Volume 191 — North Carolina Court of Appeals Reports

<bold>1. Sexual Offenses — exploitation of minor — computer images — knowledge</bold> <bold>of character or content of files</bold> <block_quote> The evidence that defendant had knowledge of the character or content of material on his computer was sufficient to deny his motion to dismiss a charge of third-degree sexual exploitation of a minor, even if the statute required knowledge of both the character and content of the material.</block_quote> <bold>2. Sexual Offenses — exploitation — images on a computer — possession</bold> <block_quote> The evidence that defendant was in possession of child pornography on a computer was sufficient in a prosecution for third-degree sexual exploitation of a minor.</block_quote><page_number>Page 87</page_number> <bold>3. Sexual Offenses — amendment of indictment — sexual exploitation of</bold> <bold>minor — date of offense</bold> <block_quote> The trial court did not err by allowing the State to amend indictments for third-degree sexual exploitation of a minor to change the date of each count where time was not an essential element of the crime and defendant did not present an alibi defense.</block_quote> <bold>4. Evidence — child pornography — video clips shown to jury — no abuse of</bold> <bold>discretion</bold> <block_quote> The trial court did not abuse its discretion in a prosecution for third-degree sexual exploitation of a minor by allowing the State to show the jury twelve video clips of children engaged in sexual activity. Defendant had stipulated that the computer contained images of sexual activity, but a stipulation does not preclude the State from proving all of the essential elements of its case, and a non-duplicative, brief presentation of the evidence was appropriate as it served as the basis for the charges.</block_quote>

<bold>1. Tort Claims Act — school bus accident — exclusive jurisdiction in</bold> <bold>Industrial Commission</bold> <block_quote> The Industrial Commission had exclusive jurisdiction over claims arising from a school bus accident in which a child riding a bicycle fell into the path of the bus, and the trial court did not err by dismissing claims filed in superior court. The legislative intent was for N.C.G.S. § <cross_reference>143-300.1</cross_reference> to allow the Industrial Commission to hear tort claims alleging negligence arising<page_number>Page 132</page_number> from and inseparably connected to events occurring at the time a school bus driver was operating the bus in the course of her employment.</block_quote> <bold>2. Schools and Education — bus accident — sovereign immunity not waived</bold> <block_quote> Even if the Industrial Commission did not have exclusive jurisdiction, the trial court did not err by dismissing claims arising from a school bus accident where defendant did not waive governmental immunity. Exclusions relating to automobiles in the board's risk management program and excess liability coverage applied here.</block_quote>

<bold>Termination of Parental Rights — willfully leaving children in foster</bold> <bold>care without reasonable progress — clear, cogent, and convincing</bold> <bold>evidence</bold> <block_quote> The trial court did not err by concluding that grounds existed to terminate respondent mother's parental rights because: (1) there was clear, cogent, and convincing evidence to support the trial court's determination under N.C.G.S. § <cross_reference>7B-1111</cross_reference>(a)(2) that respondent willfully left the children in foster care for more than twelve months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made; (2) respondent failed to complete the NOVA program to address domestic violence issues; (3) respondent failed to attend therapy sessions on a regular basis as recommended; and (4) respondent did not comply with her case plan and failed to address the issues which led to the removal of her children.</block_quote>

<bold>1. Taxation — ad valorem — present use schedule — soil type key</bold> <block_quote> The Property Tax Commission did not err when it concluded that there was no deficiency in a present-use schedule because of the absence of a soil type key. The information in the schedule of values provided sufficient detail to enable those making appraisals to adhere to the schedule; the burden is on the taxpayer to show the class of land in which his property fits and to obtain the soil values for his particular land from the department of agriculture.</block_quote> <bold>2. Taxation — ad valorem — value schedule — sufficiently detailed</bold> <block_quote> The Property Tax Commission did not err by concluding that a true value schedule contained enough detail to comply with N.C.G.S. § <cross_reference>105-317</cross_reference>(b). Although the taxpayer contended that a schedule of values, standards and rules must contain all of the statutory factors listed in N.C.G.S. § <cross_reference>105-317</cross_reference>(b)(1), the cases on which the taxpayer relied did not overrule prior cases and did not hold that each of the statutory factors must be considered. While the schedule of values here did not reveal specific mention of water power, water rights, or mineral deposits, taxpayer made no showing that those factors actually influenced the value of land in that county.</block_quote> <bold>3. Taxation — ad valorem — schedule of value — legal restrictions —</bold> <bold>sufficiently detailed</bold> <block_quote> A county schedule of values for property tax valuation was not required to include an adjustment for certain governmental restrictions, including The Clean Water Act, The Food Security Act, and The N.C. Sedimentation Pollution Control Act. When a county's schedule of values, standards and rules includes a general reference to legal restrictions on land use, it need not list every type of restriction in order to be sufficiently detailed.</block_quote><page_number>Page 314</page_number> <bold>4. Taxation — ad valorem — valuation — shared ownership — no adjustment</bold> <block_quote> Property tax valuations in North Carolina are governed by the Machinery Act, not by the Internal Revenue Code, and there is no provision in the Machinery Act or the cases under it for the valuation of property to be adjusted for shared ownership, including tenancy in common.</block_quote> <bold>5. Taxation — ad valorem — valuation schedules — neighborhood information</bold> <bold>— sufficient for those making appraisal</bold> <block_quote> The detail in a county's schedule of values for property taxes contained sufficient information about neighborhoods for those making the appraisals to adhere to them in making appraisals.</block_quote> <bold>6. Taxation — ad valorem — valuation schedules — lot size</bold> <block_quote> A county schedule of values for property tax valuation was not insufficient because it did not contain a table of incremental and decremental rates for use in calculating valuations for properties of greater or lesser size than the base size listed in the tables in the schedule. Tract or lot size was not mentioned in N.C.G.S. § <cross_reference>105-317</cross_reference>(a)(1) as a factor in determining the value of land, and it was not error for the county's schedule of values to not include incremental and decremental rates; however, lot size may be relevant in valuing property.</block_quote> <bold>7. Taxation — ad valorem — evidence before Commission — not prejudicial</bold> <bold>— review de novo</bold> <block_quote> There was no prejudice in a proceeding before the Property Tax Commission in the admission of testimony about the legal sufficieny of a county's schedule of values. The taxpayer's appeal was based strictly on the facial validity of the schedule and de novo review was conducted accordingly.</block_quote>

<bold>1. Obstruction of Justice — resisting an officer — fleeing</bold> <block_quote> The trial court properly dismissed a charge of resisting a public officer where defendant was approached by an officer who knew him in a known drug area, defendant asked if the officer wanted to search him again, and then fled after the officer said yes. Flight from a consensual encounter cannot be used as evidence that defendant was resisting, delaying, or obstructing the officer.</block_quote> <bold>2. Drugs — constructive possession — crack cocaine found along route of</bold> <bold>fleeing defendant</bold> <block_quote> The trial court properly denied a motion to dismiss a charge of possessing cocaine with intent to sell or deliver where defendant ran from officers and the crack cocaine was found along the route followed by defendant shortly after he was apprehended. The circumstances create a reasonable inference that the drugs came from defendant.</block_quote> <bold>3. Criminal Law — instructions — flight</bold> <block_quote> There was no plain error in instructing the jury on defendant's flight in considering a cocaine possession charge where defendant fled after an officer indicated that he wanted to search defendant.</block_quote> <bold>4. Drugs — instructions — constructive possession</bold> <block_quote> The trial court did not err by instructing the jury on constructive possession of cocaine where the drugs were found along the path defendant had followed as he fled from officers.</block_quote> <bold>5. Sentencing — habitual felon — indictment not defective</bold> <block_quote> An habitual felon indictment was not fatally defective where it did not allege that defendant was at least eighteen years<page_number>Page 486</page_number> old at the time of at least two prior convictions (the indictment need not allege defendant's age or date of birth); the statement that the felonies were committed in violation of the General Statutes and that defendant was convicted in Superior Court in North Carolina sufficiently named the state against whom the felonies were committed; there was sufficient notice that defendant was being tried as a recidivist; and, the indictment is not fatally defective for its failure to indicate that a detective testified before the Grand Jury.</block_quote>

<bold>1. Juveniles — cars damaged — insufficiency of evidence of some counts —</bold> <bold>entire adjudication remanded</bold> <block_quote> A juvenile adjudication was reversed and remanded where the proceeding arose from a series of incidents in which cars were damaged by rocks, respondent's statements did not amount to a general admission, and the State did not present substantial evidence of respondent's participation in seven of the nine offenses. It could not be determined whether the disposition order would have been altered had the trial court properly adjudicated respondent delinquent based solely on the two petitions on which the State presented sufficient evidence.</block_quote> <bold>2. Appeal and Error — preservation of issue — basis of objection at trial</bold> <bold>— oral motion for joinder at proceeding</bold> <block_quote> A juvenile did not preserve for appeal the question of whether the State's oral motion for joinder should have been written because he objected at trial on a different ground. However, even if it had been preserved, it has been held that an oral motion may be made in the judge's discretion, and respondent neither argued nor demonstrated that the trial court abused its discretion in this regard.</block_quote>

<bold>1. Appeal and Error — preservation of issues — assignments of error —</bold> <bold>supporting argument or case law required</bold> <block_quote> Assignments of error which were not supported by argument or case law were deemed abandoned.</block_quote> <bold>2. Construction Claims — breach — unworkmanlike construction of sea wall</bold> <bold>— motion to dismiss denied</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss a breach of contract claim which arose from the construction of a rip rap sea wall and subsequent erosion. The court's findings support its conclusion that the sea wall was constructed in an unworkmanlike manner so that soil and sand could pass through the fabric under the rip rap and erosion could occur.</block_quote><page_number>Page 546</page_number> <bold>3. Damages — repair of sea wall — conflicting evidence — non-jury trial</bold> <block_quote> The trial court did not err in a nonjury trial in its award of damages for repair of a sea wall built in an unworkmanlike manner where there was evidence to support the damages awarded, even though the award was less than the cost of repair estimated by plaintiffs' expert. The credibility and weight of the evidence was for the court.</block_quote>

<bold>1. Obstruction of Justice — juvenile — sufficiency of evidence</bold> <block_quote> There was sufficient evidence for the trial court to find a juvenile delinquent for resisting, delaying, and obstructing an officer during an investigation of missing cash at an Extension Service office.</block_quote><page_number>Page 553</page_number> <bold>2. Search and Seizure — consent to search body — inside of mouth</bold> <block_quote> A juvenile's consent to a search of his body extended to his mouth where the officer was investigating missing money, defendant consented to a search, defendant became unresponsive to the officer's questions and would not make eye contact, and the officer saw something in defendant's mouth.</block_quote> <bold>3. Breaking and Entering — juvenile — money taken from purse in office</bold> <block_quote> There was sufficient evidence to support a charge of felonious breaking or entering and larceny and to find a juvenile delinquent where defendant was sitting in a library across the hall from the office of an Extension Service director, she left her office for about five minutes and was greeted by defendant standing in her office, defendant did not have permission to be in the office, the director discovered that her pocket book had been tampered with, and there was money missing. The director's office is in a public building, but her job functions do not require public access to her office, so that there was no implied consent to the juvenile's entry into her office; even if there had been, stealing cash from the director's purse voids that consent ab initio.</block_quote> <bold>4. Larceny — money taken from purse — evidence sufficient</bold> <block_quote> The evidence was sufficient to deny a juvenile's motion to dismiss a charge of felonious larceny pursuant to a breaking or entering where defendant was seen across the hall from an office, an occupant of the office left for about five minutes and returned to find defendant in her office, defendant did not have permission to be in the office, and her purse had been tampered with and money was missing.</block_quote>

<bold>1. Appeal and Error — appealability — partial denial of summary judgment</bold> <bold>— governmental immunity</bold> <block_quote> An appeal from the denial of summary judgment involving governmental immunity was interlocutory but properly before the Court of Appeals.</block_quote> <bold>2. Immunity — public duty doctrine — suit in individual capacity</bold> <block_quote> The public duty doctrine does not extend to government workers sued only in their individual capacities, and summary judgment was properly denied to defendants on that ground in an action against employees of a county health department arising from the failure of a septic system.</block_quote> <bold>3. Immunity — public officers — not available</bold> <block_quote> Public officers immunity was not available to health department employees in the positions of Environmental Health Specialist and Environmental Health Supervisor, and the trial court correctly denied summary judgment for defendants on that issue in an action arising from the failure of a septic system.</block_quote>

<bold>Searches and Seizures — multiple dwellings on one property — warrant not</bold> <bold>sufficiently specific</bold> <block_quote> The trial court correctly granted a motion to suppress cocaine and drug paraphernalia seized pursuant to a search warrant which described two dwellings on the property to be searched and the purchase of a controlled substance at that location by a confidential informant. When there are two dwellings described under a single address and in the absence of allegations about the target of the investigation, the supporting affidavit must allege facts sufficient to establish probable cause to search either or both buildings.</block_quote>

<bold>1. Pleadings — Rule 11 sanctions — complaint seeking injunction — damages</bold> <bold>or harm not alleged</bold> <block_quote> The trial court did not err by granting Rule 11 sanctions for a pro se complaint seeking an injunction that did not allege damage or irreparable harm. Had plaintiff read the applicable law, he would have concluded that his complaint was not warranted by existing law and was insufficient to state a claim upon which relief could be granted.</block_quote> <bold>2. Pleadings — Rule 11 sanctions — multiple claims against other tenants</bold> <bold>— improper purpose</bold> <block_quote> The trial court did not err when granting Rule 11 sanctions by concluding that plaintiffs claims were filed for an improper purpose. Plaintiff suffered no actual harm, yet filed complaints against his landlord and other tenants living in his complex. Also indicative of improper purpose are the forty-two actions filed in the last six years, including one alleging identical conduct which was dismissed.</block_quote>

<bold>1. Civil Procedure — judgment entered out of session — untimely</bold> <bold>objection</bold> <block_quote> The trial court did not err by entering judgment out of session in a case alleging misconduct by an arbitrator because plaintiff failed to lodge a timely objection, and her consent was presumed under N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 58 where the session was concluded at 12:00 noon on a Friday and plaintiff filed a written objection at 4:49 p.m. on that day.</block_quote> <bold>2. Pleadings — Rule 11 sanctions — gatekeeper order — good faith reliance</bold> <bold>upon attorney certification</bold> <block_quote> The trial court did not err in a case alleging misconduct by an arbitrator by imposing N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 11 sanctions against plaintiff even though she contends she relied in good faith upon the certification of an attorney because: (1) a certification by an attorney required by a prior gatekeeper order does not insulate plaintiff from Rule 11 sanctions; (2) plaintiff signed the amended complaint as a pro se plaintiff and not in conjunction with an attorney; (3) nothing in the record indicated that plaintiff objectively relied upon the attorney's certification to form a reasonable belief that she had a valid claim against defendant, but instead the amended complaint showed that plaintiff prepared it and submitted it to the attorney for review as required by the gatekeeper order; (4) the attorney did not suggest to plaintiff that she file the complaint; and (5) the position taken by plaintiff on appeal is directly contrary to that taken by her before the trial court.</block_quote> <bold>3. Pleadings — Rule 11 sanctions — findings of fact — conclusions of law</bold> <bold>— collateral estoppel — judicial immunity</bold> <block_quote> The trial court did not err in a case alleging misconduct by an arbitrator by imposing N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 11 sanctions even though plaintiff contends they were not supported by the findings of fact and conclusions of law because: (1) plaintiff's action was barred by collateral estoppel as a result of the entry of an order confirming the arbitrator's award in the pertinent prior case where plaintiff was afforded a full and fair opportunity to litigate these same issues; (2) plaintiff failed to assign error to specific<page_number>Page 714</page_number> findings of fact and instead resorted to an impermissible broadside attack; (3) plaintiff's brief merely argued, without citation of case authority, that her complaint was not frivolous; (4) contrary to plaintiff's argument, there was nothing in the record indicating a letter from the arbitrator was ever before the judge in connection with the prior matter; and (5) plaintiff's action was barred by judicial immunity applicable to arbitrators since the complaint alleged conduct within the course and scope of the arbitration proceeding.</block_quote> <bold>4. Constitutional Law — right to jury — Rule 11 sanctions</bold> <block_quote> The trial court did not violate plaintiff's right to a trial in a case alleging misconduct by an arbitrator by imposing N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 11 sanctions without a jury because there is no right to a jury trial when considering the facts underlying a Rule 11 sanction.</block_quote> <bold>5. Pleadings — Rule 11 sanctions — consideration of lesser sanctions —</bold> <bold>reasonableness of amount</bold> <block_quote> The trial court did not err in a case alleging misconduct by an arbitrator by imposing N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 11 sanctions allegedly without considering lesser sanctions or making an inquiry into the reasonableness of the award of attorney fees because: (1) the trial court stated it considered all available sanctions; and (2) the order found as fact that the amount of attorney fees awarded to defendant was appropriate based upon the amount of work required by the case and the experience of defense attorneys.</block_quote> <bold>6. Appeal and Error — preservation of issues — failure to cite authority</bold> <bold>— failure to argue</bold> <block_quote> Although plaintiff contends the trial court erred in a case alleging misconduct by an arbitrator by imposing N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 11 sanctions allegedly without giving plaintiff a right to be heard considering the amount of attorney fees, this assignment of error is dismissed because: (1) plaintiff cited no authority to support the contention as required by N.C. R. App. P. 28; (2) even assuming arguendo that the argument had been preserved, plaintiff failed to argue or show how the amount of attorney fees was in any manner unreasonable; and (3) the fact that the trial court rejected plaintiff's arguments does not mean that they were not considered.</block_quote><page_number>Page 715</page_number>

<bold>1. Discovery — cross-examination — referencing police report not produced</bold> <bold>during discovery — remand for findings</bold> <block_quote> The trial court abused its discretion in a robbery with a dangerous weapon case by allowing the State during cross-examination of a defense witness to reference a police report that had not<page_number>Page 769</page_number> been produced to defendant during discovery because: (1) the pertinent discovery statute, N.C.G.S. § <cross_reference>15A-903</cross_reference>(a)(1), provided that the State's files that must be made available to defendant upon request, including defendant's statements, codefendants' statements, witness statements, investigating officers' notices, results of tests and examinations, or any other matter or evidence obtained during the investigation of the offenses alleged to have been committed by defendant; (2) in the instant case the statement was made by a one-time codefendant who later became a witness for defendant, and there was ample evidence the witness would be called to testify, thus putting the State on notice that information related to that witness would need to be turned over; (3) had defense counsel been made aware of the witness's prior inconsistent statement through a proper discovery disclosure, she might have engaged in an entirely different trial strategy including one that did not involve the witness testifying at all; and (4) when one piece of evidence that was not turned over to defendant after a proper request for it has the potential to fundamentally alter a defense strategy, the Court of Appeals may find prejudice. The case is remanded for an evidentiary hearing to determine when the investigating agency or prosecutor discovered or should have discovered the statement, and when they were aware or should have been aware of its relation to the charges brought against defendant.</block_quote> <bold>2. Damages and Remedies — restitution — amount — sufficiency of evidence</bold> <block_quote> The trial court erred in a robbery with a dangerous weapon case by ordering defendant to pay restitution in the amount of $1,500.00, and the case is remanded to the trial court for a new sentencing hearing, because: (1) although the trial court was not required to make findings of fact in this case, no evidence was presented indicating the appropriate amount of restitution; (2) although the prosecutor told the trial court that when the coparticipant pled guilty his sentence included $1,500 in restitution to the victim, prosecutorial statements are not evidence; and (3) there was no testimony from the victim or any other evidence presented at trial or sentencing to support the restitution amount.</block_quote>

<bold>1. Civil Procedure — summary judgment hearing — notice</bold> <block_quote> The trial court did not err in a divorce case by concluding defendant wife received adequate and proper notice of the summary judgment hearing, even though defendant contends the notice of hearing only stated the date and not the time of the hearing, because: (1) defendant failed to show that she did not receive notice of hearing on plaintiff's motion for summary judgment at least ten days prior to the hearing as required by N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 56(c); and (2) plaintiff's notice of hearing was adequate in light of N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 56(c).</block_quote> <bold>2. Divorce — absolute — subject matter jurisdiction — personal</bold> <bold>jurisdiction — proper notice and service</bold> <block_quote> The district court did not lack subject matter jurisdiction and personal jurisdiction even though defendant wife contends she was not properly served with the summons and complaint prior<page_number>Page 790</page_number> to the trial court's entry of absolute divorce because: (1) in regard to subject matter jurisdiction, the court found that plaintiff had been a citizen and resident of North Carolina for more than six months next preceding the institution of this action, and plaintiff and defendant have lived separate and apart for more than one year without resuming the marital relationship; (2) in regard to personal jurisdiction, plaintiff filed an affidavit of service by certified mail on 7 June 2007; (3) plaintiff's verified complaint contained allegations consistent with the trial court's order and was properly treated as an affidavit; and (4) competent evidence supported the court's unchallenged findings of fact.</block_quote>