An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-189


Filed: 21 February 2006


v .                             Scotland County
                                No. 03 CRS 51400

    Appeal by defendant from judgment entered 7 October 2004 by Judge B. Craig Ellis in Scotland County Superior Court. Heard in the Court of Appeals 12 October 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Jill Ledford Cheek, for the State.

    Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant-appellant.

    CALABRIA, Judge.

    Dexter Antonio Howell (“defendant”) appeals from judgment entered on a jury verdict finding him guilty of second-degree murder. We find no error.
    The evidence presented at trial showed the following. Defendant started dating Cristol Radford (“Radford”) around September of 2002, and as of December 2002, the couple were engaged to be married. Radford and defendant began living together in October 2002 and moved to the residence where the events at issue occurred in January 2003. On the morning of 14 April 2003, Radford returned from her night shift work, and defendant was not home. Around 6:00 p.m., Radford went to pick up Larry Pearson(“Pearson”), a man with whom Radford had a relationship in March 2002. Radford and Pearson purchased food and alcohol then went to the home Radford shared with defendant. According to Radford, she and Pearson entered the home, turned on the TV, kissed a few times, and fell asleep on the couch around 11:30 p.m.
    They were awakened when defendant returned and accused Radford of having sexual relations with Pearson. Defendant was accompanied by DeAngelo Terry (“Terry”) at the time defendant discovered Radford and Pearson. The testimony is conflicting about whether defendant and Pearson then walked outside, or whether defendant threw Pearson outside. Defendant said in his statement to police that, while he and Pearson were outside the home, defendant told Pearson he was engaged to Radford, and Pearson replied he did not care, so defendant hit him in the face. Radford testified that, after Pearson fell to the ground, defendant kicked him in the ribs. Radford then told defendant that she had not had sexual relations with Pearson, and defendant calmed down.     
    After defendant calmed down, he said that he would put Pearson in his car and drop him off in front of Pearson's girlfriend's house, but Radford urged him not to drop Pearson off. As the argument ensued, Terry informed defendant, “Hey, [Pearson is] leaving.” Defendant “looked out and saw Pearson going behind the house across the street.” Defendant found Pearson “lying a couple of yards behind the house” and “dragged him to the road so someone would see him and call the police.” Terry had called Otis Harrell (“Harrell”) and Shawn Allen (“Allen”) to come pick up Pearson. Radford saw Pearson lying near the street, and she asked defendant about Pearson's condition. Defendant replied that Pearson was fine and that he had passed out.     Between 12:30 and 1 o'clock in the morning, Harrell and Allen arrived. Harrell testified he noticed that Pearson was “not breathing right,” but he did not call the police because he heard defendant say the police were on their way. Allen testified that when he arrived he saw blood on the victim's shirt but he did not observe any injuries to the victim. Allen did not testify who said the police were on their way, but upon hearing the police had been called, he said, “Let's go. The police [are] supposed to be on their way.” As Terry, Harrell, and Allen were leaving, Harrell said there was discussion about putting Pearson in Allen's car and taking him for help; however, Allen “didn't want to do it because that was not his car.” Allen testified, however, that he did not remember any such discussion. Radford testified that, when the three left, she trusted that Pearson would be alright, and Allen also testified that he had no ill will toward Pearson and would have helped him, under certain circumstances, if he had believed it to be a life-threatening situation.
    Defendant also said in his statement a man next door pulled up in a truck. Defendant said he was going to ask the man to put Pearson in the bed of his truck and take him to the hospital, but Radford asked defendant not to make the request. Defendant subsequently left to go to the hospital to get his swollen hand examined. Defendant checked on Pearson on his way to the hospital, and he also checked on Pearson when he returned to his home atabout 3:30 a.m. Defendant stated that he found Pearson sleeping and snoring when he checked on him. Defendant and Radford subsequently went to bed.
    The morning of 15 April Radford awoke and noticed an ambulance and two police cars in the area where Pearson was lying. Radford woke defendant, and defendant told her the ambulance would just take Pearson to the hospital and then Pearson would go home. The officers subsequently asked Radford and defendant to accompany them to the police station. When Radford told defendant about the officers' request, defendant asked Radford to tell the police that when defendant had gotten home Pearson had already been assaulted.     Pearson was taken to the hospital. Jerlean Bradley (“Bradley”), Pearson's mother, testified that the doctors told Pearson's family that he was brain-dead, and the family decided to remove life support. An autopsy conducted by the State's Chief Medical Examiner, John D. Butts (“Butts”), revealed that Pearson's body was scraped and bruised and that his jaw was broken in two places. The right side of Pearson's brain had swelled and a large blood clot, known as a “subdural hematoma,” had developed, resulting in brain herniation. Butts testified that the hemorrhages in Pearson's brain resulted from the swelling and the subdural hematoma rather than occurring directly upon the impact from defendant's blows. The autopsy also revealed that Pearson's liver was larger than usual, and Butts testified that “[o]ne of the more common causes of that type of change in the liver . . . isheavy alcohol abuse.” Butts also noted that “alcoholics, medically, are more prone to subdural hematomas.”
    Edward Friedlander (“Friedlander”) served as defendant's medical expert. Friedlander testified that Pearson's liver condition was most likely a sign of alcohol abuse and that a subdural hematoma was “just waiting to happen.” When Friedlander was asked whether Pearson would have shown “any medical signs of fatal injury, to the average person,” Friedlander responded, “you think . . . they'll be fine,” and “it would not have been obvious that this man was dying.” He also testified that a subdural hematoma can result from activities such as riding a roller coaster, break dancing, impact to the head, fistfights, and in sports like boxing and football.
    Based on this evidence, the trial court charged the jury on involuntary manslaughter, voluntary manslaughter, and second- degree murder. The jury found defendant guilty of second-degree murder, and the trial court sentenced defendant to a minimum of 220 months to a maximum of 273 months in the North Carolina Department of Correction. Defendant appeals.
I. Motions to Dismiss
    In his first assignment of error, defendant argues that the trial court erred in denying his motions to dismiss. “When considering a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences.” State v. Morgan, 359 N.C. 131, 161, 604 S.E.2d 886, 904 (2004) (citations omitted). “Ifsubstantial evidence exists to support each essential element of the crime charged and that defendant was the perpetrator, it is proper for the trial court to deny the motion.” Id. (citations omitted). “It is not the rule in this jurisdiction that the trial court is required to determine that the evidence excludes every reasonable hypothesis of innocence before denying a defendant's motion to dismiss.” State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991).
    “Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation.” State v. Snyder, 311 N.C. 391, 393, 317 S.E.2d 394, 395 (1984) (citations omitted). “While an intent to kill is not a necessary element of murder in the second degree, that crime does not exist in the absence of some intentional act sufficient to show malice and which proximately causes death.” State v. Lang, 309 N.C. 512, 524-25, 308 S.E.2d 317, 323 (1983).
    Defendant concedes that the killing was unlawful and proximately caused by his conduct in striking Pearson with his fist, but he argues that the evidence does not show an “intentional act sufficient to show malice.” Malice may be shown in a second-degree murder prosecution in at least three ways:
        (1) express hatred, ill-will, or spite; (2) commission of inherently dangerous acts in such a reckless and wanton manner as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief; or (3) a condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification, [which is established by intentional infliction of awound with a deadly weapon that results in death.]

State v. Coble, 351 N.C. 448, 450-51, 527 S.E.2d 45, 47 (2000). Our Supreme Court has also said, “any act evidencing wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person, is sufficient to supply malice necessary for second-degree murder.” State v. Wilkerson, 295 N.C. 559, 581, 247 S.E.2d 905, 917 (1978) (quotations omitted).
    Defendant argues that striking with hands or kicking with feet, when the hands and feet are not used as deadly weapons, cannot result in an inference of malice as a matter of fact or law. In State v. Lang, our Supreme Court held:
The fact that a defendant struck a person with his hand or kicked a person and proximately caused that person's death would not support either a presumption of malice as a matter of law or an inference of malice as a matter of fact unless the defendant was using his hands or feet as deadly weapons.

309 N.C. 512, 524, 308 S.E.2d 317, 323 (1983).
    Moreover, it has long been the law of this state that:
[I]n a fight between men, the fist or foot would not, generally, be regarded as endangering life or limb. But it is manifest, that a wilful blow with the fist of a strong man, on the head of an infant, or the stamping on its chest, producing death, would import malice from the nature of the injury, likely to ensue.

State v. West, 51 N.C. 505, 509 (1859). See also State v. Elliot, 344 N.C. 242, 269, 475 S.E.2d 202, 213 (1996) (“Malice is notimplied where death ensues from an attack made with the hands or feet on a strong or mature person, death not ordinarily being caused by such an attack.”) “If the assault were committed under such circumstances as to indicate a total disregard for human life, it would support a finding of implied malice and a verdict of second degree murder[.] . . . However, . . . a mere assault which proximately results in death, but which does not indicate a total disregard for human life and is committed with no intent to kill or to inflict serious bodily injury, will support, at most, a verdict of involuntary manslaughter.” Wilkerson, 295 N.C. at 583, 247 S.E.2d at 919.
    The State argues that it “did not rely either on any legal presumption of malice resulting from the use of a deadly weapon, or on any inference of fact as to malice resulting from use of hands or feet as a deadly weapon, [so] the holding of State v. Lang . . . and other cases upon which defendant relies have no applicability[.]” Specifically, the State argues that malice is evident from defendant's actions in that “defendant brutally assaulted the victim and then refused to call, or to allow another to call, for aid for the victim.” Our review of the transcript indicates that the State presented evidence from which a jury could find that defendant knew of the severity of Pearson's condition and, nonetheless, failed to render aid such that a jury could have found malice. See State v. Baldwin, 139 N.C. App. 65, 74, 532 S.E.2d 808, 814 (2000) (saying that failure to render aid or show mercy is inherent in malice). Viewed in the light most favorableto the State, defendant failed to render aid to Pearson despite the fact that Pearson was “not breathing right.” Defendant then told Harrell and Allen that the police were on the way, and they left without aiding Pearson. Subsequently, defendant left Pearson despite going to the hospital to seek medical treatment for himself. Accordingly, we hold that there was enough evidence to send the second-degree murder charge to the jury and that the trial court properly denied defendant's motions to dismiss this claim. State v. Horner, 248 N.C. 342, 344-45, 103 S.E.2d 694, 696 (1958) (“If there is more than a scintilla of competent evidence to support the allegations in the warrant or indictment, it is the court's duty to submit the case to the jury”).
    Defendant next argues that the trial court “erred when it sustained the State's objection to testimony by the defendant's expert in clinical and anatomical pathology that he saw nothing in the autopsy that there was an intent to use deadly force.” We disagree.
    At trial, the following exchange occurred:
        Q. And based on the decedent's health condition with the liver and the alcohol, if you would, tell the jury what your opinion is as to the type of force necessary to cause these type of injuries to the brain. A.    I don't see anything in this autopsy that there's an intent to use deadly force. Ms. Manis: Objection The Court: Sustained Q.    Tell the _- Do you have an opinion as to the type of force it would cause _- would be needed to cause the type of injuries in this case? A.    I think it's a fistfight. In determining the admissibility of this evidence, we note that “[a] trial court is afforded wide latitude of discretion when making a determination about the admissibility of expert testimony” and “a trial court's rulings under Rule 702 will not be reversed on appeal absent an abuse of discretion.” State v. Morgan, 359 N.C. 131, 160, 604 S.E.2d 886, 903-04 (2004) (quotations omitted). In this case, Friedlander was qualified as an expert in “clinical and anatomical pathology.” Defendant has failed to establish how this area of expertise qualified Friedlander to testify to whether defendant had “an intent to use deadly force.” Moreover, through the initial question, defense counsel sought to show that because of the victim's health conditions non-deadly force could have caused the victim's death. Although excluding testimony about defendant's intent, the trial court then allowed the expert to testify that he thought victim's injury could have resulted from a fistfight. This was the response which defendant's counsel has initially solicited. Given that defendant ultimately made the point which he elicited and that malice was established in this case by defendant's failure to aid the victim, even assuming arguendo that the challenged testimony was admissible under State v. Teague, 134 N.C. App. 702, 708, 518 S.E.2d 573, 578 (1999), we hold that any error was non-prejudicial. See State v. Martin, 322 N.C. 229, 238-39, 367 S.E.2d 618, 623-24 (1988) (stating in order to prove prejudicial error “an appellant must show that there is a reasonable possibility that, had the error not been committed adifferent result would have been reached at trial”). Accordingly, we hold this assignment of error is without merit.
    Defendant has failed to argue his remaining assignments of error on appeal, and we deem them abandoned pursuant to N.C. R. App. P. 28(b)(6) (2005).
    No error.

    Judges HUDSON and BRYANT concur.

    Report per Rule 30(e).

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