Volume 192 — North Carolina Court of Appeals Reports

<bold>1. Drugs — maintaining a dwelling for keeping or selling — residence</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of maintaining a dwelling for the keeping or selling of controlled substances. The State presented a confession by defendant that he resided at the home, which is substantial evidence that defendant maintained the dwelling. Although the confession was incompetent, all of the evidence actually admitted which is favorable to the State is to be considered when ruling on the motion.</block_quote><page_number>Page 144</page_number> <bold>2. Drugs — possession of marijuana and intent to sell — same contraband</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss one of two counts of possession of marijuana where he was charged with felony possession and possession with intent to sell or deliver based on marijuana found in a cigar box. A defendant can be convicted of both felony possession and possession with intent to sell or distribute based on the same contraband.</block_quote> <bold>3. Drugs — instructions — possession of drug paraphernalia</bold> <block_quote> Jury instructions on the intent for which defendant possessed drug paraphernalia substantially conformed to the pattern jury instruction to which defendant agreed.</block_quote> <bold>4. Confessions and Incriminating Statements; Drugs — admission of</bold> <bold>unverified confession — erroneous — plain error on maintaining</bold> <bold>dwelling — not plain error on possession</bold> <block_quote> The erroneous admission of a confession through an officer's rough, handwritten, non-verbatim and unverified notes did not produce plain error in convictions for possession of marijuana with intent to sell and deliver and possession of drug paraphernalia due to other evidence. However, the conviction for maintaining a dwelling for keeping or selling a controlled substance based on the confession was plain error.</block_quote>

<bold>1. Child Abuse and Neglect — concerns about parent's competency —</bold> <bold>guardian ad litem for parent not considered — abuse of discretion</bold> <block_quote> The trial court abused its discretion in a child abuse and neglect proceeding by not holding a hearing or making a determination as to whether the biological father (respondent) was incompetent or had diminished capacity and could not adequately protect his own interest. The court's orders in the case<page_number>Page 259</page_number> demonstrate concerns about respondent's competency and capacity that were serious enough to order a psychological evaluation and a suspension of visitation rights, but the record does not show that the court considered appointment of a guardian ad litem.</block_quote> <bold>2. Child Abuse and Neglect — visitation with child — authority delegated</bold> <bold>to DSS — improper</bold> <block_quote> The trial court erred by delegating its judicial power in a child abuse and neglect proceeding by giving DSS sole discretion over respondent's visitation with the child.</block_quote>

<bold>1. Workers' Compensation — lawn care services — not a reasonable medical</bold> <bold>expense</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by denying lawn care services to plaintiff despite the inclusion of such services in a life care plan as a reasonable medical expense. The conclusion that the lawn care services were an ordinary expense of life not included in medical compensation was supported by the findings, and defendants are not necessarily required to pay for each item mentioned in the life care plan.</block_quote> <bold>2. Workers' Compensation — life care plan — reasonable rehabilitative</bold> <bold>service</bold> <block_quote> The Industrial Commission's decision in a workers' compensation case that a life care plan was a reasonable rehabilitative<page_number>Page 489</page_number> service was supported by a physician's opinion that the plan was medically necessary for plaintiff.</block_quote>

<bold>1. Workers' Compensation — continuing disability — total or partial</bold> <bold>disability — medical evaluation</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by concluding the issue of whether plaintiff employee was totally or partially disabled was properly before the Commission for decision because the issue was consistently before the Commission including evidence that: (1) the Commission ordered an independent medical evaluation not only to determine the extent of plaintiff's continued disability, if any, but also to assess whether plaintiff would benefit from a resumption of vocational rehabilitation; (2) plaintiff's own Form 44 application for review raised the issue as well as the relevance of the parties' Form 21 to<page_number>Page 577</page_number> that issue; (3) inasmuch as the Commission decides claims without formal pleadings, it is the duty of the Commission to consider every aspect of plaintiff's claim whether before a hearing officer or on appeal to the full Commission; and (4) the Commission was entitled to seek out additional evidence, such as the medical evaluation, in order to address the issues before it.</block_quote> <bold>2. Workers' Compensation — rebuttable presumption — continuing total</bold> <bold>disability</bold> <block_quote> The Industrial Commission erred in a workers' compensation case by concluding that plaintiff's presumption of continuing total disability had ended, and the case is remanded for a determination of whether defendants have rebutted plaintiff's presumption, because: (1) the final Form 26 provided for payment of total disability benefits for necessary weeks; (2) the Court of Appeals has previously held that an agreement for the payment of compensation, when approved by the Commission, is as binding on the parties as an order, decision, or award of the Commission unappealed from or an award of the Commission affirmed on appeal; (3) the Commission and defendants identified no waiver by plaintiff of the presumption of disability arising from the Form 26; (4) the Commission made no finding that it conducted a hearing at which defendants bore the burden set out in <italic>Kennedy</italic>, <cross_reference>101 N.C. App. 24</cross_reference> (1990), and the record contained no finding by the Commission in any of its opinions and awards that suitable jobs were available for plaintiff and that he was capable of getting one taking into account both his physical and vocational limitations; (5) the Commission's finding that plaintiff reached maximum medical improvement was not the equivalent of a finding that the employee was able to earn the same wage earned prior to injury and does not satisfy defendant's burden of rebutting the presumption; (6) the fact that defendant was capable of earning wages in sedentary work does not rebut the presumption since it relates only to plaintiff's physical limitations and does not establish that suitable jobs exist and that plaintiff was capable of getting one taking into account both his physical limitations, the sedentary work limitation, and his vocational limitations; (7) an employee's release to return to work was not the equivalent of a finding that the employee was able to earn the same wage earned prior to the injury, nor did it automatically deprive an employee of the Form 21/26 presumption; and (8) while an employee cannot recover under N.C.G.S. §§ <cross_reference>97-29</cross_reference> and <cross_reference>97-31</cross_reference> simultaneously, the<page_number>Page 578</page_number> employee has the option of choosing the most favorable recovery, and plaintiff did not elect his remedy when he accepted compensation for his rating under N.C.G.S. § <cross_reference>97-31</cross_reference>.</block_quote> <bold>3. Workers' Compensation — unjustified refusal to cooperate in vocational</bold> <bold>rehabilitation — sufficiency of evidence</bold> <block_quote> The Industrial Commission did not err in a workers' compensation case by concluding that plaintiff employee did not make a proper showing that his unjustified refusal to cooperate in vocational rehabilitation had ceased because: (1) plaintiff's willingness to cooperate was based almost entirely on oral and written expressions of intent unsupported by current conduct corroborating those statements; (2) the lone step undertaken by plaintiff, seeking assistance from the State, occurred only four days before the hearing in front of the deputy commissioner; (3) in assessing the sincerity of plaintiff's representations, the Commission could appropriately consider, as it did, plaintiff's lack of recent, conduct suggesting a willingness to cooperate and any recent conduct inconsistent with his expressed intent; (4) the Commission referred to plaintiff's pre-1995 conduct only in reference to plaintiff's testimony at the hearing that he believed that he had, during that time frame, fully cooperated; and (5) the Commission made ample findings of fact explaining its reasoning and the basis for its credibility determination in refusing to reinstate plaintiff's benefits terminated under N.C.G.S. § <cross_reference>97-25</cross_reference>.</block_quote>

<bold>1. Appeal and Error — appellate rules violations — failure to arrange for</bold> <bold>transcription of proceedings — failure to have transcript within</bold> <bold>sixty days — failure to seek extension of time</bold> <block_quote> The trial court abused its discretion in a negligence case arising out of an automobile accident by granting defendant's motion to dismiss based on a violation of N.C. R. App. P. 7 for plaintiff's failure to arrange for the transcription of the proceedings, failure to have the transcript produced within sixty days following documentation of the transcript arrangement, and subsequent failure to seek an extension of time in which to produce the transcript, because: (1) these grounds were not presented to the trial court in defendant's motion to dismiss plaintiff's appeal, but the motion was instead based on N.C. R. App. P. 11 regarding the time for filing the record on appeal; (2) the grounds upon which the trial court dismissed plaintiff's appeal are contrary to existing law when our Supreme Court has stressed that a party's failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal and only the most egregious violations of nonjurisdictional rules will require dismissal; (3) there was no evidence in the record to support a finding that plaintiff altogether failed to arrange for the transcription of the proceeding; (4) there was no evidence that the failure to have the transcript produced within sixty days was the fault of plaintiff, and the court reporter's failures cannot automatically be attributed to plaintiff; and (5) failing to seek an extension of time in which to produce the transcript was not a valid reason to dismiss plaintiff's appeal.</block_quote><page_number>Page 609</page_number> <bold>2. Appeal and Error — appellate rules violations — failure to serve</bold> <bold>proposed record on appeal within thirty-five days of filing notice of</bold> <bold>appeal</bold> <block_quote> The trial court abused its discretion in a negligence case arising out of an automobile accident by granting defendant's motion to dismiss based on a violation of N.C. R. App. P. 11 for plaintiff's failure to serve a proposed record on appeal on appellee within thirty-five days of filing a notice of appeal, and the order is vacated, because: (1) the thirty-five day period does not begin to run until the court reporter certifies delivery of the transcript; (2) plaintiff's thirty-five days did not expire until 16 August 2007, as delivery was not certified until 12 July 2007; and (3) defendant's motion was untimely as to the requested grounds for dismissal since it stated defendant had not been served with plaintiff's proposed record on appeal on or about 13 June 2007, which was prior to the court reporter's certification of delivery of the transcript.</block_quote> <bold>3. Statutes of Limitations and Repose — tolling — automobile accident —</bold> <bold>rebuttable presumption of valid service</bold> <block_quote> The trial court did not err in a negligence case arising out of an automobile accident by dismissing plaintiff's claims because: (1) the pertinent automobile accident occurred on 16 February 2002, and thus plaintiff had until 17 February 2005 to file her complaint; (2) defendant rebutted plaintiff's presumption of valid service, and plaintiff thereafter failed to bring forth any evidence to show that her cause of action accrued within the limitations period; (3) plaintiff's voluntary dismissal without prejudice did not toll the statute of limitations since defendant was never properly served with the first complaint; and (4) plaintiff did not refile her action until 29 September 2006, which was after the statute of limitations expired.</block_quote>

<bold>1. Appeal and Error — DWI appeal — driver's license revocation — not</bold> <bold>contested by statutory means</bold> <block_quote> A driver's license revocation was beyond the scope of a criminal appeal where defendant did not contest the validity of the revocation order through the means prescribed by statute. N.C.G.S. § <cross_reference>20-16.5</cross_reference>(c) and (g).</block_quote> <bold>2. Courts — dismissal in district court — appeal to superior court —</bold> <bold>legal basis specified</bold> <block_quote> There was no merit in a DWI prosecution to defendant's argument that the State failed to specify the legal basis of the appeal motion to appeal from district to superior court. N.C.G.S. § <cross_reference>15A-1432</cross_reference>(b).</block_quote> <bold>3. Courts — appeal from district to superior court — caption in motion</bold> <block_quote> Defendant did not show prejudice from an incorrect listing of the court, division in the caption of a motion to appeal a DWI dismissal in the district court to the superior court, even assuming that the caption was incorrect.</block_quote> <bold>4. Witnesses — qualification of person drawing blood — testimony of</bold> <bold>highway patrol trooper — sufficiency</bold> <block_quote> A highway patrol trooper's testimony in a DWI prosecution that the person who drew defendant's blood worked in a hospital blood laboratory was sufficient to show that the person was qualified under N.C.G.S. § <cross_reference>20-139.1</cross_reference>(c).</block_quote> <bold>5. Appeal and Error — preservation of issues — assignment of error —</bold> <bold>argument and citation of authority — requirements</bold> <block_quote> The question of whether a lab tech's absence at trial violated defendant's right to confrontation was beyond the scope of the review where defendant did not assign error to the issue. Moreover, defendant's argument that a trooper's testimony about a lab tech's qualifications was hearsay was not supported by argument or citation of authority.</block_quote><page_number>Page 658</page_number> <bold>6. Constitutional Law — right to confrontation — laboratory report and</bold> <bold>chemical analyst's permit — nontestimonial</bold> <block_quote> A laboratory report and a chemical analyst's permit in a DWI prosecution were nontestimonial. The lab report was limited to chain of custody and blood alcohol concentration, and the permit to perform blood chemical analysis was neutral evidence created to serve a number of purposes other than evidence at trial.</block_quote> <bold>7. Constitutional Law — double jeopardy — driver's license revocation</bold> <bold>after DWI arrest — civil penalty</bold> <block_quote> A driver's license revocation after a DWI arrest was a civil remedy and did not violate double jeopardy even though defendant argued that the time between arrest and revocation did not serve the intended purpose of the revocation statute.</block_quote>