Volume 164 — North Carolina Court of Appeals Reports

<bold>Public Records — exemptions — criminal investigation — criminal</bold> <bold>intelligence information</bold> <block_quote> Although the trial court did not err in a declaratory judgment action by dismissing plaintiffs' complaint seeking production of records of a criminal investigation or records of criminal intelligence information conducted by defendant State Bureau of Investigation (SBI) related to a fatal fire that occurred in a county jail, plaintiffs are entitled to release of any other information classified as public records under N.C.G.S. §§ <cross_reference>132-1.4</cross_reference>(c) and (k) as well as any other public records not specifically exempted from disclosure, because: (1) the Public Records Act under N.C.G.S. § <cross_reference>132-1</cross_reference> provides exemptions including that records of criminal investigations conducted by public law enforcement agencies or records of criminal intelligence information compiled by public law enforcement agencies are not public records; (2)<page_number>Page 155</page_number> exclusion of these types of records protects confidentiality of government informants, protects investigative techniques used by law enforcement agencies, and protects against the use of hearsay that investigators often use for their opinions and conclusions; (3) if investigatory files were made public subsequent to the termination of enforcement proceedings, the ability of any investigatory body to conduct future investigations would be seriously impaired when few persons would respond candidly to investigators if they feared that their remarks would become public record, the investigative techniques of the investigating body would be disclosed to the general public, and a person's right of privacy would be violated if their name was mentioned or accused of wrongdoing in unverified or unverifiable hearsay statements of others included in such reports; (4) the Public Records Act contains no exception for disclosure of records where an investigation is complete; and (5) plaintiffs are neither criminal defendants nor civil litigants seeking discovery of admissible evidence to be used in trial, but instead they sought access to the SBI records due to their desire to know and publish the contents.</block_quote>

<bold>Zoning — building moratorium — public notice requirement</bold> <block_quote> After a rehearing (and with this opinion superseding the first), the Court of Appeals held that the trial court erred by not granting summary judgment for plaintiff in an action involving a building permit sought by plaintiff and a moratorium on heavy industry imposed by defendant. The moratorium dealt specifically with building permits and was therefore subject to the notice requirements of Article 18 of Chapter 153A, which were not met. N.C.G.S. § <cross_reference>153A-323</cross_reference>.</block_quote>

<bold>1. Confessions and Incriminating Statements — motion to</bold> <bold>suppress —</bold> <bold><italic>Miranda</italic></bold> <bold>warnings — voluntariness</bold> <block_quote> The trial court did not err by denying defendant's motion to suppress a statement given by her to the police, because: (1) it is not essential that <italic>Miranda</italic> warnings be given orally rather than in written form, although the better practice would be to give the accused both; (2) although defendant contends she did not read the voluntary statement form before she signed it, it is presumed that the accused has read it or has knowledge of its contents unless it is shown that defendant was willfully misled or misinformed by the opposing party; (3) defendant's statement amounted to an equivocal request for an attorney, a detective attempted to clarify whether defendant wanted an attorney and gave her every opportunity to contact her attorney, and defendant never availed herself of these opportunities; and (4) the lack of evidence that defendant felt threatened or was being coerced supports the trial court's conclusion that defendant's statement was voluntary.</block_quote><page_number>Page 311</page_number> <bold>2. Constitutional Law — right to counsel — separate charges</bold> <block_quote> It was permissible for the police to question defendant about a robbery charge outside the presence of the attorney who had been appointed to represent her in the conspiracy to commit robbery charge, because: (1) robbery and conspiracy to commit robbery are separate crimes; and (2) defendant's Sixth Amendment right to counsel had not attached to the robbery with a dangerous weapon charge.</block_quote>

<bold>Public Officers and Employees — race discrimination claim — §</bold> <bold>1983 — Title VII</bold> <block_quote> The trial court erred by granting defendants' motion to dismiss plaintiff county DSS employee's race discrimination claims even though the complaint appears to attempt to assert a claim directly under the federal constitution instead of referencing <cross_reference>42 U.S.C. § 1983</cross_reference>, because: (1) the mere fact that a complaint neglects to specify that it is based on § 1983 does not require dismissal even though referencing the statute is the more preferable course; (2) the allegations in the complaint were sufficient to support a § 1983 claim for violation of plaintiff's equal protection rights against both defendant DSS director individually and defendant DSS employer; and (3) a state or local government employee may pursue claims of race discrimination under Title VII, § 1983, or both.</block_quote>

<bold>1. Criminal Law — consolidated charges — factually similar and</bold> <bold>connected</bold> <block_quote> The trial court did not abuse its discretion in consolidating 15 charges because the offenses were all factually similar and interconnected. Defendant was not prejudiced because one count was subsequently dismissed and the jury acquitted him on 6 counts.</block_quote> <bold>2. Evidence — hearsay — business report</bold> <block_quote> There was no error in a burglary and larceny prosecution in admitting testimony that the property had not been rented and that defendant did not have permission to be on the property. The monthly business report on which the testimony was based fell under the business record exception to the hearsay rule.</block_quote> <bold>3. Witnesses — re-direct examination — scope</bold> <block_quote> The trial court did not err in a burglary prosecution by allowing a line of questioning on re-direct examination of a deputy which defendant contended extended the scope of direct-examination.</block_quote> <bold>4. Evidence — fingerprinting techniques — deputy's lay opinion</bold> <block_quote> The trial court did not err by allowing a deputy to present lay opinion testimony about fingerprinting techniques. The deputy was in charge of CID and helped the jury understand why fingerprints were not recovered.</block_quote> <bold>5. Possession of Stolen Property — constructive and recent</bold> <bold>possession — sufficiency of evidence</bold> <block_quote> There was sufficient circumstantial evidence that defendant had constructive and recent possession of stolen items from one of several houses that had been broken into.</block_quote> <bold>6. Burglary and Unlawful Breaking or Entering — no permission</bold> <bold>to enter — sufficiency of evidence</bold> <block_quote> There was sufficient evidence in a prosecution for breaking and entering, larceny, and possession of stolen goods that defendant had not had permission to enter the house.</block_quote><page_number>Page 431</page_number> <bold>7. Possession of Stolen Property — constructive possession —</bold> <bold>knowledge that property was stolen — sufficiency of evidence</bold> <block_quote> There was sufficient circumstantial evidence that defendant had constructive and recent possession of a stolen bow and knew or had reason to believe that it was stolen.</block_quote> <bold>8. Possession of Stolen Property — constructive possession —</bold> <bold>sufficiency of evidence</bold> <block_quote> There was sufficient evidence to establish defendant's recent and constructive possession of stolen firearms and a bow in that the stolen property was found where defendant had been staying, along with other stolen property.</block_quote> <bold>9. Burglary and Unlawful Breaking or Entering — sufficiency of</bold> <bold>evidence — consent to enter</bold> <block_quote> There was sufficient evidence in a second breaking and entering and larceny prosecution that defendant did not have consent to enter the house.</block_quote> <bold>10. Burglary and Unlawful Breaking or Entering — evidence of</bold> <bold>another's guilt — lesser included offense — no instruction</bold> <block_quote> Evidence implicating another in a breaking and entering and larceny was evidence that defendant had committed no crime at all and did not require the submission of lesser included offenses.</block_quote> <bold>11. Burglary and Unlawful Breaking or Entering — breaking in to</bold> <bold>sleep — instructions on lesser included offenses</bold> <block_quote> Evidence in a felonious breaking and entering prosecution that defendant had admitted breaking into a house to sleep but not to commit a larceny or another felony should have resulted in an instruction on the lesser included offense of misdemeanor breaking and entering. However, defendant was not entitled to an instruction on misdemeanor larceny because any larceny that occurred pursuant to a breaking and entering is a felony regardless of the value of what was stolen.</block_quote> <bold>12. Possession of Stolen Property — instruction on lesser</bold> <bold>included offense — no conflicting evidence</bold> <block_quote> Defendant was not entitled to an instruction on the lesser included offense of misdemeanor possession of stolen goods where there was no conflicting evidence. Defendant's assertion that the jury accepted a portion of the State's case and rejected other parts of it was not sufficient.</block_quote><page_number>Page 432</page_number>

<bold>1. Child Support, Custody, and Visitation — custody —</bold> <bold>jurisdiction — home state</bold> <block_quote> The trial court did not err by declining jurisdiction over this child custody matter and by concluding that Vermont was the home state of the children, because: (1) the minor children were not living in North Carolina for the required six months prior to the commencement of plaintiff mother's custody proceedings, and except for a six-week period in January and February 2002, the minor children lived continuously in Vermont from August 2001 to July 2002; (2) the totality of circumstances shows the six-week absence was merely a temporary absence, and in light of the numerous relocations and decisions, the parties' intent at the specific time they retrieved the minor children standing alone should not control the determination of whether the absence was temporary; (3) the length of absence from Vermont was a relatively short period of time, especially when compared to the fact that the minor children had spent almost the entire previous year in Vermont; and (4) Vermont's exercise of jurisdiction is proper under both North Carolina's UCCJEA provisions and Vermont's UCCJA provisions.</block_quote> <bold>2. Child Support, Custody, and Visitation — custody — notice —</bold> <bold>substantial conformity</bold> <block_quote> The trial court did not err in a child custody case when it found that Vermont had issued its order in substantial conformity with the UCCJA and that plaintiff mother had notice and was aware of the pendency of the issue of jurisdiction before the Vermont court on 18 September 2002, because: (1) plaintiff conceded that the notice of hearing stated in all capital letters that both parties must appear and failure to appear meant it was possible for the court to issue parental rights and responsibilities based on the evidence presented by the other party; and (2) plaintiff responded to defendant's motion and specifically raised the issue of Vermont's jurisdiction over the custody issues in light of the North Carolina proceeding plaintiff had filed.</block_quote><page_number>Page 445</page_number> <bold>3. Trials — recordation — conversation between courts</bold> <block_quote> The trial court did not err in a child custody case by failing to make a record of the conversation which occurred between the North Carolina court and the Vermont court as required by N.C.G.S. § <cross_reference>50A-110</cross_reference>(d), because: (1) the Vermont order is a sufficient record of the communication between Vermont and North Carolina; and (2) nothing in the statute specifies which court taking part in the conversation has the affirmative duty to make the record.</block_quote> <bold>4. Child Support, Custody, and Visitation — custody — use of</bold> <bold>law enforcement</bold> <block_quote> The trial court erred by authorizing the use of law enforcement officials to effectuate a registered child custody determination made by the home state of Vermont exercising jurisdiction in substantial conformity with our UCCJEA, because: (1) the trial court remains limited, as it was under the UCCJA, to traditional contempt proceedings; (2) the circumstances allowing for the use of law enforcement officials are not present in this case; and (3) there is no statutory basis for invoking the participation of law enforcement officers in producing the children.</block_quote>

<bold>1. Declaratory Judgments — government action to resist public</bold> <bold>records disclosure — improper</bold> <block_quote> It was improper for a city attorney to use a declaratory judgment action to resist disclosure of documents alleged to be public records. Only the person making the public records request is entitled to initiate judicial action to seek enforcement of its request. However, the merits of the city attorney's action would have reached the trial court on defendant's counterclaim to compel disclosure, and the trial court's ruling was addressed on appeal.</block_quote> <bold>2. Public Records — city attorney — law enforcement agency</bold> <block_quote> The Raleigh City Attorney's office qualifies as a public law enforcement agency for purposes of the criminal investigation exception under N.C.G.S. § <cross_reference>132-1.4</cross_reference> (The Public Records Act) because it is responsible under the Raleigh City Charter for investigating, preventing, and solving zoning violations.</block_quote> <bold>3. Public Records — criminal investigation — in camera review</bold> <bold>required — purpose in preparing documents</bold> <block_quote> The criminal investigation exception of the Public Records Act does not apply solely to ongoing violations of the law. In this case the trial court erred by applying a straight-line rule based on the two-year statute of limitations for misdemeanors. The court<page_number>Page 460</page_number> should have conducted an in camera review to determine whether the material was subject to the exception based on the purpose in compiling each withheld document and the definitions found in the statute. Moreover, on remand the court may disclose documents which do not qualify as public records but which could be obtained by normal discovery.</block_quote> <bold>4. Public Records — criminal discovery exceptions —</bold> <bold>misdemeanors</bold> <block_quote> A city attorney pursuing zoning violations was not entitled to the discovery protections of Chapter 15A, and therefore to a Public Records exception. Chapter 15A is not applicable to misdemeanors. N.C.G.S. § <cross_reference>15A-901</cross_reference>.</block_quote> <bold>5. Public Records — city attorney — attorney-client privilege</bold> <block_quote> An ordering compelling the release of documents by a city attorney was remanded where it was not clear whether the court was acting under the common law privilege or the Public Records Act. Furthermore, the court's application of the rule that confidential documents are subject to disclosure after three years was contrary to the statute in that it focused on the date of the document's creation rather than the date the material was received by the governmental body.</block_quote> <bold>6. Public Records — city attorney — work product — subject to</bold> <bold>disclosure</bold> <block_quote> A city attorney's work product was subject to disclosure under the Public Records Act unless the individual documents were independently exempted by virtue of the criminal investigation exception.</block_quote>

<bold>1. Criminal Law — plea agreement — validity</bold> <block_quote> The trial court did not err in a statutory sex offense, sexual activity by a substitute parent, indecent liberties with a child, first-degree statutory rape, and first-degree statutory sex offense case by concluding that a valid plea agreement did not exist between defendant and the State on 15 July 2002, because: (1) defendant rejected three plea arrangements before this case went to trial; and (2) the fact that the trial court rejected the 26 June 2002 plea arrangement means that the arrangement was no longer available for defendant to accept on 15 July 2002 unless the prosecutor negotiated another plea arrangement with defendant, and the record does not reflect that such a negotiation took place.</block_quote> <bold>2. Criminal Law — motion for continuance — invalid plea</bold> <bold>agreement</bold> <block_quote> The trial court did not abuse its discretion in a statutory sex offense, sexual activity by a substitute parent, indecent liberties with a child, first-degree statutory rape, and first-degree statutory sex offense case by denying defendant a continuance after the trial court declined defendant's request to consider his alleged plea arrangement, because there was no proposed plea agreement before the court when defendant's statement to the trial court on 15 July 2002 that he was prepared to accept the plea was an attempt to resurrect the 26 June 2002 plea arrangement which had been rendered null and void once the trial court rejected it.</block_quote> <bold>3. Appeal and Error — preservation of issues — plain error</bold> <block_quote> Although defendant contends the trial court committed plain error in a statutory sex offense, sexual activity by a substitute parent, indecent liberties with a child, first-degree statutory rape, and first-degree statutory sex offense case by allowing the State to present evidence of prior bad acts including evidence that defendant had been incarcerated in Arizona, that he used illegal drugs, and that he abused his wife, defendant did not properly preserve this issue for appeal because: (1) defendant provided no explanation, analysis or specific contention in his brief supporting<page_number>Page 559</page_number> the bare assertion that the claimed error is so fundamental that justice could not have been done; and (2) the right and requirement to specifically and distinctly contend an error amounts to plain error does not obviate the requirement that a party provide argument supporting the contention that the trial court's actions amounted to plain error as required by N.C.R. App. P. 28(a) and (b)(6).</block_quote> <bold>4. Constitutional Law — effective assistance of counsel —</bold> <bold>failure to meet burden of proof</bold> <block_quote> Although defendant contends the trial court erred in a statutory sex offense, sexual activity by a substitute parent, indecent liberties with a child, first-degree statutory rape, and first-degree statutory sex offense case by concluding that defendant did not receive ineffective assistance of counsel based on counsel's alleged failure to object to inadmissible evidence, this assignment of error is dismissed because defendant failed to show that counsel's performance fell below an objective standard of reasonableness or that the error committed was so serious that a reasonable probability existed that the trial result would have been different absent the error.</block_quote> <bold>5. Sexual Offenses — statutory sex offense against person 13,</bold> <bold>14, or 15 years old — short-form indictment</bold> <block_quote> The trial court did not err by concluding that the indictment for statutory sex offense against a person who is 13, 14, or 15 years old was sufficient to apprise defendant of the crime with which he was charged, because: (1) N.C.G.S. § <cross_reference>15-144.2</cross_reference> permits a short-form indictment for this crime; and (2) the statute does not require the State to provide the details of the alleged sexual offense in the indictment, but specifically states that it is sufficient in describing a sex offense to allege that the accused person unlawfully, willfully, and feloniously did engage in a sex offense with the victim.</block_quote>

<bold>1. Trials — motion for new trial — abuse of discretion</bold> <bold>standard</bold> <block_quote> The trial court did not err in an action arising out of an automobile accident by setting aside the verdict and by granting plaintiffs' motion for a new trial on the issue of damages to the minor plaintiffs, because: (1) an appellate court may reverse the trial court's decision to grant a new trial, but only in those exceptional cases where abuse of discretion is clearly shown; and (2) a review of the record revealed that the trial court did not abuse its discretion in granting plaintiffs' motion.</block_quote> <bold>2. Evidence — defendant's testimony — damages</bold> <block_quote> The trial court did not err in an action arising out of an automobile accident by considering defendant's testimony as a basis for awarding a new trial on the issue of damages to the minor plaintiffs where plaintiff never objected to such testimony at trial, because: (1) a trial court is not prevented from considering specific testimony when ruling on a motion for a new<page_number>Page 579</page_number> trial under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 59(a)(6) even if a party did not object to it; and (2) Rule 59(a)(6) requires the trial court to find the award of damages to have been influenced by passion or prejudice, and such a determination requires a consideration of the entire record.</block_quote> <bold>3. Evidence — findings of fact — conclusions of law</bold> <block_quote> The trial court did not err in an action arising out of an automobile accident by its finding of fact number 12 because it was supported by competent evidence, and the conclusions of law were supported by the findings of fact.</block_quote> <bold>4. Trials — motion for new trial — abuse of discretion standard</bold> <bold>— de novo review</bold> <block_quote> While a trial court's conclusions of law are reviewable de novo, a ruling in the discretion of the trial court such as a decision to grant or deny a motion for a new trial raises no question of law, and thus, the issue before the court is whether the trial court abused its discretion instead of whether the trial court's decision was proper under a de novo review.</block_quote>

<bold>Divorce — equitable distribution — unincorporated separation</bold> <bold>agreement — mistake of law</bold> <block_quote> The trial court did not err by granting summary judgment in favor of plaintiff wife on defendant husband's counterclaim for equitable distribution of the parties' marital and divisible property even though defendant sought to set aside the parties' separation agreement drafted by plaintiff based on the fact that plaintiff fraudulently or mistakenly represented to defendant that the law in North Carolina required each of them to retain their respective retirement savings accounts as their separate property, because: (1) a separation agreement which is not incorporated into a court judgment is a contract, and a party cannot attack the making of a contract on the basis of fraud where the proof regarding the misrepresentation or misstatement relates to a matter of law since everyone is equally capable of determining the law; (2) the existence of a relationship of confidence and trust does not operate as an exception to the general rule that fraud cannot be premised upon a misrepresentation of law; (3) a bare mistake of law generally affords no grounds for reformation, and the separation agreement in the instant case succeeded in accomplishing the intention of the parties to distribute their retirement benefits pursuant to an erroneous understanding of North Carolina law; and (4) contrary to defendant's assertion, the record contained a copy of the separation agreement bearing a notary stamp for the signatures of both plaintiff and defendant.</block_quote>

<bold>Evidence — hearsay — reputation of neighborhood for narcotics</bold> <block_quote> The trial court erroneously allowed testimony about the reputation of a neighborhood for drug dealing; evidence of the general reputation of a defendant's home or neighborhood in drug cases constitutes inadmissible hearsay in North Carolina. Moreover, there exists the reasonable possibility of a different result without the improper reputation evidence.</block_quote>

<p>Motor Vehicles— impaired driving — entrapment</p> <p>The failure to give a requested instruction on entrapment resulted in the reversal of a driving while impaired conviction where a defendant was found sleeping in a truck, there was evidence that he had been drinking but not driving and did not intend to drive, defendant had a conversation with an officer in which he may have been told to move along, and the officer arrested defendant as he drove away.</p>

<bold>1. Statute of Frauds — proposed lease and cover letter — mutual</bold> <bold>assent not present</bold> <block_quote> A proposed lease and a cover letter did not satisfy the statute of frauds and the trial court did not err by granting summary judgment for defendants. The letter on its face showed that defendants had not yet agreed to the lease; although plaintiffs argued that an agreement was subsequently reached, a writing cannot comply with the statute of frauds when it predates the agreement of which it is the memorial.</block_quote> <bold>2. Discovery — business plan — not relevant to existence of</bold> <bold>lease</bold> <block_quote> A business plan was not relevant to the dispositive issue of whether the parties entered into a lease enforceable under the statute of frauds, and the trial court did not abuse its discretion by denying a motion to compel production of the plan.</block_quote>

<bold>1. Insurance — homeowners policy — coverage of birthday party</bold> <bold>in warehouse</bold> <block_quote> The trial court did not err by granting summary judgment for plaintiff on the issue of whether his homeowners insurance policy covered a birthday party in a rented warehouse. The warehouse provided a more appropriate place for an activity that normally would have taken place at his home, and the use was in connection with his residence as that term is used in the policy.</block_quote><page_number>Page 749</page_number> <bold>2. Insurance — homeowners policy — business pursuit exclusion —</bold> <bold>birthday party in warehouse</bold> <block_quote> The business pursuit exclusion in a homeowners insurance policy did not apply to a birthday party held in a warehouse. There was no evidence that the injured parties went to the warehouse for any business purpose, and, while the insured had rented the warehouse as an investment, he had not taken steps to establish any business at the warehouse and was not engaged in a business activity at the time of the fire.</block_quote> <bold>3. Insurance — homeowners policy — notice of claim —</bold> <bold>reasonable</bold> <block_quote> An insured gave notice to the insurer as soon as practicable once he reasonably believed that the policy would provide coverage where a fire occurred on 16 September 2001; defendant Szamatowicz did not learn that anyone was pursuing a claim until 15 February 2002, when he was served with a summons and complaint; defendant then contacted an attorney; and the attorney obtained an extension of time to answer, notified plaintiff insurance company on 10 April 2002, and filed an answer for defendant on 15 April 2002.</block_quote>

<bold>Cities and Towns — unified development ordinance — zoning</bold> <bold>compliance permit</bold> <block_quote> A de novo review revealed that the superior court erred in finding that, as a matter of law, petitioners' application for a zoning compliance permit for petitioners' home did not meet the requirements contained in respondent town's unified development ordinance (UDO) because according to the UDO as written, the town could have considered any of the specific physical effects listed in the UDO, but had no authority to consider the site plan's potential effect on surrounding property values.</block_quote>