Volume 180 — North Carolina Court of Appeals Reports

<bold>1. Indecent Liberties; Sexual Offenses — unanimous verdict — more</bold> <bold>incidents than charges</bold> <block_quote> Defendant's conviction for sexual misconduct was by a unanimous jury, even though he argued that there was testimony of more incidents than there were individual charges, where the instructions and the verdict sheets were clear as to what incident corresponded to each charge.</block_quote> <bold>2. Sexual Offenses — indictment — amendment — dates — no error</bold> <block_quote> There was no error in allowing the State to amend the dates alleged on indictments for defendant's sexual misconduct with his daughter where defendant was neither misled nor surprised at the nature of the charges, and did not raise an alibi defense.</block_quote><page_number>Page 87</page_number> <bold>3. Indecent Liberties; Sexual Offenses — generic language — statutory</bold> <bold>language — sufficiently specific</bold> <block_quote> Indictments couched in the language of the statutes are sufficient to charge statutory offenses. The indictments in this case, for statutory sexual offense and indecent liberties, were sufficient even though defendant argued that they were generic and did not allege the sexual acts with specificity.</block_quote> <bold>4. Sexual Offenses — statutory sexual offense — attempt included</bold> <block_quote> Upon the trial of any indictment, the prisoner may be convicted of an attempt to commit the crime charged; here an indictment for statutory sexual offense was sufficient to support a conviction for attempted statutory sexual offense. N.C.G.S. § 15-570.</block_quote> <bold>5. Indecent Liberties — evidence sufficient</bold> <block_quote> The evidence was sufficient to support a conviction for taking indecent liberties.</block_quote> <bold>6. Sexual Offenses — evidence sufficient</bold> <block_quote> The evidence was sufficient to support a conviction for statutory sexual offense.</block_quote> <bold>7. Appeal and Error — denial of motion in limine — failure to object at</bold> <bold>trial — Rule 103 then presumed constitutional</bold> <block_quote> The denial of a motion to suppress an inculpatory statement was reviewed on appeal even though defendant failed to renew his objection at trial because Rule 103 of the Rules of Evidence was presumed constitutional at the time of trial.</block_quote> <bold>8. Confessions and Incriminating Statements — defendant not in custody —</bold> <bold>statement voluntary</bold> <block_quote> Defendant's motion to suppress his inculpatory statements to the police was properly denied. There was competent evidence to support the court's findings, which supported its conclusions, that defendant was not in custody for Miranda purposes and that his statements were voluntary.</block_quote> <bold>9. Criminal Law — closing courtroom during victim's testimony — no</bold> <bold>objection by defendant — no error</bold> <block_quote> The trial court did not err in the prosecution of defendant for sexual offenses against his daughter by closing the courtroom during her testimony. The trial judge spent quite some time questioning people about why they were present and clearing<page_number>Page 88</page_number> the courtroom; defense counsel had the opportunity to object but did not.</block_quote> <bold>10. Evidence — sexual offense victim's testimony — mother's affair —</bold> <bold>admissibility</bold> <block_quote> In the prosecution of defendant for sexual offenses against his daughter, the testimony of a detective that the victim had said that her parents had had problems and that her mother had been "fooling around and then [she] was born" was relevant and not unduly prejudicial.</block_quote> <bold>11. Appeal and Error — preservation of issues — Confrontation Clause —</bold> <bold>raised for first time on appeal — not considered</bold> <block_quote> A Confrontation Clause claim raised for the first time on appeal was not considered.</block_quote> <bold>12. Constitutional Law — effective assistance of counsel — failure to</bold> <bold>request recordation — failure to object</bold> <block_quote> Defendant did not receive ineffective assistance of counsel where his attorney did not request recordation of the entire trial and did not object to admission of his statements to the police after filing an earlier pretrial motion to suppress.</block_quote>

<bold>1. Appeal and Error — appealability — plain error — failure to challenge</bold> <bold>jury instructions or evidentiary matters</bold> <block_quote> Although defendant contends the trial court committed plain error in a first-degree murder case by not allowing the jury to question trial witnesses, this assignment of error is dismissed because: (1) defendant's assignment of error does not challenge jury instructions or an evidentiary matter; and (2) application of the plain error doctrine is limited to jury instructions and evidentiary matters.</block_quote> <bold>2. Constitutional Law — effective assistance of counsel — dismissal of</bold> <bold>claim without prejudice</bold> <block_quote> Defendant's claim of ineffective assistance of counsel in a first-degree murder case based on his counsel's agreement with the trial court that jurors are not allowed to question witnesses during trial is dismissed without prejudice to defendant to move for appropriate relief and to request a hearing to determine whether he received effective assistance of counsel, because the record is inadequate at this stage of review.</block_quote><page_number>Page 180</page_number> <bold>3. Evidence — prior crimes or bad acts — violence toward victim — intent</bold> <bold>— absence of accident — remoteness</bold> <block_quote> The trial court did not err in a first-degree murder case by allowing testimony of defendant's prior acts of violence toward the victim, because: (1) the testimony was admissible to prove either defendant's intent to harm the victim or an absence of accident; and (2) defendant opened the door to the testimony of events that occurred fourteen years prior to the murder, and remoteness in time goes to the weight and not admissibility.</block_quote>

<bold>1. Sentencing — prior record level — calculation</bold> <block_quote> The trial court did not err in a resisting a law enforcement officer, eluding arrest, failure to stop at a stop sign, and attaining the status of an habitual felon case by sentencing defendant as a prior level IV offender, because: (1) although defendant failed to object during defendant's sentencing phase as required by N.C. R. App. P. 10(b)(1), an error at sentencing is not considered an error at trial for the purpose of Rule 10(b)(1); (2) the State sufficiently proved by certified copies of court records or by. defendant's admissions three Class H felonies in convictions 90 CRS 004796, 92 CRS 061415, and 98 CRS 11637, plus three Class A1 or Class 1 misdemeanors for convictions 89 CR 002999, 98 CR 010899, and<page_number>Page 276</page_number> 97 CR 064306; (3) although the trial court incorrectly attributed to defendant five instead of three misdemeanor points, the number of defendant's points admitted or proven total nine which is a prior record level of IV; and (4) defendant was not prejudiced by the trial court's failure to properly calculate defendant's prior record level when defendant was correctly sentenced as a prior record level IV offender.</block_quote> <bold>2. Constitutional Law — effective assistance of counsel — conflict of</bold> <bold>interest</bold> <block_quote> The trial court did not err by denying defense counsel's motion to withdraw based upon an asserted conflict of interest, because defendant failed to argue at trial or on appeal, and the record failed to show, that the trial court's denial of the motion resulted in ineffective assistance of counsel.</block_quote>

<bold>Nuisance — noise ordinance — constitutionality — prior restraints on free</bold> <bold>speech</bold> <block_quote> The trial court erred by concluding that a county noise ordinance was not void, and defendants' convictions are vacated, because: (1) even though the ordinance prohibits sound amplification only at certain levels and at certain times and was thus not unconstitutionally overbroad, the ordinance improperly left exemption from the ordinance in the sole unguided and unregulated discretion of the county commissioners; (2) the county was allowed to issue special event permits in its discretion with no articulated standards, acting as an arbitrary prior restraint on free speech; (3) although defendants appeal from their criminal convictions for violating the ordinance and not from the denial of their request for a special use permit, when a licensing<page_number>Page 379</page_number> statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license; and (4) once a defendant faces prosecution under an ordinance, he is entitled to defend himself by raising the constitutionality of the ordinance.</block_quote> Judge TYSON concurring in part and dissenting in part.

<bold>1. Civil Procedure — allowing untimely served affidavit — abuse of</bold> <bold>discretion standard</bold> <block_quote> The trial court did not abuse its discretion in a negligence and wrongful death case by allowing and considering the untimely served affidavit of plaintiff over defendants' objection in a hearing on defendants' motion to dismiss or to compel arbitration because: (1) the trial court took such other action as the ends of justice required and proceeded with the hearing; and (2) the order did not specifically state the trial court relied upon plaintiff's late filed affidavit.</block_quote> <bold>2. Arbitration and Mediation — denial of motion to compel —</bold> <bold>unconscionability</bold> <block_quote> The trial court erred in a negligence and wrongful death case by ruling the arbitration clause in a contract between defendant<page_number>Page 415</page_number> assisted living facility and plaintiff, decedent's "responsibile party" and executrix, was unconscionable based upon findings of fact wholly unsupported by any competent evidence and by denying defendants' motion to compel arbitration, because: (1) the trial court's finding that there was no independent negotiation on the terms of the contract or the arbitration agreement was not supported by any competent evidence; (2) plaintiff admitted she signed the agreement and stated she voluntarily entered into this agreement with the facility; (3) contrary to the trial court's finding, the use of a standardized form does not per se lead to unconscionability of the contract; (4) there was no evidence of lack of mutual agreement or inequality of bargaining power; (5) the agreement to arbitrate was prominently located on the last page of the contract in bold face type directly above plaintiff's signature; (6) the provisions of the agreement to arbitrate were mutual and apply equally to all parties; (7) the trial court's determination that the arbitration clause was unconscionable since it deals with a matter of substantial important was not based upon any competent evidence and does not overcome North Carolina's strong public policy presumption in favor of arbitration; and (8) the agreement was clear and unambiguous.</block_quote>

<bold>1. Appeal and Error — appellate rule violations — broadside assignment of</bold> <bold>error — appeal not dismissed</bold> <block_quote> Appellate rules violations involving a broadside assignment of error did not lead to dismissal because of the potential impact on defendant's sentence from an incorrect prior record level calculation and because of the substantial delay defendant endured in having his appeal heard.</block_quote><page_number>Page 440</page_number> <bold>2. Sentencing — prior record level — stipulated</bold> <block_quote> Defendant stipulated to his prior record level where defense counsel expressly consented to the calculation of defendant's sentence at prior record level II and defendant and his counsel had the opportunity to object several times. Furthermore, while defendant argued on appeal the sufficiency of the evidence and whether he had stipulated to prior convictions, he did not contest on the actual determination of his prior record level.</block_quote>

<bold>Workers' Compensation — denial of claim — abuse of discretion — stubborn</bold> <bold>unfounded litigiousness</bold> <block_quote> The Industrial Commission abused its discretion in a workers' compensation case by finding that the denial of plaintiff employee's claim was justified, because even though part was indeed based on reasonable grounds regarding plaintiff's October 2002 lumbar laminectomy and her February 2003 thoracic and lumbar surgery, part of defendant's defense of this claim was unreasonable and constituted stubborn unfounded litigiousness when defendant had no evidence at the time of the denial that plaintiff's injuries were anything other than work-related. Plaintiff is entitled to additional attorney fees for that portion of the time her attorney spent responding to the Forms 61 and 63, but not that spent on refuting the allegations that her later surgeries were due to her pre-existing conditions.</block_quote>

<bold>1. Termination of Parental Rights — grounds — inquiry into paternity</bold> <block_quote> A single ground is all that is required for termination of parental rights, and the trial court here did not err by not making further inquiry into paternity after respondent (who had married the child's mother) refused a paternity test. There were sufficient grounds for termination regardless of paternity.</block_quote> <bold>2. Termination of Parental Rights — abandonment — sufficiency of</bold> <bold>evidence</bold> <block_quote> There was clear, cogent, and convincing evidence supporting termination of parental rights on the ground of willful abandonment where there was evidence that respondent had seen the three-year-old child, at most, immediately after her birth. Although respondent argues that he was not given the opportunity to participate in the child's life, and he did attempt to legitimize the child, the execution of legal formalities does not replace the presence, love and care from a parent, delivered by whatever means available.</block_quote> <bold>3. Termination of Parental Rights — best interest of child — abuse of</bold> <bold>discretion standard</bold> <block_quote> The trial court did not abuse its discretion by terminating respondent's parental rights where the child had been in foster<page_number>Page 629</page_number> care since birth, she had never met her mother or respondent, her foster parents were prepared to adopt immediately, respondent and the mother have an intermittent relationship, and if placed in respondent's care, the child would live with her mother, who has been determined to be an unfit parent.</block_quote> <bold>4. Appeal and Error — presentation of issues — burden of proof at</bold> <bold>termination of parental rights hearing — not included in assignment</bold> <bold>of error</bold> <block_quote> The issue of whether the trial court used the correct burden of proof in a termination of parental rights hearing was deemed waived because it was not included in the assignments of error.</block_quote> <bold>5. Termination of Parental Rights — findings of fact — sufficiency</bold> <block_quote> The findings in a termination of parental rights hearing were sufficient where they were adequately supported by testimony given during the proceeding. Requirements for permanency planning hearings are distinguished.</block_quote> <bold>6. Termination of Parental Rights — attorney not appointed — inaction by</bold> <bold>respondent</bold> <block_quote> The trial court did not err by not appointing counsel for respondent at a termination of parental rights hearing where respondent did not follow the plain instructions on the summons and petition, for which he had signed nearly three months before the court date.</block_quote> <bold>7. Termination of Parental Rights — delay between petition and hearing —</bold> <bold>no prejudice</bold> <block_quote> There was no prejudice from a delay between a termination of parental rights petition and the hearing where respondent alleged that he was deprived of the chance to be a father during that period, but there was no record of communication during that time between respondent and Social Services (the child was in foster care) about the well-being of the child or the status of respondent's paternity.</block_quote>