An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-590


Filed: 6 July 2004


v .                         Harnett County
                            No. 01 CRS 1029
                             01 CRS 50743

    Appeal by defendant from judgment entered 25 March 2002 by Judge James F. Ammons, Jr., in Harnett County Superior Court. Heard in the Court of Appeals 5 February 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, for the State.

    Nora Henry Hargrove for defendant-appellant.


    Chester Wilson Jones, Jr. (“ defendant ”) appeals his convictions of driving while impaired and second-degree murder. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error.
    The State's evidence presented at trial tended to show the following: On 26 January 2001, defendant was involved in an automobile crash in which William Holt Harrington (“Harrington”) was killed. Defendant was traveling south on N.C. Highway 217 when he approached Harrington, who was traveling north. As the two vehicles reached the middle of a curve, defendant's vehicle crossed the center line and struck Harrington's vehicle in the side. As aresult of the collision, defendant suffered a broken bone and lacerations. Harrington was pronounced dead on the scene.
    Defendant was transported to Good Hope Hospital. Upon arriving at the hospital, defendant was examined by Dr. Neil Page (“Dr. Page”). Dr. Page noted defendant was “alert times four,” or alert and oriented to person, place, time and event. Blood and urine samples were taken from defendant. While defendant's blood test results showed only a trace amount of alcohol in defendant's blood, defendant's urine sample tested positive for benzodiazepines, cannabinoids, cocaine, opiates, and PCP. While at the hospital, Trooper R.A. Jones (“Trooper Jones”) interviewed defendant and learned defendant's license was in a state of revocation.
    On 12 February 2001, defendant was indicted for driving while license revoked, driving while impaired, and second-degree murder. During trial, the State provided expert testimony regarding defendant's urine screening and produced a drug chart detailing the impairing effects of the drugs found in defendant's urine. On 25 March 2002, the jury rendered a guilty verdict on all counts. Defendant appeals.

    As an initial matter, we note that defendant's brief contains arguments supporting only ten of his original forty-eight assignments of error. Pursuant to North Carolina Rule of Appellate Procedure 28(b)(6) (2004), the thirty-eight omitted assignments of error are deemed abandoned. Therefore, we limit our present reviewto those assignments of error properly preserved by defendant for appeal.
    The issues presented on appeal are whether the trial court erred by (I) denying defendant's motion to dismiss the charge of second-degree murder; (II) admitting evidence regarding defendant's urine screening; (III) overruling defendant's objection to jury instructions; and (IV) denying defendant's motion to proceed pro se.
    Defendant first argues the trial court erred in denying his motion to dismiss the charge of second-degree murder. Defendant contends the State presented insufficient evidence to prove the impairment necessary to satisfy the malice requirement of second- degree murder. We disagree.
    “In ruling on a motion to dismiss, a trial court must determine whether there is substantial evidence of each essential element of the offense.” State v. Roddey, 110 N.C. App. 810, 812, 431 S.E.2d 245, 247 (1993). “Substantial evidence” has been defined as “the amount of relevant evidence a reasonable mind might accept as adequate to support a conclusion.” State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981). The trial court must view all of the evidence, whether competent or incompetent, in the light most favorable to the State, giving it the benefit of every reasonable inference 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). “Any contradictions or discrepancies in the evidence are for the jury to resolve, andthese inconsistencies, by themselves, do not serve as grounds for dismissal.” State v. Hamlet, 312 N.C. 162, 169, 321 S.E.2d 837, 842 (1984).
    In the case sub judice, defendant was charged with second- degree murder in violation of N.C. Gen. Stat. § 14-17 (2003). Second-degree murder has been defined as the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Grice, 131 N.C. App. 48, 53, 505 S.E.2d 166, 169 (1998), disc. review denied, 350 N.C. 102, 533 S.E.2d 473 (1999). North Carolina appellate courts recognize three kinds 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 on mischief. Both [of] 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. Gray, 137 N.C. App. 345, 348, 528 S.E.2d 46, 48-49 (2000) (citation omitted). Where the charge of second-degree murder is based upon impaired driving, we focus on the second form of malice. Grice, 131 N.C. App. at 53, 505 S.E.2d at 169. In State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982), our Supreme Court held that “a mind utterly without regard for human life and social duty” can be established through defendant's impairment. “[E]vidence of consumption of an impairing substance,'when considered in connection with faulty driving . . . or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to [establish impairment.]'” State v. Rich, 351 N.C. 386, 398, 527 S.E.2d 299, 306 (2000)(quoting Atkins v. Moye, 277 N.C. 179, 185, 176 S.E.2d 789, 794 (1970)).
    In the case sub judice, the urine screening reveals that defendant had consumed impairing substances. Dr. Page testified at trial that defendant's urine screening tested positive for several drugs. The State introduced a drug chart at trial showing the impairing effects of those drugs found in the urine screening. While the State was unable to quantify the amount of impairing substances in defendant's body, viewed in the light most favorable to the State, the evidence tends to show that defendant had consumed impairing substances, operated the vehicle while his license was in a state of revocation, and was involved in faulty driving. Defendant collided with an on-coming vehicle and caused the death of another person. Thus, sufficient evidence was presented to show that defendant, in operating the vehicle, knowingly engaged in reckless activity that was inherently dangerous to human life. We hold that this evidence was sufficient to go to the jury on the issue of whether defendant was impaired, and the trial court did not err in denying defendant's motion to dismiss the second-degree murder charge.
    Defendant next argues that the trial court erred in admitting the urine screening results, drug chart, and expert testimony into evidence.         Generally, “all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of North Carolina, by Act of Congress, by Act of the General Assembly, or by [the Rules of Evidence].” N.C.R. Evid. 402 (2003). The Rules of Evidence define “relevant evidence” as that evidence which has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.” N.C.R. Evid. 401 (2003). “[A]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C.R. Evid. 403 (2003). “In general, the exclusion of evidence under the balancing test of Rule 403 of the North Carolina Rules of Evidence is within the trial court's sound discretion.” Gray, 137 N.C. App. at 350, 528 S.E.2d at 50. We conclude no abuse of discretion occurred in the case sub judice.
    Defendant contends the urine screening results and drug chart were unreliable and speculative and thus should have been excluded from evidence. We disagree. Results from the urine screening would tend to make defendant's impairment more or less probable, while the drug chart tends to show whether the substances found in the urine are impairing. The probative value of the urine screening and the drug chart outweighs any possible unfair prejudice to defendant. Whether the evidence was reliable to provethe factual issue of impairment was a question for the jury. State v. Miller, 80 N.C. App. 425, 427, 342 S.E.2d 553, 555, appeal dismissed and disc. review denied, 317 N.C. 711, 347 S.E.2d 448 (1986).
    Defendant maintains that the expert's testimony about the urine screening and drug chart did not aid the jury. Defendant contends the testimony and chart were confusing and left the jury unable to ascertain the important distinction between the blood tests and the urine test.
    Expert testimony is admissible if the expert's specialized knowledge will assist the jury in understanding the evidence or determining a fact at issue in the case. N.C.R. Evid. 702 (2003). Expert testimony is admissible so long as it is relevant and its probative value is not substantially outweighed by the danger of unfair prejudice. N.C.R. Evid. 402, 403 (2003). In the case sub judice, defendant has failed to raise an issue as to the admissibility of the testimony, choosing rather to challenge the credibility of the expert witness's testimony. When a defendant's contentions go to the credibility and weight of the evidence and not to its admissibility, our courts refuse to review the issue. State v. Mitchell, 342 N.C. 797, 808, 467 S.E.2d 416, 422 (1996). Likewise, in the case sub judice, because defendant's contentions go to the credibility and weight of the expert's testimony and not to its admissibility, we conclude that the trial court did not err in determining that the testimony was admissible.     Defendant also argues that the trial court erred by overruling defendant's objection to the inclusion of alcohol as an impairing substance in the jury instructions. Defendant argues that the trial court's instructions were not supported by sufficient evidence. We disagree.
    Upon review of a trial court's charge to the jury, we must determine whether, considering the instruction in its entirety, “it presents the law of the case in such a manner as to leave no reasonable cause to believe the jury was misled or misinformed[.]” State v. Brim, 25 N.C. App. 709, 713, 214 S.E.2d 622, 624 (1975). A trial court may not instruct a jury on evidence unless the record supports a finding of that evidence. State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-34 (1990).
    In the case sub judice, the trial court instructed the jury in pertinent part as follows:
        Defendant has been charged with impaired driving. For you to find defendant guilty of this offense the state must prove three things beyond a reasonable doubt. . . . And, third, that at the time defendant was driving th[e] vehicle he was under the influence of an impairing substance or substances. Benzodiazepine, cannabinoids, cocaine, methadone, opiates, propoxyphene, PCP, Xanax, Soma, Darvocet, Prozac, Demerol, and alcohol. All of these substances could be impairing substances.

    Defendant contends that the State provided only “scant evidence” of alcohol present in his body the night of the accident. Dr. Page testified at trial that the blood test results returned 1.0 milligrams per deciliter, or .001 grams of alcohol in defendant's blood. Although minute, the small amount establishesthat defendant had alcohol in his body on the night of the accident. As discussed above, it is well established that the weight and credibility given to evidence provided at trial is a decision for the jury. Mitchell, 342 N.C. at 808, 467 S.E.2d at 422. The jury instructions in the case sub judice were based upon evidence produced at trial. Therefore, we hold the trial court did not err in its jury instructions.
    In his final argument, defendant asserts the trial court erred by not allowing him to proceed pro se. We disagree.
    “Before allowing a defendant to waive in-court representation by counsel, . . . the trial court must insure that constitutional and statutory standards are satisfied.” State v. Thomas, 331 N.C. 671, 673, 417 S.E.2d 473, 475 (1992). N.C. Gen. Stat. § 15A-1242 affords a defendant the right to elect to represent himself at trial.
        A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that defendant: (1) Has been clearly advised of his right to the assistance of counsel, including his right to the assistance of counsel when he is so entitled; (2) Understands and appreciates the consequences of his decision; and (3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.

N.C. Gen. Stat. § 15A-1242 (2003).        
        If defendant clearly indicates a desire to have counsel removed and proceed pro se, then the trial judge should make further inquiry; he should advise defendant of his right to represent himself, and determine whether defendant understands the consequences of hisdecision and voluntarily and intelligently wishes to waive his rights.

State v. Gerald, 304 N.C. 511, 519, 284 S.E.2d 312, 317 (1981).
    In the case sub judice, the record reveals the following pertinent exchange:
                                          &nb sp;             THE COURT:            Now, first bridge we got to get                                           &nb sp;             across is whether or not you
                    want to represent yourself, and if you do, that's fine. I advise you not to, but if you do, I'll be more than happy to let you do so.

                        DEFENDANT:     Yes, sir. With that in mind, how         can I represent myself when I'm in jail and he has all my evidence?

                THE COURT:                     Well, that's going to be ver y difficult. It's going to be very difficult for someone who doesn't have any legal background, I assume you don't?

        DEFENDANT:             No, sir.
        . . . .
                THE COURT:                     Okay. So I would encourage you not to do that. But if that's what you want to do, then we'll give it a shot. Otherwise, if you don't want to represent yourself, then you need to sit down and get about these motions that you've filed that your attorney has looked at and has said that he does not wish to proceed on.

        DEFENDANT:             I have to represent myself.

        . . . .

        THE COURT:    Okay. But I've read these. All right. Your request to represent yourself is denied. These motions are denied inthat they are not relevant. Your attorney has declined to proceed on them.

                    I believe that these motions, along with your wanting to dismiss your attorney at this point, are simply designed to delay the trial of your matter.

                    Obvious to me from looking at the file and talking to you, that you are not -- I don't mean any disrespect -- that you're not legally capable of presenting an effective defense for yourself. I am familiar with Mr. Jones and I know that he is more than competent to handle these matters. I've known him for several years and seen him try cases and I'm going to leave him as your attorney.

                    I would suggest that if you're angry about that, that you not take that out on Mr. Jones and that you not let that deteriorate your relationship with Mr. Jones, that you continue to have a free and open relationship and assist him in representing you because that's what he's trying to do. He's trying to do what's in your best interest whether you understand that or believe that or not. Okay.

        DEFENDANT:    I just wanted to see the video,             sir.

        THE COURT:    Well, if there's going to be a video shown to the jury, believe me, you will see it beforehand.

    A defendant must make an “unequivocal” assertion that he wishes to represent himself. Id. In the case sub judice,defendant never unequivocally asserted his intent to represent himself. Defendant's statements were not affirmative responses to the trial court's inquiry. The trial court advised defendant of his options and defendant failed to unequivocally request to represent himself. Therefore, defendant's final argument is overruled.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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