Appeal by defendant from judgment entered 14 December 2000 by
Judge Jay D. Hockenbury in Pender County Superior Court. Heard in
the Court of Appeals 16 April 2002.
Attorney General Roy A. Cooper, by Assistant Attorney General
Jennie Wilheim Mau, for the State.
Jeffrey Ryan for defendant-appellant.
TIMMONS-GOODSON, Judge.
Mark Dewayne Baker ("defendant") appeals from his conviction
of second degree murder. For the reasons stated herein, we hold
that defendant received a fair trial, free from prejudicial error.
The State's evidence at trial tended to show the following:
On 3 September 1999, Christopher Fogleman ("Christopher") visited
the home of defendant. Defendant was close to Christopher as a
result of his relationship with Angela Fogleman ("Angela"),
Christopher's sister. Christopher, who was twelve years old at the
time of the incident, would often visit and spend the night at
defendant's home to play video games. On 4 September 1999, at
approximately 3:25 p.m., Angela telephoned defendant's home and
talked to Christopher. Christopher informed Angela that he anddefendant were playing video games. After speaking with
Christopher, Angela attempted to talk to defendant; however, he
abruptly hung up the phone. Angela subsequently tried calling
defendant's home several times but no one answered the phone. At
approximately 3:55 p.m., the 911 dispatcher received a telephone
call from defendant, reporting a shooting.
Officer Christian Anderson ("Officer Anderson") of the Pender
County Police Department arrived at the home accompanied by Deputy
Sheriff Andrew Paluck ("Deputy Paluck"). The officers entered the
home and found Christopher lying on the mattress of defendant's bed
in a back bedroom. After checking for vital signs, Deputy Paluck
discovered a gunshot wound to Christopher's chest.
Upon describing the incident that led to the shooting,
defendant stated that he was in the living room playing video games
when he heard a "clicking noise" coming from the back bedroom. As
he walked into the bedroom, Christopher pointed a shotgun at him.
Defendant stated that he went over to place his finger in the
trigger guard and to get the gun away from Christopher, however, a
struggle ensued and the gun "went off." In a written statement
provided to Officer Anderson, defendant insisted that Christopher
was playing with the shotgun and it discharged when defendant tried
to take the gun away from Christopher.
On 4 September 1999, Special Agent Hans Miller ("Agent
Miller") of the North Carolina State Bureau of Investigation
arrived at the scene to assist in the investigation of the
shooting. A Mossberg, .410-gauge caliber shotgun, was discoveredat the foot of the mattress pointing away from Christopher's body.
Agent Miller also discovered an unfired black Remington .410 shell
to the right of the body. Upon examination of the gun, Agent
Miller found a fired Remington shotgun shell in the chamber of the
weapon and two unfired rounds with "slugs" in the magazine of the
weapon.
On 7 September 1999, Dr. Charles L. Garrett ("Dr. Garrett"),
an expert in the field of forensic pathology, conducted an autopsy
of Christopher. Dr. Garrett discovered a circular entrance wound
approximately one-half inch in diameter, surrounded by a larger
area of burned skin. Dr. Garrett opined that the “pattern” of
shotgun pellets was consistent with the shotgun being almost
perpendicular to the wound. Dr. Garrett also measured the distance
between Christopher's armpit and his extended middle finger, which
was twenty-one and a half inches. Based upon this measurement and
measurements compiled by the State Bureau of Investigation, Dr.
Garrett opined that it was physically impossible for Christopher to
have pulled the trigger with the gun pointed at himself; or that
the gun could have turned 180 degrees during a struggle so as to
have struck Christopher in the center of his chest.
Due to the discrepancies in defendant's statement, Agent
Miller and Detective Kevin Kemp ("Detective Kemp") asked defendant
to reenact what happened on the day in question. On 10 September
1999, the officers arrived at defendant's home and defendant
consented to participating in a videotaped re-enactment. The
resulting videotape contained conflicting versions of whatoccurred. After several re-enactments, the officers informed
defendant that his explanation was inconsistent with physical
evidence gathered in the case. Upon completing a final re-
enactment, defendant made a written statement to Detective Kemp
describing what occurred on 4 September 1999. In the statement,
defendant stated that Christopher was lying on the mattress. At
this point, defendant admitted, he picked up the gun, "pumped it,"
and pointed the gun at Christopher, thinking it was unloaded.
Defendant then fired a gunshot that killed Christopher. Defendant
stated that he was "just playing around" with the gun when the
incident occurred.
At trial, defendant moved to dismiss the charge of second
degree murder at the close of all evidence, which was denied. The
trial court instructed the jury on second degree murder and
involuntary manslaughter. Defendant was subsequently convicted of
second degree murder and was sentenced to a minimum term of 114
months and a maximum term of 146 months. Defendant appeals.
In his sole assignment of error, defendant contends that the
trial court erred in denying his motion to dismiss the charge of
second degree murder. We disagree.
When reviewing a motion to dismiss, we must consider the
evidence in the light most favorable to the State, and the State is
entitled to every reasonable inference to be drawn therefrom.
State v. Gainey, 343 N.C. 79, 85, 468 S.E.2d 227, 231 (1996). "The
test of whether the evidence is sufficient to withstand a motion todismiss is whether a reasonable inference of defendant's guilt may
be drawn therefrom, and the test is the same whether the evidence
is direct or circumstantial.
Id. "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). If
there is substantial evidence, whether direct or circumstantial, 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 be denied.
See State v. Locklear, 322
N.C. 349, 358, 368 S.E.2d 377, 383 (1988).
Second degree murder is defined as "the unlawful killing of a
human being with malice but without premeditation and
deliberation.”
State v. Flowers, 347 N.C. 1, 29, 489 S.E.2d 391,
407 (1997),
cert. denied, 522 U.S. 1135, 140 L. Ed. 2d 150 (1998).
“While intent to kill is not an essential element” of murder in the
second degree, the "crime cannot exist without some intentional act
in the chain of causation leading to death."
State v. Lathan, 138
N.C. App. 234, 242, 530 S.E.2d 615, 622,
disc. review denied, 352
N.C. 680, 545 S.E.2d 723 (2000). Our Supreme Court has recognized
three types of malice:
One connotes a positive concept of express
hatred, ill-will or spite, sometimes called
actual, express, or particular malice.
Another kind of malice arises when an act
which is inherently dangerous to human life is
done so recklessly and wantonly as to manifest
a mind utterly without regard for human life
and social duty and deliberately bent onmischief. Both these kinds of malice would
support a conviction of murder in the second
degree. There is, however, a third kind of
malice which is defined as nothing more than
'that condition of mind which prompts a person
to take the life of another intentionally
without just cause, excuse, or justification.'
State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982)
(citations omitted). Additionally, “the law implies that a killing
was done with malice and unlawfully when the defendant
intentionally inflicts a wound upon a victim with a deadly weapon,
resulting in death.”
State v. Maynard, 311 N.C. 1, 33, 316 S.E.2d
197, 215,
certs. denied, 469 U.S. 963, 83 L. Ed. 2d 299 (1984) and
502 U.S. 1110, 117 L. Ed. 2d 450 (1992).
In the instant case, the State argues that the second type of
malice was present in that defendant acted with “recklessness of
the consequences of his actions,” in such a way as to indicate a
total disregard of human life. Our Supreme Court has described
this kind of malice as
“'[Malice] comprehend[ing] not only particular
animosity,'but also wickedness of disposition,
hardness of heart, cruelty, recklessness of
consequences, and a mind regardless of social
duty and deliberately bent on mischief, though
there may be no intention to injure a
particular person.' . . . “'[It] does not
necessarily mean an actual intent to take
human life; it may be inferential or implied,
instead of positive, as when an act which
imports danger to another is done so
recklessly or wantonly as to manifest
depravity of mind and disregard of human
life.'” “In such a situation 'the law regards
the circumstances of the act as so harmful
that the law punishes the act as though malice
did in fact exist.'”
State v. Rich, 132 N.C. 440, 445, 512 S.E.2d 441, 445 (1999)(alteration in original),
affirmed, 351 N.C. 386, 527 S.E.2d 299
(2000)(quoting
State v. Wilkerson, 295 N.C. 559, 578-79, 247 S.E.2d
905, 916 (1978)) and (quoting
State v. Wrenn, 279 N.C. 676, 686-87,
185 S.E.2d 129, 135 (1971),
cert. denied, 282 N.C. 430, 192 S.E.2d
839 (1972)).
Defendant, relying on
State v. Blue, 138 N.C. App. 404, 531
S.E.2d 267 (2000),
affirmed in part, reversed in part,
and remanded
in part, 353 N.C. 364, 543 S.E.2d 478 (2001), argues that there
existed insufficient evidence of malice to submit the case to the
jury. However, defendant's reliance on
Blue is misplaced.
In
Blue, defendant was convicted of second degree murder after
his girlfriend's daughter died as a result of shaken baby syndrome.
The evidence showed that defendant had placed the victim on his
knee and had begun to bounce her in an attempt to get her to stop
crying.
Id. at 407, 531 S.E.2d at 271. The next morning, the
victim-baby was found dead and defendant was charged with second
degree murder. On appeal, defendant argued that his second degree
murder conviction must be vacated for insufficient evidence of
malice. This Court noted that "recklessness of consequences"
denotes a high degree of recklessness required for murder as
opposed to the lesser degree for manslaughter.
Id. at 410, 531
S.E.2d at 272. The Court emphasized that a “defendant's shaking a
baby and the baby's death by shaken baby syndrome” standing alone,
were insufficient factors to permit a rational jury to find the
existence of malice beyond a reasonable doubt.
Id. at 413, 531
S.E.2d at 274. In holding that the facts did not satisfy the
Wilkerson definition of malice, the Court concluded that the
evidence was only sufficient to raise a suspicion or conjecture
that defendant acted with the type of malice required for a
conviction of second degree murder.
Id. at 414, 543 S.E.2d at
275. Clearly, the facts of this case are distinguishable from
Blue because of the degree of recklessness involved. Moreover, in
Blue, the evidence was insufficient to support a finding that
defendant's conduct evidenced “recklessness of consequences and
total disregard for human life,” unlike the conduct evidenced by
defendant in the present case.
In the instant case, the evidence establishes that defendant
intentionally pointed a gun at Christopher and fired a shot that
killed him. Evidence tended to show that it was physically
impossible for Christopher to have pulled the trigger with the gun
pointed at himself or that the gun could have turned during a
struggle so as to have struck Christopher in the center of his
chest. Whether or not defendant realized that the gun was loaded,
his conduct was extremely reckless and utterly without regard for
Christopher's life. We therefore hold that the evidence was
sufficient for a rational jury to conclude that defendant acted
with malice in order to sustain a conviction of second degree
murder. Thus, the trial court did not err in denying defendant's
motion to dismiss.
Accordingly, we find no error.
Judges GREENE and HUNTER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***