267 N.C. App.—No. 3 Pages 378-512 ADVANCE SHEETS OF CASES ARGUED AND DETERMINED IN THE COURT OF APPEALS OF NORTH CAROLINA NOVEMBER 9, 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 17 SEPTEMBER 2019 Dillingham v. Ramsey ............. 378 State v. Neal ..................... 442 In re D.W.L.B. ................... 392 State v. Pavkovic ................. 460 In re E.A. ....................... 396 State v. Stephenson ............... 475 In re Worsham ................... 401 State v. Williams ................. 485 Raleigh Hous. Auth. v. Winston ..... 419 Warren v. N.C. Dep’t of Crime Control State v. Caddell .................. 426 & Pub. Safety ................. 503 State v. Goodwin ................. 437 CASES REPORTED WITHOUT PUBLISHED OPINIONS Bridges v. Bridges ................. 511 State v. Cody ..................... 511 Colton v. Bank of Am. Corp. ........ 511 State v. Duff ...................... 511 Daniele v. Daniele ................. 511 State v. Henderson ................ 511 Holmberg v. Holmberg ............. 511 State v. Herring ................... 512 In re A.M.C. ...................... 511 State v. King ...................... 512 In re C.T.D. ....................... 511 State v. Lutz ...................... 512 Lindberg v. Lindberg ............... 511 State v. Phelps .................... 512 Oko v. Northland Inv. Corp. ......... 511 State v. Trice ..................... 512 Perry v. Jackson .................. 511 State v. Young .................... 512 State Farm Mut. Auto. Ins. Co. Tallent v. Postlewaite .............. 512 v. Don’s Trash Co., Inc. .......... 511 Vandiver v. Houston ............... 512 State v. Ammons .................. 511 HEADNOTE INDEX APPEAL AND ERROR Nonjurisdictional appellate rules—violations—substantial or gross—sanc- tions under Rules 25 and 34—On appeal from a conviction for resisting a police officer, because the appellant’s brief contained numerous “substantial and gross” violations of Appellate Rules 26 and 28 (the brief was single-spaced, lacked a proper table of authorities, lacked any citations to the record, and failed to meet many other briefing requirements), the Court of Appeals sanctioned appellant’s counsel under Appellate Rules 25(b) and 34(b) by ordering her to pay double the court-imposed costs of the appeal. Nevertheless, counsel’s noncompliance with the Appellate Rules did not warrant dismissal of the appeal. State v. Pavkovic, 460. Preservation of issues—constitutional challenge—failure to raise at trial— Where defendant was convicted of resisting a police officer, who arrested him for violating a city noise ordinance by yelling into a microphone at an anti-abortion event held outside an abortion clinic, defendant failed to preserve three constitutional arguments for appellate review (that his arrest was illegal because law enforcement lacked reasonable suspicion to stop him under the Fourth Amendment, that the noise ordinance was facially unconstitutional, and that a condition of his probation banning him from coming within 1,500 feet of the abortion clinic violated the First Amendment) because he failed to raise them at trial. State v. Pavkovic, 460. iii APPEAL AND ERROR—Continued Preservation of issues—foreclosure under power of sale—Rule 2—Even though respondents failed to raise their argument regarding the trustee’s authority to foreclose on their property at the time of the hearing, the Court of Appeals invoked Appellate Procedure Rule 2 to consider the merits of the argument, because of the historic policy that foreclosure under power of sale is not favored by the law. In re Worsham, 401. CHILD CUSTODY AND SUPPORT Child support arrears—argument on appeal regarding amount—invited error— In an action involving past due child support, a mother’s argument on appeal that the trial court miscalculated the amount of arrears was dismissed because the amount found by the trial court, $24,400, was specifically requested by the mother’s counsel in his closing statement, making any error invited. Dillingham v. Ramsey, 378. Child support arrears—lengthy period of repayment—ability to pay immedi- ately—abuse of discretion—In a case involving a father’s unilateral reduction in child support after two children reached the age of majority, the trial court abused its discretion by allowing the father to repay arrears at a rate of $100.00 per month, despite the father’s high income and ability to immediately pay all of the arrears, because the full repayment would take more than 20 years. Further, the trial court’s decision not to require interest amounted to granting the father an interest-free loan from the mother. The mother’s delay in filing a motion to enforce the child support order and the father’s voluntary payment of expenses for the adult children were not sufficient bases for the lengthy repayment schedule. Moreover, the mother was not required to request a specific monthly payment to challenge the repayment scheme on appeal. Dillingham v. Ramsey, 378. CITIES AND TOWNS Noise ordinance—interpretation—plain meaning—“operate” sound amplifi- cation equipment—At defendant’s trial for resisting a police officer, who arrested him for violating a city noise ordinance at an anti-abortion event held outside an abortion clinic, the trial court properly concluded that defendant was “operating or allowing the operation of any sound amplification equipment” under the ordinance (based on a plain reading of the word “operate”) by yelling into a microphone at the event. State v. Pavkovic, 460. CONSTITUTIONAL LAW Right to choice of counsel—incorrect standard—structural error—The trial court committed structural error by using the ineffective assistance of counsel stan- dard when considering and denying defendant’s request for new counsel during a pre-trial hearing on his drug possession charges. The structural error in violation of defendant’s Sixth Amendment right to choice of counsel entitled him to a new trial. State v. Goodwin, 437. CRIMES, OTHER False report of mass violence on educational property—juvenile delinquency petition—sufficiency—In a juvenile delinquency proceeding based on allegations that defendant wrote “bomb incoming” on a bathroom wall in his elementary school, iv CRIMES, OTHER—Continued the trial court lacked jurisdiction to adjudicate defendant delinquent for making a false report concerning mass violence on educational property (N.C.G.S. § 14-277.5) because the delinquency petition insufficiently alleged the “report” element of the offense. Specifically, the petition failed to allege that defendant directed his graffiti message to anyone in particular or that anyone actually saw it. Furthermore, the graffiti did not constitute a credible “report” that a reasonable person would con- strue as a true threat. In re D.W.L.B., 392. DAMAGES AND REMEDIES Restitution—notice—amount ordered—miscalculation—Where the trial court ordered defendant to pay restitution for stealing sixty fuel injectors from an auto- motive parts business, the State was not required to give defendant notice of a document containing repair estimates—which the trial court used to calculate the restitution amount—where the State was not required to provide the document in the first place. Moreover, the evidence supported the restitution amount, and there- fore defendant’s argument that he was ordered to pay for more than what he stole was meritless. However, the restitution order was still remanded to correct a clerical error in the court’s calculation. State v. Stephenson, 475. EVIDENCE Admissibility—testimony regarding noise meter reading—proper founda- tion laid—At defendant’s trial for resisting a police officer, who arrested him for vio- lating a city noise ordinance by yelling into a microphone at an anti-abortion event held outside an abortion clinic, the trial