Opinion
NO. COA12-610
01-15-2013
STATE OF NORTH CAROLINA v. CHARLES ANTHONY BALL
Attorney General Roy Cooper, by Assistant Attorney General LaToya B. Powell, for the State. Michael E. Casterline for Defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Henderson County
Nos. 09 CRS 52010
09 CRS 52295
Appeal by defendant from judgments entered 4 November 2011 by Judge Gary M. Gavenus in Henderson County Superior Court. Heard in the Court of Appeals 29 November 2012.
Attorney General Roy Cooper, by Assistant Attorney General LaToya B. Powell, for the State.
Michael E. Casterline for Defendant-appellant.
HUNTER, JR., Robert N., Judge.
Charles Anthony Ball ("Defendant") appeals from judgments entered after a jury convicted him of (i) first degree murder; and (ii) assault with a deadly weapon with intent to kill inflicting serious injury ("AWDWIKISI"). Defendant contends the trial court erred by (i) denying his requested jury instructions on premeditated murder; (ii) failing to vacate the jury's felony murder verdict; and (iii) failing to dismiss the jury's AWDWIKISI verdict due to insufficient evidence. Upon review, we conclude no error occurred.
I. Facts & Procedural History
On 1 June 2009, Defendant was indicted for: (i) first degree murder of Paul Richard Chanin ("Paul"); and (ii) assault with a deadly weapon with intent to kill inflicting serious injury on Carol Shellington Chanin ("Carol"). The State's evidence at trial tended to show the following facts.
In 1980, Paul and Carol met in Las Vegas, Nevada, where Paul was building an apartment complex. Paul was a successful real estate developer with projects across the country. Paul and Carol soon began dating. They married and divorced three times over the next 25 years. The most recent divorce occurred in October 2002. After that divorce, Paul remained at his residence in Florida and Carol moved to North Carolina.
In 2005, Carol purchased a home in Henderson County. Defendant was a carpenter in Henderson County who also had experience with plumbing and electrical work. In August 2005, Carol hired Defendant to perform some finish work in her home. Defendant had a full-time job and worked at Carol's home in the evenings.
That same month, Defendant separated from his wife, Patricia Henderson ("Patricia"). Defendant divorced Patricia in September 2006. Carol began having dinner with Defendant after he finished his work. Toward the end of 2006, Defendant and Carol initiated a sexual relationship. At the time, Defendant was 36 years old, and Carol was 62.
Around July 2007, Carol and Defendant ended their sexual relationship. However, Carol still employed Defendant in her home. She also briefly rented her basement apartment to Defendant, but later asked him to leave due to privacy concerns. In December 2007, Carol let Defendant dog-sit at her house for a week while she traveled to New York. Before she left, Defendant offered her a check for $4,800 to pay back money she previously lent him. After her trip, Carol attempted to deposit the check, but it bounced.
In January 2008, Defendant called Carol and told her he had been robbed, his truck had been stolen, and someone had withdrawn $40,000 from his bank account. Carol picked up Defendant, drove him to the emergency room, and reported the robbery to the police. Defendant later told police he found his truck and he did not want them to pursue the matter further.
After this incident, Carol's adult children voiced their concerns about her relationship with Defendant. About two weeks after Defendant's alleged robbery, they had a private detective give Defendant a letter telling him not to contact Carol. Copies of the letter were given to the Hendersonville Police Department and the security guards for Carol's neighborhood.
That same month, Defendant moved back in with his ex-wife Patricia. Around this time, Defendant developed the belief Paul had connections with organized crime and was having Defendant followed. Consequently, when he finished work every night, Defendant hid his truck and had Patricia pick him up. He would then have Patricia drive him back to his truck every morning. No evidence indicates Paul had any connections to organized crime or was having Defendant followed.
Despite her children's efforts, Carol still talked to Defendant. For example, one night she locked herself out of her house and asked Defendant to help her get the door open. She also gave Defendant jobs repairing her deck and building a storage cart for her painting materials.
Throughout 2008, Carol began to give Defendant more projects in her home. Defendant also did work for his landlord, Micheline Lublin ("Lublin"). Lublin let Defendant move into her home from November 2008 to April 2009 while he built her a porch. Although Lublin paid Defendant in advance, he left without notice before finishing the porch.
Around this time, Defendant began displaying violent tendencies. One time, Defendant and Carol were at her home while Defendant worked on a project. Carol answered a phone call from a man she was dating. Defendant surreptitiously listened in on the phone call. When he figured out the person was someone Carol was dating, he became so angry he punched his fist through a television.
In July 2008, Paul moved from Florida to North Carolina to live with Carol because his health was failing. Paul had recently had hip replacement surgery and two blood transfusions, requiring him to use a walker. Shortly before Paul's arrival, Carol again began to notice latches on two windows were sometimes turned to an open position. She also observed items missing from her home. Carol suspected Defendant was the cause of the suspicious activity, and even told a friend, Donna Kassab, she was afraid of Defendant. As a precaution, Carol had a locksmith change the locks to her home. She unsuccessfully tried to get a restraining order against Defendant. In October 2008, Carol obtained a "no contact" order against Defendant after he began making harassing phone calls. The hearing for that order was the last contact Carol had with Defendant before 20 April 2009.
On the night of 19 April 2009, Paul and Carol fell asleep in Carol's Hendersonville home with the television on. Early the next morning, Carol woke up to her dogs barking and the sound of repeated "cracks" and "thuds" next to her in her bed. When she opened her eyes, she saw a dark figure beating Paul with a baseball bat. Although the lights in the room were off, she immediately recognized the attacker was Defendant from the light of the television. When Carol jumped out of bed, Defendant hit her in the back of her head with the baseball bat. She raised her arms for protection and tried to crawl under the bed. Defendant repeatedly struck her arms and legs with the baseball bat. Meanwhile, Paul lay on the bed groaning and asking for help.
Carol grabbed the broken stem of a wine glass to use as a defensive weapon. Defendant repeatedly asked Carol "does he know about me?" Both Carol and Paul responded affirmatively. Carol pleaded for Defendant to call 911 for Paul, but he refused unless she came out from under the bed. Carol asked Defendant to lay Paul on the floor to see if he was still alive. When Defendant complied, Carol saw Paul was still breathing.
From under the bed, Carol talked to Defendant about his family to calm him down. She convinced Defendant to give her the baseball bat. After Defendant showed her he did not have any other weapons, she came out from under the bed. She immediately ran to the kitchen to call 911, but the phone did not work. Defendant approached and asked Carol for money. Carol gave him all the money in her purse, amounting to approximately $140 to $160. Defendant then took some clothes from the basement and fled.
Once Defendant left, Carol called 911 again. Carol reached a 911 operator at 7:01 AM. When paramedics arrived, they found Paul lying on the kitchen floor, bleeding heavily and barely conscious. They immediately airlifted Paul to Memorial Mission Hospital. The paramedics also treated Carol's injuries, which included cuts to her head and a broken arm. As a result of the attack, Carol suffered permanent nerve damage to her right knee and chronic pain in her arm and side.
At about 6:30 PM that day, police arrested Defendant as he pulled into his driveway. Police executed a search warrant for Defendant's car and found blood-stained blue jeans. A subsequent S.B.I. chemical analysis confirmed the stains were predominantly from Paul's blood, and also included some of Defendant's blood.
After his arrest, Defendant called his girlfriend, Angela Edens ("Angela"), from jail. He told Angela he went to Carol's house the previous night to get money from Carol and Paul. Specifically, he said Carol owed him money for his work in her home, and he needed the money to pay debt collectors. He also admitted to stealing Angela's wallet earlier that week.
Paul died from his injuries on 30 April 2009. Defendant was subsequently indicted for (i) first degree murder of Paul; and (2) AWDWIKISI of Carol.
Before trial, Defendant met with Dr. Pete Sansbury ("Dr. Sansbury"), a licensed clinical psychologist. Dr. Sansbury diagnosed Defendant as having (i) a delusional disorder with a "persecutory" subtype; and (ii) a cognitive disorder, not otherwise specified. According to Dr. Sansbury, the delusional disorder causes patients to develop false beliefs that persist even despite contrary evidence. The false beliefs are often associated with feelings of persecution or jealousy; they are not usually bizarre or extreme delusions. Dr. Sansbury further testified that the cognitive disorder causes patients to miss certain pieces of information in everyday interactions, leading them to false conclusions. Dr. Sansbury determined Defendant had above average intelligence despite these disorders. Dr. Sansbury referred Defendant to Dr. Frank Wood ("Dr. Wood"), a neuropsychologist, for further evaluation. Dr. Wood believed Defendant fell somewhere on the schizophrenia spectrum.
Defendant faced trial on 25 October 2011 in Henderson County Superior Court. At the end of all the evidence, Defendant made a motion to dismiss all his charges. The trial court denied Defendant's motion. On 4 November 2011, the jury found Defendant guilty of (i) first degree murder; and (ii) assault with a deadly weapon with intent to kill inflicting serious injury. Defendant was sentenced to life imprisonment without parole for first degree murder. He also was sentenced to a minimum of 73 months, and a maximum of 97 months for his AWDWIKISI conviction, to run consecutively with his first degree murder sentence. Defendant filed timely notice of appeal.
II. Jurisdiction & Standard of Review
This Court has jurisdiction to hear the instant case pursuant to N.C. Gen. Stat. § 7A-27(b) (2011). "As a question of law, this Court reviews the sufficiency of jury instructions de novo." State v. Boyd, _ N.C. App. _, _, 714 S.E.2d 466, 471 (2011). Furthermore, "[t]he denial of a motion to dismiss for insufficient evidence is a question of law which this Court reviews de novo." State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007) (internal citation omitted).
Evidence is sufficient to sustain a conviction when, viewed in the light most favorable to the State and giving the State every reasonable inference therefrom, there is substantial evidence to support a [jury] finding, of each essential element of the offense charged, and of defendant's being the perpetrator of such offense.Id. at 523, 644 S.E.2d at 621 (second alteration in original)(internal citations and quotation marks omitted). "'Under a de novo review, the court considers the matter anew and freely substitutes its own judgment' for that of the lower tribunal." State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen Ltd., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
III. Analysis
On appeal, Defendant argues: (i) the trial court erred by declining his request for special jury instructions on premeditated murder; (ii) the trial court erred by failing to vacate his felony murder verdict; and (iii) the trial court erred by failing to dismiss his AWDWIKISI charge. Upon review, we find no error.
A. Jury Instructions for Premeditated Murder
Defendant first contends the trial court erred by failing to use his requested supplemental jury instructions regarding: (i) premeditation and deliberation; and (ii) intent to kill. We disagree.
In North Carolina, "if a 'request [is] made for a special [jury] instruction, which is correct in itself and supported by evidence, the court must give the instruction at least in substance.'" State v. Lamb, 321 N.C. 633, 644, 365 S.E.2d 600, 605-06 (1988) (quoting State v. Hooker, 243 N.C. 429, 431, 90 S.E.2d 690, 691 (1956)). However, the trial court need not implement a defendant's requested jury instruction verbatim. State v. Ball, 324 N.C. 233, 238, 377 S.E.2d 70, 73 (1989) ("We have held that a trial court is not required to give a requested instruction verbatim."). In Ball, our Supreme Court held the trial court did not err by using pattern jury instructions rather than the defendant's requested instructions when the pattern jury instructions encapsulated "defendant's requested instructions in substance." Id.
In the present case, Defendant requested special jury instructions regarding: (i) premeditation and deliberation; and (ii) intent to kill.
1. Premeditation and Deliberation
First, Defendant asked the trial court use language from State v. Buchanan, 287 N.C. 408, 215 S.E.2d 80 (1975), to supplement its instructions on premeditation and deliberation for first degree murder.
Preliminarily, we note Defendant has preserved this argument for appellate review. During the charge conference, the trial court denied Defendant's request to use the language from Buchanan and instead used the pattern jury instructions. See N.C.P.I.-Crim. 206.13 (2011). The State argues that because Defendant did not further object to this decision at trial, he did not preserve his argument for appellate review. See N.C. R. App. P. 10(a)(2) ("A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict, stating distinctly that to which objection is made and the grounds of the objection.").
However, we conclude Defendant preserved his argument by obtaining a trial court ruling on his request. As our Supreme Court has previously held:
[I]t appears plain that the trial judge's refusal at the charge conference to instruct in accordance with [a party's] proposals represented the judge's final decision and further objections would have been not only useless but wasteful of the court's time. As such, we hold that [a party's] failure to object following the giving of the jury instructions does not foreclose review by this Court.Wall v. Stout, 310 N.C. 184, 189, 311 S.E.2d 571, 575 (1984); see also State v. West, 146 N.C. App. 741, 743, 554 S.E.2d 837, 839 (2001) (holding the defendants preserved an argument regarding jury instructions "when a request to alter an instruction has been submitted and the trial judge has considered and refused the request" ( quotation marks and citation omitted)).
Still, the trial court properly denied Defendant's request.
The instructions on premeditation and deliberation used in Buchanan state:
Now, among the circumstances which you may consider in determining whether a killing was with premeditation and deliberation are, as the Court previously instructed you: One, lack of provocation on the part of the deceased; Secondly, the conduct of the defendant, before and after the killing; Thirdly, the use of grossly excessive force; Four, any threats or declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased, and Five, the dealing of lethal blows after the deceased has been felled and rendered helpless.287 N.C. at 419-20, 215 S.E.2d at 87 (italics omitted). The instructions on premeditation and deliberation used in the instant case state:
Now, the Court instructs you that premeditation and deliberation may be inferred from a vicious and brutal slaying of a human being.
Neither premeditation nor deliberation is usually susceptible of direct proof. They may be proved by proof of circumstances from which they may be inferred such as the lack of provocation by the victim, conduct of the defendant before, during or after the
killing, threats and declarations of the defendant, brutal or vicious circumstances of the killing, and manner in which or means by which the killing was done.
We note that in his appellate brief, Defendant quotes the instructions from Buchanan as further elaborating: "Likewise, the absence of either premeditation or deliberation may be inferred from circumstances, such as the mental or emotional condition of the defendant at the time of the killing." Upon our review of our Supreme Court's holding in Buchanan, we do not find such language in the opinion.
We believe the instructions used by the trial court embody the "substance" of the Buchanan instructions. Both sets of instructions discuss lack of provocation, conduct of the defendant before and after the killing, threats made, and the brutality of the killing. Furthermore, the Buchanan case predates the pattern jury instructions. See State v. Jones, 342 N.C. 628, 632, 467 S.E.2d 233, 235 (1996) ("In denying defendant's request to give the submitted instructions, the trial court reasoned that even if the submitted instructions were correct statements on premeditation and deliberation, Buchanan predated the pattern jury instructions.").
Additionally, our Supreme Court has previously determined the pattern jury instructions in N.C.P.I.-Crim. 206.13 embody the "substance" of the instructions in Buchanan. See State v. Lewis, 346 N.C. 141, 146-47, 484 S.E.2d 379, 382 (1997) (affirming the trial court's denial of the defendant's requested jury instructions from Buchanan); Jones, 342 N.C. at 632-33, 467 S.E.2d at 235 ("[T]he pattern instructions were in substantial conformity with the submitted instructions [involving Buchanan]."). In fact, our courts have actually "cast doubt on the validity of certain language from Buchanan that defined premeditation and deliberation." Id. (citing State v. Leach, 340 N.C. 236, 241-42, 456 S.E.2d 785, 788 (1995) (holding Buchanan is disapproved to the extent it does not comport with N.C.P.I.-Crim. 206.10).
Therefore, based on Supreme Court precedent, we hold the trial court did not err by using the pattern jury instructions in lieu of specific language from Buchanan.
2. Intent to Kill
Defendant also requested the trial court supplement its jury instructions regarding "intent to kill" with language from State v. Keel, 333 N.C. 52, 423 S.E.2d 458 (1992).
The relevant language in Keel states: "[T]he State must show more than an intentional act by the defendant resulting in the death of the victim; the State also must show that the defendant intended for his action to result in the victim's death." Id. at 58, 423 S.E.2d at 462. The trial court instead used the pattern jury instructions to explain "intent to kill" as an element of first degree murder:
Third, that the defendant intended to kill the victim. Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. An intent to kill may be inferred from the nature of the assault, the manner in which it was made,See N.C.P.I.-Crim. 206.13 (2011).
the conduct of the parties, and other relevant circumstances.
Fourth, that the defendant acted after premeditation, that is that he formed the intent to kill the victim over some period of time, however short, before he acted.
And fifth, that the defendant acted with deliberation, which means that he acted while he was in a cool state of mind. This does not mean there has to be a total absence of passion or emotion. The intent to kill was formed with a fixed purpose, not under the influence of some suddenly aroused violent passion. It is immaterial that the defendant was in a state of passion or excited when the intent was carried into effect.
Neither premeditation nor deliberation is usually susceptible of direct proof. They may be proved by proof of circumstances from which they may be inferred such as the lack of provocation by the victim, conduct of the defendant before, during or after the killing, threats and declarations of the defendant, brutal or vicious circumstances of the killing, and manner in which or means by which the killing was done.
We believe the pattern jury instruction used by the trial court reflects the "substance" of the language from Keel. Specifically, the pattern jury instructions discuss the manner in which the State may show Defendant "intended for his action to result in the victim's death." Keel, 333 N.C. at 58, 423 S.E.2d at 462. As the pattern instructions note, this may be proven by circumstantial evidence, including "the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances." See N.C.P.I.-Crim. 206.13 (2011). Here, the trial court's instruction embodies the "substance" of Defendant's requested language; in fact, it even outlines methods of proving the main tenet espoused by the relevant language in Keel.
We hold the trial court did not err by denying Defendant's requested jury instruction.
B. Felony Murder Verdict
Defendant next argues the trial court erred by failing to vacate his first degree murder conviction. Specifically, he contends there was insufficient evidence connecting the murder to a predicate felony. Given our analysis above, we conclude Defendant does not allege any prejudicial error.
In North Carolina, we will only reverse a trial court's determination if error is prejudicial. See Sisk v. Sisk, __ N.C. App. _, _, 729 S.E.2d 68, 71 (2012). "The burden of showing such prejudice . . . is upon the defendant." N.C. Gen. Stat. § 15A-1443(a) (2011). "This burden may be met by showing that there is a reasonable possibility that a different result would have been reached had the error not been committed." State v. Jones, 188 N.C. App. 562, 569, 655 S.E.2d 915, 920 (2008).
In the present case, the jury was presented with two theories of first degree murder: (i) premeditation and deliberation; and (ii) felony murder. As we have discussed supra, the trial court did not err when it instructed the jury on "premeditation and deliberation." The jury subsequently convicted Defendant of first degree murder under both theories. Defendant was then sentenced to life imprisonment without parole for his first degree murder conviction.
Since the jury properly convicted Defendant of first degree murder based on "premeditation and deliberation," Defendant has not demonstrated prejudicial error under the alternate "felony murder" theory. See State v. Thomas, 325 N.C. 583, 593, 386 S.E.2d 555, 560-61 (1989) ("Criminal defendants are not convicted or acquitted of theories; they are convicted or acquitted of crimes."). For instance, Defendant has not argued how any supposed error under a "felony murder" theory would result in reversal of his conviction or mitigation of his sentence. See State v. Goodman, 298 N.C. 1, 29, 257 S.E.2d 569, 587 (1979) (holding that erroneous duplication of aggravating factors was prejudicial when it resulted in a capital punishment sentence).
Therefore, we decline to consider Defendant's argument further because he does not argue prejudicial error. See Sisk, _ N.C. App. at _, 729 S.E.2d at 71.
C. AWDWIKISI Charge
Lastly, Defendant argues the trial court erred by failing to dismiss his AWDWIKISI charge for insufficient evidence. We disagree.
"When reviewing a challenge to the denial of a defendant's motion to dismiss a charge on the basis of insufficiency of the evidence, this Court determines 'whether the State presented substantial evidence in support of each element of the charged offense.'" State v. Barhhart, _ N.C. App. _, _, 724 S.E.2d 177, 179 (2012) (quoting State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005)). "'Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.'" Id. (quoting State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009)).
"When considering a motion to dismiss, '[i]f the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence.'" State v. Alexander, 337 N.C. 182, 187, 446 S.E.2d 83, 86 (1994) (quoting State v. Smith, 40 N.C. App. 72, 79, 252 S.E.2d 535, 540 (1979)) (alteration in orginal). Additionally, "it is well settled that the evidence is to be considered in the light most favorable to the State and that the State is entitled to every reasonable inference to be drawn therefrom." Id.
The elements of AWDWIKISI are: "(1) an assault, (2) with a deadly weapon, (3) an intent to kill, and (4) infliction of a serious injury not resulting in death." Id. "An intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be reasonably inferred." State v. Cauley, 244 N.C. 701, 708, 94 S.E.2d 915, 921 (1956). This circumstantial evidence may include "the nature of the assault, the manner in which it was made, [and] the weapon, if any, used." State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (citation and quotation marks omitted). Furthermore, "an assailant must be held to intend the natural consequences of his deliberate act." Id. (citation and quotation marks omitted).
In the present case, Defendant only contests the evidentiary sufficiency of the "intent to kill" element of his AWDWIKISI charge. We conclude the State met its evidentiary burden.
Here, "the nature of the assault, the manner in which it was made, [and] the weapon . . . used" provide "substantial evidence" of intent to kill. Id. First, Defendant broke into Carol's home at night armed with a baseball bat. Our Supreme Court has previously determined a baseball bat is a deadly weapon as a matter of law. See State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 737 (1924). Additionally, prior to attacking Carol, Defendant fatally assaulted Paul. Defendant then repeatedly dealt serious, potentially life-threatening blows to Carol's head, arms, and body.
Furthermore, we are guided by our previous holding in State v. Wampler, 145 N.C. App. 127, 549 S.E.2d 563 (2001). In Wampler, this Court reviewed the trial court's denial of a defendant's motion to dismiss an AWDWIKISI charge based on insufficient evidence of intent to kill. Id. at 129, 549 S.E.2d at 566. There, like in the instant case, the defendant hit the victim in the head with a baseball bat causing serious injury. Id. at 130, 549 S.E.2d at 566. Moreover, in both Wampler and the present case, the defendants attacked their victims at their homes at night, ensuring their victim's vulnerability. See id. Lastly, both cases involved the possibility of financial gain as motives for the attacks. See id.
Like Wampler, we therefore hold "[t]here is ample evidence in the record from which a jury could reasonably infer that the defendant intended to kill [his victim]." See id.
IV. Conclusion
We conclude (i) the trial court did not err in declining to use Defendant's requested jury instructions; (ii) Defendant cannot show any prejudice from the trial court's failure to vacate his first degree murder conviction based on felony murder; and (iii) the trial court properly denied his motion to dismiss his AWDWIKISI charge. Consequently, we find
NO ERROR.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).