Volume 178 — North Carolina Court of Appeals Reports

<bold>Workers' Compensation — death benefits —</bold> <bold>causation</bold> <block_quote> The Industrial Commission did not err by finding no causal relationship between a truck driver's compensable injury, which left him quadriplegic, and his subsequent death from an enlarged heart.</block_quote>

<bold>1. Highways and Streets — closing public road —</bold> <bold>statutorily mandated de novo hearing — burden of proof</bold> <block_quote> The trial court did not err by placing the burden on appellant to illustrate the board of county commissioners correctly determined that closing the roads in Ocean Hill I to the general public was not contrary to the public interest, because: (1) the burden of proof was initially placed on appellant who sought to change the status of Ocean Hill I roads from public to private; and (2) pursuant to a statutorily mandated de novo hearing, the burden of proof remained with appellant.</block_quote> <bold>2. Highways and Streets — closing public road —</bold> <bold>directed verdict — more than a scintilla of evidence</bold> <block_quote> A de novo review revealed that the trial court did not err by denying appellant's motion for directed verdict in an action seeking to close Ocean Hill I roads to the general public, because: (1) appellant's repeated incorrect argument concerning the burden of proof is unavailing on this issue as well; and (2) a petitioner's testimony that closing Ocean Hill I roads would deprive her of a safe route to the beach was not only more than a scintilla of evidence supporting appellees' assertion that closing these roads is contrary to the public interest, but also is conflicting testimony favorable to appellees precluding the granting of appellant's motion for directed verdict.</block_quote><page_number>Page 183</page_number> <bold>3. Highways and Streets — closing public road —</bold> <bold>instructions — burden of proof — questions of public</bold> <bold>interest</bold> <block_quote> The trial court did not submit an incorrect burden of proof to the jury in an action seeking to close Ocean Hill I roads to the general public and did not improperly empower the jury to determine a question of law, because: (1) the Court of Appeals has already held that the burden of proof was correctly placed on appellant; (2) appellant never objected to the submitted jury instruction in the final pretrial conference order, and appellant submitted the exact question to the jury in its requested jury instruction; and (3) our Supreme Court has ratified the ability of juries to deliberate upon questions of public interest.</block_quote>

<bold>1. Appeal and Error — preservation of issues —</bold> <bold>failure to object</bold> <block_quote> Defendant's contention that the trial court erred by admitting certain photographs was heard on appeal despite his failure to object at trial (a motion in limine is not sufficient) where he relied on the amended Evidence Rule 103(a) in effect at the time of trial, which has recently been held to be inconsistent with<page_number>Page 190</page_number> Appellate Rule 10(b)(1). Refusing to review defendant's appeal would be a manifest injustice because he relied on a procedural statute presumed constitutional at the time of trial.</block_quote> <bold>2. Evidence — prior crimes or bad acts — admissible</bold> <bold>to show preparation and planning</bold> <block_quote> The trial court did not err in a trial for statutory sexual offense with a person thirteen years old by admitting nude photographs which defendant had shown to the victim. The photographs demonstrated defendant's preparation and planning, a permissible purpose other than showing defendant's character.</block_quote> <bold>3. Sexual Offenses — sexual act with thirteen-year-old</bold> <bold>— evidence sufficient</bold> <block_quote> The evidence was sufficient to convict defendant of a sexual act with a thirteen-year-old.</block_quote> <bold>4. Sexual Offenses — sexual act with thirteen-year-old</bold> <bold>— variance between indictment and evidence — time</bold> <bold>of offense</bold> <block_quote> There was not a fatal variance between the indictment and the evidence in a trial for a sexual act with a thirteen-year-old where defendant contended that the evidence showed that the victim was twelve years old during some of the time specified in the indictment, but the victim testified that she was thirteen when one of the offenses occurred. The trial court properly instructed the jury about what it must find to convict and defendant did not contend that he was deprived of the opportunity to present an adequate defense due to the variation.</block_quote>

<bold>Administrative Law — wrecker services — safety</bold> <bold>exception — not preempted by federal law</bold> <block_quote> The trial court did not err by granting summary judgment for defendants in an action challenging the Highway Patrol's regulation of private wrecker services. The General Assembly delegated to the Department of Crime Control and Public Safety and the Highway Patrol the authority to make regulations governing inclusion in the Patrol's Wrecker Rotation List. Those regulations are not preempted by federal law because they fall within the safety regulation exception of <cross_reference>49 U.S.C. § 14501</cross_reference>(c)(2)(A).</block_quote>

<bold>Criminal Law — felonious escape from county jail</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 felonious escape from a county jail even though the incident occurred while defendant was being transported back to Central Prison (after being transported to a county jail from Central Prison for a court appearance), because the deputy testified that he placed defendant in the county jail both before and after defendant's hearing, thus making the deputy an officer of such jail within the meaning of N.C.G.S. § <cross_reference>14-256</cross_reference>.</block_quote>

<bold>1. Confessions and Incriminating Statements —</bold> <bold>Miranda warnings — flawed translation to Spanish</bold> <block_quote> The Spanish translations of Miranda warnings used here contained grammatical errors, but reasonably informed defendant of his rights.</block_quote> <bold>2. Confessions and Incriminating Statements —</bold> <bold>knowing waiver of rights — borderline IQ — Spanish</bold> <bold>only speaker</bold> <block_quote> The trial court's unchallenged findings of fact support its conclusion of a knowing waiver of rights by a defendant with borderline or low average intellectual function who spoke only Spanish.</block_quote> <bold>3. Criminal Law — motion for mistrial —</bold> <bold>jailhouse statement produced during trial</bold> <block_quote> The trial court did not abuse its discretion by denying defendant's motion for a mistrial after a prisoner came forward during the trial to report a jailhouse conversation with defendant. There was no argument that the State violated discovery procedures, only that the statement contradicted defense counsel's opening statement. While the prisoner's statement was materially adverse to defendant's case, it did not cause substantial and irreparable prejudice.</block_quote>

<bold>1. Appeal and Error — preservation of issues</bold> <bold>— psychologist-patient privilege — failure to</bold> <bold>object on basis of privilege — waiver</bold> <block_quote> Although respondent mother contends the trial court violated her psychologist-patient privilege in a child neglect case by considering evidence in the form of a letter and testimony of a psychologist, she failed to preserve this question for appellate review, because: (1) although respondent objected to various statements that the psychologist made during the hearing and to admission of the letter from the psychologist to respondent mother's social worker, she did not object on the basis of privilege but instead based on hearsay and expert qualifications; (2) respondent's failure to object to the psychologist's testimony on the basis of privilege amounted to a waiver of her right to claim the psychologist-client privilege on appeal; (3) the psychologist-patient privilege does not operate to exclude evidence regarding the abuse or neglect of a child; and (4) N.C.G.S. § <cross_reference>8-53.3</cross_reference> permits the trial judge to compel disclosure of otherwise privileged information if in his or her opinion disclosure is necessary to a proper administration of justice.</block_quote> <bold>2. Child Abuse and Neglect — neglect —</bold> <bold>sufficiency of evidence</bold> <block_quote> The trial court did not err by adjudicating a minor child as neglected, because: (1) although respondent mother assigned error to the adjudication order's first finding of fact, her brief failed to contain any argument challenging the first finding of fact which is thus deemed abandoned under N.C. R. App. P. 28(a); (2) as for the remaining assignments of error in the adjudication order, a single assignment of error generally challenging the sufficiency of evidence to support numerous findings of fact is broadside and ineffective; and (3) respondent's struggles with her parenting skills, domestic violence, and anger management, as well as her unstable housing situation, have the potential to significantly impact her ability to provide proper care, supervision, or discipline for the minor child.</block_quote><page_number>Page 323</page_number> <bold>3. Child Abuse and Neglect — dependency —</bold> <bold>sufficiency of evidence — alternative child care</bold> <bold>arrangement</bold> <block_quote> The trial court erred in a child abuse case by adjudicating the minor child as dependent, and the case is remanded for further findings as to whether the mother lacks an appropriate alternative child care arrangement for the child, where the mother had voluntarily placed the child with an aunt. N.C.G.S. § <cross_reference>7B-101</cross_reference>(9).</block_quote>

<bold>1. Indecent Liberties — two incidents of touching</bold> <bold>in one night — one act</bold> <block_quote> Two incidents of touching in one night should have resulted in one indecent liberties conviction, not two, and defendant's motion to dismiss one of the cases should have been granted. The sole act was the touching, there was no temporal gap between the two incidents, and the two incidents combined for the purpose of arousing defendant's sexual desire.</block_quote> <bold>2. Constitutional Law — effective assistance of</bold> <bold>counsel — supporting opening argument</bold> <block_quote> There was no merit to defendant's argument that he was denied the effective assistance of counsel in that his attorney did not support his opening argument with evidence that he was voluntarily intoxicated. Defense counsel provided testimony that defendant drank beer and liquor, took Ecstasy, and was otherwise intoxicated on the night of the crime; there was other evidence that defendant had a prior conviction for possession of cocaine; and the trial court instructed the jury on the defense of voluntary intoxication.</block_quote> <bold>3. Evidence — hearsay — statement against</bold> <bold>interest</bold> <block_quote> A hearsay statement from an indecent liberties defendant to the mother of the child that he would "be guilty" in court was admissible under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 801(d)(A) as a statement against interest.</block_quote>

<bold>Public Officers and Employees — rehiring after</bold> <bold>reduction in force — priority — years of</bold> <bold>service</bold> <block_quote> A state employee with more than ten years of general service with the State who was subjected to a reduction in force did not have a priority under N.C.G.S. § <cross_reference>126-7.1</cross_reference>(c2) over another employee who had also been reduced in force with approximately four years of state service. The trial erroneously held that the statutory phrase "in the same or related position classification" applies to employees with less than ten years of service but not to employees with more than ten years of service.</block_quote>

<bold>1. Discovery — criminal — statutory only</bold> <bold>— interviewing prosecution witnesses — not</bold> <bold>included in statute</bold> <block_quote> A detective was not required to submit to an interview with defense counsel against his wishes before trial. Pretrial discovery is statutory rather than a constitutional or common law right, and the General Assembly has not included the right to interview the State's witnesses in a criminal trial in the discovery statute. N.C.G.S. § <cross_reference>15A-903</cross_reference>(a)(1).</block_quote> <bold>2. Evidence — hearsay exception — plan for</bold> <bold>future act — murder victim's statement</bold> <block_quote> A murder victim's statement of his plans for the night on which he was killed was admissible pursuant to the hearsay exception in N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(3), as a then-existing plan to engage in a future act.</block_quote> <bold>3. Search and Seizure — probable cause to search</bold> <bold>residence — binding findings</bold> <block_quote> The trial court correctly determined that probable cause existed to search a murder defendant's residence where there were unchallenged findings that it was reasonable to conclude that a crime had been committed, that defendant was involved, and that his residence might contain items missing from the victim's car and the weapon used in the crime.</block_quote> <bold>4. Evidence — testimony that cellular phone images</bold> <bold>existed — no details — no prejudice</bold> <block_quote> There was no prejudice in a prosecution for first-degree murder and other crimes in admitting testimony that defendant had a cellular telephone with stored photos. No evidence was presented about the contents of the images (guns), the jury did not see the images, and presuming the telephone was improperly seized, defendant failed to show that a different result would likely have been reached if that evidence had been excluded.</block_quote><page_number>Page 396</page_number> <bold>5. Appeal and Error — preservation of issues</bold> <bold>— evidence previously admitted without objection</bold> <block_quote> The benefit of an objection is lost if the evidence has previously been admitted without objection. Defendant here failed to preserve his objection for appellate review where he did not object when the prior written statements were offered or admitted, but did object when the State sought to publish the statements to the jury. The court properly gave a limiting instruction.</block_quote> <bold>6. Discovery — school records of witness —</bold> <bold>reviewed in camera — not discoverable</bold> <block_quote> The school records of a tenth grader (an accomplice to first-degree kidnapping and murder) who testified in defendant's trial pursuant to a plea agreement were reviewed in camera on appeal and held to contain no information favorable and material to defendant's guilt and punishment, nor any evidence adversely affecting the witness's credibility. Therefore, the trial court properly denied defendant's motion to be allowed to review those records for impeachment purposes.</block_quote> <bold>7. Evidence — autopsy photographs —</bold> <bold>illustrations of victim's wounds</bold> <block_quote> There was no abuse of discretion in admitting autopsy photographs of a murder victim where a forensic pathologist testified that each photograph depicted a distinct aspect of the victim's wounds and would provide the jury with a helpful illustration of the wounds.</block_quote> <bold>8. Evidence — pathologist's opinion — time</bold> <bold>required for death</bold> <block_quote> An expert forensic pathologist's testimony about the time a victim's death from his wounds would have required had he not drowned was within the witness's area of expertise and was relevant and appropriate to show the number and severity of the wounds. The trial court did not abuse its discretion by admitting it.</block_quote> <bold>9. Witnesses — last-minute — not abuse of</bold> <bold>discretion</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder prosecution by admitting testimony from a "surprise witness," a telephone company manager who retrieved text messages between the victim's telephone number and one assigned to defendant.</block_quote><page_number>Page 397</page_number> <bold>10. Evidence — transcript of text messages —</bold> <bold>authentication — confrontation issue not preserved</bold> <block_quote> The trial court did not abuse its discretion by admitting into evidence transcripts of text messages. There was testimony sufficient to authenticate the exhibits; moreover, defendant both failed to cite on appeal any authority to support the argument that his right to confront witnesses was denied and did not object at trial on constitutional grounds.</block_quote> <bold>11. Constitutional Law — cruel and unusual</bold> <bold>punishment — life sentence for sixteen-year-old</bold> <block_quote> The argument that a life sentence without parole for a sixteen-year-old defendant was cruel and unusual was not raised at trial and was not preserved. Even so, defendant did not show that his sentence violated his constitutional rights.</block_quote> <bold>12. Appeal and Error — presentation of issues</bold> <bold>— assignments of error — insufficient</bold> <block_quote> Assignments of error were deemed abandoned where defendant merely recited the standards of review and stated that he chose not to elaborate other than to state the argument and cite authorities for the court's review.</block_quote>

<bold>1. Attorneys — malpractice — embezzlement of client</bold> <bold>funds</bold> <block_quote> A whole record test revealed that the trial court did not err by concluding the State Bar Disciplinary Hearing Commission's (DHC) findings of fact were competent to support its conclusions that defendant attorney violated the Rules of Professional Conduct based on mismanagement of a client's settlement money in defendant's trust account, because: (1) the State Bar does not need to show that defendant intentionally used the property entrusted to him for his own purposes, but instead it is sufficient to show that defendant fraudulently or knowingly and willfully misapplied the property for purposes other than those for which he received it as agent or fiduciary; (2) the State Bar put on substantial evidence that defendant knowingly and willfully misapplied his client's settlement money for other purposes; and (3) a charge of embezzlement constitutes conduct involving dishonesty in violation of N.C. Admin. Code tit. 27, r. 2.8, Rule 8.4 which warrants discipline.</block_quote> <bold>2. Attorneys — malpractice — incompetent</bold> <bold>representation of a client — sharing legal fees with</bold> <bold>a nonlawyer — failing to properly supervise —</bold> <bold>willfully mismanaging client funds</bold> <block_quote> A whole record test revealed that the trial court did not err by concluding the State Bar Disciplinary Hearing Commission's (DHC) findings of fact were competent to support its conclusions that defendant attorney violated the Rules of Professional Conduct based on incompetent representation of a client in a domestic relations case, sharing legal fees with a nonlawyer, failing to properly supervise a nonlawyer, and willfully mismanaging client funds entrusted to him in a fiduciary capacity.</block_quote> <bold>3. Attorneys — malpractice — sanctions —</bold> <bold>disbarment</bold> <block_quote> The State Bar Disciplinary Hearing Commission (DHC) did not err by disbarring defendant attorney based on violations of multiple Rules of Professional Conduct, because: (1) neither of DHC's errant findings of aggravation regarding indifference to making restitution and untimeliness, without the necessary finding<page_number>Page 433</page_number> of bad faith and intentional failure to comply, diminished the other six appropriate aggravating factors where each of those were sufficient in and of themselves to warrant an escalated sanction; (2) even if the Court of Appeals agreed that DHC could have found the mitigating factors that defendant suffered from personal or emotional problems or physical or mental disability of impairment based on his evidence of panic attacks and stress, it cannot be said that DHC's potential error in not doing so amounted to an abuse of discretion; (3) the presence or absence of aggravating and mitigating factors is only one part of the evaluation of whether DHC's decision to disbar defendant was rationally based on the evidence especially given the fact that these factors are not associated with a particular type of sanction; (4) defendant has been adjudicated responsible for violating eight rules of Professional Conduct, including a criminal act that tarnished his honesty, trustworthiness, or fitness as a lawyer; and (5) defendant's violations covered a varied range of activities over a period of nearly four years, and his disbarment had a rational basis in the evidence.</block_quote> <bold>4. Attorneys — malpractice — disbarment</bold> <bold>— denial of motion for new trial — abuse of</bold> <bold>discretion standard</bold> <block_quote> The State Bar Disciplinary Hearing Commission did not abuse its discretion by denying defendant attorney's motion for a new trial even though one of the DHC panel members failed to recuse herself on her own motion after learning that an attorney from the Attorney General's office, where she also worked, had prepared an affidavit for one of the prosecuting witnesses, and after hearing evidence concerning the Attorney General's investigation of a convicted felon who worked on postconviction cases with defendant, because nothing in the record indicated that the panel member was unable to render a fair and impartial decision on defendant's interactions with his clients.</block_quote>

<bold>Costs — expert witness fees — negligence</bold> <bold>action</bold> <block_quote> The trial court did not abuse its discretion in a medical malpractice case by denying defendants' motion to tax expert witness fees against plaintiffs after a jury verdict was returned in favor of defendants because: (1) the General Statutes do not always require expert witness fees to be awarded to a prevailing party in a negligence action; (2) negligence cases are not listed among the types of actions in which costs must be awarded to a prevailing party under either N.C.G.S. § <cross_reference>6-18</cross_reference> or § <cross_reference>6-19</cross_reference>, and thus the trial court's ruling is governed by N.C.G.S. § <cross_reference>6-20</cross_reference> where costs are in the discretion of the court; (3) with regard to expert witness fees that are related to the judgment entered in defendants' favor, although such expert witness fees were recoverable as a cost under N.C.G.S. §§ <cross_reference>7A-305</cross_reference>(1) and <cross_reference>7A-314</cross_reference>(d), these claims were in the discretion of the trial court under N.C.G.S. § <cross_reference>6-20</cross_reference> and defendants have not alleged an abuse of discretion; and (4) with regard to expert witness fees that are not related to the judgment entered in defendants' favor, the trial court has no discretion to award this expense as a cost when N.C.G.S. § <cross_reference>6-1</cross_reference> only permits costs to be awarded to the party for whom judgment was given.</block_quote> <block_quote> Judge HUDSON concurs in result only.</block_quote><page_number>Page 520</page_number>

<bold>1. Appeal and Error — appealability —</bold> <bold>interlocutory order — summary judgment —</bold> <bold>substantial right — title to disputed property</bold> <block_quote> Although plaintiff prospective purchasers' appeal from the denial of their motion for summary judgment and grant of summary judgment in favor of defendant purchaser is an appeal from an interlocutory order based on the fact that defendant vendor elected not to participate in this appeal and the trial court did not certify the appeal under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 54(b), interlocutory orders concerning title may be immediately appealed as vital preliminary issues involving substantial rights adversely affected. Also, defendant vendor stipulated that title to the disputed property rests in either plaintiffs or defendant purchaser and its liability, if any, cannot be determined until a final decision is entered on appeal.</block_quote> <bold>2. Real Property — breach of installment land</bold> <bold>contract — superior title to disputed property</bold> <block_quote> The trial court erred in a breach of contract case by denying plaintiffs' motion for summary judgment and by granting summary judgment in favor of defendant purchaser regarding superior title to disputed property, because: (1) the installment land contract entered into by defendant vendor and plaintiffs qualifies for protection from any subsequent purchaser for value under N.C.G.S. § <cross_reference>47-18</cross_reference>; (2) plaintiffs' contract with defendant vendor entitled them to a good and sufficient deed effective upon payment in full of the purchase price; (3) defendant vendor admits after receiving the final payment from plaintiffs that the deed was never delivered to plaintiffs; (4) all parties stipulated that the contract was recorded in the county register of deeds on 8 November 1991, and also stipulated that defendant vendor conveyed the disputed property to defendant purchaser by deed eleven years later with defendant purchaser recording the deed on 3 January 2003; (5) plaintiffs possessed superior rights to the land since their contract was recorded prior to recordation by defendant purchaser; and (6) defendant purchaser is deemed<page_number>Page 553</page_number> under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 36, by virtue of his failure to respond to plaintiffs' request for admissions, to have admitted he not only had both actual and constructive knowledge of plaintiffs' recorded bond for title, but also took title to the land subject to plaintiffs' recorded bond for title.</block_quote>

<bold>Crimes, Other — safecracking — locked desk</bold> <bold>not a safe</bold> <block_quote> A "safe" or "vault" must be something more substantial than a common locked desk compartment for a conviction under the safecracking statute, N.C.G.S. § <cross_reference>14-89.1</cross_reference>. Defendant's motion to dismiss should have been granted.</block_quote>

<bold>1. Aiding and Abetting — instructions —</bold> <bold>"somehow" contributing to crime — burden of proof</bold> <block_quote> A clarifying instruction that the State must prove that an aider and abettor "somehow" contributed to the victim's death did not lessen the State's burden of proof. The instruction is supported by case law, and, taken as a whole, properly set out the elements of the crime and did not reduce the State's burden of proof.</block_quote> <bold>2. Homicide — first-degree murder — aiding and</bold> <bold>abetting — short form indictment</bold> <block_quote> A short form indictment properly apprised defendant of the charge of first-degree murder based on aiding and abetting. Short form indictments have been held again and again to be sufficient to charge first degree murder on the basis of any theory set forth in N.C.G.S. § <cross_reference>14-17</cross_reference>, and a defendant must be prepared to defend any and all legal theories supported by the facts when the facts are sufficiently pled. A bill of particulars may be requested to supplement the facts in the indictment, but this defendant did not do so.</block_quote><page_number>Page 690</page_number> <block_quote> <bold>3. Homicide — aiding and abetting first degree</bold> <bold>murder — no variance between indictment and trial</bold></block_quote> <block_quote> There was no fatal variance between the allegations in the indictment and the evidence at trial in a first-degree murder prosecution. The State is not required to declare any specific theory for first degree murder prior to trial; the State's evidence here, regardless of the theory, supports the indictment.</block_quote> <bold>4. Evidence — hearsay — statement offered to</bold> <bold>show effect on defendant — not offered for truth of the</bold> <bold>matter</bold> <block_quote> A statement repeated in a prosecution for aiding and abetting a first-degree murder was not hearsay because it was not offered for the truth of the matter, but to show the effect it had on defendant regardless of its truth.</block_quote> <bold>5. Homicide — first-degree murder — short</bold> <bold>form indictment — aiding and abetting</bold> <block_quote> A short form indictment was sufficient to charge aiding and abetting first-degree murder. The North Carolina Supreme Court has repeatedly held such indictments sufficient, regardless of the theory under which the State proceeds.</block_quote>

<bold>1. Appeal and Error — notice of appeal —</bold> <bold>untimely</bold> <block_quote> The failure to timely file a notice of appeal meant that a portion of an appeal (by the propounder of a will) was not properly before the Court of Appeals.</block_quote> <bold>2. Appeal and Error — presentation of issues —</bold> <bold>failure to cite authority — argument not properly before</bold> <bold>appellate court</bold> <block_quote> An argument by the caveator of a will was not properly before the Court of Appeals where no authority was cited.</block_quote><page_number>Page 705</page_number> <bold>3. Wills — caveat — trifurcated proceeding</bold> <bold>— not an abuse of discretion</bold> <block_quote> The trial court did not abuse its discretion by trifurcating a caveat proceeding involving multiple wills (1995 and 2002), and it was not manifestly unreasonable to try the 1995 will first. Submission to the jury of the 1995 will referring to the last will and testament of the deceased was not an error.</block_quote> <bold>4. Wills — caveat — missing will —</bold> <bold>evidence that destruction not by testator —</bold> <bold>sufficiency</bold> <block_quote> The caveators in a case with multiple wills presented a genuine issue of fact that should have gone to the jury. Viewing the evidence in the light most favorable to the caveators, they presented evidence that the loss or destruction of the subsequent will was not due to action by the testator.</block_quote>

<bold>Open Meetings — mediation between city and county</bold> <bold>— one representative of each — not an official</bold> <bold>meeting</bold> <block_quote> A mediation between the City of Asheville and Buncombe County was not an official meeting within the Open Meetings law because it was attended by only one representative from each entity rather than a majority. Furthermore, the mediation was not held to evade the spirit or purpose of the Open Meetings Law. N.C.G.S. § <cross_reference>143-318.10</cross_reference>(d).</block_quote>

<bold>1. Drugs — positive urine test —</bold> <bold>corroborating evidence required — insufficient evidence of</bold> <bold>marijuana possession</bold> <block_quote> A positive urine test, without more, does not satisfy the intent or knowledge requirement inherent in the statutory definition of possession. Here, the State presented no corroborating evidence of marijuana possession.</block_quote> <bold>2. Drugs — cocaine — positive urine test</bold> <bold>— corroborating evidence</bold> <block_quote> There was sufficient evidence to support a conviction for the possession of cocaine where a positive urine test gave rise to the inference that defendant used cocaine and testimony from a witness who saw defendant snort cocaine provided corroborating evidence.</block_quote>

<bold>Child Abuse and Neglect — standard of proof —</bold> <bold>prior orders involving sibling — insufficiency</bold> <block_quote> Allegations in a petition alleging child abuse, neglect or dependency shall be proven by clear and convincing evidence. The trial court here could not conclude that the child would be at<page_number>Page 728</page_number> substantial risk of neglect in the custody of the parents because it considered only prior orders concerning a sibling, and the only order concerning the sibling that contained findings by the clear and convincing standard of proof was from a hearing many months earlier.</block_quote>

<bold>1. Child Abuse and Neglect — bodily injury versus</bold> <bold>physical injury — sentence not supported by</bold> <bold>instructions</bold> <block_quote> It was error to sentence defendant for felonious child abuse inflicting serious bodily injury where the jury was only instructed on the lesser offense of felony child abuse inflicting serious physical injury. N.C.G.S. §§ 14318.4(a), (a3).</block_quote> <bold>2. Child Abuse or Neglect — subject matter</bold> <bold>jurisdiction — allegation that defendant a parent or</bold> <bold>caregiver</bold> <block_quote> The trial court failed to gain subject matter jurisdiction, and a conviction for felonious child abuse was vacated, where the indictment did not allege the essential element that defendant was a parent or other person providing care or supervision to a child.</block_quote> <bold>3. Child Abuse and Neglect — child abuse —</bold> <bold>flawed indictment — lesser offense of misdemeanor</bold> <bold>assault</bold> <block_quote> A flawed indictment and verdict for felonious child abuse supported the lesser offense of misdemeanor assault.</block_quote><page_number>Page 733</page_number>