CONTENTS 3 August 1993 APPEAL AND ERROR 168 (NCI4th). Defendant's contention that the 1991 amendment to the statutes pertaining to commitment and recommitment of an insanity acquittee violated due process and equal protection is moot since the statutes have again been amended in response to a U. S. Supreme Court decision and defendant has since had an opportunity to be heard under the new statute. In re Hayes, ASSAULT AND BATTERY 100 (NCI4th). Defendant was not entitled to an instruction on self-defense when he entered the victims' house and bedroom without permission and was thus at fault in starting the conflict. State v. Owen, 116 (NCI4th). The evidence of intent to kill was uncontroverted in a prosecution for assault with a deadly weapon with intent to kill so that the trial court did not err in failing to submit the lesser-included offense of assault with a deadly weapon. State v. Owen, ATTORNEYS AT LAW 55 (NCI4th). The trial court did not err in awarding attorney's fees to plaintiff in an action for breach of a lease agreement without considering whether the amount allowed was reasonable where the lease provided for the payment of reasonable fees but did not refer to any specific percentage, and G.S. 6-21.2(2) therefore applied so that the amount of attorney's fees should be 15% of the outstanding balance owing on the evidence of indebtedness. RC Associates v. Regency Ventures, Inc., AUTOMOBILES AND OTHER VEHICLES 87 (NCI4th). G.S. 20-19(j) authorizes the Division of Motor Vehicles to amend its G.S. 20-19(d) revocation orders for driving while impaired when the convictions occur in reverse order than the offenses so as to allow the intended four-year revocation of the offender's driver's license. Wagoner v. Hiatt, 536 (NCI4th). A genuine issue of material fact existed as to whether defendant suffered a sudden medical emergency, a stroke, at or immediately prior to the accident and whether this emergency was foreseeable to defendant. Mobley v. Estate of Johnson, 716 (NCI4th). The trial court erred in failing to instruct on last clear chance where defendant had the time and means, by staying in his own lane of travel, to avoid the accident. Hales v. Thompson, BURGLARY AND UNLAWFUL BREAKINGS 164 (NCI4th). The trial court in a first-degree burglary case erred in refusing to instruct on misdemeanor breaking and entering where there was substantial evidence to support defendant's contention that he did not have the intent to commit larceny but broke and entered with the intent to retrieve his shotgun which he had earlier seen in the victims' house. State v. Owen, CONSTITUTIONAL LAW 165 (NCI4th). Application of the statutory amendments shifting the burden of proof in a recommitment hearing for an insanity acquittee and opening the hearing to the public after respondent was acquitted by reason of insanity and was involuntarily committed did not violate the Ex Post Facto Clause. In re Hayes, CONTRACTS 82 (NCI4th). Performance of a contract to convey an easement was excused under the doctrine of impossibility of performance where the county condemned the property. UNCC Properties, Inc. v. Green, CORPORATIONS 16.1 (NCI3d). Defendant securities brokerage firm made a valid rescission offer to plaintiff investor for fraud by its broker pursuant to G.S. 78A-56(g)(1) so that plaintiff is precluded by her acceptance of the amount offered from maintaining an action against the brokerage firm. Mashburn v. First Investors Corp., 208 (NCI4th). In an action to recover for damages to goods during delivery by defendant carrier, there was a genuine issue of material fact as to whether an existing corporation should be liable for such claim on the ground that it purchased the carrier for grossly inadequate consideration and is a mere continuation of the carrier. L. J. Best Furniture Distributors v. Capital Delivery Service, COURTS 16 (NCI4th). Defendant Nebraska company which sent a shipment of its butter to a North Carolina buyer was not subject to personal jurisdiction in North Carolina in a personal injury action based on alleged negligent loading of the butter onto a truck since the "stream of commerce" theory applies only to products liability cases and defendant had insufficient contacts with North Carolina to permit personal jurisdiction. Considine v. West Point Dairy Products, CRIMINAL LAW 76 (NCI4th). The trial court did not abuse its discretion in denying defendant's motion for a change of venue or special venire where results of a poll of former jurors taken by a university student failed to demonstrate that the jurors who sat in defendant's trial based their decision on any pretrial publicity. State v. Pendergrass, 333 (NCI4th). The trial court did not err in denying defendant's motion to sever his trial from that of his codefendant where the codefendant's testimony merely corroborated the State's evidence and the codefendant did not testify with regard to any crimes with which defendant but not the codefendant was charged. State v. Pendergrass, 400 (NCI4th). The trial judge's interruption of the trial to introduce the district attorney to the jury and the colloquy between the judge and the district attorney did not constitute an expression of opinion on the evidence. State v. Alston, 648 (NCI4th). Where defendant introduced evidence after the State rested its case, he waived his motion for dismissal of a first-degree burglary charge made at the close of the State's evidence. State v. Owen, 1280 (NCI4th). When the State attempts to elevate a misdemeanor charge of breaking into a coin-operated machine to felony status, a special indictment charging defendant as being an habitual felon may not properly serve as a substitute for the special indictment required under G.S. 15A-928. State v. Sullivan, DAMAGES 51 (NCI4th). A genuine issue of material fact existed as to whether plaintiff made a reasonable attempt to mitigate damages as required by the parties' lease agreement and by law. RC Associates v. Regency Ventures, Inc., DIVORCE AND SEPARATION 121 (NCI4th). The trial court properly classified certain assets, including brokerage accounts initially funded with inherited stocks, checking accounts, and other investments, as marital property since defendant could not trace funds which might have been separate property initially but which became commingled with marital property. Minter v. Minter, 151 (NCI4th). Separate property investments which defendant contributed to the marital estate during his twenty-five-year marriage to plaintiff should have been considered by the trial court as a distributional factor. Minter v. Minter, EASEMENTS 9 (NCI4th). An agreement not under seal could not create an easement but was effective as a contract to convey an easement. UNCC Properties, Inc. v. Green, EVIDENCE AND WITNESSES 120 (NCI4th). The trial court properly applied the Rape Shield Statute in refusing to permit defendant to cross-examine one victim concerning whether she had previously engaged in sexual intercourse with two specific persons where the victim testified at the in camera hearing that she had not had sex with either person, and no evidence was offered to contradict her testimony. State v. Black, 239 (NCI4th). Evidence pertaining to deceased's leukemia and the effect it had on his relationship with his parents was admissible to prove the extent of damages which were in controversy in the case. Hales v. Thompson, 374 (NCI4th). Testimony concerning an uncharged prior sexual act between defendant and the victim was properly allowed to show intent and plan or scheme where the prior act happened within one year of the charged offenses. State v. Harris, 755 (NCI4th). Any error in allowing a doctor who examined a sexual assault victim to testify that the victim told her that defendant used marijuana was cured when defendant subsequently testified about his addiction to marijuana. State v. Black, 1099 (NCI4th). Defendants' answer in a condemnation proceeding admitting that plaintiff had an easement in their property, which was incorporated in their answer in a subsequent action, did not constitute an admission that was conclusive in the subsequent action. UNCC Properties, Inc. v. Green, 1123 (NCI4th). The State's evidence was sufficient to show a conspiracy by rescue squad members to unlawfully possess property taken from a residence destroyed by a tornado so that testimony by one conspirator with respect to the statements of co-conspirators was properly admitted. State v. Withers, 1274 (NCI4th). The evidence was sufficient to support the trial court's findings that defendant understandingly waived his constitutional rights before making an incriminating statement and that he had the mental capacity to waive his rights even though he had been hospitalized numerous times for mental problems. State v. Owen, 1617 (NCI4th). The trial court erred by excluding a tape recording of a State's witness based on improper foundation but properly excluded the tape recording because it posed a danger of misleading the jury, causing undue delay and being cumulative. State v. Withers, 2180 (NCI4th). The trial court did not err in refusing to allow defendant to utilize a sexual assault victim's prior medical records in cross-examination of the State's expert medical witness where the witness did not use the records in formulating his opinion. State v. Black, 2331 (NCI4th). The trial court erred in allowing an expert medical witness to testify that in his opinion the victim had been sexually abused based on his interview with the victim in which she related a history of sexual abuse and the fact that his examination of her revealed that her hymenal ring was not intact. State v. Parker, 2333 (NCI4th). The trial court did not err in qualifying a pediatrician as an expert in the area of the detection of child abuse and trauma. State v. Parker, 2973 (NCI4th). The trial court's error in refusing to permit defendant to cross-examine sexual offense victims' mother concerning alleged fraud in her dealings with government assistance programs was not prejudicial although the proffered evidence appeared to have been probative of the witness's truthfulness. State v. Black, 3106 (NCI4th). The trial court did not err by allowing a detective to read a statement given by assault victims' brother for the purpose of corroborating the brother's testimony even though the statement may have included new information giving a further description of one victim's appearance at the time of two incidents involving defendant. State v. Black, GUARANTY 13 (NCI4th). The trial court did not err in awarding attorney's fees against the guarantor of a lease. RC Associates v. Regency Ventures, Inc., HANDICAPPED PERSONS 5 (NCI4th). The Fair Housing Act did not prevent a town from prohibiting defendants from locating a mobile home for their mentally ill daughter on their property zoned central business district. Town of Newton Grove v. Sutton, HOSPITALS AND MEDICAL FACILITIES OR INSTITUTIONS 60 (NCI4th). An insanity acquittee's equal protection rights are not violated because commitment rehearings take place in the trial division in which the criminal trial was held and the rehearings are open to the public while hearings involving other involuntarily committed persons are closed and confidential. In re Hayes, Application of the statutory amendments shifting the burden of proof in a recommitment hearing for an insanity acquittee and opening the hearing to the public after respondent was acquitted by reason of insanity and was involuntarily committed did not violate the Ex Post Facto Clause. Ibid. KIDNAPPING AND FELONIOUS RESTRAINT 20 (NCI4th). The evidence was sufficient for the jury in a prosecution for second-degree kidnapping of an infant by confining or restraining the infant for the purpose of facilitating the commission of a sexual assault against the infant's mother. State v. Pendergrass, The evidence was sufficient to support charges of first-degree kidnapping of two women for the purpose of facilitating first-degree sexual offenses. Ibid. LABOR AND EMPLOYMENT 137 (NCI4th). An employer must pay unemployment taxes on his alien farm workers who are Seasonal Agricultural Workers admitted to the United States under a federal statute. In re State ex rel. Employment Security Comm. v. Hopkins, 152 (NCI4th). The ESC erred in disqualifying petitioner from receiving unemployment benefits where petitioner left her job after her employer moved its plant from Charlotte to Mooresville because she had no reliable means of transportation to work every day of the week. Watson v. Employment Security Comm., LARCENY 154 (NCI4th). The State's evidence was sufficient to show that defendant rescue squad member possessed with a dishonest purpose a pistol found in a home destroyed by a tornado so as to support defendant's conviction of possession of a stolen firearm. State v. Withers, 200 (NCI4th). The jury's verdicts of not guilty of felonious larceny of a firearm and guilty of felonious possession of a stolen firearm were not inconsistent as a matter of law. State v. Withers, LIBEL AND SLANDER 13 (NCI4th). A document prepared by the individual defendant with regard to the conditional nature of plaintiff's permits to construct a quarry and the special treatment defendant felt plaintiff had received as compared to the treatment that defendant corporation had received when it applied for permits did not constitute libel per se. Martin Marietta Corp. v. Wake Stone Corp., LIMITATIONS, REPOSE, AND LACHES 5 (NCI4th). The State was acting in its governmental capacity in constructing an art museum, and no time limitation applied to preclude an action by the State against defendant surety to recover on a performance bond. State ex rel. Art Museum Bldg. Comm. v. Travelers Indemnity Co., MORTGAGES AND DEEDS OF TRUST 22 (NCI4th). Where defendant's loan agreement obligated it to make cumulative advances to the borrower in a certain amount, and plaintiff gave defendant notice that it had perfected a lien on the secured property, future advances made by defendant to the borrower in excess of the cumulative amount did not take priority over plaintiff's lien. Richardson Corp. v. Barclarys American/Mortgage Corp., MUNICIPAL CORPORATIONS 30.12 (NCI3d). The trial court properly found that plaintiff town's ordinances prohibited defendants from placing a mobile home for their mentally ill daughter on their property which was zoned central business district because defendants' house was a nonconforming use and the mobile home would extend this nonconforming residential use. Town of Newton Grove v. Sutton, NARCOTICS, CONTROLLED SUBSTANCES, AND PARAPHERNALIA 120 (NCI4th). The evidence was sufficient to show that a sale of crack cocaine took place within 300 feet of a middle school boundary. State v. Alston, 207 (NCI4th). Defendant could not be convicted of sale of cocaine and sale of cocaine on school property where only one sale was made. State v. Alston, PRINCIPAL AND SURETY 48 (NCI4th). Neither a provision in the State's contract with the builder of an art museum nor the State's conditional acceptance of the building project discharged defendant surety from its obligation on a performance bond. State ex rel. Museum Bldg. Comm. v. Travelers Indemnity Co., 52 (NCI4th). The surety for the general contractor who built the State Art Museum is liable for the full amount of the judgment against the general contractor, including the amount of interest awarded therein. State ex rel. Art Museum Bldg. Comm. v. Travelers Indemnity Co., RAPE AND ALLIED OFFENSES 4 (NCI3d). The trial court erred in allowing a doctor who examined a sexual assault victim to testify that she suffered from "Accommodation Syndrome" without giving the jury an instruction limiting consideration of this evidence to corroborative purposes. State v. Black, 5 (NCI3d). Defendant's authoritative position as a stepparent and evidence of the victims' fear of defendant was sufficient for the jury to find constructive force in a prosecution of defendant for second-degree rape of his stepdaughters. State v. Black, The evidence was sufficient to show that there were two sexual assaults on the victim even though the victim at one point contradicted himself and indicated that there was only one incident. State v. Harris, 6 (NCI3d). The trial court's instruction that the jury "may find" the existence of constructive force in intrafamilial situations was not error. State v. Black, RULES OF CIVIL PROCEDURE 55.1 (NCI3d). The denial of defendants' motion to set aside entry of default was not error where defendants filed no answer and made no attempt to defend their case after their attorney withdrew until they filed their responsive pleading to plaintiff's motion for default judgment two months later. RC Associates v. Regency Ventures, Inc., STATE 2.2 (NCI3d). The State was acting in its governmental capacity in constructing an art museum so that no time limitation applied to preclude the State's action against defendant surety to recover on a performance bond. State ex rel. Art Museum Bldg. Comm. v. Travelers Indemnity Co., UNFAIR COMPETITION 1 (NCI3d). The trial court erred in granting defendants' motion for summary judgment on plaintiffs' claim for unfair trade practices based on defendants' submission of a document to the Nash County Board of Commissioners concerning the conditional nature of plaintiff company's permits to construct a quarry in Nash County and the special treatment defendants felt plaintiffs had received as compared to the treatment that defendant company received when it applied for permits. Martin Marietta Corp. v. Wake Stone Corp.,