An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1407


Filed: 3 August 2004

STATE OF NORTH CAROLINA                                

v .                         Catawba County
                            Nos. 02 CRS 13288, 56242

                                          &nb sp;     

    Appeal by defendant from judgments dated 23 May 2003 and 27 May 2003 by Judge Timothy L. Patti in Superior Court, Catawba County. Heard in the Court of Appeals 16 June 2004.
    Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State.

    J. Clark Fischer for defendant-appellant.

    McGEE, Judge.

    John Spencer Brown (defendant) was charged with second degree murder, two counts of assault with a deadly weapon inflicting serious injury, and driving while impaired. Defendant was convicted on all counts and was sentenced to 268 to 351 months in prison. Defendant appeals.
    The evidence at trial tended to show that on 9 August 2002, at approximately 8:00 a.m., Angela Bass (Bass) was driving her son, Zachary Davis (Zachary), to Jenkins Elementary School in Hickory, North Carolina. Bass was traveling southbound along Highway 127 (the highway), an undivided five-lane road with a center turn lane separating the north and south lanes of travel. Bass was traveling in the left southbound lane. The posted speed limit was forty-fivemiles per hour and traffic on the highway was heavy, but normal.
    Bass observed a white truck, driven by defendant, approaching from the northbound lanes of travel. The truck veered over into the center turn lane, and then into Bass's southbound lane of travel. Bass attempted to avoid a collision by moving into the right lane, but the truck struck Bass's vehicle on the driver's side. The collision caused Bass's vehicle to spin out of control. Defendant's truck then struck a vehicle driven by Sherry Sluss (Sluss), who was traveling southbound in the right lane of the highway.
    Officer Mike Beach (Officer Beach) of the Hickory Police Department talked to all three drivers at the scene of the collision, prepared a diagram of the accident, and determined from the data he collected that defendant was traveling over eighty miles per hour when he struck Bass's vehicle. As he spoke with defendant, Officer Beach observed that defendant's speech was slurred, his eyes were bloodshot, and he had a strong odor of alcohol on his breath. In a search of defendant's vehicle to locate ownership information, Officer Beach found a single blue pill wrapped in clear plastic. At trial, Officer Beach testified that defendant had consumed "a sufficient quantity of some impairing substance to impair his mental [or] physical faculties or both."
    Defendant was transported by ambulance to the hospital. On arrival at the hospital, defendant was asked by Officer Jason Reynolds (Officer Reynolds) to submit to a blood alcohol test. Defendant refused and replied, "You can just take me to court." Defendant was charged with driving while impaired. Officer Reynolds served a search warrant on defendant at about 2:00 p.m., and defendant's blood was drawn by a nurse. On the basis of this sample, and a blood sample ordered by the attending emergency room doctor at 9:15 a.m., Paul Glover (Glover), research scientist and training specialist for the Department of Social Services, concluded defendant's blood alcohol concentration at the time of the accident was 0.17 g. per 100 ml. of blood. Glover also testified that the blood sample taken pursuant to the search warrant revealed the presence of alprazolam, which is sold by prescription under the brand name Xanax, and benzoylecgonine, a byproduct of cocaine. Glover noted that alcohol and alprazolam are both central nervous system depressants that affect walking, balance, and the ability to think. When alcohol and alprazolam are mixed together, the effects of both are intensified.
    While defendant was in the hospital, he talked with his father. Their conversation was overheard by Officer Reynolds, who testified that at some point during the conversation he heard defendant's father say, "I told you about that drinking and driving." To which defendant replied, "I just passed out." Officer Reynolds further testified that defendant's father repeatedly admonished defendant for drinking and driving.
    As a result of the accident, Zachary, the seven year-old son of Bass, died from severe head injuries. Sluss suffered a partially collapsed lung and an ankle fracture. Bass had alaceration to her forehead, a rib fracture, and a spleen laceration.
    Over defendant's objection, the State offered evidence at trial indicating that defendant had previously been convicted: (1) for driving while impaired in Alamance County, (2) for an unsafe movement conviction in Catawba County, and (3) three times for possession of an alcoholic beverage at a time when defendant was not yet nineteen years of age. Defendant first challenges the introduction into evidence of his conviction for an unsafe movement and the three convictions for underage possession of an alcoholic beverage. Defendant does not challenge the introduction into evidence of his past conviction of driving while impaired.
    Murder in the second degree "is the unlawful killing of another human being with malice but without premeditation and deliberation." State v. Bruton, 344 N.C. 381, 389, 474 S.E.2d 336, 342 (1996). The killing of another due to reckless drunken driving can support a jury's finding of malice and can, therefore, constitute second degree murder. State v. Gray, 137 N.C. App. 345, 352, 528 S.E.2d 46, 51 (2000). "'[A]ny act evidencing "wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty and deliberately bent on mischief" . . . is sufficient to supply the malice necessary for second degree murder.'" State v. Byers, 105 N.C. App. 377, 382, 413 S.E.2d 586, 588-89 (1992) (quoting State v. Snyder, 311 N.C. 391, 394, 317 S.E.2d 394, 396 (1984) (citationsomitted)).
    N.C. Gen. Stat. § 8C-1, Rule 404(b)(2003) provides that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes[.]" "The demonstration of malice is a proper purpose for admission of evidence of other crimes, wrongs, or acts by the defendant." State v. McAllister, 138 N.C. App. 252, 258, 530 S.E.2d 859, 863, (2000). N.C.G.S. § 8C-1, Rule 404(b) is a rule of inclusion of relevant evidence of other crimes, wrongs, or acts by a defendant. State v. Pierce, 346 N.C. 471, 490, 488 S.E.2d 576, 587 (1997). All evidence, whether or not offered under Rule 404(b), must meet the requirement of relevancy under Rule 401. See N.C. Gen. Stat. § 8C-1, Rule 401 (2003). "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[] [or] confusion of the issues[.]" N.C. Gen. Stat. § 8C-1, Rule 403 (2003).
    In this case, the trial court admitted into evidence five separate past convictions, four of which are challenged here. The trial court admitted this evidence under Rule 404(b) for the limited purpose of establishing malice to support the charge of second degree murder. The trial court considered the dates of the past convictions and found them not to be so remote in time that they would be irrelevant. The trial court also weighed the probative value of the evidence against the prejudicial effect of the evidence, finding that the probative value substantiallyoutweighed any prejudicial effect the evidence might have.
    We agree with the trial court that defendant's past conviction for an unsafe movement violation was admissible. Initially, defendant was charged with reckless driving to endanger under N.C. Gen. Stat. § 20-140(b). In Byers, the defendant was charged with second degree murder as a result of an automobile collision. Byers, 105 N.C. App. at 378, 413 S.E.2d at 587. This Court allowed evidence that the defendant knew his driver's license was revoked but he drove anyway as an indication that the defendant acted with "a mind regardless of social duty and with recklessness of consequences." Id. at 382, 413 S.E.2d at 589. In the case before us, defendant's argument with regard to the unsafe movement violation is without merit. Evidence that defendant had a past conviction for this type of violation indicates that defendant was aware such reckless and indifferent conduct was prohibited. This evidence is probative of defendant's attitude and of his disregard of his social duty to drive in a reasonable manner. Such evidence supports the element of malice in the second degree murder charge, and it is therefore admissible under Rule 404(b).
    Defendant next argues the trial court erred in admitting evidence of his three past underage drinking convictions. Defendant could not legally possess or consume alcohol until he reached the age of twenty-one, as set forth in N.C. Gen. Stat. §§ 18B-300, 301 (2003). We find that these convictions are not probative of defendant's state of mind in the present case. The past convictions for driving while impaired and unsafe movement arelogically related to the element of malice by both their serious nature and the fact that each occurred while operating a motor vehicle. However, defendant's three past underage alcohol possessions did not occur while defendant was operating a motor vehicle and are not relevant to the element of malice required for a second degree murder conviction. This Court is concerned that this evidence was proffered to articulate to the jury defendant's past anti-social behavior, and to attempt to cast the collision as showing conformity with these past wrongs, which does not comport with the requirements of Rule 404(b).
    However, we recognize the overwhelming weight of evidence supporting defendant's conviction for second degree murder. Thus, the admission into evidence of defendant's three past convictions for underage possession of alcohol was harmless error. Defendant is unable to show that he was prejudiced by the admission of these convictions into evidence. Defendant is similarly unable to show that there is a reasonable possibility that a different result would have occurred had the evidence been excluded. N.C. Gen. Stat. § 15A-1443(a)(2003). Defendant had a blood alcohol content of more than twice the legal limit and had traces of prescription and other illegal drugs in his blood. He drove into the victims' lane of traffic at a speed in excess of eighty miles per hour. Under these facts there is clearly adequate evidence from which a jury could find that defendant acted with malice sufficient to support a second degree murder charge. Defendant cannot show that had the "contested items not been admitted into evidence, adifferent result would have been reached at trial." Bruton, 344 N.C. at 387, 474 S.E.2d at 341. This assignment of error is without merit.
    Defendant next challenges the admission into evidence of certain statements made by defendant and his father while defendant was under observation at the hospital. Defendant assigns as error the trial court's "overruling [d]efendant's objection to [the] admission of hearsay statements made by [d]efendant's father that were not the subject of any hearsay exception."
    Defendant presents an argument as to the admission of a statement made by defendant to his father. "A listing of the assignments of error upon which an appeal is predicated shall be stated at the conclusion of the record on appeal[.]" N.C.R. App. P. 10(c)(1). Defendant did not, however, assign as error admission of defendant's statement. This Court therefore will not consider the statement made by defendant that, "I just passed out." This Court will concern itself solely with defendant's father's initial statement that, "I told you about the drinking and driving." We find that this statement was properly admitted under the excited utterance exception in N.C. Gen. Stat. § 8C-1, Rule 803(2)(2003).
    Under Rule 803(2), an excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." N.C.G.S. § 8C-1, Rule 803(2). "For a statement to qualify as an excited utterance, 'there must be (1) a sufficientlystartling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.'" State v. Pickens, 346 N.C. 628, 644, 488 S.E.2d 162, 171 (1997) (quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985)). In the present case, the statement of defendant's father was made under stressful circumstances. Not only was defendant in the hospital suffering from his own injuries, but defendant's father was also aware that defendant was involved in a serious automobile collision. The statement was made close in time to when defendant's father initially saw defendant in the hospital, and not long after defendant's father was notified of the collision. Additionally, the reaction of defendant's father to defendant's situation was so strong that he repeated the sentiment "about that drinking and driving" several times. Defendant's father had not reflected on his imprudent spontaneous statement. Furthermore, defendant's father did not have any reason to fabricate his remark.
    In State v. Beaver, 317 N.C. 643, 346 S.E.2d 476 (1986), our Supreme Court considered the admissibility of an excited utterance made by the defendant's mother as police officers brought her son into her house and told her he was under arrest for manufacturing marijuana. In that case, the defendant's mother said, "I told you you'd get caught. I told you not to mess with that stuff." Id. at 650, 346 S.E.2d at 480. Our Supreme Court held this statement to be admissible as an excited utterance. Id. at 650, 346 S.E.2d at 480-81. The circumstances of the present case are similar to thosein Beaver, in that in both cases each defendant's actions elicited a spontaneous rebuke from each defendant's parent. The statements were made in response to startling circumstances whereby each defendant faced serious legal consequences.
    Defendant argues that too much time had elapsed for his father's statement to be considered spontaneous. Defendant cites State v. Tucker (COA01-278), an unpublished opinion filed by this Court on 2 April 2002,   (See footnote 1)  where the defendant's statement in question was made after he was arrested and taken to the police station. The statement came after the officers had already searched the defendant's vehicle, waited for a tow truck to appear, and had taken defendant to the police station. In the case before us, the statement in question was made by defendant's father, not defendant. The statement was made close in time to when defendant's father first saw defendant in the hospital, injured and facing criminal liability. For the foregoing reasons, this assignment of error is without merit.
    N.C.R. App. P. 28(b)(6) provides that "[a]ssignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned." Accordingly, defendant's remaining assignments of error are deemed abandoned.    Affirmed.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    "An unpublished decision of the North Carolina Court of Appeals is not controlling legal authority. Accordingly, citation of unpublished opinions in briefs, memoranda, and oral arguments in the trial and appellate divisions is disfavored, except for the purpose of establishing claim preclusion, issue preclusion, or the law of the case." N.C.R. App. P. 30(e)(3).

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