Volume 168 — North Carolina Court of Appeals Reports

<bold>1. Drugs — possession — constructive — hand movement under</bold> <bold>blanket</bold> <block_quote> There was sufficient evidence of constructive possession of cocaine where defendant and his codefendant appeared to officers searching a house to be passing a tube of crack cocaine back and forth under a blanket which was between them on the loveseat on which they were sitting.</block_quote> <bold>2. Drugs — intent to sell — deputy's opinion of normal amount</bold> <bold>for personal use — sufficiency of evidence</bold> <block_quote> There was insufficient evidence of intent to sell cocaine where the only evidence of intent was a deputy's testimony that the amount of crack found was more than most people would "normally" or "generally" carry for personal use. However, a conviction for possession with intent to sell necessarily includes the lesser offense of possession.</block_quote>

<bold>1. Wills — caveat — validity of prior will — issues not raised</bold> <bold>by pleadings of evidence</bold> <block_quote> Where a caveator sought to have a 1992 will set aside and a 1996 will adjudged to be the deceased's last will and testament, the trial court did not err by not submitting to the jury the specific issue of the validity of the 1992 will. The caveator did not challenge the validity of the 1992 will on any basis other than its purported revocation by execution of the later will and the jury resolved all issues pertaining to that later will.</block_quote> <bold>2. Appeal and Error — preservation of issues — caveat — issues</bold> <bold>not raised at trial</bold> <block_quote> Issues which were not raised at trial in a caveat proceeding were not preserved for appellate review.</block_quote>

<bold>1. Termination of Parental Rights — paternity — full hearing —</bold> <bold>due process rights of parent</bold> <block_quote> The trial court erred in a termination of parental rights proceeding by not holding a full hearing on paternity even though a paternity test showed a zero probability that respondent was the father. The right of a named respondent to offer evidence is inherent in the due process rights of parents.</block_quote> <bold>2. Termination of Parental Rights — findings — lack of evidence</bold> <bold>— court's observations not sufficient</bold> <block_quote> There was insufficient evidence to support the court's findings in a termination of parental rights proceeding where no evidence was presented at the hearing and paternity test results which the court had seen were not entered into evidence. A fact finder's observation does not constitute evidence and cannot provide the basis for a finding.</block_quote> <bold>3. Paternity — admissibility of test results — rebuttable</bold> <bold>presumption not applicable</bold> <block_quote> The rebuttable presumption of admissibility of paternity test results created by N.C.G.S. § <cross_reference>8-50.1</cross_reference>(b1) did not apply where the test results had been seen by the court but never actually offered or received into evidence. The statute creates a rebuttable presumption, but the court here refused to give respondent an opportunity to rebut the presumption.</block_quote> <bold>4. Termination of Parental Rights — father excluded by</bold> <bold>paternity test — standing — service</bold> <block_quote> A respondent in a termination of parental rights case who was excluded by a paternity test lacked standing to raise any issue concerning service on a John Doe father, but the court erred by excluding respondent from the proceeding because he was the only potential father served, and the proceeding could only have concerned his parental rights.</block_quote>

<bold>Appeal and Error — motion to certify interlocutory order for</bold> <bold>appeal — time of notice of appeal — not tolled</bold> <block_quote> An appeal was dismissed where notice of appeal was not timely filed and no motion was filed that would toll the time for taking an appeal. There is no provision for tolling the time for taking an appeal when a motion to certify an interlocutory order for immediate review has been made.</block_quote>

<bold>1. Appeal and Error — preservation of issues — failure to argue</bold> <bold>in brief</bold> <block_quote> Defendant voluntarily abandoned two assignments of error in a statutory rape, statutory sexual offense, and taking indecent liberties case related to admission of evidence concerning the victims'<page_number>Page 264</page_number> past sexual conduct and that sustained the State's objection to character testimony about one of the victims, because defendant failed to argue these issues in his brief.</block_quote> <bold>2. Evidence — prior crimes or bad acts — similar sex offenses —</bold> <bold>temporal proximity — opportunity — common scheme or modus</bold> <bold>operandi — identity</bold> <block_quote> The trial court did not abuse its discretion in a statutory rape, statutory sexual offense, and taking indecent liberties case by allowing two witnesses who were not the victims in this case to testify that they had been sexually abused by defendant, because: (1) the alleged incidents involving the witnesses occurred in 1999 and 2000, while the events at bar occurred in early to mid 2001; (2) the witnesses were the same age as the victims; (3) in both situations, defendant frequently visited or stayed overnight at the homes where the incidents occurred; (4) all four girls were assaulted as they slept or were about to fall asleep while others were present elsewhere in the residence; (5) the two sets of victims are sisters, and the oldest was abused first in both cases; and (6) based on the above similarities and the temporal proximity, the testimony was proper to show opportunity, a common scheme or modus operandi, and the assailant's identity.</block_quote> <bold>3. Evidence — officer's testimony — prior consistent statements</bold> <bold>— corroboration</bold> <block_quote> The trial court did not err in a statutory rape, statutory sexual offense, and taking indecent liberties case by permitting an investigator to testify that the two minor victims' in-court testimony was consistent with their previous statements to the investigator, because: (1) a review of the investigator's testimony with the victims' in-court testimony shows his testimony to be corroborative; (2) the differences that defendant cites in the statements are not appreciable variances and instead appeared to be either where the investigator did not receive all the details during the initial meetings or the order of details in the victims' stories varied between their initial statements and their testimony at trial; and (3) any disparities affect the weight, not the admissibility, of the statements and the witnesses' credibility.</block_quote> <bold>4. Evidence — opinion testimony — medical expert — sexual abuse</bold> <bold>— no prejudicial error</bold> <block_quote> Although the trial court erred in a statutory rape, statutory sexual offense, and taking indecent liberties case by admitting<page_number>Page 265</page_number> opinion testimony from a medical expert, a forensic pediatrician, that the victims were truthful and did not just get together to tell each other what to say, the error was not prejudicial to defendant because the State presented other overwhelming evidence against defendant including that: (1) the victims' testimony was consistent with statements made to parents, counselors, social workers, law enforcement officers, and the pediatrician as shown through corroborative testimony, (2) the pediatrician's medical examinations discovered numerous physical and emotional injuries consistent with the victims' histories and indicative of sexual abuse; and (3) both victims experienced noticeable behavioral changes following the incidents.</block_quote> <bold>5. Evidence — prior crimes or bad acts — indecent liberties —</bold> <bold>no prejudicial error</bold> <block_quote> Although the trial court erred in a statutory rape, statutory sexual offense, and taking indecent liberties case by allowing the State to ask a defense witness, defendant's former girlfriend, whether she knew that defendant had previously been convicted of taking indecent liberties with a child, this error was not prejudicial to defendant even though defendant contends it made him change trial tactics and forced him to testify because: (1) the State presented a wealth of testimony and physical evidence implicating defendant as the perpetrator of the crimes against the two victims; (2) the trial court gave a lengthy limiting instruction prior to two witnesses testifying about defendant's prior sexual abuse of them that the evidence could not be used to show defendant acted in conformity with it to commit the crimes; and (3) the court's jury instructions prior to deliberation ensured that any evidence pertaining to defendant's prior convictions of taking indecent liberties with children was to be considered solely for the N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) factors of identity, motive, intent, or common scheme.</block_quote> <bold>6. Evidence — victims' juvenile records — failure to grant</bold> <bold>complete access</bold> <block_quote> The trial court did not err in a statutory rape, statutory sexual offense, and taking indecent liberties case by failing to allow defendant to gain complete access to the victims' juvenile records, because: (1) the trial court reviewed the victims' juvenile records upon defendant's motion and determined that there was nothing defendant was entitled to see; (2) the records do not contain information material to defendant's case and no reasonable<page_number>Page 266</page_number> probability exists that the result of the proceeding would have been different; and (3) the documentation further corroborated the facts of the case.</block_quote> <bold>7. Indecent Liberties; Rape; Sexual Offenses — statutory rape —</bold> <bold>statutory sexual offense — motion to dismiss — sufficiency of</bold> <bold>evidence</bold> <block_quote> The trial court did not err by denying defendant's motions to dismiss the charges of statutory rape, statutory sexual offense, and taking indecent liberties with a minor based on alleged insufficiency of the evidence, because: (1) in regard to the rape and sexual offense charges, the record indicated that the pertinent victim was fourteen years old, defendant was thirty-six years old, they were not lawfully married at the time of the incident, and defendant forced the victim to engage in vaginal and anal intercourse; (2) in regard to the taking indecent liberties charge, the pertinent victim was twelve and defendant was over the age of sixteen and at least five years older than the victim, the victim awoke after passing out to find defendant on top of her, both the victim's and defendant's pants and underwear were pulled down, the victim later experienced pain in her vaginal and anal areas, and a forensic pediatrician determined from a medical exam that the victim was both physically and mentally injured by nonconsensual sexual abuse; and (3) although defendant contends the victims' and the corroborative testimonies are contradictory and lack credibility, the credibility and weight given to a witness's testimony is determined by the jury and not the court.</block_quote>

<bold>Constitutional Law — right to counsel — waiver — knowing and</bold> <bold>voluntary</bold> <block_quote> The trial court fully complied with statutory requirements in determining that defendant voluntarily, knowingly, and intelligently waived his right to counsel at a probation revocation hearing. In addition to the written waiver, the court's discussion with defendant in open court was sufficient to satisfy the statutory mandate. N.C.G.S. § <cross_reference>15A-1242</cross_reference>.</block_quote>

<bold>Arbitration and Mediation — arbitration — attorney fees</bold> <block_quote> The superior court did not err in a securities broker's defamation, wrongful termination, failure to pay severance benefits, tortious interference with contractual relations, and withholding of referral fees case by affirming an arbitration award granting attorney fees to petitioner even though respondent contends that the arbitration panel lacked the authority to award attorney fees, because: (1) both parties specifically requested attorney fees; and (2) the parties' uniform submission agreement incorporated the New York Stock Exchange (NYSE) Rules, and NYSE Rule 629 allowed a panel of arbitrators to award attorney fees.</block_quote>

<bold>Workers' Compensation — prior arm injury — not the direct cause</bold> <bold>of auto accident</bold> <block_quote> An Industrial Commission opinion denying compensation was affirmed where plaintiff contended that an automobile accident was a direct and natural result of his prior compensable arm injury, but there was competent evidence that the accident was caused by plaintiff jerking his car to the left upon hitting gravel in the road. The employee bears the burden of establishing the compensability of the claim, and the Commission did not err by finding that there was insufficient evidence that the accident was caused by the prior compensable injury.</block_quote>

<bold>1. Appeal and Error — preservation of issues — failure to</bold> <bold>assert issue at trial</bold> <block_quote> Although defendant contends he was denied his state constitutional right to a verdict by a jury of twelve because fewer than all twelve jurors engaged in deliberations while having lunch, defendant failed to present this argument to the trial court and therefore this argument is not properly before the Court of Appeals. N.C.R. App. P. 10(b)(1).</block_quote> <bold>2. Jury — juror misconduct — motion for mistrial</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder, robbery with a dangerous weapon, first-degree kidnapping, and second-degree arson case by denying defendant's motion for a mistrial based on juror misconduct, because: (1) the trial court questioned the identified jurors individually regarding their lunch conversation; (2) the trial court individually questioned each juror regarding what he or she had expressed or heard regarding the jurors' opinions on the ultimate issues in the case; and (3) while the jurors' lunch conversation did violate the judge's instructions by discussing the demeanor of the witnesses before the close of all evidence, this misconduct did not substantially and irreparably prejudice defendant's case.</block_quote>

<bold>1. Firearms and Other Weapons — discharging firearm into</bold> <bold>occupied property — evidence sufficient</bold> <block_quote> The trial court correctly denied defendant's motion to dismiss a charge of discharging a firearm into occupied property where the victim testified that defendant continued shooting after he entered his apartment and that bullets fired by defendant entered his apartment and caused damage. Contradictions in the evidence were for the jury to resolve.</block_quote> <bold>2. Indictment and Information — amendment — intent of breaking</bold> <bold>and entering</bold> <block_quote> Judgment was arrested on defendant's conviction for felonious breaking and entering where the original indictment alleged that defendant entered a residence to commit murder and an amendment at the close of all of the evidence alleged an intent to commit an assault with a deadly weapon inflicting serious injury or assault with a deadly weapon with intent to kill inflicting serious injury. Research does not reveal a case specifically stating that these assaults are lesser included offenses of first-degree murder; in order to convict on a charge of assault and battery or assault with a deadly weapon in a murder case, the murder indictment should include the elements of assault or it should contain a separate count of assault. However, this indictment sufficiently charged defendant with misdemeanor breaking and entering, and the case is remanded for entry of such a judgment.</block_quote> <bold>3. Sentencing — prior record level — worksheet and oral</bold> <bold>recitation — not sufficient — trial testimony — not</bold> <bold>sufficient in this case</bold> <block_quote> Defendant was entitled to a new sentencing hearing for discharging a firearm into occupied property and misdemeanor breaking and entering where the State relied upon a sentencing worksheet and an oral recitation by the State of defendant's criminal history instead of utilizing a method authorized by N.C. Gen. Stat. § <cross_reference>15A-1340.14</cross_reference> (2003). Defendant's trial testimony was not sufficient to support the prior record level determination.</block_quote><page_number>Page 628</page_number>

<bold>1. Arrest — resisting, delaying, or obstructing an officer —</bold> <bold>indictment — failure to describe duties officer discharging</bold> <bold>or attempting to discharge</bold> <block_quote> The bill of indictment used to charge defendant with resisting, delaying, or obstructing an officer under N.C.G.S. § <cross_reference>14-223</cross_reference> was insufficient as a matter of law, because: (1) an indictment fails under N.C.G.S. § <cross_reference>14-223</cross_reference> if it does not describe the duty the named officer was discharging or attempting to discharge;<page_number>Page 652</page_number> and (2) the pertinent indictment failed to describe the duties the alcohol law enforcement agent was discharging or attempting to discharge.</block_quote> <bold>2. Prisons and Prisoners — malicious conduct by prisoner —</bold> <bold>motion to dismiss — sufficiency of evidence — custody</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of malicious conduct by a prisoner based on alleged insufficient evidence of defendant being in custody, because: (1) the Fourth Amendment "free to leave" test is to be applied to determine whether an individual was in custody under N.C.G.S. § <cross_reference>14-258.4</cross_reference>; and (2) substantial evidence shows that at the moment defendant smeared fecal matter on an officer, a reasonable person would have believed that he was not free to leave.</block_quote> <bold>3. Prisons and Prisoners — malicious conduct by prisoner —</bold> <bold>instruction — custody</bold> <block_quote> The trial court did not err by instructing the jury on the custodial element of malicious conduct by a prisoner, because: (1) the test is whether a reasonable person would have felt free to leave under the circumstances; and (2) in light of the "free to leave" test concerning the custody element of N.C.G.S. § <cross_reference>14-258.4</cross_reference>, defendant has failed to show, and a review of the record and transcript do not indicate, that the instructions to the jury were misleading.</block_quote> <bold>4. Sentencing — Level IV offender — stipulation to worksheet of</bold> <bold>prior convictions</bold> <block_quote> The trial court did not err in a malicious conduct by a prisoner, possession of cocaine, resisting and obstructing a law enforcement officer, and assault on a law enforcement officer case by determining that defendant was a Level IV offender for sentencing purposes, because: (1) N.C.G.S. § <cross_reference>15A-1340.14</cross_reference>(f) provides that a prior conviction can be proved by stipulation of the parties; (2) the State tendered defendant's prior conviction worksheet to the trial court and defense counsel stipulated to it; and (3) the trial court offered defendant an opportunity to address the court, which defendant did, and defendant did not object or refer to his prior convictions.</block_quote>

<bold>1. Evidence — prior crimes or bad acts — involvement in gang —</bold> <bold>robberies — drug dealing — motive and intent — modus</bold> <bold>operandi</bold> <block_quote> The trial court did not commit plain error in a first-degree felony murder case by admitting evidence of defendant's prior illegal activity including involvement in the Jericho gang, prior<page_number>Page 662</page_number> robberies, and drug dealing, because: (1) the testimony about the gang provided evidence of defendant's motive as well as the reason for a coparticipant's involvement in the crime; (2) the testimony about defendant's pattern of robbing others of illegal drugs and selling them provided evidence of defendant's motive and intent to commit the crimes at bar as well as his modus operandi; (3) considering the other overwhelming evidence of defendant's guilt presented through numerous eyewitnesses, the admission of this evidence was not plain error; and (4) although defendant contends he received ineffective assistance of counsel based on his attorney's failure to object to the evidence of defendant's prior bad acts, the admission of the Rule 404(b) evidence was not error.</block_quote> <bold>2. Jury — selection — stating murder case tried noncapitally</bold> <block_quote> The trial court did not err in a first-degree felony murder case by informing the jury pool that the case would be tried non-capitally because defendant failed to show, and the Court of Appeals did not find, any prejudice to defendant in the trial court's statement.</block_quote> <bold>3. Sentencing — life without parole — </bold> <italic>Enmund/Tison</italic> <bold>issues</bold> <block_quote> The trial court did not err in a first-degree felony murder case by imposing a sentence of life without parole without a jury finding of the <italic>Enmund/Tison</italic> issues, because: (1) both <italic>Enmund</italic> and <italic>Tison</italic> involved proportionality review of death sentences, and their application is not implied in noncapitally tried cases; and (2) defendant failed to show any basis to extend the application of proportionality to a noncapital verdict and judgment.</block_quote>

<bold>1. Public Health — vaccine injury act — appeal — full</bold> <bold>commission — panel of three</bold> <block_quote> The language of N.C.G.S. § <cross_reference>130A-428</cross_reference>(b) stating that an appeal be heard by the Industrial Commission sitting as a full commission does not require the entire seven-member body of the<page_number>Page 713</page_number> Industrial Commission to hear all appeals under the Childhood Vaccine-Related Injury Compensation Program, but instead means a panel of three commissioners.</block_quote> <bold>2. Public Health — vaccine injury act — appeal — consideration</bold> <bold>by two commissioners — full panel required</bold> <block_quote> The Industrial Commission erred in an action for damages under the North Carolina Childhood Vaccine-Related Injury Compensation Program by allowing the case to be reviewed by only two commissioners and the case is remanded for a new hearing, because: (1) the vaccine injury act requires that each appeal be decided by a panel of three commissioners, N.C.G.S. § <cross_reference>130A-428</cross_reference>(b); (2) the instant case not only involves one commissioner's inability to sign the decision at the time of filing but also the commissioner's recusal immediately after oral arguments and absence during review of the appeal; and (3) although a decision may be rendered by a two-commissioner majority when the third commissioner is unavailable to sign at the time of filing, the appeal must be heard by the Commission sitting as a full commission, meaning a panel of three commissioners.</block_quote>

<bold>1. Attorneys — disbarment — subsequent collateral attack</bold> <block_quote> Plaintiff's 2003 complaint challenging his 1998 disbarment was a collateral attack upon a final judgment and was properly dismissed.</block_quote> <bold>2. Attorneys — disbarment — State Bar — court of competent</bold> <bold>jurisdiction — collateral attack</bold> <block_quote> Plaintiff's 2003 challenge to his 1998 disbarment was properly dismissed even though plaintiff argued that the State Bar is not a court of competent jurisdiction and that he should be allowed to seek relief on his constitutional arguments in superior court. The North Carolina State Bar had authority to discipline plaintiff for his violations of the Rules of Professional Conduct and plaintiff had a right of appeal to the Court of Appeals, of which he did not avail himself. His claims are a collateral attack upon a final judgment properly entered.</block_quote> <bold>3. Attorneys — disbarment — subsequent case not retroactive</bold> <block_quote> Even assuming plaintiff's 2003 challenge to his 1998 disbarment is factually similar to <italic>N.C. State Bar v.</italic> <italic>Talford,</italic> <cross_reference>356 N.C. 626</cross_reference>, nothing in that opinion indicates that it is retroactive.</block_quote><page_number>Page 718</page_number>

<bold>Probation and Parole — probation revocation — knowing and</bold> <bold>voluntary decision to represent oneself</bold> <block_quote> The trial court did not err in a revocation of probation and activation of sentences for food stamp fraud, solicitation to obtain property by false pretenses, uttering a forged instrument, and obtaining property by false pretenses case by allowing defendant to represent herself allegedly without asking her if she understood the nature of the charges and the consequences of her decision to proceed without a lawyer, because: (1) the trial court's inquiry informed defendant that if she was found to have violated probation, then she faced the possible consequence of active service of the sentences; (2) the court informed defendant that she had the right to the assistance of an attorney, and defendant indicated that she understood but chose to proceed without an attorney; and (3) the court's inquiry elicited the information necessary under N.C.G.S. § <cross_reference>15A-1242</cross_reference> for it to make a determination that defendant's decision to represent herself was knowing and voluntary.</block_quote>