Easement—claim by owner of dominant tenement—hostile possession—summary judgment—In a property dispute between neighbors, where a husband and wife (defendants) owned adjoining tracts of land, the first of which contained defendants' home and the second of which benefited from a 30-foot-wide easement containing a driveway and a strip of land east of the driveway leading up to plaintiffs' property, the trial court erred in denying summary judgment to defendants on their claim for adverse possession of the land between the driveway and plaintiffs' property line. Defendants' forecast of evidence–considered in the light most favorable to defendants–created a genuine issue of material fact concerning the hostility element of their adverse possession claim, with the evidence showing that: defendants mistakenly believed that they owned the disputed land; defendants made permanent improvements on the land that went beyond what the easement allowed, thereby rebutting the presumption of permissive use; and, although none of plaintiffs' predecessors in interest ever objected to defendants' use or improvement of the disputed tract, their silence did not amount to a grant of permission for such use or improvement. Hinman v. Cornett , No. 219A23 (N.C. May. 23, 2024) (Author: Justice Allison Riggs)

Interlocutory order—failure to show grounds for appellate review—release of underlying claim—The Supreme Court dismissed the fifth appeal from an interlocutory order entered by the Business Court where, as was the case in his previous four appeals, appellant failed to demonstrate grounds for appellate review and instead advanced arguments that were unrelated to the Court's jurisdiction. Notably, the arguments that appellant did raise neither addressed the opposing party's main argument in the underlying action nor cured the fact that appellant had already released his claim giving rise to the action. The Court also cautioned appellant that he could face sanctions in the future if he continued to flout the Rules of Appellate Procedure and show disregard for the Court's time and resources. In re Se. Eye Ctr. , No. 192A23 (N.C. May. 23, 2024) (Author: Justice Per Curiam)

Preservation of issues—criminal trial—judge's failure to follow statutory mandate—no preliminary prejudice analysis required—The Court of Appeals properly reviewed defendant's appeal from his convictions for first-degree murder, murder of an unborn child, and robbery with a dangerous weapon after concluding that his main argument–that the trial court failed to exercise its discretion under N.C.G.S. § 15A-1233 when it denied the jury's request to review partial transcripts of witness testimony–was preserved for appellate review despite defendant's failure to raise the issue at trial. The statutory mandate placed upon the trial court in section 15A-1233 automatically preserved defendant's argument, and the Court of Appeals was not required to condition appellate review on a showing that the trial court's alleged error was prejudicial–a step that would require reviewing the issue on the merits before determining whether it was even preserved. State v. Vann , No. 157PA22 (N.C. May. 23, 2024) (Author: Justice Phil Berger, Jr.)

Right to appeal—denial of motion to suppress—entry of guilty plea—no plea agreement—notice of intent to appeal not required—Where defendant entered an open guilty plea–one that was not made as part of a plea agreement–he was not required to provide notice of his intent to appeal the denial of his motion to suppress or his judgment prior to entry of the plea. The Supreme Court declined to expand the scope of the rule stated in State v. Reynolds, 298 N.C. 380 (1979) (concluding that a defendant who wants to appeal a suppression motion denial pursuant to N.C.G.S. § 15A-979(b) must give notice of his or her intent to appeal prior to pleading guilty as part of a negotiated plea agreement, or else the right to appeal is waived) to include open pleas. State v. Jonas , No. 433PA21 (N.C. May. 23, 2024) (Author: Justice Allison Riggs)

Guardianship—awarded to in-state relative—before home study of out-of-state relative was completed—After adjudicating respondent-mother's three minor children as neglected and dependent, the trial court did not abuse its discretion when it awarded guardianship to the children's great aunt, who lived in North Carolina, without waiting for the completion of a home study of an alternative relative placement–the children's grandmother, who lived in Georgia–pursuant to the Interstate Compact for the Placement of Children (ICPC). Neither the ICPC nor N.C.G.S. § 7B-903(a1) require a trial court to wait for the resolution of a home study to rule out placement with an out-of-state relative if the court concludes that an in-state relative is willing and able to provide proper care and supervision and that placement with the in-state relative is in the children's best interests. Further, in this case, the trial court made findings of fact that supported awarding guardianship to the great aunt, including that she had provided the children a safe, loving, and stable home for almost three years. In re K.B. , No. 212A23 (N.C. May. 23, 2024) (Author: Justice Allison Riggs)

North Carolina—Fines and Forfeitures Clause—interlocal agreement—"clear proceeds"—fines from red light camera enforcement program—A local act implementing a city's red light camera enforcement program and authorizing an interlocal agreement–which laid out a cost-sharing framework for funding the program–between the city and its county's school board did not violate the Fines and Forfeitures Clause of the North Carolina Constitution (Art. IX, section 7), where the board received all of the fines collected under the program and then reimbursed the city for two main expenses: the fee for the private company hired to install the cameras, maintain them, and process captured violations; and the salary of an officer hired to review the recorded evidence and approve citations. Through this framework, the city recouped only the "reasonable costs of collection," and therefore the board retained the "clear proceeds" of collected red light penalties as that term is defined under the Fines and Forfeitures Clause. Fearrington v. City of Greenville , No. 89PA22 (N.C. May. 23, 2024) (Author: Justice Anita Earls)

Covenant of good faith and fair dealing—consumer agreement—unilateral changes—arbitration amendment—relation back to original contract—contract not rendered illusory—A credit union's unilateral changes, with notice, to a standard membership contract (which contained a change-of-terms provision) to require arbitration for certain disputes and to waive members' right to file a class action suit were enforceable because they did not violate the implied covenant of good faith and fair dealing inherent in contracts where the changes reasonably related to the universe of terms, including those that related to dispute resolution, that existed in the original contract. Further, the change-of-terms provision that permitted unilateral modifications did not render the contract illusory since the implied covenant of good faith and fair dealing acted as a sufficient check on the credit union's power to modify the contract. Finally, a member's argument that the arbitration amendment was unenforceable without her mutual assent had no merit where she gave her assent to the credit union's ability to make changes with notice when she entered into the original contract that contained the change-of-terms provision. Canteen v. Charlotte Metro Credit Union , No. 10A23 (N.C. May. 23, 2024) (Author: Justice Phil Berger, Jr.)

Motion to disqualify district attorney's office—actual conflict of interest—victim's role as county manager irrelevant—In a trial for cyberstalking and making harassing phone calls, the trial court improperly granted defendant's motion to disqualify the entire district attorney's (DA's) office from prosecuting him where defendant argued that the victim's position as the county manager–whose duties included superintending county courthouses and proposing the county's annual budget, which included expenses for the DA's office–created a conflict of interest. In the context of criminal prosecutions, an "actual conflict" only exists if a prosecutor in a criminal case once represented the defendant in another matter and, by virtue of that attorney-client relationship, obtained confidential information that could be used to the defendant's detriment at trial. Thus, the trial court's office-wide disqualification of the DA's office was improper where defendant did not offer evidence of such a conflict with the DA or with any of the twenty assistant DAs serving under him. State v. Giese , No. 309PA22 (N.C. May. 23, 2024) (Author: Justice Anita Earls)

Prosecutor's closing argument—child rape trial—defendant's sexual history—not grossly improper—In defendant's trial for multiple counts each of rape of a child and sex offense with a child, a prosecutor's closing argument was not so grossly improper as to require the trial court to intervene ex mero motu. First, the prosecutor's reference to a sexual encounter defendant had with an adult girlfriend was based on evidence that the Supreme Court held, under a separate analysis, had not been impermissibly admitted. Second, where the prosecutor insinuated that, based on defendant's statements that he did not use a condom during sex with adult partners, defendant could have gotten the child victim pregnant or infected her with a sexually transmitted disease, although the statement constituted an improper appeal to the jury's emotions, it was an isolated statement that was not so egregious as to require the trial court's intervention on its own initiative. State v. Reber , No. 138A23 (N.C. May. 23, 2024) (Author: Justice Richard Dietz)

Prosecutor's closing statement—self-defense to murder—characterization of defendant's actions as aggressive—no misstatements of law—In defendant's trial for first-degree murder, in which defendant asserted that he was acting in self-defense when he fired his shotgun out through the window of his garage toward attendees of a nearby house party, killing one person, there was no gross impropriety in the prosecutor's closing statement requiring the trial court's intervention where the prosecutor did not misstate the law on self-defense while characterizing certain of defendant's actions as aggressive. At no point did the prosecutor invoke the aggressor doctrine, claim that defendant had a duty to retreat within his home, or disclaim defendant's right to lawfully defend his home. State v. Copley , No. 195A19-2 (N.C. May. 23, 2024) (Author: Justice Anita Earls)

Protest—defamation claim—absolute privilege—broad scope—attaches to the proceeding—The defense of absolute privilege applies broadly to protect from civil defamation liability everyone involved in the preparation or filing of an election protest, since the privilege attaches to the proceeding in which the statements are published, and is not restricted only to those who directly participate in election-protest hearings as a party, counsel, or witness as erroneously concluded by the Court of Appeals. Therefore, plaintiffs' libel suit against defendants for preparing and filing election protests alleging that plaintiffs engaged in illegal double-voting was absolutely barred, since the challenged statements were made in the due course of a quasi-judicial proceeding and were both relevant and pertinent to its subject matter. Bouvier v. Porter , No. 403PA21 (N.C. May. 23, 2024) (Author: Chief Justice Paul Newby)

Action to quiet title—equitable subrogation—applicability—genuine issues of material fact—culpable negligence—In plaintiff bank's declaratory judgment action to quiet title to a home sold under execution (which was held to satisfy a lien of judgment) to the homeowner's daughter–at which point plaintiff's lien was extinguished–where there were genuine issues of material fact regarding whether the doctrine of equitable subrogation was applicable to provide relief to plaintiff, which had a superior interest in the property to the holder of the lien of judgment, the Court of Appeals erred by concluding that defendants (the homeowner and her daughter) were entitled to summary judgment. On remand, the trial court was instructed to utilize broad discretion to obtain the necessary information to determine whether plaintiff's predecessor-in-interest was culpably negligent in agreeing to refinance the first loan on the property without exercising due diligence to discover the publicly-recorded lien of judgment, and to use all of the facts to balance the equities. MidFirst Bank v. Brown , No. 14PA23 (N.C. May. 23, 2024) (Author: Justice Tamara Barringer)

Other bad acts—child rape trial—plain error analysis—standard for determining prejudice—probable impact—In evaluating whether the admission of portions of defendant's cross-examination testimony–regarding text messages and sexual encounters with an adult girlfriend–during his trial for rape and sexual abuse of a child constituted plain error, the Supreme Court reaffirmed that the prejudice prong of the three-factor test for plain error requires an evaluation of whether there is a reasonable probability that, but for the errors complained of, the jury would have returned a different result. In this case, which hinged mostly on witness credibility, where the victim recounted specific details of abuse perpetrated by defendant and where there were issues with defendant's credibility, defendant failed to demonstrate that a different outcome probably would have been reached if the challenged evidence was excluded; therefore, defendant did not meet the standard for showing prejudice and was not entitled to a new trial. State v. Reber , No. 138A23 (N.C. May. 23, 2024) (Author: Justice Richard Dietz)

Rule 412—definition of "sexual behavior"—criminal prosecution—sexual offenses against child—evidence of prior sexual abuse by different perpetrator—In a prosecution for sexual offense with a child by an adult and indecent liberties with a child, the trial court properly excluded evidence of previous sexual abuse of the victim by an abuser other than defendant, where Evidence Rule 412 bars evidence of a victim's "sexual behavior," which is defined as "sexual activity other than the sexual act which is at issue in the indictment on trial." Although Rule 412 does not define "sexual activity," the Rule's plain language indicates that all evidence of a victim's sexual activity other than the sexual act at issue is inadmissible regardless of whether that activity was consensual or nonconsensual. Thus, defendant's argument that the victim's prior sexual abuse did not fall under Rule 412's definition of "sexual behavior" lacked merit. State v. Washington , No. 34PA22 (N.C. May. 23, 2024) (Author: Chief Justice Paul Newby)

Instructions—murder by lying in wait—castle doctrine not properly accounted for—error cured by alternate theory of murder—In defendant's trial for first-degree murder, in which defendant asserted that he was acting in self-defense when he fired his shotgun out through the window of his garage toward attendees of a nearby house party, killing one person, the trial court's instruction on first-degree murder by lying in wait did not properly account for the castle doctrine–a justification for defensive force, about which the jury was also instructed and, if applicable, would act as a shield from criminal culpability–where the trial court instructed the jury that if they found each element of murder by lying in wait, they must find defendant guilty, thereby impermissibly suggesting that the crime eclipses the castle doctrine. However, where the jury also found defendant guilty of first-degree murder by premeditation and deliberation, they necessarily concluded that defendant was not entitled to the castle doctrine defense; therefore, despite the error in the lying in wait instruction, defendant could not demonstrate prejudice that would entitle him to a new trial. State v. Copley , No. 195A19-2 (N.C. May. 23, 2024) (Author: Justice Anita Earls)

Jury instructions—self-defense—defense of habitation—request for aggressor doctrine language—invited error—In defendant's first-degree murder trial, in which defendant asserted that he was acting in self-defense when he fired his shotgun out through the window of his garage toward attendees of a nearby house party, killing one person, the trial court did not err in its jury instructions on the defense of habitation–the pattern jury instruction of which included a provocation exception–or self-defense. Not only did defendant not object to the instructions, but any error regarding the aggressor doctrine–which the court only included as part of the self-defense instruction–was invited error, since defendant specifically requested the aggressor doctrine language. State v. Copley , No. 195A19-2 (N.C. May. 23, 2024) (Author: Justice Anita Earls)

Second-degree rape—short-form indictment—sufficiency—effect on trial court's jurisdiction—abrogation of common law pleading rules —A short-form indictment charging defendant with second-degree rape neither contained a fatal defect nor deprived the trial court of subject matter jurisdiction to convict defendant, even though the indictment did not allege that the defendant knew or should have known that the victim was physically helpless during the rape. The Criminal Procedure Act abrogated the common law rule that a court's subject matter jurisdiction in a criminal case depends on the sufficiency of the underlying indictment, as well as the strict common law requirement that an indictment specifically allege every element of an offense–a requirement that the legislature loosened even further by enacting short-form indictments by statute. Instead, a defective indictment only raises jurisdictional concerns when it alleges conduct that does not constitute a crime; meanwhile, indictments containing merely technical, non-jurisdictional defects will not be set aside so long as they give defendants sufficient notice of the crimes charged to prepare a defense and to protect against double jeopardy. Here, the indictment against defendant did allege an actual crime under North Carolina law while also meeting the short-form pleading requirements for second-degree rape (codified in N.C.G.S. § 15-144.1(c)). State v. Singleton , No. 318PA22 (N.C. May. 23, 2024) (Author: Justice Phil Berger, Jr.)

Sexual battery—essential elements—force implied by lack of consent—sufficiency of notice to defendant—The indictment charging defendant with sexual battery was facially valid where it contained sufficient facts to support each essential element of the charged offense, including force, since the allegation that defendant engaged in sexual conduct with the victim without her consent was sufficient to imply that the contact was committed by force, however slight, and was therefore adequate to put defendant on notice of the charge. State v. Stewart , No. 23PA22 (N.C. May. 23, 2024) (Author: Chief Justice Paul Newby)

Custodial law enforcement agency recordings—media request—release—initiation by petition versus complaint—legislative intent—In an action seeking the release of custodial law enforcement agency recordings (CLEAR) of a protest march pursuant to N.C.G.S. § 132-1.4A(g), media petitioners were not required to file a civil complaint rather than a petition to invoke the trial court's jurisdiction. Where the language in subsection (g) instructing anyone seeking release of CLEAR to file an "action" was not clear and unambiguous, statutory interpretation principles supported the conclusion that legislative intent allowed for such an action to be initiated by petition. In re McClatchy Co. , No. 29A23 (N.C. May. 23, 2024) (Author: Justice Trey Allen)

Standing—taxpayer—constitutional challenge—local red light camera enforcement program—remedies permitted—After the legislature passed a local act implementing a city's red light camera enforcement program and authorizing an interlocal agreement–which laid out a cost-sharing framework for funding the program–between the city and its county's school board, two individuals (plaintiffs) who received citations and were each fined $100.00 for running red lights had taxpayer standing to challenge the local act's constitutionality. First, plaintiffs effectively sued on the school board's behalf by alleging that, under the Fines and Forfeitures Clause of the state constitution, the board was entitled to a larger share of red light penalties than what it retained under the interlocal agreement. Second, plaintiffs adequately alleged a "direct injury" where they argued that at least part of the $100.00 penalty they paid to the city was unconstitutionally rerouted away from the local school board. Third, plaintiffs sufficiently alleged a "demand" on the board to protect its interests and the board's refusal to do so by challenging plaintiffs' claims. Finally, plaintiffs' taxpayer standing permitted them to pursue injunctive and declaratory relief, but not money damages (specifically, a refund of the fines). Fearrington v. City of Greenville , No. 89PA22 (N.C. May. 23, 2024) (Author: Justice Anita Earls)

Request for transcript of witness testimony—trial court's discretion—ambiguous language by court—evidence in record—At a trial for first-degree murder, murder of an unborn child, and robbery with a dangerous weapon, the trial court did not abuse its discretion by denying the jury's request for partial transcripts of testimony–from defendant, the lead investigator in the case, and the medical examiner–after stating that "[w]e're not–we can't provide a transcript as to that." Defendant had the burden on appeal to show that the court misunderstood and failed to exercise its discretion under N.C.G.S. § 15A-1233(a) to grant the jury's request, since the court's language of "we're not" juxtaposed with "we can't" was ambiguous and therefore insufficient to overcome the "presumption of regularity" afforded to trial courts on appellate review. Defendant failed to meet this burden where the record showed that the court: granted the jury's other requests to review evidence, even partially granting the request at issue by allowing the jury to see the medical examiner's report; provided other evidence that the jury did not request but that the court believed would be helpful; and, when denying the request for the transcripts, stated that it was the jury's duty to recall the testimony. State v. Vann , No. 157PA22 (N.C. May. 23, 2024) (Author: Justice Phil Berger, Jr.)

Custodial law enforcement agency recordings—media request—release—no eligibility requirement—In an action seeking the release of custodial law enforcement agency recordings (CLEAR) of a protest march, initiated by the filing of a petition by media petitioners pursuant to N.C.G.S. § 132-1.4A(g), the trial court was not required to first find that petitioners were eligible to seek the release of the recordings before granting their request. Unlike subsection (f) of the statute regarding disclosure of CLEAR, which has eligibility requirements, subsection (g) authorizes "any person" seeking release of CLEAR to file an action for a court order. In re McClatchy Co. , No. 29A23 (N.C. May. 23, 2024) (Author: Justice Trey Allen)

Custodial law enforcement agency recordings—media request—release—scope of trial court's authority—In an action seeking the release of custodial law enforcement agency recordings (CLEAR) of a protest march, initiated by the filing of a petition by media petitioners pursuant to N.C.G.S. § 132-1.4A(g), where the trial court found that the release of the requested CLEAR would reveal highly sensitive and personal information but ordered the unredacted release of all CLEAR because it "d[id] not have the authority to [c]ensor this information absent a legitimate or compelling state interest [ ] to do so," the trial court committed reversible error by misunderstanding the scope of its authority. The trial court had broad discretion under the CLEAR statute to place any conditions or restrictions on the release of the recordings, and its failure to acknowledge those options constituted an abuse of discretion. In re McClatchy Co. , No. 29A23 (N.C. May. 23, 2024) (Author: Justice Trey Allen)

Local school board—cost-sharing agreement with city—funding for red light camera enforcement program—"clear proceeds" allotted to board—exemption from statutory collection cap—Where the legislature passed a local act implementing a city's red light camera enforcement program and authorizing an interlocal agreement between the city and its county's school board, the funding scheme laid out in the agreement did not violate N.C.G.S. § 115C-437 by allotting to the board less than 90% of the penalties collected under the program. Section 115C-437 promises local school administrative units the "clear proceeds" that they are constitutionally owed under such government programs, defining "clear proceeds" as the full amount of all penalties or fines collected minus the costs of collection, with those costs not to exceed 10% of the amount collected. Nevertheless, the text of the local act authorizing the red light program showed that the legislature intended to exempt the board and the city from having to follow the statutory 10% cap and to allow them to split costs differently. Fearrington v. City of Greenville , No. 89PA22 (N.C. May. 23, 2024) (Author: Justice Anita Earls)