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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. CALVIN L. BREWINGTON, JR., Defendant
NO. COA 06-56
Filed: 17 October 2006
1. Accomplices and Accessories_accessory after the fact to second-degree
There was sufficient evidence of accessory after the fact to second-degree murder where
there was testimony of the principal's guilt, circumstantial evidence linking the principal to the
shooting, the principal's own guilty plea, a telephone call in which defendant learned that the
principal had attacked the victim, and defendant's offer of two thousand dollars for the use of a
car to leave town with the principal, in which they did in fact travel as far as Mississippi.
2. Accomplices and Accessories_instruction on accessory to second-degree murder as
lesser included offense_evidence supporting first or second-degree murder_no error
The trial court did not commit plain error by instructing the jury on the lesser-included
offense of accessory after the fact to second-degree murder where the evidence of the shooting
could have supported either first or second-degree murder.
3. Accomplices and Accessories_instruction on accessory to manslaughter as lesser
included offense refused_evidence of manslaughter not sufficient
The trial court did not err by refusing to instruct on the lesser included offense of
accessory after the fact to voluntary manslaughter where there was no evidence that the principal
acted in self-defense or that the shooting was voluntary manslaughter.
Appeal by defendant from judgment entered 22 August 2005 by
Judge Ripley E. Rand in Superior Court, Cumberland County. Heard
in the Court of Appeals 21 September 2006.
Attorney General Roy Cooper, by Solicitor General Christopher
G. Browning, Jr., for the State.
Geoffrey W. Hosford, for defendant-appellant.
To convict a defendant of being an accessory after the fact,
the State must prove that the defendant, with knowledge that the
principal committed the felony, gave the principal personalassistance in escaping detection, arrest, or punishment.
(See footnote 1)
Defendant contends that the State failed to present substantial
evidence to prove the crime of accessory after the fact to second-
degree murder. Because the evidence supported a finding that
Defendant personally assisted the principal in avoiding detection
and arrest, we uphold Defendant's conviction.
Defendant Calvin L. Brewington, Jr. was indicted as an
accessory after the fact to the first-degree murder of Rogerick
Antwon Hall by Kelly Durant Rudisill. Before Defendant's trial,
Rudisill pled guilty to the second-degree murder of Hall. At
Defendant's trial, the State presented evidence that Rudisill shot
and killed Hall on the evening of 22 February 2004; Defendant also
conceded in his brief to this Court that Rudisill killed Hall.
Marvin Sutton, a friend of Defendant, testified at trial that
he was with Defendant on the evening of 22 February 2004, when the
Defendant drove Sutton in his purple Nissan Altima to purchase
marijuana. According to Sutton, while the two were in the car,
Defendant received a call from an individual Sutton believed to be
Defendant's brother, Thomas Brewington. During the call, Defendant
reportedly said something along the lines of, We got him, and
that Rudisill had gotten his stripes. Sutton testified that he
believed the conversation referred to Rudisill's beating up Hall;
later evidence showed that the attack was in revenge for Hall's
robbery of Rudisill, Thomas Brewington, and two other friendsseveral months earlier.
Following the phone call, Defendant and Sutton drove to a
nearby neighborhood, where they saw Hall lying in the middle of the
street and realized he had been shot. They left without getting
out of the car, and Defendant made a phone call, upset, complaining
that they had not known that Hall had been shot and that they
should not have gone to the neighborhood. After leaving,
Defendant, Sutton, Thomas Brewington, and Rudisill met at
Hall died from his injuries later that night at the hospital.
Following the shooting, the police started looking for a purple
Nissan Altima and a black Suzuki Sidekick seen by witnesses in the
neighborhood. Defendant drove a purple Nissan Altima, and his
sister owned a black Suzuki Sidekick, which Thomas Brewington was
seen driving on the night of the shooting. Police later found a
bullet hole from the gas tank area of the Suzuki, and a projectile
fragment removed from the hole was found to be consistent with a
nine-millimeter bullet. The State presented further evidence that
Hall was shot three times in the back and once in the leg, and that
the two projectiles removed from his body were consistent with a
nine-millimeter bullet. Eight spent shell casings from a nine-
millimeter handgun were found at the scene, in addition to a .22
caliber handgun removed from Hall's jacket pocket.
Two days after the shooting, the police released photographs
of Rudisill, Thomas Brewington, and Sutton to the local media. The
same day, Defendant approached a friend, Decarlos Wright, andoffered to pay him two thousand dollars to use a car for two days
in order to leave town. The two then picked up Rudisill and Thomas
Brewington, who had bags packed for the trip , and headed out of
town on the highway ; Wright testified that he was not informed as
to the ultimate destination for the trip but that Rudisill stated
in the car that he wasn't going to come back. Defendant,
Rudisill, and Wright were subsequently arrested after being stopped
by police in Mississippi; Thomas Brewington was later apprehended
Defendant was charged with being an accessory after the fact
to first-degree murder for the assistance he personally provided to
Rudisill in escaping detection and arrest. He was then convicted
of being an accessory after the fact to second-degree murder; after
entering judgment, the trial court sentenced Defendant to prison
for a term of 77 to 102 months. In his appeal from that judgment,
Defendant contends (I) the trial court erred in denying his motion
to dismiss the charge for failure to present substantial evidence;
(II) the trial court committed plain error by instructing the jury
as to the lesser offense of accessory after the fact to second-
degree murder; and, (III) in the alternative, the trial court erred
by refusing to instruct the jury as to the lesser-included offense
of accessory after the fact to voluntary manslaughter.
 When a defendant moves to dismiss a charge against him on
the ground of insufficiency of the evidence, the trial court must
determine whether there is substantial evidence of each essentialelement of the offense charged and of the defendant being the
perpetrator of the offense. State v. Garcia, 358 N.C. 382, 412,
597 S.E.2d 724, 746 (2004) (citation and quotations omitted), cert.
denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005); see also State v.
Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004), cert.
denied, 126 S. Ct. 47, 163 L. Ed. 2d 79 (2005); State v. Butler,
356 N.C. 141, 145, 567 S.E.2d 137, 139 (2002). Our Supreme Court
has defined substantial evidence as relevant evidence that a
reasonable person might accept as adequate, or would consider
necessary to support a particular conclusion. Garcia, 358 N.C. at
412, 597 S.E.2d at 746 (citations omitted).
In addition, [i]f there is substantial evidence _ whether
direct, circumstantial, or both - to support a finding that the
offense charged has been committed and that the defendant committed
it, the case is for the jury and the motion to dismiss should be
denied. Butler, 356 N.C. at 145, 567 S.E.2d at 140 (quoting State
v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)). In
considering a motion to dismiss by the defense, such evidence must
be taken in the light most favorable to the state . . . [which is]
entitled to all reasonable inferences that may be drawn from the
evidence. State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396,
Here, Defendant was convicted of being an accessory after the
fact to second-degree murder under sections 14-7 and 14-17 of the
North Carolina General Statutes. N.C. Gen. Stat. §§ 14-7, 14-17
(2005). To convict a defendant of being an accessory after thefact to second-degree murder, the State must prove the following:
(1) the felony has been committed by the principal; (2) the alleged
accessory gave personal assistance to that principal to aid in his
escaping detection, arrest, or punishment; and (3) the alleged
accessory knew the principal committed the felony. State v.
Jordan, 162 N.C. App. 308, 312, 590 S.E.2d 424, 427 (2004).
Second-degree murder is the unlawful killing of a human being with
malice but without premeditation or deliberation. State v.
Flowers, 347 N.C. 1, 29, 489 S.E.2d 391, 407 (1997), cert. denied,
522 U.S. 1135, 140 L. Ed. 2d 150 (1998). The intentional use of a
deadly weapon which causes death gives rise to an inference that
the killing was done with malice and is sufficient to establish
murder in the second degree. State v. Taylor, 155 N.C. App. 251,
266, 574 S.E.2d 58, 68 (2002), cert. denied, 357 N.C. 65, 579
S.E.2d 572 (2003). Furthermore, personal assistance in any manner
so as to aid a felon in escaping arrest or punishment is sufficient
to support a conviction as an accessory. State v. Williams, 17
N.C. App. 39, 42, 193 S.E.2d 452, 454 (1972), cert. denied, 282
N.C. 675, 194 S.E.2d 155 (1973).
Defendant contends that the State failed to present
substantial evidence that Rudisill committed the murder in the
second degree of Hall, or that Defendant provided substantial
assistance to Rudisill to avoid detection and arrest. However, a
review of the record reveals that the State offered testimony from
Marvin Sutton concerning Rudisill's guilt, circumstantial evidence
linking Rudisill to the vehicle used in the shooting, andRudisill's own guilty plea to the crime. Sutton further testified
concerning a phone call in which Defendant learned that Rudisill
had gotten his stripes by attacking Hall. Moreover, Decarlos
Wright testified that Defendant offered two thousand dollars for
the use of his car to leave town with Rudisill, and that they did,
in fact, travel as far south as Mississippi.
Taken in the light most favorable to the State, it was
reasonable for the jury to accept this evidence as adequate to
support its conclusion that Rudisill committed second-degree
murder, as well as that Defendant knew Rudisill had killed Hall and
subsequently assisted him in escaping detection and arrest. As
such, we find that the State offered substantial evidence of each
element of the charge of accessory after the fact to murder in the
second degree. We therefore affirm the trial court's denial of
Defendant's motion to dismiss the charge.
 Defendant next asserts that the trial court committed a
plain error, which requires him to show on appeal that the asserted
error: (1) is a fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done; (2) amounts to a denial of a fundamental right of the
accused; (3) has resulted in a miscarriage of justice or in the
denial to appellant of a fair trial; (4) seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings;
or, (5) was an instructional mistake that had a probable impact on
the jury's finding that the defendant was guilty. State v. Odom,307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983).
Defendant argues the trial court committed a plain error by
instructing the jury on the offense of accessory after the fact to
second-degree murder. Our Supreme Court has defined the test for
determining whether an instruction on second-degree murder is
required as follows:
The determinative factor is what the State's
evidence tends to prove. If the evidence is
sufficient to fully satisfy the State's burden
of proving each and every element of the
offense of murder in the first degree,
including premeditation and deliberation, and
there is no evidence to negate these elements
. . ., the trial judge should properly exclude
from jury consideration the possibility of a
conviction of second degree murder.
State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983),
overruled in part on other grounds, State v. Johnson, 317 N.C. 193,
344 S.E.2d 775 (1986). Thus, an instruction on the lesser-included
offense of second-degree murder is required _ and allowed _ only
where there is not direct, uncontradicted evidence of premeditation
and deliberation, such that murder in the first degree is the sole
possible verdict that could be supported. See also Hopper v.
Evans, 456 U.S. 605, 611, 72 L. Ed. 2d 367, 373 (1982) ([D]ue
process requires that a lesser included offense instruction be
given when the evidence warrants such an instruction. . . . The
jury's discretion is thus channeled so that it may convict a
defendant of any crime fairly supported by the evidence.); State
v. Arnold, 329 N.C. 128, 139, 404 S.E.2d 822, 829 (1991) (finding
error to have given instruction on second-degree murder because of
clear and overwhelming evidence of premeditation and deliberation). First-degree murder is the unlawful killing, with malice,
premeditation, and deliberation, of another human being. State v.
Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991). Premeditation
means that the defendant formed the specific intent to kill the
victim for some length of time, however short, before the actual
killing. State v. Myers, 299 N.C. 671, 677, 263 S.E.2d 768, 772
(1980). Deliberation means that the defendant carried out the
intent to kill in a cool state of blood, not under the influence
of a violent passion, suddenly aroused by lawful or just cause or
legal provocation. State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d
837, 842-43 (1984). Premeditation and deliberation may be proven
through circumstances and actions such as want of provocation by
the deceased, the conduct and statements of the defendant before
and after the killing, including threats, previous ill will between
the parties, or evidence that the killing was done in a brutal
manner. State v. Lane, 328 N.C. 598, 609, 403 S.E.2d 267, 274,
cert. denied, 502 U.S. 915, 116 L. Ed. 2d 261 (1991).
In the instant case, by Defendant's own admission, the State
did not present any evidence about what may have transpired between
Hall and Rudisill prior to the shooting. Although the physical
evidence, such as the four gunshot wounds to Rudisill, could have
supported a finding of premeditation and deliberation, Marvin
Sutton also testified that he thought Hall had been jumped, which
could support a reasonable inference that the attack had been
spontaneous. The State did not present overwhelming evidence of
first-degree murder such as to preclude an instruction on second-degree murder; rather, both due process and the evidence warranted
an instruction on both offenses given that the evidence could
support either conclusion.
We therefore hold that the trial court did not commit plain
error by instructing the jury on the lesser-included offense of
accessory after the fact to second-degree murder.
 In the alternative, Defendant contends that the trial
court committed reversible error by refusing to instruct the jury
on the lesser-included offense of accessory after the fact to
voluntary manslaughter. See State v. Lytton
, 319 N.C. 422, 426-27,
355 S.E.2d 485, 487 (1987) (if supported by the evidence, failure
to instruct the jury on a lesser-included offense is reversible
error). Defendant argues that if Rudisill did not act with
premeditation and deliberation in killing Hall, he instead acted in
imperfect self-defense such that the killing was voluntary
Voluntary manslaughter is the unlawful killing of a human
being without malice and without premeditation or deliberation.
State v. Wilkerson
, 295 N.C. 559, 577, 247 S.E.2d 905, 915 (1978).
In addition, [I]n order for an instruction on imperfect self-
defense to be required, the first two elements of perfect self-
defense must be shown to exist, State v. Wallace
, 309 N.C. 141,
149, 305 S.E.2d 548, 53 (1983), namely:
(1) it appeared to defendant and he believed
it to be necessary to kill the deceased in
order to save himself from death or great
bodily harm; and (2) defendant's belief was reasonable in that
the circumstances as they appeared to him at
the time were sufficient to create such a
belief in the mind of a person of ordinary
at 147, 305 S.E.2d at 552. When arguing self-defense, and in
the absence of any evidence contrary to the claim, a defendant must
either himself present evidence of self-defense or rely on such
evidence as may be present in the State's case. State v. Boone
299 N.C. 681, 687-88, 263 S.E.2d 758, 761 (1980).
To determine whether . . . evidence is sufficient for
submission of the lesser offense to the jury, [a court] must view
the evidence in the light most favorable to defendant. State v.
, 337 N.C. 371, 378, 446 S.E.2d 352, 357 (1994).
Nevertheless, [w]here there is evidence only of the greater
offense and no evidence which would support a verdict of the lesser
offense, then the trial court is not required to instruct the jury
on the lesser degrees of the crime charged. State v. Perry
N.C. App. 528, 529, 204 S.E.2d 916, 917 (1974).
Here, as in Perry
, Defendant argues that because a gun was
found in the deceased's pocket, the individual convicted for the
killing could have thought the deceased was going for the gun.
However, also as in Perry
, there was no evidence presented at trial
that the felon knew the deceased had a gun on his person or that
the deceased made a move to go to his pocket. Id.
evidence was presented at trial concerning Rudisill's possible
motive for killing Hall, that robbery occurred several months prior
to the killing and would in fact suggest premeditation rather than
self-defense. Moreover, neither the State nor the defense called
any eyewitnesses to describe the shooting. We therefore find that there was no evidence that Rudisill
acted in self-defense or that the shooting was voluntary
manslaughter. Accordingly, we hold that the trial court did not
commit error in refusing to instruct the jury on the lesser-
included offense of accessory after the fact to voluntary
Judges McGEE and McCULLOUGH concur.
State v. Duvall
, 50 N.C. App. 684, 275 S.E.2d 842, rev'd
on other grounds
, 304 N.C. 557, 284 S.E.2d 495 (1981).
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