North Carolina Lawyers Weekly April 25, 2022

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APRIL 25, 2022 ■ $8.50

Extortion doesn’t require ‘true threat’ analysis ■ BY HEATH HAMACHER hhamacher@nclawyersweekly.com

Attorney had right to be physically present in deposition ■ BY DAVID DONOVAN david.donovan@nclawyersweekly.com A discovery order that would have barred attorneys from being physically present with their clients during remotely-conducted depositions was a violation of the litigants’ due process right to the assistance of counsel, a divided panel of the North Carolina Court of Appeals has ruled in a case of first impression and one of the first of what are likely to be many cases that require the courts to grapple with novel legal questions created by the COVID-19 pan-

demic.

Susan Hall sued Wilmington Health in 2019, alleging medical malpractice. The pandemic intruded upon life before the parties’ expert witnesses could be deposed, and Hall moved to require that depositions be taken virtually. New Hanover County Superior Court Judge J. Stanley Carmical granted the motion in July 2020, and although neither party had addressed the issue or requested such a restriction, he ruled that neither side’s counsel could physically appear in the witnesses’ presence during the depositions.

Wilmington Health appealed, and in an April 5 opinion written

by Chief Judge Donna Stroud, the Court of Appeals held that the restriction violated the defendant’s right to retained counsel.

Stroud began by finding that the trial court’s order could be appealed immediately because the right to counsel is a substantial right, and Wilmington Health could suffer irreparable harm—an inability to assert privilege and possible revelation of privileged information—if it

A “sugar baby” who threatened to include a Charlotte man in a racy memoir of their adulterous dating service trysts unless he paid her significant hush money wasn’t entitled to a “true threat” analysis before she was convicted of extortion, the North Carolina Court of Appeals has unanimously ruled in a matter of first impression.

The defendant, Jamie Bowen, argued on appeal that the First Amendment to the U.S. Constitution requires the application of a “true threat” analysis to every anti-threat statute, but the Court of Appeals ruled that extortionate speech isn’t constitutionally protected because extortion, “though verbal, is a crime in and of itself.”

“Extortion is speech that is integral to criminal conduct, notwithstanding the content of the speech,” Judge April Wood wrote for the court. “It therefore falls within the category of unprotected speech, and necessarily may be restricted.”

Not the best arrangement

According to the court’s April 5 opinion, the 28-year-old Bowen and her married “sugar daddy” began a brief sexual relationship in 2011 after meeting through the online dating service Seeking Arrangement. The man provided Bowen with “financial compensation” for her time, the opinion states.

See Depositions Page 7 ►

S e e S u g a r B a by P a g e 7 ►

Student’s First Amendment claim reinstated on appeal ■ BY JASON BOLEMAN A former Virginia high school student’s First Amendment claim against a county’s school board has been reinstated after the 4th U.S. Circuit Court of Appeals found the former student’s complaint “plausibly alleges a First Amendment claim.”

The case stems from a conversation amongst classmates on Feb. 15, 2018, one day after the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida.

Jonathan Starbuck engaged in a conversation with his classmates about the shooting that he alleged was factual and contained no threats from

any student in the conversation. According to the 4th Circuit’s opinion, Starbuck “made remarks questioning the intent of the shooter, stating that the shooter would be capable of more harm had he wanted to, noting [the shooter’s] possession of explosives and considering the time the shooter was left alone within the building unchallenged by local law enforcement.”

A teacher reported the conversation to the local police and to school administration, resulting in Starbuck’s removal from class for the rest of the day. During this time, Starbuck alleged that school officials interrogated him and that the school police officer found no threat was made and no criminal

offense occurred.

That evening, Starbuck’s parent was informed that he faced a two-day out-of-school suspension, citing “unspecified ‘threats.’” The initial in-school suspension was given due to concerns for Starbuck’s “own safety.”

Starbuck appealed his suspension, and the Williamsburg-James City County School Board found the suspension proper in May 2018. He later brought a 42 U.S.C. § 1983 action against the school board, alleging the suspension violated his First, Fifth and 14th Amendment rights, citing free speech and due S e e 1s t A m e n d m e n t P a g e 3 ►

INSIDE VERDICTS & SETTLEMENTS

VERDICTS & SETTLEMENTS

COMMENTARY

$5.8M settlement for woman trapped in burning car

Repairman burned in kitchen settles suit for $2.5M

Has the legal system failed us?

Not so PFAS-t!

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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 Apr il 25, 2022

LAWYERS IN THE NEWS Damian C. Georgino has joined Womble Bond Dickinson in the firm’s corporate and securities group as a partner in its Charlotte office. He advises in complex transactions involving water and wastewater, energy, industrial manufacturing, infrastructure, technology, and natural resource projects.

John Gibson has joined Smith Anderson in Raleigh. He joins the firm’s regulatory and public policy practice, where he advises clients on health care policy, legislative advocacy, executive strategy, litigation and complex business requirements of organized medicine.

Gregory A. Dodge has joined Moore & Van Allen as a member of the firm’s corporate group, based in its Charlotte office. Dodge focuses his practice on private investment fund formation matters, including structuring and fundraising. He previously was an attorney with McGuireWoods.

Nathan Huff has joined K&L Gates as a partner in its complex commercial litigation and disputes practice. He joins the firm’s Research Triangle Park office from Phelps Dunbar. Huff concentrates his practice on business, including health care, and constitutional litigation and white collar defense.

Courtney B. Thomas has joined K&L Gates LLP as a partner in the firm’s corporate practice. He joins the firm’s Raleigh office from communications networks software and services provider Trilliant Networks Inc., where he was senior vice president, general counsel, and corporate

secretary.

Taylor Sweet has joined Cranfill Sumner as an associate attorney based in the firm’s Charlotte office.

She will focus her practice primarily in civil litigation. Sweet previously worked at the Charlotte-Mecklenburg District Attorney’s Office.

Stuart L. Brooks has joined Bell, Davis & Pitt in Winston-Salem as an associate. Before joining the firm, Brooks practiced at a Winston-Salem law firm and previously served as a prosecutor. His practice focuses on tort, fiduciary, estate, business, and criminal matters.

Steven Williams Walker has joined Akerman LLP as a partner of the firm’s corporate practice group in Winston-Salem. Walker represents clients in leveraged acquisition financings and other secured financings.

William Thomas has joined Barnwell Whaley Patterson & Helms as an associate in the firm’s Wilmington office. His practice comprises civil litigation, insurance coverage and defense, and employment law.

Fox Rothschild announced that Bradley M. Risinger, a partner in its litigation department, has been named the firm’s Raleigh office managing partner. The firm also announced that Neale T. Johnson, a partner in its Charlotte office, has been named co-chair of its nationwide litigation department.

Nathalie Doran has been named a partner at WRSD, formerly known as Wilson, Reives & Silverman, in Sanford.

NEWS BRIEFS Bar announces new bankruptcy, child welfare specialists

N.C. judge gets 1 more week to work on school funding order

The following lawyers have met all of the certification requirements and were certified as specialists in their respective practice areas by the North Carolina State Bar Board of Legal Specialization on March 2-3, according to the board’s website.

RALEIGH (AP) — The North Carolina Supreme Court has agreed to give a judge another week to work through the latest step in a long-running legal fight over public education spending.

On April 20 the court’s justices granted Special Superior Court Judge Michael Robinson a sevenday extension, which he had requested the previous day while citing differences between the legal parties over details and numerous documents to review.

Robinson was tasked last month with scrutinizing the November order of another judge who had directed that $1.75 billion be moved from state coffers to carry out two years of a remedial plan to address education inequities.

In particular, the Supreme Court told Robinson to review Judge David Lee’s order in light of the General Assembly’s passage of a state budget that funds some of the plan’s provisions.

Robinson originally had until April 20 to report his findings to the justices, who afterward will hear appeals that likely would rule on whether the judicial branch has constitutional powers to order taxpayer-funded spending for education on its own. Republican legislative leaders say only the General Assembly can appropriate state money.

In his extension request, Robinson said he’s received a large num-

Bankruptcy Law Palmer E. Huffstetler III, Rocky Mount (Consumer) Neil D. Jonas, Charlotte (Consumer) Ciara L. Rogers, Raleigh (Business) Sara Beth Withers, Washington (Consumer)

Child Welfare Law Sydney Batch, Raleigh Gail Carelli, Raleigh Rick Croutharmel, Raleigh Sara DePasquale, Chapel Hill Deana K. Fleming, Chapel Hill Joseph L. Gilliam, Durham David F. Hord IV, Raleigh Lyana G. Hunter, Wilmington Matthew Jackson, Winterville Mona E. Leipold, Morganton Annick I. Lenoir-Peek, Durham Matthew B. McKay, Charlotte Reggie O’Rourke, Holly Springs Shannon Poore, Raleigh Wendy Sotolongo, Durham Angie Stephenson, Chapel Hill Matthew Wunsche, Raleigh Staff reports

BAR DISCIPLINE

ROUNDUP Attorney: Meg Sohmer Wood Location: Charlotte Bar membership: Member since 2001 Disciplinary action: Suspended from the practice of law for three years on April 11. The suspension is stayed for three years so long as Wood complies with certain conditions.

Background: In or around 2018, Wood established Carolina Legal Services, which provided services including debt adjusting (acting as a paid intermediary between a debtor and their creditors for the purpose of settling debts), which in North Carolina can be done only by an attorney. Out-of-state companies not licensed to practice law provided most of the services to CLS’s clients, thereby engaging in the unauthorized practice of law. As the majority owner of CLS, Wood failed to ensure that her clients’ entrusted funds were deposited and maintained in an attorney trust account, failed to adequately supervise these non-lawyer employees, aided others in the unauthorized practice of law, aided others in committing a criminal act, and permit ted false and misleading statements to be made about her services.

Previous discipline: None Attorney: Thomas O. Harper III Location: Atlanta, Georgia Bar membership: Member since 1995 Disciplinary action: Suspended from the practice of law for two years on April 11. The suspension is stayed for two years so long as Harper complies with certain conditions.

Background: Harper failed to timely file

ber of written submissions from legal parties in the litigation such as school districts, parents and state officials, and held a lengthy in-person meeting last week.

The parties also don’t agree on how much money is in the new budget law that covers the remedial plan program and on how certain spending should be interpreted, he wrote.

The delay until April 27 was needed to “carefully consider the submissions and arguments of counsel” and “issue an appropriate order containing its findings and conclusions,” Robinson added.

The court granted the extension in an order that contained no additional comment. Soon after, Robinson scheduled an online hearing for April 22 to ask questions about the disagreements over spending.

The state budget office within Democratic Gov. Roy Cooper’s administration calculated earlier this month that the two-year budget allocated $958 million that would coincide with portions of $1.75 billion that Lee said should be spent through mid-2023. But an analysis by the legislature’s Fiscal Research Division differed on which budget provisions align with the remedial plan and how spending should be counted. While Cooper favored full funding of the remedial plan, he still signed the legislature’s budget into law, The litigation is referred to as “Leandro” for a plaintiff in the original 1994 lawsuit. Supreme Court

and pay his federal and state income taxes for the years 2013 through 2017.

Separately, Harper pleaded guilty to three counts of misdemeanor stalking and one count of misdemeanor trespass in superior court in Georgia.

Previous discipline: None Attorney: Ryan Alan Spencer Location: Raleigh Bar membership: Member since 2012 Disciplinary action: Censured on April 7 Background: Spencer represented a client in a veterans’ benefit claim. The client mailed a check for $5,000, made out to Spencer, to his home address. The funds were the property of the law firm Spencer worked for, and Spencer knew that he was not entitled to these funds but deposited the funds into his personal bank account with the intent to defraud the firm and convert the funds for his own use. Spencer also allowed the client to believe that the client had paid the balance he owed to the law firm. In its findings of facts regarding discipline, the Disciplinary Hearing Commission noted that during the time when the misconduct was committed, Spencer was experiencing severe emotional trauma d u e to u n i q u e l y t r a g i c f a m i l y circumstances. Spencer admitted to the violations, expressed remorse, and repaid the money owed to his former firm.

Previous discipline: None 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.

decisions in 1997 and 2004 declared there was a constitutionally protected right to obtain the “opportunity for a sound basic education” and that the state had not lived up to that mandate, especially for students in poor regions.

Since then, judges have been appointed to monitor the case and efforts to address the inequities. The case picked up steam again in late 2019 when an outside consultant declared little progress had been made to comply with the rulings.

Lee ultimately backed a remedial plan that would spend at least $5.6 billion through 2028. But he did not order any spending until budget negotiations between the legislature and Cooper went well into the fall in 2021. A budget agreement was signed a week after his Nov. 10 order.

The remedial plan includes items such as funding improvements to help low-income students and those with disabilities. There’s also increased pay for educators and improvements to child access to prekindergarten.

Asheville settles female firefighter’s lawsuit ASHEVILLE (AP) — Officials in Asheville have settled a federal discrimination lawsuit with a former

See Page 6 ►

VERDICTS & SETTLEMENTS / 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 Ap ri l 25, 2022

$5.8M settlement for woman trapped in burning car ■ BY DAVID BAUGHER A woman who suffered severe burns while trapped in a burning car after she was rear-ended by a speeding driver has reached a $5.8M settlement, her attorneys report.

Thomas Van Camp and Michael Newman of Van Camp, Meacham & Newman in Pinehurst report that their client, a 33-year-old woman, was severely hurt when she was struck from behind on a highway by a vehicle traveling at a high rate of speed. After being propelled from the road, her vehicle smashed into a tree.

“The vehicle caught on fire and my client was trapped inside while the fire was burning,” Newman said.

Many details about the case, including the location of the crash and the identities of the parties and the defense counsel, were withheld pursuant to a confidentiality agreement.

Newman said that the client ultimately escaped

Thomas Van Camp

Michael Newman

the passenger compartment but suffered third-degree burns in the process. Airlifted from the scene, she required multiple skin grafts and wound up with medical expenses exceeding a quarter-

million dollars.

Newman said that both liability and damages were disputed in the matter.

“Long story short, after all of that, the parties were able to come to a confidential settlement agreement of $5.8 million,” Newman said.

He said that the settlement has been paid in full.

“We’re obviously grateful that our client is alive

SETTLEMENT REPORT – MOTOR VEHICLE WRECK

Amount: $5.8 million Injuries alleged: Burns, scarring, disfigurement Case name: Confidential Venue: Confidential Date of settlement: Mar. 4 Special damages: $267,000 in medical expenses Attorneys for plaintiff: Thomas Van Camp and Michael Newman of Van Camp, Meacham & Newman in Pinehurst Attorney for defendant: Confidential and we’re hopeful that she can make a full recovery from her injuries. That is going to take a considerable amount of time.”

Repairman burned in kitchen settles suit for $2.5M ■ BY DAVID BAUGHER An unusual combination of product and premises liability has netted a $2.5 million settlement for a repairman who was badly burned in a kitchen explosion.

Justin Osborn and Matthew Gambale of Osborn, Gambale, Beckley & Budd in Raleigh said that their 49-year-old client had Justin Osborn been servicing a refrigeration unit that had stopped working at a commercial kitchen. After discovering coils covered in cooking grease, the client sprayed a cleaning product to remove the buildup. Suddenly, a fireball erupted catching his clothes alight and causing second- and third-degree burns over 40 percent of his body.

Matthew The client sued the manufacGambale turer and distributor of the cleansing product, which Osborn said didn’t come with any warning that it was flammable. He said the defendants alleged contributory negligence, contending that the danger of aerosol products is well-known and doesn’t require a warning.

“When we found a series of competitors that had similar products and still put the warning on the can,

I think it gave them some pause about their defense,” he said.

The client also sued the commercial kitchen itself.

“The big question for liability was what ignited this cleaning product, because in the kitchen there are a number of open flames in different places, and the fire department concluded there were too many ignition sources to really narrow it down,” he said.

Osborn said his expert traced the likely source of ignition to a gas fryer unit. He said no warnings had been posted around the unit indicating the presence of an open flame. He also faulted the kitchen for his client’s slipping on the grease-coated floor as he tried to escape the flames.

“We learned through our investigation that the floors were supposed to have slip-resistant nodules on these tiles, but the building owner was just using whatever they had on hand so the floor looked like a mosaic of different types of tiles, most of which were not suitable to be in a kitchen,” he said.

He said the premises owners also argued contributory negligence.

Osborn said there was little or no dispute over the extent of his client’s injuries, with more than $468,000 in past medical expenses. He estimated future bills and lost earnings at a million dollars.

The names of all parties were kept confidential under the terms of the settlement.

“He did everything right,” Osborn said of his client. “It was just such an unusual case where I think

SETTLEMENT REPORT – PREMISES LIABILITY/ PRODUCT LIABILITY

Amount: $2.5 million Injuries alleged: Second- and third-degree burns, post-traumatic stress disorder Case name: Confidential Venue: Wake County Superior Court Case No.: Confidential Date of settlement: Feb. 16, 2022 Special damages: $468,364.36 in past medical expenses, $1 million in future medical expenses Most helpful experts: Dr. James Shearer of Charlotte (plastic surgery) and Dr. Ann Neulicht of Raleigh (life care planner and vocational expert) Insurance carrier: Confidential Attorneys for plaintiff: Justin Osborn and Matthew Gambale of Osborn Gambale Beckley & Budd in Raleigh Attorneys for defendants: Confidential if one or both of the defendants, somebody, had put a warning on there, this wouldn’t have happened.”

1ST AMENDMENT / ‘Upsetting ideas’ can’t be silenced C o nt inu e d f r o m 1 ►

process concerns.

Chief Judge Mark S. Davis of the U.S. District Court for the Eastern District of Virginia granted the school board’s motion to dismiss, finding that the U.S. Supreme Court’s decision in Monell v. Department of Social Services barred the suit.

In Monell, the Supreme Court found that local government bodies can be sued directly under § 1983 “where … the action that is alleged to be unconstitutional implements or executes a … decision officially adopted and promulgated by that body’s officers.”

Judge Diana Gribbon Motz, writing for a unanimous panel in a March 15 opinion, found that because the school board acted as the final policymaking authority in approving Starbuck’s suspension, Monell didn’t bar Starbuck’s suit.

“When a final policymaker has the authority to review the decision of a subordinate, its approval of that allegedly unconstitutional decision can ... give rise to liability under Section 1983,” Motz wrote.

“The School Board’s approval of a suspension allegedly imposed to punish assertedly protected speech is a decision of a body with final policymaking authority. Monell teaches that such a decision gives rise to the School Board’s potential liability under 42 U.S.C. § 1983.”

After finding the school board open to liability, the 4th Circuit evaluated Starbuck’s First Amendment claim, citing how precedent has long held that students “do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’”

Motz wrote that Starbuck’s speech didn’t fall under any category that exempts it from First Amendment protections, and he “only engaged in a factual conversation with his peers about a current event that is uniquely salient to the lives of American teenagers, a school shooting.”

“Schools cannot silence such student speech on the basis that it communicates controversial or upsetting ideas,” Motz wrote.

The school board cited precedent where courts have found “that language reasonably perceived as threatening school violence is not constitu-

tionally protected.” But Motz wrote that, when viewed in the light most favorable to him, Starbuck’s remarks “were non-threatening statements about the tragedy that any student could have uttered in response to the news.”

“The First Amendment does not permit schools to prohibit students from engaging in the factual, nonthreatening speech alleged here,” she wrote.

The 4th Circuit agreed with the district court’s ruling that Starbuck’s Fifth and 14th Amendment claims didn’t survive the school board’s motion to dismiss.

Regarding the Fifth Amendment claim, Motz said the Due Process Clause applies to federal actors, not municipalities, and that the Double Jeopardy Clause applies to criminal cases, not school discipline proceedings. The Self-Incrimination Clause also didn’t apply in this case, as Starbuck didn’t allege that school officials compelled him to furnish testimony that could incriminate him in later proceedings.

The court disagreed with Starbuck’s argument that the school

board’s shift in the description of the reason for his suspension violated his 14th Amendment right to due process.

“To be sure, accusing a student of one act and then suspending him because he committed another could well violate the Due Process Clause if the student never had any opportunity to respond to the ultimate reason for the suspension. But that is not what happened here,” Motz said.

Throughout the proceedings, the school board didn’t attempt to change the factual basis for Starbuck’s suspension, but merely changed the wording to describe the basis, and Starbuck presented no precedent holding that in these circumstances merely changing the description of the reason for suspension constitutes a due process violation.

“The only constitutional infirmity alleged in Starbuck’s complaint is the punishment of protected speech itself,” Motz wrote.

The 14-page decision is Starbuck v. Williamsburg James City County School Board (Lawyers Weekly No. 001-057-22). The full text of the decision is available online at nclawyersweekly.com

4 / COMMENTARY 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 Apr il 25, 2022

Has the legal system failed us? Not so PFAS-t!

■ BY DAN SMITH This weekend I was mildly concerned to see a news article stating that the wrappers for the ohso-delicious chicken sandwiches I enjoy likely contain PFAS (perand polyfluoroalkyl substances).

Even more recently, a proposed class action was filed in the Southern District of Illinois against the keeper of the golden arches, alleging that the PFAS content in its food and food wrappers has injured customers. (Clark v. McDonald’s Corporation, 3:22-cv00628, filed March 28, 2022).

At least some of the family of chemicals known as PFAS likely have health impacts on humans.

With continuing advancements in analytical chemistry, PFAS can be detected in the parts per trillion and, for nearly ten years, have been the subject of much study—and, increasingly, lawsuits—throughout the country.

The federal government appears to be proceeding deliberately towards greater regulation of PFAS using existing regulatory structures. But if PFAS has made it into my chicken sandwich, I have to ask myself, has the legal system failed us? Having pondered for the past few days and eaten one (quite delicious) sandwich in the interim, I think the answer is no.

Human civilizations have a long history of causing ourselves trouble with our own activities— and then growing, adjusting and improving. A classic example is the human waste problem and all the wonderful diseases we can give ourselves (cholera, typhoid, parasitic diseases, etc.) if our waste is not handled in a sanitary manner. After dozens of epidemics and outbreaks, we learned to separate ourselves from our waste and treat our sewage.

I also think back to DDT, Rachel Carson and Silent Spring, where the chemical at issue (and its degradation products: the chemicals produced when DDT breaks down) interfered with calcium transport in the ovarian glands of birds leading to thinner eggshells and declining bird populations. During my wonderful liberal arts education, I took a history of public health class where I wrote a paper on James Whorton’s 1975 book, Before Silent Spring: Pesticides and Public Health in Pre-DDT America.

Whorton addressed the use of lead and arsenic pesticides on various food crops, including apples. I still recall an apple salesperson being quoted sometime in the early 1900s as saying you would have to eat a whole bushel of apples to get sick. (Unfortunately, at that time, there was no appreciation

for the chronic impacts of lead and arsenic exposure.)

Within the legal system, I am reminded of the layers of protection that have developed in our nation over nearly 250 years.

Statutes like the Clean Water Act, Safe Drinking Water Act and Resource Conservation and Recovery Act are generally intended to be forward-looking, creating a regulatory system that is intended to prevent society from injuring itself. Moreover, assuming consensus can be built among legislators, new statutes could be passed. If the statutory scheme fails to protect us adequately, torts and other common law claims provide a backward-looking approach, allowing injured parties to seek payment from the bad actor who caused them harm.

Admittedly, the system is imperfect and has its troubles. But the law does grind on towards justice. In the meantime, I think I’ll have another sandwich.

Dan Smith, a partner at Brooks Pierce, focuses his law practice on matters involving environmental, commercial, education, and state constitutional law. A former educator and environmental scientist, Dan represents businesses, boards of education, and individuals in state, federal, administrative, and appellate courts.

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It was, really, all good things ■ BY DAVID DONOVAN david.donovan@nclawyersweekly.com It’s hard to leave a job that has meant so much to me, but these things happen sometimes, and so this will be my final issue as the editor-in-chief of North Carolina Lawyers Weekly. I’ve worked for this newspaper for more than ten years, including almost four as editor, and I feel incredibly blessed to have been able to do this for so long. Journalistic tradition dictates that I write a farewell column to impart the wisdom I’ve gained in my time here, but having no real wisdom to impart, I’d just like to say this: Thank you.

Thank you to all of our subscribers, because in the end you are the ones who allowed me to do this exciting work for so long.

When I took over as an editor I added to our masthead a new mission statement, one that I borrowed word-for-word from one of my mentors. It says that our job is to help you practice law better, more efficiently, and more profitably. I hope we’ve been able to do that for you and your firm.

Our work is animated by the belief that the law is a noble profession. Clients typically come

to lawyers because they have a problem. Oftentimes it may be one of the most difficult problems they’ve had to deal with in a long time, and they need a lawyer to help them navigate that problem as best they can. By helping you to provide your clients with the best counsel possible, hopefully we’re also able to help them as they work through whatever challenges brought them into your offices, and in doing so provide a valuable service to a great many people.

What made the work even better was that I had a good time doing it. Writing and editing Lawyers Weekly has always been interesting because every week has always brought something fresh and new to write about, and it’s allowed me to learn about and come to appreciate so many different areas of the law. That’s one of the many things I will miss greatly about this job.

If I do have any advice to offer, it would really just be two things.

First, take good care of yourself, physically, mentally, and emotionally. It will in the long run make you a better lawyer, but far more importantly it will also make you a happier person. Second, when you see opportunities

to offer kindness to other people in our profession—from opposing counsel to support staff to court officials—take those opportunities as often as you can.

In short, be good to yourself, and to one another.

I’m very happy to say that I’m not leaving the legal profession, and I’ve accepted a position with McGuireWoods in Raleigh. I’m very excited about this new opportunity, and I hope that it will allow me to continue to cross paths with many of the people I’ve gotten to know during my time at Lawyers Weekly. I’ve always maintained that this is a community newspaper, and you are the members of the community that we serve. So while I’m leaving the paper, I’m not leaving that community.

There are so many people who have helped me during my time at Lawyers Weekly, more than I could possibly thank here, but I am grateful for all of them, both the ones who have moved on to other things and the ones who are still here. I know that I’m leaving this newspaper in very capable hands. I hope you continue to enjoy reading North Carolina Lawyers Weekly. I know I will.

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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 Ap ri l 25, 2022

Lawyer of the Year Kimberly Zirkle draws on empathy to make a difference ■ BY TERI SAYLOR Minority and underserved populations in Charlotte have a straighter path to justice and prosperity thanks to the efforts of Kimberly Zirkle, a member at Moore and Van Allen of Charlotte, and North Carolina Lawyers Weekly’s 2022 Lawyer of the Year.

At MVA, Zirkle is known for her flexibility, communication skills, creative solutions and responsiveness to clients and colleagues.

Lenders, private equity portfolio companies, and private companies in corporate finance and acquisition transactions make up her client base.

Zirkle is also known for giving back.

As co-chair of MVA’s pro bono and public service committee, Zirkle has spread her giving spirit across the socioeconomic spectrum, providing individuals much needed access to life-changing legal representation they could not otherwise afford.

Victims of human trafficking and domestic violence have benefited from the pro bono services MVA provides.

“I don’t do it alone,” Zirkle said.

“I have an entire team standing with me, and I’m super proud of the firm for providing the resources that allow us to take on pro bono matters.”

Through collaborations with other law firms, MVA’s efforts to

expand access to justice have led to a 60% increase in volunteers within its Human Trafficking Pro Bono Project.

In 2020, The Charlotte Pro Bono Triage, a collaboration among MVA, McGuireWoods and Charlottebased corporate legal departments to support local legal aid organizations, received the Corporate Pro Bono Award from the national Pro Bono Institute, which recognizes innovative partnerships between law firms, in-house legal departments, and public interest organizations to raise awareness of the unmet legal needs in the community and drive volunteerism.

Zirkle’s life experiences shaped her desire to serve others. Growing up in rural west Georgia, she was a dreamer.

“We had a front porch swing and a tree house, where I would spend hours devouring books and daydreaming about all the places I would go one day,” she said.

One of those places was law school. Zirkle, 48, graduated from the University of Tennessee with a bachelor’s degree in political science and economics. And while she kept law school in her sight, it seemed out of reach.

“In addition to lacking the financial resources, I didn’t feel like I had the stamina to invest in a law degree at that time,” she said.

So she enrolled in a paralegal program in Atlanta and joined a sales team at a legal services orga-

nization. Soon, her husband, Erik, a school athletic trainer, landed a job in Charlotte, where she began working as a paralegal in a small law firm.

“I was a paralegal for almost 10 years before I went to law school,” she said. “As a paralegal in a variety of corporate law settings, I worked on many types of transactions and was drawn to the finance practice.”

As much as she enjoyed her paralegal career, law school was never far from her mind. She decided to take LSAT classes, and then realized she was expecting her first child.

“I took the LSAT when I was about five months pregnant, but I put law school on the back burner and went on to have my child while continuing to work as a paralegal,” she said.

After her second child was born, she took the LSAT again to improve her score and was accepted into the University of North Carolina School of Law. By that time her family lived in Salisbury. For her first two years of law school, she spent a few nights a week there and weekends at home.

During her third year, she was able to get by with spending just one night a week in Chapel Hill. She also juggled her studies, kids, and family time with summer associate work and law clerk duties for MVA a few days a week.

Her two children were toddlers,

and to say she did it the hard way is putting it mildly.

“I have always said there’s a fine line between courage and crazy, and for the three years I was in law school, I toed that line,” she said, laughing. “When I took my final exam, my childcare fell through, and I had to bring my daughter with me.”

She offered to take the exam in the hall, but her professor stepped in to watch the two-year-old.

Zirkle grows emotional when she recalls her law school experience and the support she had from See Page 6 ►

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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 Apr il 25, 2022

Introducing North Carolina’s newest lawyers North Carolina Lawyers Weekly would like to congratulate each of the bar applicants who passed the February 2022 North Carolina bar exam. The following names were provided by the North Carolina Board of Law Examiners to recognize those who passed this year’s exam. Applicants who were successful on the February 2022 exam but have not yet taken or passed the MPRE or have not yet successfully completed the North Carolina State-Specific Component are not yet included on the BLE’s list.

Aliyah Shanice Adams Durham Kenbrielle Ard Baltimore, Maryland Jacob Keith Beeson Winston-Salem Dylan Michael Bensinger Charlotte Zachary Charles Bowman Raleigh Andrew Parks Carter Greensboro Donald Clay Clack Raleigh Christina Marie Clemens Whispering Pines Thomas A. Collier Charlotte Ayrin Nicole Cooke Louisville, Kentucky Samuel Wallace Deese Greensboro Matthew Downer Charlotte Daniel Michael Esposito Greensboro Karmyn Marie Eyles Rolesville Alexis Gadzinski Charlotte Huntleigh Frederick Gilbard Winston-Salem Erica Ruby Gloyd Morrisville Adrianna Elizabeth Gomez Fletcher Charles Theodore Hamilton Fayetteville Rosa Maria Hannah Greensboro Alazzia Johnelle Hasty Chicago, Illinois Aerin Nicole Hickey Greensboro Frank Adolphus Jennings Raleigh Robert Lee Kester High Point Sarah Anne Knox Charlotte Jessica Lynn Leach Asheboro Kristen Cooley Lentz Cary

C o nt inu e d f r o m 5 ►

friends, family, and even professors.

“I had such a community of people who wanted to see me succeed,” she said. “And honestly, I think that’s part of why I embraced pro bono work, because how can I not want to see other people succeed who are trying just as hard as I was trying.”

Zirkle began embracing pro bono work in law school, helping victims of domestic violence. These efforts tapped into her deep well of empathy and a sense that this is a calling.

“I grew up in a very rural area for the most part, and in my early years, we didn’t have a lot,” she said. “It’s never lost on me that on any given day, sitting across from any one of my pro bono clients I realize that could be me, and I really think that for the grace of God go I.” Many of those pro bono clients are among the most vulnerable in society. They include human trafficking victims and victims of do-

C o nt inu e d f r o m 2 ►

female firefighter who said she had endured a hostile work environment in which the fire chief and others inflicted emotional distress.

John Hunter, the attorney representing former Asheville firefighter Joy Ponder, confirmed that his client will get $155,000 in compensatory damages. She also voluntarily dismissed her claim in U.S. District Court, Hunter said.

“I believe and hope that this settlement makes a statement that women will not just stand and be silent when treated unjustly,” Ponder said in an email. “The settlement allows me to move forward with my life. I am eager to put this experience behind me and look forward to continuing my work for firefighters dealing with PTSD, as well as other future positive endeavors.”

Hunter told the Asheville CitizenTimes that it was unusual for a gen-

Haley Rebekah Litaker Landis Gabriella Lopez Greensboro Samuel Vankat Luchansky Pinehurst Anna Christine Marquardt Greensboro Hilary McLeod Raleigh Eliza Morgan Jacobs Meredith Little Rock, Arkansas Cameron Nieters Winston-Salem Elizabeth Lauren Feld Oblachinski Charlotte Holly O’Neill Jupiter, Florida Cara E. Palmer Charlotte Leah Jane Parady Durham Christian James Pedersen Cary Richard Perez Winston-Salem Bryant M. Pernell Kenbridge, Virginia Harrison Teasley Preddy Creedmoor Charlie Schatz Wilson Torrance Monteff Smith Raleigh Emily Elizabeth Squicciarini Raleigh Cara Beth Thierbach Indian Trail Allison Thomas Indian Trail Xavier Torres de Janon Charlotte McKenzie Stokes West Wilkesboro Jonathan Dalton White Sanford Savannah Victoria Williamson Greensboro Jared Emerson Willis Greensboro Kelsie Anne Wiltse Charlotte Eden Zakay Carrboro

mestic violence. She finds inspiration in their success stories.

She recalls one pro bono client she represented in a domestic violence case who did not speak English and was living in a shelter with her child.

“She was probably one of the most broken individuals I have ever met in my life,” Zirkle said. “It wasn’t just about getting her case resolved in court, it was about helping alleviate her worry and fear.”

Zirkle is happy to report that after the case ended, the client thrived. She got a job, bought a house, and her child began excelling in school.

Following George Floyd’s death in 2020, leaders across the Mecklenburg County bar, including Tom Mitchell, MVA’s managing partner, began looking for ways lawyers could help advance racial justice and equity in the Charlotte area. They formed the Carolinas Social Impact Initiative to provide legal services to low-income entrepreneurs and small businesses owned by mem-

bers of diverse communities, viewing this effort as key to advancing economic mobility and an important step toward economic equity.

In 2021, Zirkle and others at MVA worked with the Robinson Bradshaw law firm to form CLIMB – Charlotte Legal Initiative to Mobilize Businesses, a collaborative effort that provides eligible entrepreneurs and small business owners full-service representation on nonlitigation business law matters. The coalition focuses on four areas: supporting minority-owned businesses and entrepreneurs; advancing educational opportunities; supporting family stability and social justice; and improving access to social capital and career opportunities.

In less than two years, CLIMB has served over 60 entrepreneurs in the Charlotte area.

“We’re still in the pilot phase, and we’re trying to open it up to more lawyer volunteers from different firms and serve more entrepreneurs,” Zirkle said. “We’re very excited about this, because we deal

with a lot of clients who are going through hardships, economic struggles and other issues, and this project is one of the things we can do to start rewriting their stories.”

Zirkle is also laying the groundwork for other lawyers to follow in her footsteps. She works with the MVA attorney development committee to tie pro bono cases to associates’ training requirements and is increasing internal marketing of the good work the firm’s attorneys and staff are doing.

She also believes the lessons she learns from her pro bono clients helps make her a better lawyer by instilling empathy for those she faces across her desk.

“For many attorneys like me, it’s not hard to remember when we were the ones dealing with life’s circumstances and seeking better opportunities,” she said. “I think doing this work helps keep us grounded and helps us understand there are real people with real struggles out there, and we have the power to help.”

der discrimination case to survive summary judgment.

“The city didn’t come forward with settlement offers until that happened,” he said.

A federal judge ruled in March that the discrimination lawsuit filed

by Ponder, one of the highest ranking women in a North Carolina fire department, could proceed based on a claim of “disparate treatment.”

Attorneys for the city of Asheville and Fire Chief Scott Burnette had asked U.S. District Court Judge Martin Reidinger for a pre-trial summary judgment throwing out all claims by Ponder.

Reidinger dismissed claims against Burnette, writing in his order that he could not be held responsible under the 1964 Civil Rights Act’s Title VII against employment discrimination because the U.S. Fourth Circuit Court of Appeals said “supervisors are not liable in their individual capacities for Title VII violations.”

But the city, as the chief’s employer, could be held liable for his actions, which may have amounted to disparate treatment of Ponder based on her gender, the judge wrote.

In a statement, Burnette focused on the direct claims against him that were dismissed, saying they had been deemed unjustified in prior reviews, including by the city’s Civil Service Board.

“This is the fifth, and now thankfully final, time that her unfair allegations have been reviewed and dismissed,” the chief said. “I am happy that this is finally behind us and that we can move on.”

A trial had been scheduled for May 9.

Ponder, who resigned from her post as Asheville Fire Department division chief in September 2020, said she faced years of harassment and gender discrimination from Burnette after she led outside research on the prevalence of post-traumatic stress

disorder among city firefighters.

Ponder, who became division chief in 2014, took a leave of absence in early 2019 because of breast cancer.

She said that when she returned at the end of the year, Burnette and the deputy chief “designed and executed an effective demotion and campaign to display me as a poor performer and divisive employee.”

She was placed under her bosses’ close supervision — “effectively surveillance,” she said — told to stay away from the firefighters under her command and moved to an isolated corner office from which she said she “was afraid to even walk to the restroom or copier.”

“The continued harassment and abrupt disruption of my schedule and life that I had maintained successfully for many years led to a deterioration in my physical and mental health, and I was forced to leave,” Ponder told The Associated Press in 2021.

NEWS / 7

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 25, 2022

DEPOSITIONS / Restraints must be narrowly tailored C o nt inu e d f r o m 1 ►

wasn’t addressed immediately.

Stroud also found that even if the appeal was mooted by the ending of pandemic-related restrictions, the court still had a duty to consider an important question involving a matter of public interest.

“Here, the public interest exception applies because the issue of banning counsel from being present in-person with their clients during depositions is a matter of first impression with a potentially far-reaching effect. The impact of COVID-19 and myriad restrictions imposed by various jurisdictions and entities is a still subject of significant public interest,” Stroud wrote, citing COVID-related proclamations from the chief justice as recent as one from February 2022.

Turning to the merits, Stroud wrote that limitations on the personal attendance by counsel at a deposition are unusual. No North Carolina case had previously addressed such limitations, and the very few federal cases that have done so all involved protecting a deponent from some sort of personal harassment or threat.

So Stroud turned to the court’s 2017 decision in Tropic Leisure v.

Hailey, in which it refused to recognize a judgment from a court in the U.S. Virgin Islands because of its practice of prohibiting litigants from having attorneys. In Tropic Leisure, the court ruled that the due process right to be heard through retained counsel includes assistance at “the critical fact-finding phase of the litigation” and that there “is simply no substitute” for the opportunity to have a party’s chosen counsel develop the factual

record.

“Based on Tropic Leisure and the cases upon which it relied, we hold the due process right to retain and have counsel heard in civil cases extends to having the assistance of retained counsel at depositions. Tropic Leisure and the federal cases it relied upon emphasize the importance of having retained counsel’s assistance throughout the legal process including fact-finding phases such as discovery,” Stroud wrote, saying that discovery is a particularly pertinent stage of litigation because depositions can be used at trial to impeach witnesses or even in place of witness testimony in certain circumstances.

The due process right to the assistance of retained counsel in civil cases has limits, however, and the court found persuasive the approach to analyzing the boundaries of that due process right set forth in Danny B. ex rel. Elliott v. Raimondo, a 2015 decision from the 1st U.S. Circuit Court of Appeals. In Danny B., the 1st Circuit held that a court may not restrain a litigant’s access to counsel without some substantial justification, and any such restraint should be narrowly tailored to respond to the concern that prompted it.

Stroud said that the issue in Hall’s case was more nuanced, but the same reasoning supporting a due process right to have retained counsel at depositions in general also supported a narrower right to have counsel physically present, as in-person access to counsel has benefits over counsel merely participating in depositions remotely apart from their clients.

“In the context of depositions, an attorney may need to step in to

object to the form or substance of questions or even to protect privileged material. The attorney’s role in protecting privileged material is especially important because privileges aim to ensure privileged information is never revealed to the other side,” Stroud wrote. “An attorney may choose to participate apart from her client, but a court order forcing an attorney to participate remotely, physically apart from the client, implicates the client’s due process rights.”

As a result, the order banning litigants’ attorneys from assisting in person at all depositions, which could include depositions of their clients, without any consideration of the circumstances of each deposition, implicated the defendant’s due process rights, Stroud wrote.

While the COVID-19 pandemic presumably constituted a substantial interest, the order was still in error because it wasn’t narrowly tailored and the trial court could have used a less restrictive approach to achieve the same outcomes, and the trial court failed to consider the specific circumstances of the particular witnesses and locations at issue.

Stroud noted that the trial court’s order was issued in the very early days of an unprecedented public health emergency and “hindsight is 20/20, and we recognize this Court has the benefit of hindsight but the trial court did not.”

But while the trial court couldn’t be expected to foresee how COVID-related restrictions might be loosened in the future, it nevertheless erred by restricting the defendant’s right to the presence of retained counsel at all depositions without allowing for this possibility.

Judge John Tyson concurred in the ruling. Judge Chris Dillon dissented. Dillon would have held that the trial court’s order didn’t affect a substantial right, and even if it did, there was no showing that this right would have been lost without an immediate appeal. Reaching the merits, Dillon said he did not believe the order violated the defendant’s due process rights.

Kyle Nutt of Reiss & Nutt in Wilmington represented Hall. Nutt said that at least two other law firms reached out to him about the case because they were having similar issues in their own cases. Nutt also said that he was not particularly concerned about losing the appeal, as he believes the issue was now moot, but that the far bigger concern was the delay to his client’s case.

“It is essential that this case be moved along expeditiously to ensure her right to have her day in court,” Nutt said. “If she were to pass away before she had a chance to look the jury in the eye, I view that as being far more prejudicial to the administration of justice than a defense attorney not being allowed to be there physically hold the hand of his or her client at a deposition.”

Norman F. Klick Jr. and Jerry Allen of Walker Allen and Rob Harrington of Robinson Bradshaw in Charlotte represented Wilmington Health. They could not be reached for comment on the court’s ruling.

The 44-page opinion is Hall v.

Wilmington Health, PLLC (Lawyers Weekly No. 011-089-22). The full text of the opinion is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan

SUGAR BABY / No protection for extortionate speech C o nt inu e d f r o m 1 ►

In December 2016, after the man had divorced and remarried, Bowen reached out to him on LinkedIn and through emails and certified letters to his home, informing him that she was going to publish a tell-all book about her experiences on the website, including their “paid sexual relationship.” She told the man that she may appear on the Dr. Phil show to promote the book and that he might be asked to appear as well.

The man retained an attorney and ultimately reached out to detectives after Bowen continued to message him, hoping to persuade him to make a monetary offer in exchange for a confidentiality agreement—asserting that other men had offered her six figure sums to remain mum—and threatening to contact his current wife.

Under the detective’s direction, the man offered Bowen $250,000.

Bowen was arrested after accepting the offer and sending a confidentiality agreement to the man.

Inside her home, detectives found confidentiality agreements but no evidence of a book in the works or of any contact with a publisher or talk show host.

At trial, Mecklenburg County

Superior Court Judge George Bell denied Bowen’s motion to dismiss.

She was subsequently convicted of extortion and received a suspended sentence of two years of supervised probation.

Bowen argued on appeal that the trial court had erred in denying her motion to dismiss because the First Amendment requires the state’s extortion statute to be construed to apply only to “true threats,” an objectively threatening statement communicated with the subjective intent to threaten, although the speaker need not intend to carry out the threat.

Bowen relied on the appeals court’s 2020 decision in State v.

Taylor, requiring a “true threat reading” to be applied to every anti-threat statute. In Taylor, the court overturned the conviction of a man whose Facebook posts were construed as threats to kill court officers. The state’s Supreme Court affirmed, finding that the defendant couldn’t be convicted “solely for publishing the messages contained” in the posts.

No shield for criminal speech

In Bowen’s case, the appeals court noted that any North Carolina statute that criminalizes speech, pursuant to the U.S. Su-

preme Court’s ruling in Watts v.

United States, “must be interpreted with the commands of the First Amendment clearly in mind” and that the state, not the defendant, must prove that disputed speech is unprotected speech.

The court further noted an emerging trend in appellate and federal courts toward holding that the First Amendment requires all statutes governing threats to be construed as requiring a true threat. But it declined to extend the true threat requirement to North Carolina’s extortion law because the act of extortion falls outside First Amendment protections.

“As the Fifth Circuit colorfully expressed in [U.S. v.] Quinn, ‘it may categorically be stated that extortionate speech has no more constitutional protection than that uttered by a robber while ordering his victim to hand over the money, which is no protection at all,’” Wood wrote.

The court determined that while the government generally may not proscribe speech, certain categories—defamation, fighting words, and true threats, among them—may be restricted where its benefits are outweighed by “social interest in order and moral-

ity.” And while the “true threat” requirement has been applied to speech surrounding political hyperbole, courts have been reticent to apply it to extortion.

Among other cases, Wood cited a 2015 federal district court decision from New York, U.S. v. Kirsch, which found that true-threat jury instructions shouldn’t be read in conjunction with extortion statutes because the statutes already contain sufficient intent requirements, and there is thus “no need to further separate innocent conduct from wrongful conduct.”

“We agree with the reasoning of the federal courts and hold that extortionate speech as prohibited

by N.C. Gen. Stat. § 14-118.4 is not constitutionally protected speech,” Wood wrote. “Thus, a ‘true threat’ application and analysis … is unmerited.”

Associate Attorney General Brian Miller represented the state.

Assistant Appellate Defender Aaron Johnson represented the defendant.

The 16-page decision is State v.

Bowen (Lawyers Weekly No. 011084-22). The full text of the opinion is available online at nclawyersweekly.com.

Follow Heath Hamacher on Twitter @NCLWHamacher

8 / OPINION DIGESTS

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Apr il 25, 2022

Opinions N.C. COURT OF APPEALS

8

N.C. BUSINESS COURT

N.C. COURT OF APPEALS

Criminal Practice Search & Seizure – Expectation of Privacy – After-the-Fact Consent – Locked Safe Although defendant did not own or lease the house in which a locked safe was found, and although he disclaimed any interest in the safe, the state nevertheless failed to show that defendant lacked an expectation of privacy. The evidence showed that, (1) when police officers saw a suspect (Thompson) knock on the residence’s door late at night, it was defendant, out of the four persons present in the house, who opened the door; (2) an officer saw defendant locking the safe with a key and putting the key in his pocket; and (3) defendant did not deny his connection with the residence and disclaim ownership of the safe until after officers effected a warrantless entry into the residence and detained its occupants. The record does not support a finding that defendant lacked a reasonable expectation of privacy in the residence.

We reverse the trial court’s denial of defendant’s motion to suppress.

The evidence suggests that defendant had some authority over who would be admitted to the residence and that he owned the safe and had permission to keep it in the residence.

This demonstrates that defendant had more than a mere legitimate presence on the premises.

Furthermore, although defendant disclaimed interest in the safe after the officers’ warrantless entry into the house, when an individual discards property as the product of some illegal police activity, he will not be held to have voluntarily abandoned the property or to have necessarily lost his reasonable expectation of privacy with respect to it.

Exigent Circumstances

Warrantless entry into a house in pursuit of a suspect is permissible only when officers have probable cause. The trial court found only that Thompson “looked like [he was] going to get into” the stolen car, “was touching the stolen car,” saw the patrol car, and then tried to escape into the residence. The state presented no evidence that Thompson had reason to believe the car was stolen.

While the state presented evidence that the drug paraphernalia might be seen through the open front door, it did not present evidence that Officer Williams was actually aware of its presence and concerned for its potential destruction in his brief time at the door prior to entering the residence.

As to the potential destruction of the stolen car’s keys, the state has failed to offer a credible explanation of how this evidence would be readily destructible such that the officers’ immediate entry was necessary.

15

N.C. COURT OF APPEALS, UNPUBLISHED

The state contends that Thompson’s ability to put the car keys down presented a risk of destroying the evidentiary link between Thompson’s possession of the keys and the stolen Infiniti. The state suggested that the officers’ ability to enter the residence and conduct a search to prevent this from happening would be “beneficial” to a subsequent prosecution for possession of the stolen vehicle. The state’s argument fails in part because in a prosecution for possession of a stolen vehicle, the state may proceed on a theory of constructive possession or recent possession, notwithstanding a lack of actual possession of a stolen vehicle or its keys.

More fundamentally, the state’s theory of imminent destruction of evidence is not borne out by the facts of this case: Officer Williams entered the residence just moments after arriving at the front door. Thompson had left the door open and was talking to Williams immediately before Williams entered.

The totality of the circumstances in the present case does not reveal exigent circumstances sufficient to justify the officers’ warrantless entry into the private residence.

Consent

The record indicates that occupant Deitz either owned or leased the residence. The state argues that Deitz gave his consent to officers’ search of the residence.

However, the record is clear that the officers did not determine Deitz was the occupant of the residence, speak with him, or gain his consent to search the residence until after they had illegally entered the residence without a warrant. Accordingly, the subsequent consent to search can justify the denial of defendant’s motion to suppress only if the taint from the officers’ initial warrantless entry had dissipated.

The officers entered a private residence, without a warrant or probable cause, within seconds of engaging Thompson at the door. Such physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.

The record demonstrates that the officers secured Deitz’s consent closely on the heels of their entry into residence and their decision to “lock it down,” which Officer Carson testified included prohibiting those present from leaving. Officer Williams decided that the officers would lock down the residence just 30 to 45 seconds after entering. Officer Carson testified that the officers placed the four individuals in handcuffs and informed them that they would be detained until the officers obtained a warrant.

The record does not reflect any other intervening circumstances between the officers’ entry into the residence and Deitz’s acquiescence in the search which would attenuate the taint of the officers’ illegal entry. Because the taint of the initial illegal entry had not dissipated, Deitz’s consent to search cannot justify the officers’

16

warrantless entry into and search of the residence.

Search Warrant

The state contends the search pursuant to a warrant was valid because it was based on apparent drugs and paraphernalia that were in plain view. However, the state did not present any evidence that the drugs and paraphernalia were observed prior to officers’ entry into the residence.

While officers saw (1) a stolen car in a parking lot behind the residence, (2) Thompson’s approach to the stolen car, and (3) Thompson’s retreat to the residence, this information fails to establish probable cause to search the residence for evidence of possession of heroin and drug paraphernalia.

Because the affidavit supporting the issuance of the search warrant, stripped of the facts obtained by the officers’ unlawful entry into the residence, does not give rise to probable cause to search the residence for the evidence of drugs and drug paraphernalia described in the warrant, the warrant and the search conducted under it were illegal and the evidence obtained from them was fruit of the poisonous tree.

Reversed and remanded.

State v. Richard Henry Jordan (Lawyers Weekly No. 011-086-22, 25 pp.) (Allegra Collins, J.) Appealed from Mecklenburg County Superior Court (Daniel Kuehnert, J.) Christopher Brook for defendant; Joseph Hyde for the state. 2022-NCCOA-215

Criminal Practice Search & Seizure – Traffic Stop – Ongoing Investigation – Consent The car in which defendant was riding was stopped for speeding 47 mph in a 35-mph zone, and the traffic stop was extended when the officer smelled marijuana inside the car. Where (1) the officer had not yet issued a warning or citation for the speeding and marijuana offenses and (2) at the time, the officer was authorized to take defendant into custody based on the discovery of marijuana, the mission of the traffic stop was not complete, and the officer was permitted to ask the vehicle’s occupants a question unrelated to the traffic infraction.

We affirm the trial court’s denial of defendant’s motion to suppress items found in a later search of his home.

Even if the mission of the traffic stop and its initial extension were completed, the officer likely had probable cause to could further extend the stop because defendant was suspected of selling cocaine and heroin based on (1) a confidential informant’s tip, (2) the visits of many people to the apartment defendant shared with his girlfriend (the driver of the car) in a short amount of time, and (3) a controlled purchase by the CI. Since the officer could likely meet the higher standard for probable cause based on the results of the ongoing investigation,

he could necessarily meet the less demanding standard of reasonable suspicion. The officer was justified in extending the seizure to question defendant about the sale of heroin and cocaine even though it was unrelated to the traffic violation.

Where (1) the officer merely said he “felt like” he had probable cause to apply for a warrant to search defendant’s home; (2) upon arriving at the apartment, the officer removed the handcuffs from defendant and his girlfriend; (3) the officer informed them of their right to refuse the search; and (4) defendant’s girlfriend was asked to sign a consent form, the trial court did not err in concluding that defendant and/or his girlfriend freely and voluntarily consented to the search of their apartment.

State v. Jordan (Lawyers Weekly No. 011-087-22, 15 pp.) (Toby Hampson, J.) Appealed from Guilford County Superior Court (Stuart Albright, J.) John Payne for the state; Benjamin Kull for defendant. 2022-NCCOA-214

Criminal Practice Sex Offense with a Child – Photographic Evidence – Condoms & Dildo – Not Prejudicial The 12-year-old victim testified that, prior to the assault, defendant had shown him square plastic packets, winked at him, and told him not to tell the little kids. The trial court did not err in admitting photos of condoms in square plastic packets, as this corroborated the victim’s testimony about grooming behavior.

One of the photos of the condoms also showed two dildos. This evidence was irrelevant to the offenses charged and should have been excluded. However, we find no prejudice because (1) despite the trial court’s ban on evidence of defendant’s sexuality, evidence implying that defendant is bisexual or gay was introduced without objection and is not challenged in appeal and (2) the state’s only references to the dildos were in the laying of the foundation for the photographs and admitting the photos into evidence. Moreover, the other evidence of defendant’s guilt is sufficiently strong that the improperly admitted evidence did not have a probable impact on the jury.

We find no reversible error in defendant’s conviction of first-degree sex offense with a child under G.S. § 14-27.4(a)(1). However, we vacate the trial court’s satellite-based monitoring (SBM) order and remand without prejudice to the state’s ability to file a subsequent SBM application.

After trial, defendant, the state and the trial court all incorrectly agreed that defendant had been convicted of a sexual offense with a child under G.S. § 14-27.28 and therefore was subject to mandatory lifetime SBM. In reality, defendant was convicted of what was codified at § 14-27.4(a) (1) at the time of the offense and had been recodified to G.S. § 14-27.29 by

OPINION DIGESTS / 9

N O R T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 25, 2022

the time of trial. Defendant was ineligible for automatic lifetime SBM because the trial court found the other grounds for automatic lifetime SBM were not present.

However, defendant was eligible for the risk-assessment track under G.S. § 14-208.40A(d) and (e). The state may file an SBM application on remand.

Finally, defendant challenges the trial court’s failure to release parts of the victim’s DSS and school records to him. After review of the sealed documents, we find that they were favorable to defendant. But after a careful consideration of this case in its entirety, we find that the withheld documents do not undermine our confidence in the outcome of defendant’s trial; therefore, the withheld documents were not material.

No error in part; vacated and remanded in part.

State v. Sheffield (Lawyers Weekly No. 011-088-22, 28 pp.)

(Hunter Murphy, J.) (John Arrowood, J., concurring in result only without separate opinion) Appealed from Caldwell County Superior Court (Joseph Crosswhite, J.) Joseph Finarelli for the state; Amanda Zimmer for defendant. 2022-NCCOA-216

Civil Practice Discovery – Depositions – RemoteOnly Order – Constitutional – Due Process – First Impression A civil litigant’s due process right to the assistance of retained counsel extends to depositions, and the trial court violated that right when it ordered that all depositions in this case be taken by “remote videoconferencing in separate locations from the witness” and that “no counsel shall be physically present with the witness at any deposition.”

We reverse the trial court’s discovery order. Remanded.

This appeal arises from a discovery dispute in a medical malpractice action based on defendant’s alleged failure to timely diagnose skin cancer.

The trial court was dealing with a discovery dispute in the context of an unprecedented public health emergency. But the courts “shall be open” and the Constitution is not suspended by any pandemic or emergency directives.

Plaintiff sought video-conferenced depositions mainly because of plaintiff’s counsel’s concerns about his own health. The trial court’s written order addressed a subject not raised before in the parties’ filings or at the hearing: whether deponents could have counsel present in person with them.

Appellate Jurisdiction

Civil litigants have a due process right to be heard through counsel that they themselves provide. Especially in the realm of privileges, which stop the other side from ever knowing the privileged information, defendant could suffer harm—namely the inability to assert privilege and subsequent revelation of privileged information—if this order is not addressed before final judgment.

The order on appeal affects a substantial right in that it threatens defendant’s constitutional due process rights. Therefore, we have jurisdiction to hear this interlocutory appeal.

Due Process & Right to Counsel

The limitation on personal attendance of a deposition by counsel is unusual; no North Carolina case

has previously addressed this type of limitation.

Plaintiff’s concerns arose from “undue burden or expense” caused by health risks posed by COVID-19 and limitations on travel created by COVID-19 emergency orders. Thus, the trial court had discretion to enter an order limiting discovery under N.C. R. Civ. P. 26 and 30, for good cause shown, but the question presented here is whether those limitations went so far as to infringe upon defendant’s due process rights to representation by counsel in the depositions of its own employees and expert witnesses.

Based on Tropic Leisure Corp. v. Hailey, 251 N.C. App. 915, 796 S.E.2d 129 (2017), and the cases upon which it relied, we hold the due process right to retain and to have counsel heard in civil cases extends to having the assistance of retained counsel at depositions. Tropic Leisure and the federal cases it relied upon emphasize the importance of having retained counsel’s assistance throughout the legal process including fact-finding phases such as discovery.

Discovery is a particularly pertinent stage to ensure the right to assistance of retained counsel in civil cases because depositions can be used at trial to impeach witnesses or even in place of witness testimony in certain circumstances.

The trial court’s order banning retained counsel from being physically present with their client during depositions, without consideration of the circumstances of the particular deposition or preferences of the deponent and attorney involved in the deposition, violates the Due Process Clause.

The reasoning supporting the due process right to retained counsel at depositions in general supports a narrower right to have counsel physically present. The attorney’s role in protecting privileged material is especially important because privileges aim to ensure privileged information is never revealed to the other side. In these situations, an attorney’s physical presence provides greater protection to a client than interacting remotely.

Presuming arguendo the COVID-19 pandemic constitutes a substantial interest, the trial court order barring attorneys from attending a deposition in person with their own clients and witnesses during otherwise remote depositions was in error because it was not narrowly tailored.

The trial court could have allowed remote depositions to account for the health concerns of plaintiff’s counsel without also preventing defendant’s counsel and parties who may not have the same health concerns from being together during a deposition. Since the trial court possessed less restrictive means at its disposal to achieve the same goals, it did not narrowly tailor its restriction on defendant’s due process rights to retained counsel and to have retained counsel physically present.

The trial court erred by restricting defendant’s right to the presence of retained counsel at all depositions without regard to the circumstances of a particular deposition and without allowance for changes in the restrictions related to COVID19.

Denial of the right to assistance of retained counsel frustrates the right to counsel, which is a right of the highest order of importance. As such, prejudice can fairly be presumed.

Reversed and remanded.

Dissent

(Dillon, J.): My vote is to grant plaintiff’s motion to dismiss based on my conclusion that the discovery order is interlocutory and does not affect a substantial right.

The majority cites numerous cases for the proposition that a party has a due process right to counsel at depositions. I do not disagree. But these cases are not relevant to this appeal, as there is nothing in the appealed order prohibiting defendant’s counsel to be present and fully participate in depositions, albeit remotely.

And I do not believe that the order’s prohibition of defendant’s counsel to be physically present in the same room as any deponent violates defendant’s due process rights, which is the basis of defendant’s “substantive right” argument.

Even if there is some implication of due process rights, there is no showing that the order risks this substantial right being lost without an immediate appeal. I note the majority’s concern of some risk that a deponent might divulge confidential information without their attorney being in the same room. However, other courts have considered similar issues and have demonstrated that a party is not unduly prejudiced by not having counsel in the same room to defend a deposition.

Hall v. Wilmington Health, PLLC (Lawyers Weekly No. 011-08922, 44 pp.) (Donna Stroud, C.J.) (Chris Dillon, J., dissenting) Appealed from New Hanover County Superior Court (Stanley Carmical, J.) Kyle Nutt for plaintiff; Norman Klick, Jerry Allen and Robert Harrington for defendant.

2022-NCCOA-204

Municipal Real Property – Subdivision Approval – Illegally Exacted Funds – First Impression – Off-Site Improvement Requirements Although the plaintiff developer spent a total of $993,584 to meet its obligations under the parties’ Mitigation Measures Agreement,” much of that sum was paid to other parties, and G.S. § 160A-363(e) required the defendant-town to repay the developer only the amount the developer paid directly to the town.

We affirm summary judgment for the developer. We also affirm the trial court’s award of attorney’s fees.

However, we reverse the judgment amount and remand for a determination of precisely how much plaintiff paid directly to the town.

G.S. § 160A-363(e) provided, “If the city is found to have illegally exacted a tax, fee, or monetary contribution for development or a development permit not specifically authorized by law, the city shall return the tax, fee, or monetary contribution plus interest…” Although the developer spent a total of $993,584 to meet its obligations under the parties’ “Mitigation Measures Agreement,” the trial court determined that only a portion of that sum was paid directly to the town, i.e., was “exacted” by the town.

Neither party cites any case that directly addresses this issue in interpreting § 160A-363(e). However, we agree with the town’s interpretation of the text of § 160A-363(e). Although the statute is silent as to whether the town must be the recipient of the funds to be returned, the town cannot “return” that which it has not received. Thus, we affirm the trial court’s conclusion of law that funds

paid to entities other than the town were not “exacted” by the town.

Other Issues

G.S. § 160A-372(f) provided that, in lieu of requiring a developer to build the streets of its planned subdivision, a town could require the developer to provide funds that the town could use for the construction of roads to serve residents and invitees of the subdivision, and those funds could be used for roads which served more than one subdivision within the area. This statute did not authorize the defendanttown to require the plaintiff-developer to make off-site improvements to account for increases in traffic attributable to the proposed subdivision.

Because the town violated a statute or case law setting forth unambiguous limits on its authority, the trial court did not err in awarding attorneys’ fees to the developer.

With the exception of the motion for litigation costs and attorneys’ fees pursuant to G.S. §§ 1-263 and 6-21.7, every claim the developer raised in its complaint was resolved by the issuance of a writ of mandamus. The trial court correctly determined that the developer’s claims, other than the motion for litigation costs and attorneys’ fees, were rendered moot by the issuance of the writ of mandamus, in that each claim sought relief from the town’s requirement of off-site improvements as a condition of development approval. Because the issuance of the writ of mandamus provided the relief that the developer sought, at that point, further determination of the developer’s remaining claims could not have any practical effect on the existing controversy. Thus, the trial court did not err in dismissing any remaining claims as moot.

Affirmed in part, reversed in part and remanded.

TAC Stafford, LLC v. Town of Mooresville (Lawyers Weekly No. 011-090-22, 21 pp.) (Valerie Zachary, J.) Appealed from Iredell County Superior Court (Martin McGee, J.) Madeline Trilling and James Scarbrough for plaintiff; Steven Bader and Patrick Flanagan for defendant.

2022-NCCOA-217

Municipal Vance Monument – Civil Practice – Standing – Completed Restoration Contract The parties’ contract contemplated plaintiff’s restoration of the Zebulon Baird Vance Monument and the restored monument’s subsequent donation to the defendant-city. Since plaintiff had no ongoing contractual or ownership interest in the monument, plaintiff suffered neither injury nor infringement of a legal right when—after the monument was restored and the city accepted plaintiff’s donation of it—the city decided to remove and deconstruct the monument.

We affirm the trial court’s dismissal of plaintiff’s complaint.

Although there was evidence that a contract existed, there was insufficient evidence that the city breached the contract.

Society for the Historical Preservation of the Twenty-Sixth North Carolina Troops, Inc. v.

City of Asheville (Lawyers Weekly No. 011-091-22, 14 pp.) (John Arrowood, J.) Appealed from Buncombe County Superior Court (Alan Thornburg, J.) Edward Phillips for plaintiff; Eric Edgerton for defendant.

2022-NCCOA-218

10 / OPINION DIGESTS Civil Practice Involuntary Commitment – Evidence – Hearsay – Expert Opinion Although respondent argues on appeal that the trial court erred by crediting the hearsay-based opinion of Dr. Zarzar, respondent did not object to Dr. Zarzar’s testimony at his hearing. In any event, Dr. Zarzar testified as an expert witness and so was entitled to rely on respondent’s medical history and prior incidents of psychosis—such as walking in the middle of traffic while actively psychotic—as a basis for his opinion that respondent was a danger to himself.

We affirm the trial court’s involuntary commitment order.

In re A.J.D. (Lawyers Weekly No. 011-092-22, 11 pp.) (Toby Hampson, J.) Appealed from Wake County District Court (Anna Worley, J.) Milind Dongre for the state; Jillian Katz for respondent. 2022-NCCOA-258

Criminal Practice Juvenile – Extortion – First Impression – Victim’s Name – ‘True Threat’ – Constitutional – Free Speech Where the juvenile petition alleged that eighth-grader “Jeremy” used a “photo of the [eighth-grade] victim only wearing a bra and underwear” and “[threatened] to expose the picture if the victim refused to buy or do what he asked,” the petition clearly apprised Jeremy of the conduct for which he was being charged with

sufficient specificity to allow him to prepare an adequate defense. The petition’s omission of the name the victim did not deprive the trial court of jurisdiction.

We affirm the trial court’s denial of Jeremy’s motion to dismiss, but we remand for additional findings in compliance with G.S. §§ 7B-2411 and -2501(c).

Neither party cites nor has our review revealed any North Carolina precedent which dictates whether a charging instrument for extortion requires the victim to be named, much less to what degree of specificity the victim should be named.

Our armed robbery jurisprudence requires a charging instrument to include sufficient allegations to show defendant used a dangerous weapon to take personal property from someone other than himself, i.e., that defendant acted with the requisite felonious intent to take another’s property, not his own.

However, the crime of extortion could apply to “property” beyond items of personal property subject to robbery. G.S. § 14-118.4 applies where the defendant seeks to obtain “anything of value or any acquittance, advantage, or immunity.” What matters in an extortion case is the wrongfulness of the method by which the defendant seeks to obtain something of value.

We hold that an instrument charging extortion need only apprise the charged party of the material elements of the offense of extortion: (1) that a wrongful demand was made with (2) the intent to demand something of value.

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Threat

Jeremy asserts that “true threat” crimes require the state to show the defendant threatened “unlawful physical violence” as an essential element of the crime, and that the state was unable to show Jeremy made such a threat. Yet, restricting the crime of extortion to threats of physical violence would defeat the purpose of the crime. Agnostic of subsequent First Amendment jurisprudence, this court has held, “The definition of extortion in G.S. 14–118.4 covers any threat made with the intention to wrongfully obtain ‘anything of value or any acquittance, advantage, or immunity.’” State v. Greenspan, 92 N.C. App. 563, 374 S.E.2d 884 (1989).

Even if we assume that § 14-118.4 codifies the crime of extortion as an anti-threat statute within the definition contemplated in State v. Taylor, 379 N.C. 589 (2021), First Amendment “true threat” analysis does not require a threat to include “unlawful physical violence.”

Neither our Supreme Court nor the U.S. Supreme Court has ever explicitly defined the scope of the true-threats exception to the First Amendment. There is no federal or North Carolina state constitutional rule that threats are protected speech unless they threaten unlawful physical violence. The state was under no burden to prove that Jeremy threatened unlawful physical violence.

Other Issues

Jeremy argues there was a fatal variance between the charging instrument and the evidence. The charging instrument alleged that Jeremy sought to “obtain food from the school cafeteria”; however, the evidence showed that Jeremy wanted homework answers while it was his friends who demanded cookies from the cafeteria. The quoted language from the charging instrument was unnecessarily specific and therefore surplusage. Jeremy was appropriately apprised of the offense for which he was being charged. The evidence did not create a fatal variance.

However, the trial court failed to make the findings required by §§ 7B-2411 (that the allegations in the petition were proven beyond a reasonable doubt), 7B-2512 (appropriate findings and conclusions in the disposition order), and 7B-5201(c) (consideration of statutory factors).

We find no error in part but vacate in part and remand for further findings.

In re J.A.D. (Lawyers Weekly No. 011-093-22, 28 pp.) (Jefferson Griffin, J.) Appealed from Surry County District Court (Thomas Langan, J.) Melissa Walker for the state; Jillian Katz for respondent. 2022-NCCOA-259

Workers Compensation Statute of Limitations – Tolling – Mental Illness – Incompetency Even though plaintiff struggled with mental illness during the two years after her alleged workplace injury, since she has not shown that she was mentally incompetent during that time period, the two-year time limit for filing a workers’ compensation claim was not tolled.

We affirm the Industrial Commission’s conclusion that it lacked jurisdiction over plaintiff’s claim.

Facts

In a claim initiated on October 29, 2018, plaintiff alleges she suffered workplace injuries on April 20, 2007.

Plaintiff alleges she began experiencing auditory disturbances “a few weeks later,” which eventually led to her diagnosis of schizophrenia in April 2009.

Plaintiff was involuntarily committed on several occasions, including April 5-9, 2009, and April 16-29, 2009.

On May 11, 2017, the Social Security Administration (SSA) adjudicated plaintiff disabled, with an onset date of September 1, 2010.

Discussion

Plaintiff’s claim was not filed within the two-year limit set by G.S. § 9724. However, under G.S. § 97-50, that time limit would not run against her if she were mentally incompetent.

The record reflects that plaintiff has never been adjudged incompetent. Under G.S. § 35A-1101, an adult is incompetent if she lacks the mental competence to manage her own affairs.

The record shows that, even during her inpatient admissions, plaintiff was still able to manage her own affairs and make important decisions.

Moreover, by November 11, 2009, her psychiatrist found plaintiff to be stable and capable of returning to work.

G.S. § 122C-203 says commitment to a facility due to a mental illness “shall in no way affect incompetence proceedings as set forth in [G.S.] Chapter 35A.” We conclude that the initiation of involuntary commitment proceedings against plaintiff in 2009, 2012 and 2015 is not determinative of her mental competence in her 2007 workers’ compensation claim.

SSA’s determination of disability is based on several factors. It does not prove that plaintiff was incompetent under North Carolina law during the time in question.

On May 7, 2015, SSA assigned a representative payee for plaintiff.

However, the record does not contain any evidence that the Commission is bound by SSA’s determination, nor that SSA’s assignment is dispositive evidence of plaintiff being mentally incompetent under North Carolina law.

Although SSA determined that plaintiff is unable to manage her benefits and requires a representative payee, under SSA’s regulations and in the absence of an adjudication of incompetence, plaintiff qualifies as a legally competent adult. Based on the greater weight of the evidence, we conclude that SSA’s 2017 decision for Social Security Disability benefits and the 2015 representative payee appointment does not establish that plaintiff was mentally incompetent under North Carolina state law.

The greater weight of the evidence demonstrates that plaintiff was not mentally incompetent during the twoyear period after her alleged work injury.

Affirmed.

Moye-Lyons v. North Carolina Department of Public Instruction (Lawyers Weekly No. 011-094-22, 24 pp.) (April Wood, J.) Appealed from the Industrial Commission. Cedric Perry for plaintiff; Matthew Buckner for defendants. 2022-NCCOA-260

Criminal Practice DWI – Single-Moped Accident – Driver – Circumstantial Evidence Where two first responders tes-

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12 / OPINION DIGESTS tified that defendant was found alone, wearing a helmet, lying on the double yellow line in the middle of a road and mounted on the seat of a fallen moped while it rested on top of one of his legs, and where there was no testimony that any other person who might have driven the moped was at the scene of the accident, the state’s evidence was sufficient to establish that defendant was in actual physical control of the moped while it was in motion or had the engine running.

We find no error in defendant’s conviction of driving while impaired.

Defendant emphasizes that he was not injured, there was no debris and were no tire marks in the road, there was no evident damage to the moped or his helmet, the moped was not running when defendant was found, and there was no evidence that the moped was hot to the touch or that a key was in the moped or on defendant’s person. These points are appropriately addressed to the jury, which is charged with weighing whether the evidence proved defendant’s guilt beyond a reasonable doubt.

They do not, however, foreclose the reasonable inference from the state’s evidence that defendant had recently driven the moped.

State v. Ingram (Lawyers Weekly No. 011-095-22, 9 pp.) (Allegra Collins, J.) Appealed from Rowan County Superior Court (William Wood, J.) Mary Crawley for the state; Warren Hynson for defendant. 2022-NCCOA-264

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Criminal Practice Murder – Miranda Waiver – 13-YearOld’s Confession Even though defendant presented expert testimony that, at age 13 and having a low IQ (60), defendant did not understand his Miranda rights, the state was not required to affirmatively establish through other expert testimony that defendant did in fact understand his rights and subsequent waiver of them. Instead, the question of whether defendant understood the Miranda warnings is a question of law for the trial court to address based on the evidence presented by both sides.

After a remand for reconsideration, we affirm the trial court’s ruling that defendant made a knowing and voluntary waiver of his Miranda rights during his police interrogation.

The findings which indicate the trial court did not find specific credible evidence do not, as defendant suggests, shift the burden to him, but rather address which evidence the trial court found credible and which it did not, an act completely within the province of the trial court as finder of fact. In addressing defendant’s argument regarding further expert testimony, the trial court made numerous findings of fact, in its proper discretion, and we conclude the binding findings of fact support the trial court’s determination that defendant understood the Miranda warnings; thus, the trial court properly denied defendant’s motions to suppress.

State v. Benitez (Lawyers Week-

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ly No. 011-096-22, 26 pp.) (Donna Stroud, C.J.) Appealed from Lee County Superior Court (Douglas Sasser & Winston Gilchrist, JJ.) Michael Henry for the state; Anne Gomez for defendant. 2022-NCCOA-261

Criminal Practice Murder – Stand Your Ground – Jury Instructions – Aggressor Doctrine Where the decedent burst uninvited into defendant’s home, threatened her with her own gun, and—after relinquishing the gun to defendant— physically attacked her as she tried to escape, the trial court erred when it instructed the jury on the aggressor doctrine, which denies a defendant the benefit of self-defense if she was the aggressor in the situation.

Defendant is entitled to a new trial.

When a person, who is free from fault in bringing on a difficulty, is attacked in her own dwelling, or home, the law imposes upon her no duty to retreat before she can justify her fighting in self-defense—regardless of the character of the assault. Pursuant to G.S. § 14-51.3(a), “a person is justified in the use of deadly force and does not have a duty to retreat” if she is in a lawful place and “reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another” or “under the circumstances permitted pursuant to [G.S. §] 14-51.2.”

Here, the evidence demonstrated that defendant directed her married paramour, Caleb Adams, not to come to her home. Despite defendant’s instructions not to come, Caleb arrived at defendant’s home and “burst” through the front door in an angry fashion. Caleb opened defendant’s bedroom door with such violence that the door banged against the furniture in defendant’s bedroom.

Caleb yelled that defendant was ruining his life and that he was going to kill her. After pointing defendant’s own gun at her until she let him look through her phone, Caleb relinquished the gun. However, when defendant tried to escape, Caleb initiated a physical altercation with defendant that continued without pause for two minutes. Defendant shot Caleb, killing him.

The mere fact that a defendant was armed is not evidence that she was the aggressor if she made no unlawful use of her weapon. Moreover, defendant only armed herself after Caleb threw the firearm down and began pacing around the bedroom with his hands curled up into fists while screaming at defendant. When defendant attempted to leave the bedroom and flee from the altercation, Caleb lunged towards defendant and proceeded to kick, push, punch, and shove her. As defendant was attacked in her own home and feared for the safety of herself and others in her home, defendant acted in self-defense to repel Caleb’s assaults against her.

It was during this physical altercation that defendant resisted Caleb’s attacks by firing two successive shots at Caleb from six inches away, within two short minutes of when he entered the residence. These facts do not suggest that defendant “aggressively and willingly” entered into a fight with Caleb.

Caleb’s widow testified that Caleb was not a violent person. While the state contends this testimony supports the inference that defendant was the aggressor, this argument is fatally flawed because the point in

time where aggressor status may attach is temporally connected with the actual use of force.

Caleb threatened defendant on several occasions including texting to her, “You’ll be lucky you don’t end up in a ditch,” 30 minutes before his death. In the two minutes between Caleb’s arrival at defendant’s home and his death, Caleb threw open defendant’s bedroom door, threatened to kill her, and initiated a physical altercation with her.

The state also suggests that defendant’s threats to send sexually explicit photographs to Caleb’s wife on the night before the shooting make defendant the aggressor. In addition to noting the passage of seven hours between these events, we decline to hold that a threat to expose one’s extramarital affair constitutes conduct demonstrating an aggressive willfulness to engage in a physical altercation.

Although defendant shot Caleb in the back, the record discloses no evidence that defendant brought on the difficulty or was the aggressor.

The trial court erred in instructing the jury on the aggressor doctrine.

New trial.

State v. Hicks (Lawyers Weekly No. 011-097-22, 19 pp.) (April Wood, J.) (Lucy Inman & Hunter Murphy, JJ., concurring in result only without separate opinion) Appealed from Randolph County Superior Court (Bradford Long, J.) Joseph Hyde for the state; Marilyn Ozer for defendant.

2022-NCCOA-263

Criminal Practice Lifetime SBM – Constitutional – Search & Seizure – Recidivist & Young Victim Where defendant was convicted of committing sex offenses against a child under the age of 13, and where our Supreme Court has concluded that satellite-based monitoring (SBM) is generally effective in reducing recidivism, given the state’s paramount interest in protecting the public through lifetime monitoring of offenders convicted of a sexual offense with a child under the age of 13 and the declared efficacy of SBM in promoting those interests, we are compelled by State v. Hilton, 378 N.C. 692, 2021-NCSC-115, to hold that SBM of defendant as imposed is reasonable a reasonable search and is therefore constitutional.

We affirm the trial court’s order imposing lifetime SBM. We vacate the trial court’s order of a second reasonableness hearing upon defendant’s release.

Even though lifetime SBM constitutes a substantial intrusion in to defendant’s not-greatly-diminished privacy interests to be freed from monitoring, that intrusion is lessened somewhat by new legislation giving him the opportunity to petition a superior court to terminate his monitoring after ten years of enrollment.

Our SBM statutes do not provide for reasonableness of a defendant’s SBM eligibility, based on the same reportable conviction, after the initial SBM determination is made based on that conviction. However, SBM is a civil, regulatory scheme, and the trial court maintains continuing jurisdiction over its civil actions. Although we vacate the trial court’s order of a second reasonableness hearing upon defendant’s release, our holding does not otherwise affect the trial court’s continuing authority to amend or

14 / OPINION DIGESTS modify its own orders or defendant’s ability to petition the trial court for modification or termination pursuant to our statutes.

State v. Carter (Lawyers Weekly No. 011-098-22, 20 pp.) (Lucy Inman, J.) Appealed from Forsyth County Superior Court (David Hall, J.) Caden William Hayes for the state; Joseph Lattimore for defendant. 2022-NCCOA-262

Criminal Practice MAR – Stricken Testimony – 5th Amendment Privilege – Post-Direct Assertion – Second-Degree Murder – Malice At three hearings on defendant’s motion for appropriate relief, a material witness (1) recanted his trial testimony, in which he had said that, on the night of the fatal crash, when defendant stopped by his house, he saw the other two occupants of the car in the passenger seat and the back seat, not in the driver’s seat; (2) asserted his privilege against incrimination when cross-examined by the state; and (3) failed to appear. The trial court did not abuse its discretion when it struck the witness’s testimony in full.

We find no error in defendant’s convictions of second-degree murder and aggravated felony death by vehicle. We affirm the trial court’s denial of defendant’s motion for appropriate relief.

The witness was unrepresented when, at the first day’s hearing,

he recanted his trial testimony.

He consulted with counsel before the second day’s hearing, at which he asserted his Fifth Amendment privilege against self-incrimination in response to cross-examination by the state.

The trial court recessed to consider whether the witness had waived his privilege by testifying on direct examination. The witness failed to appear for the third day’s hearing.

The trial court ruled that the witness had waived his privilege.

The court struck the witness’s testimony in full because he had not appeared to answer questions on cross-examination.

In State v. Ray, 336 N.C. 463, 444 S.E.2d 918 (1994), the court considered the situation where a witness’s assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination. The court found that there may be a substantial danger of prejudice when a defendant is unable to confront the witness and that “the witness’s testimony should be stricken in whole or in part.” In other words, the essential question is “whether [the] defendant’s inability to make the inquiry created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness’ direct testimony.”

When the assertion of the privilege prevents inquiry into matters about which the witness testified on direct examination, to alleviate the substantial danger of prejudice, the trial court must either require

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the witness to answer the questions, or strike all or part of the witness’s direct testimony after allowing the assertion of the testimonial privilege.

We are bound by Ray, which held that the trial court should either require the witness to answer the questions, or strike all or part of the witness’s direct testimony after allowing the assertion of the testimonial privilege.

Other than the testimony of the recanting witness, defendant presented no evidence to support his MAR; consequently, the trial court properly denied his MAR.

Malice

Evidence introduced at trial, especially testimony by Mr. Jones, established that defendant drove after consuming alcohol and while he consumed alcohol over the course of several hours and that he was impaired. At one point while driving, defendant engaged the emergency break, locking the back tires and causing the car to swerve.

Defendant was driving at the time the vehicle veered off the road and crashed. Before the crash, defendant fell asleep at the wheel as the car approached a bend in the road, drifted off the curve, suddenly woke, overcorrected, and crashed the vehicle.

Defendant’s blood-alcohol level was 0.16 when police tested him after the crash, and an expert witness testified that based on the time lapse before testing, it could have been as high as 0.20 at the time of the crash. Defendant know-

ingly consumed alcohol before and while driving beyond the point of impairment, drove recklessly, and had knowledge of the potentially fatal consequences of his driving, particularly in light of his history of impaired driving convictions.

The state presented substantial evidence of defendant’s malice, i.e., his intent to perform the act of driving in such a reckless manner as reflected knowledge that injury or death would likely result.

No error; affirmed.

State v. Williamson (Lawyers Weekly No. 011-099-22, 13 pp.)

(Lucy Inman, J.) Appealed from Robeson County Superior Court (Tanya Wallace & Robert Floyd, JJ.) Kathryne Hathcock for the state; James Glover for defendant.

2022-NCCOA-265

Domestic Relations Parent & Child – Custody – Jurisdiction – Pending Motion – Temporary Orders The plaintiff-father argues that the trial court lacked jurisdiction to enter its August 2020 custody order because his 2018 custody motion was no longer pending. It is true that, in the two years between the father’s filing of his custody motion and the entry of the order on appeal, the trial court entered several orders. However, those orders were temporary in nature, and none of them finally resolved the father’s claim for permanent custody.

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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 Ap ri l 25, 2022

tion was no longer technically pending, the absence of a motion to modify does not divest the district court of jurisdiction to act under the modification provision in G.S. § 50-13.7(a). The parties’ conduct satisfied the purpose of a motion to modify: making the court aware of important new facts unknown to the court at the time of the prior custody decree.

We affirm the trial court’s 2020 custody order.

The father also argues that the trial court failed (1) to find a nexus between the substantial change in circumstances and “Matthew’s” welfare and (2) to examine whether modification was in Matthew’s best interests. We disagree.

The trial court’s findings show that the defendant-mother suffered a mental health crisis that initially affected not only her ability to care for herself, but also her ability to care for Matthew. The findings further show that the mother improved following hospitalization and treatment and consequently has been able to exercise successful visitation with Matthew. Based upon these findings, the trial court concluded that there had been a substantial change in circumstances that affected Matthew’s welfare since entry of the parties’ 2013 custody order.

The trial court then concluded that it was in Matthew’s best interests to modify the 2013 custody order to award joint custody to the parties, with primary custody to the mother.

The trial court complied with its duty to determine whether there was a substantial change in circumstances, whether that change in circumstances affected Matthew’s welfare, and whether modification of custody was in Matthew’s best interests, and its findings reflect sufficient evidence of a nexus between the change in circumstances and the welfare of Matthew.

Though the father did not allege abuse in his custody motion, he contends that he introduced evidence of physical and psychological abuse. However, the father has not introduced evidence that the isolated incidents of spanking or yelling he identified either created serious emotional damage to Matthew or any serious physical injury or substantial risk of serious physical injury.

Nor was there evidence that the father sought treatment for Matthew. To the contrary, the father testified that he did not have Matthew in therapy and he never

thought Matthew needed to see a psychiatrist. The evidence presented at the hearing did not require the trial court to make specific written findings concerning abuse.

Affirmed.

Turner v. Oakley (Lawyers Weekly No. 011-100-22, 21 pp.)

(Allegra Collins, J.) Appealed from Randolph County District Court (Lee Gavin, J.) Brooke Crump for plaintiff; Cathy Stroupe for defendant. 2022-NCCOA-266

N.C. BUSINESS COURT

Contract LLC Operating Agreement – Amendment – Signature Pages Only Even if plaintiff was given only the signature page of a 2010 amendment to the family limited liability company’s operating agreement, plaintiff agreed that he signed it because he considered the LLC to be his father’s to do with as he wished. Nothing prevented plaintiff from inquiring further and reviewing the amendment if he wished. In any event, the 2007 version of the operating agreement – which plaintiff seeks to reinstate – provided that it could be amended by a majority of members, and a majority of members, even without plaintiff’s consent, agreed to amend the operating agreement.

The court declares that the 2010 version of the LLC’s operating agreement is controlling.

It is unclear when the father’s lawyer made a final edit to the 2010 amendment. However, the final edit did not change the meaning of the amendment. It merely changed noncontrolling language saying there had initially been two LLC managers to say there were three LLC managers.

This comported with the controlling part of the amendment, Schedule II, which set out the number of managers and their names.

Finally, plaintiff is quasi-estopped from denying the 2010 amendment’s validity. Plaintiff signed a June 2012 “Consent to Action Without Meeting” that authorized a fishing lease between the LLC and his father. This document states explicitly on its face that it is an action taken pursuant to the 2010 amendment. Plaintiff benefitted from his father’s $30,000 annual contribution to the upkeep of the property by way of the fishing lease.

Bennett v. Bennett (Lawyers

Weekly No. 020-015-22, 32 pp.) (Julianna Theall Earp, J.) Andrew Fitzgerald, Stuart Punger and Jeffrey Oleynik for plaintiff; Kevin Williams and Allison Parker for defendants.

2022 NCBC 15

Tort/Negligence Negligent Misrepresentation – Accounting – Corporate – Justifiable Reliance Plaintiff, now a former shareholder of the defendant-corporation, complained often about the defendantaccountants’ failure to include certain “commissions receivables” when they calculated the corporation’s share price; nevertheless, due to his desperate financial situation, plaintiff accepted the proffered stock redemption price based on the accountants’ valuation. Where plaintiff admits he knew the true facts underlying the alleged “misrepresentation” by the accountants, plaintiff cannot satisfy the “justifiable reliance” element of his negligence and negligent misrepresentation claims against them.

The accountants’ motion to dismiss is granted.

Oliver v. Brown & Morrison, Ltd. (Lawyers Weekly No. 020-01622, 23 pp.) (Michael Robinson, J.) Rick Ruffin for plaintiff; Anthony Todd Capitano, Erin Christine Heugel, and Frederick Sharpless for defendants.

2022 NCBC 16

Corporate LLC – Litigation Expenses – Prior to Suit – Non-Lawyer Contractor – Voluntarily Dismissed Claims Defendant Burnette seeks indemnification from the defendant-limited liability company for the expenses he incurred in successfully defending a lawsuit brought by plaintiff, a comember of the LLC. Both the Limited Liability Company Act (LLC Act) and the Business Corporation Act (BCA) authorize indemnification of expenses incurred “in connection with the proceeding.” However, the LLC Act defines “proceeding” as “any civil or criminal proceeding or other action pending before any court of law or other governmental body or agency or any arbitration proceeding,” G.S. § 57D-1-03, while the BCA defines proceeding as “any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative or investigative and whether

formal or informal.” G.S. § 55-8-50.

The General Assembly has thus recognized a distinction between actual lawsuits and merely threatened lawsuits and only permitted indemnification as to the latter in the context of corporations. The $6,025.53 in fees that defendant Burnette paid to the Pendergrass Law Firm was incurred before the dispute between plaintiff and Burnette ripened into a lawsuit.

Consequently, the court cannot conclude that these fees are properly the subject of indemnification.

The court grants Burnette’s request for fees and expenses, except as to the request for pre-suit fees paid

by Burnette to the Pendergrass Law Firm.

The court ruled in defendants’ favor on most of plaintiff’s claims. However, plaintiff voluntarily dismissed some of his claims without prejudice, leaving him the option of refiling those claims within one year.

Plaintiff’s ability to refile those claims does not preclude the court from entering a final judgment as there are currently no claims remaining for resolution in this case. Plaintiff has failed to offer any legal authority for the proposition that no final judgment may be entered until the oneyear period for refiling has expired.

In light of the illiquidity of the defendant-LLC’s assets, plaintiff requests that the court “direct as part of its judgment, pursuant to N.C. Gen. Stat. § 1-362, that property in the hands of [the LLC], as a judgment debtor, is to be sold under execution.”

However, plaintiff provides no legal authority that would permit the court to dictate the manner in which execution on its judgment will occur.

The only statute that plaintiff cites in his brief on this issue—§ 1-362— is contained in a section of our General Statutes entitled “Supplemental Proceedings” and has no applicability prior to the entry of a judgment.

Therefore, because this court lacks the authority to dictate the manner in which the judgment it enters will be satisfied, plaintiff’s request must be denied.

Burnette seeks reimbursement for $12,653.80 that he paid to non-lawyer Kristin Creech for administrative services related to his defense of this lawsuit. The LLC Act permits indemnification for expenses incurred “in connection with the proceeding,” and plaintiff has failed to point to either (1) any evidence rebutting the proposition that the services at issue were reasonably related to the defense of the lawsuit or (2) any legal authority barring Burnette’s right to indem-

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16 / OPINION DIGESTS nification for expenses relating to tasks performed by an independent contractor that bear an appropriate nexus to the litigation. Thus, the court concludes that the $12,653.80 in expenses billed by Creech is recoverable.

Motion granted in part.

Clark v. Burnette (Lawyers Weekly No. 020-017-22, 15 pp.) (Mark Davis, J.) Ian Richardson and Barker Richardson for plaintiff; Camden Webb, Alexander Gormley and Caitlin Poe for defendants. 2022 NCBC 17

N.C. COURT OF APPEALS, UNPUBLISHED

Tort/Negligence Attorneys – Legal Malpractice Claim – Civil Practice – Statute of Limitations – Last Negligent Act A 29 September 2014 opinion letter from the defendant-attorney advised the plaintiff property owners’ association to stop performing its duties under a Clubhouse Dues Agreement— collecting homeowners’ dues and remitting them to the clubhouse owner. Following this advice resulted in a $7 million judgment against plaintiff.

Although plaintiff did not file its legal malpractice complaint until 30 April 2020, plaintiff alleges that, even after this court held on 5 September 2017 that the Clubhouse Dues Agreement was valid and enforceable, the attorney, who continued to represent plaintiff, “never recommended” that plaintiff “begin assessing, billing and collecting Clubhouse Dues from Owners,” nor advised plaintiff “of the legal and economic risks and/or consequences of failing to do so.” As a result, plaintiff’s complaint does not show that its legal malpractice claim is time-barred.

We reverse the trial court’s order granting defendants’ motion to dismiss.

Plaintiff alleged, among other points, that defendants were negligent in their legal representation of plaintiff after this court “issued its opinion on September 5, 2017” by failing to advise plaintiff to take remedial action with respect to the Clubhouse Dues. Taking plaintiff’s allegations as true, the last act of defendants giving rise to the cause of action may have occurred as late as 5 September 2017.

Plaintiff’s complaint was filed on 30 April 2020, which is within the three-year statute of limitations period. Based on plaintiff’s pleadings, it was improper for the trial court to conclude that plaintiff had failed to state a claim upon which relief can be granted. Accordingly, we conclude that plaintiff’s claim may not be barred by G.S. § 1-15(c) and was improperly dismissed pursuant to N.C. R. Civ. P. 12(b)(6).

Reversed and remanded.

Concurrence

(Tyson, J.): Continuing representation of a client by an attorney following the last act of negligence does not extend the statute of limitations.

Plaintiff alleges a last act of defendants as late as 5 September 2017, which is within the statute of limitations prescribed by G.S. § 1-15(c).

The majority’s opinion concludes plaintiff’s claim may not be barred by § 1-15(c) because of the inclusion of this date in pleading. Nothing precludes the revisiting of the issue upon further proceedings upon remand.

Smoky Mountain Country Club Property Owners Association v. Dungan (Lawyers Weekly No. 012-089-22, 14 pp.) (John Arrowood, J.) (John Tyson, J., concurring in the result only) Appealed from Swain County Superior Court (William Coward, J.) Preston Odom, John Buric and John Brickley for plaintiff; Cynthia Van Horne and Karen Chapman for defendants. 2022-NCCOA-144

Criminal Practice Conspiracy to Commit Murder – Intent – Conspirator’s Testimony Defendant argues the state presented no evidence of an intent to kill; however, the state presented evidence that (1) defendant suspected that the victim had broken into defendant’s car and stolen his money; (2) defendant coached co-conspirator Washington through a text-message conversation with the victim, eventually luring the victim to Washington’s apartment; (3) Washington understood this conversation was “based off shooting [the victim]”; (4) when co-conspirator Powell left Washington’s apartment, he took a gun with him; (5) when the victim arrived outside her apartment, Washington immediately relayed this information to defendant but did not answer her door; (6) after hearing five gunshots, Washington did not call 911; (7) Washington believed the victim had been shot “because that was [defendant and Powell’s] plan”; and (8) the victim was shot 10 times and his body was found under the stairwell of Washington’s apartment complex. Taken in the light most favorable to the state, the evidence showed an agreement among defendant, Washington and Powell to intentionally kill the victim.

We find no error in defendant’s convictions of conspiracy to commit murder, felonious possession of marijuana with intent to sell and deliver, and intentionally keeping and maintaining a dwelling place for selling marijuana.

The trial court did not err by allowing Washington to testify that, when she heard the gunshots outside her door, she inferred that the victim had been shot. She made this inference based on prior conversations with the other conspirators.

Even if it were error for Washington to testify about defendant’s “plan,” any error was harmless given the other ample evidence of defendant’s guilt.

State v. McCrae (Lawyers Weekly No. 012-090-22, 18 pp.) (Donna Stroud, C.J.) Appealed from Wake County Superior Court (Andrew Heath, J.) Daniel Mosteller for the state; Stuart Brooks for defendant.

2022-NCCOA-149

Criminal Practice Post-Conviction DNA Testing – ‘Masking’ – Innocence Claim At defendant’s trial, the state presented evidence that, after autosomal DNA analysis of the material found under the victim’s fingernails, defendant’s DNA could not be excluded.

Although the victim’s own DNA was also found under her fingernails, defendant has not shown that the requested YSTR testing would remove any “masking effect” from the victim’s female DNA or show whether defendant’s DNA profile was included in the mixture beneath her fingernails.

We affirm the trial court’s denial of

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 Apr il 25, 2022

defendant’s motion for post-conviction DNA testing.

It appears that defendant and/ or his counsel caused an affidavit containing a statement of innocence to be filed to purport to comply with the threshold requirements of G.S. § 15A-269(b)(3), notwithstanding defendant’s prior voluntary statements and “the overwhelming evidence of Defendant’s guilt of first-degree murder” as previously held by this court and our Supreme Court. State v. Johnson, 251 N.C. App. 639, 795 S.E.2d 625 (2017); State v. Johnson, 371 N.C. 870, 821 S.E.2d 822 (2018). Caution should be exercised by defendants and their counsel when filing statements under oath.

State v. Johnson (Lawyers Weekly No. 012-091-22, 12 pp.) (John Tyson, J.) Appealed from Mecklenburg County Superior Court (Robert Bell, J.) Michael Henry for the state; Nicholas Woomer-Deters for defendant.

2022-NCCOA-147

Criminal Practice Probation Revocation – New Crime – Drug Paraphernalia Although probation may not be revoked based upon a conviction of a Class 3 misdemeanor, and although possession of marijuana drug paraphernalia, G.S. § 90-113.22A, is a Class 3 misdemeanor, defendant admitted to violating the terms of his probation by committing the offense of possession of drug paraphernalia, which is a Class 1 misdemeanor and is codified at GS. § 90-113.22. Where the defendant-probationer admitted to committing the crime of “possession of drug paraphernalia,” not the crime of “possession of marijuana drug paraphernalia,” the trial court did not abuse its discretion in revoking defendant’s probation based on the commission of a new crime.

Affirmed.

State v. Murphy (Lawyers Weekly No. 012-092-22, 5 pp.) (Chris Dillon, J.) Appealed from Davidson County Superior Court (Joseph Crosswhite, J.) Jessica Helms for the state; Kimberly Hoppin for defendant. 2022-NCCOA-153

Criminal Practice Sentencing – Out-of-State Convictions – Comparison – Stipulation Determining whether an out-ofstate offense is substantially similar to a North Carolina offense is a question of law to be determined by the trial court. As such, defendant’s stipulation that his Virginia convictions were substantially similar to North Carolina offenses was ineffective.

We vacate defendant’s sentence and remand for resentencing.

Defendant stipulated to the existence of two prior Virginia felony convictions. The trial court classified them as a Class B1 and a Class F felony, respectively, and sentenced defendant accordingly. However, there is no indication from the record that the trial court made the required comparison between the elements of the foreign statutes and North Carolina statutes. The trial court left blank a checkbox on the felony sentencing worksheet to indicate it made the determination required by G.S. § 15A1340.14(e). Nor does the transcript reflect that a comparison between statutes was made at any time.

Although the state did not pro-

vide the text of the Virginia statutes to the trial court, it argues that this court can take judicial notice of those statutes and now make the required comparison of elements. We decline to do so.

The record contains no statutory reference for defendant’s apparent Virginia conviction for failure to register as a sex offender. Accordingly, we will not speculate as to whether the state has for the first time, in its brief on appeal, properly identified the out-of-state statutes for comparison. Likewise, without that statute the trial court could not, and we cannot, determine that all the elements of the present offense are included in any prior offense such that it was correct to assign an additional point to defendant’s prior record level.

Finally, although the state concedes that a defendant cannot stipulate that an out-of-state conviction is substantially similar to a North Carolina offense, it argues that defendant’s stipulation to the sentencing worksheet operates as a waiver of any objection to the classifications of the previous felonies. But this is a legal issue that cannot be waived by a criminal defendant’s stipulation.

Vacated and remanded.

State v. Kelly (Lawyers Weekly No. 012-093-22, 8 pp.) (Lucy Inman, J.) Appealed from Cumberland County Superior Court (James Ammons, J.) Adrina Bass for the state; Michael Casterline for defendant. 2022-NCCOA-148

Criminal Practice Sentencing – Out-of-State Convictions – Felony Stipulation – Armed Robbery Where defendant stipulated that his Georgia marijuana conviction was a felony, the trial court properly classified it as a Class I felony with nothing more from the state.

Although Georgia’s armed robbery statute, Ga. Code Ann. § 168-41, spells out that an item which appears to be a weapon is presumed to be a dangerous weapon, while North Carolina’s similar presumption comes from State v. Joyner, 312 N.C. 779, 324 S.E.2d 841 (1985), the offenses are substantially similar, allowing the trial court to classify defendant’s Georgia armed robbery conviction as a Class D felony.

We affirm defendant’s sentence.

Defendant contends that the trial court erred by improperly classifying his prior North Dakota conviction for felony child abuse as a Class D felony. It appears that the state provided the trial court with a packet of documents, which included the North Dakota statute at issue; however, the record does not include defendant’s North Dakota judgments or any details beyond the name of the crime, file number, and statute under which he was convicted.

Consequently, we cannot determine which subsection of the statute defendant was convicted under, and we cannot properly do a substantial similarity analysis.

It is defendant’s burden to ensure the record is complete so that this court may do a proper review. Accordingly, we dismiss this argument.

State v. Cochran (Lawyers Weekly No. 012-094-22, 12 pp.)

(Donna Stroud, C.J.) Appealed from Haywood County Superior Court (Athena Fox, J.) Bettina Roberts for the state; Drew Nelson for defendant. 2022-NCCOA-146

OPINION DIGESTS / 17

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 Ap ri l 25, 2022

Criminal Practice Search & Seizure – Expectation of Privacy – Landlord/Tenant – Writ of Possession A deputy sheriff went to leased premises to execute a writ of possession and remove the tenant. When the tenant asked if she could take a shower before the deputy removed her and her companion (defendant), the deputy acquiesced. The tenant defendant no longer had any expectation of privacy in the property when the deputy continued his usual writof-possession practice of walking the curtilage, with a representative of the owner, to see if any animals or property would need to be removed. It was during that walk, when defendant had no expectation of privacy, that the deputy discovered items indicating the production of methamphetamine.

We affirm the trial court’s denial of defendant’s motion to suppress evidence seized during the execution of a subsequently obtained search warrant for the leased property.

State v. Murdock (Lawyers Weekly No. 012-095-22, 15 pp.) (Toby Hampson, J.) Appealed from Rowan County Superior Court (Richard Gottlieb, J.) Phillip Woods for the state; Kerri Sigler for defendant. 2022-NCCOA-152

Criminal Practice

ing a large portion of the cash taken from the amphitheater, that Melvin had been seen taking money out of the suitcase, and that his blood and fingerprints were found on the same suitcase.

This is ample and plenary evidence of Melvin’s guilt of the charged crimes, as both a key planner of the crimes and a participant as the driver. Baker’s assertion that Melvin, not Baker, was the third gunman who entered the amphitheater did not undermine this evidence of Melvin’s guilt—indeed, it did not impact it all.

Regardless of Melvin’s role as one of the gunmen, the state had ample, separate evidence to convict Melvin for participation in the robbery.

Simply put, the conflict between Melvin’s and Baker’s defense strategies was not of such magnitude when considered in the context of other evidence that the jury was likely to infer from that conflict alone that Melvin was guilty. The joinder of Melvin’s and Baker’s trials did not deprive Melvin of his right to a fair trial.

No error.

State v. Melvin (Lawyers Weekly No. 012-096-22, 7 pp.) (Richard Dietz, J.) Appealed from Wake County Superior Court (Paul Ridgeway, J.) On remand from the N.C. Supreme Court. Benjamin Zellinger for the state; Sarah Holladay for defendant.

2022-NCCOA-150

Criminal Practice Probation Revocation – Anders Review – New Crime’

Joinder – Conflicting Strategies – No Impact – Armed Robbery Appellant defendant Melvin and his stepson, defendant Baker, were tried jointly for committing an armed robbery of the Walnut Creek Amphitheater. Although Baker claimed that Melvin, rather than Baker, was the third armed robber, this had no impact on the state’s case against Melvin; the state’s theory was that Melvin was the planner and getaway driver.

The trial court did not err in denying Melvin’s motion to sever the defendants’ trials.

The state presented evidence that it was Melvin’s idea to rob the amphitheater, that he bought items used in the robbery, that Melvin drove the group to the amphitheater to commit the robbery, that Melvin was supposed to pick up the other perpetrators and drive them from the scene after the robbery, that Melvin had a key to and had visited the storage unit in which police found a suitcase contain-

On probation for felony drug offenses, defendant had already had her probation extended for four probation violations when she was convicted of two new felony drug offenses and had her probation revoked. Having considered defense counsel’s brief and reviewed the record, we find this appeal to be wholly frivolous.

No error.

State v. Brooks (Lawyers Weekly No. 012-097-22, 5 pp.) (Lucy Inman, J.) Appealed from Cleveland County Superior Court (Athena Fox Brooks, J.) Ann Stone for the state; Benjamin Kull for defendant. 2022-NCCOA-145

Criminal Practice Closing Argument – Manipulation Accusation – Jury Instructions – SelfDefense Defendant complains that, during closing arguments, the prosecutor

said (1) “It is an attempt to manipulate you…” (2) “This is an attempt to manipulate you.” (3) “Don’t be manipulated.” and (4) “It is manipulation.”

Defendant cites State v. Hembree, 368 N.C. 2, 770 S.E.2d 77 (2015), in which the state “argued to the jury, not only that defendant had confessed truly and recanted falsely, but that he had lied on the stand in cooperation with defense counsel.” None of the state’s comments here are directly about the evidence as was the case in Hembree; thus, it is inapposite. Read in context, we cannot say the state’s argument was so grossly improper that the trial court erred in failing to intervene ex mero motu.

We find no error in defendant’s convictions of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury.

Although the trial court gave a jury instruction on self-defense, defendant was not entitled to an instruction on the lesser-included offense of voluntary manslaughter on the basis of imperfect self-defense. Defendant notes evidence of his use of excessive force but points to no evidence that he reasonably believed it was necessary to use force to preserve his own life.

Both are necessary to show imperfectself-defense.

State v. Moore (Lawyers Weekly No. 012-098-22, 14 pp.) (Donna Stroud, C.J.) Appealed from Gaston County Superior Court (David Phillips, J.) Amar Majmundar for the state; Kellie Mannette for defendant.

2022-NCCOA-151

Criminal Practice Rule of Completeness – Still from Video – Witness Testimony Even if defendant did not waive his objection when he failed to object to witness testimony about a no-longeravailable surveillance video, his argument that the trial court erred in admitting the testimony still fails. The rule of completeness, N.C. R. Evid.

106, specifically refers to “a writing or recorded statement.” In addition, a still photo taken from the video was not a “writing or recorded statement,” especially since it appears the surveillance video did not include any audio recording.

We find no error in defendant’s convictions of uttering an instrument containing a forged endorsement and obtaining property by false pretenses.

Defendant argues that the testimony of two witnesses who viewed the video (before it was recorded over)

should have been excluded under the rule of completeness because it was “closely related” to the screenshot from the video. However, defendant has not cited, and our research has not revealed, any case in which our appellate courts have held that the rule of completeness encompasses testimony, certainly not in-court testimony about what a witness observed.

Finally, even if the rule of completeness did require the exclusion of the still photo, defendant was not prejudiced by its admission because the state presented ample evidence of defendant’s guilt, including (1) his admission that he was in the store at which the check was cashed on the day it was cashed, (2) testimony that defendant had clocked out of work at Golden Corral shortly before the check was cashed, (3) testimony that Golden Corral employee checks were kept together in a bin, (4) defendant’s supervisor and the store manager knew defendant personally and identified him on the store’s surveillance video, and (5) these witnesses’ description of defendant’s actions – as observed by the witnesses when they viewed the video – in cashing a coworker’s check.

Even without the admission of the photograph into evidence, there was ample evidence that defendant stole a coworker’s check, which he then signed and cashed, in violation of G.S. §§ 14-100(a) and 14-120.

No error.

State v. Overcash (Lawyers Weekly No. 012-099-22, 16 pp.) (Donna Stroud, C.J.) Appealed from Johnston County Superior Court (Thomas Lock, J.) Brian Miller and Sarah Boyce for the state; Wyatt Orsbon for defendant. 2022-NCCOA-154

Workers’ Compensation Guaranty Association – Truck Driver – Association’s Insurance Program – Statutory Employer Plaintiff, an owner-operator truck driver, paid for workers’ compensation insurance through a program operated by America Emerald Transportation Services, Inc. (AETS), and AETS’s insurer, Guarantee Insurance Co. (GIC), paid plaintiff’s compensable claim until GIC was liquidated. However, since AETS was the only named insured in the policy, plaintiff was not an insured under the policy, so the North Carolina Insurance Guaranty Association was not required to pay plaintiff’s claim once GIC became insolvent.

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18 / OPINION DIGESTS We affirm the Industrial Commission’s ruling that the company for which plaintiff was driving is responsible for his workers’ compensation benefits.

Coverage

As written, the GIC policy only provided workers’ compensation coverage to AETS. None of the participating owner-drivers or motor carriers were identified in the policy or added via endorsement.

The Commission applied the Insurance Guaranty Association Act’s definition of “covered claim” when it concluded that “the worker’s compensation insurance policy in question, as issued by GIC, only provided coverage to AETS as the insured.”

The liberal construction that we accord the Workers’ Compensation Act does not extend to the Guaranty Act. The Commission properly recognized that the Guaranty Act’s definition of “covered claim” intentionally “limit[s] any inquiry into whether a claim is a ‘covered claim’ under the ...

Act to the terms of the policy in question at the time it was initially issued by the now-insolvent insurer.” See G.S. § 58-48-20(4).

Estoppel

Although an employer who files a Form 60 waives the right to contest a claim that it is liable for a claimant’s injury, and filing of a Form 60 is an admission of compensability, not employment status. The fact that Patriot Risk Services, Inc., filed a Form 60 naming AETS as the employer does not estop NCIGA from denying liability for plaintiff’s claim.

Moreover, NCIGA was a “stranger” to the filing of the Form 60; as such, neither equitable estoppel nor quasi-estoppel may be invoked to override the plain text of the Guaranty Act, which requires the presence of a “covered claim” in order to trigger NCIGA’s obligations.

Plaintiff’s Employer

Applying the statutory test of G.S. § 97-19.1(a), the Commission found that Watkins & Shepard Trucking, Inc. (W&S), “was a [principal] contractor within the meaning of N.C. Gen. Stat. § 97- 19.1(a), and ... that Plaintiff was ‘an individual in the interstate or intrastate trucking industry who operates a truck ... licensed by the USDOT,’ pursuant to N.C. Gen. Stat. § 97-19.1(a)[.]” Accordingly, the Commission concluded that W & S was “liable as an employer” under § 97-19.1(a) because it “contracted with Plaintiff to operate a truck federally licensed” through W & S, and did not “secure the payment of compensation” in accordance with the statutory requirements of G.S. § 97-93(a).

Plaintiff’s participation in the AETS program was not equivalent to W & S’s compliance with § 97-19.1(a), in that plaintiff did not “secure the payment of compensation in the manner provided for employers set forth in G.S. 97-93 for himself personally and for his employees and subcontractors, if any[.]” § 97-19.1(a).

The filing of the Form 60 conclusively established that plaintiff’s injury was compensable and that GIC was liable; nevertheless, it did not conclusively foreclose W & S’s status as plaintiff’s statutory employer under § 97-19.1(a).

Reimbursement Request

After GIS’s insolvency, NCIGA made payments under a reservation of right to determine coverage under

the Guaranty Act. Since NCIGA’s request for reimbursement had no effect on the rights of plaintiff, the Commission correctly ruled that it did not have jurisdiction to order that NCIGA be reimbursed for benefits paid to or on behalf of plaintiff.

Affirmed.

Vizcaino v. American Emerald Transportation Services, Inc. (Lawyers Weekly No. 012-100-22, 29 pp.) (Valerie Zachary, J.) Appealed from the Industrial Commission.

Christian Ayers and John Ayers for plaintiff; Ben Greenberg, Allegra Sinclair, Joseph Eason, Christopher Blake and Matthew Blake for defendants. 2022-NCCOA-155

Real Property Residential Development – Gated Community – Site Development Agreement – Use of Collected Assessments Although site development agreement allowed property owners’ association to collect assessments from the owners of an adjoining community in exchange for access to the larger community’s facilities, the agreement also obligated the larger community to use some portion of the assessments for the maintenance of the adjoining community’s roads and common elements.

Bear Wallow Springs, Inc. and the Lake Toxaway Company had a site development agreement for a 386acre tract of land. The tract was developed into a gated residential community called Bear Wallow Springs.

The parties to the action were the corresponding property owners’ associations for Bear Wallow Spring, Inc. and the Lake Toxaway Company.

The development agreement included covenants recorded with the deed, with Bear Wallow Springs recording another set of covenants in 2002. In 2005, the parties entered a maintenance agreement that required plaintiff to maintain the roads, utilities, and gates at its own expense.

Beginning in 2010, plaintiff began collecting an assessment separate from the assessment that its owners were paying to defendant. Eventually, the parties disputed whether defendant was required to use funds collected from plaintiffs’ owners to provide upkeep in the Bear Wallow Springs community, including to maintain roads and other common elements. Plaintiff filed the present declaratory judgment action seeking a ruling regarding defendant’s right to collect assessment from plaintiff’s owners and, if defendant could collect assessment, a declaration of the purposes that defendant was required to use the funds for.

The parties cross-moved for summary judgment, with the trial court entering judgment for defendant. The trial court ruled that defendant was entitled to collect assessments from plaintiff’s owners and that defendant had no responsibility to use those funds for upkeep within Bear Wallow Springs.

We vacate the trial court’s grant of summary judgment and remand for further proceedings on plaintiff’s request for declaratory relief. We first agree with the trial court that defendant was entitled to impose assessments upon plaintiff’s owners, finding that the parties’ site development agreement unambiguously required plaintiff’s owners to also join defendant’s property owners’ association, in exchange for the right of access to

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the roads and common elements of the Lake Toxaway community.

However, we reject the trial court’s conclusion that defendant did not have any obligation to use assessment funds collected from plaintiff’s owners to maintain common elements within Bear Wallow Springs, finding that such a ruling is contradicted by the express language of the site development agreement. We note that the extent to which defendant was to use the assessment for Bear Wallow Springs’s maintenance was an issue that could be resolved through declaratory judgment, and accordingly remand for a declaration of the parties’ respective rights and obligations.

Vacated and remanded.

Bear Wallow Springs at Lake Toxaway Property Owners Association v. Lake Toxaway Community Association (Lawyers Weekly No. 012-101-22, 16 pp.) (Richard Dietz, J.) Appealed from Transylvania County Superior Court (William H. Coward and Casey Viser, J.) Davis A. Whitfield-Cargile for plaintiff; Craig D. Justus, Jonathan H. Dunlap, and Brian D. Gulden for defendant.

2022-NCCOA-170

Real Property

However, we vacate the superior court’s award of legal fees and costs to petitioner. We note that the superior court had not decided whether petitioners had successfully challenged the issuance of the permit or whether the board of adjustment should have issued the permit. Instead, the superior court remanded the matter back to the board for a new hearing. We hold that an award of legal fees was premature where there had been no determination whether the permit could be properly issued in this case. We further hold that an award of fees requires a finding that the board abused its discretion along with a finding that the board acted outside the scope of its authority. As there was no indication that the superior court found that the board had exceeded its authority, we hold that there was not a sufficient basis for a legal fee award.

Dismissed in part, vacated in part, and remanded.

Coates v. Durham County (Lawyers Weekly No. 012-102-22, 13 pp.) (Toby Hampson, J.) Appealed from Durham County Superior Court (Michael J. O’Foghludha, J.) LeAnn Nease Brown for petitioners; Bryan E. Wardell for respondent. 2022-NCCOA-171

Land Use – Special Use Permit – Award of Legal Fees

Contract

The trial court erred in awarding legal fees and costs to petitioners challenging the issuance of a special use permit where there had been no judicial determination that the permit could not be issued under the facts of the case or that the local board of adjustment exceeded the scope of its authority in initially issuing the permit.

Hubrich Contracting, Inc. filed an application with Durham City-County for a minor special use permit to authorize the construction of a school.

After a hearing, the board of adjustment granted the permit. Petitioners petitioned the superior court by way of a writ of certiorari for review. The superior court entered a remand order titled a “final order and judgment” that reversed the issuance of the permit and directed the board to reopen the public hearing on Hubrich’s application. The superior court stated that it was retaining jurisdiction over petitioners’ application for legal fees and costs.

Hubrich appealed the superior court’s order, but the appeal was dismissed as interlocutory because the matter had been remanded to the board and therefore the order was not a final judgment. However, after the dismissal of Hubrich’s appeal, no further action was taken on the permit application. Instead, the case sat dormant for about two years until petitioners filed a motion for attorneys’ fees with the superior court. The superior court issued an order awarding petitioners legal fees and costs plus interest, ruling that under the version of N.C. Gen. Stat. §6-21.7 in effect at the time of the superior court’s remand order, an award of attorneys’ fees was mandatory due to the superior court having found that the board of adjustment committed an abuse of discretion. Respondent Durham County appealed.

We dismiss Durham County’s appeal to the extent that it seeks review of the superior court’s earlier remand order. We note that the order remains interlocutory because there had been no new public hearing or decision on the special use permit application as required by the remand order.

Business Brokerage Agreement – Breach of Contract – Failure to Pay Broker Fee – Validity of Agreement Summary judgment had to be affirmed where the trial court did not specify which of the prevailing parties’ theories it was relying on in granting summary judgment, and the party appealing summary judgment did not address in its appellate brief all the issues raised before the trial court.

Plaintiffs entered a contract with defendants, under which plaintiffs would receive a fee for assisting defendants with the sale of two daycare businesses and leases for properties where the businesses operated. The agreement contemplated the sale of defendants’ businesses to the Learning Care Group, Inc. The contracted stated that plaintiffs would be entitled to a fee in the event a transaction was consummated between defendants and the buyer with or without plaintiffs’ involvement.

Although initial negotiations did not result in consummation of the deal, several years later defendants and Learning Care Group, Inc. finally entered an agreement for Learning Care Group to buy the daycare businesses and leases. Plaintiffs then filed the present action, alleging that defendants had consummated a sale of the daycare businesses but did not pay the required fee under the parties’ contract.

Defendants moved for summary judgment, arguing that the parties’ agreement was unenforceable because the services plaintiffs were supposed to offer required a real estate broker’s license, which plaintiffs did not possess. Defendants further argued that there was insufficient consideration supporting the contract.

The trial court granted defendants’ motion, without specifying which of defendants’ theories the trial court was relying on in granting the motion.

We affirm the trial court’s grant of summary judgment in favor of defendants. We note that plaintiffs’ appellate brief only addressed one of the two theories that defendants ad-

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vanced in support of their summary judgment motion, namely, that plaintiffs were statutorily required to have a real estate broker’s license to render the services contemplated by the parties’ contract. Thus, we hold that we must affirm the trial court’s judgment because the trial court did not specify which of defendants’ theories, which were fully briefed and argued by the parties before the trial court, the trial court was relying on. We find that the record indicates that the trial court addressed both of defendants’ theories in its ruling granting the motion for summary judgment. Thus, we hold that plaintiffs have essentially failed to challenge the second of defendants’ argument.

Affirmed.

DCW Classroom Designs, Inc. v. Swartz (Lawyers Weekly No. 012-103-22, 9 pp.) (Richard Dietz, J.) Appealed from Cabarrus County Superior Court (Kevin M. Bridges, J.) Kenneth R. Raynor for plaintiffs; Preston O. Odom, III, John R. Buric, and John R. Brickley for defendants.

2022-NCCOA-172

Real Property Neighbor Disputes – Sanctions – Rule 11 Violations Because a lawsuit challenging law that converted district court judicial elections from countywide into district-based elections was mooted when the legislature repealed the law, and the claims were not capable of repetition yet evading review, we affirm the dismissal of plaintiffs’ suit.

Plaintiff filed a pro se complaint against defendant, who owned a tract of land next to plaintiff’s property.

During the litigation, the trial court entered sanctions against plaintiff.

Plaintiff appealed from the denial of its motion for relief from the sanctions. Defendant moved to dismiss the appeal due to the deficiencies of plaintiff’s appellate brief violating Rule 28.

While plaintiff conceded the deficiencies of its brief, we decline to dismiss the appeal as we can ascertain the issues raised by plaintiff on appeal.

However, we affirm the entry of sanctions against plaintiff for violations of Rule 11. We affirm the trial court’s finding that plaintiff’s complaint was filed for an improper purpose, as most of the claims lacked legal and factual bases. In particular, plaintiff complained about lawful activities by defendant, such as defendant installing cameras on her own property and standing on her own porch. We also note that plaintiff had several instances of a lack of candor before the trial court, including seeking a continuance to hire an attorney and plaintiff’s “trustee” lying about her identity.

Affirmed.

Divine Purpose International v. Dellinger (Lawyers Weekly No. 012-104-22, 4 pp.) (Chris Dillon, J.) Appealed from Cleveland County Superior Court (Micah J. Sanderson, J.) J. Boyce Garland, Jr. for plaintiff; Delton W. Barnes for defendant.

2022-NCCOA-173

Attorneys Malpractice – Statute of Limitations – Timeliness of Summons The trial court could not retroactively extend time for issuance of an

alias and pluries summons once an action had been discontinued for failure to perfect service.

On July 31, 2020, plaintiff filed a legal malpractice complaint against defendants, arising from legal services that were provided “in the spring of 2017.” Although the statute of limitations would have normally expired on plaintiff’s claim by May 7, 2020 at the latest, the limitations period was extended by order of the chief justice to July 31. However, plaintiff never perfected service of the summons on defendants. The court clerk issued an alias and pluries summons on November 3, 2020, 95 days after the issuance of the original summons.

The alias and pluries summons was eventually received by defendants on November 14.

Defendants moved to dismiss the action, arguing that the timing of the alias and pluries summons constitute a break in the chain such that plaintiff’s action should be deemed as having commenced on November 3, outside of the limitations period. The trial court granted defendants’ motion. Plaintiff appealed, arguing that the trial court should have extended the time for issuance of the alias and pluries summons or alternatively should have applied emergency directives issued by the chief justice to find the alias and pluries summons timely.

We affirm the dismissal of plaintiff’s complaint. We hold that while a trial court has discretion to extend the time for service of a summons after it becomes dormant but before expiration of the case, it cannot retroactively extend the time for issuance of an alias and pluries summons after the action has been discontinued for lack of service. We note that plaintiff’s action was discontinued 90 days after the complaint was filed and that the alias and pluries summons was issued after the discontinuance. Thus, we find that the issuance of the summons constituted the commencement of a new action, rendering plaintiff’s claim untimely under the statute of limitations. Finally, we find that plaintiff had failed to preserve its claim regarding the applicability of the emergency directives for appellate review.

Concurrence

(Allegra Collins, J.): The emergency directive issued in response to the COVID-19 pandemic, by its plain language, only applies to filings, not summonses, and therefore did not support the extension of time for the issuance of a summons to keep the chain of summonses alive for statute of limitations purposes.

Affirmed.

Hedgecock Lumber Company v. Apple (Lawyers Weekly No. 012105-22, 19 pp.) (Hunter Murphy, J.) (Allegra Collins, J., concurring in the result only) Appealed from Forsyth County Superior Court (Richard S. Gottlieb, J.) R. Thompson Wright for plaintiff; J. Chad Bomar for defendants. 2022-NCCOA-174

Administrative Involuntary Civil Commitment – Failure of State to Appear – Due Process A respondent subject to involuntary mental health commitment does not have their due process rights to an impartial tribunal violated where the trial court, in the absence of counsel for the state, calls a state witness and asks open-ended questions.

A petition for involuntary commitment was filed alleging that respondent D.C.-F. was mentally ill and a danger to herself or others. When the trial court held the involuntary commitment hearing, the state was not represented by counsel. Respondent’s counsel objected to holding the hearing without a representative from the state. The trial court overruled the objection and called a psychiatrist as a witness. Respondent testified in her own defense. The trial court ultimately concluded that respondent was a danger to herself and ordered her involuntarily committed for up to 30 days of inpatient treatment.

Respondent appealed the commitment order, arguing that the trial court violated her due process right to an impartial tribunal by assuming the role of prosecutor when the state failed to appear for the commitment hearing.

We affirm the trial court’s order, noting that we had previously ruled in In re C.G., 278 N.C. App. 416 that a trial court does not violate a respondent’s due process rights by calling a state witness and asking open-ended questions. Because similar events occurred during respondent’s hearing, we conclude that we are bound by precedent to affirm.

Affirmed.

In the Matter of: D.C.-F. (Lawyers Weekly No. 012-106-22, 3 pp.)

(Chris Dillon, J.) Appealed from Durham County Superior Court (Pat Evans, J.) Jessica Macari for petitioner; Emily Holmes Daivs for respondent.

2022-NCCOA-175

Domestic Relations Juvenile Delinquency – Possession of Drugs and Firearms – Motion to Suppress Officers who stopped a vehicle for expired tag could perform protective frisk on an occupant that the officers knew had a history of firearms offenses and was making furtive movements during the traffic stop.

Defendant, a 17-year-old, was with a couple of friends. One of the friends drove the group to a store.

Defendant went into the store while the driver remained in the car. While defendant was in the store, a police cruiser pulled in behind the group’s vehicle, with the officers examining the temporary tag. Defendant exited the store and got back in the vehicle and the group drove off. The officers then pulled the vehicle over as the temporary tag had expired. As the officers approached the vehicle, they recognized defendant from prior gunrelated incidents.

Noticing defendant fidgeting with his waistband, the officers ordered defendant out of the vehicle and grabbed his hands to prevent him from reaching for anything. One of the officers asked defendant “you got nothing on you, do you?” to which defendant replied “yeah, I got one.”

The officers interpreted defendant’s response to mean that defendant had a gun on his person. The officers detained defendant and found a black handgun in his waistband. Defendant later admitted to having controlled substances hidden in his sock.

Defendant was charged with various drug and weapons offenses. After he unsuccessfully moved to suppress the state’s evidence, he admitted to the offenses and the trial court adjudicated defendant delinquent and ultimately ordered him committed to a youth development center.

We affirm defendant’s delinquency adjudication and the denial of his motion to suppress the evidence in the case. We note that defendant acknowledged that the police officers had a valid reason to stop his friend’s vehicle due to the expired temporary tag. We also hold that officers always have the authority to order vehicle occupants to exit a vehicle for the duration of a traffic stop and thus properly ordered defendant to exit the vehicle.

We hold that there was sufficient record evidence to support the trial court’s factual findings that the officers observed defendant moving his hands near his waistband and had prior knowledge of defendant’s involvement in other gun-related incidents. We further rule that the officers were authorized to perform a weapons frisk immediately upon removing defendant from the vehicle due to defendant’s history and behavior during the stop giving rise to reasonable suspicion that he might have posed a safety threat. Finally, we rule that defendant’s admission to being armed justified his detention.

We further hold that the comprehensive clinical assessment performed on defendant could serve as the interdisciplinary evaluation ordered by the trial court, as the assessment considered defendant’s mental health status, family history, education, and substance abuse and concluded that a supervised, structured placement would provide defendant with the treatment necessary to address his anti-social behaviors and substance abuse.

Affirmed.

In the Matter of: D.K.B. (Lawyers Weekly No. 012-107-22, 18 pp.)

(Darren Jackson, J.) Appealed from New Hanover County Superior Court (J.H. Corpening, II, J.) Janelle E. Varley for the state; Kellie Mannette for defendant. 2022-NCCOA-176

Domestic Relations Termination of Parental Rights – Willful Abandonment – Abuse or Neglect – Failure to Make Reasonable Progress A parent’s failure to visit with their child, their history of domestic violence towards the child’s other biological parent, and their failure to comply with substance abuse treatment or other court-ordered services provided grounds for the termination of parental rights.

Respondent was the biological father of six-year-old Kaitlyn. Kaitlyn’s mother suffered from drug addiction and was hospitalized multiple times for overdoses, leading to Kaitlyn’s temporary placement. Respondent had multiple drug trafficking convictions and a history of domestic violence against Kaitlyn’s mother.

DSS filed a petition alleging neglect and dependency of Kaitlyn, who was placed in the custody of her paternal grandfather. However, Kaitlyn was later moved to foster care after her grandfather refused to transport her for visits and allowed respondent to have unsupervised visits with her.

DSS later filed a petition to terminate respondent’s parental rights. The trial court granted the petition, finding the grounds of willful abandonment, abuse or neglect, and failure to make reasonable progress.

We affirm the termination of respondent’s parental rights. We note that respondent admitted to not engaging in any court-ordered services and failing to visit or make reason-

20 / OPINION DIGESTS able efforts to visit with Kaitlyn for a period of about 18 months. We therefore find sufficient evidence to support the trial court’s conclusion that respondent had abandoned Kaitlyn during the statutory six-month period. We further agree with the trial court that respondent’s history of domestic violence towards Kaitlyn’s mother made Kaitlyn an abused or neglected child. Finally, we rule that respondent’s failure to make any reasonable progress towards addressing his substance abuse issues or to provide proof of his stable housing and employment meant that respondent had effectively left Kaitlyn in foster care or out of home placement and further warranted the termination of his parental rights.

Affirmed.

In the Matter of K.L.L. (Lawyers Weekly No. 012-108-22, 11 pp.)

(John Tyson, J.) Appealed from Gaston County Superior Court (John K, Greenlee, J.) Elizabeth Myrick Boone for petitioner; Sydney Batch for respondent. 2022-NCCOA-177

Domestic Relations Termination of Parental Rights – Failure to Complete Case Plan – Neglect – Trial Court’s Findings of Fact The trial court had a sufficient basis to terminate parental rights after hearing substantial evidence showing that a parent had not completed all the aspects of their case plan, had failed to maintain stable housing and employment, and had failed to visit with their child despite being afforded regular visitation.

Petitioner was awarded nonsecure custody of mother’s son, Marshall, after the trial court found that mother had no stable housing and engaged in physically aggressive behavior towards Marshall. Mother entered a case plan agreement to address the issues that led to Marshall’s removal. Mother completed her parenting classes but failed to complete the other aspects of her case plan.

Petitioner moved to terminate mother’s parental rights. The trial court granted the petition, finding grounds of neglect and reasonable probability of future neglect, willfully leaving Marshall in foster care for at least 12 months without reasonable progress in correcting circumstances that led to removal, failing to pay a reasonable proportion of the costs of Marshall’s care, and willfully abandoning Marshall for at least the prior six months. The trial court concluded that termination of mother’s parental rights was in Marshall’s best interest because he had bonded with his foster family, who wished to adopt him, while there appeared to be no bond between mother and Marshall.

We affirm the trial court’s order terminating mother’s parental rights.

Mother’s counsel could not identify any issues of merit to base an argument for relief and asked the court to independently review the record for error. However, counsel identified three potential issues for the court’s consideration, all relating to the trial court’s factual findings. But on an independent review of the record, we can identify no basis to overturn the trial court’s order.

We find sufficient evidence in the record to support the trial court’s conclusion that mother had failed to comply with all the aspects of her case plan, as petitioner presented testimony that no mental health treatment plan had been established for mother

and that she had not secured stable housing as she was currently living in a motel. Petitioner also had no information indicating whether mother was currently employment. We also note that mother had not completed a substance abuse evaluation after testing positive for marijuana and methamphetamines.

We further note evidence that mother had willfully abandoned Marshal, including the fact that mother had only visited Marshall five times within an approximately nine month period in which mother had been granted biweekly supervised visitation. We also hold that mother had failed to contribute to the costs of Marshall’s care by not maintaining stable employment. Finally, we agree with the trial court that mother had neglected Marshall and was likely to repeat such neglect due to her failure to complete her case plan, maintain stable housing and employment, and regularly visit with Marshall.

Lastly, we agree with the trial court that termination was in Marshall’s best interest as termination aided Marshall’s primary permanent plan of adoption, as he was bonded with his foster family who expressed interest in adopting Marshall.

Affirmed.

In the Matter of: M.R.R. (Lawyers Weekly No. 012-109-22, 15 pp.)

(Chris Dillon, J.) Appealed from Yadkin County Superior Court (Donna Shumate, J.) James N. Freeman, Jr. for petitioner; Lesli Rawls McNeill for defendants. 2022-NCCOA-178

Domestic Relations Termination of Parental Rights – Statutory Grounds to Terminate – Sufficiency of Factual Findings – Willful Abandonment A parent’s parental rights were involuntarily terminated where the parent expressed a desire to sign over their parental rights, subsequently left the state, and engaged in criminal conduct that resulted in their incarceration, during which time the parent failed to provide any contribution toward the cost of their child’s care or to contact their child.

Petitioner obtained custody of minor child Noah after mother informed social services workers that she feared for Noah’s safety due to the fact that she was experiencing auditory hallucinations encouraging her to harm Noah and because she could not provide for Noah’s needs. Mother was granted visitation; however, mother would frequently arrive late, leave early, and stay on her phone rather than interact with Noah. Eventually, mother tested petitioner that she no longer wanted parental rights to Noah.

Mother was later incarcerated in Oklahoma on federal prostitution charges. Although mother spoke with petitioner several times during her incarceration, she did not attempt to communicate with Noah or provide financial support. The trial court accordingly adjudicated Noah a neglected and dependent child and ordered mother to comply with a case plan in support of the primary goal of reunification. The trial court later changed the primary goal from reunification to adoption after mother made little progress on her case plan and had become incarcerated again.

After being released from incarceration, mother advised petitioner that she no longer wanted to sign over her parental rights and began to make

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limited efforts to comply with her case plan. Nevertheless, the trial court granted petitioner’s motion to terminate mother’s parental rights, finding that five statutory grounds for termination existed and that termination was in Noah’s best interest.

We affirm the involuntary termination of mother’s parental rights, finding sufficient evidence to support the trial court’s finding that mother had willfully abandoned Noah for the statutorily-required period. In particular, we note the trial court’s factual findings that mother was earning income from escort services that led to her arrest and incarceration but did not offer to contribute toward the cost of Noah’s care. We further agree with the trial court’s finding that mother’s limited communications with petitioner while she was incarcerated did not equate to contact with Noah.

We reject mother’s contention that the trial court failed to adequately consider how her incarceration affected her ability to provide care and support to Noah, holding that incarceration alone could not serve as an excuse to shield a parent from a finding that they willfully abandoned their child. Specifically, we note that mother admitted to having access to funds while incarcerated and find that her ability to contact petitioner also meant that she could have tried to have contact with Noah.

Finally, we note mother’s conduct prior to petitioner’s motion to terminate, including her multiple messages to petitioner’s social workers explicitly stating that she wanted to sign away her parental rights. We agree with the trial court that mother’s decisions to leave North Carolina, have no contact with Noah, and become involved with criminal activity were willful choices that led to Noah remaining in foster care.

Affirmed.

In re: N.J.D.K. (Lawyers Weekly No. 012-110-22, 16 pp.) (Jefferson Griffin, J.) Appealed from Franklin County Superior Court (Adam Keith, J.) Gena Walling McCray for petitioner; J. Lee Gilliam for respondent.

2022-NCCOA-179

Environmental SPCA – Failure to Plead Citation for Violation of Law – Standing – Dismissal with Prejudice The failure to plead that a defendant was cited for a legal or regulatory violation was fatal to standing to bring a claim under the Sedimentation Pollution Control Act, but the trial court was required to dismiss the claim without prejudice since a lack of standing meant a lack of subject matter jurisdiction and authority to issue an adjudication of the merits.

Plaintiffs owned properties on Lake Wylie. Defendants, who were constructing a housing development near the lake, were required to have a stormwater management plan.

Defendants’ plan included the construction of retention points to collect stormwater and allow sediment to settle into the retention pond. In August 2017, the retention pond’s dam failed, causing water, sediment, and debris to run into Lake Wylie, although nothing from the pond crossed plaintiffs’ properties. Defendants were subsequently cited by the city for violating a sedimentation control ordinance.

Plaintiffs filed suit, seeking compensation for trespass from sedimentation pollution from defendants’ re-

tention pond. Plaintiffs alleged that the pollution rendered their portion of Lake Wylie unusable for swimming or boating. Defendants moved to dismiss or for judgment on the pleadings. The trial court granted dismissal of plaintiffs’ claims for trespass and violation of the SCPA. Although plaintiffs’ nuisance claim was initially allowed to continue, the trial court eventually granted summary judgment to defendants on that claim as well. Plaintiffs moved for relief pursuant to Rule 60.

After plaintiffs filed their notice of appeal, the trial court finally entered an order denying plaintiffs’ Rule 60 motion.

Although we affirm the dismissal of plaintiffs’ SCPA claim, we agree that the trial court erred in dismissing the claim with prejudice. We find that plaintiffs lacked standing to bring their claim due to their failure to plead that defendants had been cited for violation of a law, rule, ordinance, or order. But we hold that dismissal of lack of standing was equivalent to dismissal for lack of subject matter jurisdiction. Therefore, the trial court could not dismiss with prejudice since it lacked authority to adjudicate the matter.

We further affirm the dismissal of plaintiffs’ trespass claim. We hold that South Carolina law applies to the claim because plaintiffs’ properties were in South Carolina and that is where they suffered their claimed injuries. We find that a trespass claim under South Carolina law requires that a defendant commit an intentional invasion of a property owner’s interest in the exclusive possession of their property. Thus, we rule that plaintiffs’ trespass claim failed as a matter of law due to the lack of allegations that defendants committed any intention act or invasion.

We also rule that South Carolina law also applies to plaintiffs’ nuisance claim. We hold that this claim also fails because South Carolina law requires that a nuisance involve continuous or recurring actions. Plaintiffs had not pled that defendants’ actions were recurring or continuing, rather only that their injuries from defendants’ actions were continuous.

Finally, we vacate the trial court’s order denying plaintiffs’ Rule 60 motion, agreeing that the trial court was divested of jurisdiction after plaintiffs had filed their notice of appeal.

Modified and affirmed in part, affirmed in part, vacated in part.

Kochilla v. Mattamy Carolina Corporation (Lawyers Weekly No. 012-111-22, 21 pp.) (Hunter Murphy, J.) Appealed from Mecklenberg County Superior Court (Lisa C. Bell, J.) Christopher M. Vann for plaintiffs; Amy P. Hunt and Robert B. McNeill for defendants. 2022-NCCOA-180

Real Property Easements –Road Maintenance – Plat Reference – Card Gate Location A 2018 declaration of easement establishes a new association whose purpose is to maintain a private road.

That declaration refers to a 2014 plat that depicts the plaintiff-homeowners’ association’s (HOA’s) card gate facility at a location to which the HOA had briefly relocated the facility before being ordered to return it to its original location—the location set out in its 1991 easement over the property of the defendant-condominium unit owners’ association (UOA).

The 2018 declaration does not contain granting language which would

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allow the HOA to move its card gate facility back to the location set out on the 2014 plat; rather, the 2014 plat was simply referenced in the 2018 declaration to depict the location of the road itself. The 2018 declaration has no effect on the HOA’s 1991 easement over the UOA’s property.

We affirm summary judgment for the UOA. Ocean Isle West Homeowners Association, Inc. v. Ocean Point Unit Owners Association, Inc. (Lawyers Weekly No. 012-112-22, 7 pp.) (Chris Dillon, J.) Appealed from Brunswick County Superior Court (Jason Disbrow, J.) Michael Porter for plaintiff; Joshua Phanco and Denise Watts for defendant. 2022-NCCOA-181

could consider respondent’s receipt of rents, which he did not share with petitioners, in awarding petitioners $110,731.46 and respondent $76,168.69 from the proceeds of the sale of the property.

Affirmed.

Patton v. Patton (Lawyers Weekly No. 012-113-22, 5 pp.) (Chris Dillon, J.) Appealed from Buncombe County Superior Court (Stephen Warren, J.) William Christy for petitioners; Gregory Johnson for respondent. 2022-NCCOA-182

Real Property

This case is part of the respondentcorporation’s efforts to obtain a minor special use permit (mSUP) from the respondent-county in order to build a school. This court previously remanded a 2018 superior court order for further proceedings. However, it appears this case lay dormant, while the corporation pursued a new mSUP, until petitioners moved for an award of attorneys’ fees against the county. Since there has been no final determination that the county board of adjustment

Partition by Sale – Division of Proceeds The parties inherited real property from their father. After their father’s death and before petitioners sought partition by sale, respondent spent $35,560.93 in taxes and repairs to the property and collected $76,123.71 in rent from tenants. The trial court

Civil Practice Appeals – Interlocutory Order – Attorney’s Fee Award

acted outside the scope of its authority in issuing the mSUP at issue in this action, there is no statutory basis for an award of attorneys’ fees.

We vacate the attorneys’ fee award.

Sarvis v. Durham County (Lawyers Weekly No. 012-114-22, 13 pp.) (Toby Hampson, J.) Appealed from Durham County Superior Court (Keith Gregory & Michael O’Foghludha, JJ.) LeAnn Nease Brown for petitioners; Bryan Wardell for respondent. 2022-NCCOA-183.

Civil Practice Interlocutory Appeals – Claims & Counterclaims – Partial Dismissal In this case arising out of defendants’ use of residential property owned by plaintiff, plaintiff asserted two claims against defendant Juliane Bradshaw and two additional claims against defendants Juliane and Geoffrey Bradshaw, Juliane asserted counterclaims against plaintiff, defendants also asserted claims against third-party defendants, and the third-party defendants asserted counterclaims against the defendants/ third-party plaintiffs. The trial court dismissed one of plaintiff’s claims

against Juliane and one of her claims against both Bradshaws. Since the trial court did not certify its order for immediate appeal and since plaintiff has not shown how the trial court’s interlocutory order affects a substantial right, we lack jurisdiction to reach the merits of this appeal.

Appeal dismissed.

Splawn v. Juliane Bradshaw (Lawyers Weekly No. 012-115-22, 5 pp.) (Richard Dietz, J.) Appealed from Wake County District Court (Christine Walczyk, J.) Chris Kremer for plaintiff; Juliane Bradshaw and Geoffrey Bradshaw, pro se. 2022-NCCOA-184

Criminal Practice Joint Trial – Co-Defendant’s Jailhouse Statements – Witness Recall – Failure to Request During the state’s rebuttal and after defendant Jackson’s testimony had concluded, the state introduced recorded statements Jackson had made while in jail. The statements incriminated not only Jackson but also co-defendant Ray. Even though the trial court said, “Now that [Jackson] is off the witness stand, [Ray] can’t

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22 / OPINION DIGESTS recall her,” since Ray never asked the trial court to exercise its discretion and allow him to recall Jackson to the stand, the admission of the recorded statements did not violate the Confrontation Clause.

We find no prejudicial error in defendants’ convictions of conspiracy to commit first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, common law robbery, and possession of a stolen motor vehicle. We also find no error in Jackson’s conviction of attempted first-degree murder.

Even if the trial court erred by failing to give a limiting instruction with respect to Jackson’s statements implicating Ray, given the ample other evidence of Ray’s guilt, any such error was not prejudicial.

The trial court did not err in denying Jackson’s motion to dismiss the conspiracy charge. A rational juror could have found that defendants had an express agreement or an implied understanding to murder the victim.

After the victim purchased drugs from a dealer, defendants directed the victim to take several turns and drive down a dirt road “that goes back to a back field ... [with] a pile of trash at the end of it.” Although a rational juror could conclude that defendants instructed the victim to drive down the dirt road so they could use drugs, one could just as easily conclude that defendants did so for reasons that support the state’s theory.

Defendants did not wait to use the drugs until they arrived at the end of the dirt road. Instead, they began smoking the crack-cocaine almost immediately after it was purchased and while the victim was driving. After the victim pulled off the dirt road, defendants instructed her to drive even farther down the road. All the while, defendants were whispering to each other, indicating that that they were discussing something that they obviously did not want the victim to hear.

The nature of the assault also tends to show it was coordinated and deliberate. When the victim finally stopped the car, Ray “pulled open [the victim’s] car door” and stated, “You know I have to do this.” He then dragged the victim to the side of the road and called for Jackson.

Jackson immediately exited the car with a knife and attacked the victim while Ray held the victim in place. At one point, Jackson said, “I can still see her breathing,” to which Ray responded, “I can still see her breathing too. Make sure you cut her neck good, and stab her in the heart.”

Jackson then attempted to follow Ray’s instructions, and Ray praised her, saying “you did a good job, baby.

I don’t think she is going to make it.”

Afterwards, defendants threw dirt over the victim’s body.

The state presented substantial evidence of conspiracy to commit firstdegree murder.

The trial court correctly declined to instruct the jury on the charge of attempted voluntary manslaughter based on a theory of imperfect selfdefense. Although Jackson testified that she saw “something silver” in the victim’s hand, no rational juror could conclude that Jackson reasonably believed it necessary to stab the victim 14 to 15 times in her upper back in order to save herself from death or great bodily injury, No prejudicial error.

State v. Jackson (Lawyers Weekly No. 012-116-22, 19 pp.) (Jefferson Griffin, J.) Appealed from Harnett County Superior Court (Gale Adams, J.) Tamara Van Pala and Anne Brown

for the state; Jillian Katz and Narendra Ghosh for defendants. 2022-NCCOA-191

Criminal Practice Elder Neglect – ‘Ancillary’ Caregiver – Unsafe Condition Defendant argues that she was only an “ancillary” caretaker for her mother-in-law, while her husband was the primary caretaker; however, G.S. § 14-32.3(b) does not distinguish between a primary and ancillary caretaker. A caretaker, even an ancillary one, has a duty “to provide medical or hygienic care…”

We find no error in defendant’s conviction of neglect of a disabled or elder adult causing serious injury.

The state presented evidence that plaintiff and her husband (the Hayners) left the husband’s mother, Thelma, alone in her bedroom while the Hayners went to New York to visit family. Although the Hayners asked Noelle Kirkman to feed their cats and to “look in on” Thelma while they were gone, they told Kirkman that Thelma had everything she needed, i.e., adult diapers and packaged food. The state presented evidence, via Kirkman’s testimony regarding a hook on the outside of Thelma’s door, that Thelma was confined.

The state also presented evidence that Thelma was in an unsafe place.

Before she left for New York, plaintiff was aware of Thelma’s cognitive decline and severely impaired autonomy. Thelma could not stand unassisted, relied on adult diapers, and “was becoming more difficult due to her dementia and memory loss.”

During the trip, Kirkman called to say she had found Thelma on the floor. Kirkman picked Thelma up, put her back in her chair, and offered to call 911, but the Hayners declined, saying they would be back home the next day.

Just over a month after the Hayners returned from New York, they sought treatment for Thelma’s bedsores. A doctor testified that these necrotic bedsores would have taken weeks to develop. The husband testified that he first noticed one of the bedsores, already large in diameter and marked with necrosis, a week after Kirkman found Thelma lying on the floor. A reasonable inference can be drawn that Thelma’s wounds were caused or exacerbated by being left alone, confined to her bedroom, in an unsafe condition.

Defendant was Thelma’s only caretaker for about six hours a day, while her husband was at work. Defendant did not investigate any of Thelma’s wounds, which would have been visually apparent and “smelled like a dead body.” Although defendant claims she could not smell because her sinus cavities had been removed when she had cancer, this evidence is not considered when ruling on a motion to dismiss as it was not presented by the state, was unfavorable to the state, and was unsubstantiated outside of the husband’s testimony.

Moreover, defendant did not care for Thelma’s fingernails or nail beds, which had had “either dirt or feces underneath[,] ... were not trimmed and ... [were] very nasty looking.” A reasonable inference can be drawn that defendant wantonly, recklessly or with gross carelessness breached her duty as a caretaker to her mother-in-law, an elderly and disabled woman with dementia, by failing to provide any medical or hygienic care

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 Apr il 25, 2022

whatsoever.

No error.

State v. Hayner (Lawyers Weekly No. 012-117-22, 19 pp.) (Fred Gore, J.) Appealed from Randolph County Superior Court (James Hill, J.) Kristine Ricketts for the state; Nicholas Woomer-Deters for defendant.

2022-NCCOA-189

Criminal Practice Voluntary Manslaughter – Castle Doctrine – Possession of a Firearm by a Felon – Justification Defense – Impeachment Evidence Pursuant to State v McLymore, 2022-NCSC-12, in order for defendant’s commission of a felony—possession of a firearm by a felon—to disqualify him from application of the Castle Doctrine, the state was required to introduce evidence that, but for the defendant committing the felony, the confrontation resulting in the injury to the victim would not have occurred. The evidence showed that defendant only retrieved his firearm from his car after the mother of his child and her new husband (the victim) arrived and asked him to return the child. Defendant then retreated to his residence and closed the door.

Only then did the victim start banging on defendant’s door and (according to defendant) charge at defendant when he opened the door, at which point defendant fatally shot the victim.

But for defendant retrieving and possessing the firearm, the confrontation resulting in injury to the victim would not have occurred. Therefore, defendant cannot establish prejudicial error in the trial court’s instruction to the jury that defendant’s possession of a firearm as a felon would serve as a disqualifying felony under the Castle Doctrine.

We find no error in defendant’s convictions of voluntary manslaughter and possession of a firearm by a felon.

The defense of justification may apply to the offense of possession of a firearm by a felon in narrow circumstances: a defendant must show (1) that the defendant was under unlawful, present, imminent, and impending threat of death or serious injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

The critical inquiry under the first factor is whether the defendant was under an imminent threat “at the time he took possession of the firearm”—not at the time when defendant used the firearm.

Here, defendant grabbed the handgun in his car, walked back up to his apartment, and shut and locked the door to the apartment leaving his ex-girlfriend and the victim outside.

Even assuming the jury believed defendant’s version of the ensuing events, that the victim lunged at defendant when he opened the door, the uncontroverted evidence showed at the time defendant initially possessed the gun, he was not under an imminent threat as he had time to smoke a cigarette and walk back up to his apartment to shut and lock the door.

Thus, defendant was not entitled to the justification defense because he

possessed the gun for several minutes before the alleged physical confrontation ensued.

Therefore, the trial court did not err in refusing to instruct the jury on the justification instruction. Consequently, the trial court also did not err in refusing to instruct the jury that defendant would not be disqualified from presumptive immunity under the statutory Castle Doctrine defense for committing the felony of possession of a firearm by a felon if the jury found he was justified in so possessing a firearm.

Finally, where defendant testified in his own defense, placing his credibility at issue, and where defendant denied buying and selling guns, the trial court did not err in admitting text messages showing defendant’s apparent involvement in buying and selling guns.

No error.

State v. Brown (Lawyers Weekly No. 012-118-22, 20 pp.) (Toby Hampson, J.) Appealed from Wake County Superior Court (Paul Ridgeway, J.) Joseph Hyde for the state; Narendra Ghosh for defendant. 2022-NCCOA-73

Criminal Practice Sentencing – Prior Record Points – Four Felonies in One Week Because four of defendant’s five prior felony convictions occurred in a single superior court during one calendar week, only the conviction with the highest point total is included in defendant’s prior record level calculation. That conviction is defendant’s Class H felony conviction for sale of marijuana, which counts as two prior record level points. Defendant should have only been assigned a total of two points for his four North Carolina felony convictions, not four.

Since the decrease in defendant’s prior record level points moves him from a Prior Record Level IV offender to a Prior Record Level III offender, the trial court’s error was prejudicial.

We vacate defendant’s sentence and remand for resentencing.

State v. Patterson (Lawyers Weekly No. 012-119-22, 8 pp.) (Hunter Murphy, J.) Appealed from Mecklenburg County Superior Court (William Bell, J.) Kerry Boehm for the state; Candace Washington for defendant. 2022-NCCOA-192

Criminal Practice Murder – Closed-Door Shooting – Inferences The state presented evidence that the pregnant victim was living in the home belonging to defendant’s parents. Defendant’s father told the victim to move out, but she refused.

Sometime later, defendant came by and was holding a gun outside the home. Defendant walked inside into the first-floor bedroom, gun in hand, and closed the door. The victim was inside that room at the time. Defendant told the victim to do what his father told her and “get the f*** out of here, or I’m going to make you.” The victim refused, replying, “Well, B****, I ain’t going no f***ing where.” Seconds later, a gunshot rang out from the bedroom. Defendant then exited the room unharmed. The victim, though, had been fatally shot in the chest.

Although defendant testified that he did not shoot the victim and was

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N O R T H C A R O L I N A L A W Y E R S W E E K LY I Ap ri l 25, 2022

not even present, it could be inferred from the evidence that (1) defendant fatally shot the victim; (2) he did so with malice, given the use of a deadly weapon; (3) he acted with premeditation, given that he came to the house with a gun, that he closed the door to the bedroom where he was alone with the victim, and that he threatened to use force against her; (4) he acted with deliberation, since deliberation may occur during a quarrel between the defendant and the victim if the emotions produced by the quarrel have not overcome the defendant’s faculties and reason; and (5) he shot the victim with the intent to kill her, given that he shot her in the chest.

We find no error in defendant’s convictions of first-degree murder and murder of an unborn child.

State v. Holley (Lawyers Weekly No. 012-120-22, 7 pp.) (Chris Dillon, J.) Appealed from Washington County Superior Court (Walter Godwin, J.) Nicholas Sanders for the state; Daniel Shatz for defendant. 2022-NCCOA-190

Criminal Practice MAR – Plea Agreement – Invalid Bill of Information – Vacatur Defendant was charged with multiple offenses set out in several court files. The terms of defendant’s plea agreement specifically provided, “In addition, defendant shall plead guilty to ... possession with intent to sell or deliver schedule I controlled substance.” Since the bill of information charging defendant with possession with intent to sell or deliver a schedule I controlled substance was fatally defective—depriving the trial court of jurisdiction over it—essential and fundamental terms of the plea agreement are unfulfillable. The appropriate remedy is to set aside the entire plea agreement.

We vacate the plea agreement and all judgments entered pursuant to the plea agreement. Remanded for a new disposition.

State v. Stonestreet, 243 N.C. 28, 89 S.E.2d 734 (1955), says that when “separate judgments, each complete within itself, are pronounced on separate indictments or counts ... a valid judgment pronounced on a plea of guilty to a valid count in a bill of indictment will be upheld.” Stonestreet is distinguishable in that there is no indication that Stonestreet entered his guilty pleas pursuant to a plea agreement. Here, the three judgments entered against defendant were in accordance with the terms of a plea agreement.

State v. Harris (Lawyers Weekly No. 012-121-22, 12 pp.) (Donna Stroud, C.J.) Appealed from Rutherford County Superior Court (Thomas Davis, J.) Caden William Hayes for the state; Nicholas Woomer-Deters for defendant. 2022-NCCOA-187

Criminal Practice Post-Conviction DNA Testing – Anders Brief – Defendant’s Admission Given defendant’s pretrial letter asking his son for forgiveness and his admission at trial that he and his late wife engaged in a struggle which resulted in her death, defendant had no viable defense that anyone other than he was responsible for his wife’s death.

We affirm the trial court’s denial of defendant’s motion for post-conviction DNA testing.

State v. Gurkin (Lawyers Weekly No. 012-122-22, 8 pp.) (Darren Jackson, J.) Appealed from Martin County Superior Court (Wayland Sermons, J.) Robert Montgomery for the state; Jason Christopher Yoder for defendant. 2022-NCCOA-186

Criminal Practice Attorney’s Fees – Civil Judgment – Right to Be Heard Where the trial court failed to conduct a proper colloquy with defendant, and where no evidence in the record shows defendant waived his right to be heard, the trial court erred by entering a civil judgment against defendant for attorney’s fees without first giving him notice and an opportunity to be heard.

We vacate the attorney’s fee award and remand for further proceedings.

State v. Daughterty (Lawyers Weekly No. 012-123-22, 3 pp.) (Fred Gore, J.) Appealed from Buncombe County District Court (Patricia Kaufmann, J.) Katherine McCraw for the state; Mary McCullers Reece for defendant. 2022-NCCOA-185

Criminal Practice Probation Revocation – Expired Term – Good Cause Even though the probation revocation hearing was not held until after defendant’s probation had expired, and even though the trial court’s written judgment did not include a finding of good cause to revoke defendant’s probation, since (1) the original court dates scheduled for defendant’s revocation hearing would have occurred prior to the expiration of her probationary term, (2) it was defense counsel who requested and received continuances to adequately prepare defendant’s case, and (3) the trial court made a specific finding on the record that the state had shown good cause to revoke defendant’s probation, the trial court did not abuse its discretion in revoking defendant’s probation.

Affirmed in part, dismissed in part.

Defendant did not present the issue of entitlement to jail credit before the trial court. Therefore, this issue is not properly before us. We dismiss it without prejudice to defendant’s ability to file a motion for an award of additional credit in the superior court.

State v. Harrison (Lawyers Weekly No. 012-124-22, 6 pp.) (Chris Dillon, J.) Appealed from Guilford County Superior Court (William Wood, J.) Allison Angell for the state; Jason Christopher Yoder for defendant. 2022-NCCOA-188

legra Collins, J.) Appealed from Catawba County Superior Court (Jesse Caldwell, J.) Alesia Balshakova for the state; Mary McCullers Reece for defendant. 2022-NCCOA-193

Criminal Practice Jury Instructions – Heroin Trafficking – Cut with Fentanyl – Knowledge The evidence showed that defendant knew he possessed heroin, though he believed the substance was cut (i.e., mixed) with Fentanyl. Defendant knew he was selling heroin; the issue was simply defendant’s knowledge of the heroin concentration in the mixture. Accordingly, when the trial court gave Pattern Jury Instruction, Criminal 260.17, it was not required to give the “knowledge footnote”: “and the defendant knew that what the defendant possessed was (name substance).”

We find no error in defendant’s conviction of offenses relating to the possession, transportation and delivery of heroin.

State v. Stinson (Lawyers Weekly No. 012-126-22, 7 pp.) (Chris Dillon, J.) Appealed from Mecklenburg County Superior Court (Louis Trosch, J.) Aldean Webster for the state; Anne Bleyman for defendant. 2022-NCCOA-194

Criminal Practice Probation Revocation – Concurrent Sentences – Unchecked Box Unless the trial court indicates otherwise, if a period of probation is imposed at the same time as a prison sentence, the probationary period runs concurrently with the prison sentence. When defendant was convicted of several drug-related offenses, the trial court imposed prison sentences for some offenses and probation for others. In File No. 11 CRS 5845, the trial court did not check the box on the judgment form indicating that the “period of probation shall begin when the defendant is released from incarceration” on his active prison sentences. Therefore, the trial court lacked jurisdiction to revoke defendant’s probation in 11 CRS 5845 for probation violations committed after his release from prison.

We vacate the judgment revoking defendant’s probation in 11 CRS 5845.

State v. Swanson (Lawyers Weekly No. 012-127-22, 6 pp.) (Richard Dietz, J.) Appealed from Catawba County Superior Court (Nathaniel Poovey, J.) Stephanie Lloyd for the state; Edward Eldred for defendant.

2022-NCCOA-195

Criminal Practice

Criminal Practice

Anders Brief – Wholly Frivolous Appeal

Habitual Felon Indictment – Predicate Felony – Dismissed Indictment

Although defendant appeals from the judgment entered upon his Alford pleas to possession of cocaine and assault with a deadly weapon inflicting serious injury, his counsel was unable to identify any non-frivolous justiciable issue for appeal, defendant did not file any written arguments with this court, and a reasonable time for him to do so has passed. Our review of the record reveals that this appeal is wholly frivolous.

Appeal dismissed.

State v. Robinson (Lawyers Weekly No. 012-125-22, 4 pp.) (Al-

On 6 January 2016, a predicate felony indictment (Indictment 1), alleging an attempt to obtain property by false pretenses on 17 March 2015, and a habitual felon indictment were handed down. On 7 March 2016, a new predicate felony indictment (Indictment 2), alleging a 19 November 2015 breaking or entering and larceny, was handed down. Indictment 1 was eventually dismissed, and Indictment 2 was eventually superseded by Indictment 3, which added a charge of felonious possession of stolen goods with an offense date of 19 November

2015. Since the offense date in Indictment 3 preceded the habitual felon indictment’s issuance, the habitual felon indictment could attach to Indictment 3, and they could be tried to the same jury.

We find no error in defendant’s convictions of felonious possession of stolen goods pursuant to a breaking or entering and habitual felon status.

A substantive felony indictment need not reference a habitual felon indictment, and a habitual felon indictment is not required to specifically refer to the predicate substantive felony. Additionally, a separate habitual felony indictment is not required for each substantive felony indictment.

It is also not necessary for the habitual felony indictment and the predicate substantive felony indictment to be handed down at the same time.

A habitual felon indictment may be returned before, after, or simultaneously with a substantive felony indictment.

Here, the habitual felon indictment includes all the information required by G.S. § 14-7.3 and provides defendant with adequate notice of the bases for the state’s contention that defendant had attained habitual felon status. The offense date listed on the habitual felon indictment is not an essential element; therefore, it is treated as surplusage and ignored.

It is immaterial that the habitual felon indictment preceded the substantive felony indictment. Because the offense date in Indictment 3 occurred prior to the date the habitual felon indictment was handed down (6 January 2016), the habitual felon indictment became ancillary to Indictment 3. The trial court had jurisdiction to sentence defendant as a habitual felon.

Defendant moved to suppress the use of a 1989 conviction to support the habitual felon indictment. He claimed the conviction was obtained in violation of his right to counsel. However, defendant did not file his motion in writing, nor did he file an accompanying affidavit. As a result, defendant waived the right to suppress use of the 1989 conviction.

No error.

State v. Wall (Lawyers Weekly No. 012-128-22, 14 pp.) (Donna Stroud, C.J.) Appealed from Catawba County Superior Court (Stuart Albright, J.) Brent Kiziah for the state; Stephen Driggers for defendant. 2022-NCCOA-196

Criminal Practice DVPO Violation – Indictment Allegations – Victim’s Name The indictment alleging defendant’s violation of a domestic violence protective order did not name the victim; however, the indictment alleged every element of the offense and sufficiently informed defendant of the conduct which was the subject of the accusation (multiple calls and texts to the father of her child). Moreover, the father of defendant’s child testified at trial and identified himself in open court; thus, defendant is protected from double jeopardy.

We affirm defendant’s conviction for violating a domestic violence protective order.

State v. Williams (Lawyers Weekly No. 012-129-22, 10 pp.) (Valerie Zachary, J.) Appealed from Wake County Superior Court (Rebecca Holt, J.) Alexander Ward for the state; Sharon Smith for defendant. 2022-NCCOA-197

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