An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-19

NORTH CAROLINA COURT OF APPEALS

Filed: 15 November 2005

STATE OF NORTH CAROLINA

    v.                        Gaston County
                            Nos. 02 CRS 70067
BOBBY EUGENE HELMS                    02 CRS 70069
                                02 CRS 70093

    Appeal by defendant from judgments entered 23 July 2004 by Judge F. Donald Bridges in Gaston County Superior Court. Heard in the Court of Appeals 10 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Allison A. Pluchos, for the State.

    Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant.

    TYSON, Judge.

    Bobby Eugene Helms (“defendant”) appeals judgments entered after a jury found him to be guilty of second degree murder, assault with a deadly weapon inflicting serious injury, and felonious hit and run. We find no error.

I. Background
    The State's evidence tended to show that on the afternoon of 10 December 2002, Carolyn Whitesides Beachum (“Beachum”) and Mildred Joan Padron (“Padron”) were inside Beachum's white Plymouth Horizon vehicle traveling westbound on Franklin Boulevard in Gastonia when a cream-colored Mercedes Benz driven by defendant hit Beachum's vehicle in the rear-end. As a result of the collision,Beachum lost control of her vehicle, crossed into an oncoming lane of traffic, and struck another car. Padron was fatally injured in the accident. Beachum suffered lacerations on her liver and spleen, internal bleeding, a broken collarbone, and severe bruising on her shoulder, chest, and back. She was placed on a ventilator, required several blood transfusions, and remained hospitalized for twelve days.
    Maurice Bush (“Bush”) testified that on 10 December 2002, he pulled behind a cream-colored Mercedes at a stop light at the intersection of Webb Street and West Franklin Boulevard. Turning onto West Franklin, he “noticed that the Mercedes began to weave in and out of the center lane.” Without using a turn signal, the Mercedes “moved into the far left lane first and then he moved back into the center lane and then into the far right lane.” As Bush continued down West Franklin Boulevard, he observed that “the Mercedes got into the far left lane and he increased his speed and . . . he rear[-]ended a little white car[.]” The white car “veered into the eastbound lane of Franklin Boulevard and then it was broadsided by an approaching car.” After hitting the car, the Mercedes returned to the center lane and continued down West Franklin “at a high rate of speed.”
    A second eyewitness, Robert Carroll (“Carroll”), testified he was traveling on West Franklin Boulevard when he “noticed a cream colored Mercedes beside me . . . which . . . was swerving and getting close to my vehicle so I backed off a little bit.” Carroll telephoned the police department to see if a patrol car was locatedin the vicinity. After completing the call, Carroll saw the Mercedes strike a white car, which then “went across the lane into head on traffic.” The Mercedes “accelerated speed” and continued down West Franklin Boulevard. Carroll called the dispatcher to report the accident. He then followed the Mercedes as it entered a parking lot and drove “fast” through the drive-through lane of a drug store before turning onto Myrtle School Road. Carroll saw the Mercedes turn onto a dirt road behind a restaurant and then turn left onto Sunset Road. Carroll stopped his vehicle and guided police to his location by telephone.
     Gastonia Police Officer A.R. Wurster (“Officer Wurter”) made contact with Carroll on Sunset Road. Proceeding onto Saturn Street, he saw defendant's Mercedes parked “perpendicular in the road” as though attempting to execute a three-point turn. Officer Wurster approached the Mercedes on foot and found defendant seated in the driver's seat with the engine running. As defendant was exiting the car, Officer Wurster noticed an “extreme odor of alcohol coming from his person” and saw that his eyes were “glassy” and “bloodshot[.]” When Officer Wurster asked defendant what had happened, he responded, “[S]he pulled out in front of me.” Defendant said he “had two beers” and left the accident scene because “I was scared.” Officer Wurster observed that defendant's speech was slurred and “that he was swaying and unsteady on his feet.” After arresting defendant for driving while impaired, Officer Wurster asked Officer C.F. McAuley (“Officer McAuley”) to transport defendant to the hospital for testing. Officer McAuleytestified that defendant “appeared unsteady on his feet[,]” smelled strongly of alcohol, and had “slurred and mumbled” speech. After asking what would happen to his car, defendant repeated to Officer McAuley that “she pulled out in front of me.” At the hospital, defendant told another officer, “I quit drinking, but I decided to have a few today because I found out that I have Hepatitis C.” As Officer McAuley was advising him of his rights regarding the submission of a blood sample for chemical analysis, defendant urinated on himself. Defendant gave a blood sample at 5:00 p.m.
    State Bureau of Investigation Forensic Chemist Aaron Joncich testified that defendant's blood sample revealed a blood alcohol level of .13 percent.
    The State introduced records from the Division of Motor Vehicles reflecting that defendant's driver's license was suspended indefinitely on 17 February 2002. The records also showed defendant's conviction for driving while impaired in Mecklenburg County in 1990.
    At trial, defendant entered a stipulation that he was granted pre-trial release on 10 December 2002, failed to appear at a court proceeding on 3 February 2003, and surrendered himself to a bail bondsman on 5 March 2003. He offered no other evidence.
    On 23 July 2004, a jury found defendant to be guilty of second degree murder, assault with a deadly weapon inflicting serious injury, felonious hit and run, driving while impaired, and driving while license revoked. The trial court entered judgments upon defendant's convictions for second degree murder, assault, andfelonious hit and run. The court arrested judgment upon his remaining convictions. Defendant appeals.
II. Issues
    The issues on appeal are whether the trial court erred by: (1) expressing an opinion to the jury as to the type of malice applicable to the second degree murder charge; (2) admitting testimony from Beachum's son regarding injuries suffered by Beachum as a result of the accident; and (3) overruling defendant's objection to the prosecutor's closing argument that appealed to the passions and sympathies of the jury.
III. Jury Instruction
    Defendant first claims the trial court erred in instructing the jury on malice, an essential element of the offense of second degree murder. The trial court instructed the jury in part as follows:
        [O]ur courts have defined malice and have declared that there are three kinds of malice under the law of homicide . . . [O]ne kind of malice, connotes a possible concept of express hatred, ill will, or spite. This is sometimes called actual, express, or particular malice. A second 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 without regard to human life and social duty, deliberately bent on mischief. Third kind of malice is 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.

        . . . .

        [W]ith regard to a person who is charged with second-degree murder based upon a theory of driving while impaired, the relevant kind ofmalice would be that second kind of malice that I've spoken with you about . . . .

(Emphasis supplied). Defendant avers that the trial judge improperly expressed his opinion to the jury by identifying “the relevant kind of malice” that applied in a case where a defendant “is charged with second-degree murder based upon a theory of driving while impaired[.]” He contends that this expression of opinion by the court violated N.C. Gen. Stat. § 15A-1222 and constituted structural and constitutional error.
    Defendant did not object to the portion of the charge which is the subject of his appeal. To the extent he seeks to raise a constitutional claim for the first time on appeal, his failure to present this issue to the trial court normally waives appellate review. State v. Williams, 355 N.C. 501, 528, 565 S.E.2d 609, 625 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003). Because “[a] defendant's failure to object to alleged expressions of opinion by the trial court in violation of . . . statute[] does not preclude his raising the issue on appeal[,]” we shall review the merits of his statutory claim. State v. Young, 324 N.C. 489, 494, 380 S.E.2d 94, 97 (1989) (citing State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985)).
    “In instructing the jury, the judge shall not express an opinion as to whether or not a fact has been proved and shall not be required to state, summarize or recapitulate the evidence, or to explain the application of the law to the evidence.” N.C. Gen. Stat. § 15A-1232 (2003); accord N.C. Gen. Stat. § 15A-1222 (2003). However, “the judge is required to declare and explain the lawarising on the evidence.” State v. Duboise, 279 N.C. 73, 83, 181 S.E.2d 393, 399 (1971). A trial court thus does not err by tailoring its instructions to the specific evidence adduced by the parties at trial. See State v. Williams, 315 N.C. 310, 323 n.1, 338 S.E.2d 75, 83 n.1 (1986); State v. Robinson, 40 N.C. App. 514, 520, 253 S.E.2d 311, 315 (1979).
    Having carefully reviewed the trial court's instruction on malice in the context of the entire charge, we conclude the court neither vouched for or intimated a belief in the State's evidence nor did the court express or imply any opinion as to whether the State's evidence, if found by the jury to be true, demonstrated malice. The conclusion of the court's instruction on second degree murder made clear the jury's role as factfinder:
        So then if you find from the evidence in this case beyond a reasonable doubt that on or about the alleged date the defendant drove a vehicle on a public street or highway, and that when he did so he was under the influence of an impairing substance . . . and that the defendant acted intentionally and so recklessly and wantonly as to manifest a mind utterly without regard to human life and social duty and deliberately bent on mischief, and that this conduct constituted malice, and that such conduct proximately caused the death of Miss Padron, then it would be your duty to return a verdict finding the defendant guilty of second degree murder.

(Emphasis supplied).
    In addition to instructing the jury on the lesser included offenses of involuntary manslaughter and misdemeanor death by vehicle, the court expressly charged the jury that involuntary manslaughter was the applicable offense if it found that defendanthad proximately caused Padron's death by driving his car “while impaired and without malice but in a culpably negligent manner[.]” (Emphasis supplied). Rather than offering an opinion on a contested issue of fact, the trial court properly explained how the law applied to the facts before the jury, if the jury found no evidence of personal animus toward the victim or of a specific intent to kill. By eliminating from the jury's consideration two of the three forms of malice described in the general charge, the challenged instruction served to insulate defendant from a guilty verdict based upon a type of malice not supported by the evidence. Cf. Duboise, 279 N.C. at 83, 181 S.E.2d at 399 (“It is not an expression of opinion, but rather the duty of the trial judge, where the evidence so warrants, to inform the jury that manslaughter does not arise on the evidence in the case.”). Accordingly, we overrule this assignment of error.
    We note that the definition of “depraved heart” malice used by the court has been repeatedly endorsed by our appellate courts. See State v. Rich, 351 N.C. 386, 400, 527 S.E.2d 299, 307 (2000); State v. Fuller, 138 N.C. App. 481, 484, 531 S.E.2d 861, 864, disc. rev. denied, 353 N.C. 271, 546 S.E.2d 120 (2000).
IV. Lay Testimony
    Defendant next claims the trial court committed plain error by allowing Beachum's son to offer lay testimony that Beachum experienced pinched nerves in her neck and strokes following the accident. Defendant notes that the State bore the burden of proving that he inflicted a “serious injury” upon Beachum, and thatthe record contains no evidence that her son possessed the requisite expertise to render medical diagnosis based upon personal knowledge, rather than hearsay.
    In order to establish reversible error on appeal, “[t]he burden of showing prejudice is upon the defendant.” State v. Myers, 309 N.C. 78, 88, 305 S.E.2d 506, 512 (1983). In the instant case, the State adduced testimony from Dr. Richard Keith Hewlitt (“Dr. Hewlitt”), an expert in trauma medicine who examined Beachum in the emergency room of Gaston Memorial Hospital immediately following the accident. Dr. Hewlitt testified that Beachum sustained severe bruising to her breast and anterior chest wall, a broken clavicle, lacerations of her spleen and liver, and injuries to her kidney and pancreas. He further averred that he arranged for Beachum to be transported to Carolina's Medical Center, because her life was “in serious danger[.]” Dr. Hewlitt noted that surgery at Carolina's Medical Center revealed a leak caused by the injury to Beachum's pancreas, which he characterized as “difficult to correct” and having “the potential for long term problems.” In light of this unrebutted depiction of the extent of Beachum's injuries, any error related to the testimony of Beachum's son was harmless. See N.C. Gen. Stat. § 15A-1443(a) (2003) (requiring a “reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial”). Presuming, without finding, error, defendant has failed to show any prejudice by the testimony of Beachum's son, where Dr. Hewlitt's testimony was uncontradicted.
V. State's Closing Argument
    Defendant next assigns error to two aspects of the prosecutor's closing argument. He first faults the trial court for allowing the prosecutor to display an overhead slide to the jury which included “the word malice . . . boldly emblazoned on the screen.” Defendant did not object to the State's use of the overhead and we find no evidence in the record of gross impropriety requiring ex mero motu intervention by the trial court. See State v. Billings, 348 N.C. 169, 184, 500 S.E.2d 423, 432, cert. denied, 525 U.S. 1005, 142 L. Ed. 2d 431 (1998). The State was free to call attention to malice as a contested element of the murder charge and to argue that defendant's actions, as depicted by the evidence, were malicious. Moreover, there is nothing inherently improper about the use of “'large, overhead slides' by the prosecution[.]” Id. at 185, 500 S.E.2d at 433.
    Defendant further avers that the court erred in overruling his objection to the prosecutor's statement, in listing the charges against defendant for the jury, that it was “just by the grace of God [that Beachum is] not dead, too, and you don't have two second- degree murder charges.” Defendant suggests that the prosecutor's remark implied that he “already received lenient treatment” and further “depreciated the gravity of the case and lessened the jury's sense of responsibility.” Because defendant raised a timely objection to the prosecutor's statement, we review the trial court's ruling for abuse of discretion. See State v. Augustine, 359 N.C. 709, 734, 616 S.E.2d 515, 533 (2005). In conducting ourreview, we must determine whether the prosecutor's remarks were improper, and if so, whether they “'were of such a magnitude that their inclusion prejudiced defendant, and thus should have been excluded by the trial court.'” Id. (quoting State v. Jones, 355 N.C. 117, 131, 558 S.E.2d 103, 106 (2002)). The trial court's failure to sustain defendant's objection will be reversed “'only upon a showing that its ruling could not have been the result of a reasoned decision.'” Id. (quoting State v. Burrus, 344 N.C. 79, 90, 472 S.E.2d 867, 875 (1996)).
    During closing arguments, counsel is permitted to argue both the facts in evidence and any reasonable inference drawn therefrom. State v. Brown, 39 N.C. App. 548, 553, 251 S.E.2d 706, 710, cert. denied, 297 N.C. 302, 254 S.E.2d 923 (1979). “[C]ounsel must be allowed wide latitude in the argument of hotly contested cases.” Id. (citing State v. Seipel, 252 N.C. 335, 113 S.E.2d 432 (1960)). This latitude does not allow a prosecutor to “'travel outside of the record' or inject into his argument facts of his own knowledge or other facts not included in the evidence.” Id. at 553-54, 251 S.E.2d at 711 (quoting State v. Phillips, 240 N.C. 516, 82 S.E.2d 762 (1954)); see also N.C. Gen. Stat. § 15A-1230 (2003). Nor may he resort to “statements of personal opinion, personal conclusions, [or] name-calling[.]” Jones, 355 N.C. at 131, 558 S.E.2d at 106.
    We find nothing improper about the prosecutor's observation that defendant could very well have been facing a second charge of second degree murder if Beachum had not survived the accident. Defendant was charged with second degree murder for Padron's death. The evidence showed that Beachum was in the car with Padron. Moreover, Dr. Hewlitt testified that Beachum's life was “in serious danger” when she arrived at the emergency room, due to the internal injuries and bleeding she sustained in the collisions. Beachum's son testified that she was hospitalized for twelve days and that “[i]t was two or three days that they didn't know whether she was going to survive or not.” The evidence supports both a finding that the accident placed Beachum at real risk of death and a reasonable inference that defendant would have been charged with a second count of second degree murder if Beachum had not survived. Defendant's assignment of error is overruled.
VI. Conclusion
    The trial court did not err in instructing the jury on the charge of malice. In light of the unrebutted testimony by Dr. Hewlitt on Beachum's injuries, any error related to the testimony of Beachum's son was not prejudicial. The trial court did not err in allowing the prosecutor's closing arguments and defendant has not shown any abuse of discretion by the trial court. Defendant received a fair trial free from the errors he assigned and argued.
    No error.
    Judges MCCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***