An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-1713


Filed: 4 October 2005

                                    Gaston County
v .                                 Nos. 02CRS66696,

    Appeal by defendant from judgments entered 25 June 2004 by Judge Yvonne Mims Evans in Gaston County Superior Court. Heard in the Court of Appeals 19 September 2005.

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

    William D. Auman for defendant-appellant.

    HUNTER, Judge.

    Defendant appeals his 25 June 2004 conviction for second degree murder, driving while license revoked, reckless driving, and driving while impaired. For the reasons stated herein, we find no error.
    The State's evidence tended to show the following: On 5 October 2002, defendant and his girlfriend, Susan Neville (“Neville”), went to Donald and Rebecca Franz's house. Defendant drank six or eight beers from about 2:30 p.m. to about 7:00 p.m. while at the Franz residence. Around 7:30 p.m., defendant and Neville left the Franz residence to go to defendant's home. Defendant drove Neville's Lincoln Continental car east on Highway N.C. 279, a two lane highway divided by double yellow lines.    Shortly after 8:00 p.m., defendant lost control of the vehicle on N.C. 279 slightly west of Pruitts Chapel Road. The vehicle slid onto the westbound lane, slid back onto the eastbound lane, fell off the shoulder into an embankment, flipped several times, and landed on its roof. The car created 347 feet of “yaw” marks that extended from the eastbound lane into the westbound lane, back into the eastbound lane, and finally on to the area of the shoulder. North Carolina State Troopers T. W. Humphries (“Trooper Humphries”) and H. L. Miller, Jr. (“Trooper Miller”) testified that the “yaw” marks, unlike skid marks, are made when a vehicle is not braking.
    Neville died at the scene. Defendant suffered injuries, including cuts to his face and other parts of his body. In a statement to Trooper Miller, defendant claimed that he lost control of the vehicle because a black dog ran in front of him as they traveled at about forty-five m.p.h. in the fifty-five m.p.h. zone. An investigation, however, indicated the car was going about 100 m.p.h in the fifty-five m.p.h. zone. At the scene, Trooper Miller noticed “a strong odor of alcohol” coming from defendant's breath and asked him to take an Alco-sensor test. Defendant refused. The EMS subsequently transported defendant to a hospital.
    At the hospital, Trooper Miller observed defendant's slurred speech and believed defendant “consume[d] a sufficient quantity” of alcohol “to appreciably impair both his mental and physical faculties.” In turn, Trooper Miller requested defendant submit to a blood test to determine his blood alcohol concentration. Defendant refused again, but Trooper Humphries obtained a searchwarrant to draw blood from defendant. Hospital personnel drew blood from defendant at 12:05 a.m. on 6 October 2002, and the analysis of the blood found a blood alcohol concentration of “0.20 grams of alcohol per 100 milliliters of whole blood.”
    The State introduced evidence which showed defendant's driving license was suspended and that the North Carolina Department of Motor Vehicles had sent eight letters to defendant reminding defendant that his license was revoked. The State also showed that defendant received at least two prior convictions of driving with a suspended license and at least one prior conviction of the following offenses: careless driving, driving under the influence of an impairing substance, driving with no insurance, driving while impaired, second degree burglary, and assault on a female. Furthermore, at the time of trial, defendant had charges pending for two driving while impaired offenses from 2001, at least one driving while license revoked charge, and one having a fictitious registration plate charge.
    Defendant testified on his own behalf. Defendant admitted to driving numerous times with a revoked license and to being convicted of “[t]wo DUI's[,] three driving while suspended or license revoked[,]” and an assault on a female. Defendant also admitted Neville died as a result of his actions.
    Defendant pled guilty to the driving while impaired and driving while license revoked charges. A jury found defendant guilty for the second degree murder and reckless driving charges. The trial court sentenced defendant to a minimum term of 192 monthsand a maximum term of 240 months for the second degree murder, driving while license revoked, and reckless driving convictions, and twenty-four months for the driving while impaired conviction. The driving while impaired sentence runs concurrently with the second degree murder, driving while license revoked, and reckless driving sentence. Defendant appeals.
    Defendant first contends the trial court erred by denying defendant's motion to dismiss all of the charges due to insufficient evidence. At trial, defendant moved to dismiss all of the charges at the close of the State's evidence. The trial court denied the motion. At the close of all evidence, however, defendant moved to dismiss only the second degree murder charge. Therefore, defendant can challenge on appeal the sufficiency of the evidence for only the second degree murder charge. See N.C.R. App. P. 10(b)(3). Defendant argues there was no substantial evidence presented at trial to support the malice element of the second degree murder conviction. We disagree.
    “In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference that may be drawn from the evidence.” State v. Locklear, 159 N.C. App. 588, 591, 583 S.E.2d 726, 728-29 (2003), disc. review denied, 358 N.C. 157, 593 S.E.2d 394, per curiam aff'd, 359 N.C. 63, 602 S.E.2d 359 (2004).
            [The] standard of review on a motion to dismiss based on insufficiency of the evidence is the substantial evidence test. The substantial evidence test requires adetermination that there is substantial evidence (1) of each essential element of the offense charged, and (2) that defendant is the perpetrator of the offense.

State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d 597, 602 (1993). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).
        [C]ontradictions and discrepancies do not warrant dismissal of the case -- they are for the jury to resolve. The [C]ourt is to consider all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State. The defendant's evidence, unless favorable to the State, is not to be taken into consideration. However, when not in conflict with the State's evidence, it may be used to explain or clarify the evidence offered by the State.

State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982) (citations omitted). “The test of the sufficiency of the evidence to withstand the motion to dismiss is the same whether the evidence is direct, circumstantial[,] or both.” Id. at 68, 296 S.E.2d at 653.
    “Second-degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation.” State v. McBride, 109 N.C. App. 64, 67, 425 S.E.2d 731, 733 (1993); see also N.C. Gen. Stat. § 14-17 (2003). There are at least three kinds of malice: (1) “express hatred, ill-will or spite”; (2) “an act which is inherently dangerous to human life . . . done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief”; and (3) a “'condition of mind which prompts a person to take the life ofanother intentionally without just cause, excuse, or justification.'” State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982) (citations omitted). When a second degree murder charge is “based upon impaired driving, [this Court] focus[es] on the second form of malice.” State v. Gray, 137 N.C. App. 345, 348, 528 S.E.2d 46, 49 (2000).
    To satisfy the second kind of malice, malice is inferred from a reckless act. See State v. McDonald, 151 N.C. App. 236, 243, 565 S.E.2d 273, 277, appeal dismissed and disc. review denied, 356 N.C. 310, 570 S.E.2d 892 (2002). To prove malice with regard to the act of driving, “[i]t is necessary for the State to prove only 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[.]” Locklear, 159 N.C. App. at 592, 583 S.E.2d at 729. “[P]ending charges as well as prior convictions are admissible under [N.C.R. Evid.] 404(b) as evidence of malice to support a second degree murder charge.” State v. McAllister, 138 N.C. App. 252, 259, 530 S.E.2d 859, 864, appeal dismissed, 352 N.C. 681, 545 S.E.2d 724 (2000); see also State v. Gray, 137 N.C. App. at 349, 528 S.E.2d at 49. A “prior driving while impaired arrest and conviction should have alerted [defendant] to the hazards of driving while impaired.” Locklear, 159 N.C. App. at 596, 583 S.E.2d at 731. Additionally, “any 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 mayfind themselves in the automobile's path.” State v. McBride, 118 N.C. App. 316, 319-20, 454 S.E.2d 840, 842 (1995).
    In Locklear, this Court held that there was “substantial evidence . . . from which the jury could find malice,” where the trial court found that the defendant was “driving while impaired with an alcohol concentration of 0.08” and had a “prior driving while impaired conviction.” Locklear, 159 N.C. App. at 592, 583 S.E.2d at 729. Furthermore, this Court concluded in Vassey that the facts “demonstrated the malice necessary for conviction of second-degree murder,” where a vehicle driven by a defendant “skidded into the oncoming lane of traffic and onto the shoulder of the road, where it collided with a mailbox and crashed into [a] ditch.” State v. Vassey, 154 N.C. App. 384, 391-92, 572 S.E.2d 248, 253 (2002), disc. review denied, 356 N.C. 692, 579 S.E.2d 96, cert. denied, 357 N.C. 469, 587 S.E.2d 339 (2003), disc. review dismissed, ___ N.C. ___, 614 S.E.2d 291 (2005). This Court noted that the defendant in Vassey “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.” Id.
    Similar to Locklear and Vassey, defendant was found to be driving while impaired and had a prior driving while impaired conviction. Defendant, here, had a blood alcohol concentration of 0.2 grams and at least one driving under the influence of an impairing substance prior conviction, in addition to the drivingwhile impaired prior conviction. Moreover, defendant had at least one driving while license revoked and two driving while impaired charges pending at the time of trial. Furthermore, defendant made a deliberate decision to drive despite being impaired and having a revoked license, multiple prior convictions of driving with a suspended license, and prior convictions for driving under the influence of an impairing substance and driving while impaired. Therefore, there is substantial evidence to support a finding of guilt for all charges. Hence, we conclude the trial court did not commit error by denying defendant's motion to dismiss all of the charges due to insufficient evidence. Accordingly, this assignment of error is without merit.
    Defendant also contends his sentences “could be considered cruel and unusual punishment in violation of the 8th Amendment to the U.S. Constitution” and N.C. Const. art. I, § 27. Defendant argues that “his actions in the matter at bar do not support his sentence of 192 to 240 months of incarceration” because his actions were not intentional. We disagree.
    We first note that defendant has not properly preserved this issue for appellate review as “[i]t is well settled that an error, even one of constitutional magnitude, that defendant does not bring to the trial court's attention is waived and will not be considered on appeal.” State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39 (2002), cert. denied, 537 U.S. 1117, 154 L. Ed. 2d 795 (2003). Even assuming defendant had properly preserved this issue for consideration, we conclude defendant's sentence was not grosslydisproportionate to the offense committed since “[o]nly in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment.” State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983). Here, defendant was convicted of second degree murder under N.C. Gen. Stat. § 14-17, and our General Assembly has chosen to punish this serious offense as a Class B2 felony, N.C. Gen. Stat. § 14-17. It was within the trial court's discretion to impose a term of 192 to 240 months imprisonment, which is within the presumptive range for the Class B2 felon. See N.C. Gen. Stat. § 15A-1340.17 (2003). Accordingly, this assignment of error is overruled.
    No error.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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