Volume 181 — North Carolina Court of Appeals Reports

<bold>Child Support, Custody, and Visitation — order changed — prior conclusion</bold> <bold>that circumstances had not changed</bold> <block_quote> The trial court erred by changing a prior child support and custody order after concluding that there had not been a showing of a substantial change of circumstances.</block_quote>

<bold>1. Statutes of Limitation and Repose — provision of dirty water to dry</bold> <bold>cleaner — continuing injury</bold> <block_quote> The statute of limitations had run and the trial court did not err by granting defendants' motions for summary judgment on a negligence claim that involved the flushing of water pipes and the provision of water with sediments which stained clothes at plaintiff's dry cleaning business. The injury was a continuing one that was apparent to plaintiff for more than three years.</block_quote> <bold>2. Warranties; Statute of Limitations — municipal water supply — dirty</bold> <bold>water furnished to dry cleaner</bold> <block_quote> The trial court erred by granting summary judgment for defendant town on a claim for breach of implied warranty of merchantability arising from the provision of water which damaged the clothes at plaintiff's dry cleaning business. The claim is not completely barred because plaintiff could not determine whether the water was fit for use prior to purchase. However, the two-year statute of limitations for contract claims against local governments limits plaintiff to seeking damages for the two years preceding the lawsuit. N.C.G.S. § <cross_reference>1-53</cross_reference>.</block_quote>

<bold>1. Appeal and Error — appellate rules violations — motion to deem brief</bold> <bold>timely served — motion to dismiss brief — denial of sanctions</bold> <block_quote> The guardian ad litem's (GAL) motion to deem appellee GAL's brief timely served is allowed, and respondent mother's motion to dismiss GAL's brief on N.C. R. App. P. 13 grounds is denied, because: (1) this case deals with guardianship of a juvenile; and (2) respondent did not allege that she suffered any prejudice from the minimal delay in being served with the GAL's brief.</block_quote><page_number>Page 175</page_number> <bold>2. Appeal and Error — notice of appearance of counsel — appellate</bold> <bold>counsel</bold> <block_quote> The guardian ad litem's (GAL) attorney is properly appearing in a juvenile guardianship case because while there is no order in the record naming the GAL's current counsel as appellate counsel, both respondent and the GAL agree that a notice of appearance of counsel was filed at the Court of Appeals.</block_quote> <bold>3. Appeal and Error — appellate rules violations — statement of facts</bold> <block_quote> Respondent mother's motion to dismiss the guardian ad litem's (GAL) brief and motion to strike portions of GAL's brief on N.C. R. App. P. 28 grounds in a juvenile guardianship case is denied even though respondent contends the statement of facts includes information not found by the trial court and allegedly contains misrepresentations regarding the underlying facts of the case, because: (1) the rule does not limit a party's ability to make reference to facts supported by the evidence but not specifically found by the trial court to be able to provide the Court of Appeals with a thorough picture of the circumstances and events that led to appeal; (2) respondent cites no authority, and none was found, which limited a party's statement of facts to those found by the trial court; and (3) the GAL's statement of facts was supported by both the transcript and record on appeal.</block_quote> <bold>4. Appeal and Error — appellate rules violations — denial of sanctions</bold> <block_quote> Respondent mother's motion to dismiss and strike petitioner appellee DSS's brief on N.C. R. App. P. 13 grounds is denied, because: (1) this case deals with juvenile guardianship; and (2) respondent did not allege that she suffered any prejudice from the delay in being served with DSS's brief.</block_quote> <bold>5. Appeal and Error — appellate rules violations — affidavit striken —</bold> <bold>matters in brief outside record</bold> <block_quote> The portions of DSS's brief that provides and cites to an affidavit not included in the record on appeal in a juvenile guardianship case is stricken, because: (1) N.C. R. App. P. 9 provides that matters discussed in the brief outside the record are not properly considered on appeal since the record imports verity and binds the reviewing court; and (2) contrary to DSS's assertion that it would have to provide documents omitted from the settled record, N.C. R. App. P. 28(d)(3)(a) only addresses information<page_number>Page 176</page_number> from a transcript that must be included in an appendix, there is no reference in the rule to information omitted from the record, and DSS's argument was unsupported by any rule of appellate procedure.</block_quote> <bold>6. Child Abuse and Neglect — permanency planning order — subject matter</bold> <bold>jurisdiction</bold> <block_quote> The trial court had authority to enter its permanency planning order in a juvenile guardianship case even though the non-secure custody order and summons were issued before the juvenile petition was signed and verified, because: (1) the juvenile petition was eventually signed and verified by a DSS representative; and (2) once this occurred on 19 August 2004, the trial court gained subject matter jurisdiction and could properly act on this matter from that day forward.</block_quote> <bold>7. Child Abuse and Neglect — permanency planning hearing — failure to</bold> <bold>conduct hearing within twelve months of original custody order</bold> <block_quote> The trial court did not commit reversible error in a juvenile guardianship case by failing to conduct the permanency planning hearing within twelve months of the date of the original custody order, because: (1) an appellant must prove prejudice to warrant reversal for a violation of N.C.G.S. § <cross_reference>7B-907</cross_reference>(e) which governs time lines for filing petitions to terminate parental rights, and the Court of Appeals concluded the same must be proven for N.C.G.S. § <cross_reference>7B-907</cross_reference>(a) which is applicable in the instant case; (2) had the permanency planning hearing been held in August when respondent contends it should have been held, respondent's living situation would have been less stable since the hearing would have occurred during respondent's transition from her old home to her new one, and further respondent never testified that she had room or space for the pertinent minor in her new home; (3) although more recent evidence was presented at the hearing, the trial court made no findings regarding the minor's half-siblings' alleged change in their position on their permanent placement, and there was no evidence presented that the GAL or DSS changed their recommendation on the minor's placement based on anything that occurred after the twelve-month time frame had expired; and (4) while the court included a finding that respondent had prematurely left a scheduled visit with the juveniles three weeks before the hearing, absent this finding, there remained ample evidence to support the trial court's determination.</block_quote><page_number>Page 177</page_number> <bold>8. Child Abuse and Neglect — permanency planning order — sufficiency of</bold> <bold>findings of fact</bold> <block_quote> The trial court did not err in a juvenile guardianship case by allegedly failing to make sufficient findings of fact to support its permanency planning order as required by N.C.G.S. § <cross_reference>7B-907</cross_reference>(b), because: (1) this section of the juvenile code does not require a permanency planning order to contain a formal listing of the N.C.G.S. § <cross_reference>7B-907</cross_reference>(b)(1)-(6) factors as long as the trial court makes findings of fact on the relevant § <cross_reference>7B-907</cross_reference>(b) factors; (2) the trial court considered all the relevant § <cross_reference>7B-907</cross_reference>(b) criteria and made appropriate findings in its order; and (3) with respect to respondent's argument that the trial court did not make any findings under § <cross_reference>7B-907</cross_reference>(b)(5), there was no permanent plan with which DSS had to comply since this was the initial permanency planning hearing.</block_quote> <bold>9. Child Abuse and Neglect — permanency planning order — visitation</bold> <block_quote> The trial court erred in a juvenile guardianship case by determining in its permanency planning order that visitation between the juvenile and the mother shall be supervised by the custodians and shall be in the discretion of the custodians but shall not be unreasonably prevented, and the case is remanded to the trial court to issue a new order on visitation, because: (1) the exercise of this judicial function may not be delegated by the court to the custodian of the child; and (2) when the discretion to provide visitation is granted to the custodian of a child, it may result in a complete denial of the right.</block_quote> <bold>10. Child Abuse and Neglect — permanency planning order — considering and</bold> <bold>incorporating reports and summaries as finding of fact</bold> <block_quote> The trial court did not err in a juvenile guardianship case by considering and incorporating reports and summaries from DSS and from the GAL as findings of fact in its permanency planning order, because: (1) when conducting a juvenile proceeding, the trial court is permitted to consider all materials including written reports that have been submitted in connection with the proceeding, although the trial court may not delegate its fact finding duty; and (2) the trial court properly incorporated DSS and GAL reports, properly made findings of fact included in the order based on these reports, these findings are sufficient<page_number>Page 178</page_number> to support the trial court's ultimate determination, and there was no evidence the trial court relied on information from the reports that it then failed to include as a finding of fact in its order.</block_quote> <bold>11. Child Abuse and Neglect — permanency planning order — failure to</bold> <bold>comply with previous court orders — keep mother's boyfriend away from</bold> <bold>minor</bold> <block_quote> The trial court did not err in a juvenile guardianship case by relying on prior court orders, DSS reports, and GAL reports to find that respondent mother has not complied with previous orders of the court to keep the minor away from respondent's boyfriend who was a sex offender from another state and living with the mother, because: (1) although respondent correctly asserts that no new evidence was presented at the hearing regarding her current relationship with her boyfriend and his presence around the minor, the finding merely indicated that respondent had not previously complied with court orders requiring her to eliminate contact between her boyfriend and the minor, thus recognizing that respondent placed the importance of her relationship with her boyfriend above the welfare of her child; and (2) even if the trial court included this finding in error, there remained sufficient evidence through court documents in the record and by testimony at the hearing to support the trial court's ultimate determination that the permanent plan for the minor should be a change of custody to the grandparents of the minor's half siblings.</block_quote> <bold>12. Child Abuse and Neglect — permanency planning order — psychological</bold> <bold>evaluation</bold> <block_quote> The trial court did not abuse its discretion in a juvenile guardianship case by ordering respondent mother to undergo a psychological evaluation and by finding that she had not previously complied with the trial court's order directing such an evaluation because of: (1) the serious nature of the allegations, respondent's concession that her daughter was neglected, and the Court of Appeals' holding in <italic>In re Cogdill</italic>, <cross_reference>137 N.C. App. 504</cross_reference> (2000); and (2) respondent's own testimony that she failed to comply with the court's previous order that she undergo a psychological or psychiatric evaluation and comply with the recommendations of the evaluator.</block_quote><page_number>Page 179</page_number>

<bold>1. Constitutional Law — effective assistance of counsel — tardiness</bold> <block_quote> Defendant was not denied effective assistance of counsel in a termination of parental rights proceeding even though his counsel was late on the second of five days of hearing after a lunch recess, because: (1) respondent failed to demonstrate how his attorney's tardiness caused him to be denied a fair hearing; and (2) there was no way of determining what respondent's attorney was precluded from asking based on her failure to make an offer of proof as required by N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 103.</block_quote> <bold>2. Evidence — hearsay — mental health records of children</bold> <block_quote> The trial court did not err in a termination of parental rights case by admitting, over objection, mental health records of two of the minor children, because: (1) even assuming arguendo that the records contain inadmissible hearsay, in a bench trial it is presumed that the judge disregarded any incompetent evidence that may have been admitted unless it affirmatively appears that he was influenced thereby; and (2) respondent has not pointed to any specific instances of hearsay upon which the trial court improperly relied.</block_quote> <bold>3. Termination of Parental Rights — past abuse — reasonable probability</bold> <bold>of continued abuse — emotional and behavioral problems</bold> <block_quote> The trial court did not abuse its discretion by terminating respondent father's parental rights, because: (1) the trial court found that all three children had been abused and exhibited symptoms of that abuse, and respondent admitted that he physically<page_number>Page 279</page_number> beat and abused the children; (2) the court determined there was a reasonable probability that respondent would again abuse the children if they were returned to his care based on the testimony of respondent's individual therapist; (3) the children's therapist testified the children suffered various emotional and behavioral problems including posttraumatic stress disorder based on the abuse; and (4) although respondent pointed to the trial court's finding that all of the children's therapists think it would be in the children's best interests and assist in their therapy to have family sessions with respondent, the trial court found the family sessions could not occur until respondent had progressed and the children are at a stage where they can safely process the information, and further, the trial court found the children also require permanency to ensure continued progress in their therapy.</block_quote>

<bold>1. Firearms and Other Weapons — possession of firearm — motion to dismiss</bold> <bold>— sufficiency of evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of possession of a firearm even though defendant contends the State failed to present substantial evidence showing he had possession of the handgun that was resting in the grass about six inches from his outstretched hand, because there was ample circumstantial evidence suggesting that defendant had possession of the gun before he was tackled to the ground by the police officers.</block_quote><page_number>Page 303</page_number> <bold>2. Assault — deadly weapon on government officer — motion to dismiss —</bold> <bold>sufficiency of evidence — unequivocal appearance of attempt</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of assault with a deadly weapon on a government officer, because: (1) in North Carolina an assault is not simply an overt act or an attempt, but also the unequivocal appearance of an attempt; (2) even if defendant's conduct of reaching for the gun was not in itself an overt act or an attempt to do some immediate physical injury, his conduct qualified at least as the unequivocal appearance of an attempt to harm the officers with the gun; (3) defendant committed this unequivocal appearance of an attempt with force and violence when in addition to the presence of the gun, defendant struggled intensely with three officers and was not subdued until he received several blows to the head; and (4) the officers' testimony under the circumstances was sufficient evidence to establish that a person of reasonable firmness would have feared immediate bodily harm.</block_quote> <bold>3. Assault — instruction — attempted assault — plain error</bold> <block_quote> The trial court committed plain error by instructing the jury on attempted assault with a deadly weapon upon a government officer because that offense does not exist in this state.</block_quote>

<bold>Homicide — second-degree murder — motion to dismiss — sufficiency of</bold> <bold>evidence</bold> <block_quote> The trial court did not err in a second-degree murder case by granting defendants' motions to dismiss, because: (1) while the State's evidence raises a strong suspicion of defendants' guilt, it does not permit a reasonable inference that defendants were responsible for the death of the victim; (2) the evidence established at most that defendants had the opportunity to commit the crime; (3) none of the State's witnesses identified the victim as the man involved in the struggle with defendants, or as the man a witness saw in the road near the pertinent residence; and (4) there was testimony indicating there were other unidentified males in the area around the same time the murder allegedly occurred.</block_quote>

<bold>1. Appeal and Error — appellate rules violations — sanctions</bold> <block_quote> Defense counsel is personally required to pay the printing costs of this appeal in a work-release escape case as a sanction for various appellate rules violations including: (1) the argument section is entirely single-spaced in violation of N.C. R. App. P. 26(g)(1); and (2) defense counsel failed to include a statement of the standard of review with respect to his argument challenging the trial court's denial of his motion to dismiss as required by N.C. R. App. P. 28(b)(6).</block_quote> <bold>2. Escape — indictment — work-release prisoner — improper statutory</bold> <bold>citation</bold> <block_quote> The trial court did not err by concluding there was no fatal variance between the indictment and the evidence presented at trial even though defendant contends the indictment charged him with felony escape under N.C.G.S. § <cross_reference>148-45</cross_reference>(b)(1) rather than escape of a work-release prisoner under N.C.G.S. § <cross_reference>148-45</cross_reference>(g)(1), because: (1) the indictment tracked the language of N.C.G.S. § <cross_reference>148-45</cross_reference>(g); and (2) an indictment's improper statutory citation is immaterial when the language of the indictment sufficiently apprises a defendant of the charge at issue.</block_quote> <bold>3. Escape — work-release escape — motion to dismiss — sufficiency of</bold> <bold>evidence — 24-hour exception</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of work-release escape even though defendant contends he returned voluntarily within twenty-four hours, and his derivative assignments of error challenging his habitual felon<page_number>Page 317</page_number> indictment on the ground that his escape conviction was invalid are also dismissed, because: (1) it was defendant's burden to establish this affirmative defense to the jury; (2) although the State's evidence demonstrated that defendant was recaptured within 24 hours, it also indicated that defendant's family only surrendered him to law enforcement after officers threatened to obtain a search warrant and press criminal charges against defendant's family members for harboring a fugitive; and (3) the jury could have concluded this surrender was not a voluntary return by defendant to his place of confinement.</block_quote>

<bold>Declaratory Judgments — procedure for administration of oaths —</bold> <bold>litigation appears unavoidable</bold> <block_quote> A de novo review revealed that the trial court erred by concluding that plaintiffs failed to present a justiciable controversy in their complaint for a declaratory judgment regarding the interpretation of N.C.G.S. § <cross_reference>11-2</cross_reference> describing the procedure for the administration of oaths, because: (1) although it is not necessary that one party have an actual right of action against another to satisfy the jurisdictional requirement of an actual controversy, it is necessary that litigation appear unavoidable; (2) plaintiff individual demonstrated her intent to avail herself of her asserted right to swear on her religious text, the Quran, and her intent to litigate that right; (3) the State demonstrated, by its refusal to permit<page_number>Page 431</page_number> witnesses to swear on any text other than the Christian Bible, its intent to continue the course of action; (4) the facts do not suggest any impediments to litigation that would make litigation avoidable in the absence of a declaratory judgment; and (5) plaintiff ACLU-NC has sufficiently indicated that its members intend to avail themselves of their rights, ACLU-NC has manifested an intent to litigate the issue, and there is no impediment to litigation which would render litigation avoidable.</block_quote>

<bold>1. Workers' Compensation — findings of facts — nurse lifting patient —</bold> <bold>lymphedema</bold> <block_quote> There was competent evidence in a workers' compensation case supporting the Industrial Commission's findings of the facts in a case where a nurse suffered lymphedema after lifting a patient. Those findings were binding even though there was evidence to support contrary findings.</block_quote> <bold>2. Workers' Compensation — injury by accident — nurse lifting patient —</bold> <bold>short-staffed</bold> <block_quote> The findings of the Industrial Commission in a workers' compensation case establish that a nurse who suffered lymphedema after lifting a patient was performing a task that was not part of her normal work routine and that she suffered an accident. Moving patients was normally a two-person job, but the hospital was understaffed and plaintiff had to position her body differently than normal and use more force than was normal.</block_quote> <bold>3. Workers' Compensation — notice — actual — findings supported by</bold> <bold>plaintiff's testimony</bold> <block_quote> Plaintiff's testimony supported findings in a workers' compensation case that she had provided actual notice of her injury. A mistake in the date was not material.</block_quote> <bold>4. Workers' Compensation — actual notice — further findings — reasonable</bold> <bold>excuse for delay in written notice</bold> <block_quote> A finding of actual notice of the injury by accident in a workers' compensation case meant that findings about written notice and prejudice to defendant by plaintiff's delay in providing written notice were not required. Furthermore, a finding that plaintiff gave verbal notice of the injury to her shift supervisor constituted an implicit finding that plaintiff had a reasonable excuse for failing to give written notice within thirty days of the accident.</block_quote><page_number>Page 438</page_number> <bold>5. Workers' Compensation — reopening record — no abuse of discretion</bold> <block_quote> The Industrial Commission did not abuse its discretion by reopening the record in a workers' compensation case to receive further evidence.</block_quote> <bold>6. Workers' Compensation — record reopened for plaintiff — no additional</bold> <bold>material from defendants</bold> <block_quote> The Industrial Commission did not abuse its discretion in a workers' compensation case by not allowing defendants to re-depose their expert witnesses, or to present new briefs or arguments, after plaintiff was allowed to take the deposition of a doctor after the evidence closed. Defendants had the opportunity to cross-examine plaintiff's expert during the deposition, they never requested the opportunity to re-depose their witnesses, and the Commission ruled only that no further oral arguments or briefs would be required, not that defendants could not present additional arguments.</block_quote> <bold>7. Workers' Compensation — testimony of doctor as expert — experience in</bold> <bold>treating condition</bold> <block_quote> Testimony from a doctor in a workers' compensation case about whether plaintiffs accident aggravated her lymphedema was sufficiently reliable, based on the experience of the doctor in treating lymphedema. Any lingering questions go to the weight of the testimony.</block_quote> <bold>8. Workers' Compensation — testimony of doctor — sufficiency</bold> <block_quote> The testimony of a doctor in a workers' compensation case about causation did not present "could" or "might" testimony and was not based solely on the notion of post hoc ergo propter hoc (after it, therefore because of it). The doctor repeatedly testified to a medical certainty that plaintiff's accident at work probably aggravated her pre-exiting lymphedema, and that plaintiff's description of the accident was consistent with trauma of the type associated with the development of lymphedema in someone with plaintiff's medical history.</block_quote>

<bold>1. Homicide — first-degree murder — failure to instruct on second-degree</bold> <bold>murder</bold> <block_quote> The trial court did not commit plain error in a first-degree murder case by failing to give an instruction ex meru motu on second-degree murder based on alleged evidence that defendant did not have the ability to form the requisite intent to commit first-degree murder, because the State established each element of first-degree murder including evidence that: (1) during the summer of 2002, the victim expressed to several people that she was afraid defendant would harm her based on the fact she cut down his marijuana plants and removed some of his belongings; (2) defendant believed he was being told to shoot the victim and that messages from television and radio programs were telling him to return to North Carolina and kill the victim; (3) defendant returned to North Carolina, went to the victim's house, and shot her without any provocation; and (4) although a psychologist's testimony tended to establish defendant was unable to understand whether his actions were right or wrong, he did not testify that defendant was unable to plan his actions or that he lacked the ability to premeditate and deliberate.</block_quote> <bold>2. Constitutional Law — right to counsel — offhand remark</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder and possession of a weapon of mass destruction case by failing to grant a mistrial when the State's witness allegedly commented on defendant's invocation of his constitutional right to counsel, because: (1) the prosecutor did not elicit testimony from the agent witness regarding defendant's request to invoke his right to remain silent, but instead the agent's comment was made<page_number>Page 480</page_number> in response to defense counsel's question; (2) the prosecutor did not argue to the jury that an inference could be made regarding defendant's request for an attorney that would reflect on defendant's mental state at the time of the murder; (3) the agent's comment, taken in context, was not of such character that the jury would have concluded it was a comment on defendant's exercise of his right to counsel; (4) the agent's statement taken in context was not made to shed doubt on defendant's insanity defense, but was an attempt to explain why the agent was unable to determine when defendant's luggage was packed; (5) assuming arguendo the agent's comment was improper, the jury poll conducted by the trial court after the curative instruction was given indicated the members of the jury understood the instruction to disregard the comment and that they would in fact disregard the comment; and (6) the State presented overwhelming evidence of defendant's guilt.</block_quote> <bold>3. Evidence — hearsay — state of mind exception</bold> <block_quote> The trial court did not abuse its discretion in a first-degree murder case by admitting testimony regarding the victim's state of mind, because: (1) the fact that the last statements the victim made regarding her fear of defendant happened some time prior to the murder does not deprive the evidence of its probative value; (2) although defendant presented an insanity defense, the defense is unrelated to the existence or nonexistence of the elements of the criminal act, and thus, the State was required to prove each element of first-degree murder; and (3) the conversations between the victim and the witnesses related directly to the victim's fear of defendant and were admissible to show the victim's then existing state of mind at the time she made the statements.</block_quote> <bold>4. Appeal and Error — preservation of issues — failure to argue</bold> <block_quote> The remaining assignments of error that defendant failed to present in his brief are deemed abandoned under N.C. R. App. P. 28(b)(6).</block_quote>

<bold>1. Homicide — attempted murder — indictment — sufficiency</bold> <block_quote> An indictment for "attempted murder" without allegations of specific intent, premeditation, or deliberation was not defective.</block_quote> <bold>2. Search and Seizure — search of shop within curtilage — permission from</bold> <bold>woman living with defendant</bold> <block_quote> The trial court did not err by concluding that a search of a shop outside of defendant's house was constitutional where the court's findings, supported by the evidence, were that the woman who gave permission for the search had lived with defendant for 13 years, officers seeking her permission had known of her status<page_number>Page 503</page_number> as a resident of the house for about three or four years and had no reason to suspect that she lacked control over the premises, and her consent was voluntary and without hesitation.</block_quote> <bold>3. Evidence — defendant's drunkenness and state of mind — no plain error</bold> <block_quote> There was no plain error in an attempted murder and assault prosecution in admitting statements by the woman who lived with defendant concerning his drunkenness, state of mind, condition, and actions on the Thanksgiving Day on which the shooting occurred. Although the statements may have been admissible as corroborative of her earlier testimony, their absence would not have changed the jury's verdict.</block_quote> <bold>4. Constitutional Law — right to remain silent — exercise by defendant —</bold> <bold>officer's testimony — not plain error</bold> <block_quote> There was no plain error in a prosecution for attempted murder and assault in the admission of testimony from the arresting officer about defendant's exercise of his right to remain silent. The testimony was incidental to the officer's overall testimony and it is doubtful that the jury assigned it heavy weight.</block_quote> <bold>5. Evidence — witness to shooting — defendant heard, not seen — testimony</bold> <bold>rationally related to perception of event</bold> <block_quote> There was no error in allowing the victim of an assault and attempted murder to testify that he was shot by defendant, even though he did not see defendant shoot him. The victim, defendant's uncle, heard defendant's voice during the shooting and had sufficient personal knowledge to identify him.</block_quote> <bold>6. Homicide — attempted murder — defendant as perpetrator — evidence</bold> <bold>sufficient</bold> <block_quote> There was sufficient evidence, in the light most favorable to the State, that defendant was the perpetrator of a shooting, and the court did not err by denying defendant's motion to dismiss a charge of attempted murder.</block_quote> <bold>7. Homicide — attempted murder — premeditation and deliberation —</bold> <bold>evidence sufficient</bold> <block_quote> The evidence was sufficient to establish premeditation and deliberation in a prosecution for attempted murder, taken in the light most favorable to the State.</block_quote><page_number>Page 504</page_number>

<bold>1. Workers' Compensation — occupational disease — failure to make</bold> <bold>necessary findings — greater risk of contracting psychological</bold> <bold>condition</bold> <block_quote> The Industrial Commission erred in a workers' compensation case by concluding that plaintiff did not suffer a compensable occupational disease due to his employment, and the case is remanded for entry of necessary findings, because: (1) work-related depression or other mental illness may qualify as a compensable occupational disease under appropriate circumstances; and (2) the Commission failed to make any finding of fact resolving the conflicting testimony as to whether plaintiff was placed at a greater risk for contracting his psychological condition than the general public.</block_quote> <bold>2. Workers' Compensation — expert testimony — methodology — credibility</bold> <block_quote> The Industrial Commission did not abuse its discretion in a workers' compensation case by admitting the opinion of a psychiatrist that was allegedly not based on scientific, technical, or otherwise specialized knowledge, because: (1) plaintiff's contentions on appeal only challenge the methodology of the expert's opinion which goes to the weight of her testimony and not the admissibility; and (2) North Carolina does not apply the gate-keeping function articulated by <italic>Daubert</italic>, <cross_reference>509 U.S. 579</cross_reference> (1993), but instead leaves the duty of weighing the credibility of the expert testimony to the trier of fact.</block_quote> <bold>3. Workers' Compensation — failure to rule on discovery motions —</bold> <bold>implicit ruling</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by allegedly failing to rule on certain discovery motions brought against plaintiff because, although the Commission's ruling was not as explicit as desired, an implicit ruling was made on the motions brought forward on appeal to the Commission.</block_quote><page_number>Page 528</page_number>

<bold>1. Appeal and Error — supporting arguments — not required in assignments</bold> <bold>of error</bold> <block_quote> An appeal was not dismissed where the appellant did not cite authority in his assignments of error, but did so in his brief. Appellate Rule 28(b)(6) does not concern the assignments of error in the record; in fact, argument is specifically precluded from the assignments of error by Appellate Rule 10 (c)(1).</block_quote> <bold>2. Courts; Divorce — amended Qualified Domestic Relations Order — no</bold> <bold>findings indicating reason for changing order of another judge</bold> <block_quote> An amended Qualified Domestic Relations Order concerning a pension was remanded where there were no findings or statements by the trial judge to indicate his reasons for modifying the order. There is thus no evidence of a material change in circumstances that would warrant one trial court modifying, overruling, or changing the order of another.</block_quote>

<bold>1. Appeal and Error — assignments of error — record page references</bold> <bold>omitted — Rules violation not egregious</bold> <block_quote> Violations of the Rules of Appellate Procedure involving the identification of assignments of errors by their record page numbers were not so egregious as to warrant dismissal or sanctions.</block_quote> <bold>2. Sentencing — habitual impaired driving — no double jeopardy violation</bold> <block_quote> Habitual impaired driving does not violate double jeopardy under <italic>Apprendi v. New Jersey</italic>, <cross_reference>530 U.S. 466</cross_reference>. <italic>Apprendi</italic> and <italic>Blakely</italic> involve the right to a jury rather than double jeopardy.</block_quote> <bold>3. Criminal Law — verdict sheet with alternate definitions of crime — one</bold> <bold>offense</bold> <block_quote> There was no error in the submission of an impaired driving verdict sheet which did not specify which of two statutory definitions of impaired driving applied (being under the influence or blood alcohol level). Defendant was charged with a single wrong which could be established alternatively.</block_quote>

<bold>Husband and Wife — antenuptial agreement — payments for ending tobacco</bold> <bold>allotments</bold> <block_quote> Defendant disclaimed her rights to decedent's separate property as well as the income and proceeds from that property by the plain language of an antenuptial agreement, and the trial court correctly granted summary judgment for plaintiffs in an action seeking assignment to them of payments from the federal government for ending tobacco allotments.</block_quote>

<bold>1. Attorneys — legal malpractice — last act giving rise to cause of</bold> <bold>action</bold> <block_quote> Defendant law firm's filing of a dismissal with prejudice of plaintiffs' action against an insurance company to recover for a fire loss subsequent to plaintiffs' settlement with the insurance company did not extend the three-year statute of limitations for<page_number>Page 730</page_number> filing a legal malpractice action arising from that claim, because: (1) a malpractice action accrues from the date of the last act of defendant and not from the date when the attorney-client relationship either begins or ends; (2) only the last act by defendant attorney and his law firm that gives rise to the cause of action triggers the statute of limitations, and not any or all acts undertaken by him in his capacity as plaintiffs' attorney; (3) even if defendants had a continuing duty to represent plaintiffs beyond the settlement conference in this matter, the last act of defendant giving rise to the cause of action occurred no later than the time at which plaintiffs signed the release prepared by the insurance company and took possession of their settlement check on 1 June 2001, and thus, the 3 June 2004 filing of plaintiffs' complaint came more than three years after defendants' last act giving rise to the malpractice action; (4) the acts of mailing and filing the dismissal with prejudice were duties that defendant attorney and his partners performed as officers of the court to comply with the terms of the agreement previously signed by their clients; and (5) equitable estoppel is inapplicable when nothing in plaintiffs' brief nor in the record suggested that defendants prevented their filing this malpractice claim prior to the expiration of the three-year period.</block_quote> <bold>2. Pleadings — denial of motion for sanctions</bold> <block_quote> Plaintiff Bucks' outstanding motion for sanctions against the attorneys for defendant attorney and his law firm is denied.</block_quote>

<bold>Termination of Parental Rights — fundamental fairness — service —</bold> <bold>presence at hearing</bold> <block_quote> A termination of parental rights was vacated where there were questions of fundamental fairness raised by issues concerning service and a hearing which lasted only twenty minutes at which no counsel was present for the mother. Her arrival in the courtroom after the completion of the hearing does not constitute a waiver of notice.</block_quote>