Sylva

North Carolina has more than 400 criminal laws. Cases are heard in both District and Superior Courts. The most serious cases, the ones that often result in a prison sentence of at least one year or more, are felonies and they are usually heard in Superior Court. The exception to this is DWI, as some DWI cases carry a minimum sentence of 2 years yet are still heard in District Court. This may eventually lead to a challenge under North Carolina Constitutional Law.

The term “Felony” refers to a serious crime. Historically, a Felony was a crime that resulted in the confiscation of the convicted persons land and goods. Over the centuries, some distinctions between Felonies and Misdemeanors have diminished, but felony charges are still generally the most serous crimes.  Felonies include such things as breaking and entering, assault, sale or delivery of controlled substance, forgery, rape, incest, murder or embezzlement.

Felony charges are generally heard in Superior Court, but some parts if a felony case are handled initially in district court, such as probably cause determination and initial bond matters.  Some felony pleas may be conducted in district court as well.

Misdemeanor offenses are heard in District Court. A person convicted of a misdemeanor offense may receive a small amount of active jail time, community service, or fines,  depending upon the person’s prior criminal record, but jail time is usually 180 days or less. Some misdemeanors cannot result in jail time unless the defendant has a prior record.

Note: Some violations of the law, particularly minor traffic violations, are treated as ‘infractions’ rather than crimes. Infractions are processed in District Court in much the same way as criminal charges. However, a person found responsible for an infraction will not be subject to active jail time.

District Court also conducts preliminary hearings to determine if there is enough evidence or “probable cause” to bind a defendant over to the grand jury for indictment to stand trial in Superior Court.

The state is divided into 64 Superior Court districts with 105 Superior Court judges who preside over 280,000 cases each year. The fact that a person is charged with an offense does not mean that he/she committed the crime. Guilt must be determined by a judge or jury.

If a person has been arrested and unable to post bond, he or she will be escorted to court by a uniformed law officer on the appropriate date. If a person is free on bail, he or she must be in court at the appointed time indicated on the release order. If a person has been served with a summons, he or she must report to the county courthouse at the designated time on the summons and find the courtroom in which the case will be heard. There will be a list of names outside the courtrooms. Find your name and enter that courtroom. If you cannot find your name on any of the lists, check with the clerk of courts office located in the courthouse.

Misdemeanor Case

Arrest

First appearance will be before a magistrate, then a district court judge; trial date set for another courtroom on another day when the officers/witnesses will be present

Arraignment:  The defendant is formally charged by the Assistant District Attorney, and he or she enters a plea: Guilty or Not Guilty.

If guilty, defendant sentenced. If not guilty, trial takes place – usually on the same day – but depends on number of cases scheduled for trial that day

Trial takes place in front of a district court judge (no jury trials in district court for criminal cases)

If found guilty after a trial, judge sentences defendant

Defendant may appeal the conviction to Superior Court where he/she is entitled to a trial de novo(meaning a new trial where the conviction by the district court judge does not come into evidence); the trial is in front of a jury of 12 who will determine guilt (instead of a judge)
— If unanimous verdict of 12 jurors that defendant is guilty beyond a reasonable doubt, judge sentences defendant
— If unanimous verdict of 12 jurors that defendant is not guilty, defendant is released from custody, if he is in custody, and he cannot be tried again
— If 12 jurors cannot agree, hung jury and mistrial is declared. State can re-try the case if appropriate given resources available and other cases pending trial

For a court to determine the appropriate sentence for someone convicted of a misdemeanor North Carolina, it must take into consideration both the class of misdemeanor and the person’s prior conviction level. Additionally, the judge can specify what type of “time” the defendant will do–from incarceration to community service.

Class of misdemeanor

For each class of misdemeanor, a court can impose a range of sentences. Each range is further divided into three sets, which correspond to the defendant’s prior conviction level, as explained just below.

• Class A1: 1 to 150 days of active, intermediate, or community punishment

• Class 1: 1 to 120 days of active, intermediate, or community punishment

• Class 2: 1 to 60 days of active, intermediate, or community punishment

• Class 3: 1 to 20 days of days of active, intermediate, or community punishment

Prior conviction level

Everyone convicted of a misdemeanor offense in North Carolina is categorized into one of three prior conviction levels. Those in Level I have not been previously convicted of a crime, while those in Level III have been convicted of 5 or more crimes. The prior conviction level is one of the two key factors a court will use to determine an appropriate sentence. (North Carolina General Statutes section 15A?1340.21.)

• Level I: no previous convictions

• Level II: 1 – 4 previous convictions

• Level III: 5 or more previous conviction.

Sentence range

Once a court has determined someone’s prior conviction level, it can impose a sentence that falls within the range of penalties for that class and level. In other words, each class of misdemeanor has three subclasses, which correspond the the three prior conviction levels.

For example, someone who has a Level I prior conviction level and who has committed a Class 2 misdemeanor faces 1 to 30 days of community punishment. On the other hand, someone convicted of the same class of misdemeanor but who has a Level III prior conviction level faces 1 to 60 days of either community, intermediate, or active punishment at the court’s discretion.

The court can impose any sentence within the outlined range. So, someone convicted of a Class 2 misdemeanor with a Level I prior conviction level might receive a sentence of a single day of community punishment, or as much as 30 days of community punishment as the court deems appropriate. (North Carolina General Statutes section15A?1340.23)

Active, intermediate, and community punishments

In addition to specifying the length of the sentence, North Carolina provides for three ways that these sentences may be served. Those convicted of misdemeanors can be sentenced to active, intermediate, or community punishment. Active punishments are jail sentences, while intermediates and community punishments allow the judges to impose alternate penalties.

For example, someone sentenced to an intermediate punishment might have to serve a period of house arrest or spend time in a drug treatment facility, while someone sentenced to community punishment might have to serve probation, participate in educational or vocational skills program, or serve community service.

Fines

For any misdemeanor sentence that requires or allows for incarceration, the court can also sentence someone to pay a fine. Unless otherwise specified under a specific law, courts can impose up to the following maximum fines for misdemeanors:

• Class A1: as much of the court deems appropriate

• Class 1: as much as the court deems appropriate

• Class 2: up to $1,000

• Class 3: up to $200

Courts can order a fine in addition to any community, intermediate, or active punishment. If any sentence authorizes only community punishment, the court can sentence a person to pay a fine instead of serve the community punishment.

Conviction of a Felony results in the loss of many rights you otherwise have, including the right to vote, own a firearm, hold many types of employment, and remain free, although some of these rights can be later restored. Additionally, those convicted of a felony face reduced employment opportunities, and reduced availability of credit and housing.

Felony Case

There are several distinct steps in a felony case. At each step in the case, the actions you take, or your lawyer takes on your behalf, can be critical.

Arrest- Proper procedures must have been followed.

First Appearance- certain rights have attached at this point. Advisement of your rights to an attorney and new miranda warnings are usually given at the first appearance.

District Court bond hearing- Most counties follow certain bond guidelines, but bond may be modified depending on the particular facts and circumstances of each case. The court considers the severity of the charge, the flight risk of the defendant, the prior criminal history of the defendant, and the danger to the community at large, among other things, in setting or modifying the bond amount and conditions.

District Court probable cause hearing- This hearing is particularly important when the defendant is still in jail. While the standard of proof for the state is low at a probably cause hearing, and often this hearing is waived, it can be critical when  the facts that the officer relied upon are clearly inaccurate. It can also be a useful hearing for purposes of locking an officer into sworn testimony, and sometimes might be a useful discovery tool. This is not the norm, however.

Formal indictment presented to grand jury-A case can proceed to Superior Court after a probable cause hearing or a waiver of the probably cause hearing. Additionally, a case can proceed to Superior Court after the case has been presented to the Grand Jury and indicted. Occasionally, the State can dismiss a case prior to the probable cause hearing, get additional information, and then indict. Either through the District Court probable cause hearing or the indictment process, the case then moves to the exclusive jurisdiction of the Superior Court.

[One Superior Court bond hearing could take place anytime from this point through the trial stage.  This is a formal hearing to determine or re-examine the conditions of bond or pretrial release.]

Superior Court “Arraignment” in administrative court (per local rules).  Arraignment is a formal reading of a criminal charging document in the presence of the defendant to inform the defendant of the charges against him or her. In response to arraignment, the accused is expected to enter a plea.

If the defendant pleads guilty, the judge sentences defendant

If the defendant pleads not guilty, the case may be set on the next trial docket, or on an administrative docket for a pre-trial conference.

Pre-trial motions are filed and argued
(some pre-trial motions, such as a motion to suppress evidence, if granted by the judge, may require the State to dismiss the charge because there is no longer evidence that will be admisible at trial to prove the defendant’s guilt)

Trial
The trial will be scheduled along with other cases, usually prioritized by the District Attorney, who controls the calendar in Superior Court. There may be several trials in a given week, or there may be only one, and it may take several weeks. At the beginning of any trial in Superior Court, a jury panel is brought in. The jury is selected, evidence presented, and arguments made. If the 12 jurors agree on guilt,the defendant is found guilty. If they agree the defendant is not guilty, he is free. If the jurors cannot agree, then it is called a “hung jury” and a mistrial is declared. A new trial may be had, a new plea offer may be made, or the defendant may go free.

Every felony offense in North Carolina has a specific, though broad, range of incarceration penalties. Ignoring prior criminal record and dispositional ranges, the prison sentences by class of felony are:

• Class A felony: death or life without parole

• Class B1 felony: 144 months to life without parole

• Class B2 felony: 94 to 393 months

• Class C felony: 44 to 182 months

• Class D felony: 38 to 160 months

• Class E felony: 15 to 63 months

• Class F felony: 10 to 41 months

• Class G felony: 8 to 31 months

• Class H felony: 4 to 25 months

• Class I felony: 3 to 12 months

Prior record level ranges

For any felony offense other than Class A felonies, a North Carolina Court has to determine the convicted person’s prior criminal record level. (All Class A felonies have a sentence of death or life in prison without parole.)

Each prior conviction is worth a certain number of points. The court adds the points together from all prior convictions, and the sum determines the defendant’s prior record level, which can be from I to VI. Someone with little or no prior criminal record will have a Level I record, while someone with an extensive criminal history will have a Level VI record.

Prior conviction points

For each prior conviction, the defendant is given points based on the following criteria:

• Each prior Class A felony conviction: 10 points

• Each prior Class BI felony conviction: 9 points

• Each prior Class B2, C, or D felony conviction: 6 points

• Each prior Class E, F, or G felony conviction: 4 points

• Each prior Class H or I felony conviction: 2 points

• Each prior misdemeanor conviction: 1 point

Record Levels

Once the prior convictions have been addressed and calculated,  and it has been determined how many points a person has, you can then determine that person’s prior record level.

• Level I: 0 to 1 point

• Level II: 2-5 points

• Level III: 6-9 points

• Level IV: 10–13 points

• Level V: 14–17 points

• Level VI: 18 or more points

Disposition ranges

A dispositional range is the potential length of the sentence a court can impose for any given felony conviction. To determine a person’s dispositional range, the court will use the person’s prior record level, the level of the felony convicted, and evaluate whether there are any aggravating or mitigating factors.

For each class of felony in any prior record level, there are three different possible dispositional ranges: the presumptive range, the aggravated range, and the mitigated range.

• Presumptive range. 

  Presumptive ranges are the standard sentences for any felony conviction. Unless the court finds there are aggravating or mitigating circumstances present, the court will order a prison term within the presumptive range.

• Aggravated range. 

  A court will give a sentence that falls within the aggravated range if it finds aggravating factors are present in the case. There are numerous possible aggravating factors a court can consider, such as whether a defendant was hired to commit the crime; the offense was especially heinous, atrocious, or cruel; or if the victim was very old or very young.

• Mitigated range. 

  If the court finds there are mitigating factors in the case, it will give a sentence that falls within the mitigated range. Like aggravating factors, there are number of mitigating factors the court can consider. Mitigating factors include, for example, whether the defendant supports his or her entire family, believed the conduct was legal, or has accepted responsibility for the criminal conduct.

Here is an example from the North Carolina grid: Sentencing Ranges for a Class C Felony, Prior Record Level III:

• Presumptive range: 77 to 96 months

• Aggravated range: 96 to 120 months

• Mitigated range: 58 to 77 months

Sentence length

Once the court determines the sentencing range, the judge will then sentence the felon to a minimum and maximum sentence length. The minimum will fall somewhere in the determined sentencing range, while the maximum will be 20% longer than the minimum plus a period of post-release supervision. Once a person has served the minimum sentence, he or she becomes eligible for parole.

Active, intermediate, and community offenders

Not all felons are sentenced to prison time in North Carolina. Depending on the class of the felony and the felon’s prior record, the court can impose an active, intermediate, or community sentence. Someone sentenced to an active sentence must serve their time in prison, while those sentenced to an intermediate or community sentence must serve their time under house arrest, a drug treatment center, performing community service, or some other punishment as allowed by law.  A defendant can also receive a split sentence, where they must serve a portion of the active sentence, and the remainder on a probationary sentence.

Every felony offense in North Carolina has a specific, though broad, range of incarceration penalties. Ignoring prior criminal record and dispositional ranges, the prison sentences by class of felony are:

• Class A felony: death or life without parole

• Class B1 felony: 144 months to life without parole

• Class B2 felony: 94 to 393 months

• Class C felony: 44 to 182 months

• Class D felony: 38 to 160 months

• Class E felony: 15 to 63 months

• Class F felony: 10 to 41 months

• Class G felony: 8 to 31 months

• Class H felony: 4 to 25 months

• Class I felony: 3 to 12 months

Prior record level ranges

For any felony offense other than Class A felonies, a North Carolina Court has to determine the convicted person’s prior criminal record level. (All Class A felonies have a sentence of death or life in prison without parole.)

Each prior conviction is worth a certain number of points. The court adds the points together from all prior convictions, and the sum determines the defendant’s prior record level, which can be from I to VI. Someone with little or no prior criminal record will have a Level I record, while someone with an extensive criminal history will have a Level VI record.

Prior conviction points

For each prior conviction, the defendant is given points based on the following criteria:

• Each prior Class A felony conviction: 10 points

• Each prior Class BI felony conviction: 9 points

• Each prior Class B2, C, or D felony conviction: 6 points

• Each prior Class E, F, or G felony conviction: 4 points

• Each prior Class H or I felony conviction: 2 points

• Each prior misdemeanor conviction: 1 point

Record Levels

Once the prior convictions have been addressed and calculated,  and it has been determined how many points a person has, you can then determine that person’s prior record level.

• Level I: 0 to 1 point

• Level II: 2-5 points

• Level III: 6-9 points

• Level IV: 10–13 points

• Level V: 14–17 points

• Level VI: 18 or more points

Disposition ranges

A dispositional range is the potential length of the sentence a court can impose for any given felony conviction. To determine a person’s dispositional range, the court will use the person’s prior record level, the level of the felony convicted, and evaluate whether there are any aggravating or mitigating factors.

For each class of felony in any prior record level, there are three different possible dispositional ranges: the presumptive range, the aggravated range, and the mitigated range.

• Presumptive range. 

  Presumptive ranges are the standard sentences for any felony conviction. Unless the court finds there are aggravating or mitigating circumstances present, the court will order a prison term within the presumptive range.

• Aggravated range. 

  A court will give a sentence that falls within the aggravated range if it finds aggravating factors are present in the case. There are numerous possible aggravating factors a court can consider, such as whether a defendant was hired to commit the crime; the offense was especially heinous, atrocious, or cruel; or if the victim was very old or very young.

• Mitigated range. 

  If the court finds there are mitigating factors in the case, it will give a sentence that falls within the mitigated range. Like aggravating factors, there are number of mitigating factors the court can consider. Mitigating factors include, for example, whether the defendant supports his or her entire family, believed the conduct was legal, or has accepted responsibility for the criminal conduct.

Here is an example from the North Carolina grid: Sentencing Ranges for a Class C Felony, Prior Record Level III:

• Presumptive range: 77 to 96 months

• Aggravated range: 96 to 120 months

• Mitigated range: 58 to 77 months

Sentence length

Once the court determines the sentencing range, the judge will then sentence the felon to a minimum and maximum sentence length. The minimum will fall somewhere in the determined sentencing range, while the maximum will be 20% longer than the minimum plus a period of post-release supervision. Once a person has served the minimum sentence, he or she becomes eligible for parole.

Active, intermediate, and community offenders

Not all felons are sentenced to prison time in North Carolina. Depending on the class of the felony and the felon’s prior record, the court can impose an active, intermediate, or community sentence. Someone sentenced to an active sentence must serve their time in prison, while those sentenced to an intermediate or community sentence must serve their time under house arrest, a drug treatment center, performing community service, or some other punishment as allowed by law.  A defendant can also receive a split sentence, where they must serve a portion of the active sentence, and the remainder on a probationary sentence.

The accused committed the offense out of deception by an official or authority or, in some cases, an ordinary person disguised as an official or authority. An official may have convinced or deceived the accused into thinking that what they were doing was not illegal, or was necessary for justice, science or another legitimate field. For example, a police officer may have instructed the accused to import heroin into California claiming there was a scientist there who could test it for chemical compounds which could cure cancer.

NC Entrapment basics. A defendant is entitled to a jury instruction on entrapment where there is evidence of (1) inducement, i.e., that there were “acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce a defendant to commit a crime,” and (2) origin of intent or lack of predisposition, i.e., that “the criminal design originated in the minds of the government officials, rather than with the . . . defendant. State v. Luster, 306 N.C. 566 (1982) (internal citations and quotation marks omitted). The defendant has the burden of proving entrapment to the satisfaction of the jury. State v. Thompson, 141 N.C. App. 698 (2001). If the evidence of entrapment is sufficiently strong, the defense may be established as a matter of law.State v. Stanley, 288 N.C. 19 (1975).

Diminished capacity, first recognized in the case of State v. Shank, 322 N.C. 243 (1988), negates specific intent, typically on the basis that the defendant was severely intoxicated and/or suffered from some mental defect that rendered him unable to form the requisite intent. In a first-degree murder case, it negates the specific intent to kill that is required to establish premeditated murder. See, e.g., State v. McDowell, N.C. App. , 715 S.E.2d 602 (2011) (“The diminished capacity defense to first-degree murder on the basis of premeditation and deliberation requires proof of an inability to form the specific intent to kill.”). But it may be used in non-homicide cases as well. For example:

• It may negate the specific intent required to commit the offense of taking indecent liberties with a child. State v. Connell, 127 N.C. App. 685 (1997) (finding plain error in trial court’s failure to instruct on diminished capacity).

• It may negate the specific intent to kill that is an element of AWDWIKISI. State v. Williams, 116 N.C. App. 225 (1994) (“The defense of diminished capacity applies to the element of specific intent to kill which is an essential element of assault with a deadly weapon with intent to kill inflicting serious injury.”).

• It may negate the intent to commit larceny or a felony that is an element of burglary. Cf. State v. Gay, 334 N.C. 467 (1993) (apparently concluding that diminished capacity may be a defense to burglary, but finding no error in trial court’s failure to instruct on it in this particular case).

Diminished capacity is not a defense to general intent crimes, because there is no specific intent to negate in such cases. See, e.g., State v. Page, 346 N.C. 689 (1997)

This defense is mainly used in charges of assault or homicide. The accused claims to have assaulted, or killed, the victim because the victim attacked the defendant. In cases where the accused actually killed the attacker, the court must establish that the attacker would have otherwise killed the defendant, and the defendant could not have otherwise avoided his or her own death. In any case, the attack by the accused could not have been more than what was necessary to ward off the attack of the original aggressor.

Some self defense principles are further codified into North Carolina Law.

NC 14‑51.3. Use of force in defense of person; relief from criminal or civil liability.

North Carolina General Statutes (N.C.G.S.)

Chapter 14. Criminal Law.

Article 14. Burglary and Other Housebreakings

14‑51.3. Use of force in defense of person; relief from criminal or civil liability.
(a) A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that the conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat in any place he or she has the lawful right to be if either of the following applies:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another.

(2) Under the circumstances permitted pursuant to G.S. 14‑51.2.

(b) A person who uses force as permitted by this section is justified in using such force and is immune from civil or criminal liability for the use of such force, unless the person against whom force was used is a law enforcement officer or bail bondsman who was lawfully acting in the performance of his or her official duties and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties.

An accused raises the defense of necessity when he or she alleges that the alleged act was carried out due to exceptional circumstances. The accused was truly desperate and had no choice but to disobey the law. Courts have generally recognized a set of criteria to determine whether or not the defense can be met, as follows:

1 The unlawful act was intended to avert a greater evil
2 There could not have been any reasonable, legal alternative course of action
3 The unlawful act could not have been more than what was necessary to avert the greater evil and
4 The unlawful act must have been effective, or at least highly probably effective, towards averting the greater evil.

However, courts are generally very reluctant to accept this defense, due to fear of precedent and public message. Therefore, it could be possible for an accused to be convicted, even where all of the above criteria hold.

The accused alleges that he or she committed the offense under compulsion by a person to commit it, where the compulsor was threatening death or bodily harm toward the accused, or a third party, for noncompliance. In most societies, the defense can only be used if the threats were of greater severity than the offense committed, and the threats were immediate and otherwise unavoidable, and were threats of bodily harm or death.

The accused alleges that he or she had lack of control over their actions, and, therefore, cannot be held responsible. The accused may have been deluded, incapacitated, provoked, severely mentally disabled or even have been sleepwalking. In general, they were in a state of mind in which they did not have control over their actions, didn’t know what they were doing or were unable to understand that what they were doing was wrong, or illegal. Many courts distinguish between insane automatism and non-insane automatism. For insane automatism, the court usually refers the accused to psychiatric, or other appropriate care. For non-insane automatism, the court either acquits the accused or gives a more lenient sentence.

The accused was unaware of a fact that would have made the alleged action illegal. While ignorance of the law itself is not a defense in most jurisdictions, ignorance of the fact may be a defense. For example, a bartender could have a defense for serving an underage customer, where the customer presented counterfeit ID, if the court feels it was reasonable for the accused to believe the customer was of age. However, a person from the general public would not have a defense if they gave a minor alcohol because they thought the legal drinking age was lower than it really was.

Similarly, there exists a defense of accident, in which the accused did not intend to do what they did. The accused’s sleeve may have caught on a fire alarm and they pulled it unintentionally, or a doctor may have mistakenly sent a phone message to the wrong number by mistake, in which the message contained some confidential information of the patient.

Some laws may contain a phrase that says something like “For a sexual purpose” or “For a fraudulent purpose” or “With intent to (do whatever)”. The accused claims they did not commit the act for that purpose and, therefore, are not in breach of the law. The defense is only acceptable where the law stated a purpose, and the court feels convinced the accused did not commit the act for the illegitimate purpose stated.

Many jurisdictions have what is known as The Age of Criminal Responsibility. If a person commits an offense while they are younger than that age, they cannot be held legally responsible for their actions. An accused might claim that they were younger than the age of criminal responsibility when they committed the alleged act, and therefore cannot be held accountable.

The accused was restrained by external forces, which rendered them incapable of controlling their own actions. Some examples might be a driver being pushed by a hurricane or landslide, in which they were unable to stop at the scene of an accident, or a person being tied to a pole, while others poured illegal drugs down the accused’s throat.

A person can be tried for an offense only once, whether they were acquitted or convicted at their trial. If a person is tried for an offense in a manner which is not an appeal of the original hearing, the accused can claim double jeopardy. This includes prosecuting the same action under the name of a different charge. Similarly, a person cannot be charged with a new offense if their action was not yet illegal at the time it was carried out.

When an accused raises the defense of legal conflict, or sometimes called legal dilemma, they claim that no matter what they did or didn’t do, they would have been in breach of some law. In short, they were in a completely inescapable legal checkmate and a law would have been against them no matter which way they turned. Usually, such a situation is a result of the people making the legal code of the jurisdiction not thinking clearly or holistically. It differs from the defense of necessity in that, in the defense of necessity, the legal course of action is undesirable, but in the defense of legal conflict, there is no legal course of action at all.

For example, North Carolina has a “move over” law, requiring that drivers “move over” into the left lane if an emergency vehicle is no the shoulder of the road with their emergency lights on.  There are also numerous areas where commercial drivers in trucks are required to stay in the right lane.  If a trucker is in the right lane, and he encounters an emergency vehicle on the shoulder, he must “choose” which law he or she breaks. I have actually used this defense more than once in a similar situation.