See Bar exam

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.

NEWS / 7 FAKED CHARGES /

Continued from 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

Continued from 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 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.

Continued from 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 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

Opinions

N.C. SUPREME COURT 8 N.C. COURT OF APPEALS 13 N.C. COURT OF APPEALS UNPUBLISHED 17

N.C. SUPREME COURT

Domestic Relations

Termination of Parental Rights – Suf ciency 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 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 towards 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 termination 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

MEDIATION TRAINING

Approved by the Dispute Resolution Commission and the NC CLE Board!

MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC. MEDIATION, INC.

Superior Court Mediation Training

OCTOBER 25 – 29, 2021 RALEIGH, NC

Superior Court Mediation Training

JANUARY 25 - 29, 2022 CHARLOTTE, NC

Family Financial Mediation Training

FEBRUARY 15 -19, 2022 RALEIGH, NC

Andy Little, Lead Instructor For more information, please contact us at: 1-888-842-6157 or info@MediationIncNC.com Visit our web site at www.MediationIncNC.com

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-

Domestic Relations

Termination of Parental Rights – Neglect – Abandonment – Su ciency 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

More than 60 attorneys have been recognized by the National Academy of Distinguished Neutrals for Excellence in the field of Alternative Dispute Resolution

Steve Dunn Charlotte (888) 305-3553 Jason B. James Charlotte (704) 227-0124 Michael M. Jones Goldsboro (919) 735-8311 J. Anderson Little Raleigh (919) 967-6611 Jeffrey T. Mackie Hickory (828) 328-2596 Charles K. McCotter New Bern (252) 635-1005 Michael McDaniel Raleigh (919) 610-7043 Ralph W. Meekins Shelby (704) 487-1234

Robert A. Meynardie Raleigh (919) 747-7373 Raymond Owens Charlotte (704) 295-4509 Karen Britt Peeler Raleigh (919) 272-7413 T. Alan Pittman Fayetteville (910) 486-0992 W. Lewis Sauls Whiteville (910) 642-6559 James S. Schenck IV Raleigh (919) 789-9242 S. Kent Smith Southern Pines (910) 693-3411

Michael A. Swann Lexington (336) 249-7777 Scott M. Taylor Research Tri. (919) 949-4227 Rene Stemple Trehy Durham (866) 517-0145 Reagan H. Weaver Raleigh (919) 828-0363 Barbara B. Weyher Raleigh (919) 835-0900

For a FULL roster of ADR attorneys and to check AVAILABLE DATES online visit www.NCMediators.org/dateselector and select your case criteria

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 – Su ciency of Evidence – Best Interests Determination

The trial court properly found grounds for termination of parental rights where parent’s refusal to acknowledge 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-

NORTH CAROLINA LAWYERS WEEKLY I October 11, 2021 INSPIRE THE PROFESSION. INNOVATE THE PRACTICE. IMPACT THE WORLD.

At Liberty University School of Law, we provide unparalleled skills training to produce practice-ready graduates who will become lawyers of distinction. We promote a culture that cultivates both integrity and high ethical standards to ensure our graduates are ready to lead in their communities.

ree consecutive years of high bar passage rate for first-time takers:

95%

(2018)

92%

(2019)

92%

(July-Oct. 2020)

LawCareer@liberty.edu (434) 592-6068 Liberty.edu/Law /LibertyUniversityLaw

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 quali cations of character and tness 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 noti ed 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 1

James R. Gilreath, Jr. - Chair L. Phillip Hornthal, III Paddison P. Hudspeth Gail E. Malone L. Phillip Hornthal, Ill William Jason Waughtel

OISTRICT 2

Richard S. James - Chair

OISTRICT 3

David W. Silver - Chair Donalt J. Eglington

DISTRICT 5

H. W. Sandy Sanderson, Jr. - Chair

DISTRICT 6

Henry L. Kitchin, Jr. - Chair Franklin E. Martin Algernon L. Butler, Ill Pastor Dan Lewis

DISTRICT 7

William 0. While, Jr. - Chair

DISTRICT 8

James C. Marrow. Jr. - Chair Allison T. Blogett John R. Keller

DISTRICT 9

John P. Marshall - Chair D. Stuart Lindley Donald E. Clark, Jr. Matthew S. Sullivan

DISTRICT 10

Reed N. Fountain - Chair Lisa LeFante Atiya M. Mosley Nan E. Hannah Nancy L. Grace Teandra M. Miller John R. Szymankiewicz Michelle A. Liguori Dana H. Hoffman Brian 0. Beverly Justin G. Truesdale Alexander M. Bowling Shawn P. Parker J. Miles Wobbleton William R. Robinson David J. Fussell Robert E. Duggins Jeffrey R. Whittle S. Blake Leger Christie A. Hartinger Paul J. Puryear Daniel K. Tracey Alexander M. Pearce Alexandra L. Coggins Jennifer M. Hall Hannah A. Combs Daniel J. Palmieri Charles George Jack R. Magee Jonathan A. Greene K. Christopher Poe Lorna A Knick Meryl M. Murtagh Stephanie Gumm Brett A. Carpenter 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. Huf nes 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 Satter eld 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. Grif n 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

dents had willfully placed the children in foster care for more than 12 months without showing reasonable progress towards reunifi cation.

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 fi nding 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 affi rm the trial court’s judgment. We fi nd 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 fi nd 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 testifi ed that adoption had been identifi ed as the children’s primary plan but the only barrier to that plan was respondents’ parental rights. We also fi nd no evidence that Greg’s psychological issues posed a indefi nite barrier to his adoption and affi rm the trial court’s conclusion that it was highly likely he would be adopted.

Affi rmed.

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 – Su ciency of Findings

Termination of parental rights was in error where trial court failed to make detailed fi ndings of fact in support of fi nding grounds for termination.

We vacate and remand the termination of respondent’s parental rights due to the insuffi ciency of the trial court’s factual fi ndings 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 fi nancial 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 fi ndings made by the trial court were too sparce to support concluding that grounds of willful abandonment existed to terminate respondent’s parental rights. Specifi cally, we fi nd that the trial court’s fi ndings failed to ad-

Nelson Mullins welcomes

Greg McGuire in Raleigh

Nelson Mullins welcomes

Joshua Walthall in Raleigh

Joshua is an experienced trial attorney who brings a professional licensing background to the Raleigh o ce, representing lawyers, physicians, nurses, dentists, land surveyors, engineers, real estate agents, accountants, and other professionals in legal proceedings before administrative licensing boards. Joining after nearly a decade as a prosecutor at the North Carolina State Bar, he assists clients in navigating issues related to highly regulated professions, including the unauthorized practice of law and issues before the Board of Law Examiners. Joshua also provides confidential, practical advice to lawyers and law firms facing professional ethics dilemmas, including Bar or criminal investigations, employee theft, unfair competition and business practices, firm dissolutions, and other risk management.

Nelson Mullins Riley & Scarborough LLP

Attorneys & Counselors at Law nelsonmullins.com GlenLake One | 4140 Parklake Avenue Suite 200 | Raleigh, NC 27612 919.329.3800

The Raleigh O ce of Nelson Mullins is pleased to announce that former North Carolina Business Court Judge Greg McGuire has joined its practice, and that Judge McGuire has been certified as a Superior Court Mediator by the North Carolina Dispute Resolution Commission. Greg most recently served for almost seven years as a trial judge on the North Carolina Business Court for Complex Business Cases. Prior to taking the bench, McGuire practiced for over 26 years as a litigator, most recently for a large, multinational law firm. Greg will focus his practice in the areas of litigation of business matters, employment law, and other complex civil litigation. You can reach Greg at greg.mcguire@nelsonmullins.com or 919.329.3887.

WE WOULD LIKE TO WELCOME ATTORNEY T.R. COOK, IV

TO OUR FIRM

CRIMINAL DEFENSE | PERSONAL INJURY DEFENSE | CIVIL MATTERS

NEW BERN 225-C Broad Street Post Office Box 550 New Bern, NC 28563

MOREHEAD CITY 810 Arendell Street Morehead City, NC 28557

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 – Su ciency 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

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.

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

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 regarding 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 O ender – 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-

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

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

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 agreement 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

Child Support – Paternity – Appellate Jurisdiction

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 § 49- 14(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 A ections & 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

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 fi nal 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 plaintiff; 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 fi red 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-

LAWYER TO LAWYER / Directory

Your business partner. Tough Times Require

Trusted Lawyers • All Chapters of Bankruptcy • Alternatives to Bankruptcies • All Chapters of Bankruptcy • Receiverships • Alternatives to Bankruptcies • Receiverships

Medical Services for Legal Practices

Workers Compensation Personal Injury Functional Restoration Program Functional Capacity Evaluations Independent Medical Evaluations Injury Consultations

COMMERCIAL & CONSTRUCTION LITIGATION

John P. Marshall

106 S. McLewean Street P.O. Box 3169 Kinston, NC 28502-3169 252.527.8000 x245 Fax: 252.527.8128 jmarshall@whiteandallen.com

Helping People Is What We Do.

Mesothelioma & Lung Cancer Serious Personal Injury Tractor Trailer Collisions Workers’ Compensation Defective Medical Devices Harmful Drugs & Products Medical Malpractice

We are always grateful for referrals and value our co-counsel relationships. Call John Alan Jones or Forest Horne to discuss a possible relationship at (800) 662-1234. All inquiries held in the strictest confidence.

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 De-

partment 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’ – Speci c Bequests & Residuary Bene ciaries

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. Cor-

kum (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

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

[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 O – 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 members, 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

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

Administrative

Judicial Review – Pleading Requirements – Licensing – Professional Counselor

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.

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. 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

Tort/Negligence

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

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 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 defendant 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

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 concurrent 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 – Ine ective 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

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 fi nd no error in defendant’s convictions of fi rst-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 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 fl atly 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 identifi es 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 identifi cation of her jeans as those delivered to law enforcement 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 suffi ciently 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 modifi cation. 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 affi rm 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

Continued from 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 benefi ts 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 fi rst authorized premiumfree benefi ts 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 fi scal 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 benefi ts 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 fi nal ruling could come months from now. The Supreme Court almost didn’t hear this case — it wrote in January that fi ve 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 signifi cance to citizens, the potential impact to the state’s fi scal condition and the court’s place as a “last resort” venue to resolve legal 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 offi ces 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’ offi ces in Hawaii, Rhode Island, North Carolina, Colorado, Ohio, Vermont and the U.S. Virgin Islands. If confi rmed by the U.S. Senate, they would include several historic fi rsts.

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 offi ce there and would be the fi rst 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 fi eld, 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 fi lled for months by acting U.S. attorneys.