Opinion
No. COA10-1386
Filed 19 July 2011 This case not for publication
Appeal by defendant from judgment entered 1 April 2010 by Judge Jack W. Jenkins in Onslow County Superior Court. Heard in the Court of Appeals 14 April 2011.
Roy Cooper, Attorney General, by Leonard G. Green, Assistant Attorney General, for the State. Kimberly P. Hoppin for defendant.
Onslow County No. 09 CRS 54419.
Defendant Michael Smith appeals from a conviction of second-degree murder arising out of the death of his friend, Brian Thorkelson. We must decide whether the trial court erred by (I) denying Defendant's motion to dismiss the charge of second-degree murder and (II) admitting a gun instruction manual. Because substantial evidence existed from which the jury could infer malice, and the trial court did not abuse its discretion by admitting the gun instruction manual, we find no error.
The State's evidence tended to show that on 1 July 2009, Ashley Slater, Andrew Spaeth, Chris Thorne, Defendant, and Defendant's wife, Courtney Smith, were sitting around the kitchen table at Defendant's house, talking about going out. Mr. Thorkelson arrived and took Courtney's seat at the table. Mr. Thorkelson and others were smoking marijuana at the table, and a gun lay on the table. Mr. Spaeth commented that it was not safe to have a gun lying on the table. In response, Defendant said he was a Marine and knew how to handle weapons. Defendant also said the gun was not loaded.
Defendant picked up the gun, pointed it at Mr. Thorkelson and asked him, "Do you trust me with your life?" Mr. Thorne testified Defendant and Mr. Thorkelson were playing a game that they had played before, and he warned them not to do it. The gun discharged, and Mr. Thorkelson was shot in the head.
When police officers arrived, Defendant was on his knees in the living room with his hands behind his head. Defendant told Officer Anthony Ramirez, "Sir, I shot him." Officer Cattrell was in the kitchen, holding Mr. Thorkelson in a C-spine position and waiting for EMS. There was a large pool of blood under the chair. Mr. Thorkelson was pronounced dead at the hospital.
Officers recovered a small caliber round on the living room rug and a dismantled Jiminez Arms nine millimeter semi-automatic pistol in the kitchen. A loaded magazine was found in a wooded area behind the house the next day.
Defendant was charged with second-degree murder. At trial, Defendant made a motion for directed verdict as to the second-degree murder charge at the close of the State's evidence and again at the close of all the evidence. The trial court denied Defendant's motions and instructed the jury on second-degree murder and involuntary manslaughter. The jury found Defendant guilty of second-degree murder on 1 April 2010. The trial court found mitigating factors and sentenced Defendant to 100 to 129 months imprisonment. Defendant appeals.
On appeal, Defendant argues the trial court erred by (I) denying his motion to dismiss the charge of second-degree murder because the State presented insufficient evidence of malice and (II) admitting the instruction manual for the Jiminez Arms nine millimeter semi-automatic pistol.
I. Motion to Dismiss
In his first argument on appeal, Defendant contends the trial court erred by denying his motion to dismiss the charge of second-degree murder because the State presented insufficient evidence of malice. We disagree.
At trial, defense counsel did not make motions to dismiss based on insufficiency of the State's evidence, but instead made two motions for directed verdict, which were denied. In a criminal case, a motion to dismiss for insufficient evidence and a motion for a directed verdict have the same effect. State v. Mize, 315 N.C. 285, 290, 337 S.E.2d 562, 565 (1985); see also State v. Locklear, 304 N.C. 534, 537, 284 S.E.2d 500, 502 (1981) (stating that "[t]he test of the sufficiency of the evidence in a criminal action is the same whether the motion raising that issue is one for dismissal [or] directed verdict") (citations omitted).
"This Court reviews the trial court's denial of a motion to dismiss de novo." State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). "When ruling on a defendant's motion to dismiss, the trial court must determine whether there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense." Id. (citations omitted). "Substantial evidence is evidence from which any rational trier of fact could find the fact to be proved beyond a reasonable doubt. The evidence must be viewed in the light most favorable to the State, and the State is entitled to every reasonable inference that is drawn therefrom." State v. McDowell, 329 N.C. 363, 389, 407 S.E.2d 200, 215 (1991) (citations omitted). "[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." State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (citation and quotation marks omitted).
The jury found Defendant guilty of second-degree murder. "Second-degree murder is the (1) unlawful killing (2) of a human being (3) with malice, but without premeditation and deliberation." State v. Vassey, 154 N.C. App. 384, 390, 572 S.E.2d 248, 252 (2002) (citation omitted). Our courts have defined malice as follows:
[Malice] comprehends not only particular animosity but also 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. . . . [M]alice does not necessarily mean an actual intent to take human life. It may be inferential or implied, instead of positive, as when an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life.
State v. Wrenn, 279 N.C. 676, 686-87, 185 S.E.2d 129, 135 (1971) (citations and quotation marks omitted) (Sharp, J., dissenting), quoted with approval in State v. Wilkerson, 295 N.C. 559, 579, 247 S.E.2d 905, 916 (1978).
Examining the evidence in the light most favorable to the State, we conclude substantial evidence existed from which the jury could infer malice. The State's evidence tended to show that Defendant, a former Marine, sat around his kitchen table with Ms. Slater, Mr. Spaeth, Mr. Thorne, and Mr. Thorkelson. Defendant picked up the gun that was sitting on the table, pointed the gun at Mr. Thorkelson, and asked him, "Do you trust me with your life?" Defendant was playing a game that he and Mr. Thorkelson had played before, and Mr. Thorne warned them not to play it. Although Mr. Spaeth heard Defendant say something about "the firearm not being loaded[,]" the gun discharged, striking Mr. Thorkelson in the head. The State was not required to prove an actual intent to cause injury or death of others. See Vassey, 154 N.C. App. at 390, 572 S.E.2d at 252 (stating that "intent to kill is not a necessary element of second-degree murder, but there must be an intentional act sufficient to show malice") (quotation marks and citations omitted). There was sufficient evidence from which a jury could find Defendant's actions reflected a "recklessness of consequences" and "disregard of human life." Wrenn, 279 N.C. at 687, 185 S.E.2d at 135; see also Wilkerson, 295 N.C. at 581, 247 S.E.2d at 918 ("An act that indicates a total disregard for human life is sufficient to supply the malice necessary to support the crime of second degree murder.") (citation omitted). Thus, the trial court did not err in denying Defendant's motion to dismiss.
II. Admission of the Instruction Manual
In his next argument on appeal, Defendant contends the trial court erred by admitting the instruction manual for the Jiminez Arms nine millimeter semi-automatic pistol because the manual was prejudicial. This argument has no merit.
"All relevant evidence is admissible," N.C. Gen. Stat. § 8C-1, Rule 402 (2009), but "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]" N.C. Gen. Stat. § 8C-1, Rule 403 (2009). "We review a trial court's decision to admit or exclude evidence under Rule 403 for abuse of discretion. We reverse the trial court only when the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Locklear, 363 N.C. 438, 448-49, 681 S.E.2d 293, 302 (2009) (citations and quotation marks omitted).
Here, the trial court admitted the gun instruction manual into evidence, over Defendant's objection, to illustrate Special Agent Neal Morrin's testimony. Special Agent Morrin, a firearms expert for the State who testified about the gun's safety features, stated he used the manual "to see what the manufacturer specified as far as their safeties so that I could check those on the firearm and to see if there w[ere] any other additional automatic safeties that I may not have been aware of."
Defendant contends the admission of the gun instruction manual was prejudicial because the jury could have imputed to Defendant the gun safety knowledge contained in the manual and thereby found sufficient evidence of malice. However, there was no evidence presented at trial that Defendant possessed or ever read the gun instruction manual. In fact, Defendant's own expert witness testified that a person who had not read the gun instruction manual would not know about certain safety features. William Conrad, a firearms expert for Defendant, stated the following when asked whether the average person who had not read the owners' manual would know what the loaded chamber indicator was for:
The owners manual — the manufacturer prints manuals, and you're supposed to read them and understand what they are. If you don't, it wouldn't indicate — unless you really observed what was going on. I doubt if the average person — if I handed [the gun] to anyone and said, "What's this button for," they wouldn't know.
Without evidence that Defendant possessed or read the gun instruction manual, it is unlikely the jury imputed the knowledge contained in the manual to him.
Additionally, the record contains extensive other evidence from which the jury could make conclusions about Defendant's gun safety knowledge. Both the firearms experts for the State and for Defendant testified regarding the operation and safety features of the Jiminez Arms nine millimeter semi-automatic pistol. The gun and the magazine recovered by the police were admitted into evidence, and both experts demonstrated to the jury how the gun functioned, showing them how to load the gun and explaining the safety features, including the safeties and visual indicator lights. Moreover, Special Agent Morrin testified without objection to the four universal gun safety rules. Mr. Spaeth, a former Marine, also testified without objection to the four Marine weapon safety rules, which are similar to the four universal gun safety rules.
In light of the extensive gun safety evidence in the record and the lack of evidence that Defendant possessed or read the manual, and because the gun manual was admitted solely for the purpose of illustrating Special Agent Morrin's testimony, Defendant has not shown any actual prejudice resulting from the admission of the gun instruction manual. We thus conclude the trial court did not abuse its discretion in allowing the gun instruction manual into evidence.
NO ERROR.
Judges CALABRIA and ERVIN concur.
Report per Rule 30(e).