STATE OF NORTH CAROLINA
v. Cleveland County
Nos. 98 CRS 9636
MICHAEL SCOTT PASOUR 98 CRS 9637
Attorney General Roy Cooper, by Special Deputy Attorney
General Ronald M. Marquette, for the State.
The Law Firm of Charles L. Alston, Jr., by Charles L. Alston,
Jr., for defendant-appellant.
THOMAS, Judge.
Defendant, Michael Scott Pasour, appeals after being convicted
of second-degree murder and felonious breaking and entering. He
was sentenced to a minimum term of 230 months and a maximum term of
285 months for second-degree murder and seven to nine months for
felonious breaking and entering. We find no error.
The State presented evidence tending to show that on 21 August
1998, defendant and Kenneth Wood killed Roger McDaniel, whom they
suspected of attempting to molest the six-year-old son of
defendant's girlfriend. They had seen the boy talking to a man in
an automobile. The boy reported that the man had asked him to get
into his vehicle. Later that day, Wood saw a similar vehicle
parked in a nearby neighborhood. Wood and defendant went there andencountered the victim outside a nearby residence. They knocked
him to the ground and proceeded to punch and kick him.
Defendant and Wood admitted to police that they had beaten and
kicked the victim. Defendant stated that the victim had pulled a
gun on them. The police found a gun on the ground approximately
eight to twelve feet from the victim's body.
The victim died as a result of “[b]lunt trauma to the head
with a fracture of the neck.” In addition to suffering a fractured
neck, the victim sustained fractures to his nose and cheekbone,
multiple bruises to his head, abdomen and arm, dual “black eyes”
and internal hemorrhages as a result of the assault.
Defendant's testimony tends to show that he and Wood tackled
the victim when the victim drew a gun on them. They kicked the
victim in order to get the gun from the victim's hand.
By defendant's first assignment of error, he contends the
trial court erred by allowing the State's motion in limine to limit
defendant's cross examination of a witness regarding the victim's
reputed sexual orientation and association with a reputed child
molester. However, this argument is not properly before us.
During the course of trial the prosecutor filed a motion to
prohibit such inquiry by defendant. The trial court allowed the
motion as to hearsay statements regarding the victim's reputation
and associations. As for the witness's personal knowledge or
observation of the victim's proclivities and associations, the
trial court reserved ruling. Subsequently, when defendant cross
examined the witness, he asked only eight questions, none of themconcerning matters named in the motion in limine.
An objection to an order denying or allowing a motion in
limine is insufficient to preserve the issue for appellate review.
State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999). The
appellant must object to the evidence when it is offered in the
case of a ruling allowing evidence, or must attempt to offer the
excluded evidence in the case of a ruling excluding evidence.
State v. Locklear, 145 N.C. App. 447, 452, 551 S.E.2d 196, 199
(2001). Defendant did not attempt to offer the evidence at trial.
Defendant has not assigned plain error. Thus, this argument is not
properly before us and we decline to address it. See N.C. R. App.
P. 10(b)(1).
Defendant's remaining contention is that the trial court erred
by denying his motion to dismiss the charge of second-degree murder
for insufficient evidence. He argues the evidence at most only
proves voluntary manslaughter.
In ruling on a motion to dismiss, the trial court must
determine whether there is substantial evidence: (1) of each
essential element of the charged offense; and (2) of perpetration
of the offense by the defendant. State v. Powell, 299 N.C. 95, 98,
261 S.E.2d 114, 117 (1980). The court must view the evidence in
the light most favorable to the State, giving it the benefit of
every reasonable inference that may be drawn from the evidence.
State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).
The court must disregard contradictions and discrepancies in the
evidence and leave them for resolution by the jury. State v.Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982).
Second-degree murder consists of the unlawful killing of
another human being with malice but without premeditation and
deliberation. State v. Robbins, 309 N.C. 771, 775, 309 S.E.2d 188,
190 (1983). The difference between second-degree murder and
voluntary manslaughter is that the element of malice is required
for a conviction of the former but not the latter. State v.
Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978). Malice
is defined as a condition of the mind that prompts one to take the
life of another intentionally without just cause, excuse, or
justification. State v. Fleming, 296 N.C. 559, 562-63, 251 S.E.2d
430, 432 (1979). Malice may be inferred from the circumstances
connected to the homicide, the viciousness and depravity of the
defendant's acts, and other conduct of the defendant relative to
the homicide. Id. at 563, 251 S.E.2d at 432.
The record contains ample evidence to support a finding by a
jury that defendant killed the victim with malice. Defendant and
Wood sought out the victim with intent to harm him. Defendant and
Wood mercilessly continued to beat and kick the victim as he lay,
helpless, on the ground. As they pummeled the victim, the two men
called him an “M F pervert.” Defendant stated to an officer that
the victim was a “f'ing pervert” who “got what he deserved.” After
completing their assault of the victim, defendant and Wood gave
each other congratulatory “high-fives.”
Accordingly, we hold there was sufficient evidence that
defendant killed the victim with malice. Nevertheless, the trialcourt submitted the lesser included offense of voluntary
manslaughter. The trial court properly denied defendant's motion
to dismiss.
NO ERROR.
Judges WALKER and BIGGS concur.
Report per Rule 30(e).
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