Opinion
No. COA09-708.
Filed January 19, 2010.
Mecklenburg County Nos. 06 CRS 244861, 06 CRS 244862.
Appeal by Defendant from judgments entered 13 October 2008 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 29 October 2009.
Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State. Marilyn G. Ozer for Defendant.
I. Procedural History
On 16 October 2006, Defendant Terrence Jamal Smith was indicted on one count of murder and one count of possession of a stolen vehicle. The case came on for trial at the 6 October 2008 criminal session of Mecklenburg County Superior Court. On 13 October 2008, the jury returned verdicts finding Defendant guilty of second-degree murder and possession of a stolen vehicle. The trial court sentenced Defendant to a term of 220 to 273 months imprisonment for the second-degree murder conviction and a consecutive term of 10 to 12 months imprisonment for the possession of a stolen vehicle conviction. Defendant gave notice of appeal in open court on 13 October 2008.
II. Evidence
In the early afternoon of 22 September 2006, Rafael Abdala got into his yellow 1994 Dodge Caravan minivan to go to lunch. Realizing that he had forgotten something, he put his wallet and keys in the glove compartment and exited the van. When he returned approximately five minutes later, his van was missing. Mr. Abdala called the police and reported his vehicle missing. As the police were arriving to investigate the report, they received notification that Mr. Adbala's van had been in an accident.
About the same time, Defendant, seventeen years old at the time, and two other individuals were observed acting suspiciously around an automated teller machine ("ATM") in a shopping center parking lot. A yellow van, later identified as Mr. Abdala's missing van, was parked by the ATM. Defendant attempted to use the ATM unsuccessfully four times within a matter of minutes, during which time someone tried to cover the ATM security camera. Defendant then drove the van across the parking lot to the Family Dollar Store. The ATM card in Defendant's possession at the time of his subsequent arrest was identified as Mr. Abdala's.
Officer Dezenzor of the Charlotte Police Department responded to a call regarding teenagers attempting to rob an ATM at the shopping center. When the officer arrived at the scene, he saw Ronald McDaniel near the ATM. Officer Dezenzor questioned Mr. McDaniel, who said that he observed suspicious activity by three young, black males at the ATM. Mr. McDaniel then pointed to the van parked near the Family Dollar Store approximately 50 yards away. Defendant was in the driver's seat of the van while the other two individuals were standing in front of the van.
A second officer, Officer Quan, arrived on the scene. Officer Dezenzor pointed out the stolen van to Officer Quan. When Officer Dezenzor pointed toward the van, one of the two individuals standing in front of the van immediately got into the van and Defendant began rapidly backing across the parking lot toward Sharon Amity Road, an adjacent four-lane highway.
Although Officer Quan initially got into his marked police vehicle and began to pursue the van, he stopped his pursuit as he did not want Defendant to lose control of the van. Defendant accelerated, however, and the van began to zigzag back and forth as it headed across the parking lot in reverse.
Eyewitness observers estimated Defendant's speed to be between 35 and 45 miles per hour. A police accident reconstruction expert estimated Defendant's speed when he crossed into Sharon Amity Road to be 30 miles per hour.
Defendant entered Sharon Amity Road backward and broadsided a pickup truck driven by Norman Barnett. The truck flipped over, throwing Mr. Barnett from the truck, and continued to careen down the road on its side. Mr. Barnett died as a result of the collision. A trailer attached to Mr. Barnett's truck struck a minivan, shattering all the windows.
The stolen van driven by Defendant did a "180 in the air," and landed facing the opposite direction from which it entered the road. Defendant immediately exited the van and ran across Sharon Amity Road, through some woods, and into a condominium complex. Defendant was subsequently found and arrested by Officers Quan and Dezenzor.
III. Discussion
By Defendant's sole argument on appeal, he contends that the trial court erred in denying his motion to dismiss because the State failed to present sufficient evidence to support a charge of second-degree murder. Specifically, Defendant argues that the State presented insufficient evidence that Defendant "had the intent to drive in a manner that he knew could result in injury or death."
The standard for ruling on a motion to dismiss "is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994). In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). "Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal." State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996).
Second-degree murder 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). In State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978), our Supreme Court defined malice as follows:
It 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.
This Court has said that [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. In such a situation the law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist.
295 N.C. at 578-79, 247 S.E.2d at 916 (internal citations and quotation marks omitted). "What constitutes proof of malice will vary depending on the factual circumstances in each case." State v. McBride, 109 N.C. App. 64, 67, 425 S.E.2d 731, 733 (1993).
In this case, the State presented the following evidence tending to show that Defendant acted with malice: After attempting unsuccessfully to withdraw money from Mr. Abdala's account at the ATM, Defendant drove the stolen van across the shopping center parking lot. When Defendant noticed Officer Dezenzor pointing toward him, he immediately began driving in reverse through the shopping center parking lot at a high rate of speed toward Sharon Amity Road. The van began to zigzag back and forth as Defendant attempted to elude Officer Quan, and headed backward toward Sharon Amity Road.
A witness on Sharon Amity Road testified that it looked like the driver of the van had "floored it" because the van was just "flying backwards." Eyewitnesses estimated Defendant's speed to be between 35 and 45 miles per hour. A police accident reconstruction expert estimated Defendant's speed when he crossed into Sharon Amity Road to be 30 miles per hour.
Defendant entered Sharon Amity Road backward and collided with a pickup truck driven by Norman Barnett. The truck flipped over, throwing Mr. Barnett from the truck, and continued to careen down the road on its side. Officer Dezenzor described the collision as "very violent." Mr. Barnett died as a result of the collision. A trailer attached to Mr. Barnett's truck struck a minivan, shattering all the windows.
The stolen van driven by Defendant did a "180 in the air," and landed facing the opposite direction from which it entered the road. Trying to avoid the consequences of his actions, Defendant immediately exited the van and ran across Sharon Amity Road, through some woods, and into a condominium complex.
We find this evidence wholly sufficient to support a finding of malice and, therefore, to submit the charge of second-degree murder to the jury.
Defendant argues further, however, that the State presented insufficient evidence to show that Defendant had actual notice or knowledge that injury or death would likely result from his driving in a reckless manner. Defendant misconstrues the State's burden of proof. To establish second-degree murder in vehicular homicide cases, it is "necessary for the State to prove only that defendant had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind." State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304 (2000) (emphasis added). Contrary to Defendant's assertion, the State is not required to show that Defendant had actual "knowledge that the act of driving recklessly would result in injury or death," but, instead, is required to show that Defendant intended to drive in such a reckless manner that knowledge of injurious consequences may be inferred. It is the reckless manner in which Defendant drove which evidences depravity of mind. Id. at 392, 527 S.E.2d at 302 ("[T]he law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist." (citations and quotation marks omitted)). This argument is wholly lacking in merit.
Defendant additionally argues that the facts in this case do not support a finding of malice under North Carolina case law as "no precedent involves an unimpaired youth, with no prior driving record, and no evidence that he had notice or knew he could lose control by driving a van in reverse, with the negligent driving lasting only seconds over a distance measured in feet." Defendant's argument is misplaced.
While research reveals no prior case that presents the exact fact pattern as the case at bar, courts have considered many of the circumstances present in this case in determining that sufficient evidence of malice exists. First, "the very act of fleeing from the police certainly constitutes malice." State v. Lloyd, 187 N.C. App. 174, 180, 652 S.E.2d 299, 302 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214 (2009). Additionally, evidence tending to show Defendant took the vehicle without permission indicates a mind "`bent on mischief.'" Id. (quoting State v. Byers, 105 N.C. App. 377, 382, 413 S.E.2d 586, 589 (1992). Furthermore, "driving in an extremely dangerous manner . . . evidences a mind utterly without regard for human life and social duty and deliberately bent on mischief." State v. Bethea, 167 N.C. App. 215, 219, 605 S.E.2d 173, 177 (2004) (citation and quotation marks omitted). Moreover, the fact that Defendant was not driving under the influence of alcohol "does not negate the presence of malice, but rather, tends to more clearly show an `intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind.'" Id. at 220, 605 S.E.2d at 177 (quoting Rich, 351 N.C. at 395, 527 S.E.2d at 304); Cf. State v. Wade, 161 N.C. App. 686, 690, 589 S.E.2d 379, 382 (2003) (holding that even "in the absence of impairment by alcohol[,]" the "operation of a vehicle could rise to the level of culpable negligence" to support convictions of involuntary manslaughter and assault with a deadly weapon inflicting serious injury), disc. rev. denied, 358 N.C. 241, 594 S.E.2d 33 (2004); State v. Nugent, 66 N.C. App. 310, 311-13, 311 S.E.2d 376, 377-78 (1984) (upholding an involuntary manslaughter conviction where no evidence of impaired driving was present). Thus, we conclude that the evidence in this case is sufficient to show that Defendant "had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind." Rich, 351 N.C. at 395, 527 S.E.2d at 304.
Moreover, we reject Defendant's argument that malice sufficient to support a second-degree murder conviction in a driving fatality case exists only under circumstances that "show a pattern of reckless driving, over a longer time and over miles on the occasion that the death occurred." Where, as here, a driver of an automobile drives in a manner "which is inherently dangerous to human life [and] . . . so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief[,]" malice may be inferred. State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982). Although Defendant was only seventeen years old at the time he committed the crime for which he was convicted, and had no prior criminal record, such circumstances do not negate Defendant's reckless and wanton behavior which resulted in the unfortunate death of an innocent bystander. Accordingly, we hold that the evidence in this case was sufficient to allow a reasonable jury to infer that Defendant acted with malice.
Defendant further contends that the "[j]ury's repeated questions on malice support a finding of prejudicial error." However, Defendant fails to offer any legal argument in support of this contention, solely reiterating the standard of review on a motion to dismiss, and fails to show how the jury's questions prejudiced Defendant. Defendant's argument is dismissed. See N.C. R. App. P. 28(b)(6).
Furthermore, Defendant alleges that the "[d]enial of Defendant's motion to dismiss was a violation of Defendant's constitutional rights[.]" However, Defendant failed to raise this constitutional issue at trial, and thus, failed to preserve this issue for appellate review. See State v. Fullwood, 343 N.C. 725, 733, 472 S.E.2d 883, 887 (1996) (holding that defendant failed to raise a constitutional issue at trial and thus failed to preserve the issue for appellate review), cert. denied, 520 U.S. 1122, 137 L. Ed. 2d 339 (1997).
Finally, Defendant argues that finding sufficient evidence of malice based on Defendant's "driving a stolen car, using a stolen bank card and attempting to unlawfully withdraw money from an ATM" would judicially create "[a] new statutory crime, felony second[-]degree murder[.]" This argument borders on the absurd. We reiterate that "[w]hat constitutes proof of malice will vary depending on the factual circumstances in each case." McBride, 109 N.C. App. at 67, 425 S.E.2d at 733. Based on well-established legal precedent, the totality of the circumstances in this case, not including Defendant's use of a stolen bank card and attempt to unlawfully withdraw money from an ATM, constitutes sufficient evidence of malice to submit the charge of second-degree murder to the jury.
The assignments of error upon which Defendant's arguments are based are overruled. Defendant received a fair trial, free of error.
NO ERROR.
Judges STROUD and BEASLEY concur.
Report per Rule 30(e).