Volume 176 — North Carolina Court of Appeals Reports

<bold>1. Appeal and Error — record and brief —</bold> <bold>multiple violations</bold> <block_quote> Although not dispositive, the Department of Correction violated the Rules of Appellate Procedure by submitting an unmanageable record with an inadequate index; by placing its assignments of error at the wrong point in the record and not including any record references; by including legal argument with<page_number>Page 124</page_number> citations with its "non-argumentative" summary of the facts; and by not including pertinent record page numbers with the reference to assignments of error in the brief. DOC's conditional motion to amend the record and brief was not sufficient to remedy all of the violations.</block_quote> <bold>2. Appeal and Error — appealability — denial</bold> <bold>of stay — interlocutory order</bold> <block_quote> An appeal was interlocutory where the matter arose from a termination of workers' compensation benefits, subsequent orders, and the denial of a request for a stay. The order appealed from merely temporarily determines a portion of the action before further proceedings that may negate that order.</block_quote>

<bold>1. Sexual Offenses — first-degree — failure</bold> <bold>to instruct on acting in concert or aiding and abetting —</bold> <bold>failure to show defendant personally employed or displayed</bold> <bold>dangerous or deadly weapon</bold> <block_quote> The trial court erred by concluding that the evidence was sufficient to permit a reasonable juror to find beyond a reasonable doubt that defendant committed first-degree sexual offense, and the case is remanded for entry of judgment against defendant for second-degree sexual offense, because: (1) the jury was instructed it could find defendant guilty of first-degree sexual offense only if he employed or displayed a dangerous or deadly weapon; (2) without an instruction on acting in concert or the theory of aiding and abetting, the evidence must support a finding that defendant personally employed or displayed a dangerous or deadly weapon in the commission of the sexual offense; (3) there was no evidence at trial that defendant ever, personally, employed or displayed a dangerous weapon during the time he was in the victim's apartment; (4) all the testimony at trial established that another man held the shotgun throughout the incident; and (5) the jury's verdict is recognized as a verdict of guilty of second-degree sexual offense.</block_quote> <bold>2. Kidnapping — second-degree — sufficiency of</bold> <bold>evidence</bold> <block_quote> The trial court did not err by concluding that the evidence was sufficient to permit a reasonable juror to find beyond a reasonable doubt that defendant committed two counts of second-degree kidnapping, because although the trial court failed to give an instruction permitting the jury to rest a verdict of guilt on either acting in concert or aiding and abetting, the evidence at trial was sufficient to establish that: (1) the removal of one of the victims to the bathroom and the binding of his hands were not acts necessarily inherent in the commission of the other felonies of robbery, sexual offense, and burglary; and (2) after defendant sexually assaulted another victim, her hands were bound and she was left tied up.</block_quote><page_number>Page 160</page_number> <bold>3. Conspiracy — first-degree burglary —</bold> <bold>robbery with dangerous weapon — separate</bold> <bold>conspiracies</bold> <block_quote> The trial court did not err by concluding that the evidence was sufficient to permit a reasonable juror to find beyond a reasonable doubt that defendant committed two separate conspiracies to commit first-degree burglary and robbery with a dangerous weapon, because: (1) the State presented evidence showing the first conspiracy was formed on the evening of 15 December 2002 when defendant agreed with two others to rob someone, and there was no evidence that this agreement consisted of more than that of robbing someone on that night; and (2) the mere fact that defendant was involved in a similar crime the next night does not indicate the two crimes were committed as part of the agreement made on 15 December 2002.</block_quote>

<bold>1. Workers' Compensation — lifting restrictions</bold> <bold>— accommodations</bold> <block_quote> Although there was conflicting evidence in a workers' compensation case about defendant's accommodation of plaintiff's lifting restrictions, there was competent evidence to support the Industrial Commission's finding that the restrictions were not accommodated. The Commission is the sole judge of the weight and credibility of the evidence.</block_quote> <bold>2. Workers' Compensation — disability — reason</bold> <bold>for termination</bold> <block_quote> There was evidence in a workers' compensation case that plaintiff sought a meeting with his manager to discuss his work restrictions, a meeting which became heated and was followed by his termination. The Commission weighed the reasons for the termination and did not err by finding that plaintiff was terminated for the stated reason of being insubordinate without acknowledging evidence that plaintiff told his manager to "shut up."</block_quote> <bold>3. Workers' Compensation — disability —</bold> <bold>termination — purpose of meeting</bold> <block_quote> There was no error in a workers' compensation case in the Industrial Commission finding that plaintiff's manager planned to discipline plaintiff at a meeting at which she had requested a witness, although there was testimony that the additional person was requested because plaintiff was agitated. Evidence tending to support a plaintiff's claim is to be viewed in the light most favorable to plaintiff.</block_quote> <bold>4. Workers' Compensation — disability —</bold> <bold>termination for work restrictions — findings</bold> <block_quote> The findings supported the Industrial Commission's determination in a workers' compensation case that plaintiff's termination was directly related to his work restrictions rather than insubordination for which any non-disabled employee would have been terminated. The Commission found testimony by defendant's witnesses to be less credible than plaintiff's testimony; moreover, defendants did not present evidence from the district manager who told plaintiff the reason for his termination.</block_quote><page_number>Page 230</page_number> <bold>5. Workers' Compensation — disability —</bold> <bold>findings not sufficient for review</bold> <block_quote> There was insufficient evidence to allow judicial review of Industrial Commission findings about whether plaintiff had suffered a disability where there were no findings about medical evidence, evidence of reasonable efforts to find employment, or evidence of futility in seeking employment. Defendant's admission of compensability did not relieve plaintiff of his burden of proving the existence and extent of his disability, nor did it relieve the Commission of its duty to make specific findings.</block_quote> <bold>6. Workers' Compensation — disability —</bold> <bold>constructive refusal of employment — not found</bold> <block_quote> Although termination of employment for misconduct may constitute constructive refusal of employment, there was no error here in the opposite conclusion. The Commission, as sole judge of credibility, did not find defendant's explanation of the termination credible and did find that plaintiff's termination was related to his work restrictions.</block_quote>

<bold>1. Termination of Parental Rights — incarcerated</bold> <bold>father — deposition denied — no prejudice</bold> <block_quote> There was no prejudice in the denial of respondent's motion to be deposed in a termination of parental rights proceeding where respondent was incarcerated in Tennessee. The findings of<page_number>Page 262</page_number> fact from a prior child custody and equitable distribution proceeding were binding by collateral estoppel and respondent would thus be precluded from challenging the factual allegations made by the mother in this proceeding. The father's interest is outweighed by the absence of any indication that his deposition would have led to a different result.</block_quote> <bold>2. Termination of Parental Rights — order not timely</bold> <bold>reduced to writing — no prejudice</bold> <block_quote> There was no prejudice in a termination of parental rights proceeding from the court's failure to reduce its order to writing within the statutory thirty-day time frame.</block_quote>

<bold>1. Immunity — participation in School Board Trust</bold> <bold>— no waiver of governmental immunity</bold> <block_quote> Binding precedents bar the argument that defendant school board waived governmental immunity by entering into a general trust fund agreement with the North Carolina School Board Trust.</block_quote> <bold>2. Immunity — school board — basketball game</bold> <bold>with charged admission — not a proprietary function</bold> <bold>— not a waiver</bold> <block_quote> Defendant school board did not waive its governmental immunity by operating a basketball game for which admission was charged. The operation of an athletic program is an authority conferred on the school board by the legislature and did not involve a proprietary operation.</block_quote> <bold>3. Immunity — school board — failure to</bold> <bold>maintain school property</bold> <block_quote> N.C.G.S. § 115C-24 does not implicitly create a private right of action against a local board of education for injuries arising from the board's alleged failure to maintain school property in proper condition for use.</block_quote>

<bold>1. Homicide — first-degree murder — defendant</bold> <bold>present at victim's death — evidence sufficient</bold> <block_quote> There was sufficient evidence in a first-degree murder case for a jury to find beyond a reasonable doubt that defendant was present at the time of the victim's death.</block_quote> <bold>2. Homicide — first-degree murder —</bold> <bold>sufficiency of evidence — cause of death</bold> <block_quote> The State's evidence was sufficient to prove first-degree murder, and the trial court properly denied defendant's motion to dismiss, where the State's expert testified the cause of death was asphyxia (the victim was found with a plastic bag tied over her head) and that the manner of death was homicide, based on information from investigating officers about the scene. Neither the victim's past heart problems nor the traces of cocaine in her blood altered his opinion.</block_quote> <bold>3. Burglary and Unlawful Breaking or Entering —</bold> <bold>permission to enter victim's home — revoked</bold> <block_quote> The trial court did not err by not dismissing a felonious breaking and entering charge where defendant had had permission to enter the victim's home when he worked for her as a handyman, but had been evicted from the victim's home for stealing her credit cards and forging her checks.</block_quote> <bold>4. Larceny — evidence sufficient — possession</bold> <bold>of credit cards</bold> <block_quote> There was sufficient evidence for the trial court to deny defendant's motion to dismiss charges of felonious larceny and possession of a murder victim's credit cards.</block_quote> <bold>5. Larceny — sufficiency of evidence —</bold> <bold>inference that deceased victim did not consent to use of</bold> <bold>vehicle</bold> <block_quote> The trial court properly denied defendant's motion to dismiss charges of felonious larceny and possession of the victim's automobile where defendant admitted abandoning the victim's car in New Orleans and the jury could infer from the evidence that the victim did not consent to his use of the vehicle.</block_quote><page_number>Page 411</page_number> <bold>6. Criminal Law — verdict — stealing credit</bold> <bold>cards — consistency with indictment</bold> <block_quote> There was no error where defendant contended the State failed to prove that he stole credit cards listed in the indictment but not specified in the verdict form or jury instructions. A verdict is deemed sufficient if it can be properly understood by reference to the indictment, evidence, and jury instructions, and a comparison of the indictment and jury instructions here reveals that they are consistent.</block_quote> <bold>7. Larceny; Possession of Stolen Property — credit</bold> <bold>cards — duplicative judgments</bold> <block_quote> The trial court erred by duplicating judgments for both larceny and possession of credit cards and an automobile. While a defendant may be charged with larceny, receiving, and possession of the same property, a defendant may be convicted for only one of those offenses.</block_quote> <bold>8. Homicide — first-degree murder — refusal to</bold> <bold>instruct on involuntary manslaughter</bold> <block_quote> There was no plain error in a first-degree murder prosecution in denying defendant's request to instruct the jurors on the lesser-included offense of involuntary manslaughter. A defendant is not entitled to have the jury consider a lesser offense when his sole defense is one of alibi; this defendant's sole and unequivocal defense was that he was not present at the time of death.</block_quote> <bold>9. Homicide — first-degree murder — failure to</bold> <bold>instruct on death by accident — no plain error</bold> <block_quote> There was no plain error in a first-degree murder prosecution where the court did not instruct the jury on death by accident. Although a defense expert testified that the victim died of sexual asphyxia, so that the judge should have instructed on accident, the outcome was not affected because defense counsel explained the accident theory in closing argument.</block_quote> <bold>10. Criminal Law — reinstruction — abbreviated</bold> <bold>statement of elements — no error in context</bold> <block_quote> There was no prejudicial error in a prosecution for first-degree murder where the jury asked for written copies of the elements of the offense, the court gave the jury a simplified element sheet for first-degree murder which excluded proximate causation, neither party objected when given the opportunity to do so,<page_number>Page 412</page_number> and the court instructed the jury to put the simplified elements in the context of the charge. Assuming the instruction was improper, isolated erroneous portions of a charge will not alone afford grounds for reversal if the charge as a whole presents the law fairly and clearly.</block_quote> <bold>11. Criminal Law — instructions —</bold> <bold>conversations with jury</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by not giving the jury written instructions about talking to witnesses or talking among themselves before deliberations. The court gave oral instructions; there is no requirement that they be in writing. N.C.G.S. § <cross_reference>15A-1236</cross_reference>.</block_quote> <bold>12. Evidence — hearsay — victim's statements</bold> <bold>about defendant — residual exception — sufficiency</bold> <bold>of findings</bold> <block_quote> The trial court in a prosecution for first-degree murder made sufficient findings to support its admission of testimony by the victim's sister relating statements the victim made to her about defendant under the residual hearsay exception set forth in N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 804(b)(5). Although the trial court made insufficient findings for the admission of testimony by the sister about a statement made to the victim by a third party because the court made no findings as to the third party's unavailability and the reliability of her statement, the admission of such statement was not prejudicial error in light of the overwhelming evidence of defendant's guilt.</block_quote> <bold>13. Evidence — hearsay — victim's statement</bold> <bold>about defendant — residual exception — sufficiency</bold> <bold>of findings</bold> <block_quote> The trial court in a prosecution for first-degree murder made sufficient findings to support its admission of statements about defendant made by the victim to a probation officer and to law officers under the residual hearsay exception set forth in N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 804(b)(5).</block_quote> <bold>14. Evidence — hearsay — victim's statements</bold> <bold>admitted through testimony of others — state of mind</bold> <bold>exception</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by admitting statements of the victim through other witnesses. They were admissible, at the least, to show state of mind.</block_quote><page_number>Page 413</page_number> <bold>15. Criminal Law — prosecutor's closing argument</bold> <bold>— not too inflammatory</bold> <block_quote> A prosecutor's closing argument in a first-degree murder prosecution was not so inflammatory as to require the trial court to intervene ex mero motu where the prosecutor argued that defendant had attempted to sexually assault the victim's dead or dying body where evidence was presented that rape kit tests performed on the victim were negative for semen or recent sexual activity.</block_quote> <bold>16. Criminal Law — prosecution's argument —</bold> <bold>alleged misrepresentations of evidence — not</bold> <bold>prejudicial</bold> <block_quote> There was no prejudicial error in a first-degree murder prosecution as a result of the prosecutor's alleged misrepresentations of the significance of defendant's pubic hair found in the victim's bed.</block_quote> <bold>17. Criminal Law — prosecutor's argument —</bold> <bold>characterization of evidence and witnesses</bold> <block_quote> The bounds of permissible prosecutorial argument were not exceeded by an argument that the defense expert's testimony was "from another planet" and "actually cracks me up." Nor were the prosecutor's complimentary remarks about the State's witnesses, specifically the victim's family, so improper as to require ex mero motu intervention.</block_quote> <bold>18. Criminal Law — prosecutor's argument —</bold> <bold>entry into victim's house</bold> <block_quote> The prosecution in a first-degree murder prosecution properly argued its theory of a duplicate key used to gain entry of the victim's house where evidence was presented that there were no signs of forced entry and that defendant had entered the victim's house.</block_quote> <bold>19. Criminal Law — prosecutor's argument —</bold> <bold>tampering with evidence — response to defense argument</bold> <block_quote> The trial court did not abuse its discretion by not intervening ex mero motu in the prosecutor's closing arguments about tampering with the evidence. The State's argument was in response to a defense argument, defense counsel did not object or respond, and defendant failed to show prejudice.</block_quote><page_number>Page 414</page_number> <bold>20. Criminal Law — motion to remove district</bold> <bold>attorney's office — removal of evidence — no</bold> <bold>misconduct</bold> <block_quote> The trial court in a first-degree murder prosecution did not abuse its discretion by denying defendant's motion to disqualify the district attorney's office as a result of the alleged removal of evidence from the police department property room and placement of the evidence in a locked closet in the prosecutor's office.</block_quote> <bold>21. Criminal Law — motion to suppress evidence for</bold> <bold>prosecutorial misconduct — denied</bold> <block_quote> The trial court did not err by denying a first-degree murder defendant's motion to suppress evidence based upon allegations of professional misconduct by prosecutors.</block_quote> <bold>22. Criminal Law — discussions with jury —</bold> <bold>mistrial denied</bold> <block_quote> The trial court did not err in a first-degree murder prosecution by denying defendant's motion for a mistrial based on improper jury discussions where there was testimony of two jurors discussing the case outside the courtroom and some evidence that a juror was laughing and talking with a family member of the victim. The court found no substantial or irreparable prejudice to defendant's case.</block_quote> <bold>23. Criminal Law — motion for appropriate relief</bold> <bold>— prosecutor's misrepresentation of the evidence —</bold> <bold>defense failure to correct</bold> <block_quote> There was no error in denying a first-degree murder defendant's motion for appropriate relief based on the State's misrepresentation of the evidence and minimization of the life-threatening nature of the victim's medical condition. Defense counsel testified that he had access to the same evidence as the prosecution, but failed to use the information to correct the alleged misrepresentations made by prosecuting witnesses and by the prosecutor.</block_quote> <bold>24. Criminal Law — false evidence — not</bold> <bold>intentionally misleading — new trial denied</bold> <block_quote> There was no error in denying a first-degree murder defendant's motion for a new trial based on a family member's alleged misrepresentation of the victim's disability status. There was competent evidence to support the trial court's finding that the testimony was not intentionally misleading.</block_quote><page_number>Page 415</page_number> <bold>25. Constitutional Law — effective assistance of</bold> <bold>counsel — defense strategy</bold> <block_quote> The trial court did not err by denying a first-degree murder defendant's motion for a new trial based on ineffective assistance of counsel. Trial counsel's decision to pursue a particular defense strategy cannot be second-guessed on appeal.</block_quote>

<bold>1. Termination of Parental Rights — "left" in</bold> <bold>outside care more than 12 months after "removal" —</bold> <bold>triggered only by court order</bold> <block_quote> The legislature did not intend that any separation between a parent and child trigger the ground for termination of parental rights set forth in N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(2) (the child is "left" in placement outside the home for more than 12 months without progress toward correcting the condition which led to "the removal"). The statute refers only to circumstances where a court has entered an order requiring that a child be in foster care or other placement outside the home.</block_quote> <bold>2. Termination of Parental Rights — more than 12</bold> <bold>months in foster care — measuring of time</bold> <block_quote> A termination of parental rights on the basis of more than 12 months in foster care or other outside placement cannot be sustained where the "more than twelve months" threshold requirement did not expire before the motion or petition was filed. This is in contrast to the parent's reasonable progress, which is evaluated for the duration leading up to the hearing on the motion or petition to terminate parental rights. N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(2)</block_quote> <bold>3. Termination of Parental Rights — more than 12</bold> <bold>months in foster care — initial separation voluntary</bold> <block_quote> The trial court's findings in a termination of parental rights proceeding did not support the conclusion that the child had been left in foster care or placement outside the home for twelve months as defined in N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(2). The fact that there was a voluntary placement agreement in cooperation with a social services agency is not the equivalent of placing the child in foster care or placement outside the home by a court order. Prior uses of "remove" in other proceedings did not have the import associated with the legal ground set forth in N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(2).</block_quote>

<bold>Appeal and Error — appeal ability — permanency</bold> <bold>planning order</bold> <block_quote> An appeal from an initial permanency planning order was dismissed as interlocutory. <italic>In re B.N.H.</italic>, <cross_reference>170 N.C. App. 157</cross_reference>, is directly controlling.</block_quote>

<bold>1. Trusts — breach of fiduciary duty —</bold> <bold>negligent management — mental incompetency</bold> <block_quote> The trial court did not err by granting summary judgment in favor of defendant bank on plaintiffs claims for breach of fiduciary duty and negligent management of the 1977 and 1981 trust accounts, because: (1) when properly requested, no provisions in the 1977 trust agreement afford defendant any discretion on with-holding distributions from the 1977 trust to the trust beneficiary's checking account regardless of the beneficiary's alleged mental<page_number>Page 712</page_number> incompetency at the time of the request; (2) requests for money from the 1977 trust came from the beneficiary or from someone representing him; and (3) in distributing the funds from the 1977 trust to the beneficiary's account at his request, defendant performed the duties expressly required by the 1977 trust agreement. N.C.G.S. § <cross_reference>32-71</cross_reference>(a).</block_quote> <bold>2. Banks and Banking — honoring forged checks —</bold> <bold>failure to meet one-year notice period</bold> <block_quote> The trial court did not err by granting summary judgment in favor of defendant bank on plaintiff guardian's claim that defendant improperly honored forged checks drawn on the pertinent checking account, because: (1) N.C.G.S. § <cross_reference>25-4-406</cross_reference>(f) provides that failure of a customer or his representative to report his unauthorized signature within one year after the bank makes account statements available precludes a claim against the bank, even if the customer is incompetent (whether adjudicated or unadjudicated) during the one-year period for providing notice; (2) even if the Court of Appeals accepted the guardian's argument that the requirements of the statute should not be triggered until he was appointed guardian of the estate since the prior guardian was the alleged wrongdoer, the guardian notified the bank of the unauthorized signatures still outside the one-year notification period; (3) a material factual dispute did not exist as to whether the guardian's freezing of the pertinent checking account upon his appointment as interim guardian in December 2000 satisfied the notice requirements; and (4) the guardian's argument that defendant received notice of the unauthorized signatures when defendant's employees attended the pertinent competency hearing where evidence was presented to show that the prior guardian had been forging signatures is without merit.</block_quote>

<bold>1. Nuisance — private — motion to dismiss</bold> <bold>— sufficiency of complaint — effect of prior</bold> <bold>judgment</bold> <block_quote> The trial court erred by dismissing plaintiffs' claim for private nuisance allegedly arising from noise at defendant's swim and tennis club, because: (1) while plaintiffs allege most of the specific acts in order to prove defendant was in violation of an<page_number>Page 725</page_number> injunction arising out of a 1994 lawsuit, all of these acts are realleged in their claim for nuisance; (2) as the complaint is to be liberally construed, it is sufficient on its face to provide defendant with sufficient notice of the conduct on which the claim is based to enable defendant to respond and prepare for trial, and it stated enough to satisfy the substantive elements of a private nuisance claim against defendant; (3) successors in ownership of real property are not automatically bound by prior judgments granting injunctions concerning the use of the property, and as there was no evidence offered of any active concert or participation between defendant and the previous owners, plaintiffs could not enforce the previous injunction against defendant thus entitling plaintiffs to bring a new suit against defendant requesting relief in the form of an injunction; and (4) the verdict and award in the 1994 lawsuit was not explicitly for permanent damages, and thus, plaintiffs' remedy is to recover in separate and successive actions for damages sustained to the time of the trial.</block_quote> <bold>2. Appeal and Error — preservation of issues —</bold> <bold>failure to argue — waiver</bold> <block_quote> While plaintiffs assign error to the dismissal of their claims against defendant for violating a 1994 permanent injunction and restraining order, plaintiffs correctly abandoned this argument in their brief, and thus, this assignment of error is deemed waived under N.C. R. App. P. 28(b)(6).</block_quote>