Volume 171 — North Carolina Court of Appeals Reports

<bold>1. Confessions and Incriminating Statements —</bold> <bold>custodial statements — voluntariness —</bold> <bold>intoxication</bold> <block_quote> The trial court did not commit plain error in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and multiple assaults with a deadly weapon with intent to kill by denying defendant's motion to suppress his custodial statement to an officer even though defendant contends he was intoxicated and does not remember waiving his Miranda rights, because: (1) a confession is admissible unless defendant is so intoxicated that he is unconscious of the meaning of his words; (2) in the instant case the officer testified that he read defendant the Miranda warnings, defendant acknowledged that he understood the warnings, and thereafter defendant waived his rights and agreed to answer any of the officer's questions; (3) the officer testified that he did not smell alcohol on defendant, that defendant did not seem impaired in the slightest, and that defendant made no indication that he had any difficulty at all in understanding the officer's questions; (4) if there is a conflict between the State's evidence and defendant's evidence on material facts, it is the duty of the trial court to resolve the conflict and such resolution will not be disturbed on appeal; and (5) an unsigned statement taken in longhand is not precluded from admission if it contains a record of defendant's actual responses to the recorded questions.</block_quote> <bold>2. Assault — deadly weapon with intent to kill</bold> <bold>inflicting serious injury — motion to dismiss —</bold> <bold>sufficiency of evidence — perpetrator of crime</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charges of assault with a deadly weapon with intent to kill inflicting serious injury and multiple assaults with a deadly<page_number>Page 202</page_number> weapon with intent to kill, because viewing the evidence in the light most favorable to the State demonstrates that there was sufficient evidence to demonstrate that defendant was the perpetrator of the crimes for which he was charged including that: (1) defendant admitted that he took the gun from the man who fired the initial shot and thereafter followed three men down the street with it while firing eight or nine times at them while they were running; (2) the victim was standing on the corner of the street where defendant was firing the shots and was hit by a bullet from one of these gunshots; and (3) a witness testified that she heard eight total gunshots and the victim testified that she heard eight or nine total gunshots.</block_quote> <bold>3. Appeal and Error — preservation of issues</bold> <bold>— continuation of trial after dismissal of juror —</bold> <bold>failure to object</bold> <block_quote> Although defendant contends the trial court erred in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and multiple assaults with a deadly weapon with intent to kill by continuing the trial following the dismissal of a juror due to his sleeping problem, this assignment of error is dismissed because: (1) there is no indication in the record that defendant moved for a mistrial or offered any objection to the trial court's continuation of the trial with an alternate juror; and (2) although defendant assigned plain error to this issue on appeal, plain error review is reserved for instructional errors or the admissibility of evidence.</block_quote> <bold>4. Assault — failure to give curative instruction</bold> <bold>— misstatement of charges</bold> <block_quote> The trial court did not commit plain error by failing to give a curative instruction sua sponte following a prior misstatement of the charges against defendant when the trial court informed the jury at the opening of trial that defendant was being tried in part for the crime of assault with a deadly weapon inflicting serious injury on one of the victims and later at trial the State advised the court that the calendar incorrectly reflected that defendant was indicted for assault with a deadly weapon inflicting serious injury rather than assault with a deadly weapon with intent to kill inflicting serious injury for the pertinent victim, because: (1) the trial court correctly instructed the jury that defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury; (2) the trial court correctly instructed the jury regarding the elements of the offense; and (3)<page_number>Page 203</page_number> defendant failed to demonstrate how the alleged error impacted the jury's verdict.</block_quote> <bold>5. Evidence — lay opinion — difference in</bold> <bold>shell casings fired from an automatic weapon versus a</bold> <bold>revolver</bold> <block_quote> The trial court did not commit plain error in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and multiple assaults with a deadly weapon with intent to kill by failing to instruct the jury to disregard a detective's testimony following a sustained objection about the difference in shell casings fired from an automatic weapon versus a revolver, because: (1) the detective's testimony regarding the location of shell casings when a bullet is fired from two different weapons was not based upon any specialized expertise or training, but merely upon his own personal experience and observations in firing different kinds of weapons; and (2) having failed to qualify the detective as an expert in shell casing ballistics, the State was not prevented from eliciting lay opinion testimony from him.</block_quote> <bold>6. Discovery — destruction of shell casing prior</bold> <bold>to trial — failure to request evidence — failure to</bold> <bold>show bad faith</bold> <block_quote> A defendant's due process rights were not violated in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury and multiple assaults with a deadly weapon with intent to kill by the destruction of shell casings prior to his trial, because: (1) there is no indication in the record that defendant filed a discovery request for the shell casings; and (2) defendant has neither alleged nor demonstrated any bad faith on the part of the prosecutor or police department in the destruction of the shell casings.</block_quote>

<bold>1. Appeal and Error — preservation of issues</bold> <bold>— failure to argue</bold> <block_quote> Defendant abandoned three of his nine assignments of error by failing to argue them in his brief as required by N.C. R. App. P. 10(b).</block_quote> <bold>2. False Pretense — attempting to obtain</bold> <bold>property by false pretenses — failure to include specific</bold> <bold>amount of currency — notice</bold> <block_quote> The original and superseding indictments for attempting to obtain property by false pretenses were proper even though they did not include a specific amount of currency which defendant was alleged to have obtained, because: (1) N.C.G.S. § <cross_reference>14-100</cross_reference> states that any money obtained by false pretenses constitutes a violation of the statute and does not specify that the indictment must include the specific amount of money; and (2) the term "United States currency" is sufficient to describe the money and the inclusion of the watch band in the indictment provides defendant with notice of the crime of which he is accused.</block_quote> <bold>3. False Pretense — attempting to obtain</bold> <bold>property by false pretenses — motion to dismiss —</bold> <bold>sufficiency of evidence</bold> <block_quote> The trial court did not err in an attempting to obtain property by false pretenses case by denying defendant's motions to dismiss based on an alleged variance between the indictment and the proof presented by the State at trial concerning evidence of a statement that defendant was entitled to a refund for a watch-band that defendant knew he had unlawfully taken, because: (1) representation of a false pretense need not come through spoken words, but instead may be by act or conduct; (2) the State presented testimony by witnesses that defendant represented in act and through words that he wanted a refund for the watch; and (3) a reasonable juror could conclude from the State's evidence that defendant represented that he was entitled to a refund.</block_quote> <bold>4. False Pretense — attempting to obtain</bold> <bold>property by false pretenses — instructions — plain</bold> <bold>error analysis</bold> <block_quote> The trial court did not commit plain error by instructing the jury regarding elements of attempting to obtain property by false<page_number>Page 315</page_number> pretenses even though defendant contends they were not specific to the misrepresentation alleged in the indictment, because: (1) the State presented evidence of a single misrepresentation from which a reasonable juror could infer defendant represented to the employee that he wanted a refund for the watch that defendant knew he had unlawfully taken; and (2) there is no other misrepresentation that the jury could have found and thus there was no need to instruct the jury on the specific misrepresentation.</block_quote> <bold>5. Sentencing — habitual felon —</bold> <bold>attempting to obtain property by false pretenses</bold> <block_quote> The trial court did not improperly enter judgment and sentence under the habitual felon indictment alone, because: (1) although both the file number for the habitual felon indictment and the file number for the underlying offense of attempting to obtain property by false pretenses (AOPFP) should have been listed in the upper right corner of the judgment, this error is merely clerical; (2) defendant received notice by a proper indictment and was charged with AOPFP, and the file number for AOPFP is noted on the face of the judgment; and (3) defendant was not convicted of being an habitual felon, but rather his status as an habitual felon enhanced his conviction of AOPFP.</block_quote> <bold>6. Sentencing — habitual felon —</bold> <bold>miscalculation of prior record level</bold> <block_quote> Defendant was not prejudiced by the trial court's miscalculation of his prior record level for purposes of his habitual felon status, because: (1) his sentence was within the range for a Class C level V felon; and (2) the trial court reviewing the miscalculation found as fact that the District Attorney's office discovered convictions that it failed to include in the initial sentencing work-sheet, and including these convictions would place him at nineteen points which is within the presumptive range for level VI.</block_quote> <bold>7. Constitutional Law; Sentencing — habitual</bold> <bold>felon — proportionate — not cruel and unusual</bold> <bold>punishment</bold> <block_quote> The trial court's sentencing of defendant to 142 months to 180 months was not disproportionate to the crime committed and did not violate defendant's Eighth and Fourteenth Amendment rights, because: (1) contrary to defendant's contention that he was sentenced to a maximum of 180 months for attempting to steal a nine dollar watchband, defendant's sentence was imposed based on his status as an habitual felon; (2) sentencing an habitual felon is<page_number>Page 316</page_number> based not only on defendant's most recent offense, but on his past criminal offenses as well; and (3) defendant had a twenty-five year history of criminal convictions.</block_quote>

<bold>Child Abuse and Neglect — failure to appoint</bold> <bold>guardian ad litem for parent — mental</bold> <bold>illness</bold> <block_quote> The trial court erred by failing to sua sponte appoint a guardian ad litem (GAL) for respondent mother under N.C.G.S. § <cross_reference>7B-602</cross_reference> in light of her alleged mental illness before finding her minor child to be abused, neglected, and dependent, because: (1) N.C.G.S. § <cross_reference>7B-602</cross_reference> provides that a GAL shall be appointed if the<page_number>Page 348</page_number> juvenile is alleged to be dependent and the parent is incapable as a result of mental illness of providing the proper care and supervision of the juvenile; (2) the amended petition in this case alleges that the minor child is a dependent juvenile and that respondent's behavior is in part the result of mental illness; (3) the court's findings indicated that respondent was incapable as a result of her mental illness of providing for the proper care and supervision of the minor child; and (4) although this case is not a termination of respondent's parental rights, the ruling reaches the same effect when the minor child was placed with his maternal grandmother and respondent was not allowed any visitation or communication with the minor child.</block_quote>

<bold>1. Homicide — felony murder — killing of</bold> <bold>accomplice</bold> <block_quote> An instruction on felony murder was proper where defendant shot and killed a person who approached him from out of the headlights during a roadside robbery, and that person turned out to be an accomplice. Felony murder does not distinguish between victims who are innocent and those who are co-felons.</block_quote> <bold>2. Criminal Law — voluntary intoxication —</bold> <bold>intent to commit crime throughout</bold> <block_quote> There was no plain error in the failure to instruct on voluntary intoxication sua sponte in an armed robbery prosecution. Although there was general evidence that defendant was drinking and taking drugs on the evening of the crime, there was also evidence that defendant and his accomplice had the specific intent to commit the crime throughout the evening, including defendant's statement that he and his accomplice drove around looking for targets and rejected several, and that they pulled off the road at a fishmonger's truck solely to rob him.</block_quote> <bold>3. Appeal and Error — preservation of issues —</bold> <bold>argument not supported by authority</bold> <block_quote> An argument concerning transferred intent in a robbery and murder prosecution was deemed abandoned for lack of supporting authority.</block_quote>

<bold>Insurance — motor vehicles — non-owned</bold> <bold>vehicle — would-be purchaser — unfinished sale</bold> <block_quote> An automobile policy issued to an individual provided coverage for the individual while driving an automobile as a non-owned vehicle in connection with a collision where the individual was in<page_number>Page 511</page_number> the midst of an unfinished purchase of the car, because: (1) the individual did not hold legal title to the automobile at the time of the collision, and all cars which are not owned within the meaning of N.C.G.S. § <cross_reference>20-72</cross_reference>(b) are insured "non-owned" automobiles except those which are furnished for the regular use of the insured or his relative; and (2) at the time of the accident the automobile was not furnished for the individual's regular use.</block_quote>

<bold>1. Workers' Compensation — sale of business</bold> <bold>— continuing jurisdiction of Industrial Commission</bold> <block_quote> An employer who had sold its paper mill and workers' compensation liabilities after an employee's work-related accident continued to be subject to the jurisdiction of the Industrial Commission with regard to that accident.</block_quote> <bold>2. Workers' Compensation — jurisdiction of</bold> <bold>Industrial Commission — not divested by course of</bold> <bold>conduct</bold> <block_quote> None of the cited authority supported an argument that a course of conduct by the Department of Insurance or the Industrial Commission could divest the Commission of the jurisdiction conferred on it by statute in a workers' compensation case involving an employer that had sold its business. Moreover, the parties had stipulated that the employer, Glatfelter, was bound by the provisions of the Workers' Compensation Act.</block_quote> <bold>3. Workers' Compensation — authority of</bold> <bold>Industrial Commission — agreement transferring</bold> <bold>obligations</bold> <block_quote> Adjudication of the validity of an agreement transferring workers' compensation liabilities along with a paper mill fell within the delegated authority of the Industrial Commission. N.C.G.S. § <cross_reference>97-6</cross_reference>.</block_quote><page_number>Page 597</page_number> <bold>4. Workers' Compensation — authority of</bold> <bold>Industrial Commission — discharge of obligation</bold> <block_quote> Determining whether a self-insurer has fully discharged its workers' compensation obligations is the province of the Industrial Commission; the Department of Insurance does not have that authority, by implication or expression. The Department of Insurance in this case improperly released the bond of a self-insured employer which did not secure its obligations in a manner compliant with N.C.G.S. § <cross_reference>97-185</cross_reference>(g).</block_quote> <bold>5. Appeal and Error — assignment of error</bold> <bold>— not supported by authority — abandoned</bold> <block_quote> An assignment of error was deemed abandoned for failure to cite legal authority.</block_quote> <bold>6. Workers' Compensation — transfer of</bold> <bold>obligation — estoppel</bold> <block_quote> Assuming that estoppel could be asserted against the Industrial Commission in a case involving the attempted transfer of workers' compensation liabilities, the actions necessary for the transfer occurred before the Commission was informed or involved.</block_quote> <bold>7. Workers' Compensation — transferred</bold> <bold>liability — enforcement of award — authority of</bold> <bold>Commission versus Department of Insurance</bold> <block_quote> Although defendant argued that the Department of Insurance had exclusive regulatory jurisdiction, the Industrial Commission properly exercised its authority in determining that a self-insured employer who attempted to transfer its workers' compensation liabilities along with its paper mill remained subject to the Workers' Compensation Act.</block_quote> <bold>8. Workers' Compensation — necessary parties</bold> <bold>— sale of business and obligations</bold> <block_quote> All of the necessary parties were before the Industrial Commission in a workers' compensation case arising from the sale of a paper mill and its liabilities.</block_quote> <bold>9. Workers' Compensation — sale of business</bold> <bold>— transfer of obligations — no statutory</bold> <bold>provisions</bold> <block_quote> Although N.C.G.S. § <cross_reference>97-6</cross_reference> allows employers to use devices to relieve themselves of workers' compensation obligations where "otherwise expressly provided" in the Workers' Compensation<page_number>Page 598</page_number> Act, there are no such mechanisms allowing the transfer under the facts of this case.</block_quote> <bold>10. Workers' Compensation — levy on deposits</bold> <bold>— allowed but not required</bold> <block_quote> Although N.C.G.S. § <cross_reference>97-185</cross_reference>(f) endorses a levy upon applicable deposits by claimants entitled to workers' compensation benefits, nothing in the statute indicates that a claimant must levy on the deposit or that the Commission has the authority to force a claimant to do so.</block_quote> <bold>11. Workers' Compensation — unsuccessful</bold> <bold>transfer of obligation — order to retain certificate of</bold> <bold>deposit — erroneous</bold> <block_quote> The Industrial Commission erred by ordering the Department of Insurance to retain a certificate of deposit belonging to defendant RFS where it had determined that RFS was not responsible for Glatfelter's workers' compensation obligations.</block_quote>

<bold>1. Arson — first-degree — motion to dismiss</bold> <bold>— sufficiency of evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of first-degree arson even though defendant contends there was insufficient evidence to show that he was the perpetrator of the arson, because the evidence taken in the light most favorable to the State showed: (1) defendant was jealous of his ex-girlfriend's relationship with her new boyfriend and constantly harassed the couple in an attempt to break them up and scare the girl into reconciling with defendant, thus demonstrating defendant's motive to set the fire; (2) defendant left a message a few months before the fire threatening to burn the couple if they did not return his call; (3) on the night of the fire defendant left another threatening message on his ex-girlfriend's cell phone stating they had one more conversation to have and that was going to be it; (4) defendant was in the vicinity of the new boyfriend's apartment at the time the fire occurred, as demonstrated by his cell phone records, thereby establishing he had the opportunity to set the fire; (5) defendant had previously entered his ex-girlfriend's home and threatened to kill her; and (6) the gasoline on the mat indicated the fire was deliberately set.</block_quote> <bold>2. Sentencing — restitution — vacated</bold> <block_quote> The trial court's restitution recommendation included in the judgment in a first-degree arson case that ordered defendant to pay $100 to his ex-girlfriend's new boyfriend for damages sustained as a result of the fire must be vacated because it was not supported by the evidence.</block_quote> <bold>3. Sentencing — no contact recommendation —</bold> <bold>reasonableness</bold> <block_quote> The trial court's recommendation in a first-degree arson case that defendant have no contact with his ex-girlfriend, her new boyfriend, and her family for the duration of defendant's incarceration was not an unconstitutional form of punishment, because: (1) the "no contact" recommendation was not a mandatory and binding part of the judgment and as such does not violate N.C. Const, art. <cross_reference>XI</cross_reference>, § <cross_reference>1</cross_reference>; (2) considering the nature and extent<page_number>Page 698</page_number> of defendant's harassment of the couple, the trial court's recommendation that defendant have no contact with either of them or the ex-girlfriend's family was reasonable; and (3) the recommendation is also reasonable since it is limited to a specific and well-defined group and is limited in duration to defendant's incarceration.</block_quote> <bold>4. Evidence — prior crimes or bad acts —</bold> <bold>motive — intent — plan — common scheme</bold> <bold>— identity</bold> <block_quote> The trial court did not abuse its discretion in a first-degree arson case by admitting evidence of defendant's other crimes under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) including the 18 January 2003 incident when he left a voice message threatening to "burn you all up" if his ex-girlfriend did not return his call and the 9 March 2003 incident when the ex-girlfriend and her new boyfriend sought police assistance since defendant was following them and thereafter left a threatening message telling the new boyfriend "you better not come home," because: (1) the first statement was admissible to prove defendant's motive, intent, plan, common scheme, and defendant's identity as the arsonist; (2) the second incident was admissible for the same enumerated purposes when defendant continually harassed the couple by making numerous phone calls, leaving threatening messages, following the couple around, and even hiding in the ex-girlfriend's home and threatening to kill her with a knife; (3) even though the incidents were not the precise type of crimes for which defendant was charged, it shows an alarming trend of defendant's escalating acts of violence toward the couple due to his jealousy over their relationship; (4) although the threatening messages were left within a matter of months prior to the fire, remoteness in time is less significant when the prior conduct is used to show intent, identity, motive, common plan or scheme, or absence of mistake; and (5) the trial court guarded against the possibility of prejudice by instructing the jury to consider the evidence only for the limited purposes of establishing identity, intent, motive, absence of mistake, and common plan.</block_quote> <bold>5. Evidence — prior crimes or bad acts —</bold> <bold>identity</bold> <block_quote> The trial court did not err in a first-degree arson case by instructing the jury that it could consider the 18 January and 9 March 2003 "other crimes" evidence to prove identity, because: (1) the evidence of these other crimes or wrongs was admissible for the limited purposes enumerated in<page_number>Page 699</page_number> N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 404(b) and it was proper for the judge to give a limiting instruction concerning what purpose the jury could use the evidence; and (2) the judge's instruction was a correct statement of the law.</block_quote>

<bold>1. Hospitals and Other Medical Facilities —</bold> <bold>certificate of need proceedings — grounds for</bold> <bold>modification or reversal — appellate review</bold> <block_quote> Certificate of need proceedings are exempt from the newly amended portions of N.C.G.S. § <cross_reference>150B-51</cross_reference>; those decisions are reviewed on appeal under the previous version of the statute, with modification or reversal of the agency decision controlled by the grounds enumerated in N.C.G.S. § <cross_reference>150B-51</cross_reference>(b) (1999). The scope of review associated with each of these grounds is discussed in detail in <italic>N.C. Dep't of Env't Natural</italic> <italic>Res. v. Carroll</italic>, <cross_reference>358 N.C. 649</cross_reference>.</block_quote> <bold>2. Hospitals and Other Medical Facilities —</bold> <bold>dialysis machines — certificate of need —</bold> <bold>competition and choice as comparative factors</bold> <block_quote> Respondent-agency did not exceed its statutory authority by using enhanced competition and increased consumer choice as key comparative factors when awarding a certificate of need for new dialysis machines. Furthermore, no one asserted that the agency relied on new evidence, respondent specified reasons for rejecting the ALJ's findings of fact, and the agency's findings were supported by substantial evidence.</block_quote>