Volume 67 — North Carolina Court of Appeals Reports

1. Searches and Seizures 12 — reasonable suspicion to stop defendant — motion to dismiss assault charges properly denied Defendant's Fourth Amendment protection against unreasonable searches and seizures was not violated when an officer approached defendant around 2:30 a.m. at a Cannon Mills plant after a security guard had called the police station and requested that an officer be sent to the plant parking lot; the security guard had observed suspicious activity involving defendant's vehicle; defendant was sitting in a vehicle that matched the security guard's description; and the Cannon Mills parking lot was known to be a high crime area. These circumstances created a reasonable suspicion of criminal activity and furnished ample justification for a brief investigatory stop. Even if defendant had been illegally restrained under the Fourth Amendment, defendant's act of striking the officer in the face was an unnecessary show of force in response to the officer's retention of his license and request to search his car. G.S. <cross_reference>14-33</cross_reference>(b)(4).<page_number>Page 58</page_number> 2. Criminal Law 98.2 — failure to sequester witnesses — no abuse of discretion There was no abuse of discretion in the denial of defense counsel's motion to sequester the prosecution witnesses.

1. Criminal Law 112.7 — requested instruction on alibi — harmless error in failure to give The trial court erred in failing to give defendant's requested instruction that "if, upon considering all the evidence with respect to alibi, you have a reasonable doubt as to the defendant's presence at or participation in the crime charged, you must find him not guilty," but such error was not prejudicial to defendant where the trial court adequately instructed the jury on the defendant's contention that he was present at his home at all times during the perpetration of the robbery in question and made it clear that the burden remained on the State, when all the evidence was considered, to prove each element of the offense beyond a reasonable doubt. 2. Criminal Law 112.7 — confusing instructions on State's theory and alibi — no prejudicial error Although there was potential confusion from the court's placement of a detailed statement of the State's theory that defendant planned and procured a robbery but had left the scene before the robbery was committed in the middle of an instruction on the legal effect of alibi evidence, which included the words "even if defendant was not at the scene when the events occurred," any possible prejudice to defendant was neutralized when the court, in stating defendant's contentions, made it clear that defendant relied on alibi evidence and contended that he was at his home until after the time of the robbery and took no part in either the planning or the commission of the robbery. 3. Criminal Law 163 — failure to object to instructions — no plain error The trial court's summary of the State's evidence in an armed robbery case and its instructions on the element of intent permanently to deprive the victim of the property did not constitute "plain error" which would require a new trial despite defense counsel's failure to lodge a contemporaneous objection at trial. App. R. 10(b)(2). 4. Criminal Law 102.10 — jury argument — no prejudicial error The prosecutor's jury argument in a robbery case concerning defendant's regular receipt of shoplifted goods was not prejudicial error, notwithstanding the court had suppressed defendant's statement relating thereto, where defendant failed to object to the argument, and where defense counsel first brought up the matter, apparently realizing that defendant's activities could easily be inferred from other admissible evidence.

1. Criminal Law 98.2 — refusal to sequester witnesses The trial court did not abuse its discretion in denying defendant's motion to sequester the six State's identification witnesses. 2. Criminal Law 87.1 — leading questions The trial court did not abuse its discretion in permitting the prosecutor to ask State's witnesses leading questions as to whether they had seen defendant on a certain day. 3. Forgery 2.2 — forgery and uttering — sufficiency of evidence The State's evidence was sufficient to support an inference that defendant knew that checks were forged so as to support his conviction for forgery and uttering where it tended to show that defendant attempted to obtain money or goods with the forged checks.<page_number>Page 111</page_number> 4. False Pretense 1 — transfer of title not element of crime A transfer of title is not a necessary element of the offense of obtaining property by false pretenses. G.S. <cross_reference>14-100</cross_reference> (a). 5. False Pretense 2.1 — sufficiency of indictment An indictment alleging that defendant rented a typewriter with the promise to return it in an hour but failed to return it at any time thereafter was sufficient to charge the offense of obtaining property by false pretenses without an allegation that defendant had no intention of returning the typewriter.

Criminal Law 75.2 — voluntariness of confession — officer's promise to talk with district attorney An officer's statements that, if defendant gave a statement, the officer would "recommend to the District Attorney's Office that he had made a statement" and "would make a recommendation that he had cooperated and gave a statement" could not have aroused in defendant any reasonable hope of reward if he confessed and thus did not render his confession involuntary.

1. Criminal Law 98.2 — failure to sequester witnesses — no abuse of discretion In a prosecution for attempting to take indecent liberties with a child in violation of G.S. <cross_reference>14-202.1</cross_reference> (a)(2), there was no abuse of discretion in a trial judge's denial of defendant's motion to sequester juvenile witnesses at the probable cause hearing. G.S. <cross_reference>15A-611</cross_reference> and G.S. <cross_reference>15A-1225</cross_reference>. 2. Criminal Law 169.6 — exclusion of evidence — failure to show prejudice In a prosecution for attempting to take indecent liberties with a child, defendant failed to show prejudice from the exclusion of testimony apparently intended to challenge a witness's credibility where there was nothing in the record to indicate the answer the witness would have given had he been permitted. 3. Rape and Allied Offenses 19 — attempts to take indecent liberties with a child — sufficiency of evidence A trial court properly denied defendant's motion to dismiss a charge of attempting to take indecent liberties with a child in violation of G.S. <cross_reference>14-202.1</cross_reference> (a)(2) where the evidence tended to show that defendant pulled down the pants of a youngster under the age of 16, and said, "let me play with you," and defendant did not complete the crime because, at that minute, a friend of the youngster's walked in and the youngster ran out of defendant's house. 4. Criminal Law 163 — failure to object or timely request instructions — waiver of right to complain on appeal Defendant's failure to request limiting instructions and failure to timely request instructions on certain definitions, as required by G.S. <cross_reference>15A-1231</cross_reference>, precluded defendant from complaining about the instructions on appeal. 5. Criminal Law 138 — sentence of presumptive term — aggravating or mitigating factors not required Where defendant was convicted of attempting to take indecent liberties with a child in violation of G.S. <cross_reference>14-202.1</cross_reference> (a)(2) and sentenced to the presumptive term of three years, the trial judge was not required to find aggravating or mitigating factors. G.S. 15A-1340.4.

Trusts 19 — constructive trust in marital home — sufficiency of evidence Plaintiff's evidence was sufficient to establish a constructive trust in her favor in the marital home where it tended to show that the parties discussed the purchase of land upon which to build a marital home, and plaintiff wife understood that the land would be titled jointly; defendant husband breached the confidential marital relationship by intentionally causing plaintiff's name to be omitted from the deed; both parties borrowed money to build a home on the land and both signed the note and deed of trust securing the loan; plaintiff contributed money payments on the home; and defendant never told plaintiff that her name was not on the deed until several years later.

Criminal Law 87 — defense witness not on list furnished to State — discretion of court to permit testimony There is no statutory or common law requirement that the defendant in a criminal case furnish the State a list of his witnesses. When a defendant calls a witness whose name was omitted from the list of potential witnesses furnished to the State, permitting such witness to testify is is matter within the discretion of the trial judge, and the trial judge in this case erred in refusing to permit a defense witness to testify because her name was not on the list furnished "as the law requires." G.S. <cross_reference>15A-905</cross_reference>.

1. Criminal Law 90 — failure to declare witness to be hostile In a prosecution for assault with a deadly weapon inflicting serious injury in which three defense witnesses testified on voir dire that they had overheard a third person say he had cut a "white dude" on<page_number>Page 187</page_number> the night in question, and the third person denied on voir dire that he had cut the victim or made any statements that he had cut a "white dude," the trial court did not abuse its discretion in refusing to declare the third person a hostile witness and to permit defendant to impeach him since defendant had examined the witness in the absence of the jury, knew what the witness would testify, and thus was not misled and surprised or entrapped to his prejudice. 2. Criminal Law 138 — mitigating factor — good character and reputation — insufficient evidence Testimony by defendant's father did not require the trial court to find as a mitigating factor that defendant was a person of good character or that he had a good reputation.

Criminal Law 142.3, 145.5 — recommendation of restitution as condition of work release or parole — no requirement for sentencing judge to inquire into defendant's ability to pay There was no statutory requirement for the sentencing judge to inquire into defendant's ability to pay restitution of $62,500.00 where the judge merely recommended restitution as a condition of his parole or work release. Neither the Parole Commission nor the Department of Correction is bound by the judge's recommendation of restitution as condition of parole or work release. G.S. <cross_reference>148-57.1</cross_reference> (c) and (d); G.S. <cross_reference>15A-1343</cross_reference> (d); and G.S. <cross_reference>148-33.2</cross_reference> (d).<page_number>Page 195</page_number>

1. Bills of Discovery 6; Constitutional Law 30 — failure to disclose supplemental handwriting analysis — no abuse of discretion in failing to sanction State Defendant failed to show the trial judge abused his discretion in failing to employ a remedy available under G.S. <cross_reference>15A-910</cross_reference> when the State failed to disclose a supplemental FBI handwriting analysis report damaging to defendant since defendant never indicated he was unaware of the supplemental report; he made no argument at trial that the State violated the discovery order; and his general objection was directed at three items of evidence and not at the handwriting analysis alone. 2. Criminal Law 173 — "opening the door" to inquiry into other crimes of defendant There was no merit to defendant's contention that he was denied a fair trial or due process of law by the allowance into evidence of records of similar crimes committed by defendant where the record disclosed that defendant "opened the door" to further inquiry by the prosecution by cross-examining the co-defendant concerning charges against him in Florida. 3. Criminal Law 34.8 — evidence of other crimes — common plan or scheme The trial judge did not err in allowing testimony by the co-defendant regarding similar crimes in which the defendant participated where the testimony clearly established a common plan or scheme to commit the crimes of obtaining property by forgery and uttering checks and forging credit card purchases. 4. Searches and Seizures 11 — admission of items seized in inventory search of automobile admissible The evidence supported a trial court's findings of fact and conclusion of law that items seized in an inventory search of an automobile were admissible where an officer was investigating possible criminal behavior when he parked his patrol car behind defendant's vehicle, which matched the description of a vehicle used in several neighborhood breaking and entering crimes, and approached the two men in the vehicle, also meeting the description of men involved in the crimes; where the officer's sighting of two males in a white car parked in a driveway of the neighborhood he was patrolling warranted reasonable suspicion, based on articulate and objective facts, to detain the defendant initially; and circumstances following the initial detention gave rise to probable cause to arrest the defendant for a crime.

1. Rules of Civil Procedure 15.1 — denial of motion to amend complaint The trial court did not abuse its discretion in denying plaintiffs motion to amend the complaint to add an additional cause of action after discovery had been completed and a month before trial. 2. Rules of Civil Procedure 26 — denial of motion to compel discovery — allowance of protective order The trial court did not abuse its discretion in denying plaintiffs motion to compel discovery and in sustaining defendants' motion for a protective order where plaintiff's interrogatories and requests for production of documents were very broad; plaintiff failed to show that the materials sought were relevant or necessary; and it would have been burdensome to defendants to comply with plaintiffs request. 3. Libel and Slander 16 — insufficient evidence of slander Plaintiff's evidence was insufficient for the jury in an action for slander where it tended to show that plaintiff owned an automobile body shop; on three occasions an employee of defendant insurer made statements to persons insured by defendant insurer to the effect that defendants had trouble working with plaintiff in the past and preferred not to work with him in the future; there was no question that plaintiff and defendants had disputes over repair work; the only specific instance mentioned by the employee was that plaintiff put used parts in cars and charged defendant insurer for new parts; and plaintiff admitted that he did this and that if there was excess money he gave it to the customer. 4. Contracts 34 — interference with contractual rights — insufficient evidence Plaintiff's evidence was insufficient for the jury in an action for interference with contract by defendant insurer in refusing to accept plaintiffs estimate on the cost of repairs of an automobile which had been taken to plaintiffs automobile body shop and which was then repaired by another shop at a cost exceeding plaintiffs estimate,<page_number>Page 272</page_number> since defendant insurer had a legitimate business interest in getting automobiles which it insured repaired correctly and for the lowest price, and since plaintiff testified that there was no contract when the automobile involved in the dispute was taken to another shop.

Appeal and Error 68.2; Mortgages and Deeds of Trust 1 — former appeal of same case — sufficiency of evidence as to finding of mortgage — law of the case In an action in which plaintiff sought a judgment requiring defendants to reconvey to plaintiff a tract of land that plaintiff had deeded to his brother, the defendant, the Court adopted an earlier holding by the Court as the law of the case where the same facts and the same questions were involved in both appeals. In the first appeal, the Court comprehensively reviewed the law by which a court determines whether a particular transaction constitutes a deed and option or a mortgage and concluded that the evidence was insufficient to find that the parties intended to create a debt, and due to the material similarity of the evidence adduced at both trials, the trial court's granting of a directed verdict in favor of defendants at the second trial was proper.

1. Criminal Law 104 — joint trial — consideration of evidence on motion for nonsuit When defendants are tried jointly and one of them offers no evidence, the evidence of the codefendant may not be considered on a motion to dismiss by the defendant offering no evidence although counsel for defendant cross-examined witnesses for the codefendant. 2. Narcotics 4.1 — possession of cocaine — insufficient evidence The State's evidence was insufficient to show that defendant had possession of cocaine found in a briefcase where it tended to show that defendant was en route to Canada from Florida on a non-commercial plane piloted by the codefendant; the plane landed in Wilmington, and while it was being refueled, the codefendant returned to the plane to get money to pay for the fuel; while at the plane, the codefendant noticed the arrival of law enforcement officers; the codefendant removed a briefcase from the plane and walked quickly into the terminal building, refusing the order of one of the officers to stop; the codefendant left the briefcase next to the wall in the back of the terminal building, out of sight of the officers following him, and returned to the front of the terminal; during this time, defendant remained at the counter near the front of the terminal; and the briefcase was later found to contain in excess of 400 grams of cocaine.<page_number>Page 317</page_number>

1. Criminal Law 173 — defendant "opening the door" to admission of evidence Testimony by one of the arresting officers that he had personally seen defendant selling heroin and testimony by a witness that he did not like defendant because of defendant's involvement in heroin traffic was properly admitted after defendant had "opened the door" by eliciting the officer's admission that he had never seen defendant buy heroin, and after defendant "opened the door" by eliciting testimony from the officer that he did not like the defendant and suggesting some sort of "personal vendetta." 2. Narcotics 2 — indictment charging possession of heroin — no fatal variance There was no fatal variance in an indictment which charged possession of "four grams or more, but less than 14 grams of heroin, a controlled substance included in Schedule 1 of the North Carolina Controlled Substance Act," but did not recite the statute number G.S.<page_number>Page 321</page_number> <cross_reference>90-95</cross_reference>(h)(4), or name the offense as trafficking since G.S. <cross_reference>15A-924</cross_reference>(a)(6) clearly mandates that such an omission does not constitute grounds for reversal of a conviction. 3. Constitutional Law 67 — exclusion of questions leading to identity of informant — no error In a prosecution for trafficking in heroin, the trial court properly excluded, at a suppression hearing, questions about the specific time the informant had seen defendant with heroin since defendant was not entitled to know the identity of the informant and there was independent corroboration of the testimony of the chief witness, G.S. <cross_reference>15A-978</cross_reference>(b)(2), and since revealing the exact time when the informant had seen the defendant with heroin would tend to reveal his identity and expose him to reprisal. Further, defendant failed to carry his burden of showing prejudice. G.S. <cross_reference>15A-1443</cross_reference>(a).

1. Criminal Law 66.16 — in-court identification — independent origin from photographic identification — sufficiency of evidence The evidence was sufficient to support the trial court's determination that a burglary victim's in-court identification of defendant was of independent origin and not tainted by a pretrial photographic identification where the victim testified: the intruder was in her presence for 10-15 minutes; for part of that time, the intruder attempted to cover his face, but she nevertheless observed the intruder's face while he squatted at the foot of her couch for more than seven minutes; her attention was focused directly on the intruder's face during these seven minutes; the intruder could be seen in the light of a hall light and an outside street light; she recognized the intruder as someone she had seen before in the vicinity of her trailer park; and she had described the intruder previously to the police as a big black man that she had seen before in the trailer park. 2. Criminal Law 89.2 — evidence competent for corroboration Evidence concerning the sheriffs response to a vandalism call at the victim's trailer park a month after the burglary in question was properly admitted where its purpose was to illustrate testimony as to the location of windows in an office of the trailer park from which a witness saw defendant on the date in question and not to link defendant with that vandalism. 3. Criminal Law 138 — sentencing hearing — court's inadvertent reference to wrong crime Defendant was not prejudiced by the trial court's inadvertent reference at the sentencing hearing to the defendant having been convicted of first degree rape when in fact defendant was convicted of first degree burglary.

Master and Servant 108.1 — unemployment compensation — misconduct precluding recovery The trial court erred in reversing an Industrial Commission decision finding that plaintiff should be disqualified from receiving unemployment compensation benefits by reason of misconduct since there was ample evidence to support the Commission's finding that claimant. "refus[ed] to do her assigned work as instructed by the supervisor in charge" and since the claimant's action in refusing to proceed with her work as instructed constituted misconduct. G.S. <cross_reference>96-15</cross_reference>(i).

Divorce and Alimony 23 — child custody — North Carolina court without jurisdiction A North Carolina court did not have subject matter jurisdiction to modify a Texas divorce decree and award plaintiff custody of his daughter where there was no evidence or implication that a Texas court ever declined to exercise its jurisdiction to modify the original decree, and since it is an absolute prerequisite to North Carolina's power to modify the Texas decree that Texas no longer have jurisdiction. G.S. 50A-14(a) and G.S. 50A-3(a)(3)(ii).

1. Homicide 28.4 — lack of duty to retreat in own home — failure to instruct — defendant as aggressor The trial court in a homicide and assault case did not err in failing to instruct on defendant's "lack of obligation to retreat when he is assaulted in his own home" where defendant's own evidence showed that he was the first person to resort to physical force and that he was thus not free from fault in bringing on the difficulty. 2. Criminal Law 163.1 — insufficient objection to failure to charge Defense counsel failed to "state distinctly that to which he objects" within the meaning of App. Rule 10(b)(2) so as to preserve for appellate review the trial court's failure to instruct that defendant could be found guilty of voluntary manslaughter on the basis of imperfect self-defense where defendant submitted a handwritten request that the court instruct "on voluntary manslaughter, involuntary manslaughter and self-defense," the trial court allowed the request and instructed on each of the three topics listed, the trial court inquired as to whether counsel had specific requests or corrections or additions to the charge, and defense counsel then asked "to preserve any differences" between the charge given and his written request. 3. Criminal Law 163 — failure to instruct on imperfect self-defense — no plain error The trial court's failure in a homicide case to instruct on imperfect self-defense did not constitute "plain error" where an examination of all the evidence leads to the conclusion that such error could not have had a probable impact on the jury's finding of guilt. 4. Homicide 19 — ability to perceive life threatening situation — exclusion of expert testimony The trial court in a homicide and assault case did not err in excluding expert psychiatric testimony offered by defendant to show that he possessed the ability to perceive accurately a life threatening situation where the State's evidence tended to show that defendant was never confronted with such a situation and that his actions were unprovoked, no issue was raised by the evidence as to defendant's normalcy, and the evidence thus had no tendency to prove a fact at issue in the case. 5. Constitutional Law 63 — procedure of "death qualifying" jury — constitutionality The procedure of "death qualifying" the jury did not violate defendant's constitutional rights.<page_number>Page 408</page_number>

1. Bills of Discovery 6 — recorded conversation between prosecutrix and police officer — no pretrial discovery The trial court in a rape case did not err in the denial of defendant's pretrial motion for discovery of a recorded conversation between the prosecutrix and a police detective. G.S. <cross_reference>15A-903</cross_reference>; G.S <cross_reference>15A-904</cross_reference>(a). 2. Criminal Law 91 — indictment after finding of no probable cause — beginning of speedy trial period — exclusion of time after voluntary dismissal Where defendant was arrested for rape on 23 July 1982, a finding of no probable cause was entered on 16 August, defendant as indicted for<page_number>Page 420</page_number> rape on 30 August, and an order of arrest and bill of indictment were served on defendant on 10 September, the statutory speedy trial period began to run when defendant was arrested and served with the bill of indictment on 10 September. Furthermore, the time between the State's taking of a voluntary dismissal of the rape charge on 18 November 1982 until he was arrested on 25 February 1983 after being reindicted for such offense was properly excluded from the statutory speedy trial period pursuant to G.S. <cross_reference>15A-701</cross_reference>(b)(5). G.S. <cross_reference>15A-701</cross_reference>(a1)(1) and (3). 3. Constitutional Law 51 — delay between indictment and trial — no denial of constitutional right to speedy trial Defendant's constitutional right to a speedy trial was not violated by a delay of 224 days between the date of the indictment, for rape and the commencement, of the trial. 4. Criminal Law 102.8 — statements by prosecutor — no comment on failure to testify The prosecutor's jury argument in a rape case that the evidence was "uncontradicted" and that there had "not been any evidence you have heard but what you find she has told you the truth" did not constitute an improper comment on defendant's failure to testify. 5. Criminal Law 99.1 — failure to recapitulate evidence — no expression of opinion The trial court in a rape case did not express an opinion on the evidence when it denied defense counsel's request to recapitulate evidence regarding testimony by the prosecutrix that she removed her own clothing, especially where the trial court emphasized to the jury that it had not summarized all of the evidence and that it was the duty of the jury to remember all the evidence.

Taxation 25.5 — time for listing inventory for tax purposes — end of fiscal year as opposed to calender year — distributor of heating and air conditioning equipment and parts covered by statute A 1973 amendment to G.S. <cross_reference>105-285</cross_reference> did not exclude a strictly mercantile business enterprise such as the taxpayer in this case, a distributor of heating and air conditioning equipment and parts, from its terms. The omission of a comma between the words "mercantile" and "manufacturing" in G.S. <cross_reference>105-285</cross_reference>(c) did not give rise to the nonsensical term "mercantile manufacturing business enterprise" but rather indicated that the comma was inadvertently omitted when the statute was revised, and taxpayer, after having chosen the end of its fiscal year as the time it listed inventory for tax purposes, was required to list its inventory as of that date and not as of this end of the calendar year.

Divorce and Alimony 24.10 — child support — agreement requiring payment until youngest child reaches age 18 A separation agreement and consent judgment obligating defendant to pay "for the support of the two minor children" the sum of $45.00 per week per child "until the younger child reaches the age of eighteen (18) years" requires defendant to pay support for the older child until the younger child reaches the age of 18 even though the older child has reached his eighteenth birthday.

Parent and Child 1.6 — proceeding to terminate parental rights — insufficient evidence of abandonment In a proceeding to adopt a child, the trial court erred in finding that respondent "willfully abandoned" her child pursuant to G.S. 48-2(1)a where the court made no findings in support of its conclusion that respondent's failure to communicate with her child was willful, and where the record revealed that respondent introduced substantial evidence that her actions in not communicating with her daughter were coerced and not willful.

Rules of Civil Procedure 55 — action against multiple defendant — postponement of summary judgment against defaulting defendants Where plaintiff sought to recover from all defendants jointly and severally for sales to the corporate defendants, entry of summary judgment against the defaulting corporate defendants should had been postponed until the conclusion of the action on the merits.

1. Criminal Law 138 — pecuniary gain aggravating factor The trial court erred in finding as an aggravating factor that an offense of breaking or entering was committed for hire or pecuniary gain where there was no evidence that defendant was hired or paid to commit the crime.<page_number>Page 559</page_number> 2. Criminal Law 142.3 — work release — restitution as condition — supporting evidence The evidence supported the trial court's recommendation that, as a condition of obtaining work release, defendant be required to make restitution of $400 to one of his victims.

Criminal Law 18.4 — trial de novo in superior court — publishing arrest warrant to jury indicating defendant found guilty for same offense in district court — error On trial de novo in superior court for assault on a law enforcement officer, the trial court erred in allowing the State to admit into evidence and to publish to the jury the police officer's copy of the arrest warrant which charged defendant with assault on a law enforcement officer since this copy of the arrest warrant carried the officer's handwritten notation that in District Court the defendant had been found guilty of the same offense for which he was being tried.

Master and Servant 65.2 — workers' compensation — findings of total disability rather than partial disability supported by evidence The Industrial Commission could properly reject a deputy commissioner's finding that plaintiff's injury sustained while lifting boxes of paint in the course of his employment was exclusively a scheduled injury under G.S. <cross_reference>97-31</cross_reference>, and in light of the repeated medical testimony that plaintiff was totally and permanently disabled, its conclusion that plaintiff was entitled to compensation under G.S. <cross_reference>97-29</cross_reference> was entirely proper. The Commission found that plaintiff, as a result of his accidental injury, suffers from back and leg pains; that this pain resulted from arachnoiditis, a condition of the spinal nerve roots, which resulted from operations undergone to relieve the pain caused by the accident.

Appeal and Error 57.5 — evidence not supporting findings — findings of fact not supporting conclusion In an action instituted by plaintiff to recover a sum of money plus interest on an alleged account which was tried before a judge without a jury, the evidence did not support the findings of fact, and the findings did not support the conclusions of law. Rather than opening and closing arguments, the attorneys submitted their arguments in "briefs" and the judgment was not signed until two months after the end of the trial. Several important issues were not addressed by the findings of fact and the evidence did not support other findings of fact.

1. Assault and Battery 14.3; Robbery 4.3 — sufficiency of evidence that dangerous weapon used In a prosecution for armed robbery and assault with a deadly weapon inflicting serious injury, although the State presented no evidence regarding what kind of weapon was used, the jury could infer from the appearance of the wound on the back of the victim's scalp that a dangerous or deadly weapon was used. The victim was hit in the back of the head with an object of sufficient size so as to stun the victim, knock him to the floor, and cause a hematoma and a one to one-half inch laceration requiring four to five stitches in the back of the victim's head, and the treating physician testified that he would not have considered the wound minor if it had been inflicted to his head and that the blow would have been considered if life-threatening had it been delivered a little harder. 2. Assault and Battery 14.3 — sufficiency of evidence of "serious injury" In a prosecution for assault with a deadly weapon inflicting serious injury, the evidence was sufficient for the jury to find beyond a reasonable doubt that the victim incurred a "serious injury," where the testimony of a physician indicated that due to the location of the injury it would have been life-threatening had the victim been hit a little harder, and that he would not have considered the blow minor had it been committed on him. Further, the victim's head was cut and stitches were required as treatment.

Parent and Child 1.6 — termination of parental rights — sufficiency of evidence The evidence was sufficient to support a trial court's order terminating parental rights and finding the children were neglected as defined by G.S. 7A-517(21) where the evidence tended to show that respondent did not provide the children with "proper care" and "supervision"; that they had on various occasions been "abandoned," and that they had not been provided "necessary medical care"; that respondent chose to serve an active prison term in lieu of probation thereby diminishing the opportunity to care and supervise her minor children; and that upon release from incarceration, respondent made very little effort to visit with her children.

1. Trial 6 — failure of court to allow plaintiff to "explain" stipulations — no error In a personal injury action, the plaintiff failed to show an abuse of discretion by the trial court in refusing to allow plaintiff to offer evidence to "explain" certain stipulations where an examination of the record revealed that plaintiff did not move to set aside the stipulations, nor did he show that his attorney was not authorized to enter into such stipulations.<page_number>Page 721</page_number> 2. Master and Servant 87 — workers' compensation claim — no right of common law action Where plaintiff stipulated that he was an employee of defendant and that the injuries which are the basis of his suit were sustained during the course of his employment, the stipulations when considered in conjunction with G.S. <cross_reference>97-3</cross_reference> and G.S. <cross_reference>97-10.1</cross_reference> clearly showed that defendant was entitled to judgment as a matter of law since the North Carolina Workers' Compensation Act barred plaintiffs recovery for injuries in a common law action.

Injunctions 7.2 — permanent injunction restraining defendants from interfering with maintenance and operation of dam proper Plaintiff was entitled to a permanent injunction restraining the defendants from interfering with the maintenance and operation of a dam where there was no dispute that the plaintiff had an easement to<page_number>Page 729</page_number> maintain and operate a dam, and that the defendants had interfered with this maintenance and operation and threatened to do so in the future. Injunctive relief was proper because plaintiffs remedy at law would be inadequate in that money damages to the plaintiff would be difficult to calculate and would not be adequate compensation, and plaintiff should not be required to engage in multiple lawsuits.

1. Criminal Law 89.3 — prior statement of witness — admissibility for corroboration An officer's testimony that a cashier who had previously viewed a photographic lineup "stated that she had thought about this further and she was almost positive that this was the man that had held the gun<page_number>Page 732</page_number> on" the pharmacist was not inadmissible hearsay but was properly admitted to corroborate the cashier's testimony. 2. Criminal Law 116 — failure of defendant to testify — refusal to give requested instruction The trial court did not err in failing to give a requested jury instruction on defendant's failure to testify where the court gave the pattern jury instruction which clearly informed the jury of the law and gave the substance of the requested instruction. G.S. <cross_reference>15A-1232</cross_reference>. 3. Criminal Law 92.2 — consolidation of charges against two defendants — additional charge against one defendant — failure of other defendant to testify The trial court did not err in consolidating charges against defendant and a co-defendant for trial because defendant was charged with only armed robbery and the co-defendant was charged with armed robbery and misdemeanor possession of hydromorphone where there was evidence that the hydromorphone was taken in the robbery, and the possession charge was thus part of the same act or transaction as the robbery. Nor were the charges improperly consolidated on the ground that defendant's trial strategy was compromised by the co-defendant's failure to testify where defendant and the co-defendant did not raise any antagonistic defenses or try to shift the onus of criminal responsibility but offered mutually independent alibi defenses. G.S. <cross_reference>15A-926</cross_reference>(b).

Infants 13 — juvenile delinquency proceeding — sufficiency of service of process Although the return of summons in a juvenile delinquency proceeding stated only that service was effected on a particular date but did not state that the juvenile and one of his parents were served as required by G.S. 7A-565, the record was sufficient to support the conclusion that respondent was properly served since the statement on the return that service was accomplished implies that it was done in the manner required by law, and such implication was supported by the fact that respondent, both of his parents and his counsel were present at the hearing, and by the fact that the question of service was not raised at the hearing.

1. Contempt of Court 6; Divorce and Alimony 25.13 — child custody order on appeal — ex parte order to show cause The trial court had authority to issue an ex parte order requiring plaintiff to relinquish custody of her two minor children to defendant and to appear and show cause why she should not be held in contempt for violating a valid custody order even though the last custody order was on appeal at the time the ex parte order was entered. G.S. <cross_reference>50-13.3</cross_reference>. 2. Contempt of Court 6 — child custody — ex parte order to show cause — no entitlement to notice and opportunity to be heard Plaintiff was not entitled to notice and an opportunity to be heard prior to the court's issuance of an ex parte order requiring plaintiff to relinquish custody of her two minor children to defendant and to appear and show cause why she should not be held in contempt of court for violating a valid child custody order. 3. Appeal and Error 6.2 — show cause order — no right of appeal An ex parte order requiring plaintiff to appear and show cause why she should not be held in contempt for violating a valid child custody order was interlocutory and not directly appealable.