On appeal, defendant argues that the trial court erred in: (1)
sentencing him for impaired driving and second degree murder in
violation of his Fifth Amendment right to protection from Double
Jeopardy; (2) admitting evidence of prior convictions for impaired
driving; and (3) denying his motion to dismiss at the close of allthe evidence.
[1]By his first assignment of error, defendant argues that
his Fifth Amendment right to protection from Double Jeopardy was
violated when he was punished twice for impaired driving because
each element of that offense was necessary to prove the second
degree murder offense and he was sentenced for both offenses. We
cannot agree.
The Double Jeopardy Clause protects against multiple
punishments for the same offense.
State v. Gardner, 315 N.C. 444,
451, 340 S.E.2d 701, 707 (1986). However, where the legislature
unambiguously expresses its intent to proscribe and punish the same
conduct under two separate statutes, the trial court may impose
consecutive sentences in a single trial.
Id. at 453, 340 S.E.2d at
708.
Double jeopardy bars additional punishment where the offenses
have the same elements or when one offense is a lesser included
offense of the other.
State v. Hill, 287 N.C. 207, 214 S.E.2d 67
(1975).
On the other hand, where each offense requires proof of an
additional element not included in the other, the offenses are
distinct and the defendant may be prosecuted and punished for each
offense.
State v. Martin, 47 N.C. App. 223, 231, 267 S.E.2d 35,
40,
disc. review denied, 301 N.C. 238, 283 S.E.2d 134 (1980).
“If
. . . a single act constitutes an offense against two statutes and
each statute requires proof of an additional fact which the other
does not, the offenses are not the same in law and in fact and a
defendant may be convicted and punished for both.”
Id. The elements of second degree murder are:
1. Killing;
2. Another human being;
3. With malice.
N.C. Gen. Stat. § 14-17 (1999);
State v. McBride, 109 N.C. App. 64,
425 S.E.2d 731 (1993). The elements of impaired driving are:
1. Driving
2. A vehicle
3. On a highway, street, or public vehicular
area:
(a) While under the influence of an
impairing substance; or
(b) After consuming a sufficient quantity
of alcohol that the person has an alcohol
concentration of 0.08 or more at any relevant
time after driving.
N.C. Gen. Stat. § 20-138.1 (1999).
In the present case, defendant argues that the legislature did
not intend for consecutive sentences to be imposed for impaired
driving and second degree murder in that they are based on the same
evidence and are therefore the same offense. Specifically,
defendant contends that the State relied on the same evidence to
prove that defendant drove while impaired and that defendant had
the requisite malice for second degree murder.
We disagree and believe that the legislature intended to
create two separate offenses. We note that punishment for second
degree murder is controlled by structured sentencing while
punishment for driving while impaired is exempted from the
structured sentencing provisions. Furthermore, in
McBride, 109
N.C. App. 64, 425 S.E.2d 731, this Court found that the trial court
did not err in sentencing the defendant to driving while impaired
and second degree murder in the same trial. In
McBride, sufficientevidence of malice existed in a second degree murder prosecution
where, among other factors, the defendant drove while impaired
after prior convictions for driving while impaired, and the
defendant drove while his license was revoked.
In essence, defendant argues that driving while impaired is a
lesser included offense of second degree murder. We are not
persuaded that malice can be equated with driving while impaired.
Indeed, there was evidence to support a finding of malice in the
present case other than the fact that defendant was driving while
impaired on 25 December 1997. Like the defendant in
McBride,
defendant's license had been revoked and defendant had been
convicted of driving while impaired in the past. We conclude the
trial court did not err in sentencing defendant for both impaired
driving and second degree murder.
[2]By his second and third assignments of error, defendant
challenges the trial court's ruling as to the admissibility of
certain evidence. Specifically, defendant argues that the trial
court erred in admitting evidence of a 1991 prior conviction for
impaired driving because the conviction was too remote to be
relevant evidence of defendant's state of mind; and a 1997 impaired
driving conviction where the conviction was on appeal and a trial
de novo had not yet been scheduled. We hold that the trial court
did not err in admitting evidence of the two convictions.
According to Rule 404(b) of the North Carolina Rules of
Evidence:
Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of aperson in order to show that he acted in
conformity therewith. It may, however, be
admissible for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake, entrapment or accident.
N.C. Gen. Stat. § 8C-1, Rule 404(b) (1999). Rule 404(b) has been
characterized as a rule of inclusion, such that evidence will only
be excluded under the rule if its only probative value is “to show
that the defendant has the propensity or disposition to commit an
offense of the nature of the crime charged.”
State v. Coffey, 326
N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990). The demonstration of
malice is a proper purpose for admission of evidence of other
crimes, wrongs, or acts by the defendant.
State v. Jones, 133 N.C.
App. 448, 516 S.E.2d 405 (1999).
The admission of evidence under Rule 404(b) is guided by the
constraints of similarity and temporal proximity.
State. v. Artis,
325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989),
judgment vacated on
other grounds, 494 U.S. 1023, 108 L. Ed. 2d. 604 (1990),
on remand,
329 N.C. 679, 406 S.E.2d 827 (1991). “When the features of the
earlier act are dissimilar from those of the offense with which the
defendant is currently charged, such evidence lacks probative
value. When otherwise similar offenses are distanced by
significant stretches of time, commonalities become less
striking[.]”
Id.
Defendant was convicted in 1991 for driving while impaired.
In the case at bar, defendant was charged with driving while
impaired. Given that the offenses are identical, the 1991
conviction is probative of defendant's state of mind in the presentcase. Furthermore, prior convictions for driving while impaired
which were over ten years old have been held admissible to show
malice.
See, e.g., State v. Grice, 131 N.C. App. 48, 505 S.E.2d
166 (1998),
disc. review denied, 350 N.C. 102, __ S.E.2d __ (1999).
In
Grice, this Court noted that the trial court properly gave a
limiting instruction regarding the purpose for which the evidence
could be considered. Likewise, in the present case, the trial
court correctly instructed the jury concerning the purpose for
which the Rule 404(b) evidence could be used: “This evidence was
received solely for the purpose of showing the state of mind or
intent that is a necessary element of the offense charge [sic] in
this case.” We conclude that the trial court did not err in
admitting evidence of the 1991 impaired driving conviction.
Regarding the 1997 impaired driving conviction, defendant
argues that the trial court erred in admitting evidence of the
conviction for the purpose of proving malice in a second degree
murder prosecution where the conviction was on appeal and a trial
de novo in Superior Court was not yet scheduled. Defendant reasons
that because a conviction has not taken place, there is no valid
evidence of his state of mind, and asserts that the only state of
mind that may be imputed to defendant is an innocent one. We
cannot agree.
Defendant concedes that a line of cases including
State v.
Byers, 105 N.C. App. 377, 413 S.E.2d 586 (1992), supports the
admission of the challenged evidence, but asks this Court to
distinguish cases such as
Byers from the case at bar on the basisthat they involved prior convictions or bad acts where the
defendant had been found guilty. In contrast, defendant in the
present case had not yet been tried.
However, this Court has previously rejected defendant's
argument by holding that pending charges as well as prior
convictions are admissible under Rule 404(b) as evidence of malice
to support a second degree murder charge.
Byers, 105 N.C. App.
377, 413 S.E.2d 586 (holding that the trial court did not err in
admitting evidence that the defendant had a pending charge for
driving while impaired in order to show malice in a second degree
murder prosecution).
See also Jones, 133 N.C. App. 448, 516 S.E.2d
405 (holding that evidence of the defendant's pending driving while
impaired charge was admissible in order to show malice in a first
degree murder trial).
Where the State does not offer evidence of a pending charge to
show defendant's propensity to drive while impaired, but to show
the requisite mental state for a conviction of second degree
murder, the trial court does not err by admitting such evidence.
As in
Byers, the trial court in the instant case admitted evidence
of a pending driving while impaired charge for the limited purpose
of proving malice, an element of second degree murder. We do not
believe that the instant case is distinguishable from
Byers on the
ground that defendant in the instant case was convicted of driving
while impaired, appealed, and was awaiting a trial
de novo.
Finally, the merit of defendant's argument is further weakened
because the trial court instructed the jury in the present casethat the 1997 incident pertained to a pending trial rather than a
conviction. The court's instruction clearly communicated that
defendant had not been convicted and that the evidence was admitted
for the limited purpose of showing state of mind or intent. We
hold that the trial court did not err in admitting the 1997
impaired driving conviction.
[3]By his fourth assignment of error, defendant argues that
the trial court erred in denying defendant's motion to dismiss at
the close of all the evidence where there was insufficient evidence
of malice in support of the second degree murder charge. We cannot
agree.
In ruling on a motion to dismiss, the trial court must view
all of the evidence in the light most favorable to the State,
giving the State the benefit of every reasonable inference to be
drawn from the evidence.
State v. Dick, 126 N.C. App. 312, 317,
485 S.E.2d 88, 91,
disc. review denied, 346 N.C. 551, 488 S.E.2d
813 (1997). A motion to dismiss must be denied where substantial
evidence exists of each essential element of the crime charged and
of the defendant's identity as the perpetrator.
State v. Vause,
328 N.C. 231, 400 S.E.2d 57 (1991). “Substantial evidence” is
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
State v. Williams, 127 N.C.
App. 464, 467, 490 S.E.2d 583, 586 (1997) (citations omitted).
As previously stated, the elements of second degree murder are
the killing of another human being with malice but without
premeditation and deliberation. Sufficient evidence of maliceexists to establish second degree murder where the defendant's acts
show cruelty, recklessness of consequences, a mind regardless of
social duty and deliberately bent on mischief, or manifest a total
disregard for human life.
State v. Rich, 351 N.C. 386, 527 S.E.2d
299, (2000);
State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905
(1978). The State need not show that the defendant intended to
kill in order to establish malice for second degree murder, but
instead may meet its burden by showing that the defendant “had the
intent to perform the act of driving in such a reckless manner as
reflects knowledge that injury or death would likely result, thus
evidencing depravity of mind.”
Id. at *5.
In the present case, defendant drove while impaired by alcohol
and at a time when his license was in a state of permanent
revocation. The uncontested evidence is that defendant drove his
pickup truck erratically, swerved off the road, and struck the
victim's bicycle while he was traveling at a speed of approximately
35 to 40 miles per hour. As a result of defendant's acts, the
victim's neck was fractured and she died instantly. Furthermore,
defendant was previously convicted of driving while impaired in
1991 and a 1997 conviction for driving while impaired was on
appeal. Viewing the evidence in the light most favorable to the
State, we hold that defendant's acts manifested recklessness of
consequences and a total disregard for human life. As such,
substantial evidence of malice existed in support of the second
degree murder charge. We conclude that the trial court did not err
in denying defendant's motion to dismiss at the close of all theevidence.
For the reasons stated herein, we find that defendant received
a trial free from prejudicial error.
No error.
Judges GREENE and WALKER concur.
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