CONTENTS 29 JULY 1994 ANIMALS, LIVESTOCK, OR POULTRY 18 (NCI4th). The State presented substantial evidence of each element of involuntary manslaughter based on culpable negligence where defendant's dogs attacked and killed a jogger. State v. Powell, CONSTITUTIONAL LAW 28 (NCI4th). The use of supplier refunds in establishing a natural gas expansion fund does not constitute a tax that violates the requirements of Article V, Section 2 of the North Carolina Constitution because the monies making up the supplier refunds consist of payments made pursuant to rates set by the Commission in accordance with statutorily controlled standards and the capture of the refunds is not a charge levied upon the general citizenry for the general maintenance of the government. State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 34 (NCI4th). The natural gas expansion fund legislation is a proper delegation of legislative authority to an administrative agency because there are extensive procedural safeguards designed to ensure that the Utilities Commission carries out the expansion of natural gas facilities in a way that is consistent with the intent of the legislature and in furtherance of stated policies. State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 49 (NCI4th). CUCA's contention that the Commission's transfer of supplier refunds to a natural gas expansion fund pursuant to G.S. 62-158 amounts to an unconstitutional taking and a violation of due process was overruled because neither CUCA nor its members have an interest in the refunds sufficient to entitle them to constitutional protection from legislative action impacting upon the refunds. State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 90 (NCI4th). G.S. 62-158 clearly bears a sufficient relationship to the legitimate goal of expanding natural gas facilities to unserved areas of the state to withstand a challenge that it violates the Equal Protection Clauses of the United States and North Carolina Constitutions. State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 135 (NCI4th). Legislation creating a natural gas expansion fund did not confer an exclusive emolument or privilege in violation of Article I, Section 32 of the North Carolina Constitution where the General Assembly clearly stated that the purpose of natural gas expansion is to "promote the public welfare throughout the State" and it is not difficult to see how the legislature could have concluded that expansion of natural gas facilities into previously unserved areas would be in the public interest. State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., CRIMINAL LAW 76 (NCI4th). Where the first trial judge changed the venue of defendant's murder trial from Harnett County to Johnston County upon motion by defendant for a change of venue based on local publicity, and defendant asked the second trial judge to return the case to Harnett County on the ground that he had only one attorney for his capital trial at the time his original motion was granted, any error by the second trial judge in returning the case to Harnett County was invited by defendant's request that the second judge vitiate the action of the first judge, and once the case was returned to Harnett County, a third trial judge did not err by denying defendant's motion for a change of venue. State v. Eason, 78 (NCI4th). The trial court properly denied defendant's motion for a change of venue of his murder trial based on a newspaper article detailing the history of the case and quoting a statement by the district attorney about the case. State v. Moseley, 104 (NCI4th). Where a pathologist testified in a murder trial that he simply opened a knife that had belonged to the defendant, looked at the blade, and measured it, this was not the type of test results that must be given to the defendant pursuant to G.S. 15A-903(e), and the pathologist was properly permitted to testify that the knife was consistent with the wounds inflicted upon the victim even though defendant was not informed of any tests on the knife. State v. Moseley, 373 (NCI4th). The trial court's statement, "That's within judicial notice," made when overruling defendant's objection to the prosecutor's jury argument that alcohol is a depressant and that a murder victim was laid back and not aggressive, could not have caused the jury to infer that the court was taking judicial notice that the victim was laid back and not aggressive and, when considered with the court's instruction on provocation, that the prosecution had proven premeditation and deliberation from a lack of provocation. State v. Eason, 425 (NCI4th). There was prejudicial error in a prosecution for rape and sexual offense against a child from a prosecutor's argument that defendant knew how many times the child was sexually assaulted but wasn't telling. State v. Baymon, 436 (NCI4th). The prosecutor's jury argument in a prosecution for two first-degree murders that he would prefer to return defendant's axe handle to him and let him work his way up to seven victims rather than for the jury to return a verdict of second-degree murder in either case was not improper speculation that defendant would commit another murder if acquitted but was based upon fair inferences drawn from the evidence. State v. Ingle, 445 (NCI4th). The prosecutor's jury argument in a first-degree murder trial that it was his preference that the jury should "throw the whole thing out of this courtroom" rather than return a verdict of second-degree murder with regard to both victims was not an impermissible statement of opinion and was not improper. State v. Ingle, 447 (NCI4th). The trial court did not err in a first-degree murder prosecution by overruling defendant's objections to statements of the district attorney during jury arguments and the admission of evidence concerning the impact of the murder on the victim's family. State v. Fisher, 454 (NCI4th). The prosecutor's jury argument in a capital sentencing proceeding that when he said his prayers after the conclusion of the case, he would tell the Lord that he did his best, and that the jurors' decision should enable them to feel satisfied that they had done justice was not an improper appeal for the jury to take religion into account when considering the sentence. State v. Ingle, The prosecutor's jury argument in a capital sentencing proceeding that defendant "authored and wrote his own death warrant. We're simply asking that you affix your signature as jurors and representatives of the citizens of Cleveland County" could not have improperly led the jury to believe that it was not responsible for determining the appropriateness of defendant's sentence. Ibid.. 458 (NCI4th). When defense counsel argued to the jury in a capital sentencing proceeding, "If you give him a life sentence, he spends the rest of his life down there," it was improper for the prosecutor to raise the possibility of parole by his objection to "the implication that he will be there for the rest of his life," but this error was not prejudicial. State v. Ingle, 460 (NCI4th). The prosecutor's jury argument in a capital sentencing proceeding for two murders that speculated how the victims' seven-year-old grandson would look back on the day when he discovered their dead bodies and found that he could not kiss his grandparents because defendant had bludgeoned them to death was sufficiently based on the facts and circumstances shown by the evidence and was not an argument of facts not in evidence. State v. Ingle, 468 (NCI4th). The prosecutor's reference in his jury argument in a capital sentencing proceeding to persons killed in subsequent murders by defendant as "victims" was not prejudicial or likely to cause the jury to return an improper sentencing recommendation. State v. Ingle, 473 (NCI4th). There was no abuse of discretion in a first- degree murder prosecution during the introduction of defense counsel to prospective jurors where the trial court sustained the district attorney's objections to statements of defense counsel regarding the circumstances of the victim's death and the defendant's consumption of alcohol and controlled substances prior to the victim's death. State v. Fisher, 669 (NCI4th). In a prosecution for two first-degree murders wherein defendant's expert witness testified that defendant was in a psychotic state and was unable to distinguish between right and wrong at the time of the crimes, there was sufficient evidence of defendant's sanity, including testimony about his behavior, to withstand his motion for a directed verdict of not guilty by reason of insanity. State v. Ingle, 762 (NCI4th). The trial court's instructions on reasonable doubt which included the terms "moral certainty" and "substantial misgiving" did not reduce the burden of proof for the State to less than proof beyond a reasonable doubt in violation of due process. State v. Moseley, 1183 (NCI4th). The trial court's finding of defendant's previous conviction as an aggravating factor was shown to have been supported by the evidence where an addendum to the record contained a certified copy of the judgment and commitment from the previous conviction and a sworn affidavit by the prosecutor that this was the same evidence presented to the trial court as proof of that conviction. State v. Eason, 1337 (NCI4th). In a capital sentencing proceeding in which the State relied in part on the aggravating circumstance that defendant had previously been convicted of a felony involving violence to the person and defendant stipulated that he had been convicted of aggravated assault and attempted second-degree rape, the trial court did not err by permitting the victim of those two crimes to give detailed and graphic testimony about the manner in which those crimes were committed. State v. Moseley, 1343 (NCI4th). The trial court's instructions on the especially heinous, atrocious, or cruel aggravating circumstance in a capital sentencing proceeding were not unconstitutionally vague. State v. Ingle, 1344 (NCI4th). There was sufficient evidence to support submission of the aggravating circumstance that the murder of an elderly man by beating him to death with an axe handle was especially heinous, atrocious, or cruel. State v. Ingle, The trial court properly submitted to the jury the aggravating circumstance that the murder was especially heinous, atrocious, or cruel where the victim was sexually assaulted with a blunt object, beaten, stabbed, tortured, and manually strangled. State v. Moseley, 1349 (NCI4th). Where evidence is presented by the defendant or the State in a capital sentencing proceeding that supports a statutory mitigating circumstance, the circumstance must be submitted for the jury's consideration absent defendant's request or even over defendant's objection. State v. Ingle, 1355 (NCI4th). Evidence of defendant's criminal activity was slight enough for the submission of the no significant history of prior criminal activity mitigating circumstance to the jury where the evidence showed that defendant used illegal drugs and that warrants had been taken out on him for communicating threats and trespassing. State v. Ingle, 1373 (NCI4th). Sentences of death imposed upon defendant for two first-degree murders were not excessive or disproportionate where the evidence showed that defendant consecutively bludgeoned two elderly persons in their home with an axe handle and that the murders were committed without provocation and for no apparent motive other than defendant's pleasure in committing the crimes. State v. Ingle, A sentence of death imposed upon defendant for first- degree murder was not excessive or disproportionate where defendant sexually assaulted, tortured, beat, strangled, and stabbed the victim until she was dead, and defendant inflicted far more injuries to the victim than were necessary to cause death. State v. Moseley, A sentence of death for a first-degree murder was not disproportionate. State v. Fisher, EVIDENCE AND WITNESSES 318 (NCI4th). In a prosecution of defendant for the first- degree murders of an elderly couple by beating them to death with an axe handle, evidence that defendant beat another elderly couple to death with a tire iron six weeks later was relevant to corroborate defendant's confession and to assist in the determination of a number of facts in the present case, including the central fact of the identity of the victims' assailant. State v. Ingle, Evidence that defendant had murdered a woman in Stokes County three months prior to the murder of a woman in Forsyth County was admissible to show the identity of defendant as the perpetrator of the Forsyth County murder. State v. Moseley, 351 (NCI4th). The trial court did not err in the first-degree murder prosecution of defendant for killing his girlfriend by allowing two of the State's witnesses to testify concerning the issuance of a warrant for assault on a female against defendant in the early morning hours of the day the killing occurred. State v. Fisher, 740 (NCI4th). Testimony by a murder victim's mother identifying an autopsy photograph of the victim was relevant to establish the victim's identity and did not violate the rule that the jury's decision should be based on the evidence and not on accountability to the victim's family. State v. Moseley, The trial court did not err in a first-degree murder prosecution by overruling defendant's objections to statements of the district attorney during jury arguments and the admission of evidence concerning the impact of the murder on the victim's family. State v. Fisher, 1070 (NCI4th). The evidence was sufficient to warrant an instruction on flight in a first-degree murder prosecution. State v. Fisher, 1250 (NCI4th). Defendant's in-custody statement was not improperly obtained after defendant invoked his right to counsel where there was ample evidence to support the trial court's finding that defendant never requested an attorney after he had been given the Miranda warnings. State v. Eason, 1260 (NCI4th). Any error in the admission of defendant's in- custody statement without a finding that he reinitiated the questioning following invocation of his right to silence was harmless in light of the overwhelming evidence of defendant's guilt. State v. Eason, 1346 (NCI4th). The evidence on voir dire did not show that defendant lacked the mental capacity to waive his rights and confess, and the trial court did not err by concluding that defendant knowingly and understandingly waived his rights and that defendant's inculpatory statements were admissible in his murder trial. State v. Ingle, 1685 (NCI4th). Two sets of slides used by an expert witness to illustrate his testimony concerning the similarities of wounds suffered by the victim in this murder trial and another woman murdered by defendant were not unnecessarily repetitive, graphic and misleading. State v. Moseley, 1700 (NCI4th). The trial court did not err in a first-degree murder prosecution by admitting autopsy photographs of the victim's body and the testimony of the pathologist concerning these photographs. State v. Fisher, 1730 (NCI4th). The trial court did not err in a prosecution for rape and sexual offense against a child in admitting into evidence a videotaped interview between the victim and a counselor where the counselor was deceased at the time of trial. State v. Baymon, 2051 (NCI4th). Testimony by an assault victim, who was attacked by defendant with a knife, that defendant had a grin on his face and "was enjoying what he was doing" was admissible as a shorthand statement of fact. State v. Eason, 2210 (NCI4th). An SBI agent was properly permitted to testify that phenolphthalein testing revealed "indications" of the presence of blood on defendant's boots and clothing and about the transfer of "indications" to clothing through secondary transfer or spattering. State v. Moseley, 2299 (NCI4th). The trial court did not err in a first-degree murder prosecution by sustaining the State's objection to a clinical psychologist's opinion of whether defendant would have killed the victim if it were not for the influence of alcohol and cocaine. State v. Fisher, 2332 (NCI4th). The trial court did not err in a prosecution for rape and sexual offenses against a nine-year old child by allowing an expert in pediatric medicine and child sexual abuse to testify on redirect examination that she had not picked up on anything to suggest that someone had told the victim what to say or that the victim had been coached. State v. Baymon, 2972 (NCI4th). There was prejudicial error in a prosecution for rape and sexual offenses against a child where the child's teacher testified to specific acts of the child which were indicative of truthfulness. State v. Baymon, 3158 (NCI4th). There was prejudicial error in a prosecution for rape and sexual offenses against a child where the child's teacher testified to specific acts of the child which were indicative of truthfulness. State v. Baymon, HOMICIDE 67 (NCI4th). The trial court did not err in a prosecution for involuntary manslaughter arising from the killing of a jogger by dogs by denying defendant's request for a jury instruction regarding the elements of involuntary manslaughter in cases involving domestic animals where there is no safety statute or ordinance because a safety ordinance was involved. State v. Powell, 489 (NCI4th). Although the defendant in a first-degree murder trial presented evidence of provocation, the State presented sufficient evidence that defendant was not provoked to support the trial court's instruction that premeditation and deliberation could be inferred from a lack of provocation. State v. Eason, 552 (NCI4th). Testimony by defendant's expert witness in a first-degree murder prosecution that defendant was in a psychotic state and was unable to distinguish between right and wrong at the time of the murder was insufficient to require the trial court to submit the lesser charge of second-degree murder where the witness never indicated that at the time of the murder defendant was unable to premeditate or deliberate his actions. State v. Ingle, The trial court in a first-degree murder prosecution did not err by failing to submit second-degree murder to the jury where defendant only offered evidence of alibi and other evidence that he did not commit the offense. State v. Moseley, 694 (NCI4th). The trial court did not err in a first degree murder prosecution by refusing defendant's request to instruct the jury on the defense of unconsciousness where defendant did not meet his burden of proving the affirmative defense of unconsciousness. State v. Fisher, JURY 82 (NCI4th). The trial court did not err in excusing a juror ex mero motu where she asked to speak to the judge, expressed her concern for her two-year old daughter who was ill with a fever, and stated that her child care had only been worked out with some hardship. State v. Fisher, 111 (NCI4th). The trial court did not abuse its discretion in the denial of defendant's motion for individual voir dire and sequestration of prospective jurors in a capital trial based on jury responses to questions regarding whether they had read a certain newspaper article. State v. Moseley, 114 (NCI4th). The trial court did not err in a first-degree murder prosecution by denying defendant's pre-trial motion for an individual sequestered voir dire. State v. Fisher, 120 (NCI4th). The trial court did not err in a first-degree murder prosecution by denying defendant's pretrial motion to require that prospective jurors complete a two-page questionnaire prior to entering the courtroom for voir dire examination. State v. Fisher, 140 (NCI4th). There was no prejudice in a first-degree murder prosecution where the trial court overruled defendant's objection to the questioning of prospective jurors by the district attorney regarding the felony murder rule. State v. Fisher, 261 (NCI4th). The prosecutor's peremptory challenge of a Jehovah's Witness in a first-degree murder trial did not constitute religious discrimination where the juror was stricken because she expressed reservations about the death penalty, and the prosecutor moved to excuse her after learning that she was a Jehovah's Witness only after making further inquiry to discover how her religious beliefs might affect her ability to follow the law. State v. Eason, UTILITIES 27 (NCI4th). The Utilities Commission did not act under a misapprehension of applicable law and acted pursuant to a proper interpretation of its authority and discretion under G.S. 62-158 when it granted a petition to establish a natural gas expansion fund financed by supplier refunds to local distribution companies for the purpose of facilitating the expansion of natural gas service to areas where it would not otherwise be feasible. The General Assembly has clearly stated that it is the policy of the state "[t]o facilitate the construction of facilities in and the extension of natural gas service to unserved areas in order to promote the public welfare," and the Commission is not free to exercise its discretion with regard to whether, in a general sense, this policy is wise or unwise. State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., A review of the record as a whole in a Utilities Commission proceeding which established a natural gas expansion fund reveals that there is substantial evidence to support the Commission's findings concerning the economic development prospects for Public Service Company's franchised but unserviced areas and the potential benefits to existing customers in unserviced areas. Ibid. The Utilities Commission did not err in entering an order establishing a natural gas expansion fund where CUCA contended that the Commission lacked evidentiary support for the decision to create the fund and for the level of initial funding for the fund. Ibid. 210 (NCI4th). The Utilities Commission did not have the authority to determine the constitutionality of G.S. 62-2(9) or G.S. 62-158 and properly declined to do so. State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., 286 (NCI4th). The Utilities Commission did not err in an order establishing a natural gas expansion fund by not including a summary of CUCA's argument and the Commission's rejection of that argument. State ex rel. Utilities Comm. v. Carolina Utility Cust. Assn., The Utilities Commission did not err in an order establishing a natural gas expansion fund by not including a summary and rejection of CUCA's arguments concerning the amount of the fund or the amount of initial funding. Ibid.