267 N.C. App.—No. 4 267 N.C. App.—No. 4 Pages 513-692 ADVANCE SHEETS OF CASES ARGUED AND DETERMINED IN THE Pages 513-692 COURT OF APPEALS OF NORTH CAROLINA NOVEMBER 16, 2020 MAILING ADDRESS: The Judicial Department P. O. Box 2170, Raleigh, N. C. 27602-2170 COMMERCIAL PRINTING COMPANY PRINTERS TO THE SUPREME COURT AND THE COURT OF APPEALS THE COURT OF APPEALS OF NORTH CAROLINA Chief Judge LINDA M. McGEE Judges WANDA G. BRYANT PHIL BERGER, JR. DONNA S. STROUD HUNTER MURPHY CHRIS DILLON JOHN S. ARROWOOD RICHARD D. DIETZ ALLEGRA K. COLLINS JOHN M. TYSON TOBIAS S. HAMPSON LUCY INMAN REUBEN F. YOUNG VALERIE J. ZACHARY CHRISTOPHER BROOK Former Chief Judges GERALD ARNOLD SIDNEY S. EAGLES, JR. JOHN C. MARTIN Former Judges WILLIAM E. GRAHAM, JR. PATRICIA TIMMONS-GOODSON J. PHIL CARLTON ROBIN E. HUDSON BURLEY B. MITCHELL, JR. ERIC L. LEVINSON WILLIS P. WHICHARD JAMES A. WYNN, JR. CHARLES L. BECTON BARBARA A. JACKSON ALLYSON K. DUNCAN CHERI BEASLEY SARAH PARKER CRESSIE H. THIGPEN, JR. ELIZABETH G. McCRODDEN ROBERT C. HUNTER ROBERT F. ORR LISA C. BELL JACK COZORT SAMUEL J. ERVIN, IV MARK D. MARTIN SANFORD L. STEELMAN, JR. JOHN B. LEWIS, JR. MARTHA GEER CLARENCE E. HORTON, JR. LINDA STEPHENS JOSEPH R. JOHN, SR. J. DOUGLAS McCULLOUGH ROBERT H. EDMUNDS, JR. WENDY M. ENOCHS JAMES C. FULLER ANN MARIE CALABRIA K. EDWARD GREENE RICHARD A. ELMORE RALPH A. WALKER MARK A. DAVIS ALBERT S. THOMAS, JR. ROBERT N. HUNTER, JR. LORETTA COPELAND BIGGS ALAN Z. THORNBURG Clerk DANIEL M. HORNE, JR. Assistant Clerk Shelley Lucas Edwards OFFICE OF STAFF COUNSEL Director Jaye E. Bingham-Hinch Assistant Director David Alan Lagos Staff Attorneys Bryan A. Meer Eugene H. Soar Michael W. Rodgers Lauren M. Tierney Carolina Koo Lindsey Ross D. Wilfley Hannah R. Murphy ADMINISTRATIVE OFFICE OF THE COURTS Director McKinley Wooten Assistant Director David F. Hoke OFFICE OF APPELLATE DIVISION REPORTER Alyssa M. Chen Jennifer C. Peterson Niccolle C. Hernandez ii COURT OF APPEALS CASES REPORTED FILED 1 OCTOBER 2019 Ayers v. Currituck Cty. Dep’t of State v. Bryant ................... 575 Soc. Servs. .................... 513 State v. Cheeks .................. 579 Carlton v. Univ. of N.C. at State v. Jones .................... 615 Chapel Hill ................... 530 State v. Kimble ................... 629 In re S.P. ........................ 533 State v. Miller .................... 639 McMillan v. McMillan ............. 537 State v. Rieger ................... 647 Mount Airy-Surry Cty. Airport Auth. State v. Sides .................... 653 v. Angel ...................... 548 State v. Williams ................. 676 Shirey v. Shirey .................. 554 CASES REPORTED WITHOUT PUBLISHED OPINIONS Almason v. Southgate on Fairview State v. Daye ..................... 691 Condo. Ass’n, Inc. 690 State v. Graham ................... 691 Baker v. Warner ................... 690 State v. Hampton .................. 691 Burns v. Skjonsby ................. 690 State v. Jackson ................... 691 Evans v. Popkin ................... 690 State v. Long ..................... 691 Glaize v. Glaize ................... 690 State v. Massey ................... 691 In re A.L.L. ....................... 690 State v. McDonald ................. 691 In re C.S. ......................... 690 State v. Murdock .................. 691 In re Foreclosure of State v. Murray ................... 691 Moorehead I, LLC . 690 State v. Norris .................... 691 In re J.D.H. ....................... 690 State v. Palacios .................. 691 In re J.V. ......................... 690 State v. Taylor .................... 692 In re K.D. ........................ 690 State v. Thomas ................... 692 In re M.J.S. ....................... 690 State v. Thorne ................... 692 Little v. Little ..................... 691 State v. Tyrer ..................... 692 Riopelle v. Riopelle ................ 691 State v. Vorheis ................... 692 State v. Batchelor ................. 691 Yigzaw v. Asres ................... 692 State v. Craft ..................... 691 HEADNOTE INDEX APPEAL AND ERROR Preservation of issues—general motion to dismiss—sufficiency of evidence of one charge—At a trial for multiple charges, where defendant timely made a gen- eral motion to dismiss for insufficiency of the evidence, he preserved for appellate review his specific challenge to the sufficiency of the evidence supporting a murder by starvation charge. State v. Cheeks, 579. ATTORNEY FEES State employee—fired then reinstated with back pay—contested case— Where a state university fired an employee and then reinstated her with back pay, iii ATTORNEY FEES—Continued the Office of Administrative Hearings (OAH) properly denied the employee’s request for attorney fees after dismissing her contested case. Under N.C.G.S. § 126-34.02, attorney fees would have been appropriate only if the OAH itself had ordered the employee’s reinstatement and back pay. Carlton v. Univ. of N.C. at Chapel Hill, 530. CHILD ABUSE, DEPENDENCY, AND NEGLECT Permanency planning hearing—lack of oral testimony—An order appointing guardianship of neglected juveniles to relatives was vacated and remanded because the trial court heard no oral testimony at the permanency planning hearing. The reports offered by the county department of social services and the guardian ad litem were insufficient to support the trial court’s findings and conclusions without oral testimony. In re S.P., 533. CHILD CUSTODY AND SUPPORT Jurisdiction—prior neglect proceeding—modification of custody—The trial court properly exercised jurisdiction in a child custody action where a father filed a motion in the cause after a prior juvenile neglect proceeding was terminated and custody of the child was returned to the parents, because the court had authority to make an initial child custody determination pursuant to sections 50-13.1 and 50-13.2. Even taking as true the father’s argument that the juvenile order constituted a perma- nent child custody order which could only be modified by an allegation of a substan- tial change in circumstances as required by section 50-13.7, allegations in the parties’ filings were sufficient to meet that requirement.McMillan v. McMillan, 537. Jurisdiction—prior neglect proceeding—termination of juvenile court juris- diction—The trial court properly exercised jurisdiction over a child custody action even though that action was filed during the pendency of a juvenile neglect proceed- ing. While the juvenile order’s reference to a civil child custody order being entered the same day was not supported by the record (which did not reflect the entry of such an order), the juvenile order expressly terminated the neglect proceeding and returned custody of the child to the parents, thereby terminating jurisdiction in accordance with N.C.G.S. § 7B-201. McMillan v. McMillan, 537. Modification—by misinterpretation of prior order—The trial court erroneously modified a prior consent order’s child custody provisions by misinterpreting a dis- junctive provision (“the minor child will visit . and/or as the minor child desires”) to mean that all visitation would be determined by the child’s wishes, where the pro- vision actually meant that the minor child could request additional visitation above the required visitation. Shirey v. Shirey, 554. CONSTITUTIONAL LAW Due process—competency to stand trial—drug overdose resulting in absence from trial—waiver—Defendant’s intentional drug overdose several days into her trial for embezzlement did not trigger the need for a competency hearing. Defendant waived her statutory rights for such a hearing (N.C.G.S. § 15A-1002(b)) by failing to raise the issue, and she waived the right to be present at trial by voluntarily absenting herself from court by ingesting drugs. Therefore, the trial court was not constitution- ally required to hold a sua sponte competency hearing. State v. Sides, 653. iv CONSTITUTIONAL LAW—Continued Due process—competency—prior determination of incompetency—resump- tion of trial—In a prosecution for murder and attempted murder, the trial court was not required to conduct a sua sponte competency hearing even though defen- dant had previously been found to be incompetent to stand trial and discussed his past delusions while giving testimony. At the time trial resumed—after several years of delay during which defendant received psychiatric care and medication—defen- dant’s competency was supported by medical evidence and expert opinions, a joint motion by counsel, and defendant’s own statements. Further, there was no indica- tion defendant behaved inappropriately in court or was disruptive, and during a lengthy colloquy with the court regarding defendant’s desire to testify as well as his understanding of the consequences of allowing his counsel to admit certain facts, defendant provided lucid and responsive answers. State v. Williams, 676. Due process—false witness testimony—materiality—use by State— Defendant received a fair trial in a first-degree murder prosecution even though a witness’s testimony—that she gave prosecutors notice before trial that her recol- lection of the shooting had changed since her first statement to law enforcement— conflicted with notes the State provided to defense counsel of a pretrial meeting with the witness. The testimony was not material—not only did the State rely on other evidence to support a conviction, but the jury could consider the credibility of the witness after her inconsistent testimony was explored on cross-examination and the State’s redirect. Further, there was no evidence that