintiff to elicit testimony from an employee in the child support section of superior court concerning the amount of child support which would have been required in 1997 of a person earning the same income as plaintiff's wife earned in 1996, because: (1) contrary to defendant's assertion that N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 702 was violated, the witness was neither offered nor accepted as an expert witness; (2) the witness testified that she had calculated the child support obligation by applying the applicable child support guidelines to the income as shown by the W-2 form of plaintiff's wife and by determining the presumptive amount of child support; and (3) defendant failed to show prejudice.</block_quote> <bold>5. Evidence — redirect examination — suitcase of drugs — harmless error</bold> <block_quote> The trial court did not commit prejudical error in an alienation of affections and criminal conversation case by admitting plaintiff's testimony during redirect examination that his wife had told him she had seen a suitcase of drugs at defendant's residence because, although it does not appear that defendant's counsel opened the door for the challenged testimony and there is no other basis for its admission, in light of the other evidence this single statement would not have been likely to affect the jury's verdict or award.</block_quote> <bold>6. Alienation of Affections — directed verdict — judgment</bold> <bold>notwithstanding verdict — sufficiency of evidence — post-separation</bold> <bold>conduct admissible</bold> <block_quote> The trial court did not err by denying defendant's motion for a directed verdict and for judgment notwithstanding the verdict in an action for alienation of affection, because: (1) there was evidence that plaintiff and his wife had a loving marriage until 1996; (2) post-separation conduct is admissible and relevant to corroborate evidence of pre-separation conduct, and the evidence of post-separation conduct here provided strong circumstantial evidence explaining and corroborating defendant's preseparation conduct; (3) defendant admitted to having sexual intercourse with plaintiff's wife in October 1997 and continuing a sexual relationship with her thereafter; and (4) a jury could find from all the evidence, without having to engage in speculation, that defendant's<page_number>Page 525</page_number> conduct was the effective cause of the wife's alienation of affection.</block_quote> <bold>7. Alienation of Affections — motion to set aside verdict — motion for</bold> <bold>new trial — sufficiency of evidence — preseparation misconduct</bold> <block_quote> The trial court did not abuse its discretion by denying defendant's N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 59 motion to set aside the compensatory damage verdict for alienation of affection and by failing to grant a new trial, because there was sufficient evidence of preseparation misconduct on defendant's part.</block_quote> <bold>8. Criminal Conversation — sufficiency of evidence — post-separation</bold> <bold>sexual relationship — separation agreement</bold> <block_quote> The trial court did not err by submitting the charge of criminal conversation to the jury, because: (1) plaintiff presented substantial evidence, and defendant admitted, that defendant had sexual intercourse with plaintiff's wife while she was married to plaintiff; (2) a claim for criminal conversation may be based solely upon post-separation sexual relations; (3) the existence of a separation agreement between plaintiff and plaintiff's wife does not shield defendant from liability for criminal conversation based on his post-separation sexual relationship with plaintiff's wife; and (4) the cited provision of the separation agreement does not, without evidence of plaintiff's prior knowledge and approval of defendant's sexual intercourse with plaintiff's wife while she was married to plaintiff, establish his consent to such intercourse.</block_quote> <bold>9. Criminal Conversation — motion to set aside verdict — motion for new</bold> <bold>trial — sufficiency of evidence</bold> <block_quote> The trial court did not abuse its discretion by denying defendant's N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 59 motion to set aside the compensatory damage verdict for criminal conversation and by failing to grant a new trial, because plaintiff presented substantial evidence from which a jury could have determined that he experienced mental anguish and humiliation due to the affair between his wife and defendant including: (1) the testimony of plaintiff's father as to plaintiff's depressed mental state; (2) plaintiff's own testimony that he began consulting with his pastor to help deal with his emotional turmoil; and (3) even up to the week before trial, plaintiff continually tried to contact his former wife by leaving notes on her car asking for a chance to speak with her again.</block_quote><page_number>Page 526</page_number> <bold>10. Alienation of Affections — punitive damages — sexual relationship —</bold> <bold>laughter about situation — knowledge affecting children</bold> <block_quote> The trial court did not err by awarding punitive damages for an alienation of affection claim, because: (1) evidence of sexual relations between defendant and plaintiff's spouse has been held to satisfy the necessary element of aggravation, and defendant admitted to sexual relations with plaintiff's wife during her marriage to plaintiff; (2) defendant's laughter about the situation has been held to be evidence of malice, and there was evidence that defendant laughed at plaintiff and his father when they spoke with defendant about his relationship with plaintiff's wife; and (3) knowledge that the relationship would harm plaintiff's children has been a factor showing malice, and there was evidence that plaintiff's son told defendant to stay away from his mother.</block_quote> <bold>11. Criminal Conversation — punitive damages — same sexual misconduct</bold> <bold>sufficient</bold> <block_quote> The trial court did not abuse its discretion by denying defendant's motion for a new trial on the punitive damages issue for a criminal conversation claim, because: (1) the same sexual misconduct necessary to establish the tort of criminal conversation may also sustain an award of punitive damages; and (2) there was sufficient evidence of defendant's sexual intercourse with plaintiff's wife during her marriage to plaintiff to support a verdict for plaintiff.</block_quote> <bold>12. Alienation of Affections — jury instructions — active role —</bold> <bold>preseparation misconduct</bold> <block_quote> The trial court did not err by instructing the jury on alienation of affection even though the court refused to give defendant's requested instruction that to be liable defendant must have had an active role in alienating the wife's affection and that any claim must be based on preseparation conduct, because: (1) the instruction given by the trial court established that there must exist some wrongful action on the part of defendant leading to the alienation; (2) there is no indication defendant ever specifically requested that the trial court instruct the jury it was only to consider preseparation conduct or that defendant presented the trial court with any authority in support of such a position; and (3) the fact that the jury had previously been given a different instruction is not grounds for asserting prejudice where the trial<page_number>Page 527</page_number> court in this case specifically instructed the jury that it was to disregard the prior instruction.</block_quote> <bold>13. Alienation of Affections — jury instructions — compensatory damages</bold> <block_quote> Although defendant contends the trial court erred by instructing the jury as to compensatory damages for alienation of affection that it could consider the degree to which plaintiff and his wife's relationship was destroyed in addition to plaintiff's mental anguish, shame, humiliation, loss of reputation and support, and any other adverse effect on the quality of the marital relationship, this assignment of error is overruled because: (1) the Court of Appeals previously rejected defendant's contentions as to the sufficiency of the evidence; and (2) defendant failed to cite any authority to support his argument that the trial court's instruction was otherwise erroneous.</block_quote> <bold>14. Criminal Conversation — jury instruction — waiver or consent</bold> <block_quote> The trial court did not err on the claim of criminal conversation by instructing the jury that it should not consider whether plaintiff and his wife had separated before the sexual intercourse occurred, because the plaintiff's separation agreement with his wife did not constitute a waiver or consent for sexual intercourse between the wife and another person.</block_quote> <bold>15. Criminal Conversation — jury instruction — factors</bold> <block_quote> The trial court did not err by instructing the jury on factors for determining an amount of compensatory damages to award on the criminal conversation claim, because: (1) there was evidence in the record from which the jury could find that plaintiff suffered loss of consortium, mental anguish, or humiliation as a result of defendant's sexual relationship with plaintiff's wife; (2) the instruction allowed the jury to award only nominal damages if the factors were not present; and (3) defendant cites no law supporting his attack on the instruction.</block_quote> <bold>16. Damages and Remedies — punitive damages — jury instruction</bold> <block_quote> The trial court did not err in an alienation of affections and criminal conversation case by instructing the jury on the issue of punitive damages, because: (1) the trial court instructed the jury that punitive damages were within its discretion to award and<page_number>Page 528</page_number> that the amount should bear a reasonable relationship to the sum reasonably needed to punish defendant and deter others; (2) defendant cited no authority for alleged violations of his constitutional rights or for why the standard articulated by the judge was not constitutionally adequate; and (3) there is no indication in the record that defendant objected to the instructions on punitive damages or submitted a proposed instruction on the issue.</block_quote>