STATE OF NORTH CAROLINA
Gaston County
v
.
Nos. 02CRS66696,
66716-17
MICHAEL E. VERRETT
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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