North Carolina Lawyers Weekly October 11, 2021

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VOLUME 33 NUMBER 46 ■

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OCTOBER 11, 2021 ■ $8.50

NEW REFORM LAW SEEKS TO

MAKE POLICING MORE EQUITABLE — AND ACCOUNTABLE

Pass rate remains high for remote bar exam ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com

■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com The murder of George Floyd amplified cries for police reform that grow louder with each incident of excessive use of force and unjustified killings by officers. But in Congress and many statehouses, the initial enthusiasm for reform has so far yet to be converted into any substantive legislation. North Carolina has managed to chart a different path, however, and on Sept. 2 Gov. Roy Cooper signed into law a comprehensive, bipartisan piece of legislation—the culmination of a racial equity task force he created in June 2020—aimed to bring about a more equitable criminal justice system in the state. “We have seen that the criminal justice system doesn’t always treat everyone the same—and too often the

differences are disproportionately felt by people of color,” Cooper said in a statement. Senate Bill 300 includes provisions regulating several facets of the state’s justice system. They decriminalize certain ordinances, address constitutional issues with satellite-based monitoring, and require speedy first court appearances for in-custody defendants. The bulk of the bill, however, focuses on standardizing the training and oversight of North Carolina’s law enforcement agencies and officers in order to increase accountability, competency, and transparency within the profession.

Spotlight on police

The state’s Criminal Justice Education and Training Standards Commission and Sheriffs’ Education and

Training Standards Commission are tasked with jointly developing and implementing uniform, statewide minimum standards for the hiring and training of the officers they certify. This includes more rigorous background checks and in-service training on issues such as domestic violence investigations, juvenile justice, community policing, use of force, and minority sensitivity. The bill promotes the recruitment of diverse candidates in a profession that is predominantly male and overwhelmingly white, and calls for mental health awareness training and face-to-face psychological examinations for every criminal justice officer. The law also establishes a duty for officers to intervene and report incidents of excessive force or mis-

More than three-quarters of the applicants who sat for July’s bar exam passed the exam, in what administrators say was likely to be the final remotely proctored bar exam before moving back to in-person exams for 2022. Of the 817 examinees who sat for July’s test—159 more than in 2020— 614 passed. The 75.2 percent pass rate is down slightly from July 2020’s inperson exam (83.1 percent) and similar to the pass rate in July 2019 (72.5 percent), the first July bar exam in North Carolina that utilized the Uniform Bar Exam. But all of those rates are considerably higher than July 2017’s 61.8 percent pass rate and the 57.4 percent pass rate in July 2018. Leading up to 2019, the UBE was a welcome change for a state that had seen declining pass rates in recent years and was ranked 48th in bar passage rates. Despite a nine-point drop from its 87.1 percent pass rate in 2020, graduates of North Carolina law schools this year (78.1 percent pass rate) again outpaced their out-of-state counterparts, who passed at a rate of 69.7 percent. Each of Duke Law School’s 29 examinees, all first-timers, passed. Duke’s perfect showing was followed by Wake Forest School of Law at 96 percent (93 of 97), the University of North Carolina School of Law at 82.2 percent (111 of 135), Campbell Law School at 81.3 percent (117 of 144), North Carolina

See Reform Page 5 ►

See Bar exam Page 7 ►

Family of student killed by sleeping driver settles case for $5M ■ BY DAVID BAUGHER The family of a college student who was killed in a collision with an armored box truck whose driver had fallen asleep at the wheel has agreed to a $5 million settlement, the family’s attorneys report. Harry Albritton Jr. of Irons & Irons in Greenville and Chris Mauriello of Mauriello Law in Cornelius report that the 21-year-old woman was killed instantly when Harry the truck crossed the center line on Albritton

a two-lane rural road and smashed into her headon. Due to a confidentiality agreement many details of the case, including the identities of the parties and the location of the accident, were withheld. Because the woman died instantly, there were no medical expenses at issue, the attorneys said, and she was unmarried and had no children to survive her. The defense conceded the commercial Chris driver’s liability but denied corpoMauriello rate wrongdoing.

“The plaintiffs believed they had a very good punitive damage claim,” Mauriello said. “The defendant always maintained that there wasn’t any. But of course, the trier of fact, the jury, never heard it, so I think that both sides went into mediation with that as a big unknown what a final jury would do with it.” The biggest question centered on the family’s contentions that the company bore responsibility for the crash because it had overworked its driver. Albritton said suit was filed immediately after a police officer indicated that the driver admitted he may S e e S l e e p i n g d r i ve r P a g e 3 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

BAR EXAM

Broadside collision leads to $4.5M settlement

Wrongful death suit against distracted driver settles for $4M

Introducing North Carolina’s newest lawyers – Fall 2021

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 11, 2021

NEWS BRIEFS

N.C. ruling influence on sex-offender monitoring may be muted RALEIGH (AP) — It’s constitutional for North Carolina to require people convicted of the most serious sex offenses to be monitored perpetually by satellite-linked bracelets, the state Supreme Court ruled on Sept 24. But the majority opinion’s influence on sex offenders may be muted. A General Assembly law signed this month will soon reduce lifetime GPS monitoring of such “aggravated offenders” and others convicted of sex crimes subjected to such tracking to 10 years. The decision came in the case of Donald Eugene Hilton, who went before a judge in Catawba County in 2018. Based on his 2007 convictions involving sex with children, the judge ordered him to enroll in lifetime satellite-based monitoring. Hilton appealed, and a Court of Appeals panel last year ruled that such monitoring was reasonable only for the period of time in which Hilton was on post-release supervision, not after it ended. In a 4-3 decision, the Supreme Court declared the lifetime monitoring for aggravated offenders—usually people convicted of the rape of an adult or of sexual intercourse with a child— constituted a reasonable search under the U.S. Constitution. Sex offenders must wear the bracelet at all times. The bracelet must be charged daily for up to two hours. Chief Justice Paul Newby, writing the majority opinion, said the monitoring program protects the public from sex-related crimes. Such monitoring can’t be instituted without a court hearing in which a defendant can present evidence, he wrote, and a defendant can ask for it to end starting one year after the offender completes his sentence. The program “does not authorize state officials to indiscriminately search unidentified individuals for unspecified items and for an indefinite period of time without stated cause or constraint,” Newby wrote, adding that Hilton “has failed to demonstrate that the (monitoring) program is unconstitutional beyond reasonable doubt.” The ruling followed a 2019 state Supreme Court ruling that found lifetime satellite-based tracking violates rights when imposed only because the person has been convicted of multiple sex offenses. Associate Justice Anita Earls, who wrote the 2019 majority opinion, criticized the majority’s decision as a “soonto-be-irrelevant conclusion.” The new law, which will take effect in December, will afford Hilton “the opportunity to seek and obtain an order reducing his required period of enrollment from life to 10 years” through a legal petition, Earls said in a dissenting opinion. Regardless, Earls added, the lifetime monitoring constituted an unreasonable search and seizure upon Hilton, and state prosecutors failed to present evidence to support the “assertion that imposing lifetime (monitoring) deters sex offenders from committing future sex crimes.” Justices Robin Hudson and Sam Ervin IV joined Earls in her opinion. The new provisions for satellitebased monitoring were contained in a bipartisan police and criminal justice reform measure signed into law by Gov. Roy Cooper three weeks ago. The law says the provisions ad-

dress constitutional issues described in the 2019 case. The law in part also describes the efficacy of satellite-based monitoring for lowering the chances that an offender will commit a new crime.

COA: McCrory backers can be sued for defaming 2016 voters RALEIGH (AP) — Some supporters of former Republican Gov. Pat McCrory’s efforts to contest the 2016 gubernatorial election results can be sued for allegedly defaming four residents who were falsely accused of voting twice, a North Carolina appeals court ruled on Oct. 5. The complaint the Southern Coalition for Social Justice brought forward in 2017 could pave the way for lawmakers and their supporters to be penalized for making inaccurate voter fraud claims in future elections. The unanimous ruling from the three appeals court judges allows a trial court to hear the case against the Pat McCrory Committee Legal Defense Fund and the Virginia-based Holtzman Vogel Josefiak Torchinsky law firm named in the complaint. The judges also decided, however, that William Clark Porter, a GOP official in Greensboro whose signature was on one of the election protests that was filed, is entitled to a legal defense that would likely clear him of defamation claims because he participated in a “quasi-judicial election protest proceeding.” “Mr. Porter was not the puppet master. He was the puppet, and obviously, he did make serious allegations against our clients, but this is a good ruling for us,” said Allison Riggs, who leads the voting rights program at the Southern Coalition for Social Justice. “We believe that we now can proceed against the masterminds of this concerted effort to defame North Carolina voters.” McCrory is not personally named as a defendant in the case that involves four Brunswick and Guilford County voters. His backers could appeal the decision to the state Supreme Court. The law firm alleged to have ghostwritten the election protest Porter submitted did not immediately respond to a request for comment. Craig Schauer, a Raleigh-based attorney who defended McCrory’s supporters in a March appeals court hearing, argued at the time that Porter, the law firm and legal defense fund all had the absolute right to make statements about unlawful ballots shortly after the November 2016 election, regardless of whether the comments were defamatory. Schauer added that the lawsuit could stifle free speech by discouraging members of the public from voicing their concerns about possible voting irregularities. Riggs said her organization is likely to focus on the law firm and legal defense fund, though it could choose to ask the Supreme Court to make Porter more susceptible to a defamation lawsuit. The lawsuit accuses the supporters of participating in a civil conspiracy that harmed voters’ reputations. The plaintiffs are seeking damages in excess of $25,000. McCrory lost the election by 10,277 votes, or 0.22 percentage points, which fell outside the 10,000-vote recount threshold. The former governor conceded the race nearly a month after his defeat. He is now running for an open

U.S. Senate seat. Asked at a Mount Airy event last month if he accepted that he lost the 2016 election fair and square, McCrory replied, “Yes. I still have questions about ballot harvesting, but I conceded the election.” While it’s been nearly five years since McCrory’s gubernatorial loss, Riggs said the lawsuit carries extra importance because of former President Donald Trump’s repeated lies that he won the last presidential election. “What we saw happen in the 2016 election was a precursor to the big lie that we saw in the 2020 election where losing candidates, rather than accept loss, lie and malign voters, defame voters and sow distrust in the electoral processes and systems,” Riggs said.

Cooper vetoes GOP bill that sought to weaken AG’s powers RALEIGH (AP) —Gov. Roy Cooper has vetoed a measure that would have limited the powers of the state’s attorney general to enter into future legal settlements. The legislation was passed by Republicans furious with Attorney General Josh Stein over his handling of a 2020 elections lawsuit. The measure, approved on party lines, would have required formal approval of settlements challenging state law or the constitution by the Senate leader and House speaker when they are named parties. GOP legislators complained that Stein crossed the line when his office and the State Board of Elections reached a September 2020 agreement with a labor-affiliated group that sued over absentee ballot rules for the fall election without involving them. Legislative Democrats have said the proposed restrictions would interfere with the legal actions of the attorney general, a named officer in the state constitution. “This bill is unconstitutional and unwise, and would prevent the attorney general from doing his job to protect the people of North Carolina,” Cooper said in his veto message. The GOP is unlikely to have the votes to override Cooper’s veto, since they lack enough seats in either chamber for veto-proof majorities. The 2020 legal settlement was signed off on by a judge and increased, from three to nine, the number of days mailed absentee ballots could be received after Election Day and still count. It also told absentee voters they could correct problems with witness information without filling out a new ballot. The nine-day window remained in place after the settlement was appealed by Senate leader Phil Berger, House Speaker Tim Moore and President Donald Trump’s campaign all the way to the U.S. Supreme Court. Absentee ballot rules were a key flashpoint in closely divided North Carolina as the voting format became widely popular during the COVID-19 pandemic. Stein, who also previously criticized the measure, was first elected attorney general in 2016, succeeding Cooper, who had served on the job for 16 years before running successfully for governor. Republican legislators have said the measure was designed to prevent future “collusive settlements” in which the attorney general agrees to concessions with a litigant that is actually

not a legal adversary. “This bill is necessary to keep corrosive, secretly negotiated rule changes out of future elections,” Sen. Paul Newton, a Cabarrus County Republican and bill sponsor, said in a news release after the veto. “Gov. Cooper just deepened distrust in the electoral process at a time when we should focus on improving it.” Stein and the state board strongly disagree with GOP arguments that the settlement was contrived to help Democrats in the election. Board Executive Director Karen Brinson Bell told senators months ago that the board has the power to settle lawsuits, and that doing so in 2020 prevented more expansive voting changes from occurring. Democrats currently hold a board majority. Cooper has now vetoed 11 bills this year. None of those previous vetoes have been overridden. Cooper is by far the most prolific user of the veto stamp since that gubernatorial power began in 1997. He has issued 64 vetoes since early 2017, according to General Assembly records.

Health care obligations for N.C. retirees before Supreme Court RALEIGH (AP) — North Carolina’s highest court is preparing to decide whether the legislature’s decision 10 years ago to begin charging some retired state government workers and teachers a premium for health insurance violated an agreement the state made with these workers. Retired employees sued the State Health Plan in 2012, saying the state was contractually obligated to offer them premium-free benefits through a plan in which they paid 20 percent of their co-insurance. The case could affect hundreds of thousands of retirees and cost the state over $100 million in premium refunds, as well as expenses to cover additional retiree benefits. The legislature, and ultimately the State Health, Plan initiated the premium requirement in 2011 for workers and retirees with the most generous plans to close spending shortfalls. A trial court judge in 2017 sided with the retirees who sued, saying the plan and the state “substantially impaired” contracts with more than 220,000 retirees or their estates within the class that could benefit financially. But the state Court of Appeals overturned the trial court decision in March 2019, saying no such obligation exists. Attorneys for the retirees said in a Supreme Court brief that several legal rulings involving other public employee or retiree benefits in North Carolina have found them to be contractual in nature. The retirees were promised a level of premium-free core health benefits for working, lawyer Sam McGee told the court during oral arguments on Oct. 4, and those benefits already have been earned. “Everybody knows that what these people were told was that if you meet these vesting requirements, you will get the regular state health (insurance) plan premium-free throughout your retirement,” McGee told the court. “This is what was actually sold to the (retiree) class.” But lawyers for the state wrote it was clear that the health benefits differ from pension benefits. While See Page 20 ►

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Broadside collision leads to $4.5M settlement ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A woman who was injured by an allegedly distracted driver has agreed to a mediated settlement of $4.5 million, her attorney reports. William Goldfarb of Monroe reports that his client was turning left when the defendant, who was traveling approximately 55 mph in a commercial van, ran a red light and broadsided his client’s vehicle. Goldfarb said that phone records show that the defendant was using his cell phone at the time of the crash. William Many of the case’s details, inGoldfarb cluding the names of the parties and venue, have been withheld pursuant to a confidentiality agreement. The 51-year-old plaintiff is self-employed, Goldfarb said, but a vocational assessment shows that any future job searches will be “fruitless.” Several witnesses, family members, and experts were critical in painting a vivid picture of how the

crash happened and how it has affected the woman, Goldfarb said. Goldfarb said that his client suffered numerous injuries, including a head injury, broken ribs, fractured vertebrae, a ruptured diaphragm, lacerations, respiratory failure, and probable neurocognitive disorder. But despite her lasting injuries, Goldfarb said that she has recovered remarkably well. “Prior to the collision, the plaintiff was very healthy and active,” Goldfarb said. “This more than likely saved her life.” Goldfarb brought on an orthopedic physician to opine about permanent issues and future medical treatment, and a certified life care planner. The client presented evidence of $203,000 in medical expenses under Rule 414 of the rules of evidence. “The client wanted this chapter of her life to be over as soon as practical, but with proper value assigned to her injuries and pain and suffering,” Goldfarb said. The case, mediated by Bill Brazil of Brazil & Burke in Asheville, was settled before any lawsuit was filed. Follow Heath Hamacher on Twitter @NCLWHamacher

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $4.5 million Injuries alleged: Head injuries, probable neurocognitive disorder, broken ribs, fractured vertebrae, ruptured diaphragm, lacerations, respiratory failure, anxiety, sleep disorder, and chronic pain, among others Case name: Case settled before any lawsuit was filed Venue: Withheld Mediator: Bill Brazil of Brazil & Burke in Asheville Date of settlement: Aug. 3 Most helpful experts: Dr. Jason O’Dell of Florence, South Carolina (orthopedist), Anthony Enoch of Wilmington (rehabilitation consultant), Steve Farlow of Raleigh (accident reconstruction), Cynthia Wilhelm of Chapel Hill (life planner), and Jeffrey Ewert of Charlotte (neuropsychologist) Attorney for plaintiff: William Goldfarb of Monroe Attorneys for defendant: Withheld

Wrongful death suit against distracted driver settles for $4M ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com The estate of a 47-year-old North Carolina woman who was killed by a distracted driver has settled its case for $4 million, its attorneys report. The plaintiff was represented by Brian Mickelsen and Danny Dalton of Mickelsen Dalton in Mount Pleasant, South Carolina, and Walter Wood of the Law Offices of James Scott Farrin in Greenville, South Carolina. At the time of the litigation, Wood worked from his firm’s Durham office. Mickelsen and Dalton were admitted pro hac vice. The attorneys report that their client died when her minivan was broadsided by a defendant who blew through a stop sign and into the intersection. Many of the case’s details, including the names of the parties and defense counsel, were withheld pursuant to a confidentiality agreement, although the attorneys said that the case was litigated in North Carolina and settled in April. Michael McDaniel mediated the settlement. The victim was on her way to the store and preparing to host her young grandchildren for the weekend when the defendant crashed into the driver’s side of her vehicle, Dalton said. Her seatbelt failed and she was ejected, landing on a nearby utility pole. She died soon after arriving at the hospital. “Her injuries were gruesome, and the loss to the family catastrophic,” Dalton said. Dalton said that the insurance company argued that the victim should have seen the defendant coming and anticipated the impact, a claim that was

SETTLEMENT REPORT — WRONGFUL DEATH

Brian Mickelsen

Danny Dalton

Walter Wood

“The insurance company insisted that this beloved grandmother who worked fulltime as a daycare worker and substitute elementary school teacher was a drug addict that contributed to her own death.” Danny Dalton of Mickelsen Dalton in Mount Pleasant, South Carolina

controverted by responding officers, photographs, and an inspection of the crash site. The company also argued that the driver, who was on the job when the crash happened, wasn’t distracted, although Dalton said that numerous social media posts suggest otherwise.The estate’s attorneys likewise dismissed the defendant’s contentions

Amount: $4 million Injuries alleged: Death Case name: Confidential Court: Confidential Mediator: Michael McDaniel Date of settlement: April 2021 Most helpful experts: Mark Valentine (jury consultant) Attorneys for plaintiff: Brian Mickelsen and Danny Dalton of Mickelsen Dalton in Mount Pleasant, South Carolina, and Walter Wood of the Law Offices of James Scott Farrin in Greenville, South Carolina (previously of Durham) Attorneys for defendant: Withheld that the low traces of prescribed painkillers found in the victim’s system caused the collision. “The insurance company insisted that this beloved grandmother who worked full-time as a daycare worker and substitute elementary school teacher was a drug addict that contributed to her own death,” Dalton said. “The most frustrating part of this case was watching the pain this family went through repeat each time the insurance company came with a new offensive argument.” Follow Heath Hamacher on Twitter @NCLWHamacher

SLEEPING DRIVER / Company’s policies were a key issue C o nt inu e d f r o m 1 ►

have dozed off at the wheel. Internal video from the cab of the vehicle confirmed that fact. “We got deeper into discovery and obtained logbooks and focused on the ongoing problems in the company that we saw, which was overworking these guys,” Albritton said. The family alleged that the company had created an environment where its drivers were more susceptible to driving fatigued by requiring excessive hours of service and not mandating rest or meal breaks. Albritton said that the driver’s logbook showed that the company had worked him for the previous nine days and he had requested a day off but was denied. No drugs or alcohol were involved in the crash, which took place on a clear day with no roadway obstructions, the attorneys said. Ray Owens of Higgins & Owens in Charlotte mediated the settlement, which was agreed to on Aug. 13. The identities of the defense counsel were also

withheld, but the family’s attorneys said that the defense contended that the business didn’t fall under relevant state or federal regulations regarding hours of service or mandatory breaks. “We took lots of depositions of executives in the business and felt pretty strongly about our case and were able to resolve it at mediation,” Albritton said. Albritton said the complicating factor in the matter was the potential settlement amount, and the attorneys used focus groups to test on the issue. He said the results were “all over the place,” with a wide range of numbers among group participants. “We presented the case from a defense-heavy perspective,” Albritton said. “They were varied in their responses. We don’t normally do a damages focus group, but we were curious as to where they would come when it came down to a 21-year-old without any real economic damages.” Mauriello was optimistic about the results from the group. “There was a disparity in terms of the amount, but they all did believe that there were punitive

SETTLEMENT REPORT – WRONGFUL DEATH

Amount: $5 million Injuries alleged: Death Case name: Withheld Court: Withheld Mediator: Ray Owens of Higgins & Owens in Charlotte Date of settlement: Aug. 13 Attorneys for plaintiffs: Harry Albritton Jr. of Irons & Irons in Greenville and Chris Mauriello of Mauriello Law in Cornelius Attorneys for defendants: Withheld damages in the case,” he said. Albritton said that it would have all hinged on proving wanton and willful misconduct. “We valued the case very early at $5 million and we did not move,” he said. “I think if we had gone to a jury, we would have been in that range.”

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 11, 2021

Tips for preparing a strong in-house counsel resume ■ BY RANDI LEWIS AND SIMON DE MEO BridgeTower Media Newswires Resumes matter, particularly for lawyers who are seeking highly sought-after in-house positions. A recruitment professional takes about five seconds to decide how to act upon your candidacy. Your resume should look clean and organized and provide easy-to-digest, compelling information to land you an interview. Each in-house counsel role requires considered thought for the content, highlights and formatting of your resume. For example, if you are handling corporate, M&A, securities, employment and governance work in your current role, and the role for which you are applying is more focused on general corporate and M&A work, then your resume should be tailored to emphasize that work and results achieved. The five tips below are general rules to consider when writing your resume for an in-house counsel position. Align your resume with each position’s requirements. Use each job posting as a checklist for your own resume. If you are a law firm lawyer looking to move in-house, align your substantive expertise and experience. If you are a deputy general counsel seeking a general counsel position, your resume should show you have succeeded in handling the business aspects of your position. If you are a general counsel, include all subject matter oversight of your direct reports. Use highlights or headings to guide the reader and organize experience.

The most impactful and easy-to-read resumes are ones that list experience and achievements in bulleted format. Adding bolded or underlined text or headings to highlight different practice areas, skills, and achievements will help your resume pop. This emphasis enables the reader to process quickly how you might fit into the company. Use the job requirements as a guide for the highlights and headings. As an example, if you are applying for a general counsel position of a public company, your headings could include: Executive Leadership; Shareholder Engagement & ESG; M&A Achievements; Employment Counseling; and Securities Compliance. Show achievements, results and impact of your work. Business leaders want to know how you will add value. Show the reader how you could help a company achieve its goals by describing not only your skills but also your successes. If your resume contains language such as “with responsibility for,” consider removing those words and replacing them with action verbs such as leading, motivating, or analyzing. Add white space and remove clutter. Resumes that have spaces between jobs, company names, titles, bullet points, and section headings are much easier to read and comprehend than resumes without enough white space. If your resume is cluttered, the chances are greater that it will be relegated to the bottom of the pile. We recommend adding spaces and removing or condensing older information that is no longer relevant. If your work

experience is more than 10 years ago the space given to it on your resume should be considerably smaller. Include a summary and core competencies at the top. If you have worked in-house for many years, it may help to add a title to the top of your resume (e.g., Corporate Counsel, Compliance & Privacy Counsel or Employment Counsel), a two- or three-sentence paragraph below the title that summarizes your experience achievement, and sometimes a bullet list of core competencies. You should style your summary and core competencies using language consistent with the job requirements, and in a way that non-lawyers who may be screening your resume will understand quickly to compare you with other applicants. If you have worked only in a law firm, and your resume contains prominent subheadings, it’s unnecessary to add a summary. Only add a top section if it will add value. A top-notch in-house counsel resume also needs to be error-free. Proofread your resume from top to bottom and then from bottom to top for both content and typographical errors. Then ask a friend to read it over for content and form. When you get the call for an interview, you will know your resume made a positive first impression. And you will be on your way to landing that coveted in-house counsel position. Randi Lewis and Simon de Meo are experienced attorney search consultants with Major, Lindsey & Africa, the world’s largest attorney search firm.

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The ethics of Facebook evidence gathering

recorded, or used in any manner, in whole

■ BY NICOLE BLACK BridgeTower Media Newswires

legal redress.

These days, most lawyers are familiar with social media, both its benefits and pitfalls. After all, social media has been around for significantly more than a decade now. As a result many lawyers are comfortable interacting online and using social media platforms to help them in their practices for both business development purposes and evidence gathering. But that wasn’t always the case. For many years lawyers were reluctant to use social media for any reason, and once they did, they sometimes encountered ethics hurdles that prevented them from using it in the ways they’d intended. One area where this often occurred was in the area of evidence gathering. When litigation attorneys first started mining social media for evidence, many inadvertently crossed an ethical line, which was often easy to do since the lines weren’t always clear-cut. However, over time ethics committees weighed in and clarified the ways that lawyers could ethically use social media platforms to mine for evidence. Even so, ethics issues still arise that need to be addressed. Case in point: In the Matter of John J. Robertelli (D-126-19) (084373). The New Jersey Supreme Court handed down this opinion on September 21. At issue in this attorney disciplinary case was

“whether Respondent John Robertelli violated Rule of Professional Conduct (RPC) 4.2, which prohibits a lawyer from communicating with another lawyer’s client about the subject of the representation without the other lawyer’s consent.” The court considered the actions of Robertelli’s paralegal, who sought to become Facebook “friends” with Dennis Hernandez, a man who had filed a civil action against Robertelli’s client. When the friend request was granted, Hernandez did not know that the paralegal he had just become “friends” with was employed by the firm that represented the individual he’d sued. After the Facebook connection was made, the paralegal obtained evidence from Hernandez’s Facebook page, including a video that showed him wrestling on a date that was believed to have been captured subsequent to the accident at issue in the lawsuit. Notably, the actions at issue occurred in 2008, at a time when there were very few, if any, ethics opinions addressing the permissibility of using social media platforms for evidence gathering purposes. This fact was not lost on the court in reaching its determination. The court concluded that if the actions taken by the paralegal had occurred today, it would have violated ethics rules since lawyers have an obligation to take reasonable efforts to ensure that the conduct of an employee whom they supervise comports with their own ethical obligations. How-

ever, the court acknowledged that the timing of the actions was significant: “What attorneys know or reasonably should know about Facebook and other social media today is not a standard that we can impute to Robertelli in 2008 when Facebook was in its infancy … we find that Robertelli did not violate RPC 4.2 or the other RPCs cited in the complaint.” According to the court, lawyers today will be held to a different standard and there is an ethical obligation to have technology competence when mining social media for evidence: “Robertelli may have had a good faith misunderstanding about the nature of Facebook in 2008, but there should be no lack of clarity today about the professional strictures guiding attorneys in the use of Facebook and other similar social media platforms … Lawyers should now know where the ethical lines are drawn. Lawyers must educate themselves about commonly used forms of social media to avoid the scenario that arose in this case. The defense of ignorance will not be a safe haven.” In other words, ignorance regarding your ethical obligations or technology competence is no excuse in 2021. Mine social media knowledgeably, or don’t mine it at all. Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase legal practice management software.

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 11, 2021

City to pay $2M for police officer’s faked drug charges ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com

SETTLEMENT REPORT — CIVIL RIGHTS (1983 CLAIM)

The city of Raleigh will pay $2 million to 15 plaintiffs who claim that officers with the Raleigh Police Department used brown sugar and an unreliable confidential informant to frame them for drug trafficking. Abraham Rubert-Schewel and Emily Gladden of Tin Fulton Walker & Owen in Durham and Raleigh, and Michael Littlejohn of Littlejohn Law in Charlotte, represented the plaintiffs in the federal civil rights lawsuit. The attorneys said that their clients were falsely arrested and jailed when Officer Omar Abdullah arranged phony drug transactions and other named defendants—including a sergeant and a lieutenant—failed to intervene in the ploy. The confidential informant is identified in court documents only as “Aspirin,” a nickname police gave him after he sold them crushed aspirin passed off as cocaine. After arresting him, police recruited Aspirin to work for them as an informant. According to the complaint, Aspirin, who was homeless, made a few low-level crack buys for the department but wanted to earn more money. Abdullah promised him bigger paydays for bigger cases, plaintiffs said, so the pair conspired to fabricate several heroin charges. After he met with each dealer, Aspirin claimed that they sold him a heroin-like substance, which he handed over to police. But the plaintiffs say that

Abraham Rubert-Schewel

Emily Gladden

Michael Littlejohn

whatever Aspirin turned in as evidence, he carried into those meetings. “We are not sure if the CI planted the fake drugs or if Abdullah did, but our clients did not have them,” Rubert-Schewel wrote in an email to Lawyers Weekly. The complaint states that, against department policy, Aspirin shielded his undercover camera to prevent the alleged transactions from being recorded, and that after the alleged buys, Abdullah met alone with Aspirin and paid him for his participation. In every case in which the alleged drugs were tested, according to the suit, they tested negative for a controlled substance. In some cases, officers either failed to tell prosecutors about the test results or “slow-walked” the testing process. Abdullah was aware that the substances were not drugs, but made the arrests anyway. When officers did report the fake heroin to su-

Amount: $2 million Injuries alleged: False arrest and incarceration, loss of employment, pain and suffering, others Case name: Washington, et al. v. The City of Raleigh, et al. Court: U.S. District Court for the Eastern District of North Carolina Case No.: 21-cv-00194 Judge: Richard Myers Date of settlement: Sept. 28 Attorneys for plaintiffs: Abraham RubertSchewel and Emily Gladden of Tin Fulton Walker & Owen in Durham and Raleigh, respectively, and Michael Littlejohn of Littlejohn Law in Charlotte Attorneys for defendants: Dorothy Kibler of the City of Raleigh Attorney’s Office for the city of Raleigh, and Jason Benton of Parker Poe Adams & Bernstein in Charlotte for Omar Abdullah pervisors, the supervisors not only failed to prevent the false arrests and wrongful incarcerations, but continued to use Aspirin as an informant, “resulting S e e Fa k e d c h a r g e s P a g e 7 ►

REFORM / Law should cut down on “department hopping” C o nt inu e d f r o m 1 ►

conduct to their superiors, and to notify the Criminal Justice Standards Division if they are informed by court officials or their agency that they may not testify in a case based on “bias, interest, or lack of credibility.” Many involved in the legislation, such as Charles Spahos of the North Carolina Conference of District Attorneys, believe that the statutory changes will work practically in the state’s courts. “SB 300 contains significant improvements, including background checks and screening of applicants to become law enforcement officers, improvements in law enforcement training standards and provides for several methods of tracking the few bad apples that don’t belong in law enforcement,” Spahos said. To help detect and track those bad apples, the North Carolina State Bureau of Investigation and the FBI will conduct more thorough, nationwide background investigations by collecting and storing fingerprints of every law enforcement candidate and officer. The SBI will also notify the appropriate commission should an officer subsequently be arrested. Officers who have been suspended or decertified will appear in a statewide, publicly accessible database. Separately, individual agencies must maintain a confidential, internal database that logs incidents such as use of force resulting in death or serious injury, the discharge of firearms, and citizen complaints. These measures can increase communication between agencies and reduce what is often referred to as “department hopping,” or the practice of officers with less-than-perfect personnel files leaving one agency (voluntarily or otherwise) and being hired by another. Durham defense attorney Greg Doucette said that he believes proper implementation of these databases can help create an enduring difference, but expects opposition from those who fear accountability. “Politicians … have for years intentionally avoided trying to measure dirty

cops,” Doucette said. “They didn’t want to know about the pervasiveness of police brutality. So, this will hopefully produce the same data-driven insights that we got with the traffic stop data North Carolina started collecting more than a decade ago.” Some law enforcement officials say that they welcome the oversight. Eddie Caldwell, executive vice president and general counsel for the North Carolina Sheriffs’ Association, said that law enforcement leadership is “totally committed” to improving the profession by any means, including weeding out unfit officers. “Every now and then, the devil gets one,” Caldwell said. “But when it happens we own up to it, address it, and deal with it. Every profession has a few bad apples.”

extreme groups and negative media coverage. “I don’t know what the term ‘systemic problem’ means,” Caldwell said. “A lot of people are using it to incite division where it’s not appropriate. The bulk of the citizenry recognize the importance of law enforcement and the great job that law enforcement is doing.” Spahos said that it is unfortunate that the ACLU misrepresents their position. “District Attorneys across our state may not always agree with every suggestion by various groups cloaked under the title of criminal justice reform, but we work hard to support proposals that improve the criminal justice system and ensure public safety,” Charles Spahos said.

Fruit of a poisoned tree

One notable point of contention between law enforcement and advocacy groups is the provision regulating the disclosure of body-worn camera recordings. Upon formal request by a personal representative of an individual killed or seriously injured, police have 72 hours to disclose to that representative any footage depicting the death or injury. Law enforcement may, however, petition the courts to block the disclosure of the recording or to order disclosure only after the agency edits or redacts portions of the recording. Bowes said that this is a clear indication of the power and legislative influence held by district attorneys and law enforcement agencies. Caldwell denies that law enforcement is afraid of being transparent, arguing that some footage may unduly prejudice defendants and jurors if it were to be released before trial. “There were a lot of proposals that improve the criminal justice system and do not jeopardize public safety, and the Sheriffs’ Association supported those,” Caldwell said. “There are good improvements—very fair and very balanced.” The impact of this landmark legislation is yet to be seen, but it has provided at least some degree of optimism about the future of policing in North Carolina.

Interestingly, the now-cliché proverb about bad apples originally came about because it mirrors real agricultural science. Apples, like some other fruits, emit a ripening agent, and when placed together, bad ones do indeed spoil the rest—so a bad apple in a bunch needs to be removed quickly, or else it can cause others to rot as well. Some argue that the bad apple analogy, as applied to police reform, is thus more apt than some may realize, and the current reforms don’t go far enough. In a press release, Daniel Bowes, director of policy and advocacy for the ACLU of North Carolina, wrote that while the new legislation makes meaningful changes to law enforcement oversight and criminal procedures, it fails to address the root problem—systemic racism—and that true reform is being blocked by law enforcement special interest groups wielding their influence. “The law enforcement training and oversight provisions in SB 300 rely on and perpetuate the falsehoods that the failings of the criminal legal system are the result of ‘a few bad apples’ and that the police can police themselves,” Bowes wrote. Caldwell disagrees, saying that the idea that policing needs a complete overhaul is conjured by “small but loud”

Why can’t I see?

“S300 is a good first step,” Doucette said. “It doesn’t go far enough, but it does address a handful of problems that have been ongoing for years.” Follow Heath Hamacher on Twitter @NCLWHamacher STATEMENT OF OWNERSHIP, MANAGEMENT AND CIRCULATION North Carolina Lawyers Weekly; Publication number 002-904; Complete Mailing Address of Known Office of Publication: 130 N. McDowell St., Unit B, Charlotte, NC 28204; the mailing address of Headquarters or General Business Offices of the Publisher (Not printer), North Carolina Lawyers Weekly, 130 N. McDowell St., Unit B, Charlotte, NC 28204; Full Names and Complete Mailing Addresses of Publisher, Editor, and Managing Editor: Publisher – Liz Irwin, 130 N. McDowell St., Unit B, Charlotte, NC 28204; Editor – David Donovan, 130 N. McDowell St., Unit B, Charlotte, NC 28204; Managing Editor – None. North Carolina Lawyers Weekly is owned by BridgeTower OPCo, LLC (OpCo), 100 N Pacific Coast Hwy., Ste 1725, El Segundo, CA 90245. Known Bondholders, Mortgagees, and Other Security Holders Owning or Holding 1 Percent or More of Total Amount of Bonds, Mortgages, or Other Securities, Cerberus Business Finance Agency, 11812 San Vicente Blvd, Suite 300, Los Angeles, CA 90049. Issue Date for Circulation Data Below, August 30, 2021; the average number of copies of each issue during the preceding 12 months Box 15 is: (A) total copies printed 1,851; (B1) Paid Outside-County Mail Subscriptions 1,309; (B2) Paid In-County Subscriptions: 228; (B3) Sales through dealers and carriers, street vendors, counter sales: 0 (B4) Other classes mailed USPS: 4; (C) Total Paid Circulation: 1,541; (D1) Free Distribution by mail, samples complimentary and other free copies: 30; (D2) In-county free distribution: 3; (D3) Other classes mailed Free Distribution: 0; (D4) Free distribution outside the mail: 0; (E) Total Free distribution: 33; (F) Total Distribution: 1,574; (G) Copies not Distributed: 277; (H) Total: 1,851; (I) Percent of Paid: 97.90%. The actual number of copies of a single issue published nearest to the filing date is: (A) Total number of copies printed 1,830; (B1) Paid Outside-County Mail Subscriptions: 1,301; (B2) Paid InCounty Subscriptions: 217; (B3) Sales through dealers and carriers, street vendors, counter sales: 0; (B4) Other classes mailed USPS: 4; (C) Total Paid Circulation: 1,522; (D1) Free Distribution by mail, samples complimentary and other free copies: 29; (D2) In county free distribution: 3; (D3) Other classes mailed Free Distribution: 0; (D4) Free distribution outside the mail: 0; (E) Total Free distribution: 32; (F) Total Distribution: 1,554; (G) Copies not Distributed: 276; (H) Total: 1,830; (I) Percent of Paid: 97.94% Electronic Copy Circulation; The Average number of copies in the last 12 months was: (16A) Paid Electronic Copies, 126; (16B) The Average Paid Print and Paid Digital Copies were 1,667; (16C) The Average Total Print and Paid Digital Distribution was 1,700; (16D) Percent Paid of Both Print & Paid Digital was 98.05%. Electronic Copy Circulation; The Actual Number of Copies of a Single Issue (16A) Paid Electronic Copies, 127; (16B) The Average Paid Print and Paid Digital Copies were 1,649; (16C) The Average Total Print and Paid Digital Distribution was 1,681; (16D) Percent Paid of Both Print & Paid Digital was 98.10%. I certify that all information furnished on this form is true and complete: (Signed) Liz Irwin, Publisher REQUIRED BY TITLE 39 U.S.C. 3685 STATEMENT SHOWING OWNERSHIP, MANAGEMENT AND CIRCULATION OF North Carolina Lawyers Weekly, publication number 002904, filed October 1, 2021, Published Weekly, 52 issues per year, $389.00 annually at 130 N. McDowell St., Unit B, Charlotte, NC 28204. The General Business offices of the Publishers are at 130 N. McDowell St., Unit B, Charlotte, NC 28204.

6 / NEWS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 11, 2021

Introducing North Carolina’s newest lawyers – Fall 2021 North Carolina Lawyers Weekly would like to congratulate each of the bar applicants who passed the July 2021 North Carolina bar exam. The following names were provided by the North Carolina Board of Law Examiners to recognize those who passed this year’s exam. Applicants who were successful on the July 2021 exam but have not yet taken or passed the MPRE or have not yet successfully completed the North Carolina State-Specific Component are not yet included on the BLE’s list. Laida Mariana Alarcon Thomas Edgar Alexander Christopher Lee Allen Madison Alligood Ava Rose Almaraz Mousa Abdullah Alshanteer Sarah T. Ammons Jada Bianca Anderson Andrea Ann Anderson Chandler Arrowood Jordan Ariana Arroyo Erica Nicole Atkin Caitlin Tellechea Augerson James Patrick Bailey Erich James Baker R. Maxwell Baker Gina Lynn Balamucki Dynasia Zhane Ballon Olivia Grace Bane Mary Boyd Barefoot Dominique Valentina Barile Erin Marie Barker Daisha M. Barnes Samantha Veronica Barros Jason Parker Baskett Jonathan Baker Bass Thomas Hayden Baugh William Kenneth Baxley Nicholas P. Bell Daniel Bello Castro Jay Robert Bender Granger Kimmel Benson Avery Michael Birch Holly Paige Black Robert Wyatt Bland Isabella K. Blanes Parker Blazevich David Loy Blue Erica Roschelle Bluford Meredith Elizabeth Bock Elliot James Boerman Alexander Stephen Boros Andrew James Bosserman William Thomas Bowers Michael Jeffrey Boyd Tanner Brantley Jessica Brashear Lee Samuel Brett Warren Buff Seth Brainerd Bullock Gary Bernard Bush Jaime Campbell Nicholas Michael Canovai Miller Freeman Capps Basil Camden Caprara Maria Carisetti Kelsi Williams Carnes De’Von Carter Katherine Elizabeth Carter Marissa Cascio Caroline Garrett Casey Clarissa McLaren Cashmore Andre Bicalho Ceccotti Michael Carlton Chapel Iona Louise Chapman Tyler John Charlton Jane Wells Chiffriller Jonathan Juno Choi Courtney Williams Clark Peter Clements Kevin Cline Carter Benjamin Cole Shatoria Denise Coleman

Peyton Michelle Coleman Ryan Michael Collins Summer Loren Combs Alton Eugene Combs Alyson Crosbie Jacqueline Childers Crutcher Kelsey Cullinan Reed Katheryn Marie Currie Tahlia Cypress Suzannah Kay Davidson Lauren Elizabeth Davis Nathaniel Davis Stewart Addison Day Jordan Timms DeJaco Christopher Jason deLambert Gabrielle Marie DeLeon Emily Nicole Deliz Laura Ashleigh Della Badia Peyton Linley Derrow Jonathan Teal Dickerson Robert Charles DiDomenico Taylor Lynn Distefano Amanda Gray Dixon Vincent Anthony Doa Jenna Christine Donald Ryan Thomas Dovel Ethan Wesley Draper Clark R. Drummond Morgan Rae Dunn Craig Lawrence Dye Davis Alexander Eblen David Holding Eil Hannah R Eller Alayna Marie-Poole Elmore Gerald Ryan Elmore Kaity Y. Emerson Brian Peter Ettari John Robert Evans James Oliver Fankhauser Lilian Lee Faulconer Megan Feltham Antigone Evangelos Feredinos James Harold Ferguson Michael John Fiori Sara Flessner Christopher Edmond Flurry Dakota Anne Foard Sarah Jean Foster Joshua C. Fowler Ashley Nicole Fox Danielle Marion French Danielle Marie Fuhrman Aaliyah Gadsden Sabrina Andrea Gamero Mallory Hart Gantt Julissa F. Garcia Henry Justin Gargan William Crowder Gaskins Jack Gavigan Katherine Leah Georger Elizabeth Anne Glass Kenya Glover Grace Leighanna Glover Yeekoyah Khursie Gorgor Lindsay Paige Gorman Lawrence Dale Graham Benjamin Martin Gregory April Michelle Gregory Matthew Bryan Grice Laurena Carolyn Julie Grissett Evan Alexander Grosskurth Mia Salerno Guglielmi Trevor Schaal Guyton Nicholas David Hall Louis John Hallow Victoria Lyons Hanafin Kelly Lynn Hanson Collin Bryce Hardee Eli Nash Hardin Emily Elizabeth Harrison Madeline Elise Harrison Rachel Hart Mary-Kathryn P Hawes Haley Jo Haynes Peyton Hedrick

Heather Merie Helmendach Jason Hessel James Logan Heuser Alexander Riston Hill Athina Athanasia Hinson-Boyte Andrea Hoffer Sarah Katherine Hoffman Abigail Josie Holt Hunter Roberson Holtzclaw Abbie Nicole Hornberger Guadalupe Vianey Howell Rebecca Barraclough Howell Clifford Eliot Howie Abbey Hudson Tristan Hunkin Anna Claire Huntley Zachary Bryce Hutchinson Crystal Shawndavia Ingram Sarah Izzell Samantha Christine Jackson Stephanie Jankie Samantha Leigh Jayne Kimberly Ann Jinorio Swanson Garrett Johnson Michael Ryan Johnston Matthew Jones Micah Lewis Jones Laura Mackay Jordan Matthew John Jordan Jeffrey Ephron Joseph Steffany Kamenga Zachary Ruben Kaplan Alexander Stefan Katz Joseph Martin Kaye Alexander Goto Keith Joeanna-Margaret Kelly Trevor Thomas Kennedy Desiree Lynn Klemm-Kafel Stephanie Marie Kley Rachel Allison Klink Timothy John Kopczynski Jason John Turpin Kornblatt Sarah Elizabeth Koucheki Ryan Christopher Kuchinski Emma Templeman Kutteh Joseph Allan Kyzer Sierra Jade La Gala Madeline Labovitz Leah Lynn Lagoudis Tania Xiomara Laporte-Reveron Maximo Travis Larkin Tianna R. Larson Benjamin Stokes Lassiter Savannah Elaine Lavender Sarah Jacqueline Pui Lai Laws Mary Caitlin Lee Ariana Alexis Lewis Andrea Maria Liberatore Dana Michelle Lingenfelser Micole Lynnelle Little Courtney Nicole Lockamy Andrew Peter Lopiano Olivia Anne Lowery Meghan Lucas Carson Alexandra Ludwig Caleb Tyler Lueck Caleb Joshua Mabe Patrick Cameron Macher Joshua Michael MacNamara Michael Magaha Michael George Majewski Stefan Maletic Adele Rebecca Marchant Gray Buchanan Martin Christopher Lambert Martineau McKenzie Grace Massarelli Carli Melissa Massaro Megan Elizabeth Mathews Emily Danielle Mattern Jennifer Lynn Maynard Catherine Elizabeth McCabe Katelynn McCoy Mason David McCullough Kayla Nicole McDaniel Cierra Danai McEachern

Sean McKenna Sydney Elizabeth McKinney Vincent McKinney Harold Brent McKnight Jeffrey Ross McLaughlin Laurie Ann McNaught Briggs Morgan Lea McNeil Julia Simpson Meister Rachel Ward Melton Christian Luis Mendez Alyson Renee Merlin Ryan Michael Michalko Cole Alexander Middleton Kathleen Leah Miller Adam Michael Miller Brittani Montez Miller Sonia Marcela Molina Alexandria Kristina Montgomery McNair Ballou Moore Quinton C. Morgan Ronald Eric Morin Samuel Tatum Morris Marissa Fiona Mugan Amanda Claire Murphy Alyssa Michelle Mursch William Emmad Nazal Reatter Estella Neal Henry David Niblock Roslyn Yvette Nixon Simone Anderson Noonan Brian P. North Jane Francis Nowell William Parks Noyes Meaghan O’Connor Chelsi Celest Odom Katherine Cinny Orndoff Sidney Page Overby Allyson Owens Iva Panayotova Caroline Virginia Parrish Benjamin Sanders Parsons Anna Marie Parsons William James Patterson Jonathan Payne Alyssa C. Pearce Manning Tucker Peeler Kristin Elizabeth Pennock Kayla Delaine Perry Megan S. Pfuntner Sophie R. Plott Sydney Claire Plummer Elisabeth K. Pomeroy Charles Milton Ponder Brittnee Lee Pool Gillett Danielle Melissa Potter India Prather Alexander Ray Pratte John Christopher Price Alec Kristopher Quint Stephanie Elaine Raborn Mary Claire Claire Ragan Cecilia Gitanjali Rambarat Alejandro Ramirez Brian Alexander Ramos Angela F. Ray Mary Elizabeth Dato Reed Christian Reese Samantha Leigh Reeves Gina Greene Regan Caroline Hampton Reinwald Isaac Paul Ridgeway Evan Sparks Ringel Kendra Diane Roberts Rachel Fallon Robertson Kermit W. Robinson Taylor Brooke Rodney Alicen Marie Rodolph Camila Mariel Rohena Maldonado Nicholas Christopher Rohner Kathryn J. Romo Kenneth James Rousselo Matthew J. Ruby James Alfred Rumley See Page 7 ►

NEWS / 7

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 11, 2021

What to ask as you look for that first law firm job ■ BY JESSICA MARKHAM BridgeTower Media Newswires As I have now been practicing law for over 16 years I’ve started to crowdsource what information and advice young lawyers would find useful based on my experience. I was reminded today that when a young lawyer is first looking for a job it’s hard to figure out what to prioritize in order to decide where to go. I recall specifically looking for a job and investigating and asking around about the law firms’ reputations. Beyond that I didn’t do any other research or ask specific questions that I now know would’ve help me decide if the firm was the right fit for me. If you are fortunate enough to have multiple offers to choose from here are a few questions that you can ask in order to figure out if this is actually a place where you want to work: How often will I be going to court? How long until I might be able to go to court in an independent role as opposed to being second chair? How many partners will I be working for? How many people will be delegating to me? What is the billable hour requirement? How many of the hours can be billed to pro bono? This will give you an idea of how many hours you need to work. If you were going to be billing hours you will soon find out that you cannot bill every hour that you are

physically present in the office and working. You need to be sure that you were comfortable with the expectations of the firm. What is your policy on CLE? How many can I take? Will the firm pay for all of them and if not, who decides? Does CLE count toward the billable hour requirement? How many people will be working in the office? I never asked this question but I think it is significant because a four-person office is very different from a 15-person or a 30-person office. If you are very social you may not enjoy working with only three other people. What is the mentorship and what are the performance reviews like? Some firms are better than others at providing constructive feedback. Will you have a weekly or monthly manager meetings? Some firms have daily meetings. Hear what this firm does and WHY they do it that way. Does the firm socialize? Do they do teambuilding events? Do they have a human resources person? These are aspects of your work life that don’t relate directly to practicing law. However they will inform your career development in meaningful ways. Does the firm value diversity, equity and inclusion? How so? How would you see that on a monthly or yearly basis? Examples? Best of luck to all of you who have just passed the bar! It’s an exciting time in your life, when you can actually go forth and be the lawyer you’ve been training to be.

FAKED CHARGES / C o nt inu e d f r o m 5 ►

in additional prosecutions of innocent plaintiffs.” Officers also failed to notify or timely notify the Wake County District Attorney’s Office about the test results, the suit says. Charges against all of the plaintiffs were subsequently dismissed, but their attorneys said that because of the wrongful incarceration, their clients were separated from their loved ones, lost jobs, were forced out of their homes, and missed birthdays and funerals. “All were traumatized because of their wrongful detention or incarceration and the fabricated allegations against them,” the attorneys said in a release. “The RPD VICE unit’s actions also resulted in the unlawful detention of numerous women and children and at least one illegal SWAT raid of a family’s home.” In addition to the monetary award, the plaintiffs have made recommendations and requested that the police department and the Wake County District Attorney’s Office adopt new policies regarding the testing of controlled substances, how drug crimes are charged, and how informants are handled. Rubert-Schewel said that the policy recommendations were not made demands because they were not finalized until shortly before mediation. “We hope the City adopts them,” Rubert-Schewel wrote. “They were drafted by us, with input from our clients, and our expert Howard Jordan, the former Oakland Chief of Police.” Dorothy Kibler of the City of Raleigh Attorney’s Office represented the city of Raleigh. In an email, public information officer Julia Milstead wrote that city leaders “appreciate the efforts of all involved” and that while the settlement ends the lawsuit, the police department is dedicated to making sure that nothing like this happens again. “No one should ever be arrested based on fraudulent evidence,” Milstead wrote. Jason Benton of Parker Poe Adams & Bernstein in Charlotte represented Abdullah. Benton did not immediately return a request for comment. Follow Heath Hamacher on Twitter @NCLWHamacher

BAR EXAM / Return to in-person exams planned for 2022 C o nt inu e d f r o m 1 ►

Central University School of Law at 56.8 percent (46 of 81), Elon University Law School at 56 percent (14 of 25), and the Charlotte School of Law at 21 percent (4 of 19). Overall, the pass rate for first-time test-takers was 84 percent (566 of 674), down from last year’s 89.7 percent 511 of 570). Just 33.6 percent (48 of 143) of repeaters passed. Because Elon offers a two-and-a-half year curriculum, most of its graduates take the bar exam for the first time in February rather than July. Because repeating test-takers are less likely to pass than those sitting for the first time, July’s results are not as accurately depictive of the school’s overall pass rate as they might be for other schools. This year, five of Elon’s eight firsttimers passed (62.5 percent) while nine C o nt inu e d f r o m 6 ►

Alexandra Brianne Russell Christopher Wilson Sanborn Lexus Tiel Sanders Edgar Emilio Santiago Jon Anthony Schlotterback Troy Eugene Schultingkemper Andrea Maria Schwehr Claire Suzanne Sears Monica Layne Sessoms Morgan Lee Sexton Adella Grace Shaffer Deborah H. Shartle Shaefer Allen Shepard Kevin Siebs Robert Gray Simmons Thain Douglas Simon Colin Michael Simon Rishi Singh Savannah Marie Singletary Jasmine M. Singleton Heidi Rose Sinsley Austin Katherine Smith Sistrunk Rebecca Skahen Ross McNeill Slaughter

of its 17 repeaters passed (52.9 percent). NC Central’s overall rate suffered significantly from the 20.8 percent pass rate of its repeat test-takers. Out-ofstate repeaters also struggled as just 22 of 69 (31.88 percent) passed. Although Charlotte shuttered its doors in 2017, dozens of its graduates are still sitting for, and struggling with, the bar exam. In July, two Charlotte graduates took the exam for the first time—neither passed. Seven of Charlotte’s 31 repeat test-takers passed (18.8 percent). Kimberly Herrick, who chairs the North Carolina Board of Law Examiners, said that this exam will likely be the last remotely proctored exam and that she expects an untroubled transition back. “Last July’s in-person exam took a lot of preparation, but the administration itself went very smoothly,” Herrick

said. “It took more time from start to finish than usual to administer, but we were able to address any problems immediately.” If so, it closes the door on an unprecedented experiment for bar exam administration in North Carolina. The NCBLE offered a remotely-administered exam for the first time ever in February. The new format allowed applicants to take the exam with proper social distancing via computers, with cameras and artificial intelligence used to ensure that all codes of conduct were adhered to. Although some of the requirements for the remote exam--like keeping one’s face in full view of the camera for the entirety of the test--created added stressors for test-takers to layer onto the usual crucible of taking the bar exam, the remote exam by and large received high marks from both test-takers and

administrators, who said they were pleased with how the test played out. Herrick also said that switching to the UBE has likewise been a great decision for both the board and for applicants. “The UBE has led to better consistency with scoring essays, and incorporates a practical assignment component into the essay portion,” Herrick said. “We also receive excellent support and grading from the [National Conference of Board Examiners].” The exam is graded on a 400-point scale and passing scores range from 260 in several states to 280 in Alaska. Based on data it received from ExamSoft and the National Conference of Bar Examiners, and considering technical issues many examinees experienced during the remotely administered exam, the NCBLE temporarily lowered its passing score from 270 to 268.

Samantha Nicole Smith Elizabeth Catherine Smith Karyl Smith Elizabeth Marguerite Snow Kimberly Snyder Corinne Nicole Spencer Kevin Patrick Spilman Kelly Joshua Robert Steedly Christopher Stephens Isabelle Rose Holland Stevens Wesley Alan Stewart Robert Jeremy Stewart Garret Benjamin Stone Madalyn M. Strahl Aulie Hawes Strickland Macy Brianne Stutts Katrina Renee Sumner Morgan Swink Andrew Paul Tabeling Rachel Tackman Jonathan Taggart Jordan Elizabeth Terry Callie Shannon Thomas Marissa Lynique Thomas Emily Ann Thompson Christin Q. Thompson

Sara Beth Throckmorton Owen Christohper Tinari Emilia Todd Timothy Nathaniel Tomczak Zachary Richard Tooman Robert Taylor Townes James Anderson Tran Jeffrey Lee Traversino Nicole Susanne Tronolone Anita Catherine Turlington Sarah Elizabeth Tyrey Brittney Nicole Tysinger Anastasia Isabel Urian Brianne Lee Van Apeldoorn Laura Vanevic Sarah Vera del Carpio Victoria Vidi Aaron Walck Savannah Dale Wallace Martha Elizabeth Wallace Timothy Harold Wallace Thomas Edmund Walls Sean Noah Walsh Natalie Marie Walters Alexa Christian Warner Joshua James Warner

Erin Leigh Weatherman Dylan Nathan Wecht Hannah Weiss Kayla Dominique Weldon John-Thomas Wells Ann Elizabeth Wheat Emmett James Whelan Tanis Kathryn Whittington Danielle Brooke Wilburn Allen Pamela L. Williams Chloe Ann Williams Dylan Willis Chelsey Leigh Wilson Nathan Ward Wilson Lauren Ashley Wilson Jessica Lynn Winebrenner Janet Burke Witchger Brock C. Wolf Austin Blake Wood Abigail Louise Wood Jamison Michael Wynn Joseph Yankelowitz Emily McKenna Yates Golzar Yazdanshenas Amber Leigh Younce Nicholas Allen Young

8 / OPINION DIGESTS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 11, 2021

Opinions N.C. SUPREME COURT

8

N.C. COURT OF APPEALS

N.C. SUPREME COURT

Domestic Relations Termination of Parental Rights – Sufficiency of Evidence – Willful Failure to Make Reasonable Progress Sufficient evidence existed to support trial court’s finding that parents demonstrated a willful failure to make reasonable progress, where trial court was limited to considering parents’ progress up to the adjudicatory hearing after parents moved for a bifurcated hearing. We affirm the trial court’s judgment terminating respondents’ parental rights to their minor children. DSS became involved with respondents after receiving a report that they were homeless and struggling to provide for their two minor children. The case was later transferred to petitioner agency after mother and the children began residing with mother’s grandmother. Mother then missed multiple substance abuse counseling sessions and parenting classes. Petitioner had difficulty contacting father, who did not provide any care for the children and only contacted them sporadically. Petitioner then filed a neglect petition after mother admitted to operating a vehicle while under the influence of methamphetamine with one of her children in the vehicle. The trial court established a primary plan of reunification with a secondary plan of guardianship with a relative. However, the trial court later amended the permanent plan after finding that respondents had failed to make adequate progress on their respective parenting plans, which were designed to address the barriers to reunification. Eventually, the trial court established a permanent plan of adoption and ordered petitioner to initiate termination of respondent’s parental rights. Petitioner’s motion asserted grounds for termination that included neglect with substantial likelihood of future neglect, and willful placement of the children outside the home without making

13

N.C. COURT OF APPEALS UNPUBLISHED

reasonable progress to correct the conditions that led to removal. The trial court ultimately found by clear and convincing evidence that both grounds existed to terminate respondents’ parental rights. The trial court subsequently concluded that termination was in the children’s best interests. On appeal, respondents challenged the trial court’s findings of fact and the sufficiency of the evidence supporting the trial court’s decision to terminate their parental rights. We reject respondents’ arguments and affirm the trial court’s judgment. We note that the trial court was required to consider respondents’ progress up to the adjudicatory hearing date, as father successfully moved to bifurcate the adjudicatory and dispositional phases of the hearing. We hold that if mother wished to introduce additional evidence following the adjudicatory hearing, she was required to move to admit new evidence. We also find no error in the trial court’s factual findings. We hold that the trial court had sufficient evidence to support terminating respondents’ parental rights, noting that their children’s removal was motivated by respondents’ lack of stable housing and employment. We find sufficient evidence in the record to support the conclusion that respondents made extremely limited progress in their parenting plans over an extended period, which demonstrated a willful failure to make reasonable progress. Affirmed. In the Matter of: B.J.H. (Lawyers Weekly No. 010-103-21, 48 pp.) (Michael Morgan, J.) Appealed from the District Court in Yadkin County (William F. Brooks, J.) Christopher M. Watford and David A. Perez, for appellants; James N. Freeman, Jr., for appellee. 2021-NCSC-103

Domestic Relations Termination of Parental Rights – Neglect – Willful Failure to Make Reasonable Progress – Failure to Pay Costs Parents’ failure to contribute to-

17

wards the costs of care of their child in foster care, despite parents’ financial means to do so, provided grounds for termination of their parental rights. We affirm the trial court’s judgment ordering the termination of respondents’ parental rights to their son. DSS filed a petition alleging that respondents’ child, David, was neglected and dependent due to respondents’ substance abuse and mental health issues. Respondents were subsequently arrested on criminal charges and probation violations. While being interviewed by DSS in custody, respondents admitted to drug problems. The trial court accordingly granted legal custody of David to DSS and ordered respondents to work on a plan of reunification. The trial court initially set a primary plan of reunification with a secondary plan of guardianship, but eventually directed the filing of a petition to terminate respondents’ parental rights after respondents missed their substance abuse counseling sessions and mother indicated she did not want to work towards reunification. DSS filed a petition alleging neglect, dependency, and willful failure to make reasonable progress. Following a hearing, the trial court found that sufficient evidence existed to support terminating respondents’ parental rights and concluded that termination would be in David’s best interests. On appeal, we affirm the trial court’s judgment. We note that David had been in DSS’s legal custody for 34 months and that neither respondent had paid any child support to David’s foster parents even though both respondents had started a successful lawn care business. We affirm the trial court’s rejection of respondents’ contention that their failure to pay for childcare costs was not willful because they did not know they could pay towards costs or how to pay towards costs, holding that parents had an inherent duty to support their child. We further reject father’s contention that the trial court erroneously focused on David’s best interests during the adjudicatory phase and effectively placed parents and child as adversaries. Instead, the record reflects that the trial court correctly interpreted the law to require a finding of grounds for termi-

nation before the trial court could proceed to consider whether termination would be in David’s best interests. Affirmed. In the Matter of: D.C. (Lawyers Weekly No. 010-104-21, 13 pp.) (Philip Berger Jr., J.) Appealed from the District Court in Martin County (Christopher B. McLendon, J.) Benjamin J. Kull and Garron T. Michael, for appellants; J. Edward Yeager, Jr. and Carrie A. Hanger, for appellees. 2021-NCSC-104

Domestic Relations Termination of Parental Rights – Denial of Continuance Motion – Indian Child Welfare Act The trial court did not err in denying parent’s motion for a continuance to secure the testimony of a counselor she worked with, where parent’s offer of proof failed to describe the significance of the testimony that the counsel would provide. We affirm the trial court’s order terminating respondent’s parental rights to her son. DSS became involved with respondent and her son, Daniel, after receiving a report that respondent appeared to be impaired while visiting a museum with Daniel. A social worker responded and found respondent to be disorganized, agitated, unsteady on her feet, and unable to follow conversation. Respondent then fled with Daniel from the social worker and law enforcement. DSS then filed a petition alleging that Daniel was a neglected and dependent juvenile. The trial court granted DSS custody, and respondent and Daniel were eventually located. DSS later amended the petition to allege respondent’s history of substance abuse and mental health issues. The trial court also noted that respondent had Native American heritage and that her identified tribes had been contacted. DSS ultimately moved to terminate respondent’s parental rights on grounds of neglect and willful failure to make reasonable progress. Prior to the termination hearing, respondent’s counsel moved for a continuance to secure respondent’s counselor as a

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OPINION DIGESTS / 9

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 11, 2021

witness for testimony. The trial court denied the motion but permitted the witness to testify by phone or videoconference if they could be located during the recess. Counsel was unable to reach the witness by phone and the termination hearing proceeded, resulting in the trial court finding both grounds for termination and concluding that it would be in Daniel’s best interests. On appeal, respondent did not challenge the trial court’s findings but instead contended that it erred in denying her counsel’s motion for a continuance to secure a witness. Respondent further argued that the trial court failed to comply with the Indian Child Welfare Act. We reject respondent’s argument and affirm the trial court’s judgment. We note that counsel’s offer of proof regarding the witness’s testimony was vague at best, such that on appeal respondent could not prove that the testimony would be so significant to the outcome as to render the denial of a continuance prejudicial to respondent. We also find that the proceedings sufficiently complied with the Indian Child Welfare Act. We note that contact was made with all the tribes that respondent identifies with. All but one responded to confirm that Daniel was ineligible for membership in the tribe. Thus, we affirm the trial court’s conclusion that Daniel was not subject to the ICWA. Affirmed. In the Matter of: D.J. (Lawyers Weekly No. 010-105-21, 15 pp.) (Tamara Barringer, J.) Appealed from the District Court in Orange County (Beverly Scarlett, J.) Wendy C. Sotolongo, for appellant; Deana K. Fleming and Michelle FormyDuval Lynch, for appel-

lees. 2021-NCSC-105

Domestic Relations Termination of Parental Rights – Neglect – Abandonment – Sufficiency of Evidence The trial court erred in terminating parental rights on grounds of neglect and delinquency where it failed to resolve factual issues concerning whether parent’s lack of contact was willful or the result of interference by the child’s guardians, or whether parent had appropriate childcare arrangements. We reverse and remand the judgment of the trial court terminating respondent’s parental rights on the grounds of neglect by abandonment and delinquency. Minor child David was born to respondent father and mother. Respondent and mother separated shortly after, with David going to live with his mother and his maternal grandparents. Mother also filed for divorce from respondent. Maternal grandparents later intervened to seek custody of David. Respondent filed an answer stating that neither he nor David’s mother should have custody. The trial court agreed that neither parent was fit to care for David and placed him in the custody of his grandparents. Several years later, grandparents filed the present petition to terminate respondent’s parental rights on the basis of neglect, dependency, abandonment, voluntarily relinquishment of his parental rights to another child, and inability or willingness to establish a safe home. Although a guardian ad

litem recommended denial of grandparents’ termination petition, the trial court entered judgment terminating respondent’s parental rights on the basis of neglect, dependency, and abandonment. On appeal, respondent challenged the sufficiency of several of the trial court’s findings of fact and argued that the trial court erred in concluding that his parental rights were subject to termination. We agree with respondent and reverse and remand the trial court’s judgment. We first note that it is unclear whether several findings of fact constitute the trial court’s own determinations or whether they are mere recitations of testimony. We find that the record shows that although respondent continued to maintain contact with David over the years, such contact was sporadic and brief. We also note evidence showing that grandparents made efforts to obstruct respondent’s efforts to have contact with David. We hold that the trial court had cited insufficient findings to support its determination that grounds of neglect by abandonment existed to support termination of respondent’s parental rights. We hold that the trial court was required to resolve the factual issue of the extent of contact respondent had with his son and the extent to which respondent’s limited contact resulted from grandparents’ interference rather than respondent’s willful action or inaction. We further find that the trial court’s finding of dependency lacked sufficient support in the record, as the trial court made no factual findings regarding whether respondent lacked appropriate childcare arrangements. Reversed and Remanded.

In the Matter of: D.T.H. (Lawyers Weekly No. 010-106-21, 27 pp.) (Samuel Ervin IV, J.) Appealed from the District Court in Carteret County (L. Walter Mills, J.) Richard Croutharmel, for appellant; Mark L. Hayes, for appellees. 2021-NCSC-106

Domestic Relations Termination of Parental Rights – Neglect – Abuse The record supported termination of parental rights on grounds of abuse and neglect where parent failed to comply with mental health treatment obligations or to secure and maintain stable housing and childcare. We affirm the trial court’s order terminating respondent’s parental rights to two of her children. DSS filed a petition alleging that respondent mother’s child were neglected juveniles, after it received reports regarding respondent’s untreated mental illness and physical abuse of the children. The trial court found that respondent had refused to comply with recommendations to place one of her children in mental health treatment after he expressed thoughts of killing himself or respondent. The trial court awarded custody of the children to their father, but later placed them in DSS’s custody following reports they had been abused and neglected by their father. At a permanency planning hearing, the trial court found that respondent had failed to attend mental health treatment and had not demonstrated any progress toward improving her parenting skills. After the children were returned

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10 / OPINION DIGESTS to their father’s custody, DSS filed another petition after one of the children accused the father of sexually abusing her. Although the trial court continued reunification efforts with respondent, it eventually directed DSS to file a termination petition after respondent failed to comply with the trial court’s directives to maintain safe and stable housing, participate in treatment, and arrange for appropriate childcare for times when respondent was out of town due to her long-distance trucking job. Following a hearing, the trial court ordered termination of respondent’s parental rights. On appeal, in which respondent’s counsel filed a no-merit brief, we affirm the trial court’s judgment. We find that the record clearly supported grounds for termination of respondent’s parental rights, including her failure to participate in treatment or maintain safe housing, as well as the fact that respondent had her parental rights terminated as to another of her children. Affirmed. In the Matter of: J.D.D.J.C. (Lawyers Weekly No. 010-107-21, 13 pp.) (Per curiam) Appealed from the District Court in Cleveland County (Micah J. Sanderson, J.) J. Thomas Diepenbrock, for appellant; Charles E. Wilson, Jr. and Stacy S. Little, for appellees. 2021-NCSC-107

Domestic Relations Termination of Parental Rights – Sufficiency of Evidence – Best Interests Determination The trial court properly found grounds for termination of parental rights where parent’s refusal to ac-

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INSPIRE THE PROFESSION.

knowledge substance abuse problems or remain consistent with treatment created likelihood of future neglect due to the safety issues posed by parent’s substance abuse. We affirm the decision of the trial court to terminate respondents’ parental rights to their children. Respondents were parents to Kate and Greg. DSS filed a petition alleging Kate was a neglected and dependent juvenile after respondents were involved in a violent altercation that resulted in the intervention of law enforcement, at which Kate was present. Although respondents agreed to a safety plan involving not drinking or arguing in Kate’s presence, police were called to a subsequent domestic violence incident with respondents. Mother was also stopped for DUI with Kate in the vehicle. Father acknowledged his alcohol abuse and agreed to seek treatment, while mother denied her addiction. Respondents eventually agreed to grant temporary custody of Kate to DSS. Eventually, the trial court awarded custody of Kate back to father, while granting mother supervised visitation. Thereafter, DSS filed petitions alleging that both Kate and Greg were neglected and dependent, after DSS received reports of domestic violence and substance abuse by respondents. The trial court placed the children in the custody of DSS and ordered respondents to participate in substance abuse and therapy services. After father was involved in an abuse incident involving another daughter and became homeless and after mother failed to participate in substance abuse treatment, DSS petitioned to terminate respondents’ parental rights, alleging respon-

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Board of Law Examiners of The State of North Carolina RESOLUTION OF APPRECIATION TO THE MEMBERS OF THE BAR CANDIDATE COMMITTEES WHEREAS, The Board of Law Examiners of the State of North Carolina is required by statute to make such investigations as may be deemed necessary to satisfy it that applicants for admission to the North Carolina Bar possess the qualifications of character and fitness requisite for an attorney at law; and, WHEREAS, the Bar. Candidate Committees have assisted the Board by interviewing those applicants to take the July 2021 North Carolina Bar Examination, and, WHEREAS, the attorneys and laymen who served on the Bar Candidate Committees did so freely and with great contribution of their time and efforts to the Board and Bar. NOW THEREFORE, BE IT RESOLVED by the Board of Law Examiners of the State of North Carolina: 1. That the Board of Law Examiners of the State of North Carolina does hereby unanimously adopt a formal Resolution of Gratitude and Appreciation to all those persons who so freely gave of their time and efforts to serve on the Bar Candidate Committees and in recognition of their services to the Board of Law Examiners, the North Carolina Bar and the State of North Carolina. 2. That each member of the Bar Candidate Committees be notified of this action taken by the Board and that this Resolution be included with the Minutes of the Board. Adopted by the Board of Law Examiners on the 17th of August 2021. Kimberly A. Herrick Chair

JULY 2021 BAR CANDIDATE COMMITTEES Resolution List

DISTRICT 10 Reed N. Fountain - Chair Lisa LeFante Atiya M. Mosley Nan E. Hannah Nancy L. Grace DISTRICT 1 James R. Gilreath, Jr. - Chair Teandra M. Miller John R. Szymankiewicz L. Phillip Hornthal, III Michelle A. Liguori Paddison P. Hudspeth Dana H. Hoffman Gail E. Malone Brian 0. Beverly L. Phillip Hornthal, Ill Justin G. Truesdale William Jason Waughtel Alexander M. Bowling OISTRICT 2 Shawn P. Parker Richard S. James - Chair J. Miles Wobbleton OISTRICT 3 William R. Robinson David W. Silver - Chair David J. Fussell Donalt J. Eglington Robert E. Duggins DISTRICT 5 Jeffrey R. Whittle H. W. Sandy Sanderson, Jr. - Chair S. Blake Leger Christie A. Hartinger DISTRICT 6 Paul J. Puryear Henry L. Kitchin, Jr. - Chair Daniel K. Tracey Franklin E. Martin Alexander M. Pearce Algernon L. Butler, Ill Alexandra L. Coggins Pastor Dan Lewis Jennifer M. Hall DISTRICT 7 Hannah A. Combs William 0. While, Jr. - Chair Daniel J. Palmieri DISTRICT 8 Charles George James C. Marrow. Jr. - Chair Jack R. Magee Allison T. Blogett Jonathan A. Greene John R. Keller K. Christopher Poe DISTRICT 9 Lorna A Knick John P. Marshall - Chair Meryl M. Murtagh D. Stuart Lindley Stephanie Gumm Donald E. Clark, Jr. Brett A. Carpenter Matthew S. Sullivan Dylan J. Castellino Charles E. Davis. Ill Sarah V. Fritsch

Stephanie E. Goodbar Colin R. McGrath Maryam J. Robinson Alexander Kyle Aurili Anna C. Conaway Petal A. Reddick Jenny B. Sneed David A Burns H. Gray Hutchison, Jr. Amanda L. Sherin N. Cosmo Zinkow Ben T. Buskirk Emily K. Mather Yusuf A Brown Zachary S. Buckheit Tucker A. Idol Kimberly K. McKenzie Avery R. Miller Brittany D. Levine Christopher T. G. Trusk Kellie C. Gonzalez Vasiliki (Celia) A. Pistolis Joseph W. Williford Rachel E. Rogers Anna H. Ayscue David W. Earley Jeffrey T. Linder Brian E. Clemmons Jammie L. Wacenske Jenny E. Bobbitt Andrew S. Collins Timothy S. Goettel David L. Hayden C. Steven Mason Jackson W. Moore, Jr. Charles V. Archie James L. S. Cobb Philip K. Hackley R. Maria Hawkins

Kori M. Klustaitis J. Christopher Lynch Mario M. Meeks Maggie Wilder Deonte’ KoriL. Thomas Theodore 0. Dardess James M. Freeman Carrah B. Franke Jacquelyn K. Willingham Crystal G. Grimes Michael G. Howell Charis C. K. Link Laura E. Meyer Michael E. Weiss Ashleigh C. S. Powell Mary E. Wilson Lauren M. G. Toole Phillip H’ Liles Megan N. Ellis Darren K. Chester David W. Snipes Dora Kripapuri Melanie A. Huffines Steven A. Bader Judge Paul G. Gessner Eleanor R Gilroy Jordan L. Bernstein Stephen J. Bell Nicholas P. Valaoras Levi A. Huston Anna J. Hedgepeth Todd A. Jones Keith A. Boyette Felicia M. Haigh Matthew P. Blake Samuel G. Thompson, Jr. Emily Satterfield Joshua D. Neighbors Emily D. Poindexter

Kristina Wilson Mel Black Michael J. Crook Jacob L. Bumm Jacquelyn F. Adcock Christy S. Joyce Jordan W. Cansler Christina J. Koscianski Stacy W. Newton Danielle M. Orait Daniel C. Watts David M. Welch Patricia A. Flood Judge Paul M. Quinn David J. Saacks Kathryn L. Pomeroy Melanie Shekita DISTRICT 11 Michael E. Satterwhite - Chair Paul J. Stainback Toney 0. Falkner, Ill DISTRICT 13 Michael J. Reece Mary McCullers Reece DISTRICT 14 Glenn B. Adams - Chair Alicia M. Marks Cynthia P. Black Victor Sharpe DISTRICT 15 Cynthia A. Singletary - Chair Kyle G. Melvin Allen M. Johnson DISTRICT16 Eric M. Williams, Esq. - Chair Joseph J. Garcia Nastasia Watkins Jessica S. Fludd

Libria R. Stephens Robert K. Martinek Xavier M. Bromell Bryan M. Sumner Jasmine S. Griffin Kevin E. Jones Catherine L. Constantinou Chaun McAllister Kyle H. Brazile Whitney S. McCrea DISTRICT 18 Cyrus Q. Griswold - Chair John D. Loftin, II Natasha A. Adams Kim K. Steffan Erika R. Bales Dylan Wilson Layton C. Thompson Dana M. Graves Woodrena D. Baker-Harrell Brett 0. Berne Crista L. Collazo Phoebe W. Dee Anna E. Orr William F. Massengale Blake M. Courlang Byron H. Beasley Maren M. E. Hardin Gregory L. Rouse Jeffery L. Nieman Joshua A. Lee Kayley H.Taber Marcella B. Trageser Troy R. Stone DISTRICT 20 Norris M. Grantham - Chair DISTRICT 21 Judge Christopher W. Rhue - Chair Brandi J. Bullock

DISTRICT 22 Matthew W. Smith- Chair DISTRICT 24 Benjamin R. Edwards - Chair Gregory T. Higgins T Matthew Creech Jeffrey M. Davis Jassmin Mciver-Jones Martha R. Sacrinty Ann E. S. Felts Adam J. Marshall DISTRICT 26 Jeffrey J. Schwartz - Chair Matthew J. Ladenheim Landon S. Eustache Albert P. Allan Keith B. Nichols - Co-Chair Elida E.Coludro Jeffrey A. Davis Marc S. Gentile John R. Pastryk Heather L. Taraska Robyn B. Withrow DISTRICT 27 William W. Cameron, Ill - Chair Linda Brisbin DISTRICT 31 Ms. Katie King - Chair Lauren C. Jackson Nicole Regna Michael T. Fulks Peter A. Jacobus Jonathan E. Harris Robert R. Adler Leland L. Black Laura C. Miller Katherine A Mccurry Michael A. Myers

Dustin T. Greene George D. Humphrey, Ill James J. Hefferan, Jr. Kimberly Jones Byrd Stephen R. Berlin DISTRICT 33 Henry P. VanHoy II - Chair Walter H. Jones, Jr. David Pressly David E. Inabinett Brandy E. Koontz DISTRICT 34 Judge William F. Brooks - Chair Carmen E. James DISTRICT 35 Stacy C. Eggers, IV - Chair DISTRICT 36 Bruce W. Vanderbloemen - Chair Honorable Beverly T. Beal DISTRICT 38 Stuart C. Higdon - Chair DISTRICT 39 Ralph W. Meekins - Chair DISTRICT 40 Carolyn C. Snipes - Chair Candace A. Mance Bryant D. Webster DISTRICT 42 Wallter C. Carpenter - Chair DISTRICT 43 Mr. Fred H. Jones - Chair Connie L Huntsman Julie A. Upshaw Eric J. Baker Lindsay E. Byers Emily T. Cook

OPINION DIGESTS / 11

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dents had willfully placed the children in foster care for more than 12 months without showing reasonable progress towards reunification. The trial court found that grounds existed to terminate respondents’ parental rights and concluded that termination would be in the children’s best interests. On appeal, mother challenged the trial court’s finding that ground existed to terminate her parental rights, while father argued that the trial court abused its discretion in concluding that termination was in the children’s best interests. We reject respondents’ arguments and affirm the trial court’s judgment. We find that the trial court properly concluded that there was a likelihood of future neglect if the children were return to mother’s care, as the trial court found that mother failed to take the case seriously and would not admit her substance abuse issues or consistently participate in treatment. The trial court noted that mother’s substance abuse created safety concerns if the children were returned to her care. We find no abuse in the trial court’s conclusion that termination of respondents’ parental rights was in the children’s best interests. We note that DSS testified that adoption had been identified as the children’s primary plan but the only barrier to that plan was respondents’ parental rights. We also find no evidence that Greg’s psychological issues posed a indefinite barrier to his adoption and affirm the trial court’s conclusion that it was highly likely he would be adopted. Affirmed. In the Matter of: K.B. (Lawyers Weekly No. 010-108-21, 28 pp.) (Robin

Hudson, J.) Appealed from the District Court in Orange County (Beverly Scarlett, J.) Jeffrey L. Miller and Sydney Batch, for appellants; Deana K. Fleming and Steven C. Wilson, for appellees. 2021-NCSC-108

Domestic Relations Termination of Parental Rights – Failure to Provide Financial Support – Willful Abandonment – Sufficiency of Findings Termination of parental rights was in error where trial court failed to make detailed findings of fact in support of finding grounds for termination. We vacate and remand the termination of respondent’s parental rights due to the insufficiency of the trial court’s factual findings in the adjudicatory stage. The mother of the child, Keith, petitioned to terminate respondent’s parental rights on grounds of respondent’s failure to provide financial support or care and willful abandonment. At the time of the petition, respondent was more than $9,500 in arrears on his child support obligations. Keith’s mother further alleged that respondent had not made any effort to have contact with Keith since his birth. The trial court ultimately granted mother’s petition on grounds of willful abandonment. On appeal, we vacate and remand for further consideration, holding that the factual findings made by the trial court were too sparce to support concluding that grounds of willful abandonment existed to terminate respondent’s parental rights. Specifically, we find that the trial court’s findings failed to ad-

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12 / OPINION DIGESTS dress the relevant six-month period but instead merely offered the conclusory statement that respondent had willfully abandoned Ketih for at least six months prior to the petition. Although we acknowledge that the trial court made more detailed factual findings in the dispositional stage, we note that the trial court must find grounds for termination in the adjudicatory stage before proceeding to the dispositional stage. Vacated and Remanded. In the Matter of: K.J.E. (Lawyers Weekly No. 010-109-21, 7 pp.) (Philip Berger Jr., J.) Appealed from the District Court in Alamance County (Frederick B. Wilkins, Jr., J.) Sean P. Vitrano, for appellant. 2021-NCSC-109

Domestic Relations Termination of Parental Rights – Neglect – Dependency – Exposing Children to Sexual Abuse Parent’s long documented history of allowing individuals with sexual abuse convictions unsupervised access to her children and refusing to acknowledge the abuse of her children supported termination of parental rights. We affirm the trial court’s judgment terminating respondent’s parental rights due to neglect and dependency DSS filed a petition regarding the children, later obtaining nonsecure custody. The trial court ultimately adjudicated the children neglected and granted DSS custody. The trial court found that the children’s biological father, from whom respondent was divorced, had been convicted of indecent liberties and posed a significant risk of sexual abuse, but that respondent failed to take appropriate action to protect the children and denied that the children were at risk from their father and allowed him to continue to have contact with the children. However, respondent made significant progress on her plan and had the children returned to her custody. Nine years later, DSS filed another petition alleging the children were neglected because they were residing with an individual who had been convicted of indecent liberties with a child and because respondent refused to agree that there would be no unsupervised contact between the individual and the children. DSS further alleged that there was evidence of a sexual relationship between the individual and one of the children. DSS then filed the most recent petition alleging that the children were abused and neglected because respondent’s boyfriend had inappropriately touched the children. The trial court awarded DSS custody. Although the trial court set the primary goal of reunification and respondent complied with services, the trial court noted its concern as respondent had proven incapable of protecting the children from sexual abuse by members of their household. Eventually, the trial court changed the primary plan to adoption after respondent’s psychological evaluation found her unable to effectively parent and protect her children. DSS filed a petition to terminate respondent’s parental rights. The trial court found that grounds of neglect, dependency, and willful placement of the children outside the home existed to support terminating respondent’s parental rights. On appeal, we affirm the trial court’s judgment, noting that there was extensive evidence in the record to support finding grounds for termination of respondent’s parental rights. We note that the children had been previously

adjudicated neglected due to respondent’s exposing the children to sexual abuse by members of the household. We agree with the trial court’s finding respondent had demonstrated a longstanding pattern of being incapable and unwilling to protect her children from sexual abuse. Although respondent was always compliant with her parenting plans, she would continue to reside with individuals with histories of sexual abuse, allow those individuals unsupervised access to her children, and would even deny that those individuals had abused her children. Affirmed. In the Matter of: L.H. (Lawyers Weekly No. 010-110-21, 19 pp.) (Anita Earls, J.) Appealed from the District Court in Catawba County (Buford A. Cherry, J.) Jeffrey William Gillette, for appellant; Marcus P. Almond and Michelle FormyDuval Lynch, for appellees. 2021-NCSC-110

Domestic Relations Termination of Parental Rights – Failure to Make Progress – Failure to Contribute to Costs of Care – Sufficiency of Evidence The trial court erred in terminating parental rights where it failed to state the standard of proof it used in adjudicating findings of fact and where petitioner’s evidence was insufficient to support finding any grounds for termination. We reverse the termination of respondent’s parental rights to his daughter, declining to remand due to the insufficiency of the evidence presented by petitioner in support of terminating respondent’s rights. The maternal grandmother of the child, Margot, petitioned to terminate the parental rights of both of Margot’s parents, alleging they failed to make reasonable progress to correct conditions leading to Margot’s approval and failed to contribute to the costs of her care. Respondent father denied the allegations of the petition and submitted records reflecting his incarceration in federal prison. The trial court concluded that grounds existed to terminate respondent’s parental rights and that termination was in Margot’s best interest. On appeal, respondent contested the trial court’s finding of grounds to support terminating respondent’s parental rights. We reverse the trial court’s order due to its failure to announce the standard of proof under which it was evaluating the evidence. We further find that petitioner failed to present sufficient evidence to support any of the alleged grounds for termination of respondent’s parental right. We hold that the insufficiency of petitioner’s case would make remand futile where petitioner already had an opportunity to offer sufficient evidence in support of her petition. Specifically, we find that there was insufficient evidence to determine the date upon which petitioner took custody of Margot, necessary to prove that Margot had been placed outside the home for at least 12 months. We also note that respondent had acknowledged paternity as his name was listed on Margot’s birth certificate and Margot also shared respondent’s last name. Reversed. In the Matter of: M.R.F. (Lawyers Weekly No. 010-111-21, 15 pp.) (Michael Morgan, J.) Appealed from the District Court in Transylvania County (Mack Brittain, J.) Anne C. Wright, for appellant; Donald H. Barton, for appellee. 2021-NCSC-111

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Domestic Relations Termination of Parental Rights – Jurisdiction – Determination of Child’s Best Interests The county agency of the county where a child was presently located had standing to file a neglect petition where the child had not yet lived outside North Carolina long enough for another state to become his home state. We affirm the order of the trial court that terminated respondent’s parental rights to her son. CPS received a report that Mike and his twin brother tested positive for drugs at birth. Mike’s twin brother soon after died at respondent mother’s home. Respondent claimed that she had placed both children on a bed and later found the deceased child unresponsive. Respondent later sent Mike to live with his maternal grandmother. Respondent was subsequently detained for violating her probation, after which her whereabouts were unknown. Respondent was located after she was hospitalized with an infection. Mike’s maternal grandmother was approved for his placement. Mike’s grandmother took Mike to visit with respondent with CPS’s approval. The grandmother reported that respondent was incoherent and falling asleep during the supervised visit. Respondent then contacted law enforcement to report that grandmother was drinking with Mike in her presence; police confirmed that Mike was legally placed with his grandmother and that she had not been drinking. CPS filed a neglect petition, alleging that respondent was actively using heroin and lacked stable housing, and had not been compliant with recommended services. The trial court granted custody to CPS and adjudicated Mike neglected. At a permanency planning hearing, the trial court found that respondent had not maintained contact with the social worker, had been incarcerated and was facing further charges, and had generally acted “in a manner inconsistent with her constitutionally protected status as a parent.” The trial court later changed the permanency plan to adoption and CPS filed a motion to terminate respondent’s parental rights. The trial court granted the motion, finding that respondent had previously neglected Mike and was likely to neglect him in the future if he was returned to her care, and had willfully left him in outside placement for more than 12 months without making reasonable progress on reunification. On appeal, respondent argued that the trial court lacked jurisdiction because CPS lacked standing to initiate the termination proceeding as Mike resided in South Carolina at the time of the petition. Respondent further contended that the trial court abused its discretion in finding that termination was in Mike’s best interests. We first reject respondent’s jurisdictional argument, finding that the jurisdiction statute conferred standing on the director of any county agency, not just the county where a child resides or is found. We note that respondent’s argument is one of improper venue, which is subject to waiver. We find that respondent has waived the issue by not raising it before the trial court. In any event, we note that Mike was present in Wake County when the county agency filed its petition. We also note that Mike had not been residing in South Carolina for at least the six-month period required for it to become Mike’s home state under UCCJEA. We also find no abuse of discretion

by the trial court in concluding that termination was in Mike’s best interests. Although respondent claimed to have executed a relinquishment of parental rights in favor of her sister and brotherin-law to enable them to adopt Mike, we note that respondent could revoke that relinquishment if her family members did not or could not adopt Mike. Thus, we hold that termination of respondent’s parental rights was needed to provide Mike with permanence. Affirmed. In the Matter of: M.R.J. (Lawyers Weekly No. 010-112-21, 29 pp.) (Michael Morgan, J.) Appealed from the District Court in Wake County (Monical Bousman, J.) Christopher M. Watford, for appellant; Mary Boyce Wells and Michelle FormyDuval Lynch, for appellees. 2021-NCSC-112

Domestic Relations Termination of Parental Rights – Neglect – Failure to Visit – Failure to Provide for Needs The trial court properly found grounds for terminating parental rights where it had already adjudicated the child neglected and found that parent’s failure to make progress on his reunification plan was indicative of the likelihood of future neglect if the child was returned to the parent’s care. We affirm the trial court’s order terminating respondent’s parental rights to his son. YFS received a referral regarding a minor child, Max, who was observed alone crying on the balcony of his apartment. Police entered the unlocked apartment and found Max alone inside with no furniture other than a pack and play. Police and YFS were unable to contact respondent. YFS filed a petition alleging that Max was neglected and dependent. YFS obtained nonsecure custody and placed Max with his maternal grandfather. The tiral court adjudicated Max neglected and dependent after respondent stipulated to allegations in the petition. At a permanency plan review, the trial court found that respondent had warrants out for his arrest, had not visited with Max on a consistent basis, and had not demonstrated an ability to provide for his needs. The trial court also noted that YFS no longer had valid contact information for respondent. The trial court accordingly changed Max’s permanency plan to adopt and directed YFS to file a petition to terminate respondent’s parental rights. The trial court ultimately terminated respondent’s rights. On appeal, respondent contested multiple findings of fact by the trial court supporting the termination of his parental rights on the basis of neglect. Although we agree with respondent that several findings of fact by the trial court were either unsupported by the record or incorrect, we rule that the other findings of the trial court were sufficient to establish neglect as grounds to terminate respondent’s parental rights. Specifically, we note that there had been a prior adjudication of neglect. We further affirm the trial court’s conclusion that respondent’s failure to make progress on his plan was sufficient to find a likelihood of future neglect. We further affirm the trial court’s ruling that termination of respondent’s parental rights was in Max’s best interests, despite respondent’s concerns about Max’s placement with his maternal grandfather. We note that the trial court had already adjudicated the suitability of Max’s placement with his grandfather.

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Affirmed. In the Matter of: M.Y.P. (Lawyers Weekly No. 010-113-21, 22 pp.) (Robin Hudson, J.) Appealed from the District Court in Mecklenburg County (Elizabeth T. Trosch, J.) Benjamin J. Kull, for appellant; Marc S. Gentile and Amanda S. Hawkins, for appellees. 2021-NCSC-113

Domestic Relations Termination of Parental Rights – Neglect – Minimal Progress on Case Plan – Child’s Preference for Adoption The trial court properly made conclusions of law that grounds existed for termination of parental rights where all the trial court’s findings of fact had a sufficient basis in the evidentiary record and were relevant to the trial court’s analysis. We affirm the judgment of the trial court that terminated respondent’s parental rights to her son. Respondent prematurely gave birth to her son, Thomas, who weighed only two pounds and four ounces. Respondent admitted to using drugs during her pregnancy. CPS later received reports that respondent was homeless and that she and her boyfriend were using drugs. CHS filed a petition alleging that Thomas was neglected, citing respondent’s extensive dealings with CPS regarding her other children. The trial court adjudicated Thomas neglected and placed him in the sole custody of his father. Thomas was again adjudicated neglected and placed in the custody of CHS after he was hospitalized for mental health treatment due to his fear of the corporal punishment inflicted by his father and stepmother. CHS visited respondent’s home and found it unsuitable for a child due to the lack of space for Thomas to sleep. The trial court ultimately found that respondent had made minimal progress on her case plan, was inconsistent in her contact with CHS, and was engaging in unauthorized contact with Thomas. The trial court therefore changed Thomas’s permanent plan to adoption, after he was placed in a therapeutic foster home and expressed his preference to be adopted by his foster parents. The trial court subsequently granted CHS’s petition to terminate respondent’s parental rights. On appeal, respondent challenged multiple findings of fact from the adjudicatory stage and the conclusions of law on all three grounds for termination. We reject respondent’s challenges and affirm the trial court’s judgment. We find that the findings of fact challenged by respondent were all supported by sufficient evidence, including the fact that respondent violated orders barring her from contact with Thomas’ brother Troy and that respondent failed to acknowledge that Thomas had been the victim of sexual abuse or understand the extent of his trauma. We hold that the trial court’s factual findings were sufficient to support the legal conclusion that grounds existed to terminate respondent’s parental rights. Affirmed. In the Matter of: T.M.B. (Lawyers Weekly No. 010-114-21, 14 pp.) (Tamara Barringer, J.) Appealed from the District Court in Wake County (Monica Bousman, J.) Mercedes O. Chut, for appellant; Mary Boyce Wells and Carlos E. Manzano, for appellees. 2021-NCSC-114

Criminal Practice Sex Offender – Satellite Based Monitoring - Constitutionality The trial court was statutorily obli-

gated to accept a defendant’s tendered plea agreement, even though defendant maintained his innocence, where defendant had made an informed decision to plead guilty, there existed a factual basis to find defendant guilty, and the trial court maintained sentencing discretion. We reverse and remand with instructions for the district attorney to renew, and for the trial court to consider if defendant accepts, the rejected plea offer. Defendant was charged with statutory rape and statutory sexual offense after admitting to sexual intercourse and sexual contact with minor children while other children watched. Following his release from prison, defendant was prohibited from leaving Catawba County without approval of his probation officer. However, defendant traveled to another county on multiple occasions without approval, where he sexually assaulted his minor niece. Defendant was charged with taking indecent liberties. The trial court conducted a hearing to determine if defendant should be enrolled in satellite based monitoring due to his prior convictions. The trial court concluded that at least one of defendant’s convictions constituted an aggravated offense making defendant eligible for SBM, and accordingly ordered defendant to enroll in SBM for life. Defendant appealed, challenging the constitutionality of his obligation to enroll in SBM. Defendant argued that SBM constituted an unreasonable search, that the SBM statute was facially unconstitutional because the state could not show that it served a legitimate government interest, and that SBM orders constituted “general warrants” that violated the North Carolina Constitution. The court of appeals affirmed in part, reversed in part, and remanded in part, holding that the state had a high burden to enforce SBM on offenders not presently subject to state supervision but that the program could be enforceable for offenders during the period of their state supervision. The court of appeals therefore affirmed the imposition of SBM on defendant during the period of his post-release supervision. On appeal from the court of appeals, we affirm and modify in part and reverse in part the court of appeals’ judgment, reinstating the trial court’s SBM order. We note that the Court has held that SBM effects a Fourth Amendment search; therefore, subjecting a sex offender to SBM must sufficiently promote legitimate government interests. We further note that the legislature has recognized that sex offenders pose a higher risk of recidivism and that protecting the public from sex offenders is a paramount governmental interest. Finally, we note that even offenders subject to lifetime SBM can after one year petition to be relieved from monitoring upon a showing of good cause. We hold that SBM also assists law enforcement in the investigation of sex crimes, as sex offenders can be implicated or excluded as suspects based on their location at the time of the crime. We further hold that SBM also serves the government interest of deterring sex offender recidivism. We also note that aggravated sex offenders have restricted liberty interest and diminished privacy expectations.

Dissent

(Earls, J.): The majority’s opinion failed to address the amended SBM law, whose changes obviated some of defendant’s constitutional arguments, thereby rendering the opinion of limited precedential value. The court should have permitted the parties to provide further briefing and argument regard-

ing the impact of the amendments. Modified and affirmed in part, reversed in part. State v. Hilton (Lawyers Weekly No. 010-115-21, 68 pp.) (Paul Newby, C.J.) (Anita Earls, J., dissenting) Appealed from the District Court in Catawba County (Daniel A. Kuehnert, J.) Glenn Gerding, Appellate Defender, by Nicholas C. Woomer-Deters, Assistant Appellate Defender, and James R. Grant, Assistant Appellate Defender, for appellant; Joshua H. Stein, Attorney General, by Joseph Finarelli, Special Deputy Attorney General, for appellee. 2021-NCSC-115

Criminal Practice Sex Offender – Lifetime Satellite Based Monitoring – Writ of Certiorari – Unpreserved Challenge The trial court was statutorily obligated to accept a defendant’s tendered plea agreement, even though defendant maintained his innocence, where defendant had made an informed decision to plead guilty, there existed a factual basis to find defendant guilty, and the trial court maintained sentencing discretion. We reverse and remand with instructions for the district attorney to renew, and for the trial court to consider if defendant accepts, the rejected plea offer. Defendant was convicted for statutory rape, statutory sex offense, and indecent liberties with a child. The trial court concluded that each of defendant’s convictions qualified him for satellite based monitoring. Defendant appealed from his criminal convictions but did not object to the imposition of SBM. However, during his appeal, defendant filed a petition for writ of certiorari with the Court of Appeals to seek review of his SBM orders. Although the Court of Appeals affirmed defendant’s conviction, it granted his petition and invoked Rule 2 to reached the merits of his challenge to his SBM orders. The court of appeals concluded that the trial court had failed to conduct a reasonableness challenge pursuant to State v. Grady, 372 N.C. 509, and vacated the SBM orders without prejudice. A dissent argued against allowing defendant’s petition for writ of certiorari because he had not demonstrated prejudice or shown that he was entitled to relief under Rule 2. The state appealed from the court of appeals’ grant of defendant’s petition and invocation of Rule 2. We reverse the Court of Appeals’ decision. We note that, unlike other cases were we have upheld the invocation of Rule 2 and allowed a petition for writ of certiorari, there had been no concession by the state that the trial court committed error warranting review of an unpreserved issue. We hold that the trial court was not required to inquire into the constitutionality of imposing SBM on defendant, and that defendant was not differently situated from other defendants to warrant relief under Rule 2.

Dissent

(Hudson, J.): The court of appeals properly exercised its discretion to grant defendant’s petition for writ of certiorari where defendant had raised an issued related to his Fourth Amendment rights, which were substantial rights. Reversed. State v. Ricks (Lawyers Weekly No. 010-116-21, 18 pp.) (Paul Newby, C.J.) (Robin Hudson, J., dissenting) Appealed from the District Court in Harnett County (Claire V. Hill, J.) Joshua H. Stein, Attorney General, by Teresa

M. Postell, Assistant Attorney General, for appellant; Kimberly P. Hoppin, for appellee. 2021-NCSC-116

N.C. COURT OF APPEALS

Tort/Negligence Defamation – Elections – Absolute Privilege – Protest Proceedings – Attorneys Where defendant Porter signed an election protest form, accusing plaintiffs of having voted twice in the 2016 election, and participated in the election protest proceeding, Porter is entitled to assert absolute privilege in response to plaintiffs’ defamation claims. However, where out-of-state lawyers drafted the election protest forms but did not participate in the election protest proceedings, those lawyers are not entitled to absolute privilege. We reverse the trial court’s grant of partial summary judgment for plaintiffs as to defendant Porter. We affirm the grant of partial summary judgment for plaintiffs on the issue of absolute immunity as to defendant Pat McCrory Committee Legal Defense Fund, the defendant-lawyers and their law firm. The general rule is that a defamatory statement made in the due course of a judicial or quasi-judicial proceeding is absolutely privileged and will not support a civil action for defamation, even though it be made with express malice. Election protest proceedings before county boards of elections fall squarely in the category of quasi-judicial proceedings, and statements made or submitted to a county board of elections in an election protest are statements made in the course of a quasi-judicial proceeding. Consequently, as a general principle, absolute privilege applies to defamatory statements made in the course of an election protest filed with a county board of elections. Defendant Porter was the actual protestor in the Guilford County protest filed against plaintiffs Bouvier and Niehans. The allegedly defamatory statements made by Porter were those adopted by him and made on the protest form filed with the Guilford County Board of Elections upon which he authorized his signature as a party. Thus, Porter is entitled to the protection of absolute privilege from suit in this case. The law firm defendants argue there is no requirement that one be a “participant” in a legal proceeding to receive the benefit of the absolute privilege against a defamation suit based upon statements made in the due course of a legal proceeding. The general policy behind absolute privilege is to protect participants in the judicial process such that they may be able to testify or otherwise take part without being hampered by fear of defamation suits. This court has reaffirmed that an attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding. As such, even when attorneys are participants in a judicial proceeding, the absolute privilege only extends to statements made during the course of their participation in (or in preliminary matters related to) those proceedings. Thus, absolute privilege does not apply to allegedly defamatory statements made by an attorney when they are not participating in the judicial proceeding. The law firm defendants have dis-

14 / OPINION DIGESTS claimed acting as attorneys for the protestors in the election protest proceedings. They did not appear at the hearings before the county boards of elections on the protests. In fact, it does not appear the law firm defendants were licensed or authorized to practice law in North Carolina at the time the election protests were filed. As such, the allegedly defamatory statements attributed to the law firm defendants were not made while they were participating as counsel in the election protest proceeding. The law firm defendants argue that, even if they were not acting as counsel for the protestors, they were nevertheless participating in the election protest proceedings because they were acting as Porter’s and protestor Agovino’s “agents” in drafting and filing the protests with the county boards of elections, thereby initiating the quasi-judicial proceedings. To the extent there is a distinction here between the law firm defendants acting as attorneys for the protestors or merely as their “agents” in drafting and filing documents initiating quasi-judicial proceedings, it is one without a difference. The law firm defendants’ assertion is also undermined by the record, including, for example, attorney Roberts’s deposition testimony in which not only did he testify he was not acting as Porter’s attorney in filing the Guilford County protests but was also not acting as Porter’s “attorney in fact.” The record reflects that, in drafting and disseminating election protests in counties throughout North Carolina— including the protests in this case—the law firm defendants were actually acting in their capacity as counsel to the defendant Defense Fund, leaving the individual protestors to initiate and prosecute the actual protest proceedings pro se. In that capacity, the law firm defendants were not participating in the election protests when they prepared the allegedly defamatory statements in this case and aided in recruiting individuals to actually prosecute those protests. Thus, the statements attributed to the law firm defendants were not made by the law firm defendants in the course of a quasi-judicial proceeding and are not entitled to the protection of the absolute privilege against defamation suits. Finally, because the Defense Fund was not participating in the election protest proceeding and, indeed, makes no argument the allegedly defamatory statements attributed to it were made by the Defense Fund in the due course of the election protest proceedings, the Defense Fund is not entitled to the absolute privilege defense in this case. Affirmed in part, reversed in part, and remanded. Bouvier v. Porter (Lawyers Weekly No. 011-191-21, 31 pp.) (Toby Hampson, J.) Appealed from Guilford County Superior Court (Allen Baddour, J.) Jeffrey Loperfido, Allison Riggs, Pressly Millen and Ripley Rand for plaintiffs; Gary Parsons, Craig Schauer, Philip Isley, Robert Hunter and Jewel Farlow for defendants; Matthew Nis Leerberg and Zachary Thomas Dawson for amici curiae. 2021-NCCOA-522

Tort/Negligence Wrongful Death – Governmental Immunity – Insurance – Prisons & Jails An insurance policy covering defendants specifically states that the parties to the insurance contract did not intend for the purchase of the coverage to waive immunity for any of the covered parties, that the parties did not intend

to cover any claims to which an immunity defense applied, and that such claims were excluded from coverage. Therefore, the purchase of insurance did not waive defendants’ governmental immunity. We reverse the trial court’s denial of defendants’ motion for summary judgment on the issue of governmental immunity. We dismiss other issues as interlocutory. Plaintiffs point out the absurdity of spending taxpayer funds for insurance policies that will never pay out on behalf of the named insured because the policies contain exclusions for any claim subject to governmental immunity. However, the policy’s immunity provisions and policy exclusions are substantively equivalent, and in many respects identical, to those we held did not waive immunity in Patrick v. Wake Cnty. Dep’t of Human Servs., 188 N.C. App. 592, 655 S.E.2d 920 (2008), Earley v. Haywood Cnty. Dep’t of Soc. Servs., 204 N.C. App. 338, 694 S.E.2d 405 (2010), Bullard v. Wake Cnty., 221 N.C. App. 522, 729 S.E.2d 686 (2012), and Owen v. Haywood Cnty., 205 N.C. App. 456, 697 S.E.2d 357 (2010). We are bound by these rulings. As the defendant-sheriff concedes, he purchased a $20,000 bond pursuant to G.S. § 162-8. He has therefore waived his governmental immunity for claims up to $20,000 against the bond. Plaintiffs appear to argue that governmental immunity violates the North Carolina Constitution. Plaintiffs argue that the amount of damages must be assessed by a jury, and the constitution “does not permit [] an override of the rights and remedies held by the people when an award of governmental immunity at the summary judgment stage results in a duty left intact without remedy for its breach.” However, we are bound by our Supreme Court’s decisions upholding the doctrine of governmental immunity. Reversed in part; dismissed in part. Butterfield v. Gray (Lawyers Weekly No. 011-192-21, 20 pp.) (Allegra Collins, J.) Appealed from Wilson County Superior Court (Allen Baddour, J.) Douglas Abrams, Noah Abrams and Rachel Fuerst for plaintiffs; Bradley Wood for defendants; Karonnie Truzy for amicus curiae. 2021-NCCOA-523

Tort/Negligence

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ment so long as the parties assent to the same thing in the same sense, and their minds meet as to all the material terms. It could be inferred that the stipulations and Asset Chart, in conjunction, contain all material and essential terms for a binding settlement agreement. Plaintiff filed this action three years and one month after defendants presented the stipulations to the trial court. However, the latent discovery provides that (1) if a loss is not readily apparent at the time of its origin and (2) the loss is discovered or should reasonably be discovered by the claimant two or more years after the last act, then [3] suit must be brought within one year from the date the discovery is made. G.S. § 1- 15(c). “[But] in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action.” § 1-15(c). Here, there is some evidence that defendants’ errors were not readily apparent to plaintiff at the time the stipulations were submitted to the trial court. It could also be inferred from the evidence that defendants’ defective representation was not reasonably discoverable by plaintiff until 13 April 2012, when Plaintiff’s ex-wife moved for a dismissal in the domestic case. This date (13 April 2012) occurred two years after defendants’ last act (1 May 2009). Further, it could be inferred from the evidence that defendants confirmed to plaintiff, and later redoubled, that the settlement was definite regardless of the error, deterring any assumption of malpractice. Finally, suit must be brought within a year of discovery. Because it could be inferred that reasonable discovery occurred on 13 April 2012, plaintiff had until 13 April 2013 to file. Plaintiff filed within this window, on 14 June 2012. Accordingly, it could be inferred that plaintiff timely filed his complaint in this present action. Vacated and remanded. Podrebarac v. Talley (Lawyers Weekly No. 011-193-21, 9 pp.) (Chris Dillon, J.) Appealed from Mecklenburg County Superior Court (Jesse Caldwell, J.) Paul Dickinson, Gary Jackson and Christopher Bagley for plaintiff; Cynthia Van Horne for defendants. 2021-NCCOA-529

Domestic Relations

Legal Malpractice – Domestic Relations – Unnotarized Stipulations – Statute of Limitations

Child Support – Paternity – Appellate Jurisdiction

At mediation, plaintiff and his exwife agreed to a distribution of assets; however, when the defendant-attorneys presented the litigants’ signed stipulations to the trial court for entry, they mistakenly forgot to attach an accompanying “Asset Chart”—which set forth the agreed-upon distribution of all property between the parties—and defendants failed to have the stipulations notarized. Thereafter, the parties failed to execute a formal settlement agreement (though they followed its terms for a while), and the ex-wife later successfully moved to have the domestic matter dismissed. Although the trial court determined the stipulations to be an unenforceable “agreement to agree,” when compared to the unsigned settlement agreement, it could be inferred that not one material term is unaccounted for. We vacate the trial court’s grant of summary judgment for the defendantattorneys. A contract that the parties expect to formalize is not rendered invalid simply because the parties do not subsequently execute such a formal agree-

Even if relator-Mother Mabe and defendant Mabe were not married when Mother’s child was born, defendant did not file a proper motion to challenge a prior adjudication of paternity under G.S. § 49-14(h) because his motion did not identify any factual basis to support a claim “of fraud, duress, mutual mistake, or excusable neglect.” We reverse the trial court’s “continuance order” and remand for further proceedings. Plaintiff appeals from a “continuance order” that was based on defendant’s pro se “motion to modify” child support. However, the “motion to modify” (filed on 2003 AOC form AOC0CV0200) raised the issue, not of modification, but of paternity, and the “continuance order” is actually an order for paternity testing, which raises an issue of res judicata. This court has jurisdiction to hear plaintiff’s appeal; furthermore, out of an abundance of caution, we invoke N.C. R. App. P. 2 to consider plaintiff’s arguments. Defendant contends he is entitled to challenge the trial court’s prior adjudication of paternity under § 49-14(b).

However, defendant’s motion merely mentioned the word “paternity,” and he did not identify any factual basis to support a claim “of fraud, duress, mutual mistake, or excusable neglect.” Defendant simply asked for DNA testing without any statutory or factual basis. But paternity had already been adjudicated by the trial court, and that 24 November 2015 order was not appealed. Accordingly, we must reverse the trial court’s order as defendant did not file a “proper motion” with the requisite allegations. Furthermore, we must note that defendant can file a “proper motion” under § 49-14(h) only if the child was born out of wedlock. It is unclear from the record if and when the parties were married to one another and if and when that marriage was terminated. The complaint did not allege that the child was born during the marriage, and the child support order did not include any finding of fact regarding the marital status of the parents. The only information in our record indicating the child may have been born to the marriage is that the parents have the same last name and that the child’s birth certificate had a note that Mother’s husband’s information was refused, indicating that she reported she had a husband at the time of the child’s birth. Section 49-14(h) would not be applicable to defendant if the child was born during his marriage to Mother. However, nothing in our record establishes this fact; thus, we cannot determine whether defendant may be entitled to seek relief under § 49-14(h). We hold only that the motion for modification was not a “proper motion” under § 4914(h), even if we assume arguendo that defendant and Mother were not married at the time of the child’s birth. On remand the trial court shall enter an order dismissing defendant’s purported motion for DNA testing and motion to modify as the motion did not allege changed circumstances under G.S. § 50- 13.7 or any grounds for relief under § 49-14(h). The court shall schedule a new hearing date for the “Order to Show Cause” which was also continued by the order of continuance. Reversed and remanded. Guilford County ex rel. Mabe v. Mabe (Lawyers Weekly No. 011-19421, 13 pp.) (Donna Stroud, C.J.) Appealed from the District Court in Guilford County (Tonia Cutchin, J.) Taniya Reaves for plaintiff; Adam Melrose for defendant. 2021-NCCOA-524

Tort/Negligence Domestic Relations – Alienation of Affections & Criminal Conversation – Constitutional Challenge – Interlocutory Appeal Although defendant challenges the constitutionality of G.S. § 52-13 (regarding actions for alienation of affections and criminal conversation), since the other matters raised by plaintiff’s complaint have not been resolved, defendant has not shown that he will be deprived of a substantial right if we do not immediately consider the trial court’s refusal to transfer this case to a three-judge panel in Wake County. We dismiss plaintiff’s appeal as premature. In response to plaintiff’s complaint—alleging claims of alienation of affections, criminal conversation, negligent infliction of emotional distress and intentional infliction of emotional distress—defendant challenged the constitutionality of G.S. § 52-13 and sought a transfer to a three-judge panel pursuant to N.C. R. Civ. P. 42(b)(4). Defendant appeals the trial court’s refusal

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to transfer the matter. A Rule 42(b) (4) transfer is to occur only “after all other matters in the action have been resolved…” Nothing prevents defendant from raising the constitutionality of the alienation of affections and criminal conversation claims before a threejudge panel after all other issues in the case are resolved. If the claims subject to constitutional challenge survive summary judgment on other grounds, a jury may determine the damages of each cause of action separately while

defendant preserves its right to raise the constitutional issues before the three-judge panel before the trial court enters a final judgment. Because not all matters have been fully resolved, the statutory mandated transfer provisions of G.S. §§ 1-267.1 and 1-81.1 and Rule 42(b)(4) do not apply. This interlocutory appeal is premature. Hull v. Brown (Lawyers Weekly No. 011-195-21, 8 pp.) (John Tyson, J.) Appealed from Iredell County Superior Court (Julia Lynn Gullett, J.) Andrew Wingo and Kyle Putnam for plain-

tiff; Preston Odom, Russell Kornegay and Caroline Mitchell for defendant. 2021-NCCOA-525

Labor & Employment Public Employees – Termination – Unacceptable Personal Conduct – Resulting Harm The respondent-agency fired petitioner, a career state employee, after petitioner—during a conversation with

her supervisor—used a racial epithet to describe a client family. Because the agency did not consider the resulting harm from petitioner’s unacceptable personal conduct, the agency’s investigation into the matter was incomplete, and we cannot conduct meaningful appellate review regarding whether just cause existed to terminate petitioner. We remand for a completion of the investigation and corresponding disciplinary action. Whether anyone else heard petitioner’s statement was a necessary consid-

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16 / OPINION DIGESTS eration in weighing the evidence to determine the severity of the conduct and whether just cause existed to terminate petitioner. Respondent DSS did not make such a necessary consideration in its disciplinary investigation, rendering the investigation incomplete and the administrative law judge’s findings regarding whether such harm occurred too speculative. For us to conduct meaningful appellate review regarding just cause for disciplinary action, the ALJ must make complete findings of fact regarding the harm to DSS resulting from petitioner’s unacceptable personal conduct, including whether any occurred. Remanded.

Concurrence

(Gore, J.): I concur, but I am troubled that our law requires a resulting harm that involves employees charged with protecting children. A DSS employee’s conduct that creates a resulting harm or even conduct that presents a risk of harm should not be taken lightly. Our child protective system works to prevent harm upon one of our most precious resources, our children, and the law should be equally vigilant. Ayers v. Currituck County Department of Social Services (Lawyers Weekly No. 011-196-21, 21 pp.) (Hunter Murphy, J.) (Fred Gore, J., concurring) Appealed from the Office of Administrative Hearings (Melissa Owens Lassiter, ALJ) John Leidy for petitioner; John Morrison for respondent. 2021-NCCOA-521

Trusts & Estates Wills – Patent Ambiguity – ‘Personal Property’ – Specific Bequests & Residuary Beneficiaries Where (1) a will bequeathed the testator’s “personal property,” including his automobile, to defendant; (2) the will went on to direct that certain personal property—including the testator’s motor vehicles—be sold to fund specific bequests; (3) the will directed that certain funds held by a foundation be transferred to a school; and (4) the will directed that the residue of the estate, including property “real or personal, tangible and intangible” go to the plaintiff-residuary beneficiaries, the will was patently ambiguous. We affirm the trial court’s determination that the will was patently ambiguous and its construction of the will, transferring the testator’s investment and bank accounts to the residuary beneficiaries. The words “personal property” are susceptible of two meanings: one, the broader, including all property which is the subject of ownership, except land or interests in land; the other, more restricted, oftentimes embraces only goods and chattels. The trial court correctly determined that the testator’s (Testator’s) Article III bequest of “all my personal property” to defendant conflicts with other provisions of his will. For instance, subsection (d) of Article III permits the executor “to sell [Testator’s] personal possessions (which have not been listed herein as being devised to [Testator’s] partner, [defendant]).” This authorization suggests that Testator intended that there would be personal possessions that were not otherwise included as part of the bequest to defendant of “all [Testator’s] personal property[.]” Similarly, Article III also directs the executor to sell “all [Testator’s] remaining personal possessions at the condominium” and to use the net proceeds from these sales to fund specific

bequests made in Article V. However, the very existence of “remaining personal possessions at the condominium” is incompatible with a bequest of “all [Testator’s] personal property” to defendant. In addition, the provisions of Article V, subsection (l) are unquestionably inconsistent with the provisions of Article III bequeathing all of Testator’s personal property to defendant. Subsection (l) expressly requires the sale of “any motor vehicles [Testator] may own at the time of [Testator’s] demise” and specifically directs that the net-sales proceeds be distributed to the University of North Carolina School of the Arts, while “[Testator’s] automobile” was left to defendant in Article III. The trial court did not err in concluding that the will contained a patent ambiguity in the various provisions regarding Testator’s “personal property.” The trial court’s thorough analysis reflects an examination of Testator’s intent that squares the initial bequest of all of Testator’s personal property, and the repeated conflicting bequests of Testator’s personal property thereafter, with Testator’s evident intent to leave certain intangible property, which the trial court determined included the contested bank and investment accounts, to plaintiffs. After careful review of the trial court’s analysis, we conclude that the trial court properly resolved the discord created by the patent ambiguity in light of the prevailing purpose of the entire instrument. Affirmed. Treadaway v. Payne (Lawyers Weekly No. 011-197-21, 14 pp.) (Valerie Zachary, J.) Appealed from Forsyth County Superior Court (David Hall, J.) William Walker for plaintiffs; Stuart Brooks for defendant. 2021-NCCOA-535

Civil Practice Judgments – Supplemental Proceedings – Subject Matter Jurisdiction – Execution After obtaining a judgment against defendant, plaintiff initiated supplemental proceedings, seeking discovery from defendant. Where there is no indication in the record that plaintiff sought issuance of a writ of execution or that any such writ was returned unsatisfied, supplemental proceedings under G.S. Chapter 1, Article 31 were not available to plaintiff. There trial court lacked statutory authority over these supplemental proceedings and, as such, lacked subject matter jurisdiction to grant any relief under Article 31. The trial court erred in entering its order compelling defendant to respond to discovery issued pursuant to G.S. §§ 1-351.1 and 1-351.2 and imposing sanctions on defendant for opposing discovery in supplemental proceedings. Vacated. Milone & MacBrook, Inc. v. Corkum (Lawyers Weekly No. 011-198-21, 11 pp.) (Toy Hampson, J.) Appealed from Wake County District Court (Michael Denning, J.) Byron Saintsing and Thomas Gray for plaintiff; Donald Hunt and Kristen Atkins Lee for defendants. 2021-NCCOA-526

Labor & Employment Municipal Employment – Constitutional – Fruits of Labor – Due Process & Equal Protection Where plaintiff alleges that the defendant-city violated its own personnel policies—by giving him only one day instead of at least three days to prepare

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for a pre-disciplinary hearing—plaintiff has stated a claim under N.C. Const. art. I, § 1 for violation of his right to enjoy the fruits of his own labor. We affirm the trial court’s dismissal of plaintiff’s due process and equal protection claims. We reverse the dismissal of plaintiff’s claim of a violation of N.C. Const. art. I, § 1.

Facts

During a stand-off with a suspect, the plaintiff-police sergeant convinced the suspect to surrender. As part of the negotiations, plaintiff convinced the suspect not to smoke his marijuana blunt until after he was arrested. After the suspect handcuffed himself, plaintiff kept his word and allowed the suspect to smoke the blunt. Following the suspect’s peaceful surrender, the defendant-city’s police department launched an internal investigation of plaintiff’s actions. About four months after the incident, plaintiff was informed in writing that a pre-disciplinary hearing would be held the next day, despite the city’s written policy requiring advance notice of at least three days. Following the hearing, plaintiff’s immediate supervisors recommended that he be reprimanded, but the city fired him.

Fruits of Labor

N.C. Const. art. I, § 1 ensures each person the right to “life, liberty, the enjoyment of the fruits of their own labor, and the pursuant of happiness.” This guarantee has no federal constitutional analog. It was added to our state constitution at a time when formerly enslaved persons were newly able to work for their own benefit. In Tully v. City of Wilmington, 370 N.C. 527, 810 S.E.2d 208 (2018), our Supreme Court held that “to state a direct constitutional claim grounded in this unique right under the North Carolina Constitution, a public employee must show that no other state law remedy is available and plead facts establishing three elements: (1) a clear, established rule or policy existed regarding the employment promotional process that furthered a legitimate governmental interest; (2) the employer violated that policy; and (3) the plaintiff was injured as a result of that violation.” Although this case does not involve a promotion, we follow the reasoning of Tully to determine that plaintiff has stated a claim under Article I, § 1. He has alleged (1) a clear, established policy that was designed to further the legitimate government interest that the city’s employees be treated fairly in the administration of discipline; (2) that the city violated this policy; and (3) that he was injured as a result of the violation. Plaintiff specifically alleges that “[h]ad [he] been afforded his opportunity ... to prepare at a minimum of three days instead of less than 24 hours, [plaintiff] would have had reasonable notice and could have better prepared and provided a more comprehensive response.”

Due Process & Equal Protection

Plaintiff’s due process claim fails because of N.C. Supreme Court precedent holding that employees in this state generally do not have a property interest in continued employment. The city’s internal personnel policies, which have not been enacted as an ordinance, do not give rise to a protected property interest. Plaintiff seeks to assert a class-ofone equal protection claim by arguing that he was situated similarly to other police officers who violated department policies and received significantly less severe discipline. But the U.S. Supreme Court has held that class-of-one clams

cannot be stated in the employment context, and this court has held that the equal protection rights guaranteed by the N.C. Constitution are the same as those in the U.S. Constitution. Affirmed in part, reversed in part and remanded. Mole’ v. City of Durham (Lawyers Weekly No. 011-199-21, 26 pp.) (Lucy Inman, J.) Appealed from Durham County Superior Court (John Dunlow, J.) Michael McGuinness and Travis Payne for plaintiff; Henry Sappenfield and Michele Livingstone for defendant; Norris Adams for amicus curiae. 2021-NCCOA-527

Labor & Employment Constitutional – First Amendment – Church Pastor – Subject Matter Jurisdiction In order to rule on the counterclaims filed by defendant—a pastor purportedly fired from his position in the plaintiffchurch—the trial court will first need to decide which version of the church’s bylaws was in effect and whether defendant was terminated in accordance with the applicable version of the bylaws. Since the trial court can make these determinations based solely on contract and business law, without delving into ecclesiastical matters, the trial court has subject matter jurisdiction over the counterclaims. We affirm the trial court’s denial of the church’s motion to dismiss the counterclaims for lack of subject matter jurisdiction. Another question raised by the counterclaims is whether the third-party defendant-elders properly determined that defendant was unfit to serve as pastor of the church. Although this question would require the court to delve into ecclesiastical matters, there is no guarantee at this stage of the proceedings that our courts will be forced to answer this question. A portion of one of defendant’s counterclaims—a request for money damages from the elders for breach of their fiduciary duties to the church—would be a derivative action. A determination of which bylaws were the proper governing authority of the church at the relevant time is necessary to the determination of whether defendant has standing to bring this derivative action on behalf of the church.

Dissent

(Murphy, J.): I concur with the majority that this interlocutory appeal is properly before us. However, I would hold that the trial court lacked subject jurisdiction, not just over the counterclaims, but also over the complaint itself. First, defendant moved to amend his counterclaim in order to claim back pay and benefits and to add a claim for civil conspiracy. The actual amended counterclaim also removed language referring to defendant as the church’s “spiritual leader.” Even assuming the set of bylaws championed by defendant controls the termination of the church’s pastor, such bylaws would require a special meeting with a specific percentage of congregants to vote for termination. What constitutes a special meeting, as well as the definition of congregants, are ecclesiastical matters, which courts may not analyze and where we may not exercise the authority of the state. Even if we consider the amended counterclaims, they still require impermissible judicial entanglement in ecclesiastical matters. Defendant still requests a “judgment declaring that

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[he] is the Bishop and Senior Pastor of the Church,” and he includes repeated statements that he is “the duly installed Bishop and Senior Pastor of the Church.” These requests and references require a court to determine what constitutes a “bishop” and a “senior pastor,” and how such a leader can be “duly installed.” Such a determination would run afoul of our caselaw prohibition against judicial examination of the church’s view of the role of the pastor, staff, and church leaders. Furthermore, the decision to hire or discharge a minister is inextricable from religious doctrine and protected by the First Amendment from judicial inquiry. Whether the decision to fire defendant was due to failure to perform a religious role or was nefarious would require the examination of religious doctrine, and we cannot allow such an examination. Finally, the complaint’s allegations also require improper judicial inquiry into church governance and membership as it relates to the appropriate leaders and owners of the premises, as well as who has the authority to approve defendant in his attempt to hold services and meetings. Nation Ford Baptist Church v. Davis (Lawyers Weekly No. 011200-21, 36 pp.) (Jefferson Griffin, J.) (Hunter Murphy, J., concurring in part & dissenting in part) Appealed from Mecklenburg County Superior Court (Carla Archie, J.) Lisa Godfrey, Edward Knox and Gray Brotherton for plaintiff and third-party defendants; James Smith and Nicholas Pappayliou for defendant. 2021-NCCOA-528

Criminal Practice Probation Revocation – Absconding – Defendant’s Admission On appeal, defendant argues the trial court erred in finding he violated his probation by absconding because the state failed to present competent evidence. However, at his probation revocation hearing, defendant admitted to absconding. He thereby relieved the state of its burden of producing competent evidence of the probation violation. We affirm the revocation of defendant’s probation, but we remand for correction of clerical errors. State v. Brown (Lawyers Weekly No. 011-201-21, 10 pp.) (Lucy Inman, J.) Appealed from Lincoln County Superior Court (Todd Pomeroy, J.) Allison Angell for the state; Sjawn Evans for defendant. 2021-NCCOA-531

Criminal Practice Sentencing – Prior Record Level – Habitual Felon Status – Out-of-State Convictions Upon review of defendant’s prior record level worksheet, it appears that either (1) the trial court counted one or more of defendant’s prior felonies that were used to establish his habitual felon status or (2) the trial court used an out-of-state conviction without requiring the state to prove that defendant’s strangulation in the second-degree conviction was substantially similar to a particular North Carolina felony. Despite defendant’s stipulation to the worksheet, in the latter scenario, defendant could not have properly stipulated to the question of law; in the former scenario, defendant could not have properly stipulated to a prior conviction level calculation that included the felonies used as a predicate for establishing his status as a habitual felon.

We remand for resentencing. State v. Bunting (Lawyers Weekly No. 011-202-21, 12 pp.) (Jeffery Carpenter, J.) Appealed from New Hanover County Superior Court (John Nobles, J.) Mary Maloney for the state; Kimberly Hoppin for defendant. 2021-NCCOA-532

Criminal Practice Search & Seizure – Anders Brief – Body Cam Shut Off – Sentencing – Substantial Assistance Our review of the record shows competent evidence to support the trial court’s denial of defendant’s motion to suppress the fruits of the search of his home. The circumstances of the search reflect that defendant was aware of and cooperating in the search and was on notice of the execution of the warrant. Body cam footage of the warrant execution also shows that the law enforcement officers announced their presence before entering the residence, with defendant standing nearby. Furthermore, the officers executing the search complied with departmental guidelines and directives in turning off their body-worn cameras at the direction of a supervising officer. The trial court properly found that the law enforcement officers did not act in bad faith by turning off their body-worn cameras and that only potentially useful evidence was lost. We find no error in defendant’s convictions of trafficking in opium by possession and possession of a firearm by a felon. Although defense counsel argued that defendant’s sentence should be mitigated due to substantial assistance, the trial court chose to credit defendant with substantial assistance by consolidating the charges set out in one of defendant’s indictments into one offense. The trial court did not err in concluding that defendant’s efforts did not rise to the level of substantial assistance to be applied to multiple offenses.

Dissent

(Murphy, J.): After examining the record, I have identified multiple issues of arguable merit: (1) the application of defendant’s substantial assistance to sentence mitigation under G.S. § 9095(h)(5) and (2) whether law enforcement’s execution of the search warrant violated the notice requirements of G.S. § 15-A-249 when they opened defendant’s storm door and then his main door before announcing their presence. I would remand for the appointment of new appellate counsel to provide briefing on these and any other issues of potential merit, such as ineffective assistance of trial counsel. State v. Robinson (Lawyers Weekly No. 011-203-21, 19 pp.) (John Arrowood, J.) (Hunter Murphy, J., dissenting) Appealed from Guilford County Superior Court (Gregory Hayes, J.) Brenda Rivera for the state; Richard Costanza for defendant. 2021-NCCOA-533

Criminal Practice Probation Revocation – Absconding – Confrontation Right – Unpreserved Error The state presented evidence that (1) knowing he would test positive for marijuana and cocaine, defendant left the probation office without providing a requested sample; (2) thereafter, defendant’s probation officer twice visited defendant’s last known address but could not locate him; and (3) despite messages left with his family mem-

bers, defendant failed to return to the probation office. For a 22-day period, defendant failed to contact or make his whereabouts know to his probation officer, thereby absconding. We affirm the revocation of defendant’s probation; however, we remand for the correction of clerical errors. Defendant failed to preserve for appellate review his argument that his confrontation right was violated when a different probation officer, who was not involved in defendant’s case, testified at defendant’s probation revocation hearing. Defense counsel objected: “I mean, he’s going to read from a file, Judge, from somebody. He’s not even involved in the case, doesn’t know any details about the matter, Judge, and I would object.” The trial court overruled the objection. Defendant did not state that the legal basis for his objection was his statutory confrontation right, nor was that ground apparent from context. Defendant did not request to cross examine his own probation officer (Phillips), did not request Phillips’ presence at the hearing, and did not ask that Phillips be subpoenaed and required to testify. At most, it could be inferred that defendant objected to witness Locus testifying because Locus did not have personal knowledge of the underlying events, and because Locus’s reading from Phillips’ case notes constituted inadmissible hearsay. Defendant’s objection was insufficient to trigger the trial court’s obligation under G.S. § 15A-1345(e) to either permit cross-examination of Phillips or find good cause for disallowing confrontation. Under these circumstances, defendant has failed to preserve for appellate review the issue of his right to confrontation under § 15A-1345(e). State v. Thorne (Lawyers Weekly No. 011-204-21, 12 pp.) (Allegra Collins, J.) Appealed from Nash County Superior Court (Quentin Sumner, J.) Kyle Peterson for the state; Gilda Rodriguez for defendant. 2021-NCCOA-534

N.C. COURT OF APPEALS, UNPUBLISHED

Criminal Practice Juvenile – Constitutional – Mother’s Intervention – Unpreserved – Therapy Notes -- Failure to Admit Juvenile “John” argues that his Fifth Amendment right to remain silent was violated when a police detective was impermissibly allowed to imply on cross-examination that he would have confessed to sexual assault had his mother not stopped the police interview. Although G.S. § 7B-2405 guarantees juveniles most of the rights afforded to adult offenders, we are not convinced that John’s constitutional claim is automatically preserved by statutory mandate. Since defense counsel did not object and raise a constitutional argument at the time the detective commented on John’s mother’s decision to stop the police interview, this issue is not preserved on appeal. We affirm the adjudication of delinquency. Once victim “Leah” denied having made a prior inconsistent statement to her therapist (i.e., that both John and another boy had sexually assaulted her), the trial court properly denied John’s motion to admit extrinsic evidence—the therapist’s notes—into evidence. Because the therapist was not called

to testify, her notes were not admissible under the medical diagnosis or treatment exception to the rule against hearsay. It is unclear whether the notes are a verbatim reproduction of Leah’s statements or paraphrased summations of a conversation in treatment. In fact, without the therapist’s testimony, it is unclear as to whether Leah’s statements were made for the purposes of diagnosis and treatment relating to the sexual assault. This court has conducted an in camera review of the therapist’s notes. Defense counsel had an opportunity to review the records and call the therapist to testify, but he declined to do so. Accordingly, the trial court did not abuse its discretion by excluding the therapy records and limiting defense counsel’s cross-examination of Leah. John contends that, during closing arguments, the state twice improperly commented on his decision to proceed to adjudication rather than admit responsibility. He argues this was in violation of his due process right to plead not responsible to the offense charged. Defense counsel did not object to the state’s closing argument at the adjudication hearing. Assuming that the state’s comments were improper, the trial court was presumed to have disregarded improper evidence. Absent an affirmative indication on the record that the prosecutor’s statements caused the trial court to adjudicate John responsible for the offense charged, the juvenile has not demonstrated prejudice. The trial court did not commit reversible error by failing to intervene ex mero motu. Affirmed. In re J.A.H. (Lawyers Weekly No. 012-286-21, 15 pp.) (Fred Gore, J.) Appealed from Iredell County District Court (Carole Hicks, J.) Vanessa Totten for the state; Aaron Thomas Johnson for the juvenile. 2021-NCCOA-464

Domestic Relations Equitable Distribution – Valuation & Distribution – Undistributed Assets & Debt The trial court’s equitable distribution order says the parties stipulated that their real property and their vineyard business could be classified, valued and distributed together; however, there is no evidence of a written stipulation in the record. Plaintiff’s counsel made a representation that the assets would be dealt with together, but the trial court made no inquiry into the parties’ understanding of the terms of any such agreement, and it is clear that the husband, who was proceeding pro se, did not understand the terms or legal effects of such an agreement. The trial court’s conclusion based on counsel’s representation was an abuse of discretion, and the trial court should have valued and distributed the real property and the vineyard business separately. The equitable distribution order is affirmed in part, vacated in part, and remanded. Although the finding of fact specific to the valuation of the parties’ real property and vineyard does not state the date of the valuation, the order elsewhere refers to “the date of valuation of marital property.” According to G.S. § 50-21, the date of valuation of marital property is the date of separation. There is no evidence in the record to rebut the presumption that the trial court properly applied the law; therefore, the trial court made a finding of fact as to the value of the property at the date of separation. The trial court distributed half of a

18 / OPINION DIGESTS retirement pension to the wife but did not distribute the other half of the pension. We remand with instructions to include half of the pension on the list of assets awarded to the husband. There was testimony about a marital debt owed to John Deere, but the trial court failed to make a finding regarding the value of such debt. We remand for a finding of fact regarding the value of this debt. Zimmerman v. Zimmerman (Lawyers Weekly No. 012-287-21, 25 pp.) (Hunter Murphy, J.) Appealed from Randolph County District Court (Scott Etheridge, J.) Thomas Robins for plaintiff; Rebecca Perry for defendant. 2021-NCCOA-485

Although the girlfriend’s testimony could support an inference that defendant was unaware of the firearm in the glove box, a reasonable jury could have found defendant had knowledge of the firearm in the glove box and thus constructively possessed it. The trial court did not err in denying defendant’s motion to dismiss. We find no error in defendant’s conviction for possession of a firearm by a felon. State v. McKoy (Lawyers Weekly No. 012-289-21, 11 pp.) (April Wood, J.) Appealed from Duplin County Superior Court (William Bland, J.) Scott Stroud for the state; Jarvis John Edgerton for defendant. 2021-NCCOA-478

Administrative

Tort/Negligence

Judicial Review – Pleading Requirements – Licensing – Professional Counselor

Medical Malpractice & Administrative Negligence – Expert Testimony – Shoulder Brace in Surgery

The respondent-board revoked petitioner’s professional counseling license after determining that he had (1) sexually assaulted patient “Ms. S.,” (2) employed cognitive behavioral therapy to treat Ms. S. when he was not competent to do so, and (3) failed to develop a counseling plan for Ms. S. Although petitioner timely filed his petition for judicial review, the petition failed to invoke the subject matter jurisdiction of the superior court because it did not satisfy the requirements of G.S. § 150B46; that is, it neither challenged specific findings or conclusions as unsupported nor identified any particular conduct or determination as arbitrary or capricious. We overturn the superior court’s reversal of the board’s decision. We remand for reinstatement of the board’s decision.

In addition to her medical malpractice claims, plaintiff brought claims of administrative negligence against the defendant-hospital system concerning the training, procedures and protocols for the use of a shoulder brace in laparoscopic surgery. Given the evolution of plaintiff’s administrative claims and based on our review of the lengthy trial transcript, we are unable to engage in meaningful appellate review of the trial court’s gatekeeping role with respect to its exclusion of plaintiff’s proposed expert: Kevin Moore, a lawyer with experience in hospital administration. We remand this matter with instructions for the trial court to conduct a hearing at which plaintiff identifies the particular administrative claims she seeks to pursue and the trial court determines whether each claim concerns clinical care or clinical decisionmaking—thus requiring expert testimony from a medical professional—or instead concerns only administrative matters suited for expert testimony from a hospital administrator. The court can then assess whether Moore is qualified under N.C. R. Evid. 702 to offer expert testimony with respect to any of those claims. If the trial court determines that Moore is not qualified under Rule 702 to testify to the standard of care for any of plaintiff’s purported administrative claims, the court’s existing judgment on these claims can stand. If the court determines that Moore is qualified to testify with respect to any of these claims, the court should set aside its judgment with respect to those claims under N.C. R. Civ. P. 54(b) and conduct further proceedings. Plaintiff alleged that she suffered a shoulder injury during a laparoscopic hysterectomy. Her surgery began with the table tilted with plaintiff’s head at the lower end. During surgery, plaintiff unexpectedly slid downward on the table. A member of the surgical team caught and supported plaintiff’s head while attempting to level the table. Eventually, the team secured plaintiff with a shoulder brace that is used to perform robotic surgery on similarly positioned patients. The trial court declined to allow plaintiff to introduce evidence of the hospital’s policies and practices for the use of shoulder braces in robotics surgery. Shoulder braces are regularly used from the beginning of robotic operations but not in non-robotic laparoscopic surgery. The trial court did not abuse its discretion when it determined that the probative value of the hospital’s policies and practices for the use of shoulder braces during robotic surgery

Concurrence

(Dietz, J.): I believe the petition raises specific exceptions sufficient to confer jurisdiction on the superior court, particularly with respect to petitioner’s failure to demonstrate competence in cognitive behavioral therapy. However, I acknowledge that our case law consistently has taken a strict view of the relevant pleading requirement and has described it as a jurisdictional one. Were we to reach the merits, I would conclude that the board’s findings are supported by substantial evidence and that the board’s resulting decision is not arbitrary or capricious. McCarter v. North Carolina Board of Licensed Professional Counselors (Lawyers Weekly No. 012-288-21, 13 pp.) (Lucy Inman, J.) (Richard Dietz, J., concurring) Appealed from Gaston County Superior Court (Daniel Kuehnert, J.) Ann Rowe and Jason Walters for petitioner; Alesia Balshakova for respondent. 2021-NCCOA-467

Criminal Practice Possession of a Firearm by a Felon – Constructive Possession – Girlfriend’s Car – Glove Compartment Defendant’s girlfriend testified that she was the owner of a lawfully purchased firearm, she placed the firearm in the glove box of her rented vehicle, and defendant was not at home when she did so. The state’s evidence showed that defendant drove his girlfriend’s rental car, defendant was seen reaching towards the passenger side of the vehicle while fleeing from police, and defendant was found on the passenger side of the car with the doors locked.

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was substantially outweighed by the risk of confusion and unfair prejudice. Affirmed in part, remanded in part. Smith v. Novant Health, Inc. (Lawyers Weekly No. 012-290-21, 9 pp.) (Richard Dietz, J.) Appealed from Forsyth County Superior Court (David Hall, J.) Jerome Trehy for plaintiff; Tamura Coffey, Dennis Dorsey, Elizabeth Horton, Linda Helms and Gray Wilson for defendants. 2021-NCCOA-468

Criminal Practice Jury Instructions – Lesser Included Offense – No Plain Error – Constructive Possession Although more than 64 grams of methamphetamine was also found in the car, the defendant-passenger only admitted that she knew about a smaller amount found in a black tin can in the trunk of the vehicle. Since the contents of that container were not tested, there was no analysis done to verify the weight of the contents of the tin can, and the jury could have found defendant to be in possession of less than 28 grams. Therefore, the trial court erred in failing to instruct the jury on the lesser-included offense of possession of methamphetamine. Nevertheless, defendant did not request an instruction on the lesserincluded offense, and she has failed to show a reasonable possibility that the jury would have selected the lesserincluded offense if properly instructed. Though the jury found her guilty of the lesser offense when instructed on both felony and misdemeanor maintaining a vehicle, this conviction means the jury recognized that defendant was aware of a high probability that the vehicle’s driver was using her car to transport methamphetamine. In addition, defendant told a deputy that she had traveled with the driver to pick up methamphetamine and they were to deliver it to an unknown address. While defendant contends she only made these statements because the driver instructed her to do so, and while she testified that she was only in the car because the driver promised to take her to the hospital, defendant’s testimony revealed that she had been in the car for more than 12 hours without visiting a hospital. Even if the jury had been properly instructed, it cannot be said that the jury probably would have reached a different result. We find no plain error in defendant’s convictions for trafficking in methamphetamine by possession and trafficking in methamphetamine by transportation. We remand for correction of a clerical error. State v. Hernandez (Lawyers Weekly No. 012-291-21, 13 pp.) (Darren Jackson, J.) Appealed from Lincoln County Superior Court (Todd Pomeroy, J.) Scott Conklin for the state; Drew Nelson for defendant. 2021-NCCOA-475

Criminal Practice Attorney’s Fee – Civil Judgment – Opportunity to Be Heard Where the state concedes that there is no evidence defendant was given an opportunity to be heard regarding civil judgments requiring him to pay $8,531.25 in attorney fees and expenses and a $60 attorney appointment fee, defendant is entitled to a new hearing on the matter. We vacate the civil judgments and remand for a hearing, allowing defen-

dant an opportunity to be heard. State v. Allen (Lawyers Weekly No. 012-292-21, 2 pp.) (Chris Dillon, J.) Appealed from Avery County Superior Court (Peter Knight, J.) Kari Johnson for the state; Guy Loranger for defendant. 2021-NCCOA-470

Criminal Practice Serious Injury – Pocketknife Stab Wound – Spontaneous Statements Using his pocketknife, defendant inflicted a two-inch stab wound in the victim’s back. The evidence showed that the wound was “dripping blood” when law enforcement officers arrived on the scene; in addition, the victim required treatment at the emergency department of a hospital, and she remained there for approximately seven hours. Because the state presented evidence that the victim sustained a physical injury as a result of an assault by defendant, it was for the jury to determine the question of whether the injury was serious. We find no error in defendant’s conviction for assault with a deadly weapon inflicting serious injury. The state presented evidence that, while riding in a sheriff’s department vehicle, defendant made spontaneous statements to the effect that (1) he had warned the victim to be out of town because he didn’t want her to ruin his birthday, (2) he “stab[bed] that bitch because she wouldn’t listen like she should have,” and (3) if his mother and sister hadn’t been in his car when law enforcement officers stopped him, he would’ve provoked a fight with the officers because “he told himself that he would never go back to jail and would have to be killed before ever going back.” The first two statements were relevant to show the ill will between him and the victim and make it more likely that he assaulted her. The third statement was relevant because it suggests an acknowledgment of guilt of the assault of the victim. Furthermore, the statements were not unduly prejudicial in light of other evidence such as the testimony of the victim and an eyewitness, defendant’s confession to stabbing the victim with his pocketknife, and the testimony of law enforcement officers and an emergency physician regarding the victim’s injury. We cannot say the trial court abused its discretion in admitting the statements into evidence. No error. State v. Chamberlin (Lawyers Weekly No. 012-293-21, 15 pp.) (Valerie Zachary, J.) Appealed from Lee County Superior Court (Keith Gregory, J.) Keith Clayton for the state; Kimberly Hoppin for defendant. 2021-NCCOA-472

Criminal Practice Attorneys – Impugning Counsel’s Character – Brief Comment There is no reasonable possibility that a prosecutor’s declaration that the premise of defense counsel’s question was “completely false” affected the outcome of defendant’s trial. We find no error in defendant’s convictions for statutory sexual offense with a child 15 years old or younger and taking indecent liberties with a child. Defense counsel objected when the prosecutor cross-examined defendant’s wife about Adderall’s use as an aphrodisiac and her earlier testimony that Adderall made it difficult for defendant

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I Octo ber 11, 2021

to maintain an erection. The trial court sustained defense counsel’s objections. Then, on redirect, defense counsel asked the wife if she was aware that a side effect of Adderall is erectile dysfunction. The prosecutor interjected, “Judge, that is completely false. And I would like to know where you get that information from. As an officer of the court, that is a complete mischaracterization.” The trial court sustained the state’s objection and, when defense counsel said, “Your Honor, I have…”, the court interrupted to say “Sustained” again before defense counsel said “nothing further.” The prosecutor’s comments were limited to a single instance, and defense counsel later told the judge he “was kind of somewhat offended…” The record does not suggest that this single incident undermined defense counsel’s ability to provide effective representation. Defendant also argues that the judge’s interruption “impliedly sanctioned” the prosecutor’s comments. However, as the trial judge explained, defense counsel had objected to a similar line of questioning and the trial court sustained those similar objections. The trial court’s singular act of sustaining an objection did not, in any perceptible or even minute way, amount to an improper comment upon the evidence. Defendant has not shown that the prosecutor’s comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair. The trial court did not abuse its discretion by failing to intervene ex mero motu in response to the prosecutor’s comments regarding defense counsel. No error. State v. Davis (Lawyers Weekly No. 012-294-21, 9 pp.) (Jefferson Griffin, J.) Appealed from New Hanover County Superior Court (James Carmical, J.) Narcisa Woods for the state; James Glover for defendant. 2021-NCCOA-473

Criminal Practice Jailhouse Calls – Child Abuse & Assault – Fatally Defective Warrant There was ample evidence in the record from which the jury could determine that defendant had fled to New York: (1) when a Child Protective Services worker met defendant at the door of his home to investigate the abuse of defendant’s girlfriend’s two-year-old son, defendant gave CPS a false name; (2) defendant’s girlfriend testified that it was defendant’s idea to move to New York together after the child abuse investigation started; (3) defendant traveled to New York only a few days after being interviewed by CPS about the potential abuse; and (4) defendant knew an investigation was underway when he left for New York. Given this other evidence, the trial court did not plainly err when it admitted into evidence a recorded jailhouse phone call in which defendant’s father called him a “flight risk.” We find no error in defendant’s conviction for felonious child abuse. We vacate defendant’s conviction for assault on a child under 12 years old. The phone call recording also included defendant’s father’s statements that defendant had “hit rock bottom” and needed “to turn his life around.” These statements were offered to provide context for defendant’s admissible statements during the conversation. The father’s statements are not so prejudicial otherwise that their admission

probably affected the jury’s verdict. During a recorded call, defendant asked his father how he should plead if he were guilty. His father asked defendant if he were guilty, and defendant replied, “I don’t want to say too much over this phone if it’s recorded.” Defendant contends that his refusal to tell his father whether he did nor did not commit the crimes charged should not have been played for the jury because defendant’s sole means of communication were the recorded phone calls and his statements cannot be considered voluntary admissions implied by silence. However, defendant was not compelled to accept calls from or make calls to his father by jailhouse phone. He knew he was speaking over a recorded line. The state did not coerce defendant’s father to ask his son whether he was guilty. Furthermore, defendant testified that there were actually “many calls” that were not played for the jury in which he expressly denied guilt. Thus, defendant cannot now credibly claim that he was involuntarily forced to avoid directly denying guilt to his father. Defendant’s refusal to deny his guilt was properly admitted into evidence for consideration by the jury. However, the warrant for assault on a child under 12 years old alleged only that defendant “unlawfully and willfully did assault [N.D.B] a child 2 YEARS OF AGE [sic] and thus under twelve years of age, by THE CHILD PRESENTS BRUISING AND CONTUSIONS TO THE FACE, WHICH RESULTED IN WHAT IS COMMONLY REFERRED TO AS A BLACK EYE.” The indictment fails to allege that defendant overtly acted or applied some force to the child. Therefore, the warrant was fatally defective, and the trial court lacked subject matter jurisdiction to try defendant on this charge. No error in part; vacated in part. State v. Schmidt (Lawyers Weekly No. 012-295-21, 13 pp.) (Lucy Inman, J.) Appealed from Randolph County Superior Court (Kevin Bridges, J.) Chris Agosto Carreiro for the state; Michael Spivey for defendant. 2021-NCCOA-482

Criminal Practice Murder – Self-Defense – Texted Threats – Aggressor Even though the victim had texted threats, including a photo of a firearm, to defendant’s girlfriend, these alleged threats were sent days or weeks before the incident in which defendant’s girlfriend saw the victim’s car disabled on the side of a road and stopped her car, and defendant (her passenger) took his girlfriend’s baseball bat out of the backseat of her car; struck the unarmed victim in the ribs, causing him to go down without fighting back; and then hit the victim in the head four times, fatally injuring him. Defendant has not shown that he was in reasonable and immediate fear for his safety, so he was not entitled to a jury instruction on selfdefense. We find no error in defendant’s conviction of first-degree murder. Although defendant argues that he believed the victim was armed with a firearm, video of the incident, captured by defendant’s girlfriend, made clear that the object the victim was holding was not a firearm. Additionally, when asked if he had seen “anyone with a gun there that night,” defendant testified that he had not. Defendant’s own claim that he thought the victim was reaching for a weapon is not sufficient

in and of itself to entitle him to a jury instruction on self-defense. Furthermore, as defendant was clearly the aggressor, he was not entitled to an instruction on self-defense. Finally, even if defendant actually feared for his safety, the force he used was more than was required to neutralize any threat presented by the victim. On impact of defendant’s first swing, the victim fell to the ground was immobilized. As such, the following strikes to the victim’s head, which resulted in his death, were excessive. Even if the trial court erred in failing to instruct the jury on voluntary or involuntary manslaughter, the error was not prejudicial because the trial court submitted to the jury possible verdicts of first-degree murder, second-degree murder, and not guilty. When a trial court submits to the jury the possible verdicts of first-degree murder based on premeditation and deliberation, second-degree murder, and not guilty, a verdict of first-degree murder based on premeditation and deliberation renders harmless the trial court’s improper failure to submit voluntary or involuntary manslaughter. No error. State v. Peterson (Lawyers Weekly No. 012-296-21, 7 pp.) (Chris Dillon, J.) Appealed from Pender County Superior Court (Frank Jones, J.) Marc Bernstein for the state; Leslie Rawls for defendant. 2021-NCCOA-481

Criminal Practice Civil Judgment – Attorney’s Fees – Clerical Error or Inadequate Colloquy Where the trial court (1) announced that costs—including $2,715 in fees for defendant’s court-appointed counsel— “are to be waived,” (2) entered an order remitting costs and fees in which the court stated that those fees “are hereby waived,” but (3) entered a written judgment indicating that a money judgment for the $2,715 in attorney’s fees “shall be entered and filed this day,” the court cannot be certain that the money judgment was a clerical error, as the state argues. We vacate this portion of the trial court’s judgment and remand. If the trial court committed a clerical error, it may reenter the judgment with the appropriate boxed marked on the judgment form. If the court intended to enter a money judgment for the fees of defendant’s court-appointed counsel, the court should conduct further proceedings consistent with State v. Friend, 257 N.C. App. 516, 809 S.E.2d 902 (2018), before entering that judgment. State v. Allamadani (Lawyers Weekly No. 012-297-21, 5 pp.) (Richard Dietz, J.) Appealed from Guilford County Superior Court (John Craig, J.) Joseph Hyde and Robert Ennis for the state; Drew Nelson for defendant. 2021-NCCOA-469

Criminal Practice Sentencing – Concurrent or Consecutive – Judge’s Discretion – Local Facility & DAC The record shows that the trial court mistakenly believed that it could not run defendant’s 120-day DWI sentence—which must be served in local confinement—concurrently with his 51 to 74-month sentence for speeding to elude arrest and attaining habitual-felon status, which was to be served in the Division of Adult Correction. Given that the trial court retains the discretion to determine whether to impose concur-

rent or consecutive sentences and that nothing in the relevant statutes requires that a sentence served in a local confinement facility run consecutively to a sentence served in the Division of Adult Correction, we conclude that the trial court erred by failing to exercise its discretion in the erroneous belief that it had no discretion as to whether to order that defendant’s sentences run consecutively or concurrently. We vacate the judgments and remand for a new sentencing hearing. However, we find no error in the trial court’s denial of defendant’s motion to dismiss the charge of speeding to elude arrest. Defendant argues that the state failed to show he had an intent to elude the deputy who attempted to stop his car. Defendant contends the evidence supports a reasonable conclusion that he was merely traveling to his residence at the end of a dead-end road. Defendant also maintains that the state did not present evidence of excessive speed or other maneuvers to lose the deputy and avoid apprehension. Nonetheless, viewed in the light most favorable to the state, the evidence tends to show that defendant saw the deputy in his rearview mirror; “threw his hands up in the air”; did not pull over in response to the deputy’s light, sirens, or orders to do so; and traveled approximately three-quarters of a mile, while swerving, to his residence, where he was apprehended. This evidence supports a reasonable inference that defendant intended to elude arrest. State v. Shuford (Lawyers Weekly No. 012-298-21, 14 pp.) (Valerie Zachary, J.) Appealed from Catawba County Superior Court (Karen Eady-Williams, J.) Elizabeth Curran O’Brien for the state; Gilda Rodriguez for defendant. 2021-NCCOA-483

Criminal Practice MAR – Constitutional – Ineffective Assistance Claim – Guilty Plea – Partial Recantation Even if some of trial counsel’s decisions were questionable—not interviewing witnesses, not reviewing voice stress tests performed on the complainant, not challenging the state’s recitation of facts to clarify to the trial court that defendant was not charged on a recanted allegation of improper touching—since, at defendant’s plea hearing, the state and the trial court openly acknowledged the fact that the complainant had made attempts to recant, and since her videorecorded interview only recanted the last, and uncharged, of three alleged improper touching incidents, the MAR court could conclude that defendant had failed to establish that but for counsel’s alleged errors, defendant would not have pleaded guilty and would have insisted on going to trial. Indeed, the evidence tends to reflect that defendant admitted his own actual guilt in open court when tendering his plea and that his primary goal in accepting a scripted plea agreement was to avoid prison, which he was provided the opportunity to do through a probationary sentence. We affirm the trial court’s denial of defendant’s motion for appropriate relief. State v. Herr (Lawyers Weekly No. 012-299-21, 25 pp.) (Toby Hampson, J.) Appealed from Rockingham County Superior Court (Edwin Wilson, J.) Sherri Horner Lawrence for the state; Christine Mumma and Guy Loranger for defendant. 2021-NCCOA-476

20 / OPINION DIGESTS // NEWS Criminal Practice Impartial Trial – Unpreserved Error – Contradictory & Repetitive Testimony In a kidnapping and statutory rape trial that took place years after the incident, we decline to exercise our discretion under N.C. R. App. P. 2 to consider the merits of defendant’s unpreserved arguments that the trial court erred when it interrupted the cross-examination of two prosecution witnesses, one of whom kept contradicting herself and her daughter (the victim) about the timing of events and the other of whom was being cross-examined about the contents of a videorecording that had already been published to the jury. We find no error in defendant’s convictions of first-degree kidnapping, statutory rape, indecent liberties with a child, and attaining habitual felon status. We decline to invoke Rule 2 to review defendant’s argument for structural or constitutional error because he has not shown this to be an exceptional case. The trial judge has wide discretion in controlling the scope of cross-examination, and the trial judge has a duty to question a witness in order to clarify the testimony being

C o nt inu e d f r o m 2 ►

courts have previously ruled public pensions are contractual — all employees must send a set portion of their income to the retirement system — participating in health insurance is voluntary. State law and State Health Plan documents have made clear the benefits could be changed at any time to respond to rein in costs, state Solicitor General Ryan Park said. The threejudge panel noted that the legislature or health plan had changed coverage hundreds of times since the General Assembly first authorized premiumfree benefits in 1981. “We think this case is about democratic governance,” Park told the justices. “It’s about who has the authority to decide how to spend these massive amounts of money that hamper the state’s fiscal planning going forward.” The legal class impacted by the case would include almost all retirees eligible for health coverage as of September 2016. Today, current workers and retirees can still both receive premium-free individual benefits in “70/30” health care plans. Retirees can also participate in a premium-free Medicare Advantage plan. Otherwise, retirees pay this year either $73 or $110 per month for more generous plans. Over 750,000 current and retired government workers and their dependents are now covered under the State Health Plan. A final ruling could come months from now. The Supreme Court almost didn’t hear this case — it wrote in January that five of the seven justices had living or deceased family members who were once state workers or teachers, raising recusal questions that could have left too few justices to rule. But the court decided in August to hear arguments after all because of the case’s significance to citizens, the potential impact to the state’s fiscal condition and the court’s place as a “last resort” venue to resolve legal

given. A trial court also has discretion to limit witness testimony that is unduly repetitive or has the tendency to confuse the jury. Here, the trial court’s statements on the record disclose that it was interrupting the cross-examination of the victim’s mother for all these permissible reasons. And it does not appear the interruption substantively altered the course of the mother’s testimony; despite defendant’s assertions to the contrary, the transcript reveals that the mother continued to give the same flatly contradictory answers following the recess, and her inability to recall particular facts continued after the break in testimony. As to the trial court’s sustaining of its own objection to defense counsel pressing a witness on the details of a recording which had already been published to the jury, we see nothing in the trial court’s statements that likely led the jury to believe the judge was unfairly partial to the state, particularly when this was the sole statement before the jury that defendant identifies as suggestive of bias. Even though there was some confusion about the chain of custody of the clothing the victim wore on the night of the incident, given the victim’s unequivocal identification of her jeans as those delivered to law enforcement

matters. Still, Chief Justice Paul Newby did not participate in deliberations leading to that decision or in oral arguments. No reason was given about why he is recused. The court’s order from January said Newby’s mother is a retired public school and community college teacher.

Biden nominates Dena King for federal prosecutor post WASHINGTON (AP) — President Joe Biden is nominating nine lawyers to run U.S. attorney’s offices across the country, a diverse group of candidates in the latest round of picks for the top law enforcement positions. The nominations, announced by the White House on Sept. 28, are expected to run the federal prosecutors’ offices in Hawaii, Rhode Island, North Carolina, Colorado, Ohio, Vermont and the U.S. Virgin Islands. If confirmed by the U.S. Senate, they would include several historic firsts. Among the nominees is Dena King, who has been in charge of prosecuting violent crime and narcotics cases in the Western District of North Carolina. King is nominated to run the U.S. attorney’s office there and would be the first Black person to hold the position. The candidates were “chosen for their devotion to enforcing the law, their professionalism, their experience and credentials in this field, their dedication to pursuing equal justice for all, and their commitment to the independence of the Department of Justice,” the White House said. The Justice Department’s 93 U.S. attorneys, who are responsible for federal criminal prosecutions in their respective districts, are central to the Biden administration’s efforts to combat violent crime. With the announcement, Biden has now nominated 25 people to serve as U.S. attorneys, positions that have been filled for months by acting U.S. attorneys.

N O R T H C A R O L I N A L A W Y E R S W E E K LY I O c t obe r 11, 2021

and the uncontradicted testimony establishing their delivery from the sheriff’s department to the SBI, the trial court did not abuse its discretion in declining to require a more detailed chain of custody. No error.

Concurrence

(Murphy, J.): The trial court, through its repeated insertions during the cross-examinations of the victim’s mother and a forensic interviewer, deprived the trial of its adversarial nature. The trial court’s insertions, taken together, usurped the role of the prosecutor and constituted structural error. Nevertheless, unpreserved structural error does not provide defendant with the vehicle to obtain a new trial. After a careful review of the record, even in the face of structural error, I decline to exercise Rule 2 discretion to award defendant a new trial as he was not sufficiently prejudiced by this structural error. State v. Joyner (Lawyers Weekly No. 012-300-21, 26 pp.) (Lucy Inman, J.) (Hunter Murphy, J., concurring in part & concurring in result in part) Appealed from Iredell County Superior Court (Lori Hamilton, J.) Margaret Force for the state; Heidi Reiner for defendant. 2021-NCCOA-477

Criminal Practice Probation Revocation – Judge’s Discretion – Consecutive to Concurrent Sentences At one point in defendant’s probation violation hearing, the trial court said that it “cannot change what your sentence was, or will not change that.” Defendant argues the trial court did not realize it had the authority to modify his sentences upon revoking his probation and thus did not consider modification. However, immediately after stating “the court cannot” the trial court indicated it was exercising its discretion by noting it “will not change that.” Even if the trial court had not corrected that one word, the remainder of the hearing demonstrates the trial court’s understanding that it had discretion to modify defendant’s sentences. We conclude that the trial court properly exercised its discretion under G.S. § 15A-1344(d). We affirm the revocation of defendant’s probation. State v. Moore (Lawyers Weekly No. 012-301-21, 4 pp.) (Donna Stroud, C.J.) Appealed from the Superior Court in Gaston County (David Phillips, J.) Yvonne Ricci for the state; Mary McCullers Reece for defendant. 2021-NCCOA-479

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