Volume 163 — North Carolina Court of Appeals Reports

<bold>1. Confessions and Incriminating Statements — voluntariness — handcuffed</bold> <bold>to chair</bold> <block_quote> There was no error in the denial of a motion to suppress defendant's in-custody statements to police where there was testimony supporting findings that defendant was given and understood his rights, that he waived those rights and that he was not coerced. Although the statements were given over a six hour period during which defendant was handcuffed to a chair, officers provided food and drink, allowed bathroom breaks, and inquired about defendant's comfort at regular intervals.</block_quote> <bold>2. Evidence — hearsay — residual exception — unavailable witness — good</bold> <bold>faith effort to find</bold> <block_quote> There was competent evidence to support the trial court's conclusion that a witness was not available for purposes of the residual hearsay exception set forth in Rule 804(b)(5) where the<page_number>Page 85</page_number> State attempted to subpoena the witness and called several telephone numbers provided by a friend. N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 804(b)(5).</block_quote> <bold>3. Evidence — hearsay — residual exception — unavailable witness —</bold> <bold>notice</bold> <block_quote> There was sufficient notice of the State's intent to introduce an absent witness's hearsay statement to officers under Rule 804(b)(5) where the State informed defendant at the outset of the trial that it intended to offer the statement at trial, and defendant received the statement about a year before trial and did not offer an argument about any prejudice he may have suffered.</block_quote> <bold>4. Sexual Offenses — substitute parent-babysitter only-evidence</bold> <bold>insufficient</bold> <block_quote> A charge of sexual offense by a substitute parent should have been dismissed where there was insufficient evidence that defendant had assumed the position of a parent in the home. The evidence established only that defendant was a babysitter. N.C.G.S. § <cross_reference>14-27.7</cross_reference>(a).</block_quote> <bold>5. Sentencing — consecutive sentences — two convictions from same</bold> <bold>incident</bold> <block_quote> There was no error in imposing consecutive sentences for first-degree statutory sexual offense and indecent liberties, even though defendant argued that all of the convictions arose from the same incident.</block_quote>

<bold>1. False Pretense — felonious issuing of worthless checks —</bold> <bold>motion to dismiss — sufficiency of evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charges of felonious issuing of worthless checks, because there was sufficient circumstantial evidence to infer that defendant knew that at the time he issued the checks they were worthless including that: (1) not only was there evidence that the checks had been issued with insufficient funds, but also that other checks issued within the same time period had been returned for insufficient funds; and (2) defendant actually requested the general manager of the payee to hold the checks and not deposit them immediately.</block_quote> <bold>2. Judges — expression of opinion — evidence</bold> <block_quote> The trial court did not deny defendant a fair trial in a felonious issuing of worthless checks case by allegedly expressing opinions on the evidence of defendant's guilt and about the weight to be given to the evidence, because: (1) the trial court did not encourage the jury to ignore evidence, but instead let the jurors know they could take their time with the exhibits and that it was not necessary to completely and immediately comprehend everything in the bank records prior to jury deliberations; (2) the probable meaning of the trial court's comment to the jurors that the State was "painting by numbers" on a poster was to tell them that the prosecutor was using numbers on a poster as an illustration of his argument and was not an expression of opinion on defendant's guilt; (3) the totality of circumstances revealed that additional comments noted by defendant were within the trial court's inherent supervisory powers over the conduct of the trial and were not prejudicial to defendant; and (4) the alleged "open hostility" toward defendant were admonishments that fell within the trial court's power to control the examination and cross-examination of witnesses.</block_quote><page_number>Page 616</page_number> <bold>3. False Pretense — felonious issuing of worthless checks —</bold> <bold>instruction — reasonable person standard</bold> <block_quote> The trial court did not improperly instruct the jury to apply a reasonable person standard to the knowledge element of issuing a worthless check when it instructed that a person acts knowingly when the person is aware or conscious of what he is doing and that a person has knowledge about the circumstances surrounding his act or about the results of his act when he is aware of or conscious of those circumstances or of those results.</block_quote> <bold>4. False Pretense — felonious issuing of worthless checks —</bold> <bold>instruction — corporate officer — plain error analysis</bold> <block_quote> The trial court did not commit plain error in a felonious issuing of worthless checks case by failing to instruct the jury that defendant was charged as a corporate officer drawing a check on a corporate account, because: (1) the elements of issuing a worthless check are the same whether defendant was charged as a corporate officer or as an individual; and (2) it was not probable that a different result would have been reached had the instruction been given.</block_quote> <bold>5. Sentencing; Probation and Parole — probation — community</bold> <bold>service — restitution</bold> <block_quote> The trial court erred in a felonious issuing of worthless checks case by sentencing defendant to thirty-six months of probation, twenty-five hours per week of community service, and to pay full restitution of $26,239.30, because: (1) N.C.G.S. § <cross_reference>15A-1343.2</cross_reference>(d)(3) mandates that where a felon is sentenced to community punishment, probation may not be for more than thirty months unless the trial court specifically finds that a longer term is required, and there was no such finding in this case; (2) the trial court did not consider any of the factors related to defendant's ability to pay the full amount of restitution; and (3) in imposing both restitution and community service conditions upon defendant's probation, the trial court failed to consider defendant's ability to comply with both conditions simultaneously, as well as meeting his other obligations under the sentence of paying costs and fines.</block_quote>