Volume 194 — North Carolina Court of Appeals Reports

<bold>1. Appeal and Error — appealability — dismissal of NCPWDA claims —</bold> <bold>remaining claims — possibility of inconsistent verdicts</bold> <block_quote> An interlocutory order dismissing plaintiff's claim under the North Carolina Persons With Disabilities Act was immediately appealable where the trial court denied defendants' motion to dismiss plaintiffs remaining claims and there was a risk that two trials and possibly inconsistent verdicts could result.</block_quote> <bold>2. Statutes of Limitation and Repose — relation back — amended summons —</bold> <bold>name change — not a substitution of parties</bold> <block_quote> The trial court erred by dismissing claims under the North Carolina Persons With Disabilities Act where the alleged discriminatory conduct took place on 14 December 2006; the applicable 180 day statute of limitations expired on 12 June 2007; plaintiffs original summons was issued on that date; an amended summons was issued on 1 August 2007; and the trial court held that the amended summons did not relate back. The amended summons changed "Four Seasons Hospice Palliative Care, Inc' to "Hospice of Henderson County, Inc., d/b/a Four Seasons Hospice Palliative Care," a change that did not amount to a substitution of parties.</block_quote><page_number>Page 180</page_number>

<bold>Child Support, Custody, and Visitation — motion to set aside adjudication</bold> <bold>— UCCJEA — lack of subject matter jurisdiction — home state —</bold> <bold>convenient forum — temporary nonsecure custody orders — trial court</bold> <bold>required to make contact with foreign court</bold> <block_quote> The trial court abused its discretion by denying respondent father's motion to set aside the 2 April 2007 adjudication order that found a juvenile to be neglected and dependent because the trial court lacked subject matter jurisdiction under the UCCJEA when: (1) a custody order regarding the juvenile was entered on<page_number>Page 440</page_number> 4 January 200 by a New York court, and thus the North Carolina trial court did not have jurisdiction under N.C.G.S. § <cross_reference>50A-201</cross_reference> regarding initial child custody determinations; (2) even though North Carolina qualified as the home state of the child, N.C.G.S. § <cross_reference>50A-203</cross_reference> provides that a party seeking to modify a custody determination must obtain an order from the original decree state stating that it no longer has jurisdiction, and there was no order from the New York court stating that New York no longer had jurisdiction; (3) there was no determination by the New York court that North Carolina would be a more convenient forum under N.C.G.S. § <cross_reference>50A-207</cross_reference>; (4) N.C.G.S. § <cross_reference>50A-203</cross_reference>(2) was not satisfied even though respondent and the juvenile left New York and moved to North Carolina since the juvenile's mother continued to live in New York; (5) although the trial court had authority under N.C.G.S. § <cross_reference>50A-204</cross_reference>(a) to enter temporary nonsecure custody orders since the juvenile was present in North Carolina when the nonsecure custody orders were entered and such orders were based on evidence gathered by DSS that the juvenile was abused, neglected, and dependent, there was no record evidence that the trial court ever communicated with the New York court as mandated by N.C.G.S. §§ <cross_reference>50A-204</cross_reference>(d) and <cross_reference>50A-110</cross_reference> or as ordered by the trial court on 9 February 2007 to determine if the New York court opted not to exercise jurisdiction; and (6) the fact that DSS made efforts to contact the New York court did not meet the requirement of N.C.G.S. § <cross_reference>50A-204</cross_reference>(d), and the trial court must make the contact with the New York court.</block_quote>

<bold>1. Drugs — trafficking — erroneous instructions on weight — not plain</bold> <bold>error</bold> <block_quote> Erroneous jury instructions on trafficking in marijuana did not constitute plain error where the jury was instructed that it should find defendant guilty if he sold between ten and fifty pounds (rather than in excess of ten pounds but less that fifty pounds), but the evidence was that the marijuana involved in the transactions weighed eleven pounds and thirteen pounds.</block_quote> <bold>2. Drugs — sufficiency of evidence — distinct from credibility</bold> <block_quote> It is not the duty of the trial court to weigh the evidence or determine credibility on a motion to dismiss, and the trial court here correctly denied defendant's motion to dismiss a prosecution for marijuana trafficking.</block_quote><page_number>Page 501</page_number> <bold>3. Evidence — irrelevant — prejudice not shown</bold> <block_quote> The trial court did not err in a prosecution for trafficking in marijuana by admitting a piece of paper found in a search of defendant's girlfriend's house as being corroborative of the State's informant. Defendant argued that the evidence was irrelevant and prejudicial, but defendant did not show unfair prejudice. Irrelevant evidence is harmless unless the defendant shows that a different result would have ensued otherwise, which defendant did not do.</block_quote>

<bold>Estates — letters of administration — grounds for revocation —</bold> <bold>domiciliary administration in another state</bold> <block_quote> Valid letters of administration of an estate issued by a clerk of superior court could be revoked only pursuant to the statutory grounds set forth in N.C.G.S. § <cross_reference>28A-9-1</cross_reference>(a), and the establishment of a domiciliary estate in Virginia was not a proper ground for the revocation of one co-administrator's letters of administration in an action brought by decedent's sister.</block_quote>

<bold>Highways and Streets — public street versus private road — implied</bold> <bold>dedication — retroactive resolution — summary judgment</bold> <block_quote> The trial court erred by granting partial summary judgment in favor of defendants and concluding that a road in Matthews was a private streeet, and the case is remanded for further findings of fact as to whether the road was impliedly dedicated as a public street, because: (1) the record indicated that no findings of fact were made as to whether the road was impliedly dedicated to the public, and thus, there was no final adjudication as to whether the road was a public or private street; and (2) although plaintiffs contend the Town of Matthews Board of Commissioners' resolution, adopted <italic>nunc pro</italic> <italic>tunc</italic> 25 March 1985, added the road to the Matthews street system and established the road as a public street, it was invalid since it amounted to a retroactive resolution to change the street system previously imposed, and therefore, it did not preclude the adjudication of the road as a private road.</block_quote>

<bold>1. Larceny — sufficiency of indictment — church — failure to indicate</bold> <bold>legal entity capable of owning property</bold> <block_quote> An indictment charging the larceny of property from the First Baptist Church of Robbinsville was fatally defective because: (1) larceny requires that the perpetrator take the personal property of another, and thus there must be a showing that "the other" is a natural person or legal entity from whom property can be taken; and (2) the indictment did not indicate that the First Baptist Church of Robbinsville was a legal entity capable of owning property.</block_quote> <bold>2. Possession of Stolen Property — sufficiency of indictment — showing of</bold> <bold>entity capable of owning property not required</bold> <block_quote> The trial court did not err by failing to dismiss the charge of possession of stolen goods even though defendant contends the indictment was defective because an indictment for this crime is not required to signify that the entity who is allegedly wronged is capable of owning property.</block_quote> <bold>3. Appeal and Error — preservation of issues — failure to offer proof —</bold> <bold>irrelevant transcript page numbers</bold> <block_quote> Although defendant contends the trial court erred in a breaking and entering, larceny, and felonious possession of stolen goods case by allowing statements to be made at trial regarding other property found in a camper that was believed to be stolen, defendant abandoned this assignment of error under N.C. R. App. P. 28(b)(6) because: (1) defendant failed to point to any specific trial testimony in his brief; and (2) the transcript<page_number>Page 609</page_number> page numbers he cited in the assignment of error were not relevant to his argument.</block_quote> <bold>4. Evidence — denial of motion in limine — possession of another stolen</bold> <bold>item</bold> <block_quote> The trial court did not err or commit plain error in a possession of a stolen video camera and breaking or entering case by denying defendant's motion in limine or by allowing the testimony of a witness identifying a digital camera found in a camper used by defendant as the camera stolen from her work because: (1) contrary to defendant's argument, the evidence tended to show that defendant possessed stolen items instead of showing he acted in conformity with the propensity to steal; (2) the trial court specifically stated that evidence of defendant's prior convictions was inadmissible and that only evidence that there were identified stolen items in the camper was admissible; and (3) the fact that defendant had multiple stolen items in the camper he was using to store his property was relevant to the charges brought in this case since it went directly to the elements of the crime of felonious possession of stolen goods, which the prosecution bore the burden of proving.</block_quote> <bold>5. Burglary and Unlawful Breaking or Entering — motion to dismiss —</bold> <bold>sufficiency of evidence — doctrine of recent possession</bold> <block_quote> The trial court did not err by denying defendant's motion to dismiss the charge of breaking and entering because: (1) the doctrine of recent possession was applicable, and along with other facts and circumstances presented at trial, there was sufficient evidence to present the charge to the jury; (2) the evidence showed that defendant was in possession of multiple items of stolen property, including a video camera stolen from the victim in this case, and tools often used for breaking and entering; (3) although defendant contends that twenty-one days was too long a time interval to be considered "recent" for purposes of the doctrine of recent possession, the nature of the property is a factor and the question is ordinarily a question of fact for the jury; (4) while a video camera is an item frequently traded in commerce, there was a substantial probability under the circumstances of this case that the stolen item could only have come into defendant's possession by his own act; and (5) a jury could find that defendant had constructive and exclusive possession of the camper in which the stolen items were found and its contents.</block_quote><page_number>Page 610</page_number> <bold>6. Constitutional Law — effective assistance of counsel — claim dismissed</bold> <bold>without prejudice to seek motion for appropriate relief</bold> <block_quote> Defendant's claim of ineffective assistance of counsel in a breaking and entering, larceny, and felonious possession of stolen goods case based on his trial attorney failing to question a witness regarding evidence acquired during defendant's prior trial for breaking and entering into a different business is dismissed without prejudice to allow defendant to seek a motion for appropriate relief in the superior court because: (1) the evidence defendant pointed to was outside the record since it involved testimony from a prior trial; and (2) the verbatim transcript containing the evidence defendant described was not in the record before the Court of Appeals.</block_quote> <bold>7. Possession of Stolen Property — failure to instruct on lesser-included</bold> <bold>charge of misdemeanor possession of stolen goods</bold> <block_quote> The trial court did not err in a possession of stolen property and breaking and entering case by refusing to submit the lesser-included charge of misdemeanor possession of stolen goods because: (1) the crime of possession of stolen property is a felony if the possession was subsequent to a breaking and entering, even if the person in possession was not the perpetrator of the breaking and entering; (2) there was no evidence in the record that defendant presented an alternative reason for his possession of the stolen goods, other than as a result of the breaking and entering of a church; (3) there was no evidence that he obtained the property at a later date or that he had no knowledge that the items were stolen; and (4) all evidence tended to show that defendant possessed the items stolen along with tools commonly used for breaking and entering.</block_quote> <bold>8. Possession of Stolen Property — instruction — doctrine of recent</bold> <bold>possession</bold> <block_quote> The trial court did not err in a breaking and entering case by overruling defendant's objection and instructing the jury on the doctrine of recent possession because: (1) there was sufficient evidence to show that defendant recently and exclusively possessed the stolen goods after the breaking and entering occurred; (2) the jury, as the trier of fact, was properly charged with weighing all the evidence; and (3) while the jury was instructed on the<page_number>Page 611</page_number> inference of guilt, the jurors were free to find that defendant's possession of the stolen items did not mean he committed a breaking and entering to obtain them.</block_quote> <bold>9. Sentencing — habitual felon — constitutionality of enhanced sentence</bold> <block_quote> The trial court did not commit constitutional error in a possession of stolen property and breaking and entering case by sentencing defendant as a habitual felon because: (1) defendant was sentenced within the presumptive range; and (2) sentence enhancement based on habitual felon status does not constitute cruel and unusual punishment under the Eighth Amendment.</block_quote>

<bold>1. Fraud — manufacturing material — sale to subcontractor rather than</bold> <bold>directly to plaintiff</bold> <block_quote> The trial court did not err by granting summary judgment on fraud claims for a company which supplied resin for use in manufacturing IV administration kits. The transaction and the communications in issue involved the sale of resin pellets from defendant to Moll, the subcontractor that manufactured the part which used the resin, not from defendant to plaintiff.</block_quote> <bold>2. Fraud — negligent misrepresentation — manufacturing material —</bold> <bold>third-party — no direct reliance</bold> <block_quote> The trial court did not err by granting summary judgment on negligent misrepresentation claims for a company which supplied resin for use in manufacturing IV administration kits. The record does not show a direct reliance by plaintiff on any statements or documents from defendant about the nature of the compounds sold to Moll, a third party vendor.</block_quote> <bold>3. Unfair Trade Practices — misrepresentation — manufacturing material —</bold> <bold>no capacity to deceive</bold> <block_quote> The trial court did not err by granting summary judgment on unfair trade practice claims for a company which supplied resin for use in manufacturing IV administration kits. These claims were based on an alleged misrepresentation, but plaintiff provided no evidence to indicate that the representations made by defendant to a third-party vendor had the capacity to deceive plaintiff or that plaintiff actually relied on them.</block_quote><page_number>Page 696</page_number> <bold>4. Contracts — breach — third party beneficiary — summary judgment</bold> <block_quote> The trial court did not err by granting summary judgment in favor of defendant on plaintiff's third party beneficiary breach of contract claim arising from defendant's provision of resin to a third party, Moll, to be used in manufacturing IV administration kits. While the evidence suggests that plaintiff may have coordinated the agreement between Moll and defendant, and that defendant knew about the agreement between plaintiff and Moll to manufacture the part used in the kits, this alone is insufficient to establish plaintiff as a third party beneficiary without demonstration of plaintiff's active and direct involvement.</block_quote> <bold>5. Negligence — economic loss rule — no contractual privity</bold> <block_quote> The trial court erred by not reinstating a negligence claim originally dismissed under the economic loss rule. Under <italic>Lord v. Customized</italic> <italic>Consulting Specialty, Inc.</italic>, <cross_reference>182 N.C. App. 635</cross_reference>, the rationale for barring recovery under the economic loss rule is not advanced by barring a claim for negligence where no contractual privity exists between the parties. The parties agreed that there was no contract between plaintiff and defendant.</block_quote>

<bold>1. Evidence — victim's good character — harmless error</bold> <block_quote> The trial court committed harmless error in a first-degree sexual assault, robbery with a dangerous weapon, second-degree kidnapping, and first-degree rape case by admitting evidence of the victim's good character because: (1) although the State should not have been allowed to introduce evidence in its case-in-chief about the victim's good character merely based on the fact that defense counsel forecast the introduction of evidence of the victim's bad character during his opening statement, there was sufficient evidence in the record including testimony by the victim, physical evidence from the crime scene, and testimony by another woman who had also been approached by defendant in the same parking lot that afternoon; and (2) there was no reasonable possibility that the jury would have reached a different verdict absent this error.</block_quote> <bold>2. Evidence — impermissible lay opinion — narration of surveillance tapes</bold> <bold>by detective without firsthand knowledge or perception</bold> <block_quote> The trial court committed harmless error in a first-degree sexual assault, robbery with a dangerous weapon, second-degree kidnapping, and first-degree rape case by allowing the State's witness, a detective, to narrate the surveillance tapes from a bank and hospital, and to offer his opinion of what the tapes depict, because: (1) although the evidence was narrative testimony about the depiction of two poor quality surveillance videos constituting an inadmissible lay opinion invading the province of the jury since it was not based on any firsthand knowledge or perception by the officer, but rather solely on the detective's viewing of the surveillance video, it was only applicable to the robbery with a dangerous weapon and second-degree kidnapping charges; (2) the jury heard other testimony supporting the victim's claim that she was kidnapped; (3) the trial court, despite wrongfully admitting the detective's testimony, also repeatedly instructed the jury that it was charged with evaluating the images on the videotape and was free to disagree with the detective's interpretation, thus likely curing any impermissible<page_number>Page 726</page_number> reliance by jurors on the detective's statements; and (4) the victim's own testimony about what happened in the parking lot and at the bank, the knife recovered from the crime scene, and the victim's report of her rape and abduction constituted sufficient evidence to support the jury's decision independent from the detective's testimony.</block_quote> Judge ARROWOOD concurred prior to 31 December 2008.