Volume 96 — North Carolina Court of Appeals Reports

1. Rape and Allied Offenses 4.1 (NCI3d) — rape and taking indecent liberties with minor — attempt to show defendant as sexual deviant — evidence improperly admitted In a prosecution of defendant for taking indecent liberties with a minor, his adopted daughter, and first degree statutory rape, the trial court erred in admitting evidence of defendant's frequent nudity, his frequent fondling of himself, and an adulterous affair, since the testimony was not evidence of defendant's plan or scheme to take advantage of his daughter; there was no medical or other physical evidence presented by the State in support of the prosecutrix's claims and no eyewitnesses so that the outcome of the case depended upon the jury's perception of the truthfulness of each witness; and the evidence, which was of questionable relevance and tended to make defendant appear to be a sexual deviant, could inflame the jury and cause a verdict to be entered on an improper basis. N.C.G.S. <cross_reference>8C-1</cross_reference>, Rules 403 and 404 (b). Am Jur 2d, Rape 65, 67, 95. 2. Criminal Law 35 (NCI3d) — rape and taking indecent liberties with minor — prosecutrix's prior accusation against uncle — evidence improperly excluded In a prosecution of defendant for taking indecent liberties with a minor, his adopted daughter, and first degree statutory rape, the trial court erred in excluding evidence regarding a prior accusation of sexual misconduct made by the prosecutrix directed at her uncle, since it was error to exclude defendant's evidence which could show a possible alternative explanation about the crime with which he was charged. Am Jur 2d, Rape 87.<page_number>Page 20</page_number> 3. Criminal Law 89.3 (NCI3d) — corroborating witnesses — testimony properly admitted There was no merit to defendant's contention that the trial court erred in allowing testimony of several witnesses for corroborative purposes when such testimony did not corroborate the testimony of prior witnesses, since some of the testimony was not objected to by defendant, and some of the testimony, though going beyond the prosecutrix's testimony, essentially corroborated the statements made by the prosecutrix. Am Jur 2d, Rape 94-99.

1. Master and Servant 68 (NCI3d) — workers' compensation — suicide of police officer — depression — not an occupational disease In a workers' compensation action arising from the suicide of a police officer, the Industrial Commission did not err by finding that, despite plaintiff's expert testimony to the contrary, the preponderance of the evidence establishes that factors other than the deceased employee's occupation produced the dysthymic disorder (depression) and his ultimate death. It does not appear from a review of the record that the Commission ignored or disregarded plaintiff's doctor's testimony, and there was evidence in the record which would support the finding of fact which differed from the opinion given by plaintiff's doctor. The Industrial Commission is not limited to the consideration of expert medical testimony in cases involving complex medical issues. Am Jur 2d, Workmen's Compensation 106, 240-243, 310. 2. Master and Servant 67 (NCI3d) — workers' compensation — suicide of police officer — depression — no increased risk from occupation The Industrial Commission did not err by finding that a deceased officer was not at an increased risk, as compared to members of the general public, of developing depression by virtue of his job where there was testimony supporting the Commission's findings. Furthermore, the finding that the<page_number>Page 29</page_number> deceased officer's employment did not significantly contribute to or become a significant cause or factor in the development of the depression was a clear finding that plaintiff failed to prove causation. Am Jur 2d, Workmen's Compensation 106, 240-243, 310.

1. Accord and Satisfaction 1 (NCI3d) — services rendered by plaintiff to deceased sister — check from administrator to plaintiff — no payment in full for all services In an action to recover over $40,000 from deceased's estate for services rendered by plaintiff to her sister prior to the sister's death, a check for $133.72 tendered by defendant administrator of the estate and cashed by plaintiff did not constitute accord and satisfaction of any and all debts the sister owed plaintiff at the time of her death, since plaintiff and defendant had no discussion at any time that the check covered the cost of anything except the money plaintiff loaned her sister and the pajamas and robe she purchased for her sister; words written by defendant on the face of the check, "In Full Food, Clothing, etc.," could be construed to support plaintiff's belief; and it was not at all clear that defendant intended the check to cover full payment "of a disputed claim." Am Jur 2d, Accord and Satisfaction 33-35, 44. 2. Quasi Contracts and Restitution 2.1 (NCI3d) — services rendered plaintiff's deceased sister — no recovery on quantum meruit claim The trial court properly granted summary judgment for defendant on plaintiff's quantum meruit claim on the basis that a contract for payment for services never existed between plaintiff and her sister since plaintiff offered no evidence that she and her sister had ever discussed payment for services which plaintiff rendered; there was no evidence of deceased's intent to pay plaintiff; and, because plaintiff and deceased were sisters, the services plaintiff performed were presumed gratuitous absent any evidence to the contrary. Am Jur 2d, Restitution and Implied Contracts 26, <cross_reference>30-33</cross_reference>, 53.<page_number>Page 60</page_number>

Master and Servant 108.1 (NCI3d) — state trooper's association with felons — no substantial misconduct — right to unemployment compensation The trial court properly upheld the Employment Security Commission's ruling that claimant, a former state trooper, was not disqualified from receiving unemployment benefits where claimant negotiated the sale of an automobile and car rack to a person whom he knew to be a convicted drug dealer; claimant was counseled regarding this transaction and his associations with other known felons and he thereafter ceased all associations which may have been questioned under the departmental rule; claimant was subsequently discharged; and claimant's conduct did not rise to the level of substantial fault under N.C.G.S. <cross_reference>96-14</cross_reference> (2A) absent his repetition of the violation after a warning. Am Jur 2d, Unemployment Compensation 38.

Corporations 23 (NCI3d) — corporation not in existence — title not conveyed by corporation's deed In an action to quiet title the trial court properly entered summary judgment for defendants since plaintiff corporation was dissolved and had no legal existence on the date of the conveyance to it, and the deed therefore could not operate to convey title to plaintiff. Am Jur 2d, Corporations 2891-2895.

1. Sales 22.2 (NCI3d) — product liability — failure to obey cautionary warning — latent defects — no contributory negligence as matter of law In an action to recover for injuries received by plaintiff while operating a cardboard box riding gate baler designed and manufactured by defendant, plaintiff was not contributorily negligent as a matter of law under N.C.G.S. <cross_reference>99B-4</cross_reference> (1) in failing to obey a warning attached to the baler to keep his hands clear of the machine while it was in operation so as to entitle defendant to summary judgment because the evidence raised an issue as to the existence of latent defects in the baler which rendered the warning inadequate where plaintiff presented evidence tending to show: a tapeswitch safety sensor on the baler frequently broke because of its design and location; the baler did not include a mechanism to warn baler operators when the sensor was not functioning; at the time of the accident, defendant knew that its riding-gate baler violated OSHA and industry standards requiring a gate that must be pulled down before the machine will operate; and although defendant developed a package to replace the riding gates on its older models with pull-down gates, defendant made no systematic effort to replace the riding gates on the balers it sold to plaintiff's employer.<page_number>Page 152</page_number> <block_quote> Am Jur 2d, Plant and Job Safety — OSHA and State Laws 28; Products Liability 334, 335, 339, 344-352, 367-369, 400, 931 et seq.; Summary Judgment 27.</block_quote> 2. Sales 22.2 (NCI3d) — product liability — placing hand in cardboard box baler — no contributory negligence as matter of law In an action to recover for injuries received by plaintiff while operating a cardboard box baler designed and manufactured by defendant, the evidence on motion for summary judgment did not show that plaintiff failed to exercise reasonable care under the circumstances in violation of N.C.G.S. <cross_reference>99B-4</cross_reference> (3) as a matter of law when he reached into the baler to retrieve a knife while the platen was descending where plaintiff presented evidence that it was a regular practice for baler operators to place their hands in the bale chamber during operation to prevent cardboard boxes from falling out and to remove objects inappropriate for baling; plaintiff's employer was aware of this practice by its workers; baler operators relied on a tapeswitch safety sensor to protect them but the sensor was not functioning at the time of plaintiff's accident; and plaintiff had never known the sensor to fail and was unaware of its poor maintenance history. <block_quote> Am Jur 2d, Plant and Job Safety — OSHA and State Laws 28; Products Liability 334, 335, 339, 344-352, 367-369, 400, 931 et seq.; Summary Judgment 27.</block_quote>

1. Criminal Law 146.5 (NCI3d) — guilty plea — notice of appeal — timely The State's motion to dismiss as untimely defendant's appeal from a guilty plea to possession of marijuana with intent to sell or deliver was denied where the transcript clearly states that defendant gave verbal notice of appeal to the district attorney in open court and filed a notice of appeal on the same date. <block_quote> Am Jur 2d, Appeal and Error 316, 317; Criminal Law 490.</block_quote> 2. Searches and Seizures 3, 14 (NCI3d) — narcotics — search of bus passenger — no seizure — valid consent Defendant was not seized within the meaning of the Fourth Amendment when officers boarded a bus on which he was a passenger or when they began questioning defendant and, furthermore, marijuana found in defendant's baggage was collected pursuant to a valid search with defendant's consent where defendant was a passenger on a Greyhound bus which he had boarded in Houston, Texas; the Charlotte Police Department employed the source city concept in its drug enforcement efforts, which identifies major coastal cities associated with drug smuggling, including Houston; officers boarded the bus, making no announcements to the passengers; they wore police jackets but no uniforms and displayed no weapons; they began questioning passengers at the rear of the bus, talking in a non-threatening manner and positioning themselves so that the person to whom they were speaking and others not yet questioned were not barred from leaving; an officer noticed that defendant appeared to exhibit some characteristics<page_number>Page 179</page_number> associated with the drug courier profile; the officer showed defendant his credentials and asked to talk with defendant; defendant replied "sure" and pointed out his bags and a jacket; defendant was visibly nervous; the officer told defendant he was not in custody or under arrest and requested permission to search defendant and his luggage; defendant responded, "sure, go ahead"; marijuana was found in defendant's bag and defendant replied affirmatively when asked if he had marijuana in his bag; and defendant was then placed under arrest. Defendant was not seized in a Fourth Amendment context until he was arrested and his consent for the search of his bags could not have been more freely given. Am Jur 2d, Searches and Seizures 16, 48, 100, 101.

Damages 12.1 (NCI3d) — failure to settle insurance claim promptly — punitive damages adequately alleged Plaintiff's complaint was sufficient to state a claim for punitive damages based on aggravated and oppressive tortious conduct in defendant insurer's failure promptly to settle a claim for damages to plaintiff's mobile home. N.C.G.S. 58-54.4 (11). Am Jur 2d, Damages 731 et seq.; Insurance 1771-1773.

Election of Remedies 4 (NCI3d) — malpractice action — participation in declaratory judgment action — no election of remedies When the executor of an estate brought a declaratory judgment action to determine distribution pursuant to a codicil, and plaintiffs were named as defendants in that action, their participation in the declaratory judgment action and ultimate settlement of their claim against the estate were made necessary by the actions of others and were not an election of remedies; therefore, plaintiffs were free to pursue their legal malpractice claim against attorneys who represented them as defendants in a prior caveat proceeding which ended unfavorably to them and declared the codicil to be valid. Am Jur 2d, Attorneys at Law 197 et seq.

Process 9 (NCI3d); Corporations 1.1 (NCI3d) — disregarding corporate entity — nonresident defendants — jurisdiction of N.C. court Defendant West Side Fashions was the alter ego of the nonresident Richmond Garment Co., Inc. and the nonresident individual defendants, and defendants were therefore subject to the personal jurisdiction of the N.C. court where it was alleged in the verified complaint that plaintiff leased shopping center space to defendant West Side; the lease was executed by the individual defendants who accepted a check for $36,000 to defray the alleged costs of making the premises suitable for an apparel store; only a small part of the amount was spent in remodeling the premises and the rest was converted by the individual defendants; the store was never fully stocked as an apparel business and operated on a skeleton basis for<page_number>Page 264</page_number> a few months; one night the individual defendants and others removed all fixtures, property, and apparel from the leased premises; and defendant West Side was dissolved and had no assets. Am Jur 2d, Corporations 45, 66. Judge BECTON concurs in the result.

Master and Servant 67 (NCI3d) — workers' compensation — heart attack — emotional distress — compensable accident The Industrial Commission erred by concluding that decedent employee's fatal heart attack was not the result of an injury by accident under N.C.G.S. <cross_reference>97-2</cross_reference> (6) where the decedent was a driver of defendant lumber company's tractor-trailer; a tarp laid over the load on the open trailer caught on something and decedent jerked it three or four times and then walked to the back of the truck to free it; it took decedent four tries to correctly line up the wheels of the truck and to back onto an unloading lift; the truck did not have power steering and decedent had to struggle with the steering wheel; it was July and hot; decedent appeared to be frustrated; he was sixty-two years old and had high blood pressure, preexisting coronary disease and symptoms suggesting angina; and the cause of his death was sudden cardiac arrest. The essence of an accident is not the unusualness of the events which cause it, but their unexpectedness, and the heart attack was an accident even though it was precipitated by mental stimulus rather than physical exertion or contact. Even if excessive exertion or strain is essential to recovery, that has been established by the Commission's findings as to emotional and nervous strain. Am Jur 2d, Workmen's Compensation 300, 333.

1. Rules of Civil Procedure 41.1 (NCI3d) — voluntary dismissal without prejudice — summary judgment for defendant denied in first action — granted in second The trial judge in a wrongful death action arising from the collapse of a log home kit was not foreclosed from considering defendant's summary judgment motion where another judge had denied defendant's summary judgment motion in the initial action, plaintiff took a voluntary dismissal without prejudice of that action, plaintiff then refiled his claim within the one-year time limit, and defendant again moved for summary judgment. The refiling began this case anew for all purposes; once refiled, the case must be considered on its merits without reference to the disposition of the prior action. N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 41 (a)(1). <block_quote> Am Jur 2d, Dismissal, Discontinuance and Nonsuit 23, 73.</block_quote> 2. Negligence 29.2 (NCI3d); Death 3.6 (NCI3d) — collapse of log home kit — summary judgment for defendant — improper Summary judgment was improperly granted for defendant in a wrongful death action arising from the collapse of a wall during construction of a log home kit where plaintiff presented expert opinion testimony that the wall collapsed because it was constructed significantly out-of-plumb and that the plans and diagrams furnished by defendant were totally lacking in instructions on how to assure the construction of a wall in<page_number>Page 334</page_number> plumb, how to brace the wall during construction, and other safety-related matters. Viewed in the light most favorable to plaintiff, the forecast of evidence for the trial court presented an issue of material fact as to whether defendant was negligent in failing to provide complete instructions and whether such negligence led to faulty construction of the wall and caused its collapse. Am Jur 2d, Summary Judgment 6, 27.

1. Constitutional Law 26 (NCI3d) — valid foreign judgment — jurisdiction over nonresident defendant pursuant to full faith and credit clause The trial court had jurisdiction over defendant based on the full faith and credit theory where plaintiff obtained three valid money judgments against defendant in Florida in 1976, and defendant did not contest the Florida court's assertion of subject matter or personal jurisdiction in those actions, did not allege fraud concerning them, and did not object to the trial court's finding of fact that plaintiff's Florida judgments were valid. Am Jur 2d, Constitutional Law 863. 2. Process 14.3 (NCI3d) — nonresident defendant — sufficiency of contacts with North Carolina Defendant's continuous and systematic contacts with North Carolina between 1983 and 1988 satisfied the statutory and constitutional requirements necessary to find personal jurisdiction in this case where defendant came to North Carolina in 1983 and completed tax returns for customers of a tax service at its Charlotte offices for three years; he was the personal, financial and property manager of a Charlotte resident; he resided in her home on a continual basis from the spring of 1984 until her death in 1986; during 1984 he received in excess of $20,000 for managing the resident's North Carolina property; he prepared and used a letterhead stating his name and giving a North Carolina address; he purchased real estate in North Carolina and all correspondence with regard thereto, including tax billings, was sent to him at a Charlotte address; he was beneficiary of both real and personal property, valued in excess of $300,000, of the North Carolina resident's estate; and at the time this action was commenced defendant did not live in North Carolina but he still owned property in this state, was a named beneficiary under a North Carolina resident's will, and retained a North Carolina attorney to represent<page_number>Page 378</page_number> his interest in the estate. N.C.G.S. <cross_reference>1-75.4</cross_reference> (1)(d); N.C.G.S. <cross_reference>1-75.8</cross_reference> (5). Am Jur 2d, Process 45.

1. Searches and Seizures 12 (NCI3d) — stop of car on suspicion of impaired driver — reasonableness An officer's stop of the car in which defendant was a passenger to investigate the driver's impairment was lawful where the car was being driven on an interstate 20 mph below the speed limit, and the driver was weaving within his lane, since those actions were sufficient to raise a suspicion of an impaired driver in a reasonable and experienced officer's mind. Am Jur 2d, Searches and Seizures 16, 39, 40, 46, 53. 2. Searches and Seizures 12 (NCI3d) — suspicion of impaired driver — trooper's stop of vehicle — permissible scope of investigation not exceeded There was no merit to defendant's contention that a trooper exceeded the permissible scope of the initial stop of a vehicle<page_number>Page 390</page_number> in which defendant was a passenger because the trooper's investigation extended beyond his suspicion of the driver's impairment, since the initial investigation was reasonably related and limited to his suspicions that the driver was impaired; his further investigation of the driver's identity was reasonable when he gave the trooper two different names; it was reasonable for the trooper to continue his investigation of the driver's identity by asking defendant questions concerning the driver; the driver gave the trooper a copy of the car lease agreement which contained defendant's name; and that the trooper's conversation with defendant passenger about the driver's identity resulted in defendant's giving his voluntary consent to a search of the vehicle did not support defendant's arguments that the trooper exceeded the permissible scope of his investigation. Am Jur 2d, Searches and Seizures 16, 39, 40, 46, 53. 3. Searches and Seizures 18 (NCI3d) — consent to search vehicle and suitcase — opening of package in suitcase — contents admissible <block_quote> Because defendant passenger gave the trooper who stopped his car for suspicion of impaired driving permission to search the entire contents of defendant's suitcase, and did not retract or limit the consent, the trooper had defendant's consent to open a package found in the suitcase, and the trial court did not err in allowing the drug contents of the package into evidence at trial.</block_quote> Am Jur 2d, Searches and Seizures 16, 39, 40, 46, 53. 4. Narcotics 4 (NCI3d) — possession of drug paraphernalia — sufficiency of evidence Circumstantial evidence was substantial and supported an inference that scales found in the trunk of defendant's car were "drug paraphernalia" sufficient for the trial court to submit the issue of possession of drug paraphernalia to the jury where it tended to show that the scales were found in defendant's trunk beside his suitcase which contained 54 grams of pure cocaine; a police officer qualified as an expert on drug investigations testified that the scales were used as a common weighing instrument for controlled substances; the large amount of cocaine seized would support an inference that scales would be needed to divide it into smaller amounts<page_number>Page 391</page_number> for resale; the pureness of the cocaine would support an inference that the cocaine would require mixing with a diluting substance and reweighing before sale or use; it was improbable that this type of scales could be used to weigh produce or ammunition, as defendant claimed; and defendant attempted to flee the scene upon discovery of the cocaine, permitting the inference that defendant's guilt caused him to flee. Am Jur 2d, Drugs, Narcotics, and Poisons 16, 47, 47.5. 5. Narcotics 4.5 (NCI3d) — three offenses — instructions on each offense proper In a prosecution of defendant for trafficking in cocaine by possession, trafficking in cocaine by transportation, and possession of drug paraphernalia with intent to use, the trial court sufficiently informed the jury of their options in finding defendant guilty or not guilty of each offense, and no defect existed in the jury charge. Am Jur 2d, Drugs, Narcotics, and Poisons 16, 47, 47.5.

1. Divorce and Alimony 30 (NCI3d) — equitable distribution — award of marital home to defendant — sufficiency of evidence Evidence was sufficient to support the trial court's award of the marital home to defendant where it tended to show that defendant had custody of her two sons; the sons lived in the home for most of their lives, remained there while the parties were separated, and attended schools very nearby; and defendant's income was significantly less than plaintiff's income. Am Jur 2d, Divorce and Separation 903, 923, 1025. 2. Divorce and Alimony 30 (NCI3d) — equitable distribution — failure to credit plaintiff with paying mortgage — error The trial court in an equitable distribution proceeding erred in failing to credit plaintiff with paying the entire<page_number>Page 463</page_number> mortgage debt on the marital home after the parties' separation. Am Jur 2d, Divorce and Separation 893. 3. Divorce and Alimony 30 (NCI3d) — equitable distribution — gross fair market value of marital properties — improper value — plaintiff not prejudiced The trial court in an equitable distribution proceeding erred by including the gross fair market value of certain marital properties which had an outstanding Mastercard balance and then failing to credit plaintiff for the debt, since the division of marital property is to be accomplished by using the net value of the property, i.e., its market value less the amount of any encumbrance serving to offset or reduce market value; however, since plaintiff was awarded all of the items charged on the credit card in the property division award, such error was not prejudicial. Am Jur 2d, Divorce and Separation 937.

Rules of Civil Procedure 60.1 (NCI3d) — motion to set aside judgment — excusable neglect alleged — motion not timely The trial court properly denied defendants' N.C.G.S. <cross_reference>1A-1</cross_reference>, Rule 60 (b) motion to set aside judgment against them where defendants were residents of Pennsylvania and requested their Pennsylvania attorney to obtain N.C. counsel to represent them in this state; defendants relied upon representations by their Pennsylvania attorney that their interests were being taken care of; in fact no one was "minding the shop" in N.C. and a judgment of nearly $500,000 was entered against them;<page_number>Page 486</page_number> defendants contended that they should be excused for failing to take further measures to keep informed about the status of their case; but defendants waited 29 months after entry of judgment and thus failed to comply with the express requirement of Rule 60 that their motion be made not more than one year after entry of the judgment. Am Jur 2d, Judgments 699, 704, 718.

1. Husband and Wife 2.1 (NCI3d) — premarital agreement — order declaring invalid — findings and conclusions In a divorce action which declared invalid a premarital agreement, findings which were in fact conclusions that the wife had had insufficient time to discuss the agreement with an attorney and that negotiations between husband and wife resulted in only two minor adjustments in the agreement were not binding on the Court of Appeals because they were not supported by the findings. Other findings were accepted as conclusive on appeal where there was substantial evidence in the record supporting those findings, although some disagreement existed. Am Jur 2d, Husband and Wife 283, 299. 2. Husband and Wife 2.1 (NCI3d) — premarital agreement — invalidity of agreement — burden of proof In an action to enforce a premarital agreement executed prior to the enactment of N.C.G.S. Chapter 52B, the party claiming the invalidity of the agreement for reasons of undue influence, duress, fraud, unconscionability or inadequate disclosure has the burden of proof. Unlike the usual situation in which there is a dominant party who has the burden of showing the validity of the agreement, here there are two parties who are equally fiduciaries and equally beneficiaries and therefore the burden of demonstrating the invalidity of the premarital agreement is upon the person who would have it held invalid. Am Jur 2d, Husband and Wife 313, 314. 3. Husband and Wife 2.1 (NCI3d) — premarital agreement — defenses — necessity for pleading or litigation Although undue influence and duress were not affirmatively pled as defenses to a premarital agreement, the trial court addressed those issues without objection and the pleadings are regarded as amended to conform to the proof. As the defenses of unconscionability, fraud, and the statute of<page_number>Page 517</page_number> limitations were neither pled nor litigated, those issues were not properly raised and will not be addressed on appeal. Am Jur 2d, Husband and Wife 312. 4. Husband and Wife 2.1 (NCI3d) — premarital agreement — duress and undue influence — burden of proof not met The wife did not meet her burden of proof in showing that a premarital agreement was executed under duress and undue influence where the parties agreed in early December 1979 to be married and the husband indicated that he would like to enter into a premarital agreement; the wife responded that she would be more than willing to look at the agreement; the parties agreed to be married in Las Vegas and the wife made arrangements to travel to Las Vegas for marriage on New Year's Day; the husband presented the wife with a premarital agreement at 8:00 p.m. on the evening before they were to leave for Las Vegas to be married on the next day; the agreement had been prepared by his attorney without the knowledge of the wife; the husband told the wife that they would not get married if the agreement was not signed; the wife told the husband that she should have an attorney of her own choosing review the document and indicated that she didn't want to sign; she nevertheless executed the agreement after making some adjustments because she very much wanted to get married and because of her financial involvement with his company; and at that time she had an active roll in the business of which the husband was a major stockholder. The shortness of the time interval between the presentation of the premarital agreement and the date of the wedding combined with the threat to call off the marriage if the agreement was not executed is insufficient per se to invalidate the agreement; moreover, the totality of the circumstances surrounding the execution of the agreement does not support a conclusion of duress and undue influence where the wife was aware that she should not sign the agreement without the advice of an attorney but proceeded to execute the agreement; it could not be presumed from the findings that she had insufficient time to seek the advice of an attorney had she decided to do so; the wife read the agreement which was not lengthy and in fact made some adjustments before signing; the husband did not threaten to terminate her employment if she refused to execute the agreement; and there was<page_number>Page 518</page_number> no finding that the failure to execute the agreement would have resulted in any loss of funds which may have been expended by the wife in preparation for the wedding. Am Jur 2d, Husband and Wife 313, 314. 5. Husband and Wife 2.1 (NCI3d) — premarital agreement — requirement of acknowledgment A premarital agreement was not invalid because it was never acknowledged where N.C.G.S. <cross_reference>52-10</cross_reference>, which at the time of execution of the agreement dealt with contracts between persons of full age about to be married and married persons, required acknowledgment only of those contracts executed during marriage. The validity of a premarital agreement is not affected by the lack of acknowledgment. Am Jur 2d, Husband and Wife 286. 6. Husband and Wife 2.1 (NCI3d) — premarital agreement — alimony provisions — no effect on property provisions Unenforceable provisions in a premarital agreement dealing with alimony did not affect the property provisions of the agreement because there is a presumption that provisions for property division and support payments are separable and there were no findings in the record to rebut that presumption. <block_quote> Am Jur 2d, Divorce and Separation 19; Husband and Wife 289.</block_quote> 7. Husband and Wife 2.1 (NCI3d) — premarital agreement — conclusion that agreement identical to Equitable Distribution Act — distribution of property under Act — error The trial court erred by concluding that a premarital agreement was sufficiently identical to the Equitable Distribution Act to allow the trial court to distribute the property according to the Act despite the agreement. The Equitable Distribution Act did not exist at the time of the agreement's execution and the parties could not have intended that the Act cover their property division; furthermore, public policy permits spouses and prospective spouses to execute an agreement disposing of their property and the court should not ignore such agreements simply because of similarity to statutory provisions. <block_quote> Am Jur 2d, Divorce and Separation 19; Husband and Wife 289.</block_quote><page_number>Page 519</page_number>

1. Constitutional Law 28 (NCI3d) — prosecution of tax protestor — not selective prosecution The trial court did not err by denying defendant's motion to dismiss tax related charges on the ground of selective prosecution. Defendant failed to show that prosecution was based on his affiliation with a recognizable, distinct class that suffered discrimination while others similarly situated were ignored in that his statistical evidence was too tenuous and he was incorrect in comparing the rate of prosecutions against the Patriot Network tax protestors with the number of people who fail to file but are not tax protestors. Defendant ignores the fact that preceding 1988 the Special Investigation Unit of the Department of Revenue initiated charges against numerous non-Patriot Network members. Am Jur 2d, Criminal Law 833, 834. 2. Constitutional Law 28, 18 (NCI3d) — tax protestor — selective enforcement — no violation of free speech A tax protestor's contention that the statutes under which he was charged, N.C.G.S. <cross_reference>105-236</cross_reference> (9) (failure to file a return) and N.C.G.S. <cross_reference>105-236</cross_reference> (7) (tax evasion), were unconstitutional as applied to him and that they represented attempts to suppress his right to free speech was feckless, even assuming that the State singled defendant out for prosecution because of his vocal stand against paying income taxes, because such prosecutions are predicated in part on a potential deterrent effect and serve a legitimate interest in promoting more general tax compliance. Am Jur 2d, Criminal Law 833, 834. 3. Searches and Seizures 1 (NCI3d) — tax protestor — administrative summons — wage and exemption records — not an illegal search The trial court did not err in the prosecution of a tax protestor by denying his motion to suppress evidence obtained pursuant to N.C.G.S. <cross_reference>105-258</cross_reference>, an administrative summons<page_number>Page 546</page_number> statute used by the Department of Revenue to obtain wage and exemption information from defendant's former employer. A summons under N.C.G.S. <cross_reference>105-258</cross_reference> would violate constitutional protections if it was overly broad, not issued in good faith for a legitimate purpose, or not relevant to that purpose. The information sought must not be in the possession of the Department at the time the summons is issued, and the proper administrative steps must be followed in issuing the summons. The Department of Revenue complied with those requirements in this case, rendering defendant's assignments of error without merit. Am Jur 2d, Searches and Seizures 28. 4. Taxation 28.5 (NCI3d) — tax evasion — failure to give notice of assessment of taxes — not related to criminal offenses The trial court did not err by denying defendant's motions to dismiss tax related charges based upon the State's failure to comply with N.C.G.S. <cross_reference>105-241.1</cross_reference>, which requires the State to give notice of assessment of taxes. This statute addresses only the civil assessment of taxes and is fully independent of the criminal offenses with which defendant was charged. Am Jur 2d, State and Local Taxation 7. 5. Criminal Law 50 (NCI3d) — tax evasion — refusal to recognize witness as expert — no abuse of discretion The trial court did not abuse its discretion in a prosecution for tax related charges by failing to recognize a witness as an expert and in failing to allow him to testify as a layman concerning certain matters. Am Jur 2d, State and Local Taxation 7. 6. Taxation 28 (NCI3d) — tax evasion — proof required — subject to being taxed and willful evasion The trial court did not err by failing to dismiss charges of tax evasion on the ground that the State did not prove that defendant owed taxes for the years in question, or by failing to instruct the jury that the State must show that a tax is due. Where a defendant is charged with attempting to evade or defeat the ascertainment of a tax, and that person fails to file a return, the State must only show that defendant was subject to being taxed under the law and<page_number>Page 547</page_number> that he willfully attempted to evade or defeat the imposition of the tax. Am Jur 2d, State and Local Taxation 7. 7. Taxation 28 (NCI3d) — tax evasion — good faith belief that tax is not owed — no defense The trial court did not err in the prosecution of a tax protestor by not instructing the jury that defendant's subjective good faith belief that he did not owe the taxes was a defense. The trial court conveyed the required instruction that, while a good faith misunderstanding of the law may negate willfulness, a good faith disagreement with the law does not. Am Jur 2d, State and Local Taxation 7.

Deeds 19.3 (NCI3d) — restrictions in condominium — declaration amended — amendment applicable to all owners A duly adopted declaration amendment which restricts the occupancy or leasing of units in a condominium complex<page_number>Page 628</page_number> is binding upon owners who bought their units before the amendment was adopted as well as upon owners who bought subsequent to the amendment. <block_quote> Am Jur 2d, Condominiums and Co-Operative Apartments 17, 39.</block_quote>

1. Criminal Law 162 (NCI3d) — necessity for objection to testimony Defendant was precluded from asserting error in the testimony of two State's witnesses which impeached a defense witness where defendant objected only to the presence of the two witnesses in the courtroom during testimony by the defense witness but failed to object to the testimony of the State's witnesses. Am Jur 2d, Trial 61, 62. 2. Criminal Law 51.1 (NCI3d) — clinical psychologist — expert in behavior of sexual assault victims The trial court did not err in qualifying a witness as an expert in clinical psychology and in the specific area of behavior and treatment of sexual assault victims where the witness is an associate professor of psychology at Duke University and has been licensed as a psychologist in North Carolina for fourteen years, has published fifteen research papers, has had eleven research grants, has presented papers at professional organizations, has directed seventeen doctoral dissertations, and has supervised twenty-three major papers and honors theses on the topics of sexual trauma, sexual aggression, stress and coping, and helplessness. <block_quote> Am Jur 2d, Expert and Opinion Evidence 197; Rape 68, 68.5.</block_quote> 3. Rape and Allied Offenses 4 (NCI3d) — rape victim — Post Traumatic Stress Disorder — admissibility of opinion testimony A clinical psychologist was properly permitted to testify that an alleged rape and sexual offense victim was suffering from Post Traumatic Stress Disorder and that her behavior was consistent with that of other sexual assault victims. <block_quote> Am Jur 2d, Expert and Opinion Evidence 197; Rape 68, 68.5.</block_quote><page_number>Page 643</page_number> 4. Criminal Law 50.1 (NCI3d); Rape and Allied Offenses 4 (NCI3d) — clinical psychologist — opinion on reliability of victim's responses — long term effect of PTSD — admissibility of testimony A clinical psychologist's testimony that an alleged rape victim did not fake her responses to tests administered to her and did not exaggerate the symptoms of PTSD and the witness's extensive testimony on the long term effect of PTSD was admissible and relevant as expert testimony on the credibility of psychological tests and as the basis for her diagnosis of the victim. <block_quote> Am Jur 2d, Expert and Opinion Evidence 197; Rape 68, 68.5.</block_quote> 5. Criminal Law 146.2 (NCI3d) — subject matter jurisdiction over crimes — failure to object Defendant's failure to make a motion to dismiss for lack of jurisdiction or improper venue waived his right to appeal the constitutionality of the statute giving a Wake County trial court subject matter jurisdiction over the charges against defendant. Am Jur 2d, Criminal Law 339, 361, 364.

Master and Servant 81 (NCI3d) — workers' compensation — subcontractor — estoppel of carrier to deny coverage Although plaintiff was a subcontractor and thus an independent contractor in performing carpentry work on a house the employer was building, the employer's workers' compensation carrier was estopped to deny coverage for plaintiff where the employer's superintendent agreed to deduct 7% from plaintiff's pay to provide workers' compensation coverage under the employer's policy as a condition precedent to the subcontract with plaintiff; the employer routinely added subcontractors to its workers' compensation insurance; the carrier routinely<page_number>Page 650</page_number> accepted premiums from the employer for subcontractors; and the employer thus had the implied authority to bind the carrier to provide workers' compensation insurance for a subcontractor. Am Jur 2d, Workmen's Compensation 171, 172, 679.

1. Process 14.3 (NCI3d) — foreign corporation — in personam jurisdiction — contact sufficient The contacts of a Georgia corporation with North Carolina were sufficient to constitute substantial activity for purposes of invoking in personam jurisdiction under N.C.G.S. <cross_reference>1-75.4</cross_reference> (1)d where there were telephone conversations between plaintiff's representatives in High Point and defendant's representatives in Georgia; an invoice was mailed from Georgia to North Carolina and a check from North Carolina to Georgia; defendant made a service call for boiler repairs in Canton, North Carolina for another company; and defendant delivered boiler parts to Oxford Industries in Burgaw, North Carolina. Am Jur 2d, Foreign Corporations 329, 330, 344, 345, 350. 2. Process 9.1 (NCI3d) — jurisdiction over nonresident defendant — money as thing of value The requirements for obtaining long-arm jurisdiction under N.C.G.S. <cross_reference>1-75.4</cross_reference> (5)d were met when defendant sent a bill from Georgia to High Point, North Carolina and plaintiff then sent a check from High Point to Georgia. Pope v. Pope, <cross_reference>38 N.C. App. 328</cross_reference>, held that payments are a thing of value within<page_number>Page 667</page_number> N.C.G.S. <cross_reference>1-75.4</cross_reference> (5)c, and the same construction applies to N.C.G.S. <cross_reference>1-75.4</cross_reference> (5)d. Am Jur 2d, Foreign Corporations 365, 368. 3. Process 14.3 (NCI3d); Constitutional Law 24.7 (NCI3d) — foreign corporation — minimum contacts — evidence sufficient A defendant corporation had sufficient minimum contacts with North Carolina to justify the exercise of personal jurisdiction without violating due process where defendant engaged in several North Carolina business arrangements and on three occasions entered the state and conducted relations with North Carolina businesses. Am Jur 2d, Foreign Corporations 318, 329.