Volume 170 — North Carolina Court of Appeals Reports

<bold>1. Indictment and Information — amendment — no substantial</bold> <bold>alteration of charge — attempted robbery with dangerous</bold> <bold>weapon to robbery with dangerous weapon</bold> <block_quote> The trial court did not err by amending an indictment for attempted robbery with a dangerous weapon (ARDW) to robbery with a dangerous weapon (RDW), because: (1) both crimes are governed by N.C.G.S. § <cross_reference>14-87</cross_reference>(a); (2) our Court of Appeals and Supreme Court have found the elements of ARDW to be the same as RDW; (3) the indictment sufficiently apprised defendant of the charge against him with enough certainty to enable him to prepare his defense and to protect him from subsequent prosecution for the same offense since a showing of a taking is not a necessary element of the crime of RDW; (4) an amendment to the indictment did not deprive the court of knowledge as to the judgment to pronounce in the event of conviction since the classifications and punishments of the crimes of ARDW and RDW are identical; and (5) the indictment did not substantially alter the charge.</block_quote> <bold>2. Criminal Law — sua sponte entering of prayer for judgment</bold> <bold>continued — no conditions imposed on defendant</bold> <block_quote> The trial court did not abuse its discretion in an armed robbery case by sua sponte entering a prayer for judgment continued (PJC) as to one charge of robbery with a dangerous weapon and as to the charge of assault with a deadly weapon, because: (1) our Supreme Court has affirmed that North Carolina courts have the power to continue prayer for judgment without defendant's consent so long as no conditions are imposed upon defendant; and (2) the trial court did not impose any conditions on defendant when it entered the PJC, and defendant did not object to entry of PJC.</block_quote> <bold>3. Criminal Law — prayer for judgment — no presumption of</bold> <bold>judicial or prosecutorial vindictiveness</bold> <block_quote> The trial court did not err by granting the State's prayer for judgment for a second charge of robbery with a dangerous weapon after defendant's appeal of his conviction of first-degree<page_number>Page 34</page_number> kidnapping and subsequent resentencing to a lesser sentence for second-degree kidnapping, because: (1) there is no presumption of vindictiveness when a trial court sentences on a prayer for judgment continued following appeal of a separate conviction; and (2) defendant failed to demonstrate actual vindictiveness even though the record indicated some spurious motivation on the part of the prosecutor to correct his own error in sending the wrong appellate record for review to the Court of Appeals since the trial court articulated a legitimate reason for sentencing defendant on the robbery with a dangerous weapon charge.</block_quote>

<bold>1. Bail and Pretrial Release — failure to appear — federal</bold> <bold>incarceration — not extraordinary circumstances</bold> <block_quote> A bail bond company was not relieved from liability on a bond for extraordinary circumstances where defendant was incarcerated in a federal facility in New York. Defendant was not in federal custody until the day after he was scheduled to appear in court, so that the bonding company was remiss in its custody of defendant, and defendant's federal incarceration resulted from his own misdeeds, from which neither he nor his surety may profit.</block_quote> <bold>2. Bail and Pretrial Release — failure to appear — efforts by</bold> <bold>bond company to return defendant — insufficient for</bold> <bold>extraordinary circumstances</bold> <block_quote> A bail bond company's efforts to return defendant to North Carolina did not rise to the level of extraordinary circumstances relieving it of liability on the bond.</block_quote> <bold>3. Bail and Pretrial Release — failure to appear — lack of</bold> <bold>diligence by bond company — extraordinary circumstances</bold> <block_quote> A bail bond company's lack of diligence obviated a finding of extraordinary circumstances which would relieve it from liability on the bond.</block_quote> <bold>4. Bail and Pretrial Release — failure to appear — federal</bold> <bold>custody — copy of arrest order — not extraordinary</bold> <bold>circumstances</bold> <block_quote> A bail bond company was not relieved of liability on a bond for extraordinary circumstances where the Forsyth County Clerk of Court refused to issue a copy of an arrest warrant to be served on defendant in a New York federal detention facility.</block_quote> <bold>5. Appeal and Error — record on appeal — materials not</bold> <bold>presented to the trial court — certiorari denied</bold> <block_quote> A bail bond company's petition for a writ of certiorari to include additional materials in the record on appeal was denied where the documents were not presented to the trial court until after it entered its order settling the record. An abuse of discretion<page_number>Page 46</page_number> review cannot be conducted where the materials were not presented to the court before its order.</block_quote> <bold>6. Appeal and Error — record on appeal — materials excluded —</bold> <bold>certiorari denied — no judicial notice</bold> <block_quote> The Court of Appeals could not take judicial notice of materials excluded from the record on appeal after the denial of a petition for certiorari to include the material. The settling of the record on appeal is final and cannot be reviewed except on motion for certiorari.</block_quote>

<bold>1. Homicide — first-degree murder — short-form indictment —</bold> <bold>constitutionality</bold> <block_quote> The short-form indictment used to charge defendant with first-degree murder was constitutional and sufficient to support defendant's conviction of felony murder.</block_quote> <bold>2. Confessions and Incriminating Statements — Miranda rights —</bold> <bold>mentally retarded defendants</bold> <block_quote> The trial court did not err in a first-degree felony murder and conspiracy to commit robbery case by denying defendant's motion to suppress his statement to the police allegedly obtained in violation of his Miranda rights even though defendant had an IQ of 61, because the findings all support the conclusion that the statement was voluntarily given and that defendant knowingly waived his Miranda rights.</block_quote> <bold>3. Evidence — exhibit — enlargement of defendant's statement</bold> <block_quote> The trial court did not abuse its discretion in a first-degree felony murder and conspiracy to commit robbery case by permitting the State to display to the jury an enlarged image of defendant's statement to the police, because: (1) defendant's statement was already held to be admissible; and (2) the enlarged version was permissible for illustrative purposes.</block_quote> <bold>4. Conspiracy — robbery — instructions — diminished capacity</bold> <block_quote> The trial court did not commit plain error by failing to instruct the jury on diminished capacity regarding the conspiracy to commit robbery charge, because: (1) defendant's evidence concerning his low IQ, smoking marijuana, and sharing Hennessy over the course of the evening was not so overwhelming as to render the lack of a voluntary intoxication instruction prejudicial;<page_number>Page 69</page_number> (2) a voluntary intoxication instruction is not required even where there is testimony that defendant consumed intoxicating beverages or controlled substances; (3) there was testimony that defendant did not appear intoxicated; (4) finding defendant not guilty of first-degree murder based on premeditation and deliberation does not necessarily imply the jury concluded defendant had a diminished capacity to form any intent; (5) considering defendant's confession, a witness's testimony, the victim's statement regarding the shooting, and the forensic evidence, the jury had sufficient basis for its verdicts; and (6) it cannot be said that the jurors would have reached a different result had they been given this instruction.</block_quote> <bold>5. Constitutional Law — effective assistance of counsel —</bold> <bold>failure to request instruction</bold> <block_quote> Defense counsel's failure to request an instruction on diminished capacity regarding the conspiracy to commit robbery charge did not amount to ineffective assistance of counsel, because the Court of Appeals already determined that there was no plain error in the failure to provide this instruction to the jury.</block_quote> <bold>6. Criminal Law — instruction by trial court — defendant</bold> <bold>confessed to crimes</bold> <block_quote> The trial court did not commit plain error in a first-degree felony murder and conspiracy to commit robbery case by instructing the jury that the evidence tended to show that defendant confessed to the crimes, because: (1) the instruction given by the trial court was verbatim from pattern jury instruction N.C.P.I. — Crim. 104.70; (2) the Supreme Court has held that this instruction makes it clear that even though there was evidence tending to show that defendant had made an admission, it was solely for the jury to determine whether defendant in fact had made any admission; and (3) the instruction was based on a reasonable view of the evidence.</block_quote> <bold>7. Homicide — instruction — voluntary manslaughter based on</bold> <bold>imperfect self-defense</bold> <block_quote> The trial court did not commit plain error in a first-degree felony murder case by failing to instruct sua sponte on voluntary manslaughter based on imperfect self-defense, because: (1) defendant was not found guilty of first-degree murder based on a theory of premeditation and deliberation, which could be mitigated by imperfect self-defense to voluntary manslaughter; and<page_number>Page 70</page_number> (2) the jury found defendant guilty based on the felony murder rule, and imperfect self-defense is not available as a defense to the underlying robbery.</block_quote>

<bold>1. Appeal and Error — notice of appeal — timeliness — mistaken</bold> <bold>reference to prior motion</bold> <block_quote> Certiorari was granted to review a termination of parental rights where the notice of appeal was within the time constraint from the termination order, but referred to a much earlier order continuing the case and was untimely on its face; it is clear from the record that the reference to the earlier order was merely a scrivener's error; the consequence of termination of parental rights is quite serious; and there was no objection to certiorari.</block_quote> <bold>2. Termination of Parental Rights — motion to dismiss — not</bold> <bold>considered — not prejudicial</bold> <block_quote> The trial court's failure to hear respondent's motion to dismiss a termination of parental rights petition did not constitute prejudicial error. Given the nature of the proceedings, it is quite important that the grounds for plaintiff's motion be considered, but there is no evidence in the record that the court specifically considered respondent's motion to dismiss and declined to hear it. Moreover, contrary to DSS's contention, respondent<page_number>Page 79</page_number> was not responsible for calendaring the motion under Eighth Judicial District Family Court Rules. However, the court clearly considered the issues upon which respondent's petition was based and found them unpersuasive, and there is no reasonable possibility that a different result would have been reached without the error.</block_quote> <bold>3. Termination of Parental Rights — stipulation — scope</bold> <block_quote> The trial court erred in a termination of parental rights case by finding that respondent's stipulation encompassed elements not intended by respondent. When construing a stipulation, a court must attempt to effectuate the intent of the party making the stipulation.</block_quote> <bold>4. Termination of Parental Rights — required findings —</bold> <bold>misconstrued stipulation</bold> <block_quote> The trial court in a termination of parental rights case must make specific findings as to all four subsections of N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(5); here, having erroneously found that respondent had stipulated to all four of the subsections when he had stipulated only to subsection (b), the court did not make the necessary findings and erred by concluding that grounds existed for termination.</block_quote> <bold>5. Termination of Parental Rights — means to legitimate child —</bold> <bold>findings sufficient</bold> <block_quote> There was sufficient evidence to support the trial court's finding in a termination of parental rights proceeding that respondent had the means and ability to legitimate the child or establish paternity despite incarceration.</block_quote> <bold>6. Termination of Parental Rights — best interest of child —</bold> <bold>discretion of court</bold> <block_quote> Although the trial court must find that at least one ground for the termination of parental rights exists based on clear, cogent and convincing evidence, the determination of whether it is in the best interest of the child to terminate parental rights is in the discretion of the trial court.</block_quote>

<bold>1. Drugs — possession with intent to manufacture, sell, or</bold> <bold>deliver cocaine — motion to dismiss — constructive</bold> <bold>possession</bold> <block_quote> The State presented sufficient evidence that defendant constructively possessed cocaine, because: (1) although defendant did not physically possess the cocaine, the evidence tended to show he constructively possessed the cocaine found in the pertinent car by exercising some control and dominion over the cocaine; and (2) although defendant's control over the car and residence was not exclusive, the evidence suggests incriminating circumstances, other than defendant's control of the premises, sufficient to permit the jury to infer constructive possession.</block_quote> <bold>2. Drugs — possession with intent to manufacture, sell, or</bold> <bold>deliver cocaine — motion to dismiss — intent to sell or</bold> <bold>deliver drugs</bold> <block_quote> The trial court erred by denying defendant's motion to dismiss the charge of possession with intent to manufacture, sell, or deliver cocaine based on insufficient evidence to show defendant intended to manufacture, sell, or deliver the cocaine found on the premises, and the case is remanded for resentencing on the lesser-included charge of possession of cocaine, because: (1) a controlled substance's substantial amount may be determined by comparing the amount possessed to the amount necessary to constitute a trafficking offense, and N.C.G.S. § <cross_reference>90-95</cross_reference>(h)(3) provides that in order to be guilty of trafficking cocaine, an individual must possess at least twenty-eight grams or more of cocaine or any derivative thereof; (2) defendant possessed four to five crack cocaine rocks which weighed 1.2 grams, or .04% of the requisite amount for trafficking, and thus it cannot be inferred that defendant had an intent to sell or distribute from such a de minimus amount alone; (3) the State was required to present either direct or circumstantial evidence of an intent to sell, and there was no testimony that the drugs were packaged, stored, or labeled in a manner consistent with the sale of drugs; (4) defendant's actions were not similar to the actions of a drug dealer when he was home sick with a cold, the drugs were found outside his home in a parked car, and there was not a large amount of cash<page_number>Page 101</page_number> found; (5) although officers testified that they found a safety pin that is typically used by crack users to clean a crack pipe, there were no other drugs or drug paraphernalia typically used in the sale of drugs found on the premises; (6) viewed in the light most favorable to the State, the evidence tended to indicate that defendant was a drug user instead of a drug seller; and (7) a deputy's opinion testimony about the four to five rocks of crack cocaine, without other circumstantial evidence of defendant's intent, is insufficient to submit the issue of intent to sell and deliver to the jury.</block_quote> <bold>3. Sentencing — habitual felon — possession of cocaine a</bold> <bold>felony</bold> <block_quote> The trial court did not lack jurisdiction to consider the habitual felon indictment even though defendant contends his prior conviction of possession of cocaine was a misdemeanor under N.C.G.S. § <cross_reference>90-95</cross_reference>, because: (1) our Supreme Court has held that possession of cocaine is a felony and therefore can serve as an underlying felony to an habitual felon indictment; and (2) defendant was previously convicted of three felony offenses, including the offense of felony possession of cocaine.</block_quote> <bold>4. Appeal and Error — preservation of issues — failure to raise</bold> <bold>or argue issues</bold> <block_quote> Defendant abandoned his remaining four assignments of error under N.C.R. App. P. 28(b)(6) based on his failure to bring forward or argue these issues.</block_quote>

<bold>Environmental Law — local regulation of biosolids applications —</bold> <bold>preemption by state law</bold> <block_quote> Granville County's biosolid application ordinance was preempted by state statutes and regulations and summary judgment was granted correctly for plaintiff biosolids application company. The state regulation is comprehensive and leaves no room for further local regulation. N.C.G.S. § <cross_reference>143-211</cross_reference>(c).</block_quote>

<bold>Landlord and Tenant — lease agreement — option to extend</bold> <block_quote> The trial court did not err in an action concerning a lease agreement by granting summary judgment in favor of defendants even though plaintiffs contend defendants were estopped from requiring written notice of intent to exercise the option to extend the pertinent lease, because: (1) assuming arguendo that defendants were estopped from requiring written notice per the lease provisions for the option to extend to be validly exercised, plaintiffs still cannot overcome the fact that they had no right to exercise any lease extension when the sole right to exercise the option at the time the lease expired was with a company called Sun Ja which took no action either through written or oral communication to exercise the lease extension; (2) the purported reassignment to plaintiffs was not executed until almost a month after the lease term had expired and almost two weeks after the complaint was filed; and (3) plaintiff individual's affidavit did not show there was any issue of material fact as to whether the lease had expired by its stated terms as it presented no facts showing that a party with a right to exercise the option to extend had made any attempt to do so at any time prior to the expiration of the lease.</block_quote>

<bold>1. Bail and Pretrial Release — bond forfeiture — motion to</bold> <bold>vacate — notice</bold> <block_quote> The trial court did not err by denying the surety's motion to vacate a bond forfeiture judgment even though the surety contends there was insufficient evidence that the clerk of court mailed the notice of bond forfeiture to the surety, because: (1) where a clerk of court is charged with providing notice of a court action, there is a presumption that notice properly addressed and mailed is delivered to the addressee; (2) the record on appeal contains a copy of the bond forfeiture notice for defendant which is dated 13 March 2003 and signed electronically by a deputy clerk of court, thus supporting the trial court's finding that the deputy clerk of court mailed the notice in compliance with N.C.G.S. § <cross_reference>15A-544.4</cross_reference>; (3) N.C.G.S. § <cross_reference>15A-544.4</cross_reference> states that notice is<page_number>Page 132</page_number> effective when the notice of bond forfeiture is mailed, and the statute does not require that the surety receive the notice of bond forfeiture for notice to be effective; and (4) while an assistant risk manager from the surety's program administrator testified that notice was not received, this evidence merely created an issue of fact for the trial court.</block_quote> <bold>2. Appeal and Error — preservation of issues — failure to set</bold> <bold>out assignment of error</bold> <block_quote> Although a surety contends that the North Carolina notice of bond forfeiture statute under N.C.G.S. § <cross_reference>15A-544.4</cross_reference> violates the notice requirements of substantive due process, the surety failed to preserve this issue for review because: (1) the assignment of error listed by the surety in its brief does not correspond to the issue of whether the notice of bond forfeiture statute violates the notice requirements of the substantive due process doctrine; and (2) none of the assignments of error provided in the record make reference to the substantive due process issue or the trial court's failure to address an issue raised at trial.</block_quote>

<bold>1. Appeal and Error — appealability — nolo contendere plea — no</bold> <bold>motion to withdraw plea — failure to petition for writ of</bold> <bold>certiorari</bold> <block_quote> Defendant's appeal in a possession of cocaine case of those assignments of error not related to the sentence imposed at trial are dismissed, because: (1) a defendant who has entered a plea of nolo contendere is not entitled to appellate review as a matter of right unless defendant is appealing sentencing issues or the denial of a motion to suppress, or defendant has made an unsuccessful<page_number>Page 167</page_number> motion to withdraw the no contest plea; (2) defendant has not made a motion to withdraw the no contest plea; and (3) as to appeal of other issues, defendant must petition the Court of Appeals for review by writ of certiorari which defendant failed to do.</block_quote> <bold>2. Sentencing — prior record level — failure to prove prior</bold> <bold>convictions</bold> <block_quote> The trial court erred in a possession of cocaine case by sentencing defendant as a prior record level III offender based on prior convictions which were not proven at trial, and the judgment is vacated and remanded to the superior court for resentencing.</block_quote> <bold>3. Sentencing — habitual felon — constitutionality</bold> <block_quote> Defendant's habitual felon sentence is constitutional and does not violate the Eighth Amendment prohibition against cruel and unusual punishment, because: (1) our habitual felon statute is the result of a deliberate policy choice by the legislature that those who repeatedly commit felonious criminal offenses should be segregated from the rest of society for an extended period of time; and (2) nothing in the Eighth Amendment prohibits our legislature from enhancing punishment for habitual offenders.</block_quote>

<bold>1. Search and Seizure —</bold> <bold><italic>Terry</italic></bold> <bold>stop — motion to suppress —</bold> <bold>probable cause — detention of passenger of car</bold> <block_quote> The trial court did not err in an assault on a governmental officer with a deadly weapon and reckless driving case by denying defendant passenger's motion to suppress evidence of an alleged unlawful stop and detention by a police officer on 10 September 2002, because: (1) the trial court properly concluded that there was probable cause to stop the vehicle when the officer observed that the driver was not wearing a seatbelt in violation of N.C.G.S. § <cross_reference>20-135.2A</cross_reference>(a); (2) although defendant had not been observed violating any laws at the time of the stop, it is not unreasonable under the <cross_reference>Fourth</cross_reference> Amendment of the United States Constitution to detain a passenger when a vehicle has been stopped due to a traffic violation committed by the driver of the car; (3) once the original purpose of the stop had been addressed, the trial court correctly determined that there was a reasonable articulable suspicion to require defendant to remain at the scene when defendant's behavior, combined with the discovery of narcotics on the driver during a consensual pat-down search, created a reasonable articulable suspicion which permitted the officer to detain defendant passenger to address the deputy's concerns; and (4) the police had probable cause to search the car based upon the discovery of illegal narcotics upon the driver's person, and even assuming the deputy did not have any authority to detain defendant at the scene, he possessed authority to detain the car at the scene.</block_quote> <bold>2. Criminal Law — instruction — right to resist unlawful</bold> <bold>arrest</bold> <block_quote> The trial court did not err in an assault on a governmental officer with a deadly weapon and reckless driving case by denying defendant's request for a jury instruction on the right to resist an unlawful arrest, because: (1) upon discovering illegal narcotics on the driver's person, the police had probable cause to search the stopped vehicle in which defendant was a passenger; and (2) at the moment defendant slid into the driver's seat of the stopped vehicle, tried to start the car, and ignored the officer's command to stop, a violation of N.C.G.S. § <cross_reference>14-223</cross_reference> occurred and defendant was subject to arrest.</block_quote><page_number>Page 265</page_number> <bold>3. Assault — assault on governmental officer with deadly weapon</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 charge of assault on a governmental officer with a deadly weapon even though defendant contends he was unlawfully seized by the officer and rightfully asserted his right to resist such a seizure, because the officer had authority to arrest defendant when defendant's actions constituted a violation of N.C.G.S. § <cross_reference>14-223</cross_reference>, a class 2 misdemeanor.</block_quote> <bold>4. Criminal Law — instruction — defendant not arrested as a</bold> <bold>matter of law — plain error analysis</bold> <block_quote> The trial court did not commit plain error in an assault on a governmental officer with a deadly weapon and reckless driving case by instructing the jury that defendant had not been arrested as a matter of law, because: (1) an arrest requires either physical force or, where that is absent, submission to the assertion of authority; and (2) neither occurred in this case.</block_quote> <bold>5. Criminal Law — instruction — self-defense — failure to</bold> <bold>instruct on lawfulness of arrest or defendant's right to</bold> <bold>resist arrest</bold> <block_quote> The trial court did not err by instructing the jury on the law of self-defense without instructing on the lawfulness of defendant's arrest and his right to resist it, because: (1) defendant was not arrested as he did not submit to the officer's show of authority and any physical force applied did not restrain defendant's liberty; (2) as the officer was being dragged by the car defendant was driving, the officer hit defendant with the butt of his gun in his attempt to free himself; and (3) defendant was not resisting an unlawful arrest as his attempt to remove the driver's vehicle from the scene was a violation of N.C.G.S. § <cross_reference>14-223</cross_reference>.</block_quote> <bold>6. Criminal Law — instructions — no expression of opinion by</bold> <bold>trial court</bold> <block_quote> The trial court in a prosecution for assaulting a governmental officer with a deadly weapon did not impermissibly explain the application of the law to the jury or express an opinion on the evidence in violation of N.C.G.S. § <cross_reference>15A-1232</cross_reference> by instructing the jury that the law was violated if a driver was not wearing a seatbelt while driving on a public street, that a deputy would have a right to detain the car for a search if he found cocaine on the driver, and that defendant contended that he acted in self-defense.</block_quote><page_number>Page 266</page_number> <bold>7. Evidence — prior crimes or bad acts — warrant for arrest</bold> <bold>from another state for probation violation</bold> <block_quote> The trial court did not err in an assault on a governmental officer with a deadly weapon and reckless driving case by admitting evidence of a warrant for defendant's arrest from the State of Virginia for a probation violation, because: (1) the outstanding warrant was admissible under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) since it provided a possible explanation or motive for defendant's actions on 10 September 2001; and (2) although defendant contends the trial court did not instruct the jury that the evidence was admitted for a limited purpose only, defendant did not request a limiting instruction.</block_quote> <bold>8. Evidence — prior crimes or bad acts — traffic stop for</bold> <bold>possession of drug paraphernalia</bold> <block_quote> The trial court did not err in an assault on a governmental officer with a deadly weapon and reckless driving case by allowing an Ohio police officer to testify regarding a traffic stop that occurred about one month after the incident in this case, during which defendant was arrested for the possession of drug paraphernalia, because: (1) the officer's testimony that a substance found during the stop was similar to cocaine was properly allowed even though the officer was not qualified as an expert because the officer did not testify that the substance was definitely cocaine, and the officer clarified that he was expressing an opinion satisfactory to himself based upon his training and experience in law enforcement; (2) evidence of the circumstances surrounding the stop was admissible under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) since it was evidence of defendant's modus operandi, i.e., he fled a crime scene in another person's car since he was involved in a drug offense, defendant's actions were substantially similar in both cases, and the evidence showed defendant's motive or intentions in this case to flee the scene in order to avoid arrest on outstanding warrants or to prevent the discovery of drugs or drug paraphernalia in the car or on his person; (3) even assuming the admission of the circumstances regarding defendant's arrest in Ohio was erroneous, the evidence that defendant was arrested on the outstanding warrant in Ohio and extradited to North Carolina was relevant and admissible; and (4) the admission of defendant's actions during the Ohio traffic stop was nonprejudicial error as the State presented evidence that defendant assaulted a New Hanover deputy by dragging the officer with his car.</block_quote><page_number>Page 267</page_number> <bold>9. Sentencing — habitual felon — evidentiary hearing without</bold> <bold>motion from either party — not an advisory opinion</bold> <block_quote> The trial court did not issue an impermissible advisory opinion or commit plain error by conducting an evidentiary hearing prior to the beginning of the habitual felon phase when no motion for such a hearing had been properly made before the court, because: (1) the trial court has the inherent authority to conduct an evidentiary hearing outside the presence of a jury sua sponte to clarify questions of admissibility and to prevent undue delay in the proceedings; and (2) by conducting the hearing out of the presence of the jury and prior to the presentation of evidence during the habitual felon phase, the trial court was able to resolve any arguments and concerns regarding the evidence and the habitual felon proceedings before the jury proceeded without any delay.</block_quote> <bold>10. Sentencing — habitual felon — felonious possession of</bold> <bold>cocaine</bold> <block_quote> The trial court did not commit plain error by allowing a felonious possession of cocaine charge to be a predicate felony for the habitual felon indictment, because the possession of cocaine under N.C.G.S. § <cross_reference>90-95</cross_reference>(d)(2) is a felony and a proper basis for an habitual felon indictment.</block_quote> <bold>11. Sentencing — habitual felon indictment — sufficiency of</bold> <bold>evidence — facsimile copy of prior conviction</bold> <block_quote> The trial court did not err by failing to dismiss the habitual felon indictment even though defendant contends the State allegedly failed to produce sufficient evidence of the third felony listed in the habitual felon indictment when the State submitted a facsimile of the prior crime indicating that defendant was found guilty of unarmed robbery in a federal court in Ohio, because: (1) a faxed, certified copy of a court record is a reliable source of a defendant's prior conviction for habitual felon purposes; (2) regardless of the fact that the possibility of receiving an unconditional discharge and having the underlying conviction set aside was part of the sentence imposed upon defendant for his felonious unarmed bank robbery conviction, defendant was convicted of a felony for habitual felon purposes; and (3) although defendant makes an argument that he may have received an unconditional discharge under 19 U.S.C.A. § 5021, thus meaning his unarmed robbery conviction was set aside, he did not present<page_number>Page 268</page_number> any evidence proving with any certainty that the conviction has been set aside.</block_quote>

<bold>1. Appeal and Error — preservation of issues — denial of motion</bold> <bold>to suppress — sufficiency of notice</bold> <block_quote> Defendant preserved for appeal after a guilty plea the denial of his motion to suppress evidence of cocaine found after a traffic stop. Defendant's motion to suppress explicitly stated a reservation<page_number>Page 300</page_number> of the right to appeal, the hearing on this motion preceded the plea and oral notice of appeal by only one day, and neither the court nor the State indicated that it had not been notified of a potential appeal.</block_quote> <bold>2. Appeal and Error — denial of motion to suppress — scope and</bold> <bold>standards</bold> <block_quote> Appellate review of the denial of a motion to suppress is strictly limited to a determination of whether the findings are supported by competent evidence and whether the findings support the ultimate conclusion. However, the conclusions are reviewed de novo and must reflect a correct application of applicable legal principles.</block_quote> <bold>3. Criminal Law — denial of motion to dismiss — unsupported</bold> <bold>finding</bold> <block_quote> An unsupported finding concerning the odor of alcohol at a traffic stop did not affect the court's conclusions in denying defendant's motion to suppress cocaine seized at the stop, and the denial of the motion was not overturned.</block_quote> <bold>4. Search and Seizure — expanded traffic stop — probable cause</bold> <bold>and reasonable suspicion</bold> <block_quote> Defendant was not subjected to an unlawful seizure where a Highway Patrol Trooper saw him remove his seat belt while the vehicle was moving; stopped defendant to issue a citation; expanded the detention based on defendant's nervousness in the patrol car, his inconsistent answers to questions, and the officer's observation of a strong scent of air freshener in defendant's car; and cocaine was eventually found in defendant's car. The evidence supported the finding of an observed seat belt violation, which supported the conclusion that the Trooper had probable cause to stop the vehicle, and specific articulable facts supported the expansion of the detention.</block_quote> <bold>5. Search and Seizure — consent to search automobile —</bold> <bold>voluntary and knowing</bold> <block_quote> Defendant's consent to a search of his vehicle was voluntary under the totality of the circumstances where defendant was read a consent to search form, he understood English, he gave verbal and written consent to search, he understood his right to refuse consent, and he was free to leave.</block_quote><page_number>Page 301</page_number>

<bold>1. Evidence — statements at scene of shooting — admissibility</bold> <bold>limited — no prejudice</bold> <block_quote> In light of the evidence introduced by defendant during his case-in-chief about his statements at the scene of a shooting tending to show that he acted in self-defense, there was no prejudice from the limitation of defendant's questioning of law enforcement officers about those statements during the State's case-in-chief.</block_quote> <bold>2. Evidence — witness's statement at scene — not trustworthy —</bold> <bold>not excited utterance</bold> <block_quote> There was no abuse of discretion in excluding a witness's statement, claimed to be an excited utterance, where an officer<page_number>Page 313</page_number> testified that the witness had appeared intoxicated and that she had changed her story while talking to him. The rationale for the excited utterance exception is trustworthiness; moreover, the testimony would only have corroborated other evidence.</block_quote> <bold>3. Criminal Law — inconsistent verdicts — manslaughter and</bold> <bold>assault — intent to kill</bold> <block_quote> A new trial was awarded where the offenses of which defendant was found guilty were mutually exclusive and the jury's verdicts were logically inconsistent. Defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury and attempted murder of the same victim, and found guilty of assault with a deadly weapon inflicting serious injury and voluntary manslaughter. The jury necessarily found intent to kill for the manslaughter but not for the assault.</block_quote>

<bold>1. Appeal and Error — appealability — partial summary judgment</bold> <bold>— one of several defendants — vicarious liability —</bold> <bold>substantial right</bold> <block_quote> A substantial right was affected and a summary judgment for one of several defendants was immediately appealable where the claims against this defendant were based on vicarious liability for the actions of other defendants, many of the same factual issues apply, and inconsistent verdicts could result.</block_quote> <bold>2. Employer and Employee — sale of annuities — independent</bold> <bold>contractors</bold> <block_quote> An annuity company was not vicariously liable for agents which sold its policies, and summary judgment was correctly granted for that company, where the evidence supported only the conclusion that the agents were independent contractors and not employees of the company.</block_quote> <bold>3. Agency — actual or apparent authority — investment sales —</bold> <bold>knowledge of purchaser</bold> <block_quote> Agents who sold an annuity were not the actual or apparent agents of defendant-annuity company, and summary judgment was properly granted for the annuity company, where the undisputed evidence was that plaintiffs knew that the agents were not acting as representatives of the annuity company when they made the bad investment with which this case is concerned.</block_quote> <bold>4. Agency — statutory agency — abusive insurance practices not</bold> <bold>involved</bold> <block_quote> Chapter <cross_reference>58</cross_reference> of the North Carolina General Statutes did not create a "statutory agency" in two agents who sold an annuity, and<page_number>Page 325</page_number> summary judgment was correctly granted for the annuity company, because the dispute did not involve the application for or solicitation of insurance and the annuity company was not attempting to avoid payment of benefits.</block_quote> <bold>5. Insurance — annuities — "negligent servicing"</bold> <block_quote> An annuity company was not liable for the "negligent servicing" of its annuities, and summary judgment was correctly granted for it, where the only support for the claim was an unpublished federal opinion from Texas that plaintiff misinterpreted.</block_quote>

<bold>1. Eminent Domain; Evidence — fair market value — lay witnesses</bold> <bold>— opinion testimony</bold> <block_quote> The trial court did not abuse its discretion in an airport expansion eminent domain case by preventing appellants from offering the testimony of four lay witnesses regarding the fair market value of appellants' property, because: (1) one witness's voir dire testimony tended to show that his opinion was based upon prior condemnation proceedings involving either his own property or other properties in the area which is an improper basis for valuing property in a current condemnation proceeding, and the noncondemnation property transfers of which he was aware or involved in occurred more than eight years prior to appellants' condemnation proceedings which the trial court found too remote to establish relevancy; (2) a second witness's testimony was excluded since his testimony would have to be intertwined with the condemnation overshadowing the process, and it would be fundamentally difficult for him to testify without something being said about the airport condemnation; (3) with respect to the third witness, his prior condemnation sale was unrelated to the airport expansion project and his two acre portion of the property was not being sold under threat of condemnation; and (4) even assuming arguendo that the fourth witness's testimony should have been included, appellants failed to demonstrate prejudice arising from the alleged error when the jury awarded more money than the value given by this witness.</block_quote> <bold>2. Trials — motion for new trial — abuse of discretion</bold> <bold>standard</bold> <block_quote> The trial court did not abuse its discretion in an eminent domain case by awarding appellants $680,000 plus interest for their property and by denying their motion for a new trial.</block_quote>

<bold>1. Zoning — special use permit — burden of proof</bold> <block_quote> The Davie County Board of Adjustment correctly placed the burden of proof on the applicant under a Davie County special use ordinance, although the Board did not specify the burden of proof it applied, and the Superior Court order affirming the Board cited an opinion to the contrary.</block_quote> <bold>2. Zoning — special use permit — go-cart track — evidence</bold> <bold>considered</bold> <block_quote> Board of Adjustment proceedings are quasi-judicial and the board, not being bound by the rules of evidence, may consider all of the evidence offered. Here, there was substantial evidence on<page_number>Page 393</page_number> which the Davie County Board of Adjustment could base its findings and conclusions in ruling on a special use permit for a go-cart tract at a drag strip, even if the evidence would have supported contrary findings.</block_quote> <bold>3. Zoning — special use permit — go-cart track — sufficiency of</bold> <bold>evidence</bold> <block_quote> Under the whole record test, the Davie County Board of Adjustment's decision to grant a special use permit for a go-cart track at a drag strip was not arbitrary or capricious.</block_quote>

<bold>Workers' Compensation — occupational disease — chemical</bold> <bold>sensitivity — injury — speculative causation</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case arising from a claim for an occupational disease under N.C.G.S. § <cross_reference>97-53</cross_reference> for chemical sensitivity by finding no compensable injury, because: (1) an individual's personal sensitivity to chemicals does not result in an occupational disease compensable under our workers' compensation scheme, and there was competent evidence as to plaintiff's personal sensitivities predating her naphthalene exposure; and (2) the expert testimony failed to establish a causal connection between plaintiff's disease and defendant when it relied on mere speculation or possibility in concluding that plaintiff's exposure to naphthalene<page_number>Page 406</page_number> at defendant's workplace was the cause of her subsequent symptoms.</block_quote>

<bold>Insurance — automobile — regular use exception</bold> <block_quote> Mollie Draughon's use of her mother-in-law's automobile was within the "regular use" exception of an insurance policy issued by defendant-Farm Bureau to Mollie Draughon, and summary judgment was correctly granted for Farm Bureau on the question of Farm Bureau's coverage of Ms. Draughon's automobile accident. "Regular" use does not imply daily use.</block_quote>

<bold>1. Larceny; Personal Property — larceny — injury to personal</bold> <bold>property — indictment — entity capable of owning property</bold> <block_quote> Defendant's convictions for larceny of parking meters and injury to personal property are vacated because the indictments named "City of Asheville Transit and Parking Services" as the owner of the property which did not clearly indicate an entity capable of owning property.</block_quote> <bold>2. Burglary and Unlawful Breaking or Entering — breaking into</bold> <bold>coin-operated machine — indictment — allegation of ownership</bold> <bold>unnecessary</bold> <block_quote> Defendant's convictions for breaking into a coin-operated machine under N.C.G.S. § <cross_reference>14-56.1</cross_reference> is upheld even though ownership was not alleged in the indictment, because an allegation of ownership is not necessary to sustain this charge.</block_quote>

<bold>Appeal and Error — preservation of issues — failure to renew</bold> <bold>motion to dismiss at close of all evidence — Rule 2</bold> <block_quote> Defendant's appeal from convictions of maintaining a dwelling to keep a controlled substance, manufacturing marijuana, and possession of drug paraphernalia that asks the Court of Appeals to invoke Rule 2 of the North Carolina Rules of Appellate Procedure to prevent a manifest injustice is dismissed, because: (1) defendant failed to comply with N.C.R. App. P. 10(b) by failing to renew his motion to dismiss at the close of all evidence; and (2) the Court of Appeals may not review an appeal that violates the Rules of Appellate Procedure even though such violations neither impede comprehension of the issues nor frustrate the appellate process.</block_quote>