Supreme Court - Digested Index

11 February 2022

Appeal and Error

Preservation of issues—jury instruction—self-defense—specific grounds for objection—In a murder prosecution, where the trial court instructed the jury that N.C.G.S. § 14-51.4 precluded defendant from claiming self-defense because he was committing a felony (possession of a firearm by a felon) at the time he used defensive force against the victim, defendant preserved for appellate review his argument that the court erred by not instructing the jury that section 14-51.4 only applied if the State could prove an immediate causal nexus between defendant's use of defensive force and his commission of the felony. Defendant's objection at trial–that the court erred in delivering an instruction on section 14-51.4 and, alternatively, the court misstated the scope and applicability of the felony disqualifier–encompassed defendant's argument on appeal and therefore met the specificity requirement of Appellate Rule 10 (parties must state the specific grounds for their objection unless those grounds were apparent from the context). State v. McLymore, No. 270PA20 (N.C. Feb. 11, 2022)

Swapping horses on appeal—statute enacted during pendency of appeal—new claim raised—Where a case arising from a school board's constitutional challenge to the attorney general's administration of funds received pursuant to an agreement with a hog farming company (following the contamination of water supplies by swine waste lagoons) was on remand at the Court of Appeals for further proceedings not inconsistent with the Supreme Court's prior opinion, the Court of Appeals erred by concluding that the school board's amended complaint sufficed to state a claim for relief pursuant to a statute that was enacted during the pendency of the appeal (N.C.G.S. § 147-76.1). The school board could not raise an entirely new claim for the first time on appeal–based on a statute that did not even exist at the time its amended complaint was filed–from the trial court's order granting summary judgment to the attorney general. New Hanover Cnty. Bd. of Educ. v. Stein, No. 339A18-2 (N.C. Feb. 11, 2022)

Child Abuse, Dependency, and Neglect

Neglect—dismissal of claim—standard of review on appeal—de novo—In a neglect case, where the trial court's findings–which were based on the parties' stipulations–were unchallenged and therefore binding on appeal, the Court of Appeals erred in affirming the trial court's dismissal of the neglect claim because it failed to conduct a proper de novo review of the trial court's decision. Rather than determining whether the unchallenged findings of fact supported a legal conclusion of neglect, the Court of Appeals' use of speculative language demonstrated an improper deference to the trial court's conclusion where it stated that another judge "may have" adjudicated the juvenile as neglected, that the findings "might" support a neglect adjudication but did not "compel" one, and that it could not "say as a matter of law" that the trial court erred by dismissing the claim. The matter was remanded to the Court of Appeals to conduct a proper de novo review. In re K.S., No. 60PA21 (N.C. Feb. 11, 2022)

Permanent plan—ceasing reunification efforts—sufficiency of findings—In a permanency planning matter, the trial court did not err by ceasing respondent's visitation with her teenage daughter and eliminating reunification from the permanent plan based on evidence that respondent behaved inappropriately during visits and was not in compliance with her case plan and that the daughter showed improved behavior after no longer seeing her mother. A social worker's testimony and reports from the department of social services (DSS) supported the challenged findings of fact as well as the court's determination that DSS's efforts to finalize the permanent plan were reasonable. In re C.C.G., No. 59A21 (N.C. Feb. 11, 2022)

Constitutional Law

Confrontation Clause—test performed by nontestifying chemical analyst—prejudice analysis—overwhelming evidence—Even assuming, without deciding, that in defendant's trial for rape and kidnapping, the trial court violated defendant's rights under the Confrontation Clause by overruling his objections to the testimony of a forensic scientist manager from the State Crime Laboratory regarding testing performed by a nontestifying chemical analyst–that a confirmatory test detected the drug Clonazepam (a date rape drug) in the victim's urine–the State met its burden under N.C.G.S. § 15A-1443(b) of demonstrating that the alleged error was harmless beyond a reasonable doubt. In the first place, other evidence established that the crime lab's initial testing detected Clonazepam in the victim's urine; moreover, even without the evidence of Clonazepam in the victim's urine, there was overwhelming evidence of defendant's guilt before the jury, including evidence of the drug Cyclobenzaprine (another date rape drug) in the victim's hair sample, surveillance footage showing the victim in an impaired state with defendant, the testimony of a restaurant waitress to the same effect, the testimony of a sexual assault nurse examiner, the testimony of the victim and her mother regarding the victim's impaired state, and DNA evidence. State v. Pabon, No. 467A20 (N.C. Feb. 11, 2022)

Criminal Law

Batson violation—conviction vacated—time already served—no new trial—Where the trial court improperly denied defendant's Batson claim–after defendant proved purposeful discrimination by the State in its use of a peremptory strike to remove an African-American woman from the jury–its order was reversed and defendant's conviction for armed robbery was vacated. However, no new trial was warranted where defendant had already served his sentence and completed post-release supervision, because N.C.G.S. § 15A-1335 prohibited the imposition of a sentence more severe than the prior sentence imposed minus time served. State v. Clegg, No. 101PA15-3 (N.C. Feb. 11, 2022)

Domestic Violence

Violation of protective order—knowledge of order—sufficiency of evidence—In a trial for multiple charges including violating a domestic violence protective order (DVPO) while in possession of a deadly weapon, the trial court properly denied defendant's motion to dismiss where substantial evidence supported a reasonable inference that defendant had knowledge of a valid DVPO when he broke into his girlfriend's apartment and assaulted her. The Court of Appeals' determination that the evidence was too tenuous to support the knowledge element–including defendant's response "Yeah, I know you did" when the victim told him "I got a restraining order"–improperly evaluated the weight, and not the sufficiency, of the evidence. State v. Tucker, No. 385PA20 (N.C. Feb. 11, 2022)

Evidence

Expert testimony—indecent liberties—identifying defendant as perpetrator—impermissible vouching of victim's credibility—The trial court committed plain error in a trial for taking indecent liberties with a child by allowing the State's expert witness to implicitly identify defendant as the perpetrator of the crime when describing her treatment recommendations for the victim (including that the victim should have no contact with defendant). Where there was no physical evidence of the crime and the case therefore hinged on the statements of the victim, the admission improperly vouched for the victim's credibility. State v. Clark, No. 286A20 (N.C. Feb. 11, 2022)

Expert testimony—that victim was "sexually abused"—impermissible vouching of child victim's credibility—The trial court committed plain error in a trial for taking indecent liberties with a child by allowing testimony from the State's expert witness–a nurse tendered as an expert in child abuse and forensic evaluation of abused children–that the minor victim had been "sexually abused" where there was no physical evidence of the crime and the statements of the victim were the only direct evidence. Pursuant to the standard set forth in State v. Towe, 366 N.C. 56 (2012), where the improper testimony bolstered the victim's credibility upon which the case turned, it had a probable impact on the jury's guilty verdict and therefore constituted fundamental error. State v. Clark, No. 286A20 (N.C. Feb. 11, 2022)

Prior bad acts—prior sexual assaults—prejudice analysis—overwhelming evidence—Even assuming, without deciding, that in defendant's trial for rape and kidnapping, the trial court erred by allowing two women to give Evidence Rule 404(b) testimony that defendant had previously sexually assaulted them, defendant failed to demonstrate a reasonable possibility that, absent the error, the jury would have reached a different verdict, pursuant to N.C.G.S. § 15A-1443(a). This case was not a credibility contest; rather, there was overwhelming evidence of defendant's guilt before the jury, including evidence of the drug Cyclobenzaprine (a date rape drug) in the victim's hair sample, surveillance footage showing the victim in an impaired state with defendant, the testimony of a restaurant waitress to the same effect, the testimony of the sexual assault nurse examiner, the testimony of the victim and her mother regarding her impaired state, and DNA evidence. State v. Pabon, No. 467A20 (N.C. Feb. 11, 2022)

Gambling

Electronic sweepstakes—game of chance versus game of skill—predominant factor test—The Supreme Court reaffirmed its prior holding that in order to determine whether a video gaming machine is prohibited by N.C.G.S. § 14-306.4 (banning electronic sweepstakes games), courts must utilize the predominant factor test to evaluate whether the game is one of chance or of skill, since a sweepstakes conducted by use of an entertaining display is prohibited only if it is not dependent on skill or dexterity. Gift Surplus, LLC v. State ex rel. Cooper, No. 363A14-4 (N.C. Feb. 11, 2022)

Electronic sweepstakes—game of chance versus game of skill—predominant factor test—viewed in entirety—Plaintiffs' video-game kiosks violated the ban on electronic sweepstakes in N.C.G.S. § 14-306.4 under the predominant factor test where the outcome of the game in question depended on chance and not on skill or dexterity. Although the game included a nominal "winner-every-time" feature, chance determined which prizes a player was eligible to win, since the top prize was not available for 75% of player turns. Further, the "double-nudge" modification (allowing a player to nudge two symbols up or down to align three spinning slots) involved no more than de minimis skill and dexterity, as evidenced by data of error rates, and chance could override any exercise of skill with regard to the outcome. Gift Surplus, LLC v. State ex rel. Cooper, No. 363A14-4 (N.C. Feb. 11, 2022)

Electronic sweepstakes—predominant factor test—mixed question of fact and law—standard of review—A trial court's determination of whether a video gaming machine is prohibited by N.C.G.S. § 14-306.4 under the predominant factor test (i.e., whether the outcome of the game depends on chance or on skill and dexterity) involves a mixed question of law and fact, and is reviewed de novo when there is no factual dispute about how the game is played. Gift Surplus, LLC v. State ex rel. Cooper, No. 363A14-4 (N.C. Feb. 11, 2022)

Homicide

Jury instruction—self-defense—section 14-51.4—applicability—prejudice analysis—In a murder prosecution, where the trial court instructed the jury that N.C.G.S. § 14-51.4 precluded defendant from claiming self-defense because he was committing a felony (possession of a firearm by a felon) at the time he used defensive force against the victim, the court erred by failing to add that section 14-51.4 only applied if the State could prove an immediate causal nexus between defendant's use of defensive force and his commission of the felony. However, the court's error did not prejudice defendant where the evidence showed he had committed a different felony (robbery with a dangerous weapon) immediately after his fatal confrontation with the victim; the jury's verdict convicting defendant of both murder and the robbery charge indicated that the immediate causal nexus between defendant's use of force and the disqualifying felonious conduct had been established at trial. State v. McLymore, No. 270PA20 (N.C. Feb. 11, 2022)

Jury instructions—self-defense—common law right—replaced by statutory right—The trial court in a murder prosecution properly instructed the jury that N.C.G.S. § 14-51.4 precluded defendant from invoking his right to self-defense where he was committing a felony (possession of a firearm by a felon) at the time he used defensive force against the victim. Although defendant claimed that he had asserted his common law right to self-defense at trial and that section 14-51.4 only disqualified him from invoking his statutory right to self-defense codified in section 14-51.3, the General Assembly's enactment of section 14-51.3 clearly abrogated and replaced the common law right such that defendant could have only claimed his statutory right. State v. McLymore, No. 270PA20 (N.C. Feb. 11, 2022)

Jury

Selection—Batson challenge—overruled by trial court—clear error—purposeful discrimination—The trial court's decision overruling defendant's Batson challenge was clearly erroneous where the totality of the evidence demonstrated it was more likely than not that the State's peremptory strike to remove an African-American woman from the jury in an armed robbery trial was improperly motivated by race. Although the trial court properly rejected the State's race-neutral reasons for striking the juror and accepted defendant's statistical evidence of peremptory strikes against Black potential jurors in this case and statewide, the trial court should have ruled for defendant when there were no race-neutral reasons remaining. In addition, the court imposed an improperly high burden of proof on defendant, considered a reason for the strike not offered by the prosecutor, and failed to consider the State's disparate questioning of comparable white and Black prospective jurors. State v. Clegg, No. 101PA15-3 (N.C. Feb. 11, 2022)

Native Americans

Indian Child Welfare Act—termination of parental rights—reason to know status as Indian—statutory inquiry—In a termination of parental rights hearing, the trial court did not fail to comply with the Indian Child Welfare Act (ICWA) where, although respondent-mother told the department of social services that she might have a possible distant Cherokee relation on her mother's side of the family, there was insufficient information presented to the trial court for it to have reason to know that the child was an Indian child pursuant to 25 C.F.R. § 23.107(c). Although the trial court did not conduct the necessary statutory inquiry into the status of the child after the termination petition was filed, there was no reversible error where the court properly conducted the inquiry at earlier stages in the proceedings and there was no information in the record to show that the child might be an Indian child. In re C.C.G., No. 59A21 (N.C. Feb. 11, 2022)

Probation and Parole

Probation revocation—absconding—sufficiency of allegations—Where probation violation reports alleged that defendant had absconded in violation of N.C.G.S. § 15A-1343(b)(3a) during a specifically alleged time period by failing to report, failing to return phone calls, failing to provide a certifiable address, and failing to make himself available, the violation reports sufficiently alleged defendant's commission of the revocable violation of absconding supervision. The trial court did not abuse its discretion by revoking defendant's probation upon defendant's admission to the violations. State v. Crompton, No. 180A20 (N.C. Feb. 11, 2022)

Termination of Parental Rights

Best interests of the child—dispositional findings of fact—abuse of discretion analysis—The trial court did not abuse its discretion by determining that termination of a father's parental rights was in his child's best interests where the court made appropriate findings regarding each of the dispositional factors in N.C.G.S. § 7B-1110, the findings were based on a reasonable interpretation of competent evidence, and the findings specifically challenged by the father–regarding the father's bond with the child and the child's likelihood of adoption–were also supported by competent evidence. In re J.R.F., No. 36A21 (N.C. Feb. 11, 2022)

Denial of motion to continue—no-show by parent—abuse of discretion analysis—The trial court did not abuse its discretion by denying respondent-mother's motion to continue a termination of parental rights hearing where, although respondent did not appear at the hearing, no arguments were advanced by her counsel or guardian ad litem that would justify allowing the continuance and information given to the trial court from respondent's representatives and a social worker tended to show that respondent was aware of the hearing date. Further, respondent did not demonstrate prejudice where there was nothing to show she would have testified or that her testimony would have impacted the outcome of the hearing. In re C.C.G., No. 59A21 (N.C. Feb. 11, 2022)

Grounds for termination—neglect—likelihood of future neglect—The trial court properly terminated a mother's parental rights to her daughter based on neglect where, after an older sibling was sexually abused by the children's father, respondent-mother refused to believe that abuse had occurred and actively tried to discredit the sibling. Despite completing a case plan, respondent-mother failed to accept responsibility for her actions and to demonstrate any ability to protect her daughter from threats. The unchallenged findings of fact supported the court's determination that there was a likelihood of future neglect if the child were returned to her mother's care. In re G.D.C.C., No. 504A20 (N.C. Feb. 11, 2022)

Grounds for termination—neglect—some progress—right before termination hearing—The trial court did not err by determining that a father's parental rights were subject to termination on the grounds of neglect where the child had previously been adjudicated as neglected and the unchallenged findings supported the conclusion that repetition of neglect was highly likely given the father's lack of stability, unaddressed substance abuse issues, and domestic violence issues. Although the father had made some progress in the month or two before the termination hearing, it was insufficient to outweigh his long history with these issues. In re J.R.F., No. 36A21 (N.C. Feb. 11, 2022)

No-merit brief—dependency—sexual abuse—The orders ceasing reunification efforts and terminating the parental rights of a father–who had been arrested for dozens of sexual offense charges against minors, including his own young daughter–were affirmed where his counsel filed a no-merit brief, there was no error in the trial court's decision to discontinue reunification efforts, the evidence and findings supported the determination that the grounds of dependency existed to support termination, and there was no abuse of discretion in the conclusion that termination would be in the child's best interests. In re A.K., No. 342A21 (N.C. Feb. 11, 2022)

No-merit brief—failure to legitimate—In a private termination action, the termination of a father's parental rights to his daughter on the ground of failure to legitimate was affirmed where his counsel filed a no-merit brief–identifying two potential issues for review, neither of which held merit–and the termination order was supported by clear, cogent, and convincing evidence and based on proper legal grounds. In re K.M.S., No. 302A21 (N.C. Feb. 11, 2022)

Unfair Trade Practices

In or affecting commerce—solicitation of investments—single market participant—Plaintiff was not entitled to protection under the Unfair and Deceptive Trade Practices Act where defendant encouraged her to loan money to his company–based on representations of the strength of the business and a promise to provide health insurance–and then reneged on the promissory note that was issued, because soliciting funds to raise capital did not constitute a business activity in or affecting commerce. The investment interactions related to the internal operations of the company and occurred solely within a single market participant. Nobel v. Foxmoor Grp., LLC, No. 337A20 (N.C. Feb. 11, 2022)

Workers' Compensation

Average weekly wages—calculation method—fair and just results—standards of review—In a workers' compensation case, the Supreme Court held that whether the Industrial Commission selected the correct method under N.C.G.S. § 97-2(5) for calculating an injured employee's average weekly wages is a question of law subject to de novo review on appeal, while the issue of whether a particular method produces "fair and just" results is a question of fact reviewable under the "any competent evidence" standard–unless the Commission's determination on that issue lacked evidentiary support or was based upon a misapplication of the legal standard presented in section 97-2(5) (whether the result most nearly approximates the amount the employee would be earning but for the injury), in which case the Commission's erroneous statutory construction is reviewable de novo. Thus, where the Commission determined plaintiff's average weekly wages based on an apparent misapplication of the law, the Court remanded the case for further proceedings, including the entry of a new order correctly applying the law. Nay v. Cornerstone Staffing Sols., No. 409PA20 (N.C. Feb. 11, 2022)


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