Volume 319 — North Carolina Reports

1. Homicide 4.1 — murder by starvation — dehydrated infant — evidence sufficient without specific intent to kill In a murder prosecution arising from a three day siege by police of a train car during which an 8-month-old infant barricaded with defendant died of dehydration, it was noted that the evidence would have supported a conviction of defendant for first degree murder by means of starvation without proof of a specific intent to kill. N.C.G.S. <cross_reference>14-17</cross_reference>. 2. Homicide 21.5 — premeditated murder — death of infant by dehydration — evidence sufficient In a murder prosecution arising from the dehydration death of an infant during a three day period in which defendant was barricaded in a train car, the evidence was sufficient to show that defendant deprived the infant of liquids with the specific intent to kill where defendant repeatedly refused food and liquids for the children; he was asked by negotiators to release the children but refused; when the older child cried for water, defendant told her to be silent and that they were all going to die; negotiators warned defendant that the baby would dehydrate; defendant acknowledged that the older child was dehydrated and that the 8-month-old infant had little resistance; defendant was told the infant would not last without nourishment; defendant on several occasions responded that he would kill himself and the children if anyone attempted to come into the compartment; police told defendant they had water for the children, but defendant stated that he wanted matches first; and defendant refused attempts to pass an I.V. tube through a bullet hole into the compartment so that the children could receive nourishment. 3. Homicide 21.5 — first degree murder — identity of victims The evidence in a murder prosecution was sufficient to prove that the bodies found inside a train compartment were the two victims alleged in the indictments where the indictments stated the names of the victims as Juan Ramirez and Maria Ramirez; medical examiners observed the bodies in the compartment, in body bags, in the ambulance, and performed autopsies in Chapel Hill; a woman named Maria Inez was introduced to a police investigator as being a member of the family of defendant and the victims who had come to identify the two bodies; and Mrs. Inez presented birth certificates stamped with the seal of Colombia [Columbia], South America containing the names Isabella Novas Villabona Ramirez and Juan Fernando Ramirez; and Ms. Inez was given possession of the bodies. 4. Criminal Law 17 — murder on Amtrak train — not federal enclave — State jurisdiction proper The State was not preempted from assuming jurisdiction of murders committed on an Amtrak train on the theory that the federal courts have<page_number>Page 153</page_number> exclusive jurisdiction because the train was part of a federal enclave where the act creating Amtrak expressly provided that it would not be an agency or establishment of the United States government. 5. Homicide 7 — first degree murder — insanity defense — refusal to direct verdict for defendant — no error The trial court in a murder prosecution did not err by failing to direct verdicts of not guilty by reason of insanity where defendant presented strong evidence of insanity but the State presented evidence tending to controvert defendant's evidence and to support the presumption of defendant's sanity. 6. Homicide 7 — murder — instruction on insanity defense — burden of proof — no error The trial court did not err in a prosecution for murder by instructing the jury that defendant had the burden of proving his insanity to the jury's satisfaction. 7. Criminal Law 50.1 — murder — cocaine use — psychiatric and psychopharmacological expert — testimony admissible In a murder prosecution arising from the three day siege of defendant in an Amtrak car, the trial court did not err by introducing the testimony of an expert in psychology and psychopharmacology who made an analysis of tape recordings, reviewed psychological reports, interviewed witnesses and defendant, and concluded that defendant had used cocaine numerous times during the siege but that defendant's perception of real events was good and that the cocaine had not significantly interfered with his ability to respond. The trial court reasonably could have believed that the witness's experience and research placed him in a better position than the jury to determine whether defendant had used cocaine at the times in question and the effect of the cocaine on defendant's perceptions. 8. Criminal Law 138.23 — aggravating factor — involuntary manslaughter — armed with firearm — error The trial court erred when sentencing defendant for involuntary manslaughter by finding as an aggravating factor that defendant was armed with a deadly weapon where, under the instruction of the court, the jury necessarily found that defendant was armed with and discharged a firearm. N.C.G.S. 15A-1340.4 (a)(1). 9. Criminal Law 5.1 — murder — insanity defense — last issue The trial court in a murder prosecution did not err by denying defendant's request that the jury be instructed to consider the issue of defendant's sanity before the issue of his guilt. 10. Constitutional Law 63 — death qualified jury — constitutional The trial court did not err in a murder prosecution by death qualifying the jury.

Master and Servant 108 — unemployment compensation — leaving work before termination date An employee who quits a job upon being informed that he will be terminated four days later, and who applies immediately for unemployment benefits, is disqualified for such benefits for the four-day period during which he could have continued to work on the ground that he is "unemployed because he left work voluntarily without good cause attributable to the employer." Nothing else appearing, however, he is not thereby disqualified subsequent to the date on which his employment would in any event have terminated.

1. Divorce and Alimony 30 — equitable distribution — pension benefits — payment before actual receipt Absent agreement, a court cannot order the immediate or periodic payment of a distributive award of vested pension and retirement benefits prior to actual receipt; however, if the marital estate contains adequate property other than the pension and retirement benefits, an in kind or monetary distribution of these assets may be made which takes into account the anticipated pension and retirement benefits. N.C.G.S. <cross_reference>50-20</cross_reference> (e), N.C.G.S. <cross_reference>50-20</cross_reference> (b)(3). 2. Divorce and Alimony 30 — equitable distribution — pension benefits — present value and fixed percentage methods Where the value of the total marital estate is sufficient to permit it, both present value and fixed percentage are permissible methods of evaluating pension and retirement benefits and arriving at an equitable distribution of marital property; however, the trial court here erred by deferring until actual receipt payments calculated under the present valuation method. N.C.G.S. <cross_reference>50-20</cross_reference> (b)(3).

1. Rape and Allied Offenses 4 — possible cause of urinary infection — testimony not prejudicial In a prosecution for first degree sexual offense, attempted first degree rape and taking indecent liberties with a child, the trial court did not err in permitting a physician to testify that vigorous genital and anal stimulation could cause a urinary tract infection where the physician further testified repeatedly that he had no opinion as to any causal connection between the victim's infection and the alleged offenses, and the jury was twice instructed not to associate the victim's infection and the alleged offenses. 2. Criminal Law 105.1 — introduction of evidence — waiver of prior motion to dismiss Under N.C.G.S. <cross_reference>15-173</cross_reference>, a defendant who introduces evidence waives any motion for dismissal or nonsuit made prior to the introduction of his evidence and cannot urge the prior motion as a ground for appeal. 3. Rape and Allied Offenses 5 — first degree sexual offense against child — sufficient evidence Defendant's conviction of a first degree sexual offense under N.C.G.S. <cross_reference>14-27.4</cross_reference> (a)(1) (1986) was supported by evidence that the victim<page_number>Page 430</page_number> was nine and defendant was twenty at the time of the offense and the child's corroborated testimony describing defendant's commission of anal intercourse. 4. Rape and Allied Offenses 19 — taking indecent liberties with child — sufficient evidence Defendant's conviction of taking indecent liberties with a child was supported by evidence that the child was nine and defendant was twenty at the time of the offense and the child's corroborated testimony that defendant rubbed his private parts against her until he ejaculated. N.C.G.S. 14202. 1 (a)(1), (2) (1986). 5. Rape and Allied Offense 11 — attempted rape of child — sufficient evidence The jury could properly find defendant guilty of attempted first degree rape where the evidence established that the victim was nine and defendant was twenty at the time of the offense, and the victim's corroborated testimony tended to show that defendant took her into a bedroom, undressed her, put her on the bed, got on top of her, rubbed his private parts against her private parts, and stopped rubbing his private parts against her only when she started to cry. 6. Criminal Law 114.2 — statement of evidence — no expression of opinion In a prosecution for first degree sexual offense, taking indecent liberties with a child and attempted first degree rape, the trial court's instructions did not unequally weigh the strengths of the State's case against defendant's "contentions" so as to constitute an expression of opinion on the evidence; rather, the instructions of which defendant complains made no attempt to reiterate defendant's "contentions" but restated evenhandedly evidence proffered by the State to the extent necessary to explain the application of the law. 7. Rape and Allied Offenses 3 — sexual offenses against child — no fatal variance in dates Indictments for various sexual offenses against a child were not fatally flawed because they indicated the alleged offenses had occurred "on or about" 7-9 May rather than on <cross_reference>8-10</cross_reference> May as shown by the evidence at trial where defendant's defense consisted simply of a denial that the alleged events had ever occurred, and this defense was unaffected by the variance of a single day between the indictments and proof.

Appeal and Error 9 — district court judgeship — political party — action to declare statute unconstitutional — mootness Plaintiffs action to have the requirement of N.C.G.S. <cross_reference>7A-142</cross_reference> that persons nominated by the Bar to fill a vacancy for district court judge be "members of the same political party as the vacating judge" declared unconstitutional for the purpose of permitting him to be included in the selection process for a candidate to succeed to the judgeship vacated by a specified person is dismissed as moot where the Bar meeting that plaintiff seeks to participate in had been held prior to the time plaintiff filed his complaint.

Criminal Law 138.14 — finding that one aggravating factor outweighed seven mitigating factors — no abuse of discretion In sentencing defendant for second degree murder, the trial court did not abuse its discretion in finding that the single aggravating factor that defendant shot the victim with premeditation and deliberation and with specific intent to kill outweighed the seven mitigating factors found by the court.

1. Rape and Allied Offenses 4.1 — evidence relevant to show victim's fear A rape victim's testimony that defendant fumbled with ropes hanging from a pipe but never tied her up, that she was terrified and thought she was going to die, and that after she and defendant returned to her apartment from an aborted robbery, she couldn't believe she was still alive was relevant on the issue of fear, and its extent, induced in the victim by defendant in connection with the rape. 2. Criminal Law 86.1 — hairs and fibers on incriminating articles — cross-examination of defendant — relevance for impeachment The State's cross-examination of defendant concerning how certain hairs and fibers could have been found on articles linking defendant with the commission of a kidnapping and rape did not call for defendant to testify as an expert or assume the truth of the State's evidence and was properly permitted to challenge the credibility of defendant's denial of guilt and his testimony tending to support this denial. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rule 611 (b). 3. Criminal Law 146.1, 146.3 — double jeopardy — failure to object at trial-waiver of issue on appeal — exercise of supervisory jurisdiction Defendant waived his right to raise on appeal the issue of whether his conviction and sentencing for both first degree kidnapping and first degree rape violated the prohibition against double jeopardy where he failed at trial to move to arrest judgment in either the kidnapping or rape convictions and did not otherwise object to the convictions or sentences on double jeopardy grounds. However, the Supreme Court elected to review the issue on appeal in the exercise of its supervisory power over the trial divisions, N.C. Const. art. IV, 12, N.C.G.S. <cross_reference>7A-32</cross_reference>, and pursuant to Rule 2 of the N.C. Rules of App. Procedure. 4. Criminal Law 27.5; Kidnapping 1 — first degree kidnapping — first degree rape — double jeopardy Defendant's conviction and sentencing for both first degree kidnapping and first degree rape violated the constitutional prohibition against double jeopardy where the trial court told the jury it would have to find, among other things, that the kidnapping victim "had been sexually assaulted" in order to convict defendant of first degree kidnapping; there was evidence of the rape for which defendant was both indicted and convicted, a first degree sexual offense for which defendant was indicted but not convicted, and another rape for which defendant was not indicted; the trial court did not specify in its instructions to the jury in the kidnapping case which of these sexual assaults the jury might use to satisfy the "sexual assault" element of first degree kidnapping; and it cannot be said that the jury's verdict of first degree kidnapping was based upon a sexual assault other than the rape for which defendant was convicted.<page_number>Page 610</page_number> 5. Criminal Law 166 — exceptions not supported by argument in the brief Exceptions brought forward in defendants brief but for which no argument or authority is stated are deemed abandoned. Rules of App. Procedure 28 (a), (b)(3).