Volume 179 — North Carolina Court of Appeals Reports

<bold>1. Obscenity — disseminating harmful materials to</bold> <bold>minors — disseminating obscenity to a minor under the age</bold> <bold>of sixteen years — motion to dismiss — sufficiency</bold> <bold>of evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss charges occurring between 5 September and 7 September 2003 including two counts of disseminating harmful materials to minors and one count of disseminating obscenity to a minor under the age of sixteen years because: (1) there was sufficient evidence that defendant provided obscene and harmful materials to three minors on the dates charged to carry those charges to the jury; (2) although defendant offered evidence tending to show that he was not in town on those dates, he inaccurately characterizes his evidence as uncontradicted when the State offered evidence from the minors themselves that defendant provided pornography to them on each occasion that they visited defendant's home including these September dates, and defendant's evidence merely raised a credibility issue which was for the jury to resolve; and (3) although defendant contends that it was inconsistent for the jury to find him not guilty of providing alcohol to the boys on the September dates in question while finding him guilty of providing those same boys with obscene and harmful materials on the same dates, defendant abandoned his<page_number>Page 2</page_number> argument under N.C. R. App. P. 28(b)(6) by failing to cite authority for his position. N.C.G.S. §§ <cross_reference>14-190.7</cross_reference>, <cross_reference>14-190.15</cross_reference>.</block_quote> <bold>2. Sexual Offenses — crime against nature —</bold> <bold>taking or attempting to take indecent liberties with a minor</bold> <bold>— engaging in a sexual act with a thirteen-year-old</bold> <bold>— disseminating obscenity to a minor — motion to</bold> <bold>dismiss — sufficiency of evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charges of crime against nature, two counts of taking or attempting to take indecent liberties with a minor, one count of engaging in a sexual act with a thirteen-year-old, and disseminating obscenity to a minor even though defendant contends the jury was originally deadlocked and apparently did not believe the evidence of defendant's abuse of the pertinent victim, because: (1) the mere fact that defendant refuted the victim's testimony did not require the trial court to dismiss the charges; and (2) the testimony of the victim and his corroborating witnesses constituted sufficient evidence to send the charges to the jury.</block_quote> <bold>3. Sexual Offenses — engaging in a sexual act with a</bold> <bold>person of the age of fifteen years — taking or attempting</bold> <bold>to take indecent liberties with a child — crime against</bold> <bold>nature — motion to dismiss — sufficiency of</bold> <bold>evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charges of engaging in a sexual act with a person of the age of fifteen years, taking or attempting to take indecent liberties with a child, and crime against nature even though defendant contends the victim's testimony was fanciful and unreasonable to the reasonable mind, because: (1) the victim's testimony was graphic, detailed, and corroborated not only by a detective, but also by the recorded conversation between the victim and defendant on 3 October 2003; and (2) while reasonable minds might struggle to comprehend the reality of the victim's account of molestation he endured, he did not describe such an inherently incredible event that the State's evidence on these charges was rendered too immaterial for jury consideration.</block_quote> <bold>4. Evidence — sexual material — rubber vagina</bold> <bold>— impeachment</bold> <block_quote> The trial court did not err in an indecent liberties with a child, multiple disseminating obscene materials to minors, multiple disseminating harmful material to minors, engaging in a sexual act with a person of the age of fifteen years, crime against nature,<page_number>Page 3</page_number> possession with intent to sell or deliver marijuana, and maintaining a dwelling to keep controlled substances case by admitting into evidence sexual material including a rubber vagina that defendant contends was wrongfully seized, because: (1) contrary to defendant's assertions, the trial court ruled that the State would be allowed to introduce into evidence marijuana, drug paraphernalia, and a rubber vagina following a hearing outside the presence of the jury on defendant's motion to suppress all evidence seized by police from his home pursuant to two search warrants; (2) the court allowed defendant's motion to suppress evidence gathered pursuant to a separate search warrant that described the items to be seized merely as obscene sexual material, thereby preventing the State from introducing the pornographic magazines, videotapes, and DVDs that were taken under that warrant; (3) the prosecution was allowed to cross-examine defendant about the rubber vagina for impeachment purposes, and defendant failed to demonstrate any abuse of discretion; (4) this argument is subject to dismissal based on defendant's failure to support his argument with appropriate authority, and even if defendant's bare citation to a case for the definition of prejudicial error is sufficient, the rubber vagina was discovered by police pursuant to a lawful search warrant for controlled substances and drug paraphernalia; and (5) defendant authenticated the rubber vagina as an item belonging to him and located in the night-stand in a bedroom of his house.</block_quote> <bold>5. Jury — juror misconduct — denial of motion</bold> <bold>for mistrial — independent investigation of defendant's</bold> <bold>premises and subsequent communication to other jurors about</bold> <bold>observations</bold> <block_quote> The Court of Appeals exercised its discretionary authority under Rule 2 despite the multiple violations of N.C. R. App. P. 28(b)(6) and determined that the trial court did not err in an indecent liberties with a child, multiple disseminating obscene materials to minors, multiple disseminating harmful material to minors, engaging in a sexual act with a person of the age of fifteen years, crime against nature, possession with intent to sell or deliver marijuana, and maintaining a dwelling to keep controlled substances case by failing to declare a mistrial on all charges when it discovered that a juror violated the trial court's instructions, because: (1) defendant did not object to the court's decision to accept the fifteen unanimous verdicts, made no motion for mistrial or other court action as to those verdicts, and has not<page_number>Page 4</page_number> alleged plain error; (2) even if the issue were properly before the Court of Appeals, there was no abuse of discretion in the trial court's failure to declare a mistrial on its own motion nor was defendant prejudiced as a result of the juror misconduct at issue; (3) nothing in the juror's independent investigation of defendant's premises and her subsequent communication to the other jurors about her observations established that the jury's prior verdicts were rendered with any partiality or prejudice; (4) the facts of the juror misconduct as it temporally occurred lend further support to the trial court's ruling when there was no opportunity for misconduct to occur regarding the fifteen unanimous verdicts when the verdicts were already reached prior to the juror reporting her observations of defendant's premises to the other jurors; (5) defendant failed to show the jurors were anything other than impartial and unbiased when deliberating the fifteen charges on which they unanimously agreed; and (6) given the undisputed testimony of the jury foreperson that the jury did not revisit the unanimous verdicts that had already been reached before the juror disclosed her visit to defendant's pawn shop, and in light of the trial judge's polling of the jury on each verdict separately, the trial court rightfully accepted all fifteen verdicts.</block_quote> <bold>6. Appeal and Error — preservation of issues —</bold> <bold>sentencing within presumptive range — failure to file</bold> <bold>writ of certiorari</bold> <block_quote> Although defendant contends the trial court erred by failing to sentence defendant in the mitigating range when he presented evidence of mitigating factors and the State offered no evidence of aggravating factors, this assignment of error is not properly before the Court of Appeals, because: (1) defendant was sentenced within the presumptive range and thus he has no statutory right to appeal his sentence; and (2) defendant has not filed a petition for writ of certiorari seeking review of this issue.</block_quote> <bold>7. Constitutional Law — effective assistance of</bold> <bold>counsel — failure to object to joinder — failure to</bold> <bold>move for mistrial based on juror misconduct</bold> <block_quote> Defendant did not receive ineffective assistance of counsel based on defense counsel's failure to object to the State's motion for joinder, failure to move for a mistrial when juror misconduct was discovered, and failure to object to proceeding with the trial on grounds that the police and the State failed to turn over exculpatory tapes with numerous statements from witnesses that provided defendant's alleged innocence, because: (1) the charges in<page_number>Page 5</page_number> this case could be joined for trial under N.C.G.S. § <cross_reference>15A-926</cross_reference>(a) based on the same act or transaction or a series of acts or transactions connected together or constituting parts of a single scheme or plan; (2) public policy strongly favors consolidation to expedite the administration of justice; (3) in regard to juror misconduct, nothing in the juror's independent investigation of defendant's premises and her subsequent communication to the other jurors about her observations established that the jury's prior verdicts were rendered with any partiality or prejudice; (4) defendant failed to cite support for his argument regarding the tapes; and (5) defendant has not demonstrated that his trial attorney made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment or that his deficiencies were so serious as to deprive defendant of a fair trial.</block_quote>

<bold>1. Railroads — charter — reference in deed</bold> <bold>— property rights conveyed</bold> <block_quote> Sections of a railroad charter which were referred to and incorporated into an 1856 deed to the railroad were properly considered by the trial court as evidence of what property rights the grantor intended to convey to the railroad.</block_quote> <bold>2. Deeds — railroad right-of-way — fee</bold> <bold>simple</bold> <block_quote> An 1856 deed that granted a railroad a "right of way" in, over and upon land granted a fee simple rather than an easement where the deed also stated that "the part and parcels of said land herein granted, with the right of way thereon," would be ascertained by the engineer of the railroad in compliance with its charter, and the habendum clause stated "To have and to hold, all and singular the aforesaid lands, rights and privileges" to said railroad "and its successors forever."</block_quote> <bold>3. Deeds; Railroads — deed — so long as</bold> <bold>— fee simple determinable</bold> <block_quote> A section of a railroad charter providing that "the lands or right of way so valued by said commissioners, shall vest in said company so long as the same shall be used for the purposes of said railroad," which was incorporated into the granting clause of an 1856 deed to the railroad, created a fee simple determinable with the grantor retaining a possibility of reverter.</block_quote> <bold>4. Real Property — fee simple determinable —</bold> <bold>possibility of reverter — extinguishment under Real</bold> <bold>Property Marketable Act</bold> <block_quote> The Real Property Marketable Title Act exception under N.C.G.S. § <cross_reference>47B-3</cross_reference>(6) for rights-of-way held by railroad companies did not extend to property interests of landowners adjacent to a railroad's right-of-way who held a possibility of reverter in the right-of-way, and the possibility of reverter was extinguished by<page_number>Page 89</page_number> the Act when the landowners failed to file notice of their property interests prior to 1 October 1976.</block_quote>

<bold>1. Contracts — breach — vesting of profit</bold> <bold>sharing rights</bold> <block_quote> The trial court did not err in a breach of contract case by concluding there was no genuine issue of material fact as to the date that plaintiff's profit sharing rights vested, because: (1) the profit sharing rights vested three years subsequent to the associate becoming affiliated with the pertinent realty company, plaintiff's own affidavit states she formally affiliated herself with the realty company on 10 November 2000 which was her official start date, and plaintiff's relationship with the realty company was terminated on 5 November 2003; and (2) the undisputed evidence established that the 5% interest was scheduled to vest on the same date as the profit sharing rights.</block_quote> <bold>2. Contracts — breach — summary judgment —</bold> <bold>individual liability</bold> <block_quote> The trial court did not err in a breach of contract case by concluding that defendants were entitled to judgment as a matter of law regarding whether defendant realtor could be held individually liable, because: (1) plaintiffs did not allege any facts to support a claim of tortious conduct by defendant realtor; and (2) at the summary stage, plaintiffs cannot rely on the allegations of their complaint, but need to present specific facts to support their claim.</block_quote><page_number>Page 105</page_number> <bold>3. Contracts — breach — consideration</bold> <block_quote> The trial court did not err in a breach of contract case by granting summary judgment in favor of defendants under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 56(c) even though plaintiffs contend they established the essential elements of their claim for breach of an implied promise not to wrongfully frustrate the vesting of the 5% ownership interest, because: (1) although plaintiff realtor's contribution of her time and knowledge as a real estate entrepreneur could constitute valid consideration, plaintiff had already performed the start-up services at the time the pertinent addendum to the independent contractor agreement was executed, and past services cannot constitute legal consideration to support the transfer of the ownership interest; (2) plaintiff was under a continuing obligation to utilize her expertise and knowledge of the real estate market for the benefit of the realty company based on the independent contractor agreement; and (3) plaintiffs cannot establish valid consideration to support an agreement by defendants to transfer the 5% ownership interest.</block_quote> <bold>4. Fiduciary Relationship — breach of fiduciary duty</bold> <bold>— assignment of membership interest</bold> <block_quote> The trial court did not err by concluding that plaintiffs did not establish all of the elements for the claim of breach of fiduciary duty, because: (1) plaintiff realtor did not become a member of the company, but was granted only the potential right to receive 5% of distributions otherwise allocated to defendant realtor; (2) an assignment of a membership interest does not dissolve a limited liability company or entitle the assignee to become or exercise any rights of a member; (3) an assignment entitles the assignee to receive, to the extent assigned, only the distributions and allocations to which the assignor would be entitled but for the assignment; (4) there is no other recognized relationship of trust or confidence that plaintiffs assert existed between plaintiff realtor and the company; and (5) plaintiffs' claim for constructive fraud must likewise fail as plaintiffs cannot establish a fiduciary relationship.</block_quote> <bold>5. Unfair Trade Practices — aggravating circumstances</bold> <bold>— commerce — profit sharing rights</bold> <block_quote> The trial court did not err by granting summary judgment in favor of defendants on the claim for unfair and deceptive trade practices, because: (1) plaintiffs set forth no facts to support the<page_number>Page 106</page_number> aggravating circumstances alleged in their complaint; (2) plaintiffs cannot establish that the conduct alleged affected commerce; and (3) plaintiffs present no evidence of how the dispute over plaintiff's profit sharing rights had an impact beyond the relationship between plaintiff realtor and defendant company.</block_quote>

<bold>1. Jurisdiction — subject matter —</bold> <bold>settlement agreements — oral settlement</bold> <block_quote> The trial court did not lack subject matter jurisdiction in an action seeking enforcement of a settlement entered into by petitioner and respondents, because: (1) contrary to petitioner's assertions, the order and judgment in Whitaker I did not address the administration, settlement, and distribution of estates of decedents under N.C.G.S. § <cross_reference>28A-2-1</cross_reference>, but instead involved petitioner's claims that respondents were not complying with the parties' prior settlement agreements arising out of a mediation which are matters within the superior court's subject matter jurisdiction; and (2) the superior court also had jurisdiction over petitioner's lawsuit relating to the memorandum, the amendment, and the trust agreement not resolved by the first trial court after the parties reached an oral settlement of those remaining issues with the judgment merely enforcing the settlement entered on the record.</block_quote> <bold>2. Appeal and Error — notice of appeal —</bold> <bold>general objection</bold> <block_quote> Although petitioner contends the trial court erred when it stated that petitioner's notice of appeal made only a general objection to the clerk's order, petitioner failed to demonstrate any harm from the trial court's observation, because: (1) despite its belief that petitioner's notice of appeal was inadequate because it constituted only a general objection, the trial court conducted a full review of the clerk's order; and (2) the notice of appeal did constitute only a general objection under N.C.G.S. § <cross_reference>1-301.3</cross_reference> when petitioner's appeal to the superior court did not refer specifically to any of the clerk's sixty-six findings of fact and constituted only a broadside attack on the findings of fact.</block_quote>

<bold>Child Abuse and Neglect — continuing custody with</bold> <bold>DSS — not an appealable final order</bold> <block_quote> A custody review order continuing custody of a child with DSS (with placement with the biological father sanctioned) was not an appealable final order as contemplated by N.C.G.S. § <cross_reference>7B-1001</cross_reference>, and the mother's appeal was dismissed.</block_quote> Judge LEVINSON concurring.

<bold>Venue — denial of motion for change —</bold> <bold>relation back rule for plaintiffs</bold> <block_quote> The trial court did not err by denying defendants' motion for change of venue from Wake County even though none of the original parties to the action were residents of Wake County, because: (1) plaintiffs filed an amended complaint adding plaintiffs as a matter of right prior to any responsive pleadings filed by defendants and alleged they were residents of Wake County; and (2) N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 15(c) allows the addition of plaintiffs in the amended complaint to relate back to the filing of the original complaint when the claims are virtually identical to the original plaintiffs' claims.</block_quote>

<bold>1. Appeal and Error — appealability —</bold> <bold>mootness</bold> <block_quote> Respondent mother's appeal from the trial court's adjudication of her newborn as neglected is not moot, because: (1) no termination of parental rights has been entered in the instant case, but instead there was only a change of guardianship and end to reunification efforts by DSS; and (2) respondent has not relinquished her parental rights.</block_quote> <bold>2. Child Abuse and Neglect — adjudication —</bold> <bold>time period</bold> <block_quote> The trial court did not err in a child neglect case by finding that the relevant time period for adjudication was from the birth of the child to the filing of the petition, because: (1) the purpose of the adjudication hearing is to adjudicate the existence or nonexistence of any of the conditions alleged in a petition; and (2) although post-petition evidence is admissible for consideration of the child's best interest in the dispositional hearing, it is not allowed for an adjudication of neglect.</block_quote> <bold>3. Child Abuse and Neglect — findings of fact</bold> <bold>— newborn living in home where another child seriously</bold> <bold>abused</bold> <block_quote> The trial court did not err in a child neglect case by its finding of fact that respondent mother's newborn was a child living in the home where another child was seriously abused, because: (1) the purpose of N.C.G.S. § <cross_reference>7B-101</cross_reference>(15) is to allow the trial court to consider the substantial risk of impairment to the remaining children when one child in a home has been subjected to abuse or neglect; and (2) a newborn still physically in residence in the hospital may properly be determined to live in the home of his or her parents for the purposes of considering under the statute whether a substantial risk of impairment exists to that child.</block_quote> <bold>4. Child Abuse and Neglect — conclusion of law</bold> <bold>— substantial risk of neglect</bold> <block_quote> The trial court did not err in a child neglect case by finding and concluding that respondent mother's newborn was at substantial risk of neglect, because the conclusion was supported by the findings that the newborn was a minor child living in a home where serious physical abuse had occurred to another child and<page_number>Page 606</page_number> that respondent had not taken steps to comply with the trial court's orders regarding the older siblings already adjudicated neglected and abused.</block_quote> <bold>5. Child Abuse and Neglect — conclusion of law</bold> <bold>— neglect</bold> <block_quote> The trial court did not err in a child neglect case by concluding that respondent mother's newborn was neglected, because: (1) the trial court made findings supported by clear and convincing evidence that the newborn was a minor child living in a home where serious physical abuse had occurred to another child, and that respondent had not taken steps to comply with the trial court's orders regarding the older siblings already adjudicated neglected and abused; and (2) despite respondent's consent after the child's birth to allow DSS to assume custody of the child, the findings support the conclusion that a substantial risk of impairment existed for the newborn.</block_quote>

<bold>1. Burglary and Unlawful Breaking or Entering —</bold> <bold>instruction on lesser included offense not given —</bold> <bold>elements of greater offense satisfied</bold> <block_quote> A first-degree burglary defendant was not entitled to an instruction on the lesser-included offense of misdemeanor breaking or entering where the State's evidence satisfied its burden of<page_number>Page 614</page_number> proof on each element of the greater offense, and no evidence was offered to negate those elements.</block_quote> <bold>2. Sentencing — result of rejecting plea bargain</bold> <bold>— reasonable inference not demonstrated</bold> <block_quote> The court's statements, taken as a whole, did not allow a reasonable inference that a first-degree burglary defendant's sentence was based on his refusal to plead guilty.</block_quote> <bold>3. Sentencing — prior record level —</bold> <bold>stipulation</bold> <block_quote> Defendant stipulated to his prior record level when his counsel stated during a pre-trial plea-bargain discussion that defendant was a Level IV, and the State confirmed that record level during sentencing without objection by defendant.</block_quote>

<bold>1. Civil Procedure — Rule 60 — not an</bold> <bold>alternative to appellate review</bold> <block_quote> Rule 60(b)(6) may not be used as an alternative to appellate review. The trial court here properly denied defendants' Rule 60 motion for relief where defendants had not perfected a prior appeal; they may not now seek a second bite at the apple through Rule 60.</block_quote> <bold>2. Contempt — settlement agreement — specific</bold> <bold>performance order</bold> <block_quote> The trial court did not err by finding defendants in contempt in an action arising from the settlement of a dispute from the construction and sale of a house. The court was not holding defendants in contempt for breach of the settlement agreement as defendants contended, but for failure to comply with an order of specific performance.</block_quote> <bold>3. Appeal and Error — preservation of issues —</bold> <bold>constitutional argument — failure to raise at trial</bold> <block_quote> A constitutional argument not raised at trial could not be raised on appeal.</block_quote><page_number>Page 636</page_number> <bold>4. Costs; Contempt — attorney fees — contempt</bold> <bold>proceeding — incorrectly allowed as sanction</bold> <block_quote> The trial court erred by awarding attorney fees in a civil contempt proceeding arising from a settlement agreement and an order of specific performance in a dispute over the construction of a house. There are no cases approving attorney fees in civil contempt proceedings that do not involve child support or equitable distribution, the court's orders do not refer to any contractual agreement authorizing attorney fees, and there is no statutory authority allowing the trial court to award attorney fees as a sanction in this case.</block_quote>

<bold>1. Administrative Law — judicial review — de</bold> <bold>novo</bold> <block_quote> The reviewing court engages in de novo review when an agency is alleged to have violated N.C.G.S. § <cross_reference>150B-51</cross_reference>(b)(1), (2), (3), or (4). In de novo review, the court considers the matter anew and freely substitutes its own judgment for the agency's.</block_quote><page_number>Page 698</page_number> <bold>2. Administrative Law — judicial review —</bold> <bold>whole record test</bold> <block_quote> A reviewing court applies the whole record test when an agency is alleged to have violated N.C.G.S. § <cross_reference>150B-51</cross_reference>(b)(5) or (6). Under this standard, the court examines the record for substantial evidence to justify the agency's decision and may not substitute its judgment for the agency's, even if a different result could have been reached reasonably.</block_quote> <bold>3. Administrative Law — reversal of agency decision</bold> <bold>— burden of proof</bold> <block_quote> The trial court did not err by concluding that the Environmental Management Commission (EMC) properly allocated the burden of proof to petitioner where petitioner was seeking to show a basis for reversing the agency decision imposing fines for underground storage tank violations, even if that burden requires that petitioner prove a negative.</block_quote> <bold>4. Appeal and Error — assignments of error —</bold> <bold>sufficiency of evidence to support findings —</bold> <bold>broadside</bold> <block_quote> A single assignment of error generally challenging the sufficiency of the evidence to support numerous findings of fact is broadside and not effective. Arguments in this case regarding the sufficiency of the evidence were not considered because none of the assignments of error addressed whether a specific finding was supported by competent evidence.</block_quote> <bold>5. Evidence — underground storage tanks —</bold> <bold>missing records of equipment and tests — admissibility to</bold> <bold>show that inspections not performed</bold> <block_quote> Petitioner's failure to provide DENR with records of the installation of required equipment and the performance of required tests on underground storage tanks was admissible as evidence that he did not perform the installation or the tests. Although petitioner argues that he was only required to keep the records for one year, he does not distinguish between violations for not maintaining the records and violations for not performing the inspections that would produce the records.</block_quote> <bold>6. Administrative Law — findings —</bold> <bold>sufficiency</bold> <block_quote> There were sufficient ultimate findings of fact to determine the issues presented by a contested case, although some findings were ultimate, some were evidentiary, and some a mix.</block_quote><page_number>Page 699</page_number> <bold>7. Environmental Law — underground storage tanks</bold> <bold>— permits</bold> <block_quote> DENR was not prevented from imposing fines on petitioner for lack of underground storage tank permits where petitioner contended that he was protected by N.C.G.S. § <cross_reference>150B-3</cross_reference>(a), which extends the expiration date for a permit. That statute protects only applicants who make a timely and sufficient application for issuance or renewal of a license, which petitioner did not do.</block_quote>

<bold>1. Evidence — psychologist's testimony —</bold> <bold>child's behavior — consistent with abuse victims</bold> <block_quote> There was no plain error in the admission of a psychologist's testimony that a child sexual abuse victim's behavior, sense of trust, and emotional problems were consistent with sexually abused children. The witness did not state that the offenses occurred, and did not proffer an opinion on credibility. Defendant did not show that a different outcome would have occurred without this testimony in light of the other evidence presented.</block_quote> <bold>2. Evidence — detective's testimony — nature</bold> <bold>of testimony by child sexual abuse victims — permissible</bold> <bold>lay testimony</bold> <block_quote> A detective's testimony that child sexual abuse victims do not tell exactly the same story every time constituted permissible lay testimony. His experience supports his testimony on the procedure he uses for questioning victims, and he offered no opinion on the credibility of the victim.</block_quote> <bold>3. Sexual Offenses — amendment of indictment —</bold> <bold>child victim — dates of offenses changed</bold> <block_quote> There was no error in allowing amendment of an indictment for sexual offenses against a child to change the dates of the alleged offenses. Time was not an essential element of the offenses charged, the amendment did not substantially alter the charges, and defendant had sufficient notice.</block_quote> <bold>4. Sexual Offenses — against child — evidence</bold> <bold>sufficient</bold> <block_quote> There was sufficient evidence of sexual assaults upon a thirteen-year-old child to withstand a motion to dismiss an indictment for statutory sexual offenses.</block_quote> <bold>5. Constitutional Law — unanimous verdict —</bold> <bold>sexual offenses against child — agreement on specific</bold> <bold>acts to support each verdict</bold> <block_quote> Defendant's constitutional right to a unanimous jury was not violated where he was charged with multiple sexual offenses against a child and argued that neither the instructions nor the verdict sheets required that the jury agree unanimously on the<page_number>Page 711</page_number> specific acts to support each verdict. The reasoning of <italic>State v. Lawrence</italic>, <cross_reference>360 N.C. 368</cross_reference>, may be imputed to sexual offense charges.</block_quote>

<bold>1. Constitutional Law — due process</bold> — <bold><italic>Brady</italic></bold><bold> decision — failure to conduct DNA</bold> <bold>test</bold> <block_quote> The State's failure to conduct a DNA test on hair found on a knit cap discovered at a murder scene did not violate defendant's federal due process rights under <italic>Brady v.</italic> <italic>Maryland</italic>, <cross_reference>373 U.S. 83</cross_reference> (1963). The trial court gave defendant access to the State's physical evidence, including the knit cap, and defendant obtained a DNA analysis on a hair from the knit cap and presented the results at trial.</block_quote> <bold>2. Criminal Law — discovery — performance of</bold> <bold>DNA test</bold> <block_quote> The discovery statute that required the State to disclose, upon request by defendant, test results and the procedures utilized to reach those results, N.C.G.S. § <cross_reference>15A-903</cross_reference>(e), did not compel the State to perform a DNA test on hair found on a knit cap discovered at a murder scene.</block_quote> <bold>3. Search and Seizure — nontestimonial</bold> <bold>identification order — motion by defendant — DNA</bold> <bold>test of another</bold> <block_quote> The trial court had no authority to grant defendant's motion for a nontestimonial identification order requiring the State to test the DNA of another individual in order to show that a murder was committed by that individual rather than by defendant. N.C.G.S. § <cross_reference>15A-281</cross_reference>.</block_quote> <bold>4. Evidence — guilt of another defense —</bold> <bold>relevancy — failure to make offer of proof</bold> <block_quote> The trial court did not err in a second-degree murder case by prohibiting defendant from cross-examining a witness as to whether he would submit a DNA sample for comparison with a knit cap found at the crime scene, because: (1) N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 401 provides that evidence of the guilt of another must point directly to the guilt of another specific party and must tend both to implicate that other party and be inconsistent with the guilt of defendant; (2) evidence which does no more than create an inference or conjecture as to another's guilt is inadmissible; (3) defendant made no offer of proof as to what the witness's answer to<page_number>Page 734</page_number> this question would have been; (4) even assuming arguendo that the witness would have answered this question in the negative, such an answer would not point directly to his guilt, nor would it be inconsistent with defendant's guilt when conflicting evidence was presented at trial as to whether the perpetrator of the assault was wearing a hat; and (5) defendant failed to raise at trial the constitutional issue of the right to present a complete defense, and it will not be addressed for the first time on appeal.</block_quote> <bold>5. Evidence — hearsay — residual hearsay</bold> <bold>exception — lack of trustworthiness</bold> <block_quote> The trial court did not err in a second-degree murder case by preventing defendant's investigator from testifying to a witness's statement under the residual hearsay exception of N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 804(b)(5), because: (1) the trial court's finding that the statement lacked circumstantial guarantees of trustworthiness was supported by competent evidence including the large amount of alcohol consumed at the witness's house as well as defendant's choice not to call the other people present at the witness's house to testify; and (2) the statement was not more probative than any other evidence that defendant could secure through reasonable efforts on the point of defendant's alibi.</block_quote>

<bold>1. Appeal and Error — cross-appeal — no</bold> <bold>assignments of error — dismissed</bold> <block_quote> A cross-appeal was dismissed where no assignments of error were included in the record.</block_quote> <bold>2. Appeal and Error — conclusions — no</bold> <bold>exceptions — binding</bold> <block_quote> Conclusions that a marriage was void ab initio were binding where there was no exception to those conclusions.</block_quote> <bold>3. Estoppel — pleading — notice to opposing</bold> <bold>party — sufficiency</bold> <block_quote> Equitable estoppel was adequately pled as an affirmative defense by a wife seeking support where her first divorce was not recognized and this marriage was held void ab initio.</block_quote> <bold>4. Divorce — invalid first divorce — void</bold> <bold>second marriage — support — equitable estoppel</bold> <bold>— unclean hands</bold> <block_quote> Unclean hands barred the assertion of equitable estoppel by a wife seeking support from her second husband despite their marriage being ruled void ab initio. It was defendant who was culpably negligent in not obtaining a valid divorce from her first husband (although she accepted money from him and agreed to abide by the Dominican divorce decree).</block_quote>

<bold>1. Appeal and Error — appealability —</bold> <bold>interlocutory order — substantial right</bold> <block_quote> Although plaintiff's appeal from the trial court's order dismissing his claim under the North Carolina Persons with Disabilities Protection Act is an appeal from an interlocutory order<page_number>Page 816</page_number> based on the fact that two claims remain at the trial level, plaintiff is entitled to immediate appeal based on a substantial right, because: (1) plaintiff's North Carolina Disabilities Act claim and his claim for wrongful discharge in violation of public policy, which remains at the trial court level, unquestionably involve the same facts and circumstances; and (2) if the appeal is refused, two trials and possibly inconsistent verdicts could result.</block_quote> <bold>2. Disabilities — North Carolina Persons with</bold> <bold>Disabilities Protection Act — Americans with Disabilities</bold> <bold>Act — Equal Employment Opportunity Commission claim</bold> <bold>commenced — concurrent jurisdiction not allowed</bold> <block_quote> The trial court did not err by dismissing plaintiff's claim under the North Carolina Persons with Disabilities Protection Act (NC Disabilities Act) pursuant to N.C.G.S. § <cross_reference>168A-11</cross_reference>(c) after plaintiff commenced an Equal Employment Opportunity Commission (EEOC) claim, because: (1) the General Assembly has disallowed concurrent jurisdiction over an NC Disabilities Act claim and an Americans with Disabilities Act claim that arises out of the same facts and circumstances; (2) plaintiff's claim was still being investigated at the EEOC at the time of his state court filing thus making it fall within the NC Disabilities Act's language of "commenced federal administrative proceedings" and thereby removing it from the subject matter jurisdiction of the state court; and (3) the fact that defendant's motion to dismiss was not heard until after the EEOC had issued plaintiff's right-to-sue letter was immaterial since the court never had jurisdiction over the case at all based on the fact that it was initially filed after plaintiff had already commenced federal administrative proceedings such that federal jurisdiction had attached.</block_quote> <bold>3. Constitutional Law — Open Courts provision</bold> <bold>— federal proceeding — surrender of state court</bold> <bold>remedy — not violation</bold> <block_quote> An employee allegedly terminated because of his disability who elected to commence a federal proceeding with the EEOC and thus voluntarily surrendered his right to a remedy in the state court under the N.C. Persons with Disabilities Protection Act pursuant to N.C.G.S. § <cross_reference>168A-11</cross_reference>(c) while the federal proceeding was pending was not denied access to the state courts in violation of the Open Courts provision of N.C. Const, art. <cross_reference>I</cross_reference>, § <cross_reference>18</cross_reference>.</block_quote><page_number>Page 817</page_number>