Volume 159 — North Carolina Court of Appeals Reports

<bold>1. Divorce — equitable distribution — distributive award — findings</bold> <block_quote> An equitable distribution order contained insufficient findings of the source from which defendant was to pay a distributive award and was remanded. If defendant is to pay the award from a non-liquid asset or by obtaining a loan, the award must be recalculated to take into account the financial ramifications.</block_quote> <bold>2. Divorce — equitable distribution — distributional</bold> <bold>factors — findings insufficient</bold> <block_quote> The trial court's findings about distributional factors in an equitable distribution award were not detailed enough for appellate review and the order was remanded.</block_quote> <bold>3. Divorce — equitable distribution — pension plan —</bold> <bold>marital property</bold> <block_quote> The classification of a pension plan as marital property for an equitable distribution award was upheld. Defendant stipulated that the plan was marital property with a note that the marital portion was to be appraised, but never introduced evidence of the premarital value of the pension. Defendant had the burden of showing the portion of the plan that was separate property and cannot now complain.</block_quote><page_number>Page 187</page_number>

<bold>1. Criminal Law — preliminary instructions — expression of</bold> <bold>opinion</bold> <block_quote> The trial court did not express an opinion on defendant's guilt in a second-degree rape case when it stated, during preliminary instructions to the jury pool on the presumption of innocence and burden of proof, "and that's what we'll do-what will go on in this case," because although it is the better practice for a court to avoid even ambiguous comments that may imply that it and the prosecutor are on the same team, the court was merely commenting on the roles of the court and the attorneys in the trial which is not a question of fact to be decided by the jury.</block_quote><page_number>Page 345</page_number> <bold>2. Rape — second-degree — constructive force —</bold> <bold>sufficiency of evidence</bold> <block_quote> There was sufficient evidence of constructive force to support defendant's conviction of second-degree rape where the victim testified that defendant took her to an empty ballpark, threatened her by referring to a "9mm" that could be used to "persuade" her, and stated that he would get it the "easy way or the hard way."</block_quote> <bold>3. Criminal Law — instruction — false, contradictory, or</bold> <bold>conflicting statements — guilty conscience</bold> <block_quote> The trial court did not err in a second-degree rape case by instructing the jury that if it found defendant made false, contradictory, or conflicting statements, the same could be considered as a circumstance tending to reflect the mental process of a person possessed of a guilty conscience, because: (1) defendant's statements to the police and his testimony not only were inconsistent with each other, but were also inconsistent with the evidence at trial; and (2) the variances in the statements were consistent with the conclusion that defendant tailored his explanation to fit the allegations as defendant became aware of more details.</block_quote> <bold>4. Appeal and Error — preservation of issues — failure to object</bold> <bold>and argue in brief</bold> <block_quote> Although defendant contends the trial court committed plain error in a second-degree rape case by refusing to provide the jury with a written copy of the jury instructions after the jury requested it, defendant waived appellate review of this issue because defendant failed to object and to argue in his brief that the trial court's instruction amounted to plain error.</block_quote> <bold>5. Sentencing — miscalculation of prior conviction level —</bold> <bold>second-degree rape</bold> <block_quote> The trial court erred in a second-degree rape case by miscalculating defendant's prior conviction level as level II under N.C.G.S. § <cross_reference>15A-1340.14</cross_reference> and the case is remanded for resentencing because defendant had no other prior conviction with assigned points under the sentencing scheme, and the appropriate prior record sentencing level for defendant was level I.</block_quote><page_number>Page 346</page_number>