Volume 184 — North Carolina Court of Appeals Reports

<bold>1. Embezzlement — by public officer — sheriff — instruction — fraudulent</bold> <bold>intent</bold> <block_quote> The trial court did not err in an embezzlement by a public officer case by its instruction to the jury explaining the element of fraudulent intent, because: (1) N.C.G.S. § <cross_reference>14-92</cross_reference> encompasses two forms of embezzlement by a public officer; (2) although only the first portion of the statute applied and language was pulled from the second portion, it did not misstate the definition of intent required by the crime described in the first portion of the statute; and (3) the instruction given by the court equated to "defendant fraudulently or with unlawful intent failed to give certain money to those entitled to it in spite of a legal requirement to do so."</block_quote> <bold>2. Constitutional Law — right to unanimous verdict — embezzlement by</bold> <bold>public officer — fraudulent intent instruction</bold> <block_quote> Although defendant contends it is impossible to determine whether the jury unanimously concluded that defendant acted with fraudulent intent in an embezzlement by a public officer case based on the trial court's alleged misstatement of the requirement of fraudulent intent in its instructions, the Court of Appeals already concluded the instruction was correct.</block_quote> <bold>3. Embezzlement — by public officer — sheriff — failure to instruct on</bold> <bold>lesser-included offenses</bold> <block_quote> The trial court did not err in an embezzlement by a public officer case under N.C.G.S. § <cross_reference>14-92</cross_reference> by refusing to instruct the jury on two alleged lesser-included offenses including violations under N.C.G.S. §§ <cross_reference>159-8</cross_reference>(a) and <cross_reference>159-181</cross_reference>(a), because the two offenses defendant requested to be included in the jury instructions do not qualify as lesser-included offenses when they do not have the same essential elements or require additional facts to be proven.</block_quote> <bold>4. Embezzlement — by public officer — sheriff — refusal to instruct on</bold> <bold>good faith mistaken belief</bold> <block_quote> The trial court did not err in an embezzlement by a public officer case by refusing to instruct the jury that a good faith mistaken<page_number>Page 150</page_number> belief that defendant sheriff was not violating the law was a defense, because: (1) all of the terms in the instruction conveyed the fact that if the jury decided that defendant had made a good faith mistake, they could not find him guilty of the charge; and (2) the jury instructions inherently included an instruction on good faith mistake.</block_quote>

<bold>Agency — principal-agent relationship — Department of Health and Human</bold> <bold>Services — county Department of Social Services</bold> <block_quote> The Court of Appeals granted appellee Department of Health and Human Services's (DHHS) motion to dismiss the appeal filed by Onslow County DSS and New Hanover County DSS regarding<page_number>Page 184</page_number> the orders entered 20 January 2006 as amended 2 February 2006, finding the juveniles dependent, giving custody of two of the minor children to Onslow County DSS and New Hanover County DSS, transferring venue to those counties, and the 21 March 2006 order allowing the intervention of DHHS, because: (1) there is a principal-agent relationship between DHHS and the DSS of individual counties; (2) the director of each county's DSS is required, as part of its duties and responsibilities under N.C.G.S. § <cross_reference>108A-14</cross_reference>, to act as agent of the Social Services Commission and DHHS in the county; and (3) the nature of the relationship would be destroyed if the agent were capable of acting on the principal's behalf without being subject to the principal's authority and direction.</block_quote>

<bold>1. Corporations — LLC member — no derivative liability</bold> <block_quote> The trial court properly granted summary judgment for defendant Honeywell on claims arising from exposure to toxic chemicals at a chemical plant. Defendant did not have derivative liability for the acts of the LLC of which it was a member; N.C.G.S. § <cross_reference>57C-3-30</cross_reference>(a) is clear that mere participation in the business affairs of a limited liability company by a member is insufficient standing alone to hold the member independently liable for harm caused by the LLC.</block_quote> <bold>2. Workers' Compensation — exclusivity provisions — liability of LLC</bold> <bold>member-duty owed by LLC</bold> <block_quote> Defendant Honeywell was protected by the exclusivity provisions of the Workers' Compensation Act in an action for exposure to toxic chemicals at a manufacturing plant owned by an LLC of which it was a member. Honeywell neither promised nor assumed an independent duty to plaintiff; the LLC, not Honeywell, owed a nondelegable duty to provide a safe workplace.</block_quote> <bold>3. Employer and Employee — workplace safety — LLC member — no independent</bold> <bold>duty</bold> <block_quote> Defendant Honeywell, who was not plaintiff's employer, did not owe plaintiff an independent duty to provide for workplace safety through Honeywell's alleged liability under environmental statutes.</block_quote><page_number>Page 318</page_number>

<bold>1. Elections — judicial — one man, one vote not applicable</bold> <block_quote> The principle of one man, one vote is not constitutionally required in the election of judges because judges serve the people rather than represent them.</block_quote> <bold>2. Evidence — hearsay — AOC preclearance documents — public record not</bold> <bold>excluded</bold> <block_quote> The trial court erred in a judicial districting case by admitting an exhibit from the AOC Director only on a limited basis. Public records and reports are not excluded by the hearsay rule; this document was prepared pursuant to the AOC Director's statutory duty to obtain preclearance of districts from the United States Department of Justice under the Voting Rights Act and was admissible under N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 803(8).</block_quote><page_number>Page 328</page_number> <bold>3. Elections — judicial districts — not arbitrary</bold> <block_quote> The trial court erred by concluding that the General Assembly had acted arbitrarily and capriciously when it established Superior Court districts for Wake County. The concerns addressed by the General Assembly were compelling state interests, and the facts in the record reasonably justify the General Assembly's action.</block_quote>

<bold>1. Search and Seizure — search warrant — probable cause</bold> <block_quote> There was probable cause to support a search warrant that was based on the activities of a confidential informant where defendant did not challenge the factual accuracy of the statements in the affidavit, and the affidavit was easily sufficient to establish probable cause for issuance of a warrant to search defendant's house for narcotics.</block_quote> <bold>2. Evidence — identity of confidential informant — pretrial motion to</bold> <bold>disclose-showing of need not met</bold> <block_quote> The trial court did not err by denying defendant's pretrial motion to identify a confidential informant where defendant was charged with possession offenses, not with selling drugs to the confidential informant, and the evidence was uncontradicted that the confidential informant's only role was to make a controlled buy as part of the initial police investigation.</block_quote> <bold>3. Evidence — identity of confidential informant — trial testimony —</bold> <bold>pretrial motion to disclose not renewed</bold> <block_quote> The trial court did not err by denying defendant's motion to reveal the identity of a confidential informant based on trial testimony and the argument that the informant could have offered testimony helpful to his defense. Defendant failed to renew his pretrial motion for disclosure of the confidential informant's identity and never asked the trial court to reconsider its pretrial ruling in light of the trial evidence.</block_quote><page_number>Page 337</page_number>

<bold>1. Process and Service — guardian of person — failure to appoint guardian</bold> <bold>ad litem</bold> <block_quote> The trial court erred in a negligence, ultra-hazardous activity, and loss of consortium case arising out of an injury while gem mining on the incompetent defendant's real property by concluding that defendant was properly sued and served through her guardian of the person, because: (1) the legislature's decision to confer power to maintain an action on a general guardian but not a guardian of the person implies that the latter lacks such power; (2) N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 17(b)(2) requires appointment of a guardian ad litem where no general or testamentary guardian has been appointment; and (3) defendant was neither properly sued nor served in the absence of a guardian ad litem or general guardian.</block_quote> <bold>2. Discovery — failure to appear at deposition — sanctions — failure to</bold> <bold>consider lesser sanctions before striking defenses — abuse of</bold> <bold>discretion</bold> <block_quote> The trial court abused its discretion in a negligence, ultra-hazardous activity, and loss of consortium case arising out of an injury while gem mining on defendant's real property by granting plaintiffs' motion for sanctions against defendants for failure to appear at a deposition by barring defendants from denying liability and limiting the trial to damages because the trial court did not consider any lesser sanctions before striking defendants' defenses on the issue of liability.</block_quote>

<bold>1. Sexual Offenses — short form — sexual offenses — specific acts not</bold> <bold>mentioned — instructions and verdict sheets specific</bold> <block_quote> There was no error where the indictment for numerous charges of sexual offenses by defendant with his daughter did not list the underlying sexual acts, but the jury was instructed on the specific acts in the instructions and the verdict sheets. The use of short-form indictments in charging sexual offenses and indecent liberties is permitted.</block_quote> <bold>2. Appeal and Error — preservation of issue — motions sufficient</bold> <block_quote> Defendant preserved his right to appeal the failure to dismiss all of the counts against him (despite the State's contention that he had preserved appeal from only five) where he made a motion to dismiss at the close of the State's evidence, presented arguments as to five of the charges, renewed the motion at the close of his case in chief, and moved to dismiss all of the charges after the jury returned the guilty verdicts.</block_quote> <bold>3. Indecent Liberties — sufficiency of evidence — doctor's unsupported</bold> <bold>evidence</bold> <block_quote> The trial court erred by denying defendant's motion to dismiss a charge of indecent liberties that was based on defendant asking his daughter to perform fellatio. The daughter provided no testimony to support this charge; a doctor's testimony that the daughter had told her about defendant's request was not sufficient.</block_quote> <bold>4. Rape — attempted statutory rape — attempted incest — sufficiency of</bold> <bold>evidence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss charges of attempted statutory rape and attempted incest. Although there was no evidence that defendant attempted to have intercourse with his daughter, there was sufficient evidence that he wanted to and his sexual acts with his daughter constitute actions beyond mere preparation.</block_quote><page_number>Page 554</page_number> <bold>5. Sexual Offenses — disseminating sexual material to daughter — material</bold> <bold>not shown to jury — evidence sufficient</bold> <block_quote> The trial court acted properly in denying defendant's motion to dismiss a charge of disseminating obscene material to his daughter. The State is not required by the statute to produce the precise material alleged to be obscene, and no case law requires that a jury be shown the material. The victim was able to describe the pictures in detail, and to testify that the photographs shown to her by the State were substantially similar to those shown by defendant. Moreover, a detective testified about seizing diskettes containing photographs, some of which involved young women with blond hair, similar to defendant's daughter.</block_quote> <bold>6. Sexual Offenses — sufficiency of evidence — position of power</bold> <block_quote> The trial court acted properly in denying defendant's motion to dismiss charges of second-degree forcible sexual offense against his daughter. There was sufficient evidence from which a reasonable jury could conclude that defendant used his position of power as the victim's father to force her to engage in various sexual acts.</block_quote> <bold>7. Rape — sufficiency of evidence — attempted second-degree — against</bold> <bold>daughter — position of power</bold> <block_quote> There was sufficient evidence presented to sustain defendant's conviction for the attempted second-degree forcible rape of his daughter, and the trial court acted properly in denying defendant's motion to dismiss. There was sufficient evidence that defendant attempted to have sex with the victim, and his relationship with her was one in which he held a position of power which he used in such a way as to constitute constructive force.</block_quote> <bold>8. Assault — against female — no age limit</bold> <block_quote> The age limit in N.C.G.S. § <cross_reference>14-33</cross_reference>(c)(3) for assaulting a child under 12 does not apply to any assault against a female under N.C.G.S. § <cross_reference>14-33</cross_reference>(c)(2). Nothing in the latter statute, under which defendant was indicted, tried, and convicted, requires the victim to be under a certain age.</block_quote> <bold>9. Assault — sufficiency of evidence — fondling</bold> <block_quote> There was sufficient evidence that defendant assaulted his daughter by fondling her breasts on a particular morning where<page_number>Page 555</page_number> she testified that she was awakened in the usual way, by his hands up her bra or down her pants.</block_quote> <bold>10. Rape — statutory — evidence of age — not sufficient</bold> <block_quote> The trial court should have granted defendant's motion to dismiss the charge of first-degree statutory rape where there was insufficient evidence of vaginal intercourse prior to the victim turning thirteen. Although the victim stated unequivocally that defendant began touching her earlier, she was thirteen when defendant began having sexual intercourse with her.</block_quote> <bold>11. Indictment and Information — indictment citing wrong statute —</bold> <bold>validity</bold> <block_quote> Although an indictment may cite the wrong statute, it remains valid when the body of the indictment is sufficient to properly charge defendant with an offense, and indictments which put defendant on notice that he was being charged under N.C.G.S. § <cross_reference>14-27.4</cross_reference>(a)(1) were valid even though they listed N.C.G.S. § <cross_reference>14-27.7A</cross_reference> as the statute allegedly violated.</block_quote> <bold>12. Sexual Offenses — against child — evidence of age — not sufficient</bold> <block_quote> The trial court erred by denying defendant's motions to dismiss four counts of first-degree sexual offense against a child under the age of thirteen where the victim's testimony did not constitute sufficient evidence to support the reasonable inference that the offenses were committed prior to the victim turning thirteen.</block_quote> <bold>13. Appeal and Error — failure to object — unanimity of verdict</bold> <block_quote> A defendant's failure to object at trial to a possible violation of his right to a unanimous jury verdict does not waive his right to appeal the issue. The issue may be raised for the first time on appeal.</block_quote> <bold>14. Constitutional Law — unanimous verdict — sexual offenses —</bold> <bold>indictments not specific</bold> <block_quote> Defendant was not deprived of his right to a unanimous jury verdict where the indictments did not include the specific acts which constituted the alleged sexual offenses but were valid, the jury instructions and verdict sheets specifically identified each case by number, date and the specific acts which were to serve as the underlying basis, the jury was instructed specifically that<page_number>Page 556</page_number> each of the acts serving as the basis for the separate counts must have occurred on a date different than in the other cases charging the same offense with the same victim, and the jury was polled following the verdicts, further insuring unanimity.</block_quote> <bold>15. Constitutional Law — double jeopardy — sexual offenses — indictments</bold> <bold>not specific</bold> <block_quote> Defendant was not subjected to double jeopardy where he alleged that the indictments for the sexual abuse of his daughter and stepdaughter did not differentiate the offenses, but the indictments were sufficient to inform defendant of the charges against him, and he did not show any deprivation of his ability to prepare a defense.</block_quote>

<bold>1. Motor Vehicles — automobile accident — expert testimony — speed —</bold><bold>stopping distance</bold> The trial court did not err in a negligence case arising out of an automobile accident by admitting the testimony of the defendants' accident reconstruction expert even though plaintiff contends it constituted improper expert testimony regarding the speed third-party defendant driver was traveling, because: (1) although our legislature has recently amended N.C.G.S. § <cross_reference>8C-1</cross_reference>, Rule 702 to overturn the doctrine that an expert witness may not testify regarding the speed of a vehicle unless he personally observed the vehicle, the amendment applies only to offenses committed on or after 1 December 2006, and the automobile collision in this case occurred on 13 March 2003; and (2) the expert's testimony did not amount to an opinion on third-party defendant's speed, but rather was the type of testimony admissible even under the previously existing law when he used his scientific expertise to perform an experiment that demonstrated stopping distances at various speeds. <bold>2. Motor Vehicles — contributory negligence — speeding — sufficiency of</bold><bold>evidence</bold> The trial court did not err by denying motions by plaintiff and third-party defendant for a directed verdict on the issue of contributory negligence in a case arising out of an automobile accident,<page_number>Page 678</page_number> because: (1) evidence that a party was exceeding the posted speed limit is sufficient to send the issue of contributory negligence to the jury, and the jury could have drawn this inference based on an accident reconstruction expert's testimony as to stopping distances at various speeds; and (2) the evidence was sufficient to allow a jury to find that had third-party defendant not been speeding, she would have been able to stop in less than 54 feet which would have brought her vehicle to a halt prior to any impact, thus demonstrating a causal connection between her excessive speed and the resulting accident. <bold>3. Costs — arbitration fee — deposition fee — expert witness fee</bold> The trial court did not abuse its discretion in a negligence case arising out of an automobile accident by awarding costs to third-party plaintiffs on various grounds, because: (1) plaintiff and third-party defendant have not cited any authority suggesting that costs are unavailable when paid for by defendants' insurance carrier under the insurance policy, and at least one other jurisdiction has rejected this argument; (2) N.C.G.S. § <cross_reference>6-1</cross_reference> should not preclude a recovery of costs under these circumstances when it identifies to whom costs may be awarded, but does not limit recovery to unreimbursed costs; (3) although plaintiff and third-party defendant point to N.C.G.S. § <cross_reference>7A-305</cross_reference>(d) for the notion that certain specified expenses when incurred are recoverable as costs, they do not suggest defendants would not have been liable for the expenses had the carrier not paid them; (4) the arbitration fee was recoverable as it is specifically enumerated in N.C.G.S. § <cross_reference>7A-305</cross_reference>(d); (5) although there is no statutory authority for awarding deposition fees as costs, these fees have been allowed as common law costs, and there has been no showing of an abuse of discretion; and (6) although plaintiff and third-party defendant contest the expert witness fee of $1,060 including the expert's time spent reviewing the case materials, talking with the investigating police officer, and conducting the stopping-distance experiment, our appellate courts have previously upheld the award of an expert witness fee for time spent outside of testifying.

<bold>1. Appeal and Error — contested case — guidelines</bold> Appellate review of the superior court's consideration of a contested case petition was to determine whether the trial court exercised the appropriate scope of review and whether it did so properly. <bold>2. Administrative Law — contested case-appeal to superior court —</bold><bold>standard of review</bold> The superior court applied the correct standard of review to a contested case involving a dismissed DMV enforcement officer where the State Personnel Commission did not adopt the ALJ's decision. The superior court was therefore required to review the official record de novo and to make its own findings of fact and conclusions of law. <bold>3. Public Officers and Employees — dismissal of employee" violation of</bold><bold>rule not willful</bold> The superior court did not err on de novo review of the dismissal of a DMV enforcement officer by holding that the officer had violated a rule when he solicted car dealerships for funding for two captains' meetings, but not willfully, and by concluding that his actions did not rise to the level of just cause for dismissal.<page_number>Page 714</page_number>

<bold>1. Pleadings — motion to amend — allowance after trial — failure to state</bold><bold>a claim added</bold> The trial court abused its discretion in an action seeking access to grave sites by allowing respondent's motion to amend to add a motion to dismiss for failure to state a claim after a trial. N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 12(h)(2) clearly provides that a motion to dismiss under Rule 12 (b)(6) may be made in a pleading or at a trial on the merits; here, although the trial court had not entered a written judgment, a judgment had been rendered in favor of petitioner and the trial on the merits had concluded. <bold>2. Cemeteries — access to grave site — not a taking</bold> In a case decided on other grounds, the Court of Appeals stated that N.C.G.S. § <cross_reference>65-74</cross_reference> (which provides for access to another's property for the purposes of discovering, restoring, maintaining or visiting a grave) is a proper exercise of a police power and therefore not subject to the constitutional and fundamental provision that private property shall not be taken for a public use without just compensation.

<bold>1. Appeal and Error — appealability — denial of change of venue —</bold><bold>possibility of inconsistent verdicts — substantial rights</bold> Although the denial of motions for change of venue and to consolidate are generally not immediately appealable, the denials are immediately appealable in this case because: (1) the right to venue established by statute is a substantial right; and (2) a substantial right is affected in this case when the same factual issues would be present in both trials and the possibility of inconsistent verdicts on those issues exists.<page_number>Page 742</page_number> <bold>2. Abatement — motion to consolidate actions — relation back rule</bold> The trial court did not abuse its discretion by denying defendant subcontractor's motion under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 42 to consolidate this action with its action against plaintiff general contractor in a different county to enforce its claim of lien, because: (1) in North Carolina, where a prior action is pending between the same parties for the same subject matter in a court within the state having like jurisdiction, the prior action serves to abate the subsequent action; (2) although N.C.G.S. § <cross_reference>44A-10</cross_reference> causes the claim of lien to relate back to the first date defendant provided materials, it has nothing to do with the effective date of the action to enforce the claim; and (3) plaintiff's action, filed in Mecklenburg County, predates defendant's action filed in Watauga County, and thus the latter action is abated. <bold>3. Venue — denial of motion to change — necessary party — principal place</bold><bold>of business</bold> The trial court did not err by denying defendant's motion for change of venue, because: (1) the only basis defendant claims for its basis to change venue is that Watauga County is a necessary party to its action to enforce its liens, and the county can no longer be deemed a necessary party to the action when that action has abated; and (2) Mecklenburg County was a proper venue under N.C.G.S. § <cross_reference>1-79</cross_reference>(a)(1) when plaintiff stated its principal place of business is in Mecklenburg County.