Volume 54 — North Carolina Court of Appeals Reports

1. Criminal Law 33.4 — evidence of cancer in victim — irrelevancy — harmless error In a prosecution for breaking and entering, attempted rape and larceny, testimony by the victim that she had had a breast removed because of cancer and that since being struck by defendant she has suffered a lot with her back and has been diagnosed as having bone cancer was irrelevant, but the admission of such testimony was not so prejudicial that a different result would have insued had such testimony not been admitted. 2. Larceny 6.1 — value of automobile — incompetent testimony — verdict treated as for misdemeanor larceny In a prosecution for larceny of an automobile, the owner's testimony that "if I had been planning to sell it, I wouldn't have sold it for less than two thousand dollars" was incompetent to show value, and where there was no evidence of the value of the stolen automobile, the jury's verdict of guilty of felonious larceny must be treated as a verdict of guilty of misdemeanor larceny. 3. Rape 6.1 — assault on female — lesser included offense of attempted rape Assault on a female is a lesser included offense of the charge of attempted first degree rape as set forth in G.S. <cross_reference>14-27.6</cross_reference>. 4. Rape 6.1 — prosecution for attempted rape — submission of assault on female The trial court in a prosecution for attempted first degree rape properly submitted an issue as to the lesser included offense of assault on a female where there was evidence tending to show that defendant grabbed the shoulders of the female victim, pushed her onto a bed, hit her across the face, cut her clothes off, and tied her up and choked her.

Master and Servant 74 — workers' compensation — award for disfigurement — insufficient evidence An observation by the hearing commissioner in a workers' compensation hearing that the very tip of plaintiffs left index finger was missing was insufficient to support an award to plaintiff for serious bodily disfigurement.

Actions 10 — commencement of action — summons not signed Plaintiff's original action arising out of an automobile accident was never commenced by the issuance of summons and an order extending time for filing complaint pursuant to G.S. <cross_reference>1A-1</cross_reference>, Rule 3 where the summons was not signed by anyone, and plaintiff's subsequent action filed after plaintiff purportedly took a voluntary dismissal of the original action and after the statute of limitations had expired was properly dismissed by the trial court.<page_number>Page 181</page_number>

1. Burglary and Unlawful Breakings 5.5 — sufficiency of the evidence — forceful breaking The evidence was sufficient for the jury to find defendant entered a building through an unlocked window, thereby forcibly breaking, where the evidence showed that officers checked the building and found no one inside before positioning themselves for a "stake-out"; that they locked the doors; that they later saw defendant in the building; that they observed muddy footprints on the outside and inside of a window ledge and on the floor nearby; and that the windows were usually kept shut and locked at all times.<page_number>Page 253</page_number> 2. Constitutional Law 31 — unidentifiable fingerprints destroyed — no violation of defendant's rights Defendant's conviction was not obtained in violation of either the Jencks Act, <cross_reference>18 U.S.C. § 3500</cross_reference>, or G.S. <cross_reference>14-221.1</cross_reference> when unidentifiable fingerprints lifted from the scene of the crime were thrown away as irrelevant. 3. Burglary and Unlawful Breakings 5.10; Safecracking 1 — crimes of burglary with explosives and safecracking not identical The elements of the crimes of burglary with explosives and safecracking are not identical for offenses committed before 1 October 1977. The predecessor to G.S. <cross_reference>14-89.1</cross_reference> provided as an essential element that the safe or vault be used for storing money or other valuables. 4. Criminal Law 157 — failure to properly prepare record — cannot benefit Appellant has the duty to properly prepare the record on appeal, and he cannot benefit from his failure to include an indictment. 5. Burglary and Unlawful Breakings 3 — warrant and indictment for burglary with explosives — failure to specifically allege entry without consent The language that defendant "unlawfully and willfully did feloniously break and enter a building of Forsyth Technical Institute, belonging to the Board of Trustees," was sufficient to imply that defendant's entry was without the consent of the Board, and it was not error to fail to specifically allege entry without consent in either the warrant or indictment. 6. Criminal Law 91.7 — motion for continuance — absence of witnesses It was not error for the court to deny defendant's motion for a continuance in order to subpoena witnesses who would testify defendant had a beard at the time of the crimes as it was an untimely oral motion violating G.S. <cross_reference>15A-952</cross_reference> (b)(1), there was no indication the witnesses could be found if the trial was delayed, and three witnesses did testify defendant had a beard at the time of the alleged crimes. 7. Constitutional Law 48 — effective assistance of counsel There was no merit to defendant's allegation he was denied effective assistance of counsel as numerous instances of alleged ineffective assistance revealed the failures of defense counsel were either nonprejudicial, speculative or justifiable strategy, and defendant's representation was not so lacking that defendant's trial became a "farce and mockery" of justice.

1. Burglary and Unlawful Breakings 5.8 — felonious breaking and entering and larceny — sufficiency of evidence In prosecutions for felonious breaking and entering and felonious larceny, defendants' motions for nonsuit and judgment notwithstanding<page_number>Page 294</page_number> the verdict were properly denied where the State's evidence tended to show that items were missing from a couple's home without their permission; that a neighbor observed three long-haired white males flee from the couple's home; that the neighbor observed the clothes of the three and observed one of the three kick off a pair of flip flops; that an officer and bloodhound arrived; that the bloodhound smelled the flip flops and the couple's residence and led the officer through woods and fields to a trailer park; that one of the residents saw two long-haired males enter one of the trailers; that eventually the three defendants came out of the trailer wearing clothing similar to that described by the neighbor; and that one of the defendants told police he entered the couple's home because he needed money. 2. Criminal Law 44 — evidence pertaining to use of bloodhounds — proper foundation Admission of testimony relating to bloodhounds was not error when the bloodhound was trained, a cross between a bloodhound and a coon hound, had a 90% success rate in tracking humans, and was put on the trail after smelling shoes left at the scene of the crime; however, as the exception only challenged the court's conclusion and not its findings the reviewing court only had to determine its conclusion was supported by its findings. 3. Criminal Law 96 — withdrawal of evidence Where the court granted defendants' motions to strike and instructed the jury to disregard any statement by the officer regarding a pair of flip flops belonging to defendant Cook, the incompetent evidence was properly withdrawn from the jury's consideration and motions for a mistrial were properly denied. 4. Criminal Law 102.5 — instruction to disregard a portion of witness's statement — assumption jury considered only admissible portion Where the court instructed the jury to disregard a portion of a witness's statement, it is assumed the jurors have sufficient intelligence and character to comply and consider only the admissible portion in subsequent questions and answers of the witness. 5. Criminal Law 76.7 — inculpatory statement properly admitted Where evidence on voir dire tended to show that defendant was advised of his rights, understood them, signed a waiver of them, was coherent during questioning and did not appear confused, the court's finding that defendant's inculpatory statement was voluntary was supported by the evidence.

Master and Servant 59 — workers' compensation — injuries from shooting by co-worker's boyfriend — accident not arising out of employment Injuries received by plaintiff at his place of employment when the boyfriend of a co-worker shot both plaintiff and the co-worker did not arise out of his employment where the assault resulted from the personal relationship between the co-worker and her boyfriend and was not created by or reasonably related to the employment, notwithstanding plaintiff was present in the office in which the shooting occurred because he had been instructed to keep a record of the co-worker's hours.

1. Estoppel 4.6 — workers' compensation — application of equitable estoppel improper — no evidence of detrimental reliance It was error to conclude the county and its insurance carrier was estopped from asserting the lack of an employment relationship between it and the plaintiff where plaintiff, a CETA employee, was paid and insured by the county but did not work for and at the direction of the town. The essential element of detrimental reliance by the party seeking estoppel was missing as there was no evidence the town or its insurer altered its position in reliance of the fact the county's insurer accepted premiums on behalf of the plaintiff. 2. Master and Servant 53 — workers' compensation — findings insufficient to support employment by county The findings of fact did not support the Commission's conclusion that plaintiff was an employee of the county at the time of his injury even though he was hired, paid and insured by the county pursuant to conditions imposed by the federal government for receipt of CETA funds where the town alone controlled plaintiff's work schedules, duties and work environment, and it alone benefited from his services.

1. Master and Servant 96.5 — workers' compensation — scope of appellate court's review The appellate court's review in a workers' compensation proceeding is simply to determine whether the Industrial Commission's findings are supported by any competent evidence and whether its subsequent legal conclusions are justified by those findings.<page_number>Page 338</page_number> 2. Master and Servant 68 — occupational disease — evidence supporting total disability Evidence that plaintiff, age 58, had a fifth grade education and had no training to do any work other than textile work; that prior to his employment in textile mills, plaintiff had no lung disease or breathing difficulties; that during his employment he developed respiratory problems; that plaintiff was diagnosed as having byssinosis; and that he was 50% to 70% disabled for impairment and totally disabled to perform his former textile employment was evidence supporting the Commission's findings and conclusion that plaintiff is totally disabled from an occupational disease.

1. Homicide 21.7 — second degree murder — sufficiency of evidence The State's evidence was sufficient for the jury on the issue of defendant's guilt of second degree murder where it tended to show that defendant obtained a rifle, told a neighbor he was going to kill<page_number>Page 438</page_number> someone, went to the victim's home, called out the victim's name, walked back toward the victim's bedroom, and intentionally shot the victim in the back of the head while he was sleeping. 2. Homicide 30.3 — second degree murder case — failure to instruct on involuntary manslaughter The trial court in a second degree murder case did not err in failing to instruct the jury on involuntary manslaughter where all the evidence showed that defendant intentionally discharged his rifle and thereby killed the victim. 3. Criminal Law 114.3 — instruction on duties of district attorney and defense counsel — no expression of opinion The trial court did not express an opinion on the evidence in violation of G.S. <cross_reference>15A-1222</cross_reference> in instructing the jury that the district attorney has the responsibility of prosecuting cases and defense counsel have the responsibility of defending the defendant in the specific cases. 4. Criminal Law 111.1 — responsibility of each juror to participate — instruction not erroneous The trial court's instruction that "There is a responsibility on each juror to participate in the verdict reached by the jury" could not have misled the jury into believing that a juror must conform his decision to that of the majority. 5. Criminal Law 113.9 — misstatements of facts — necessity for objection at trial The trial court's misstatements of certain facts were not prejudicial where defendant failed to call them to the attention of the court in time to correct them and it does not appear that the jury could have been misled thereby.

1. Assault and Battery 14.6 — assault on law enforcement officer — sufficiency of the evidence The evidence was sufficient to require submission of the case to the jury on the charge that defendant violated G.S. <cross_reference>14-33</cross_reference> (b)(4) where the State offered evidence tending to show that the prosecuting witness was a law enforcement officer, that he identified himself as such to defendant, that he was in the performance of his duty as an officer, and that defendant assaulted him by hitting him the face. 2. Assault and Battery 16 — failure to submit lesser offense of simple assault — error Where defendant was charged and convicted of assaulting an officer in the performance of his duty, it was error for the trial court to<page_number>Page 459</page_number> fail to submit the lesser included offense of simple assault where there was conflicting evidence in the record whether the defendant knew the prosecuting witness was a law enforcement officer.

Insane Persons 1.2 — findings of mental illness, dangerousness to others — sufficiency of evidence The trial court's finding that respondent was mentally ill was supported by medical evidence that respondent suffered from a manic depressive condition, manic phase, which was manifested by overtalkativeness and poor judgment. However, the trial court's determination that respondent was dangerous<page_number>Page 463</page_number> to others was not supported by the record where the evidence showed only that respondent had engaged in an altercation with his landlord and respondent's testimony that he engaged in the fight only upon provocation from the landlord was uncontradicted, and the court failed to record sufficient facts to support its conclusion that respondent was dangerous to others.

1. Assault and Battery 15.2 — no error in failing to submit lesser offense of misdemeanor assault In a prosecution for assault with a deadly weapon resulting in serious bodily injury, there was no error in the court's failure to submit the lesser offense of misdemeanor assault as the trial court should have held that the pocketknife, as used by defendant to inflict a chest injury causing the victim's lung to collapse, was a deadly weapon as a matter of law. 2. Assault and Battery 15.7 — instruction on self-defense not required In a prosecution for assault with a deadly weapon resulting in serious bodily injury, where there was no evidence from which a jury<page_number>Page 476</page_number> might infer that defendant abandoned and withdrew from the confrontation which he unquestionably initiated, he was not entitled to a charge on self-defense.

Criminal Law 115.1 — unauthorized use of motor conveyance — failure to instruct — error It was reversible error to fail to submit to the jury an instruction on the lesser included offense of unauthorized use of a motor vehicle where defendant was charged with felonious larceny of an automobile as defendant presented evidence that he did not intend to steal the victim's car.

1. Unfair Competition 1 — illegal pyramid scheme — preliminary injunction proper The trial court did not err in concluding defendant, Challenge, Inc., was operating an illegal pyramid scheme in violation of G.S. <cross_reference>14-291.2</cross_reference>, and in granting a preliminary injunction where the evidence tended to show that Challenge, Inc., marketed a program of four motivational seminars at a total price of $5000; that the multi-level sales program was designed both to sell the seminars and to recruit new salesmen; that prospective salesmen were invited to meetings at which they were told about the company and about the potential profits to be made from selling the seminars; that a Sales Trainee could become an Independent Sales Agent by selling $5000 worth of seminars, being approved by another agent, paying for and attending a workshop, and recruiting two additional Sales Trainees; that all Sales Agents recruited in North Carolina met the requirements for becoming a Sales Agent by selling the seminar to themselves; and that all participants in North Carolina who advanced in the program did so by purchasing the seminars for themselves in order to meet the $5000 requirement to become an Independent Sales Agent.<page_number>Page 514</page_number> 2. Unfair Competition 1 — preliminary injunction properly issued — no need to show irreparable harm Under G.S. <cross_reference>14-291.2</cross_reference> and G.S. <cross_reference>75-14</cross_reference> it is not necessary for the State to show actual injury has resulted in order for a court to provide for injunctive relief from the continuation of illegal pyramid and chain schemes. Rather, the State must merely show that the act or practice complained of adversely affects the public interest.

1. Divorce and Alimony 25.11 — child custody — insufficient evidence to support judge's finding When the court finds that both parties are fit and proper persons to have custody and then adjudges that it is in the best interest of the child for the father to have custody, such holding will be upheld if it is supported by competent evidence. However, in this case the record leads to the conclusion that some of the findings of fact are not supported by competent evidence, and the remaining findings of fact are not sufficient to support the conclusion that it was in the child's best interest that her custody be awarded to her father. Further, the trial court failed to resolve important questions raised by the evidence which bore directly on the best interest of the child, while making certain material findings in favor of the defendant that were not supported by the evidence. 2. Divorce and Alimony 25.1 — lack of conclusion finding father "a fit and proper person to have custody" — no error It was not error for the court to fail to conclude that defendant was "a fit and proper person to have custody" as the conclusion of law determinative of the custody issue is not that the person gaining custody is a fit and proper person to have custody, but which party will best promote the interest and welfare of the child.

Master and Servant 85 — workers' compensation — time limitation of G.S. <cross_reference>97-47</cross_reference> — a non-jurisdictional limit The time limitation in G.S. <cross_reference>97-47</cross_reference> is a non-jurisdictional limit, unlike that of G.S. <cross_reference>97-58</cross_reference> (c) and G.S. <cross_reference>97-24</cross_reference>, and is a technical, legal defense. If the time limitation of G.S. <cross_reference>97-47</cross_reference> is to be available as a defense to claims based upon a change of condition, such defense must be asserted prior to hearing on the merits, and if not so asserted it must be deemed to have been waived. Therefore, where plaintiff requested a hearing before the Industrial Commission on 28 October 1977 and a hearing was conducted on 24 August 1978 but was continued at defendant's request, defendant's assertion of the time limitation as a defense on 8 January 1979 was not timely.

Insurance 68.7, 69 — automobile insurance — uninsured motorist — medical payments — no double recovery An insured cannot collect his medical expenses for injuries received in an automobile accident under the uninsured motorist provision of his automobile policy and then again under the medical payments provision. However, where defendant insurer paid plaintiff insured $2,200 under the uninsured motorist provision and plaintiff executed a general release which made no specific reference to medical expenses, and the evidence was conflicting as to whether plaintiffs medical expenses were included in the $2,200, a genuine issue of material fact was presented as to whether the $2,200 paid by defendant to plaintiff included payment for plaintiffs medical expenses.

Highways and Cartways 8 — cash flow financing for highways — constitutionality The statute providing for "cash flow" financing for highway construction and maintenance contracts, G.S. 143-28.1, does not violate Art. III, 5 (3) of the N.C. Constitution which prohibits the Governor from incurring a deficit in administering<page_number>Page 691</page_number> the State's budget, does not violate Art. V, 3 of the N.C. Constitution which prohibits the General Assembly from contracting debt without voter approval, does not restrict the right of succeeding legislatures to govern, and does not allow the state to execute void contracts.

1. Uniform Commercial Code 18 — recovery of payment for goods — delivery and acceptance In order for plaintiff to show that defendant was indebted to it for payment for certain goods, plaintiff did not have to show that defendant received these goods but had to show that it delivered these goods and defendant accepted delivery. G.S. <cross_reference>25-2-503</cross_reference>; G.S. <cross_reference>25-2-606</cross_reference>. 2. Uniform Commercial Code 20 — delivery of goods — acceptance or rejection by buyer — jury question In an action to recover payment for plumbing materials allegedly sold by plaintiff to defendant for use in a construction project, a jury question was presented as to whether plaintiff was entitled to recover for all materials shown on its exhibits, and the trial court properly refused to direct a verdict for defendant as to all invoices not actually signed by defendant, where plaintiffs evidence tended to show that it tendered delivery of all the materials listed on its exhibits and that defendant accepted delivery of such materials, and where defendant's evidence tended to show that the goods were all delivered to him but that he notified plaintiff of his rejection of those in excess of his needs. 3. Accounts 2 — account stated — sufficiency of evidence The trial court properly instructed on an account stated where plaintiff presented evidence tending to show that it sold and delivered numerous goods to defendant, that defendant was periodically invoiced for these goods between August 1976 and February 1977, and that defendant did not make his objections to the sale and delivery of these goods known to plaintiff until March 1979, since the jury could find that defendant impliedly agreed to the account stated by failing to object to the bills and invoices he received from plaintiff within a reasonable time. 4. Accounts 1 — open account — sufficiency of evidence The trial court properly instructed the jury with regard to defendant's possible indebtedness to plaintiff on an open account where plaintiff's evidence tended to show that plaintiff established a $40,000 line of credit for defendant to purchase plumbing supplies for a construction project; defendant was billed periodically on this credit account; a running balance was maintained on the account; and continuous dealings based on this account were contemplated and did occur.<page_number>Page 696</page_number> 5. Accounts 2 — account stated — express or implied admission — instructions The trial court did not err in instructing the jury that it should determine whether defendant was indebted to plaintiff on an account stated and that an account stated results if the debtor admits the correctness of the account but that such "would not apply in this case" where it is clear from the court's further instructions on an account stated arising from an implied admission that the court was referring to the fact that there was no evidence of an account stated by express admission. 6. Trial 34 — statement of contentions — failure to refer to exhibits The trial court's failure to refer to defendant's exhibits when instructing the jury on his contentions was not error. 7. Sales 10.1; Uniform Commercial Code 20 — acceptance of goods — authority to take delivery — instruction not necessary In an action to recover for goods allegedly sold and delivered to defendant, the trial court did not err in failing to give an instruction as to who was authorized to take delivery of goods for defendant since the identity of the person accepting the goods is immaterial to the question of whether there was a delivery. G.S. <cross_reference>25-2-503</cross_reference>. 8. Sales 10.1 — action for goods sold and delivered — instructions on contract not required In an action to recover for plumbing materials allegedly sold and delivered to defendant for use in a construction project, defendant's evidence did not require the court to give instructions to the jury relating to whether the parties contracted that plaintiff would supply all materials needed to complete the plumbing work on the project for a specified sum where it showed only that defendant and plaintiff's agent compiled a list of materials which might have been used on the project and the prices thereof. 9. Principal and Surety 9.1 — goods sold and delivered — contractor's payment bond — separate issues as to liability of contractor and surety The surety on a plumbing contractor's payment bond for materials used in the construction of a county building was liable only for materials actually used by the contractor in constructing such building, and the trial court erred in refusing to submit separate issues as to the amount of the contractor's liability to plaintiff for materials delivered to him at the construction site of the county building and the amount of the surety's liability on the payment bond where there was evidence tending to show that some of the materials delivered to defendant at such construction site were not used by defendant in constructing the county building but were used in other construction projects. G.S. <cross_reference>44A-25</cross_reference> (5). 10. Interest 2; Judgments 55 — account stated — interest on judgment The trial court did not err in permitting interest on plaintiff's judgment against defendant on an account stated from the date of judgment, rather than from the date of demand and refusal of payment, where defendant presented evidence that some of the materials listed on plaintiff's invoices had not in fact<page_number>Page 697</page_number> been delivered to him, and the amount due on defendant's stated account was thus not ascertainable until the jury returned its verdict.