STATE OF NORTH CAROLINA
v
.
RICHARD WAYNE VASSEY
Attorney General Roy Cooper, by Special Deputy Attorney
General Isaac T. Avery, III, and Assistant Attorney General
Patricia A. Duffy, for the State.
J. Clark Fischer for defendant appellant.
TIMMONS-GOODSON, Judge.
Richard Wayne Vassey (“defendant”) appeals from judgments of
the trial court entered upon jury verdicts finding defendant guilty
of second-degree murder, driving while impaired and with a revoked
license, and felonious hit and run/failure to stop for personal
injury. For the reasons stated herein, we uphold defendant's
convictions.
At trial, the State presented evidence tending to show the
following: In the early morning hours of 3 January 2001, passing
motorists on Route 274 in Gaston County, North Carolina, discovered
a vehicle in the ditch beside the road. As the motorists
approached the vehicle, they noticed feet protruding from the
driver's side window. Inside the vehicle was the body of Kathy
Elaine Long (“Long”). Responding emergency assistance crewspronounced Long dead at the scene. A pathologist for the State
testified that Long suffered lethal injuries to her skull and heart
caused by blunt force trauma. The pathologist also noted that Long
was legally intoxicated at the time of her death.
State Trooper Brian Owenby (“Trooper Owenby”) testified for
the State and described the scene of the accident. When Trooper
Owenby arrived at the scene, he observed damage to the front left
and the back right quarter panels of the vehicle. Black tire
impressions on the roadway revealed that the vehicle skidded
sideways, crossing over the center divider line into the opposite
lane and onto the shoulder of the road, where it collided with a
mailbox and crashed into the ditch. Trooper Owenby confirmed that
the road conditions were dry, with no snow or rain.
Mr. Trenton Wright (“Wright”), a former volunteer fireman,
testified on behalf of the State. Wright stated that he and his
family lived near Route 274, less than two miles away from the
scene of the accident. In the early morning of 3 January 2001,
Wright responded to someone at his front door. Looking outside,
Wright observed defendant standing on the front porch. Defendant
explained that his car had broken down at a restaurant located
approximately four miles away, and that he was “freezing to death.”
Although the temperature was only twelve degrees Fahrenheit
outside, defendant wore no shoes. Wright further described
defendant's general physical appearance as “pretty rough,” with
“reddish” eyes, “messed-up” hair, and what appeared to be blood
smeared across his forehead. Because he felt “uneasy” aboutdefendant, Wright did not open the door and asked defendant to step
away from the house. Wright did, however, offer to make a
telephone call on defendant's behalf. Defendant instructed Wright
to call Wendell Bunch (“Bunch”), the owner of a restaurant where
defendant worked. After Wright reached Bunch at his home, he left
the telephone on the porch for defendant's use. Defendant spoke on
the telephone briefly, thanked Wright, and walked away.
Wendell Bunch testified that he had been acquainted with
defendant, his employee, for approximately four years. Bunch
stated that Long was defendant's girlfriend, that they lived
together, and that she “always chauffeured [defendant] around”
because defendant had no driver's license. Bunch reported that,
when he spoke with defendant on Wright's telephone the morning of
3 January 2001, defendant told him that he was “all to hell in a
bucket” and asked Bunch to pick him up. When Bunch asked defendant
where Long was, defendant responded, “Just come and get me.”
[T.p.85] According to Bunch, the “first thing [he] noticed” upon
picking defendant up “was a strong presence of alcohol” emanating
from defendant's person. Defendant's speech was slightly slurred,
his eyes were glassy, and his hair was “messed up.” Bunch noticed
that defendant's blue jeans were ripped and there was blood on his
right hand. In Bunch's opinion, defendant “wasn't knee-walking
drunk, but he was definitely drunk.” Shortly after Bunch picked
defendant up, “he broke down and whimpered a little bit and he
said, 'I think something might have happened to [Long], I think she
might be dead.'” Defendant denied knowing Long's location,however, explaining that he was worried because she had left home
that morning at four a.m. and had not returned. Bunch drove
defendant to his residence and left him there.
A few hours later, Bunch telephoned defendant, who informed
him that Long had not yet returned home. Bunch was then contacted
by State Trooper Charles Thomas (“Trooper Thomas”), who asked Bunch
for defendant's telephone number. Bunch gave the officer
defendant's number, but told Trooper Thomas nothing about his
previous interaction with defendant that morning. Approximately
fifteen minutes later, defendant called Bunch. Defendant told
Bunch that he was very upset, because the police had informed him
that Long had been killed in a wreck, and he was “worried that they
were going to blame him for the accident.” When defendant learned
that Bunch had been contacted by Trooper Thomas, Bunch testified
that defendant “came out and told me that he was involved in the
wreck and to keep quiet about it and not say anything about me
picking him up or anything.” Bunch then “hit the ceiling,”
rebuking defendant for “dr[agging] [him] into something that [he]
didn't want to be in the middle of.” Before he hung up the
telephone, Bunch told defendant to “either tell Trooper Thomas the
truth or I will.” After he and defendant spoke, Bunch telephoned
Trooper Thomas and “basically told him the whole story.”
Linda Anderson (“Anderson”), one of defendant's former co-
workers at the restaurant, also testified for the State. Anderson
spoke about the accident with defendant, who insisted that Long had
been driving the car when the accident occurred. When Andersontold defendant that his story made no sense and demanded “to know
the truth,” defendant “started crying, he had been driving.”
According to Anderson, defendant said, “I was driving instead of
[Long] and I had been drinking and I wrecked; and I pulled [Long]
out from the passenger side to the driver's side out the driver's
door.” When Anderson asked defendant whether he attempted to
obtain assistance for Long, defendant replied, “No, I panicked and
I ran until my shoes fell off of my feet.” Defendant told Anderson
that he moved Long's body to the driver's side of the vehicle in
order “to make it look like she was driving.”
Another of defendant's co-workers, William Hovis (“Hovis”),
testified similarly. Hovis spoke with defendant the morning of the
accident. Although defendant initially told Hovis that Long had
been driving the vehicle, he later stated that “he was driving and
the car went off the road and that -- and that he got panicky and
ran.”
Trooper Thomas gave further evidence for the State. Although
defendant initially denied having any knowledge of the accident, he
eventually gave the following statement to Trooper Thomas:
We were drinking beer heavy [sic] last night.
We ran out of champagne and we were going to
the store. We rode up toward Rick's store,
went to the stop sign at Cherryville. She
turned right, went down that road for a little
ways, and I told her she was going the wrong
way. She turned around and went back toward
Cherryville. The next thing I know, we was
[sic] riding on grass and were in a ditch. I
don't know. I hollered and said, “Be careful,
we're going to hit that ditch.” I looked over
and she wasn't moving. I pulled her out of
the car and tried to revive her by giving her
mouth-to-mouth. I got scared and left. Ipanicked and flipped out. I'm being honest.
I kept walking and walking. I went to a house
and called my bossman [sic] and he came and
got me in about 20 to 30 minutes.
After signing his statement, defendant told Trooper Thomas that “he
was scared [Long's son] would kill him for what happened.”
Unconvinced by defendant's statement, Trooper Thomas contacted
Detective Jeff Costner (“Detective Costner”) of the Gaston County
Police Department. Detective Costner testified that he visited
defendant at his residence on 8 January 2001, and that defendant
agreed to accompany Detective Costner to the Cleveland County
Sheriff's Department in order to answer questions. After being
advised of his constitutional rights, defendant made the following
statement:
Last week, Wednesday morning, 1-3-01, me and
[Long] had been drinking. We were drinking
beer and we ran out. We were at home, it was
probably about 1:00 or 1:30 a.m. We were
drinking Busch Lite and Bud Dry. We both
decided to go out and get some more. I just
put on my flip-flops, or they are actually
sandals. We got in the car and [Long] drove.
I don't know why she didn't even take her
pocketbook or her glasses. We drove to
several grocery stores that were closed . . .
. We drove on Highway 216 and stopped at
Rick's Country Store. [Long] couldn't see, so
I got behind the wheel and drove . . . . I
realized I was going the wrong way, so I
turned around. I drove off the side of the
road to the right first. I don't know why I
ran off the road, I guess it was the alcohol.
I drank, probably, 10 to 12 beers before this.
When I ran off the road, it caused me to hit
the bank on the other side of the road. I had
been drinking since 7:00 p.m. and I stopped
when me and [Long] ran out around . . . 1:00
or 1:30 a.m. I just remember looking over and
seeing [Long's] head jerk forward and
backwards. I heard her grunt. I'm not sure
whether we had our seatbelts on, but we hadthe automatic seatbelts in the car. I left
after I tried to revive her. I pulled [Long]
from the passenger seat over to the driver's
seat and tried to do CPR on her, but she was
gone. I panicked and I ran. I seen [sic] the
ambulances go by and I went to a couple of
houses, but no one would let me . . . use the
phone. I finally got this one guy to call my
boss, Wendell Bunch. I feel so much better
after I've told someone about this. I've been
saved and quit drinking since this happened.
I am sure [sic] sorry for what happened. I
wish I could change it.
Finally, the State offered evidence tending to show that
defendant's driver's license was permanently revoked and that
defendant had been convicted of driving while impaired and driving
with a revoked license on numerous previous occasions. Defendant
offered no evidence. Upon conclusion of the evidence and after
being instructed by the court, the jury found defendant guilty of
second-degree murder, driving while impaired and with a revoked
license, and felonious hit and run/failure to stop for personal
injury. Defendant appeals.
______________________________________________________
Defendant contends that the trial court erred in denying his
motion to dismiss the charge of second-degree murder, and in
allowing evidence of defendant's prior conviction for driving while
impaired. We address these issues in turn.
By his first argument, defendant contends that the trial court
erred in failing to dismiss the charge of second-degree murder.
“In ruling upon a motion to dismiss, the trial court must examine
the evidence in the light most favorable to the State, giving the
State the benefit of all reasonable inferences which may be drawnfrom the evidence.” State v. Hairston, 137 N.C. App. 352, 354, 528
S.E.2d 29, 30 (2000). “When a defendant moves for dismissal, the
trial court is to determine only whether there is substantial
evidence of each essential element of the offense charged and of
the defendant being the perpetrator of the offense.” State v.
Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. See id. If there is
substantial evidence of each element of the charged offense and of
the defendant being the perpetrator of the offense, the case is for
the jury and the motion to dismiss should therefore be denied. See
State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
Second-degree murder is the (1) unlawful killing (2) of a
human being (3) with malice, but without premeditation and
deliberation. See State v. McDonald, __ N.C. App. ___, 565 S.E.2d
273, 277, disc. review denied, __ N.C. __, __ S.E.2d __ (2002).
Thus, intent to kill is not a necessary element of second-degree
murder, but “'there must be an intentional act sufficient to show
malice.'” State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304
(2000) (quoting State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380,
385 (1991)). Where the State seeks to prove malice connected with
the act of driving a vehicle, “[t]he State need only show 'that
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.'” State v.
Miller, 142 N.C. App. 435, 441, 543 S.E.2d 201, 205 (2001) (quotingRich, 351 N.C. at 395, 527 S.E.2d at 304).
In the instant case, defendant argues that the State presented
insufficient evidence that defendant was appreciably impaired at
the time of the accident, and that such impairment caused the
accident leading to Long's death. Defendant correctly notes that,
“[u]nder our statutes, the consumption of alcohol, standing alone,
does not render a person impaired. An effect, however slight, on
the defendant's faculties, is not enough to render him or her
impaired. Nor does the fact that defendant smells of alcohol by
itself control.” State v. Harrington, 78 N.C. App. 39, 45, 336
S.E.2d 852, 855 (1985)(citations omitted). The Harrington Court
went on to state, however, that “[o]n the other hand, the State
need not show that the defendant is 'drunk,' i.e., that his or her
faculties are materially impaired. The effect must be appreciable,
that is, sufficient to be recognized and estimated, for a proper
finding that defendant was impaired.” Id. (citations omitted).
Viewed in the light most favorable to the State, there was
substantial evidence that defendant's impaired driving caused the
accident in which Long was killed. First, as to defendant's
impairment, the State presented evidence tending to show that
defendant consumed at least ten to twelve beers over the course of
six hours. Defendant stated that he had been “drinking beer heavy
[sic],” and possibly champagne as well. Bunch testified that
defendant was still “definitely drunk” at approximately seven
o'clock on the morning of 3 January 2001, some six hours after
defendant last reported consuming alcohol. It is well establishedthat an opinion of a lay witness that the defendant was impaired is
sufficient evidence of impairment, provided that the opinion is
based on more than just the odor of alcohol. See Rich, 351 N.C. at
398-99, 527 S.E.2d at 305-06; State v. Adkerson, 90 N.C. App. 333,
338, 368 S.E.2d 434, 437 (1988). Bunch, who had known defendant
for four years and was in defendant's presence for at least twenty
minutes the morning of the accident, testified that defendant not
only “reeked of alcohol,” but that his eyes were glassy and his
speech was slightly slurred. We conclude that the above-stated
evidence sufficiently supported the jury's conclusion that
defendant was impaired at the time of the accident in which Long
was killed.
Secondly, the State provided substantial evidence that
defendant's impaired driving caused the accident that killed Long.
“The fact that a motorist has been drinking, when considered in
connection with faulty driving such as following an irregular
course on the highway or other conduct indicating an impairment of
physical or mental faculties, is sufficient prima facie to show a
violation of [the impaired driving statute].” State v. Hewitt, 263
N.C. 759, 764, 140 S.E.2d 241, 244 (1965). Defendant told several
people, including Anderson, that “he had been drinking and . . .
wrecked [the vehicle].” In his statement to Detective Costner,
defendant asserted, “I don't know why I ran off the road, I guess
it was the alcohol.” Evidence from the accident site revealed
that, although road conditions were clear, defendant lost all
control of the vehicle he was driving. The vehicle skidded intothe oncoming lane of traffic and onto the shoulder of the road,
where it collided with a mailbox and crashed into the ditch. The
evidence of defendant's impairment, together with the physical
evidence from the crash site, provided ample evidence that
defendant's impaired driving was the cause of the accident that
killed Long.
Because there was substantial evidence that defendant was
impaired at the time of the accident, and that his impaired driving
caused the accident that resulted in Long's death, the trial court
did not err in denying defendant's motion to dismiss the charge of
second-degree murder. The evidence showed that defendant made a
deliberate decision to drive, despite the fact that he had no
license and was impaired at the time. The evidence further showed
that defendant had been convicted of driving while impaired and
with a revoked license on numerous occasions. “'[A]ny reasonable
person should know that an automobile operated by a legally
intoxicated driver is reasonably likely to cause death to any and
all persons who may find themselves in the automobile's path.'”
State v. Fuller, 138 N.C. App. 481, 488, 531 S.E.2d 861, 867
(quoting State v. McBride, 118 N.C. App. 316, 319-20, 454 S.E.2d
840, 842 (1995)), disc. review denied, 353 N.C. 271, 546 S.E.2d 120
(2000); see also State v. McAllister, 138 N.C. App. 252, 260, 530
S.E.2d 859, 864-65 (holding that, where the defendant drove while
impaired and with a revoked license, and where the defendant had
been convicted of driving while impaired in the past, such evidence
properly supported a finding of malice), appeal dismissed, 352 N.C.681, 545 S.E.2d 724 (2000). Defendant's actions in the instant
case clearly demonstrated the malice necessary for conviction of
second-degree murder, and we therefore overrule defendant's first
exception to the record.
Defendant next argues that the trial court committed
prejudicial error by admitting his 1978 conviction for driving
while impaired into evidence for the purpose of proving malice.
Defendant contends that this conviction was too remote in time to
be relevant and irreparably prejudiced his case before the jury.
We conclude that, even if the 1978 conviction was erroneously
admitted, such admission did not prejudice defendant. In addition
to the 1978 conviction, the State presented evidence of three later
convictions for driving while impaired. The State also
demonstrated that defendant had been convicted four times for
driving with a revoked license. Given the overwhelming evidence of
defendant's faulty driving record, we hold that the exclusion of
one additional conviction out of the seven that were before the
jury could not have resulted in a different verdict. We therefore
overrule this assignment of error.
In conclusion, we hold that the trial court did not err in
failing to dismiss the charge of second-degree murder. We further
hold that the admission of defendant's conviction in 1978 of
impaired driving did not prejudice defendant.
No error.
Judges WYNN and HUNTER concur.
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