North Carolina Lawyers Weekly November 8, 2021

NCLAWYERSWEEKLY.COM Part of the

VOLUME 33 NUMBER 48 ■

network

NOVEMBER 8, 2021 ■ $8.50

Claims against owners not a conflict for company’s lawyers

TIGHT JOB

MARKET PUTS FIRMS IN SCRAMBLE

■ BY CORREY E. STEPHENSON BridgeTower Media Newswires

Like the proverbial rose that grew from the crack in the concrete, the legal industry continues to demonstrate its resilience.

Not long ago, the profession had developed a reputation for being a barren job market saturated with attorneys, especially for young associates. But backed by evidence of healthy hiring and recruiting practices, many in the industry are saying that the sun is starting to shine again.

“2021 has been a strong year for a lot of law firms and legal departments, and we will continue to see the rise in 2022, as well,” said Nikki Green, founder of the legal recruiting firm Ave Staffing in Raleigh, which helps staff law firms and fill in-house positions with attorneys in nearly all practice areas.

Green said that clients’ demands this year are significantly higher than last year’s, and lawyers with three to five years of experience in litigation, real estate, family law, trust and estates, intellectual property, business, and employment law are at the top of her clients’ wish lists.

Rosario Canales, the firm’s digital marketing specialist, said that clients

A single law firm may simultaneously represent both a corporation and its individual directors who are alleged to have engaged in wrongful conduct against the corporation, a North Carolina Business Court judge has ruled in a matter of first impression, denying a motion to disqualify the law firm.

Cherry Oil Company owns and operates a propane and refined fuel distribution operation, and the company and its affiliates have been owned and managed by members of the extended family since it was founded in 1928.

Today, Jay and Ann Cherry together own and control approximately 66 percent of Cherry Oil’s shares, while Jay’s sister, Louise Cherry Mauck, and her husband, Armistead Mauck, own the rest. Jay serves as chair of the board and president of the company, while the Maucks both serve as officers.

In 2007, Jay and Ann’s son, Jason Cherry, joined Cherry Oil as an employee. The Maucks expressed concern about his job performance and alleged that Jay and Ann acted in concert to divide the extended family in order to consolidate control for their benefit and the benefit of Jason.

After unsuccessfully demanding that the company take action regarding their concerns about Jay and Ann’s behavior, the Maucks filed a complaint against Cherry Oil, Jay, and Ann seeking the removal of Jay and Ann as directors, the dissolution of Cherry Oil, and alleged breach of fiduciary duty and constructive fraud. They subsequently filed an amended complaint

See Job market Page 6 ►

S e e Co n f l i c t P a g e 6 ►

■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com

Elements of crime couldn’t be aggravating factors ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com The North Carolina Court of Appeals has vacated the sentence of a man who pleaded guilty to felony death by motor vehicle, finding that the trial court erroneously used elements of the crime to support the aggravating factors used in his sentencing.

Barrod Heggs killed another motorist when he crashed into their vehicle at nearly 100 mph in February 2018. Heggs admitted to police that he was driving, and his blood alcohol level was above the

legal limit. Witnesses said that Heggs was driving erratically and didn’t decelerate prior to the crash, according to court records.

In exchange for the state’s promise to not pursue second-degree murder charges, Heggs pleaded guilty to felony death by motor vehicle and stipulated to three aggravating factors: knowingly creating a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person, being armed with a deadly weapon at the time of the crime, and causing serious injury that is permanent and debilitating.

Since felony death by motor vehicle is a Class D felony and Heggs had no prior felony convictions, the presumptive range for his sentence was 51 to 64 months. Finding the existence of three aggravating factors, Wake County Superior Court Judge A. Graham Shirley sentenced Heggs in the aggravated range. Prison records show that Heggs is serving between 75 and 102 months. Heggs argued before the appeals court, which heard the case on certiorari, that because the three aggravating factors to which he See Elements Page 5 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

$12.5M settlement for two minors injured in car crash

Roadside crash leads to $3.25M settlement

Dealership to pay $1M to motorcyclist hurt in hit-and-run

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2 / NEWS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

NEWS BRIEFS COA to lift attendance restrictions on oral arguments The North Carolina Court of Appeals is lifting restrictions on public attendance at in-person oral arguments, the court has announced.

The court resumed holding in-person oral arguments in August, but for public health reasons has limited attendance to parties and attorneys directly involved in cases being argued.

But the Court said that it will now lift those restrictions as well, effective Nov. 15.

“We are glad to welcome members of the public back to the Court,” Chief Judge Donna Stroud said in an Oct. 29 press release. “While the Court is now open for in-person oral arguments, we will continue to record and livestream all arguments online so that members of the public, wherever they are in the state, can view and listen to the Court’s proceedings. We are pleased to continue offering this service, as we consider it to be a major improvement to public access to the Court.”

The court will also continue its use of Webex hearings in certain circumstances when requested by a party and granted by the court, and those hearings will also continue to be available online to the public.

Staff reports

Braddy to lead N.C. Assoc. of District Judges Pitt County Chief District Court Judge G. Galen Braddy will serve as president of the North Carolina Association of District Court Judges, selected by the association’s membership during its fall convention on Oct. 20-22.

Braddy, a Beaufort County native, will preside on the Board of Governors during his one-year term, according to a press release from the North Carolina Judicial Branch.

Braddy has served as a district court judge since he was appointed by former Gov. Jim Hunt in 2000, and as chief district judge since 2018. He also serves on the Board of Criminal Justice Information Network and chairs the Family Court Advisory Committee.

In partnership with the University of North Carolina School of Government, the association holds annual conferences to provide district judges with continuing legal education on topics including updates on domestic law, criminal law, and juvenile law.

Conferences also cover other legal and administrative topics that are of interest to district court judges.

Staff reports

Durham attorney confirmed for key USDOJ post The U.S. Senate has confirmed the nomination of a Durham attorney to serve as the Assistant Attorney General for the Office of Legal Policy.

Hampton Dellinger is a former deputy attorney general in the North Carolina Department of Justice and served as chief legal counsel in the governor’s office from 2001-2003, where his responsibilities included overseeing the judicial appointment process.

Dellinger is also a former partner at Boies Schiller Flexner who has

devoted a significant amount of time to pro bono matters including representing an international coalition of women’s soccer players challenging gender discrimination at the 2015 World Cup. The Office of Legal Policy develops and implements the DOJ’s significant policy initiatives, handles special projects that span multiple DOJ offices, coordinates with those offices and other executive branch agencies, serves as the primary policy advisor to the Attorney General and Deputy Attorney General, reviews and coordinates all regulations proposed by the DOJ, and assists with the judicial, selection nomination, and confirmation process.

The Senate confirmed Dellinger by a 53-37 vote on Oct. 28, one of four attorneys nominated by President Joe Biden that were confirmed to fill highlevel DOJ posts that day.

Staff reports

Former hospital executive wins $10M in discrimination case CHARLOTTE (AP) — A former top executive in a North Carolina-based health care system who claimed in a lawsuit that he lost his job because he is a white male was awarded $10 million by a federal jury on Oct. 26.

In his 2019 lawsuit, David Duvall said he lost his job as senior vice president of marketing and communication at Novant Health due to efforts to diversify top leadership positions.

The jury said Novant Health failed to prove that it would have dismissed Duvall regardless of his race.

There was no indication of whether the company would appeal the verdict, which came at the end of a weeklong trial.

Duvall said in his lawsuit that he was fired in 2018 without warning or explanation shortly before his fifth anniversary with the company. He said he was replaced by two women, one Black and one white. Duvall, who worked in Mecklenburg County, accused Novant of violating Title VII of the Civil Rights Act, which prohibits race and gender discrimination in the workplace.

NC voter ID debate clouded by call for justices’ recusal RALEIGH (AP) — One of several legal challenges to North Carolina’s contentious voter ID law is on hold amid a dispute over whether two justices on the state Supreme Court — one the son of arguably the state’s most powerful Republican politician — should recuse themselves.

The state NAACP’s request that Phil Berger Jr. and ex-Sen. Tamara Barringer be disqualified further clouds the future of photo voter ID requirements in one of the numerous Republican-dominated states where lawmakers have sought them, often successfully.

In some states, the laws have been blocked by voters and civil rights groups who have argued that they disproportionately harm Black voters. In addition to the Supreme Court case, two other lawsuits challenging North Carolina’s current law are pending in state and federal courts. Federal judges already struck down a previous version of the law that Republicans approved in 2013 and implemented

BAR DISCIPLINE

ROUNDUP Attorney: Daniel S. Rufty Location: Charlotte Bar membership: Member since 2017 Disciplinary action: Censured on Aug. 25 Background: Rufty associated with Babbs Law Firm, an out-of-state law firm not authorized to practice law in North Carolina, and aided the firm in falsely holding itself out to North Carolina residents as being able to provide legal representation, debt relief assistance, and other services. During this time, Rufty failed to maintain entrusted client funds in accordance with the Rules of Professional Conduct, aided others in the unauthorized practice of law, failed to supervise his assistants in their handling of entrusted funds, permitted Babbs Law Firm to hold those entrusted funds in a bank that was not eligible to hold them, and failed to communicate with Babbs Law Firm’s North Carolina clients prior to their retaining the firm.

Previous discipline: Ruf t y was suspended from the practice of law for five years on April 8, with the provision that after six months he may apply for a stay of the remaining portion of the suspension. Shortly after graduating from Charlotte School of Law, Rufty

briefly.

The case now before the Supreme Court began in 2018 when the NAACP challenged two amendments to the state constitution put on ballots by the Republican-controlled General Assembly and later approved by voters: the photo ID mandate and a separate provision to reduce the cap on income tax rates.

A trial judge struck down the amendments in 2019, declaring that since many legislators were illegitimately elected from what were previously declared as racially biased districts, they lacked the power to put the questions on the ballot. But an appeals court overturned that decision in 2020, sending the case to the Supreme Court.

The high court was scheduled to hear arguments in the case in August but paused the proceedings after the NAACP requested that Berger and Barringer step down.

Berger’s father is Republican state Senate leader Phil Berger, who is a named defendant in the NAACP’s lawsuit seeking to overturn the photo ID legislation. When Barringer was a lawmaker, she voted in favor of holding the referendum on the voter ID amendment. Both justices joined the court in January after winning statewide elections.

“I would have no confidence that either Berger or Barringer would/could decide the issues in the case fairly,” said James Coleman, a Duke University law school professor not involved in the litigation. “My expectation is that they will vote their party’s position on the issues, regardless of how persuasive the other side is.”

But Republicans who oppose any recusal say removing the two justices from the decision — there is no one to replace them — would automatically sway the court in favor of voiding the voter ID law. Registered Democrats currently hold a 4-3 advantage on the court, with Barringer and Berger being two of the three Republicans.

“The attempt to disqualify them

agreed to become the in-name-only owner of a law firm, 97 percent of whose profits would be distributed to out-ofstate attorneys. During his time with the firm, Rufty was engaged in the practice of debt adjusting while employed by a debt adjuster, which is a misdemeanor in North Carolina; permitted non-lawyers to provide legal services to North Carolina residents, thereby aiding others in the unauthorized practice of law; and allowed a portion of his fees to be paid to those non-lawyers. Rufty also falsely told clients that their legal services would be provided by North Carolina attorneys, f ail e d to sup er v is e no n - law yer employees of the firm, failed to reasonably consult with clients, made numerous false representations to the Grievance Committee in response to a letter of notice, failed to appear at his clients’ hearings and arbitrations and failed to file responsive pleadings on their behalf, and failed to supervise the handling of entrusted funds or deposit those entrusted funds in a trust account.

All information contained in the Bar Discipline Roundup is compiled and edited

by Lawyers Weekly editor-in-chief David Donovan. He can be reached at david. donovan@nclawyersweekly.com.

from hearing cases the voters elected them to hear is a subversion of the will of the people and an insult to every informed voter,” House Speaker Tim Moore, who is also named as a defendant in the NAACP lawsuit, wrote in a recent letter to the editor.

Martin Warf, an attorney representing Moore and the elder Berger, stressed that Berger is a defendant only in his official capacity — he must be named when a lawsuit challenges a law’s constitutionality. And as far as Barringer is concerned, case law has established that being a former legislator who voted on a challenged law isn’t by itself grounds for removal, Warf said.

The state judicial conduct code says judges should disqualify themselves, when asked by a legal party, if they have “personal knowledge of disputed evidentiary facts” or if the judge’s nearrelative is “a party to the proceeding.”

The code requires disqualification “even if they are in fact impartial and capable of presiding fairly over the matter before them,” NAACP attorney Kym Hunter wrote in July.

Recusal requests aren’t uncommon when attorneys worry a justice’s family or financial connections could influence the outcome or leave that impression. The named justice usually decides on the request. Recusal denials for an individual justice have been issued by the full court on extremely rare occasions.

What was unusual in this case is that before either justice indicated publicly whether they would step down, the full state Supreme Court last month asked lawyers on both sides of the lawsuit to submit briefs on more than 20 questions related to the issue. Those briefs are due next week.

“It’s not uncommon for the court to ask for additional briefing on a legal question,” said Bob Edmunds, a North Carolina Supreme Court justice for 16 years through 2016. But a request for so much information on recusals, he See Page 3 ►

NEWS / 3

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Novem ber 8, 2021

$12.5M settlement for two minors injured in car crash ■ BY DAVID DONOVAN david.donovan@nclawyersweekly.com The guardians of two children who suffered severe injuries as a result of an automobile accident have reached a partial settlement for $12.5 million, their attorneys report.

Fred DeVore and Bill Acton of DeVore, Acton & Stafford in Charlotte report that one of the children suffered an upper cervical fracture that required a fusion to the base of her skull, while the other suffered quadriplegia from his injuries.

Many of the details of the case, including the location and nature of the accident, the names of the plaintiffs, and the names of the defendants and their attorneys were withheld pursuant to a confidentiality agreement.

DeVore said that the case reached a partial settlement last spring through mediation. In preparation of the mediation, the plaintiffs engaged two life care planners, an economist, and a life expectancy expert, among other experts.

An engineered animated recreation of the accident was helpful in analyzing liability, and use of body cam footage from the first responders to the accident scene aided in locating witnesses and identifying the resting position of the vehicles, DeVore said.

A day-in-the-life documentary Fred DeVore produced in preparation for mediation included interviews with the children’s mother and therapists, and counsel also conducted several focus groups, including several virtual focus groups, to assist them in preparing the case.

As a result of the settlement, the attorneys were able to create trusts to provide immediate and Bill Acton future care for the children.

“This is a case where both sides worked diligently and cooperatively to reach this

SETTLEMENT REPORT – MOTOR VEHICLE CRASH

Amount: $12.5 million Injuries alleged: Upper cervical fracture requiring a fusion to the base of the skull of one minor child, quadriplegia of another minor child Case name: Confidential Court: Confidential Date of settlement: Spring of 2021 Attorneys for plaintiffs: Fred DeVore and Bill Acton of DeVore, Acton & Stafford in Charlotte Attorneys for defendants: Withheld partial resolution of this matter, with the needs of the children being the focus of the negotiations,” DeVore said.

DeVore said that a case against one remaining defendant is still pending.

Follow David Donovan on Twitter @NCLWDonovan

Roadside crash leads to $3.25M settlement ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com The estate of a woman who was killed as she sat in her disabled car has settled its wrongful death suit for $3.25 million, the estate’s attorney reports.

Mark Gray II of Gray Legal Group in Greensboro reports that the victim was on her way home from work one early afternoon when her sedan broke down in the right lane of Interstate 40. As she sat in her vehicle with her blinkers on, a tanker being operated by a young driver ran over her vehicle, Gray said. She survived for 11 days before succumbMark Gray ing to her injuries.

“The young mother left behind a young son who will inherit her estate but will also never get to truly experience the love of his mother,” Gray said.

Pursuant to a confidentiality agreement, many details of the case, including names of the parties and venue, have been withheld.

Gray said that defense counsel had initially contested the tanker driver’s liability and raised the defense of contributory negligence until the investigation—which included eyewitnesses, subpoenas of the local police department, and expert opinions— proved otherwise.

The case was settled prior to any lawsuit being filed. The settlement was approved (because the beneficiary is a minor) by Judge James Hill in October.

Follow Heath Hamacher on Twitter @NCLWHamacher

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $3.25 million Injuries alleged: Death Case name: Case settled before any suit was filed Venue: Confidential Date of settlement: October 2021 Most helpful experts: Steve Farlow (engineer and accident reconstruction analyst) Attorney for plaintiff: Mark Gray II of Gray Legal Group in Greensboro Attorneys for defendant: Withheld

$700K settlement for girl injured by truck driver ■ BY DAVID BAUGHER A Brunswick County girl will receive a $700,000 settlement after a crash in the town of Winnabow that left her with significant injuries, the family’s attorney reports.

Bradley Coxe of Hodges Coxe & Potter in Wilmington reports that 10-year-old Soleda Sanchez Enriques was a rear-seat passenger in the van being driven by her mother when the defendant, James Lee Sheppard, struck the van from behind with his truck.

Coxe said that while several people were in the van, his young client was hurt the most, suffering fractures to the leg and skull resulting in vision and cognitive issues. Coxe Bradley Coxe said that the case centered on a variety of matters, from liability to extent of injury to potential coverage issues.

“I don’t think there was a dispute as far as the orthopedic stuff, the fracture in the femur. She had surgery and that was repaired,” Coxe said.

But there was greater pushback on any potential cognitive issues, with experts on each side opining on the matter. Coxe said the defense also made intervening negligence argu-

C o nt inu e d f r o m 2 ►

added, “is something that I have not observed before.”

The one that got the most attention: “Does this court have the authority to require the involuntary recusal of a justice who does not believe that selfrecusal is appropriate?”

The inquiry raises the possibility that one or both of the justices indicated that they would not recuse themselves.

Neither responded to a request for com-

ments, and neither driver recalled seeing the other before impact.

“There were some timing issues as to how soon after he should have seen her that he hit her and did he have time to stop?” Coxe said.

Other issues in the case revolved around insurance. The defendant’s employer, ABS Southeast LLC, which was also named in the suit, had a general policy with a $1 million limit that covered any employee using the truck with permission, something ABS claimed Sheppard didn’t have when he took the vehicle home the previous night.

“Our contention was that he, according to his testimony, had permission and they knew he had the truck and he had done it before,” Coxe said. “His boss lived the next block over.”

An excess insurance policy was also in force at the time, but Coxe said that it only covered workers in the course and scope of their employment.

The company’s insurer ultimately paid nearly all of the $700,000 mediated settlement, with Sheppard’s personal insurance contributing $5,000.

Spencer Beard and Walt Rapp of McAngus Goudelock & Courie in Wilmington represented Sheppard. Allen Smith and Courtney Rudolph of Hedrick Gardner Kincheloe & Garofalo in Charlotte represented ABS. The attorneys declined to comment on the settlement.

ment that The Associated Press asked a court spokesperson to pass along to them.

The briefing order “makes the court seem dysfunctional” and creates the appearance that justices “aren’t working together in the normal collegial way,” said Jon Guze, a legal expert for the right-leaning John Locke Foundation.

Some states including Michigan, Mississippi and Texas, empower fellow justices to disqualify a colleague who

SETTLEMENT REPORT – MOTOR VEHICLE WRECK

Amount: $700,000 Injuries alleged: Fracture of right leg, skull fracture causing vision and cognitive problems Case name: Soleda Sanchez Enriques by guardian ad litem D. Stuart Smith; Pedro Sanchez Abanozz v. James Lee Sheppard; ABS Southeast LLC dba Carolina Building Court: Brunswick County Superior Court Case No.: 19-CVS-2328 Mediator: H. Mark Hamlet Date of settlement: Sept. 13 Most helpful experts: Antonio E. Puente of Wilmington (neuropsychology) and Mays Antoine El-Dairi of Durham (neuro-ophthalmology) Insurance carrier: Federated Mutual Insurance Company for employer and Permanent General Assurance Corporation of Ohio for driver Attorney for plaintiff: Bradley Coxe of Hodges, Coxe & Potter of Wilmington Attorneys for defendants: Spencer Beard and Walt Rapp of McAngus Goudelock & Courie in Wilmington for driver and Allen Smith and Courtney Rudolph of Hedrick Gardner Kincheloe & Garofalo in Charlotte for employer

declines to step down, according to the National Council for State Courts. But Guze said he fears disqualifications will become retaliatory and commonplace in North Carolina should Berger or Barringer be removed against their will.

Three former North Carolina chief justices — two elected as Democrats and one as a Republican — wrote in an op-ed recently that recusal decisions during their tenures were made by the jurist identified because “only the indi-

vidual justice can examine her or his conscience.”

“Only the seven members of our Supreme Court can determine whether this should remain the policy on recusal and disqualification,” ex-Chief Justices Jim Exum, Burley Mitchell and Mark Martin wrote. “We trust our successors to resolve this difficult question in a way that promotes fundamental fairness, protects the integrity of our judiciary, and, above all else, preserves the rule of law.”

4 / NEWS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

Clients are like any consumer: they want to feel appreciated ■ BY CHRISTOPHER F. EARLEY BridgeTower Media Newswires

“I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.”

— Maya Angelou

The number one reason lawyers receive ethical complaints is for not communicating with their clients. But while regular and consistent communication may avoid ethical problems, more is needed in order to truly “wow” clients.

One of the core values of my firm is to provide clients with the very best client service we can possibly provide.

To me, this is of absolute critical importance. We approach this through a variety of ways that focus on one singular objective: consistently showing clients they are valued and appreciated.

The very start of the representation is a great time to impress the client and set the tone (and eliminate any type of “buyer’s regret”). Each new client receives a telephone call welcoming them, as well as a welcome card in the mail.

The team member assigned then will call the client every three weeks.

The call must be documented in our case management software. If it is not documented, the call never happened.

Even if we have nothing new to report, we still call clients every three weeks. Clients appreciate this, and moreover, it substantially reduces the likelihood that a client would ever complain that we are not communicating enough.

But calling is not enough. When the clients are called, they need to be asked how they are and shown genuine empathy. They need to be asked about their family. Truly listening to the clients and what they are saying is really important.

If we learn the client has had a big life event (birth of a child, job promotion, graduation, etc.) we send a handwritten card congratulating the client. If there has been a death in our client’s family, we send a handwritten sympathy card. We want our clients to know we listen to them and care about them, and this in turn creates a strong and meaningful emotional connection.

We further contact clients through regular, automated drip emails that are intended to enter the conversa-

tion going on in the client’s head and proactively answer the questions the client may be thinking about. This is an automated process that requires no physical work on our part and provides another channel of communication with clients.

We conclude the case with a thankyou card to the client. Then, we call the client each year on his or her birthday, and also send out a birthday card each year. If the client refers a client to us, we immediately send the client a handwritten thank-you card showing our appreciation for the referral.

Most clients are easy and don’t expect very much. But still, go above and beyond for them anyway. If you do that, they will love you and will always remember the way you made them feel.

At the end of the day, the practice of law is a business like any other business involving consumers paying for a service. Consumers want and need to feel valued and appreciated, so give them that. Everything else to them is secondary.

Christopher F. Earley is a Boston attorney and author who concentrates his practice on the representation of the seriously injured and their families.

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What exactly is emotional intelligence?

Well, it’s complicated.

■ BY KAREN NATZEL BridgeTower Media Newswires We often equate emotional intelligence (EQ) with empathy—the ability to be aware of, understand, be sensitive to, and vicariously experience the feelings, thoughts and experiences of another. While truly a demonstration of high EQ, and a powerful way to connect and build relationship, simply “turning on” one’s empathy won’t attain the full depth and value of one’s emotional repertoire. First, empathy is more complex than that, and second, strength in EQ requires deep, personal work. To raise EQ, one must start with self-awareness.

Daniel Goleman, a thought leader of emotional intelligence, provides a good framework for understanding what it is and why it is so compelling, speaking to both personal and social competencies.

Personal competency

Starting with an inward look, personal EQ is being able to name your emotions (preferably as you are experiencing them), understanding their triggers, choosing a healthy and appropriate way to respond, making an honest assessment of your strengths and areas for growth, and understanding what motivates you.

Knowing what motivates you can help you create the necessary circumstances to thrive. Goleman speaks to how motivation taps into one’s achievement drive, commitment, initiative-taking readiness, and optimism to persist. Collectively, this affords us a stronger sense of self-worth and efficacy. High EQ is also a necessity for healthy stress management

and personal accountability.

EQ can help you identify when your emotional tank is running low— i.e., tired, stressed, anxious, in a funk, or languishing. Naming these emotional states is the first step in making a conscious choice in how you manage your work, your energy and your relationships.

Social competency

This is where the complexity of empathy comes in. When integrated into how you show up, empathy helps you understand, support and develop others. It can program one’s thinking into an anticipatory, service-oriented mindset—expanding the ability to be inclusive and raising awareness of the emotional currents and dynamics in groups (i.e., the ability to read a room).

Research speaks to two kinds of empathy: affective—sensations and feelings we get in response to others’ emotions—and cognitive (“perspective-taking”)—identifying and understanding people’s emotions. With affective empathy you are mirroring the emotions of others in such a way that you experience an identical resonance. That means you actually feel what the other person is feeling – often absorbing someone’s delight, enthusiasm, hopes, stress, anxiety, and fear. In this way, emotions can be contagious.

Beneficial empathy requires boundaries so you don’t become entangled in another person’s emotional state. The invitation is to step into a “witness position”—being fully present to hear the story without judgment of trying to fix it, and simply allowing the person to be seen and

heard in a heartfelt, safe space, without getting consumed by it.

Compassion fatigue, normally reserved for those on the front lines of caring for others who are suffering, has crept into the vernacular of non-health-care professionals. It’s a feeling of running on empty, and it shows up with feelings of anger, dread, exhaustion and hypersensitivity. Boundaries can help us preserve cognitive empathy while fueling our own needs for sustainable care.

Without EQ, we can experience an emotion as “the truth” about something, especially when we have a visceral reaction. A common dynamic at play: we have a difficult emotion and our defenses go up. In that space, we create a story about what is transpiring—making others wrong and protecting ourselves (ego). In a matter of minutes, we have crafted a narrative that we find difficult to surrender. After all, who doesn’t like to be right?

Commonly, when we react with low EQ, we slip into more of a victim head space. We express attitudes and behaviors that are more rigid, we fail to adapt our style, and we have weak relationships, unrealistic goals, an insatiable need for recognition, a preoccupation with appearance, and a relentless, burnout-producing striving mentality.

How many of us have had the experience of blowing up over something minute? Overreacting to a situation?

Feeling frustrated, challenged, and defensive at a meeting? Oftentimes if we are passionate about an issue, uncertain about an outcome, and/or feeling out of control, our emotions

Jason Reckamp, Designer jreckamp@molawyersmedia.com ©2021 BridgeTower Media. Material published in North Carolina Lawyers Weekly is compiled at substantial expense and is for the sole and exclusive use of purchasers and subscribers.

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NEWS / 5

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Novem ber 8, 2021

Jury awards $175K to man hurt by X-ray machine ■ BY DAVID BAUGHER A man who was struck by a mobile X-ray machine in a hospital hallway has obtained a $175,000 judgment from a Johnston County jury.

Ellis Boyle of Knott & Boyle in Raleigh said that his client, Al Gutierrez, was visiting his wife at the WakeMed Raleigh campus when a radiology technician moving the machine— which weighed about 1,200 pounds and had a tower more than 6 feet tall—knocked him to the floor while it was turning from a side hallway into the main hallway.

Elllis Boyle Boyle said Gutierrez, a 69-yearold retired Army helicopter mechanic, suffered significant spinal injuries from the collision, although this was a point of contention because Gutierrez had previously dealt with back troubles.

“He’d actually had some neck surgery, some cervical spine surgery leading up to and in the two years preceding this so we had some preexisting issues,” Boyle said. “But, after this, he suffered new, different and worse back pain in his lower lumbar spine, and he had an MRI taken about two and a

half weeks later that revealed the L4-L5 disc had ruptured.”

Boyle said that that MRI indicated considerably worse injuries than 2012 scan. He said that the defense introduced expert testimony stating that Gutierrez wasn’t as badly hurt as he contended, but Gutierrez’s treating doctor said the injuries went beyond the preexisting problems and were permanent.

The hospital also raised contributory negligence as another defense.

“They basically said that it was Al’s fault and that he was negligent,” Boyle said. “But I don’t think the jury bought that for a second … I think the jury made it clear that they believed Al.” Boyle said that the technician noted in deposition that she had struck Gutierrez from behind but later testified to an impact more from the side.

“We said that even if they had met dead square side-to-side in the middle of the intersection, the radiology technologist said she never saw Al before she hit him and she said that, if she had seen him, she would have stopped and she would not have hit him so we made a ‘last clear chance’ argument,” Boyle said.

Boyle said that jury selection began on Sept. 27,

VERDICT REPORT – PERSONAL INJURY

Amount: $175,000 Injuries alleged: Permanent back pain Case name: Al Gutierrez v. WakeMed Court: Johnston County Superior Court Case No.: 18 CVS 4053 Judge: Becky Holt Date of verdict: Oct. 5 Highest offer: $60,000 Most helpful experts: Dr. Chris Brown of Raleigh (spine surgery) Attorney for plaintiff: Ellis Boyle of Knott & Boyle in Raleigh Attorneys for defendant: Elizabeth Hedrick and Jeffrey Whitley of Fox Rothschild in Raleigh and the jury received the case late in the day on Oct. 4 and delivered its verdict just before 5 p.m. on Oct. 5.

Elizabeth Hedrick and Jeffrey Whitley of Fox Rothschild in Raleigh represented WakeMed. They did not return a request for comment.

Dealership to pay $1M to motorcyclist hurt in hit-and-run ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com A motorcyclist who was rear-ended in a hit-andrun wreck on Interstate 85 has agreed to a $1M settlement with a used car dealership after evidence strongly implicated a dealership employee who was never charged in connection with the crash, his attorneys report.

T. Shawn Howard and Karl Gwaltney of Maginnis Howard in Raleigh report that the impact of the crash sent their client flying from his motorcycle, landing him in the emergency room, where he underwent a lower back surgery. (Many details of the case, including the names of the parties and the venue, have been withheld pursuant to a confidentiality agreement.)

The client later required a second surgery, his attorneys said, and the injuries will affect him for the rest of his life.

The attorneys said that after the at-fault driver struck their client, he removed his car’s license plate and fled the scene on foot without providing assistance or calling for help. Law enforcement used the vehicle identification number to trace the car to a nearby used car dealership. After being contacted about the crash, the dealership claimed that it didn’t know that the vehicle was missing from its lot.

“The dealership indicated that an unknown per-

son must have come to the dealership and stole the vehicle, as every employee denied using it,” the attorneys said.

During depositions, the plaintiff’s attorneys learned that a particular manager/owner at the dealership was responsible for the vehicle and had primary access to its keys.

T. Shawn The attorneys said that the crash Howard site was directly on the manager’s route home from the dealership, and cell tower data showed that he’d stopped within a two-mile radius of the scene of the wreck, at the time of the wreck, and remained there for several hours.

The attorneys said that the manager claimed that he’d gone straight Karl Gwaltney home after work that day and had nothing to do with the wreck and disputed the claim that his phone had pinpointed his location. He also testified to having had at least four convictions for driving while intoxicated.

“He testified that his wife just happened to destroy his phone on the night of the incident because she caught him talking to his mistress,” the attorneys said.

SETTLEMENT REPORT — MOTOR VEHICLE CRASH

Amount: $1 million Injuries alleged: Lower back injuries including multiple fractures and herniated discs requiring two surgeries Case name: Withheld Court: Withheld Date of settlement: Oct. 21 Special damages: $385,000 Most helpful experts: Ben Levitan (telecommunications expert) Insurance carrier: Withheld Attorneys for plaintiff: T. Shawn Howard and Karl Gwaltney of Maginnis Howard in Raleigh Attorneys for defendant: Withheld Law enforcement closed the case without identifying a driver, the attorneys said, but the dealership paid its $1 million policy limit prior to a hearing on the plaintiff’s motion to amend the complaint to add a claim against the manager.

Follow Heath Hamacher on Twitter @NCLWHamacher

ELEMENTS / Entire plea bargain has to be vacated C o nt inu e d f r o m 1 ►

stipulated were supported by the same evidence that supported the elements of his crime, the trial court shouldn’t have used them to enhance his sentence.

Judge Jefferson Griffin, writing for the court in its unanimous Oct. 19 opinion, agreed with Heggs on two of three factors disputed. Because impaired driving is an essential element of felony death by motor vehicle, evi-

dence that Heggs was driving a vehicle couldn’t be used as an aggravated factor, Griffin wrote. And evidence that the victim suffered permanent and debilitating serious injury couldn’t be an aggravating factor because such an injury—death, in this case—was also an essential element of the crime.

The judges did agree with the trial court’s finding that creating a great risk of death to more than one person isn’t a required element of felony

death by motor vehicle.

The court concluded that it was bound by precedent to vacate the sentence, at a minimum. In its 1983 ruling in State v. Ahearn, the state’s Supreme Court held that every case in which a judge imposes a sentence beyond the presumptive term after erroneously finding aggravating factors must be remanded for a new sentencing.

Because Heggs stipulated to the existence of the aggravating factors

in his plea agreement with the State and sought to repudiate that part of the agreement, the court was also required to vacate the plea agreement and remand for a new disposition rather than remand for a new sentencing, Griffin court.

While a court need find only one aggravated factor to issue a sentence within the aggravated range, the apSee Page 6 ►

EQ / How to manage emotions in a more productive manner C o nt inu e d f r o m 4 ►

are more explosive. If we understand the root causes, we can manage emotions in a more honest and productive manner. If we can own the reason we overreacted to an email—perhaps it was not exactly about the subject, but more about our fears of making a mistake or frustrations of not feeling appreciated or respected or (insert real trigger here)—then we can begin the

deeper emotional work that brings mastery and equanimity.

Empathy is also demonstrated in the adeptness of gaining a desirable response in others. This does not mean posturing or manipulating, however. It means doing the deeper work to influence, inspire, communicate, lead, change, strengthen connections, and collaborate. When empathy is used as a tool to simply get what you want, you break the bond of trust.

Simon Sinek explains that effective leadership isn’t so much about taking charge, but rather about “taking care of the people in your charge.”

How will you raise your EQ?

Research indicates that empathy is rooted in our brains and our bodies, making this an evolutionary human journey—and the first step in taking compassionate action—for ourselves and others. Compassion,

according to Merriam-Webster, is a “sympathetic consciousness of (our and) others’ distress together with a desire to alleviate it.” Learning how to be compassionate in an empowering, respectful and caring way is the key to bringing joy to your role and transformation to your workplace.

Karen Natzel is a business therapist who helps leaders create healthy, vibrant and high-performing organizations.

6 / NEWS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

CONFLICT /

JOB MARKET / C o nt inu e d f r o m 1 ►

open positions and boost retention.”

C o nt inu e d f r o m 1 ►

are bouncing back from a disappointing 2020 often through creative means.

“To stay competitive a lot of employers have broadened their staffing efforts to seek talent in other regions, especially for remote roles,” Canales said.

“Legal departments use legal contractors/consultants in order to meet their teams’ increasing demands.”

What works now

adding derivative claims against Jay and Ann for gross negligence and willful misconduct, breach of fiduciary duty, and constructive fraud.

Attorneys from Womble Bond Dickinson—who’d already appeared on behalf of Jay and Ann—entered an appearance on behalf of Cherry Oil. The Maucks moved to disqualify the firm, arguing that concurrent representation of the corporation and the individual defendants created an irresolvable conflict of interest because of the derivative claims filed against Jay and Ann. Special Superior Court Judge for Complex Business Cases Mark A. Davis disagreed, denying the motion.

“The allegations primarily represent a disagreement with the way the company is currently being run and a concern that plaintiffs’ role in the corporation is being improperly diminished,” Davis wrote. “The court is of the view that such allegations do not amount to the type of corporate ‘self-dealing’ that would make dual representation of Cherry Oil and the Cherrys impossible.”

Remote possibilities

The legal field was dramatically— possibly permanently—changed by a pandemic that forced it to adapt to new ways of doing business. Remote work was instituted out of necessity but it’s now likely here to stay and has created for many a new perspective on lawyering, cultivating a desire for greater work/life balance and altering goals.

Landing the job with the highest possible earning potential still remains an important objective for many attorneys, but now more attorneys are telling employers that they have different priorities when choosing whether to join a new law firm. Many firms have accordingly seen an increase in demand for flexible work schedules and remote work options, Green said.

In the spirit of putting clients before themselves, even firms with the most traditional values have kept open minds.

Poyner Spruill managing partner Dan Cahill said that his firm still believes in the value of in-person interaction— walking down the hall for a colleague’s advice or mentoring younger attorneys face-to-face—but that new norms have allowed them to think more broadly, particularly in geographic scope.

“If someone is willing to come to one of our offices one or two days a week, we can consider a talented lawyer where we don’t have an office,” Cahill said. “in Asheville, in Greensboro, in WinstonSalem, in Wilmington.”

Some firms have been willing to look even further afield, as another upshot of the rise in remote work is that the market for legal talent is increasing a national one. Recruiters in many parts of the country are seeing unusually tight job markets like what’s being seen in North Carolina.

“In the fall of 2020, we started an amazing uptick in searches, and it’s been increasing every month,” said a recruiter who heads the in-house counsel recruiting division at Major, Lindsey & Africa in Boston. “I know we have never seen it this busy.”

Lawyering from afar may not be ideal from everyone’s perspective, but Canales said that employers should be aware that it is an attractive perk being offered by competitors.

“Currently the work schedule most preferred by professionals is two days in the office and three days remote,” Canales said. “Offering flexibility can potentially attract better talent for

C o nt inu e d f r o m 5 ►

peals court cited its 2012 decision in State v. Rico, which held that “the entire plea agreement” must be vacated where a defendant looks to repudiate the portion in which he stipulates to an aggravating factor.

“Were we to remand this matter for resentencing, the trial court would have the discretion to reimpose the same sentence that it originally deemed appropriate,” Griffin wrote.

“The judge would make his sentencing decision based on the same evidentiary presentation, regardless of

Some firms and companies have reported less-than-overwhelming success in hiring ideal candidates, often finding them unavailable or unqualified. But others say that while outstanding talent doesn’t always fall into their laps, they have managed to do quite well recently.

“We attribute it to targeted investment of significant time and intention to diversity and inclusion efforts and expanding where we’re going to meet candidates from our old standard operating procedures, and we’re finding that there are a lot of talented lawyers out there,” said Angela Craddock, a shareholder with Young Moore in Raleigh and chair of the firm’s recruiting and diversity and inclusion committees.

Craddock said that younger lawyers have been a primary target based on the firm’s current needs, and that while the firm has focused its efforts on recent law school graduates and lawyers fresh from clerkships, it has also managed to land some “really talented laterals.”

“I believe we’ve hired attorneys across every single practice area we have,” Craddock said. “The law is busy right now.”

At Poyner Spruill, Cahill said that they look forward to their next perfect hires.

“In a couple of areas, we’ve got so much work that we can’t get it all done,” Cahill said. “We’re sort of doing the rare thing where we are saying, ‘We don’t care if you’re going to bring any work with you, if you’re a good lawyer, we would like to work with you.’”

Sometimes one has to cast a wide net to catch the right fish. Craddock said that hiring success means being open to more ideas and methods, including keeping in contact with law schools, intentionally networking, prominently posting job listings, participating in jobs fairs, and using headhunters or recruiting firms to help for certain hires—the idea is to be as expansive as possible.

Cahill said that his firm leans on an internal employee incentive plan for candidate referrals, and a robust summer associate program that has proven fruitful in terms of building a quality, diverse rank of lawyers who have bought into the firm’s culture, one that requires excellence but offers workability.

In her years of recruiting, Green said that one thing has proven universal for employees of any industry, including the law: They do not enjoy robotic work environments.

“Employees want to feel equal and appreciated,” Green said. “I’ve had candidates that left their roles because they never felt acknowledged despite the years they put into the firms.”

Follow Heath Hamacher on Twitter @NCLWHamacher Pat Murphy contributed to this story. whether the additional factors are found or not.”

Judges John Tyson and Jeff Carpenter concurred in the decision.

Special Deputy Attorney General Neil Dalton represented the state. A. Brennan Aberle of Aberle & Wall in Greensboro represented the defendant. Neither attorney responded to requests for comment.

The 10-page decision is State v.

Heggs (Lawyers Weekly No. 011-21221). The full text of the opinion is available online at nclawyersweekly.com.

Follow Heath Hamacher on Twitter @NCLWHamacher

Rules allow dual representation

The dispute posed the question of whether an attorney can render truly impartial advice to a corporate client if the interests of the individual clients will inevitably be affected by the character of the corporation’s response to the suit.

The Maucks argued that it was impossible, because an attorney cannot represent one client at the same time that it is investigating that client for potential wrongdoing against another client.

Cherry Oil and the individual defendants countered that the motion wasn’t designed to protect the Maucks’ interests, but rather to deprive the defendants of their choice of counsel for strategic reasons.

Recognizing the issue as one of first impression in North Carolina, Davis considered case law from other jurisdictions. Some, including courts in Iowa and Oregon, have ruled that representation by one law firm of both the corporation and its director is categorically impermissible in all but the most frivolous lawsuits.

Others—such as courts in Delaware, Kentucky and Texas—have taken the approach that the interests of the company and its controlling officers or directors are often aligned, and that separate counsel is not necessary unless a divergence of those interests actually arises.

Davis also noted a third line of cases, “to require separate counsel in derivative actions only where serious allegations of fraud or self-dealing have been alleged against individual directors or managers,” found in California, Connecticut, Kansas, New Jersey, Washington and the 3rd U.S. Circuit Court of Appeals.

Adding further insight, Rules 1.7 and 1.13 of North Carolina’s Rules of Professional Conduct, and the comments to those rules, offer guidance on the conflicts of interest that arise with respect to concurrent representation and an attorney’s representation of an organization.

Specifically, Comment 14 to Rule 1.13 states that “if the claim involves serious charges of wrongdoing by those in control of the organization, a conflict may arise between

the lawyer’s duty to the organization and the lawyer’s relationship with the board.”

“The Rules of Professional Conduct do not serve as a categorical bar to dual representation in the derivative action context,” Davis wrote. “Indeed, Comment 14 implicitly suggests that in some derivative actions such dual representation of the organization and its directors can be permissible—that is, in cases where ‘serious charges of wrongdoing’ have not been alleged against those directors.”

‘Bitter family dispute’

North Carolina courts haven’t had the occasion to define what qualifies as “serious charges of wrongdoing” for purposes of Comment 14 to Rule 1.13, Davis said, thus looking to jurisdictions with similar ethical rules for guidance.

In those states, “courts applying this same standard have declined to find that serious charges of wrongdoing had been asserted where the allegations of misconduct merely involved mismanagement or a breach of the duty of care,” Davis wrote.

“In the present case, based on a careful reading of the amended complaint, the court is not persuaded that the allegations contained therein assert ‘serious charges of wrongdoing’ against Jay and Ann as directors of Cherry Oil,” he said.

For example, the allegations of misconduct against the Cherrys include “the undermining and antagonizing of plaintiffs in a juvenile manner; managing the company in a way that is a ‘stark departure from how the business has been run since at least 1995’; the ‘unilateral, counterproductive’ changes to personnel, contact points and operational processes; the unwarranted investigations into the conduct of plaintiffs; and allowing Jason to take charge of areas for which Armistead previously had responsibility.”

“In essence, these allegations reveal a bitter family dispute over the current management and future direction of a family business that – in the eyes of plaintiffs – has resulted (and will continue to result) in damage to Cherry Oil,” Davis wrote.

“But the plaintiffs’ amended complaint is devoid of the sort of allegations of theft, fraud or gross financial conflicts of interest that courts have found sufficient to constitute serious charges of wrongdoing.”

Although the complaint used the term “self-dealing” on multiple occasions, Davis was not persuaded that the supporting allegations actual stated self-dealing in the traditional sense.

Davis did note that Womble Bond Dickinson “remains obligated to fully comply with the Rules of Professional Conduct and to take appropriate steps should a conflict arise in connection with its representation of defendants during the remainder of the litigation.”

Walter Tippett of Brooks Pierce in Raleigh represented the Maucks.

M. Todd Sullivan of Graebe Hanna & Sullivan in Raleigh represented Cherry Oil and Womble Bond Dickinson. Neither responded to a request for comment.

The 20-page decision is Mauck v. Cherry Oil Co. (Lawyers Weekly No. 020-059-21). The full text of the opinion is available online at nclawyersweekly.com.

OPINION DIGESTS / 7

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Novem ber 8, 2021

Opinions N.C. SUPREME COURT

7

N.C. COURT OF APPEALS UNPUBLISHED

N.C. SUPREME COURT

Criminal Practice Multiple Assault Charges – First Impression – Distinct Interruption According to the victim’s testimony, defendant first beat her for two hours while they were inside her parents’ beach trailer. The beating stopped while the couple packed up and got in their car to go home. Defendant then assaulted the victim again during their two-hour drive home. On these facts, the state could charge defendant with two separate assaults.

We direct the trial court to vacate defendant’s conviction for assault on a female and to resentence defendant.

Thus modified, we affirm the Court of Appeals’ decision to uphold defendant’s remaining two assault convictions. On the issue of whether defendant used his hands, feet or teeth as deadly weapons, the members of this court are equally divided. Accordingly, the decision of the Court of Appeals—that defendant used his hands, feet or teeth as deadly weapons—stands without precedential value.

After being charged with five assaults arising out of his beating of the victim, defendant was found guilty of (1) assault with a deadly weapon inflicting serious injury (AWDWISI) resulting in the rupture of the victim’s eardrum, (2) assault on a female in connection with head-butting the victim and (3) AWDWISI resulting in the fracture of the victim’s nose. Our Court of Appeals upheld the three assault convictions.

On a matter of first impression, we are asked to determine what exactly constitutes an assault and how a court may determine whether there is substantial evidence of multiple assaults or only a single assault.

“Assault” is not defined by statute but by common law. This court generally defines the common law offense of assault as an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the

person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm.

We have not found, and the parties have not presented, any evidence or indication that the General Assembly intended for the state to be able to charge someone with a separate assault for every punch thrown in a fight.

Thus, we must look beyond the number of physical contacts with the victim to determine whether more than one assault has occurred such that the state can appropriately charge a defendant with multiple assaults.

In its decisions involving this issue, the Court of Appeals has required that, in order for a criminal defendant to be charged and convicted of two separate counts of assault stemming from one transaction, the evidence must establish a distinct interruption in the original assault followed by a second assault, so that the subsequent assault may be deemed separate and distinct from the first. We agree with the Court of Appeals that the State may charge a defendant with multiple counts of assault only when there is substantial evidence that a distinct interruption occurred between assaults.

Given the differences between the thought processes involved and the broad definition of “assault,” we decline to apply State v. Rambert, 341 N.C. 173 (1995)—in which the firing of three bullets led to three convictions of discharging a firearm into occupied property— to assault cases generally.

Furthermore, the fact that a victim has multiple, distinct injuries alone is not sufficient evidence of a distinct interruption such that a defendant can be charged with multiple counts of assault.

In this case, the victim testified that, after the beating in the trailer, but before defendant began beating her in the car, she wiped down the mattress cover and took the sheets off of the bed, she took their luggage out to the car, and defendant got his daughter off of the couch and put her in the back seat of the car. This is substantial evidence of a distinct interruption between occurrences in the trailer and those in the car. The process of cleaning up and

12 packing up was an intervening event interrupting the momentum of the attack.

In addition, the beating in the trailer was distinct in time and location from the beating in the car.

The jury could have found that there was a distinct interruption between when the first assault concluded with the victim vomiting on the bed and when defendant resumed his attacks in the car during the drive home. Accordingly, we conclude that the jury could find that the beating in the trailer and the beating in the car were distinct assaults.

Two of defendant’s convictions—assault on a female in connection with head-butting the victim and AWDWISI resulting in the fracture of the victim’s nose—arose from the attack in the trailer. Since the state’s evidence showed an ongoing, continuous attack in the trailer, there is substantial evidence of only one assault in the trailer.

On remand, the trial court should vacate the judgment for the assault on a female and enter a new sentence for the remaining offenses.

Affirmed as modified; remanded for resentencing.

State v. Dew (Lawyers Weekly No. 010-117-21, 19 pp.) (Robin Hudson, J.) Appealed from the Superior Court in Carteret County (John Nobles, J.) Wes Saunders for the state; Daniel Shatz for defendant. 2021-NCSC-134

Domestic Relations

Mecklenburg County (Aretha Blake, J.) On appeal from the Court of Appeals.

Huntington Wofford and Rebecca Wofford for plaintiff; Michelle Connell, Tom Bush and Rachel Rogers Hamrick for defendant. 2021-NCSC-128

Tort/Negligence Wrongful Death – Real Property – Developers – Hilly Terrain We improvidently granted discretionary review of the Court of Appeals’ decision (Although the developer of a very hilly subdivision did not have a duty to inspect or monitor the construction site or to take precautions against negligent construction work, plaintiffs may be able to show that the developer had a duty to sequence construction or to conduct mass grading so as to limit the arguably foreseeable risk of equipment roll-aways, such as the one that killed plaintiffs’ five-year-old son.).

Copeland v. Amward Homes of N.C., Inc. (Lawyers Weekly No. 010119-21, 2 pp.) (Per Curiam) Appealed from the Superior Court in Orange County (Osmond Smith, J.) On discretionary review from the Court of Appeals. William Bystrynski, David Kirby, Mark Holt and David Sherlin for plaintiffs; Steven Bader and Marshall Wall for defendants; Jon Ward, Erwin Byrd and David Hawisher for amici curiae. 2021-NCSC-118

Criminal Practice

Parent & Child – Custody – Final Decision-Making Authority – Attorneys’ Fees

Felony Larceny – Evidence of Value – Propane Tank – Gas & Regulators

We affirm the Court of Appeals’ decision (Where the trial court made findings of fact detailing past disagreements between the parties which illustrate their inability to communicate and the effect their contentious communications had on the minor children, the trial court did not err in awarding final decision-making authority to the defendantmother, who also has primary custody.).

Ward v. Halprin (Lawyers Weekly No. 010-118-21, 1 p.) (Per Curiam) Appealed from the District Court in

We affirm the Court of Appeals’ decision (Defendant was indicted for felonious larceny for stealing a propane tank.

Even though the state’s evidence that the tank was worth $1,300 included the values of any gas in the tank and the tank’s regulators, property not mentioned in the indictment, the issue of whether the fuel or regulators pushed the valuation above the $1,000 felony threshold was a question for the jury and did not warrant dismissal.).

State v. Wright (Lawyers Weekly

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8 / OPINION DIGESTS No. 010-120-21, 1 p.) (Per Curiam) Appealed from the Superior Court in Cleveland County (Carla Archie, J.) John Green for the state; Mary McCullers Reece for defendant. 2021NCSC-126

Criminal Practice Sentencing – Out-of-State Conviction – Substantial Similarity – Statutory Rape Even though the Georgia and North Carolina statutory rape statutes are not identical, they are substantially similar within the meaning of G.S. § 15A-1341.14(e).

We affirm the Court of Appeals’ decision to uphold defendant’s sentence, including the assignment of nine prior record points for his 2001 Georgia conviction for statutory rape.

The Georgia statutory rape statute results in a felony conviction if a defendant (1) engages in sexual intercourse (2) with any person (3) under 16 years of age (4) who is not the defendant’s spouse, (5) unless the victim is 14 or 15 years of age and the defendant is no more than three years older than the victim. Ga. Code Ann. § 16-6-3.

North Carolina’s statutory rape statute requires the state to prove that a defendant (1) engaged in vaginal intercourse (2) with another person (3) 15 years of age or younger (4) who is not the defendant’s spouse, (5) provided that the defendant is at least 12 years of age at the time of the offense and (6) at least six years older than the victim to constitute a Class B1 violation of G.S. § 14-27.25(a), and less than six years

N O R T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

older but more than four years older than the victim to constitute a Class C violation of G.S. § 14-27.25(b).

We adopt the determinations made by the Court of Appeals that “whether an out-of-state offense is substantially similar to a North Carolina offense is a question of law,” and “the requirement set forth in N.C. Gen. Stat. § 15A-1340.14(e) is not that the statutory wording precisely match, but rather that the offense be ‘substantially similar.’”

Although Georgia outlaws the statutory rape of a person who is under the age of 16 while North Carolina outlaws the statutory rape of a person who is 15 or younger, we agree with the Court of Appeals that the trial court did not err in finding the two offenses substantially similar. Each statute expressly refers to the act of physical intercourse between the perpetrator and the victim. Both statutes use nearly identical language that the act of physical intercourse is conducted by the perpetrator with another person and that the other person is not the offender’s spouse by virtue of a lawful marriage.

The wording of the statutes does not need to precisely match in order for the offenses to be deemed substantially similar. The dissent confuses “substantially similar” with “identical.”

Our result comports with State v.

Sanders, 367 N.C. 716 (2014). In applying the “comparison of the elements” test articulated in Sanders to the present case, the harmonious determinations of the trial court and the Court of Appeals here are consistent with our view that the Georgia statutory rape offense prohibited by Ga. Code Ann. § 16-6-3 and the North Carolina statu-

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10 / OPINION DIGESTS tory rape offense forbidden by G.S. § 1427.25(a) are substantially similar.

Affirmed.

Dissent

(Earls, J.): An out-of-state statute is not “substantially similar” to a North Carolina statute within the meaning of G.S. § 15A-1340.14(e) if conduct that is proscribed by the out-of-state statute is lawful under the North Carolina statute. The majority decision fails to give fair and clear warning to the public of the consequences of engaging in criminal conduct and construes § 15A1340.14(e) in a way that likely fails to meet constitutional standards for definiteness and clarity.

“Substantially similar” does not mean “identical.” However, a comparison of the elements shows that the Georgia statutory rape statute is not substantially similar to any Class B1 felony under North Carolina law.

State v. Graham (Lawyers Weekly No. 010-121-21, 30 pp.) (Michael Morgan, J.) (Anita Earls, J., joined by Sam Ervin, J., dissenting) Appealed from the Superior Court in Clay County (Eric Levinson & Athena Brooks, JJ.) On discretionary review from the Court of Appeals. Benjamin Zellinger for the state; Daniel Shatz for defendant. 2021NCSC-125

Criminal Practice Lifetime SBM – Search & Seizure – Avenues for Relief Even though defendant will not be subject to satellite-based monitoring (SBM) until he is released from prison many years from now, since he can seek

administrative or judicial review of the trial court’s order of lifetime SBM, the timing of the order’s execution does not violate the Fourth Amendment.

We reverse the Court of Appeals’ reversal of the trial court’s imposition of lifetime SBM.

Timing

The state is not tasked with the responsibility to demonstrate the reasonableness of a search at its effectuation in the future for which the state is bound to apply in the present; rather, the state is tasked under a legislative enactment presumed to be constitutional with the responsibility to demonstrate the reasonableness of a search at its evaluation in the present for which the state is bound to apply for the future effectuation of a search.

Defendant’s dispute about the timing of the reasonableness determination in light of the timing of the actual effectuation of the SBM search, decades later is largely allayed by the civil nature of the penalty imposed upon him.

Our decision here applies to defendant as he is currently assessed, to the law as it is currently applied, and to the search as it is currently adapted. In the event that defendant is subsequently assessed more favorably such that the search becomes unreasonable because defendant is deemed to no longer constitute the threat to public safety that he has been determined to pose at the present time, then he may petition the Post-Release Supervision and Parole Commission for release from the SBM program upon the passage of one year from his release from prison if defendant can show that he has “not received any additional reportable convictions during the period of satellite-based

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monitoring and [he] has substantially complied with the provisions of” the SBM program, and that he is “not likely to pose a threat to the safety of others.”

G.S. § 14-208.43 (2019).

In addition, N.C. R. Civ. P. 60 affords potential relief to defendant from the SBM order, while maintaining deference to the constitutionality of any search effected during the relevant time period. The availability of the application of Rule 60’s provisions effectively preserves the rights of individuals like defendant who are subject to the imposition of lifetime SBM only after a significant duration of time has passed, while protecting the sanctity of the constitutionality of the statutory structure of the SBM program which has been legislatively created. The trial courts of this state are endowed with ample power to vacate judgments whenever such action is appropriate to accomplish justice through the operation of Rule 60(b) (6) and are invited to wield that power in a judicious manner.

The available resources for defendant’s potential relief from the continued imposition of lifetime SBM are sufficient safeguards to protect defendant’s constitutional rights against unreasonable searches, while preserving the constitutionality of the SBM statutory structure which requires the establishment of reasonableness at the mandated time of a defendant’s sentencing hearing when the state’s request for SBM monitoring must be made for a trial court’s consideration.

Reasonableness

It is true that the state gains pervasive access to defendant’s person, home, vehicle, and location through the imposition of lifetime SBM that the state

would not acquire otherwise. In State v.

Grady, 372 N.C. 509 (2019) (Grady III), we noted that such a search impinges upon defendant’s “right to be secure in his person [and] his expectation of privacy in the whole of his physical movements.” However, defendant’s expectation of privacy is diminished by virtue of his status as a convicted felon generally and as a convicted sex offender specifically.

With regard to the character of the intrusion, the state has shown that the search occasioned by SBM reveals only defendant’s physical location, and nothing “about what a participant is doing at a particular location.” Testimony also indicated that the state is not allowed to use the data which it collects through the SBM program for any unauthorized purpose.

The purposes of the SBM program— to assist the state in both preventing and solving crime—are legitimate and compelling.

When a sexual assault is reported, location information from the monitor could be used to implicate the participant as a suspect if he was in the area of the sexual assault, or to eliminate him as a suspect if he was not in the area of a sexual assault.” Law enforcement may also use the fact that a sex offender is subject to lifetime SBM to ensure that the offender is actually residing at the residence that he is statutorily required to report to the local sheriff, the violation of which is a Class F felony.

G.S. § 14-208.11. These observations further buttress the reasonableness of lifetime SBM in appropriate cases, including the instant one.

When used for its stated purpose, the lifetime SBM program is constitutional due to its promotion of the legitimate

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and compelling governmental interest which outweighs its narrow, tailored intrusion into defendant’s expectation of privacy in his person, home, vehicle, and location. Therefore, the search authorized by the trial court’s orders in this case is reasonable and permissible under the Fourth Amendment.

Reversed.

Dissent

(Earls, J.): The majority resuscitates numerous arguments previously rejected by this court and bends over backwards to save the state from a constitutional problem of its own making.

The majority does so in the service of its remarkable conclusion that a court today can assess the reasonableness of a search that will be initiated when (and if) defendant is released from prison decades in the future, a search will be carried out for as long as defendant lives beyond his release.

Fortunately, as the majority recognizes, its decision is of limited practical importance, given that the General Assembly has just “enacted a major revision of the state’s SBM program as it relates to sex offenders” which effectively eliminates lifetime SBM in this state. Regardless, I cannot join the majority in its cavalier disregard for the protections afforded to all North Carolinians under the state and federal constitutions.

State v. Strudwick (Lawyers Weekly No. 010-122-21, 45 pp.) (Michael Morgan, J.) (Anita Earls, J., joined by Robin Hudson & Sam Ervin, JJ., dissenting) Appealed from the Superior Court in Mecklenburg County (Yvonne Mims Evans, J.) Sonya Calloway-Durham for the state; Nicholas Woomer-Deters for defendant. 2021-

NCSC-127

Attorneys Fees – Receivership – Appeals – First Impression The trial court denied outside counsel’s request for fees for work counsel had performed for a court-appointed receiver. Counsel appealed, and the court also denied counsel’s requests for fees related to the appeal because “the Appeal, if successful, would benefit only [counsel] and would reduce the assets of” the receivership. However, there may be circumstances under which an attorney’s actions benefit a receivership even without contributing to an increase in the receivership’s assets; further, applying a per-se rule prohibiting attorneys from recouping fee-litigation fees could ultimately harm parties in need of able legal representation by reducing the pool of attorneys willing to provide vigorous representation on critically important matters.

We reverse the Business Courts orders (1) refusing to authorize the receiver to pay fees for services rendered by attorney Philip Mohr and (2) refusing to authorize the receiver to pay Mohr’s firm’s fee-litigation fees. We remand for further proceedings.

This court has not previously considered whether outside counsel is entitled to compensation for work performed while seeking to recover fees originally incurred for legal services rendered to a receiver. We hold that, where there has been no finding that outside counsel’s fees were unreasonable, the mere fact that authorizing the receiver to pay counsel’s fee-litigation fees will dimin-

ish the receivership’s assets does not itself establish that counsel’s services were not rendered for the benefit of the receivership. The trial court’s finding that payment of the firm’s fee-litigation fees “would reduce the assets” of the receivership is insufficient to support its conclusion that the services the firm rendered did not benefit the receivership.

With respect to the trial court’s order denying the receiver’s request to pay attorney Mohr’s fees, our jurisprudence teaches that a trial court’s discretion to grant or deny a receiver’s request for authorization to pay fees to retained outside counsel is generally limited to (1) determining whether outside counsel rendered services which require legal knowledge and skill and which were rendered to the receiver for the benefit of the receivership and (2) determining the amount which comprises reasonable and proper compensation for the services outside counsel performed.

Where the trial court’s order denying Mohr’s fees failed to address either of these questions and instead based its denial solely upon what the court perceived to be the receiver’s and Mohr’s failure to adhere to the requirements of a prior order dictating how invoices for attorneys’ fees should be submitted to the court, the trial court’s denial of the request for fees was an abuse of discretion.

The trial court’s denial of Mohr’s fees could be construed as a sanction.

A court has the inherent authority to sanction parties and attorneys for misconduct during litigation; however, before an order imposing sanctions is entered, the court must provide the party being sanctioned with notice and an opportunity to be heard. In addition, the

trial court’s conclusion that sanctions should be imposed must be supported by findings of fact which must in turn be supported by sufficient evidence.

Here, the trial court did not give Mohr notice that it was considering sanctions.

Furthermore, the trial court’s finding that Mohr “[flagrantly disregarded] ... the requirements imposed by” its prior order is unsupported by the record.

That prior order required the receiver to submit invoices to the court and specifically forbade “outside counsel” from submitting requests for fees. Therefore, under the terms of the order, Mohr was prohibited from doing precisely that which the trial court apparently penalized him for not doing.

Reversed and remanded.

Bandy v. A Perfect Fit for You, Inc. (Lawyers Weekly No. 010-123-21, 20 pp.) (Anita Earls, J.) Appealed from the Business Court (Gregory McGuire, J.) Philip Mohr and Brent Powell for appellants; no brief filed for appellees.

2021-NCSC-117

Domestic Relations Parent & Child – Termination of Parental Rights – Civil Practice – Subject Matter Jurisdiction – Unverified Motion Even though the trial court had already acquired subject matter jurisdiction over this child neglect case, since the petitioner Department of Social Services failed to verify its motion to terminate parental rights, as required

by G.S. § 7B-1104, the trial court lacked subject matter jurisdiction to terminate the respondent-father’s parental rights.

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12 / OPINION DIGESTS We vacate the trial court’s order terminating respondent’s parental rights and remand for further proceedings.

Section 7B-1104 says, “The petition [for termination], or motion pursuant to G.S. 7B-1102, shall be verified by the petitioner or movant.”

In In re T.R.P., 360 N.C. 588 (2006), we construed G.S. § 7B-403(a) (“shall be . . . verified”) and held that a petition alleging a juvenile to be abused, neglected or dependent did not invoke the trial court’s subject matter jurisdiction unless the official’s signature on the petition was verified. When the legislature requires a party to follow a certain procedure to invoke the trial court’s subject matter jurisdiction, a trial court lacks authority to act if the party fails to follow that procedure. For certain causes of action created by statute, the requirement that pleadings be signed and verified is not a matter of form, but substance, and a defect therein is jurisdictional.

In addition, the T.R.P. majority noted that “for more than twenty years our Court of Appeals has consistently held that subject matter jurisdiction over juvenile actions is contingent upon verification of the petition,” and that the General Assembly had never amended the relevant provisions of the juvenile code not modify or abrogate this holding.

Here, “Oscar’s” guardian ad litem contends that T.R.P. does not control when, as here, the party seeking termination initiates termination proceedings with the filing of a motion in the cause.

However, the plain words of § 7B1104 make clear that the General Assembly did not intend for the verification requirement to operate differently for a petition for termination as compared to a motion in the cause.

The phrase “shall be verified” does not mean one thing when it modifies “[t]he petition” and another when it modifies “motion.”

The allegations underlying a juvenile abuse, neglect or dependency petition may overlap with, but are necessarily not the same as, the allegations underlying a motion for termination regarding the same juvenile. Further, the stakes for a parent are considerably higher in a termination proceeding than in an abuse, neglect or dependency proceeding.

Finally, we reject the GAL’s argument that DSS’ filing of a properly verified petition alleging Oscar was neglected and dependent vests the trial court with jurisdiction to terminate respondent’s parental rights. A petitioner or movant must satisfy distinct requirements to vest a trial court with jurisdiction to conduct a juvenile proceeding on the one hand and a termination proceeding on the other.

If a petitioner or movant fails to meet all of the requirements for establishing the court’s jurisdiction over a termination proceeding, then the court lacks jurisdiction to conduct a termination proceeding, regardless of whether the trial court previously exercised jurisdiction over the child for other purposes.

There is nothing anomalous about requiring a party to establish that the trial court possessed jurisdiction to conduct a termination proceeding even when the court previously had jurisdiction to conduct a juvenile proceeding—it is simply what our juvenile code requires.

Vacated and remanded.

Dissent

(Barringer, J.): The clear language of the juvenile code instructs us to interpret the statutes as setting forth judicial procedures, not subject matter jurisdictional requirements. In matters arising under the juvenile code, the leg-

islature, by enacting statutes, has established the trial court’s subject matter jurisdiction.

The juvenile code, its articles and statutes, as previously recognized by this court, all establish that jurisdiction in this matter is vested in the trial court upon the filing of the juvenile petition and continues uninterrupted until the juvenile’s majority, emancipation, or a trial court’s order even for termination of parental rights if the legislature’s enactment regarding jurisdiction, G.S. § 7B-1100, is satisfied.

Here, DSS failed to verify a motion for termination of parental rights that it filed in a pending juvenile abuse, neglect, and dependency proceeding.

But DSS had already verified the juvenile petition underlying the action, and there is no contention that the trial court lacked jurisdiction under G.S. § 7B-1101.

To the extent our prior caselaw has held that pleadings and petitions commencing an action and their amendments thereto are jurisdictional defects for certain causes of action created by statute, they do not resolve the issue before this court now. When the legislature neither mentions jurisdiction in the statute at issue nor references it in the statute entitled “jurisdiction”, the legislature did not intend such statute’s requirements to function as prerequisites for trial court jurisdiction.

In re O.E.M. (Lawyers Weekly No. 010-124-21, 28 pp.) (Anita Earls, J.) (Tamara Barringer, J., joined by Paul Newby, C.J., & Philip Berger, J., dissenting) Appealed from the District Court in Transylvania County (Kimberly Gasperson-Justice, J.) No brief filed for petitioner; Rebecca Fleishman and Beth Tyner Jones for guardian ad litem; Richard Croutharmel for respondent. 2021-NCSC-120

Domestic Relations Parent & Child – Termination of Parental Rights – Abandonment & Neglect – Insufficient Findings In the six months preceding the filing of the petition to terminate the respondent-mother’s parental rights, she requested three visits with “Billy,” visited with Billy once, and filed a motion to increase her visitation with Billy.

Respondent’s actions do not rise to the level of willful abandonment.

We reverse the trial court’s order terminating respondent’s parental rights.

Remanded.

In the absence of findings regarding a likelihood of future neglect should Billy be returned to respondent’s care, the trial court’s findings do not support its termination of respondent’s parental rights on the ground of neglect.

Dissent

(Berger, J.): I agree that the trial court’s order does not show a likelihood of future neglect; however, only one ground is needed to support termination of parental rights. The trial court’s findings and conclusion support the ground of abandonment.

For the first three months of the relevant six-month period, respondent was incarcerated and made no attempt to communicate with Billy. Incarceration did not absolve respondent of the parental duty she owed to Billy.

Since we have held that neither continuous absence nor complete disregard for the child is required for a finding of willful abandonment, respondent’s sporadic visitation requests and less frequent visits should not foreclose a finding of willful abandonment. Moreover, our precedent does not support

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the position that an abandoning parent can avoid termination simply by taking the administrative step of filing a motion with our courts.

Additionally, and without mention or discussion by the majority, Billy had significant medical issues. Respondent neither attended, nor attempted to attend, any of Billy’s medical appointments. Moreover, she failed to provide financial support for care-related costs over the course of almost two years. In fact, respondent failed to pay any child support at all. One is hard-pressed to imagine a more obvious example of a parent’s refusal to “lend support and maintenance.”

I would affirm.

In re B.R.L. (Lawyers Weekly No. 010-125-21, 20 pp.) (Anita Earls, J.) (Philip Berger, J., joined by Paul Newby, C.J., & Tamara Barringer, J., dissenting) Appealed from the District Court in Surry County (Marion Boone, J.) Edward Eldred for respondent; Clark Fischer for petitioners; no brief filed on behalf of the guardian ad litem.

2021-NCSC-119

Criminal Practice Second-Degree Murder – SelfDefense Instruction – Modification Denied Even though defendant testified that the victim was attacking him with a two-by-four and that defendant only stabbed the victim to stop the attack, defendant did not produce any evidence to contradict medical testimony that defendant had only minor arm injuries and a swollen knee while the victim had been stabbed with a knife the size of a machete and that the knife had been thrust in, partially removed, and then thrust in again once or twice more, causing a fractured rib, a perforated lung at three separate locations, a pierced heart and, ultimately, the victim’s death. Defendant has not shown a reasonable possibility that, even if the trial court had modified the pattern self-defense jury instruction as requested (to say defendant believed it was necessary “to use deadly force against the victim” rather than that defendant believed it was necessary “to kill” the victim), defendant’s requested instruction would not have changed the trial court’s charge to the jury that defendant’s use of force must be reasonable and not excessive. As a result, defendant cannot show a reasonable possibility that a different result would have occurred at trial.

We modify and affirm the decision of the Court of Appeals, upholding defendant’s conviction for second-degree murder.

State v. Leaks (Lawyers Weekly No. 010-126-21, 11 pp,) (Tamara Barringer, J.) Appealed from the Superior Court in Mecklenburg County (Carla Archie, J.) On discretionary review from the Court of Appeals. Mary Carla Babb for the state; William Spence for defendant. 2021-NCSC-123

N.C. COURT OF APPEALS, UNPUBLISHED

Criminal Practice Meth Trafficking – Maintaining a Dwelling – Conspiracy The affidavit in support of the application for a warrant to search defendant’s apartment (Apartment C4) stated that (1) a known trafficker of

narcotics had been seen coming and going from the apartment complex in the days prior to defendant’s arrest; (2) a white female with dark hair was seen leaving Apartment C4, was thereafter stopped in her car, and methamphetamine was found pursuant to a search of her vehicle,; (3) defendant was seen exiting Apartment C4 on foot, meeting with a vehicle, and going back into Apartment C4; and (4) a detective observed numerous people come and go from Apartment C4 because he was parked where he could watch room C4 and give descriptions of the people coming and going. The affidavit provided probable cause for issuance of a search warrant for Apartment C4, and the trial court did not err in denying defendant’s motion to suppress the evidence seized as a result of the search.

We find no error in defendant’s convictions for trafficking in methamphetamine, maintaining a dwelling for controlled substances, and conspiracy to traffic in methamphetamine.

Defendant challenges his conviction for maintaining a dwelling. However, defendant occupied a room in Apartment C4, possessed the property over a period of time, and had access to the property (suggesting the use of a key to enter and exit the property). Defendant’s residence at the property, which alone is sufficient to support a conviction for keeping or maintaining a dwelling, was supported by the additional evidence of defendant showering and keeping clothing at the property.

Furthermore, surveillance of Apartment C4 and the surrounding apartment complex revealed activity suggesting drug transactions. Methamphetamine was discovered on persons stopped coming from or near Apartment C4, and defendant was observed by officers engaging in what appeared to be drug transactions. Finally, when Apartment C4 was searched, methamphetamine was found along with needles, scales, syringes, and other drug paraphernalia. The trial court did not err in denying defendant’s motion to dismiss the charge of maintaining a dwelling for keeping and selling controlled substances.

Defendant also challenges his conspiracy conviction. While some of the contraband in this case was found in a container with his codefendant’s name on it, defendant shared the room in which methamphetamine, needles, syringes, scales, and other drug paraphernalia were found. Methamphetamine was found elsewhere besides in the container marked “Lo’s Change,” and drug paraphernalia was in plain sight in the bedroom, making it likely that defendant knew of its presence.

The evidence at trial also showed that defendant and his co-defendant were in a relationship and lived together. Finally, detectives observed defendant engaging in what appeared to be drug transactions outside the apartment, indicating that he was a participant in the storage and/or sale of methamphetamine inside the bedroom with his co-defendant.

Therefore, the trial court did not err in denying Defendant’s motion to dismiss the charge of conspiracy to traffic in methamphetamine.

Over defendant’s objection, the trial court allowed the state to join the trials of defendant and his co-defendant.

The evidence introduced in defendant’s case could have been introduced in a separate trial. Defendant and his codefendant did not testify against one another, so the jury could not have relied on their testimony to conclude that both were guilty. The underlying factual circumstances were appropriate for the trial court to consider joinder as they indicated a common scheme or

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plan. The trial court did not abuse its discretion in joining defendant’s and his co-defendant’s cases for trial.

No error.

State v. May (Lawyers Weekly No. 012-318-21, 15 pp.) (Chris Dillon, J.) Appealed from Haywood County Superior Court (Bradley Letts, J.) Hill Davis for the state; William Spence for defendant. 2021-NCCOA-514

Criminal Practice Sexual Offense with a Child – Digital Penetration The state presented sufficient evidence of digital penetration via the testimony of the victim (that he “started touching and feeling” and “messing with” her vagina) and the description of the anatomy of a child’s vagina by a medical expert in child abuse pediatrics.

We find no error in defendant’s convictions of first-degree statutory rape of a child, three counts of first-degree sexual offense with a child, and indecent liberties with a child.

State v. McNeill (Lawyers Weekly No. 012-319-21, 12 pp.) (Lucy Inman, J.) Appealed from Cumberland County Superior Court (Gale Adams, J.) Sharon Patrick-Wilson for the state; James Glover for defendant. 2021-NCCOA-515

Criminal Practice Bench Trial – 10-Day Revocation Period – Nude Photos – Ex-Girlfriend G.S. § 15A-1201(e) provides, “Once

waiver of a jury trial has been made and consented to by the trial judge ... the defendant may revoke the waiver one time as of right within 10 business days of the defendant’s initial notice…”

However, where defendant interrupted jury selection in order to elect a bench trial, he was not entitled to a 10-day “mandatory cooling-off period.” Defendant’s interpretation would allow a defendant to force a mandatory 10day continuance at the scheduled trial, even during jury selection. Nothing in our General Statutes, prior precedents, or in the legislative history shows an intention for the revocation period to create or allow a mandatory continuance at or near a scheduled trial and incur unnecessary delays.

We affirm defendant’s conviction of two counts of disseminating obscenity.

Although it would have been the better practice for the trial judge to describe on the record defendant’s request to waive trial by jury and exercise his right to a bench trial, defendant cannot establish prejudice in the trial judge’s colloquy with defendant, in which the judge referred to what defense counsel had just told the judge in chambers.

After defendant and his ex-girlfriend broke up, defendant sent 24 nude photographs of her to mutual friends. Each photograph depicted “sexual conduct” as defined by G.S. § 14-190.1(c), and there was testimony that the photographs were not taken nor disseminated for the purpose of promoting “serious literary, artistic, political or scientific value.” GS. § 14-190(b)(3). The state presented sufficient evidence that the images and material depicted in the photographs were obscene.

State v. Cranford (Lawyers Week-

ly No. 012-320-21, 14 pp.) (John Tyson, J.) Appealed from Lincoln County Superior Court (Lisa Bell, J.) Brittany Brown for the state; Aaron Thomas Johnson for defendant. 2021-NCCOA-511

Criminal Practice Sentencing – Plea Agreement – Added Fine The trial court accepted the parties’ plea arrangement, which provided only for a mitigated sentence of 67-93 months imprisonment; however, the trial court also imposed a $250 fine.

Under G.S. § 15A-1024, any change by the trial judge in the sentence that was agreed upon by the defendant and the state requires the judge to give the defendant an opportunity to withdraw his guilty plea.

Since the trial court did not give defendant an opportunity to withdraw his guilty plea, we must vacate the judgment and remand.

State v. Roberts (Lawyers Weekly No. 012-321-21, 7 pp.) (John Tyson, J.) Appealed from Davidson County Superior Court (Lori Hamilton, J.) Jessica Helms for the state; Sterling Rozear for defendant. 2021-NCCOA-517

Criminal Practice Statutory Sex Offense with a Child – Evidence of All Elements – Jury Instructions – Attempt Through the testimony of the victim, her sister, and medical professionals,

the state presented clear and positive evidence of each element of statutory sexual offense with a child by an adult.

Where the evidence would not have permitted the jury rationally to find defendant guilty of attempted statutory sexual offense with a child by an adult, the trial court properly denied defendant’s request for a jury instruction on attempted sexual offense.

No error.

State v. Suggs (Lawyers Weekly No. 012-322-21, 9 pp.) (Chris Dillon, J.) Appealed from Pitt County Superior Court (Jeffery Foster, J.) Alesia Balshakova for the state; Mark Montgomery for defendant. 2021-NCCOA-519

Tort/Negligence Schools & School Boards – Governmental Immunity – Insurance – SelfRetention A former student sued the defendant-school board for damages arising out of another student’s assault on her while she was still a student. Although the school board purchased liability insurance, this did not waive the school board’s governmental immunity because coverage under the policy is triggered only upon the board’s payment of its self-insured retention.

We reverse the trial court’s denial of the school board’s motion for summary judgment.

The purchase of a liability insurance policy does not waive governmental immunity when insurance coverage is triggered only upon the government entity’s payment of the entire self-insured retention or retained limit. Because

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NAME Virginia G. Adams Collins Barwick Asa L. Bell Jr. Richard T. Boyette Jacqueline R. Clare Thomas M. Clare James L. Conner II Kate Deiter-Maradei Sidney S. Eagles Jr. Paul T. Flick Patricia L. Holland Joseph T. Howell J. Anderson Little Michael E. McDaniel Robert A. Meynardie Karen Britt Peeler James S. Schenck IV Reagan H. Weaver Barbara B. Weyher Scott M. Taylor Marshall A. Gallop Jr. Ralph W. Meekins S. Kent Smith Jessie M. Conley W. Lewis Sauls Sherman Lee Criner William A. Blancato Kenneth P. Carlson Jr. William H. Freeman Ellen R. Gelbin

BASED IN Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Raleigh Res. Triangle Rocky Mount Shelby Southern Pines Statesville Whiteville Wilmington Winston-Salem Winston-Salem Winston-Salem Winston-Salem

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14 / OPINION DIGESTS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

government entities have immunity from negligence claims up to the selfinsured amount or retained limit, they will not have a legal obligation to pay the self-insured amount or retained limit and therefore will not have waived their immunity through the purchase of an excess liability insurance policy.

Here, the operative policy language provides, “The insurance company’s] duty under the policy shall be to indemnify [the school board] for ULTIMATE NET LOSS in excess of the applicable [United States Dollar amount specified in the SCHEDULE OF SELF INSURED RETENTIONS which [the board] is obligated to pay because of loss or damage covered under any Section of this policy, before this policy indemnifies [the board] for the same loss.]”

According to this language, liability insurance coverage for plaintiff’s claims is contingent upon the board’s payment of the $100,000.00 self-insured retention. Therefore, the board did not waive its governmental immunity.

Reversed.

Capps v. Cumberland County Board of Education (Lawyers Weekly No. 012-323-21, 14 pp.) (Hunter Murphy, J.) Appealed from Cumberland County Superior Court (Mary Ann Tally, J.) Marshall Pitts for plaintiff; Mary Webb, Amie Sivon and Edward Coleman for defendant. 2021-NCCOA-538

ly address a substantial risk of physical, mental or emotional impairment as a consequence of the failure to provide proper care, supervision or discipline to Amy. However, there is evidence in the record to support further findings.

We vacate the adjudication of Amy as neglected and remand for further proceedings.

According to the record, before either Amy or Jennifer was born, their older sister, “Susan,” died of suspected abuse when she was a year old. When Jennifer was one year old, she sustained serious injuries that were inconsistent with Mother’s claim that Jennifer had fallen out of a toddler bed.

By the time of Amy’s birth, DSS had received five referrals of abuse or neglect in Mother’s home. Both parents used controlled substances and neither was making progress on their case plans.

We remand for additional findings.

In re A.L. (Lawyers Weekly No. 012-325-21, 11 pp.) (Darren Jackson, J.) Appealed from Robeson County District Court (Angelica McIntyre, J.) Edward Yeager for petitioner; Robert Ewing for respondent; Michelle FormyDuval Lynch for guardian ad litem.

2021-NCCOA-540

Domestic Relations

Parent & Child – Permanency Planning Order – No-Merit Brief

Equitable Distribution – Attorneys’ Fees – Marital Estate – Reasonableness

The respondent-Mother appealed a permanency planning order granting custody of minor B.J. to the respondentFather and granting Mother supervised visitation. Although appellate counsel’s no-merit brief identifies as potential issues (1) whether competent evidence supported the trial court’s findings of fact and (2) whether the findings of fact supported the conclusions of law, our independent review of the record satisfies us that competent evidence does support the findings of fact and the findings of fact do support the conclusions of law.

We affirm the permanency planning order.

In re B.J. (Lawyers Weekly No. 012-326-21, 4 pp.) (Hunter Murphy, J.) Appealed from Cumberland County District Court (Frances McDuffie, J.) Patrick Kuchyt for petitioner; Sean Vitrano for respondent; Michael Mitchell and David Pasley for guardian ad litem. 2021-NCCOA-541

After an initial disposition hearing, the trial court waived further reviews as to juvenile “Patrick.” Only when the case reaches the permanency planning stage may the trial court waive further reviews, not before.

The trial court also ordered random drug screening for the respondentMother. Since there is no evidence in the record that drug abuse led to the juveniles’ removal from the home or to their adjudications of abuse and neglect, the trial court erred by requiring random drug screenings.

We affirm the adjudication of “Piper” as abused and the adjudication of Patrick and “Parker” as neglected. We remand for further proceedings.

In adjudicating Piper abused, the trial court was not required to find that a specific sexual offense occurred. However, the trial court’s findings of fact as to the actions of Mother’s boyfriend satisfy the elements of the crime of taking indecent liberties with a child. The trial court did not err in finding Piper abused.

It is true that the abuse of one child cannot support adjudications of other children in the household. However, in this case, Mother failed to follow DSS safety plans, refused to sign a revised safety agreement, and did not believe or support Piper when she first made her allegations of abuse. The record also shows a history of domestic violence between Mother and her boyfriend, who was present in the home with all three children. The trial court’s findings of fact are sufficient to support its adjudication of neglect for Patrick and Parker.

In re P.C. (Lawyers Weekly No. 012-328-21, 12 pp.) (Chris Dillon, J.) Appealed from Rowan County District Court (Beth Dixon, J.) Lee Gilliam for respondent; Jane Thompson for petitioner; Reed Hollander and Andrew Brown for guardian ad litem. 2021-NCCOA-542

Criminal Practice

Domestic Relations

Juvenile – Confession – Custody – Age – Voluntariness

Parent & Child – Illinois Support Order – College Expenses – New Spouse’s Income

Even though the $83,884 in attorneys’ fees awarded to plaintiff exceeded the $57,950.55 value of the parties’ net marital estate, given (1) the size of defendant’s separate estate, (2) his income level, (3) the contentiousness and length of this litigation, and (4) the trial court’s findings as to the reasonableness of the fees, the trial court’s decision to award attorneys’ fees in excess of the value of the marital estate was not an abuse of discretion.

We affirm the award of attorneys’ fees.

While Jennifer Bradley’s affidavit did not expressly state that her fees were reasonable, her fees were roughly 15 percent less than those of Heidi Bloom. Considering the trial court’s familiarity with the customary rates in the community, it could properly find that Bradley’s rates, like Bloom’s, were reasonable and comparable to similarly situated counsel, given their respective skill and experience and the available evidence in the record. If defendant believed this evidence of reasonableness was inaccurate, the appropriate course was to introduce counter-evidence or to challenge the averments in the affidavit through the adversarial process at the trial and follow-up hearing.

Gainey v. Olson (Lawyers Weekly No. 012-324-21, 8 pp.) (Richard Dietz, J.) Appealed from Wake County District Court (Anna Worley, J.) Jill Schnabel Jackson for plaintiff; Thomas Currin for defendant. 2021-NCCOA-539

Domestic Relations Parent & Child – Neglect Adjudication – Abuse of Sibling – Insufficient Findings Where the trial court focused almost exclusively on the abuse of newborn “Amy’s” older sister, “Jennifer,” with a brief mention of the respondent-Mother’s failure to make progress on her case plan, the findings do not specifical-

Domestic Relations

Although the trial court’s findings regarding the circumstances of juvenile “James’” confession would otherwise support its conclusion that James was not in custody when he confessed to a sexual assault on his younger cousin, the trial court’s passing mention of James’ age (13) was insufficient to show that the trial court considered James’ age in relation to the attendant circumstances.

We remand for further findings.

With regard to the voluntariness of James’ confession, the detective’s alleged deceitful statements were, “I just believe you’re not telling me the whole truth, and I think you’re holding back…” and “I’m giving you an opportunity, and it’s your last opportunity, and I’m telling you that this is your last opportunity to be truthful.” These statements do not rise to the level of coercion and do not render James’ confession involuntary.

In re J.D.F. (Lawyers Weekly No. 012-327-21, 14 pp.) (Fred Gore, J.) (Lucy Inman, J., concurring in result only without separate opinion) Appealed from Iredell County District Court (Deborah Brown, J.) Elly Young for the state; Amanda Hitchcock for appellant. 2021-NCCOA-300

Domestic Relations Disposition Order – Waiver of Further Review – Random Drug Screens

With respect to college expenses, § 513 of the Illinois Marriage and Dissolution of Marriage Act requires a court to consider all relevant factors “that appear reasonable and necessary”; how the court weighs those factors is within its discretion. The trial court is not required to make specific findings as to the amount each child is obligated to cover. Here, the trial court received evidence for the amounts each of the parties’ five children received in aid, scholarships, and student loans, which was included in the defendant-father’s testimony and supporting documents.

Although the trial court did not specifically describe each child’s obligations, the plaintiff-mother has failed to show that the trial court abused its discretion.

We affirm the trial court’s orders on the parties’ motions to show cause and on plaintiff’s motions under N.C. R.

Civ. P. 59 and 60.

Under Illinois law, a new spouse’s income is considered a part of their “financial resources” under § 513. Therefore, the trial court properly considered the income of the mother’s new husband in determining the mother’s full financial resources.

Lehn v. Lehn (Lawyers Weekly No. 012-329-21, 16 pp.) (John Arrowood, J.) Appealed from New Hanover County District Court (Jeffrey Evan Noecker, J.) James Lea for plaintiff; James Noonan, Ruth Sosniak and James Bonner for defendant. 2021-NCCOA-543

Civil Practice Appeals – Stay Dissolution – Parallel N.Y. Action – Interlocutory The parties to this North Carolina litigation are also on opposite sides of a lawsuit in New York, though that lawsuit also involves other parties. In the North Carolina litigation, the trial court entered a stay to allow disposition of a motion to dismiss in the New York action. The New York court ruled on the motion to dismiss, and the North Carolina trial court held that its stay had dissolved automatically. Defendant does not cite any case, nor can we find any, where a North Carolina appellate court held a substantial right was invoked by the automatic dissolution of a stay.

We dismiss defendant’s appeal of the trial court’s interlocutory ruling that its previously issued stay is no longer in effect.

MacGregor v. Sprung (Lawyers Weekly No. 012-330-21, 6 pp.) (John Tyson, J.) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Donald Harris for plaintiff; David Wicker for defendant. 2021-NCCOA-544

Civil Practice Subject Matter Jurisdiction – Judgments – Supplemental Proceedings – Rule 11 Sanctions In a prior opinion, we ruled that the trial court lacked subject matter jurisdiction over supplemental proceedings brought by a judgment creditor. Given the trial court’s lack of subject matter jurisdiction over the supplemental proceedings, it also lacked jurisdiction to enter an award of attorneys’ fees under N.C. R. Civ. P. 11 against defendant in those same supplemental proceedings.

The sanctions order is vacated.

Milone & MacBroom, Inc. v. Corkum (Lawyers Weekly No. 012-331-21, 3 pp.) (Toby 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-545

Domestic Relations Constitutional – Due Process – Evidence Limitation – Trial Court’s Findings On remand from a previous appeal, the trial court expressly refused to allow the parties to present evidence arising between November 2017 and the September 2019 hearing, yet the trial court made findings of fact pertaining to the period after November 2017. Thus, the trial court violated defendant’s right to present evidence and thereby violated his right to due process.

We vacate the trial court’s order and remand for a new trial.

OPINION DIGESTS / 15

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Novem ber 8, 2021

Defendant’s counsel objected at trial to an invoice, which supported plaintiff’s motion for expert witness fees and detailed a flat fee charge of $2,400.00, on the basis that plaintiff did not seek costs for only the actual time the expert witnesses spent testifying, as required by statute. Plaintiff concedes that she did not present evidence to support the findings of fact made by the trial court in the order for expert witness fees. Thus, there is no evidence on the record to provide a

factual basis for “reasonable and necessary fees” for the “actual time” the expert witnesses spent testifying. G.S. § 7A-305(d)(11). Therefore, we vacate and remand the order awarding expert witness fees.

Spahr v. Spahr (Lawyers Weekly No. 012-332-21, 16 pp.) (Jeffery Carpenter, J.) Appealed from Wake County District Court (Michael Denning, J.) Bryant Duke Paris for plaintiff; Michelle Connell for defendant. 2021-NCCOA-546

Criminal Practice SBM – Term of Years – Trial Court’s Review Nothing in our satellite-based monitoring statutes prohibits a trial court from ordering its own review of a matter that is properly before it. Defendant is not prejudiced by the trial court’s order that defendant’s satellite-based monitoring be reviewed after four

years.

We dismiss defendant’s appeal.

Defendant argues the satellite-based monitoring (SBM) program is facially invalid and is unconstitutional for his class of offenders. In State v. Grady, 372 N.C. 509, 831 S.E.2d 542 (2019) (Grady III) our Supreme Court issued a decision vacating SBM for a limited class of offenders. Defendant is a recidivist. In addition to recidivism, he committed a reportable offense on several bases, including an offense involving sexual abuse of a minor,

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16 / OPINION DIGESTS and a sexually violent offense. Defendant is not currently unsupervised, and he will receive the benefit of a review hearing before the trial court to determine the necessity of continued supervision. Defendant is not in the very limited class of offenders for whom the holding in Grady III applies. His constitutional argument on the basis of the holding of Grady III is without merit State v. Holliday (Lawyers Weekly No. 012-333-21, 12 pp.) (John Tyson, J.) Appealed from Forsyth County Superior Court (Athena Fox Brooks, J.) Sonya Calloway-Durham for the state; Heidi Reiner for defendant. 2021-NCCOA-552

Criminal Practice Felony Murder – Felonious Child Abuse – Deadly Weapon – Second-Degree Murder Parts of the human body can be considered deadly weapons under the felony murder statute, G.S. § 14-17. Where 10-month-old “Laine” was a healthy baby up until the day of her death, and where she suffered extensive, non-accidental injuries while under defendant’s supervision, the jury could find that defendant used his hands as a deadly weapon.

We find no error in defendant’s conviction for felony murder.

At the time of Laine’s death, defendant was supervising Laine, who was less than a year old; he had exclusive custody of her at the time non-accidental injuries resulting in her death occurred; and these injuries resulted in her death.

Laine’s death occurred during the commission or attempted commission of felonious child abuse, and defendant attempted or committed the felony using a deadly weapon, his own body.

Therefore, the evidence was sufficient to fully satisfy the state’s burden of proving each and every element of the offense of murder in the first degree, and there was no evidence to negate these elements other than defendant’s denial that he committed the offense.

Accordingly, the trial court did not err in denying defendant’s request for a jury instruction on the lesser-included offense of second-degree murder.

The indictment alleged that defendant “willfully, unlawfully, and feloniously did kill and murder L.P. (date of birth: 11/20/2015) with malice aforethought.” Because the victim’s initials and date of birth were both included in the indictment, her identity was unambiguous and the naming requirement was satisfied. Therefore, defendant was provided with sufficient notice of the victim’s identity to prepare for his defense and protect him from double jeopardy.

No error.

State v. Alston (Lawyers Weekly No. 012-334-21, 14 pp.) (Darren Jackson, J.) Appealed from Wake County Superior Court (Bryan Collins, J.) Jeffrey Welty for the state; Amanda Zimmer for defendant. 2021-NCCOA-547

Criminal Practice Sentencing – Out-of-State Conviction – N.C. Classification Although the state asks us to take judicial notice of certain New York Penal Laws, since the state did not present such evidence to the trial court, the state failed to prove that defendant had three prior out-of-state convictions.

We vacate defendant’s sentence and remand for further proceedings.

In support of its contention that defendant’s prior New York conviction for attempted possession of a controlled substance in the fifth degree should be

considered a Class I felony under North Carolina law, the state introduced only New York Penal Laws § 10.00 (“Definitions of terms of general use in this chapter”) and § 120.00 (“Assault in the third degree”) at trial. On appeal, the state argues that we may take judicial notice of additional New York Penal Laws § 110.00 (“Attempt to commit a crime”); § 111.05 (“Attempt to commit a crime, punishment”); and § 222.06 (“Criminal possession of a controlled substance in the fifth degree”), attached to the brief by exhibit.

However, this evidence was not presented to the trial court. Defendant also expressly refused to stipulate to the state’s PRL worksheet. Therefore, the state failed to carry its burden of proving, by a preponderance of the evidence, that defendant had three prior outof-state convictions. Specifically, the state failed to show that defendant’s New York conviction for attempted possession of a controlled substance in the fifth degree should be considered a Class I felony under North Carolina law.

Thus, we remand for a resentencing hearing at which the state must prove by a preponderance of the evidence that defendant’s out-of-state convictions are felonies, and that the felonious convictions are substantially similar to North Carolina offenses that are classified as Class I felonies or higher.

State v. Redd (Lawyers Weekly No. 012-335-21, 6 pp.) (Chris Dillon, J.) Appealed from Pitt County Superior Court (Jeffery Foster, J.) James Trachtman for the state; Katy Dickinson-Schultz for defendant. 2021-NCCOA-555

Criminal Practice Marijuana Possession – Lay Identification – Officer’s Training & Experience A deputy from the vice and narcotics unit testified that a bag produced by defendant contained marijuana. The deputy testified that he identified the substance “from what it looks like [and] what it smelled like”; he had been “exposed [] to what marijuana smelled like and looked like” during training, and he had “done numerous cases involving marijuana, small to large quantities,” in his time with the vice and narcotics unit.

The deputy permissibly offered an opinion identifying the substance as marijuana based on his training and experience.

We find no error in defendant’s convictions of various drug offenses.

State v. Arthur (Lawyers Weekly No. 012-336-21, 9 pp.) (Allegra Collins, J.) Appealed from New Hanover County Superior Court (Joshua Willey, J.) Andrew Hayes for the state; Anne Bleyman for defendant. 2021-NCCOA-548

Criminal Practice Assault – Evidence – Prior Flare Gun Shooting Four years before he shot the victim multiple times with a pistol, defendant shot the victim with a flare gun. Evidence of the flare-gun incident was admissible to show ill will, and thus motive, under N.C. R. Evid. 404(b).

We find no error in defendant’s conviction of assault with a deadly weapon with intent to kill inflicting serious injury. Defendant’s claim of ineffective assistance of counsel is dismissed without prejudice.

State v. Blackmon (Lawyers Weekly No. 012-337-21, 13 pp.) (Jeffery Carpenter, J.) Appealed from Mecklenburg County Superior Court (Casey Viser, J.) Wendy Lindberg for the state; Jason Christopher Yoder for defendant.

2021-NCCOA-549

N O R T H C A R O L I N A L A W Y E R S W E E K LY I N ove m be r 8, 2021

Criminal Practice Second-Degree Murder – Prior Assaults – Intent – Malice – Prosecutor’s Summation Where defendant claimed he shot the victim—his girlfriend, Shantell Williams—in self-defense, the trial court did not err when it allowed the state to present evidence of prior similar domestic assaults defendant had committed against other women he was dating, including incidents in which he pointed a gun at them and threatened their lives when they attempted to leave him. This evidence was relevant because it showed a longstanding pattern of intentional acts of violence or threats of violence toward women with whom he was involved, which supported the state’s theory that defendant acted with malice when he threatened Williams’ life after she tried to leave him and then shot her in the back as she tried to run away from him.

We find no error in defendant’s conviction for second-degree murder.

The trial court also did not err when it denied defendant’s motion to dismiss.

There was substantial evidence that defendant expressed his anger and desire to kill Williams well in advance of the shooting, that he shot her in the back as she was trying to run away from him, that defendant shot her intentionally with a deadly weapon while verbally expressing his intent to do so, and that defendant did nothing to try and help Williams after he shot her. The evidence also showed that defendant acted with a cool and rational state of mind because he walked away “nonchalantly” after the shooting and took multiple steps to cover up what he had done and avoid apprehension. Taken in the light most favorable to the state, this was ample evidence from which a reasonable jury could find that defendant acted with malice when he shot Williams.

During closing arguments, when the prosecutor asked the jury to consider how it felt for a gun to be pointed at them, it was in the context of the victim’s failure to flinch. The prosecutor asked the jury, “How many times do you have to have a gun put in your face before you treat it like that?”

The state was highlighting the fact that Williams’s response to the gun— not flinching—was abnormal and implied that it was not the first time this had happened to her. The argument was based on defendant’s own testimony about Williams’ response to him pointing the gun at her and the state’s evidence that defendant had pointed a gun at Williams in a prior incident. Thus, the argument was not improper because it was based on the evidence, did not misstate or manipulate the evidence, and was not an improper appeal for the jury to put themselves in Williams’ shoes.

No error.

State v. Corbett (Lawyers Weekly No. 012-338-21, 19 pp.) (Richard Dietz, J.) Appealed from New Hanover County Superior Court (Phyllis Gorham, J.) John Barkley for the state; Kimberly Hoppin for defendant. 2021-NCCOA-550

Criminal Practice Heroin Trafficking – Constructive Possession – Traffic Stop – Box on Floorboard Where (1) when law enforcement officers stopped the car in which defendant was riding, approached defendant in the backseat of the car and spoke to him, defendant had his foot on a small black box and repeatedly reached for the box during the traffic stop; (2) a trained police dog alerted to the presence of drugs

in the vehicle; (3) a detective searched the box and found what turned out to be heroin; (4) from jail, defendant made monitored phone calls in which he admitted (a) the drugs were on the floor during the arrest, (b) he wished he had put the heroin under the car, and (c) he was in jail for having eight or nine grams of heroin, then the state presented sufficient evidence for a jury to find that defendant had constructive possession of the heroin in the box. We find no error in defendant’s conviction for heroin trafficking.

Although defendant filed and argued a motion to suppress in the trial court, defendant’s arguments to the trial court concerned only the propriety of the traffic stop. On appeal, defendant attempts to argue that the search of the vehicle and his arrest were not supported by probable cause. Because defendant did not make these arguments to the trial court, they are waived.

State v. Cox (Lawyers Weekly No. 012-339-21, 9 pp.) (Richard Dietz, J.) Appealed from Union County Superior Court (Claire Hill, J.) Robert Pickett for the state; Rudolph Ashton for defendant. 2021-NCCOA-551

Criminal Practice Anders Brief – Multiple Issues – Frivolous In defendant’s Anders brief, appellate counsel identifies nine potential issues for the court’s review; however, our review reveals that this appeal is wholly frivolous. We dismiss defendant’s appeal from judgment entered upon jury verdicts of guilty of to drug charges.

State v. McConneaughey (Lawyers Weekly No. 012-340-21, 4 pp.) (Allegra Collins, J.) Appealed from Cleveland County Superior Court (Gregory Hayes, J.) Rory Agan for the state; Guy Loranger for defendant. 2021-NCCOA-554

Criminal Practice Constitutional – Ineffective Assistance Claim – Search & Seizure Defendant argues that he was denied the effective assistance of counsel because his trial counsel failed to object at trial to evidence obtained pursuant to a search warrant. However, the search warrant application was made within 24 hours of a stabbing incident outside defendant’s home. Because the suspect was seen coming from defendant’s residence and was not located when the first officer responded, the magistrate had reasonable grounds to conclude that a search of defendant’s property would reveal a knife, blood from the assault, and paperwork showing owner or tenant information for the home.

Although the evidence actually seized from defendant’s residence—drugs, cash and drug paraphernalia—was not listed on the affidavit or search warrant, the items were discovered in the course of a protective search. The trial court properly denied defendant’s pretrial motion to suppress because there was sufficient probable cause. Further, defendant cannot demonstrate the prejudice required to sustain his ineffective assistance of counsel claim. We find no error in defendant’s convictions for felony trafficking in heroin, maintaining a dwelling for keeping and selling controlled substances, possession of cocaine and attaining habitual-felon status.

State v. Lancaster (Lawyers Weekly No. 012-341-21, 10 pp.) (John Arrowood, J.) Appealed from Craven County Superior Court (Joshua Willey, J.) Christopher McLennan for the state; Mark Hayes for defendant. 2021-NCCOA-553