{ "id": 8524237, "name": "STATE OF NORTH CAROLINA v. CHARLIE ANDERSON McBRIDE, JR.", "name_abbreviation": "State v. McBride", "decision_date": "1993-02-16", "docket_number": "No. 9119SC994", "first_page": "64", "last_page": "70", "citations": [ { "type": "official", "cite": "109 N.C. App. 64" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "64 ALR4th 166", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "306 S.E.2d 783", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761533 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0410-01" ] }, { "cite": "319 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "prior convictions may be considered as an aggravating factor where prior convictions were not used to establish an element of the crime charged" } ], "opinion_index": 0 }, { "cite": "311 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683130 ], "year": 1984, "pin_cites": [ { "parenthetical": "prior convictions may be considered as an aggravating factor where prior convictions were not used to establish an element of the crime charged" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0699-01" ] }, { "cite": "372 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "323 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2561485 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/323/0306-01" ] }, { "cite": "333 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4688722 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0301-01" ] }, { "cite": "413 S.E.2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "opinion_index": 0 }, { "cite": "105 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523321 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/105/0377-01" ] }, { "cite": "317 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4684892 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0391-01" ] }, { "cite": "311 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "66 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524953 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/66/0358-01" ] }, { "cite": "297 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "citations omitted." } ], "opinion_index": 0 }, { "cite": "307 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561231 ], "year": 1982, "pin_cites": [ { "parenthetical": "citations omitted." } ], "opinion_index": 0, "case_paths": [ "/nc/307/0184-01" ] }, { "cite": "309 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763094 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0771-01" ] } ], "analysis": { "cardinality": 631, "char_count": 13817, "ocr_confidence": 0.745, "pagerank": { "raw": 2.31561045536484e-07, "percentile": 0.7889405907448658 }, "sha256": "6e587c8b529bbf6c674d1b28e7e5d0809597857489d56df6a0cf8218fec22855", "simhash": "1:47e1d301520d88c9", "word_count": 2224 }, "last_updated": "2023-07-14T20:43:31.464788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and LEWIS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLIE ANDERSON McBRIDE, JR." ], "opinions": [ { "text": "WELLS, Judge.\nDefendant sets forth three assignments of error for our review. First, defendant contends the trial court erred in failing to dismiss the second-degree murder charge because the State\u2019s evidence was insufficient to support a conviction. Second, defendant challenges the court\u2019s admission of certain evidence of bad character as proof of malice and its giving leave to the State to argue in- closing that evidence of bad character tended to show defendant acted with malice. Finally, defendant argues that the trial court erred by improperly relying on factors prohibited by the Fair Sentencing Act as a basis for imposing a life sentence for the offense of second-degree murder.\nDefendant contends the court erred in failing to grant defendant\u2019s motion to dismiss because the State\u2019s evidence was insufficient to establish malice, proof of which is essential to support a charge of second-degree murder. We disagree.\nSecond-degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983). What constitutes proof of malice will vary depending on the factual circumstances in each case. North Carolina courts have recognized at least three kinds of malice:\nOne connotes a positive concept of express hatred, ill-will or spite, sometimes called actual, express, or particular malice. Another kind of malice arises when an act which is inherently dangerous to human life is done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief. Both these kinds of malice would support a conviction of murder in the second degree. There is, however, a third kind of malice which is defined as nothing more than \u201cthat condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification.\u201d\nState v. Reynolds, 307 N.C. 184, 297 S.E.2d 532 (1982) (citations omitted.)\nOur Court in State v. Snyder, 66 N.C. App. 358, 311 S.E.2d 379 (1984), applied the first and third definitions of malice to facts similar to the case at hand. In that case, defendant, while operating his vehicle in an impaired state, drove onto the highway at an excessive rate of speed and ultimately struck a car, killing three passengers. Upon reviewing the record, we found no evidence of malice consisting of hatred, ill-will or spite, nor did we find defendant to possess the \u201ccondition of the mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification.\u201d See State v. Snyder, supra. The North Carolina Supreme Court reversed our decision, finding that we applied an inappropriate standard for determining the presence of malice in the context of motor vehicle death. State v. Snyder, 311 N.C. 391, 317 S.E.2d 394 (1984).\nFollowing our Supreme Court\u2019s mandate, the test here is whether, from the facts presented, malice arose from \u201can act which is inherently dangerous to human life [and which] is done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.\u201d Reynolds, supra. We find the evidence adduced at trial as set forth herein was sufficient to support a finding of malice.\nDefendant drove his car knowing that his license was permanently revoked, indicating defendant acted with a mind without regard for social duty and with \u201crecklessness of consequences.\u201d State v. Byers, 105 N.C. App. 377, 413 S.E.2d 586 (1992). The fact that defendant used false license tags and lied to inspection personnel to obtain an inspection sticker indicates a mind deliberately \u201cbent on mischief.\u201d Id. Defendant\u2019s driving while substantially impaired after prior convictions for driving while impaired and driving while his license was revoked manifests \u201ca mind utterly without regard for human life and social duty.\u201d Reynolds, supra.\nBecause such evidence supports a finding of malice sufficient for a conviction of second-degree murder, we find the trial court properly submitted the charge of second-degree murder to the jury.\nDefendant\u2019s second assignment of error is divided into two related arguments. First, defendant contends that the court erred by allowing the State to present evidence of defendant\u2019s prior driving convictions and of defendant\u2019s false statement made to an inspection station a month earlier that his car was owned by his son\u2019s automobile business, on the theory that it was evidence of malice. Defendant argues that prior conduct cannot be evidence of malice on the day of a fatal accident and is nothing more than improper evidence of bad character.\nOur Court has held that prior conduct such as prior convictions and prior bad acts will be admissible under Rule 404(b) of the North Carolina Rules of Evidence as evidence of malice to support a second-degree murder charge. See Byers, supra. Where the State offers such evidence, not to show defendant\u2019s propensity to commit the crime, but to show the requisite mental state for a conviction of second-degree murder, admission of such evidence is not error. Id.\nDefendant next asserts that the court should not have given opposing counsel leave to argue that the evidence of bad character tended to show malice where the court had previously restricted the basis for admission of certain evidence. Specifically, defendant argues that when evidence is admissible for only a limited purpose, it is improper and prejudicial error for the State to argue in closing that it should be considered by the jury for another purpose. While this is a proper assessment of the law in North Carolina, we cannot review this assignment of error on its merits because defendant failed to record or transcribe opposing counsel\u2019s closing argument for review. When defendant fails to properly preserve an issue for review, our Court may not speculate as to any prejudicial error. State v. Arnold, 314 N.C. 301, 333 S.E.2d 34 (1985). Based on the record before us, we can find no prejudicial error and therefore overrule defendant\u2019s second assignment of error.\nFinally, defendant asserts that the trial court abused its discretion and improperly relied upon factors prohibited by the Fair Sentencing Act in imposing the maximum penalty \u2014life imprisonment \u2014 for the offense of second-degree murder. The Fair Sentencing Act, N.C. Gen. Stat. \u00a7 15A-1340.4, prohibits a court from considering certain factors in aggravating a crime covered by the Act. Generally, \u201ca conviction may not be aggravated by prior convictions of other crimes which could have been joined for trial or by a contemporaneous conviction of a crime actually joined by or acts which form the gravamen of these convictions.\u201d State v. Hayes, 323 N.C. 306, 372 S.E.2d 704 (1988); N.C. Gen. Stat. \u00a7 15A-1340.4(a)(l)o. Furthermore, \u201cevidence used to prove an element of a crime may not also be used to prove a factor in aggravation of that same crime.\u201d Id.; N.C. Gen. Stat. \u00a7 15A-1340.4(a)(l). Here, the trial court found one aggravating factor, prior convictions for criminal offenses punishable by more than 60 days confinement, and no mitigating factors. The State relied on these prior convictions in its case as proof of malice. Evidence offered at trial to prove malice, an element of second-degree murder, cannot be the basis for aggravating that crime. See State v. Withers, 311 N.C. 699, 319 S.E.2d 211 (1984) (prior convictions may be considered as an aggravating factor where prior convictions were not used to establish an element of the crime charged). See also State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983). Because defendant\u2019s prior convictions were offered by the State as proof of malice, the trial court\u2019s consideration of such convictions as a factor in aggravation was error.\nWe therefore vacate the sentence imposed for second-degree murder and remand for resentencing.\nNo error in the trial; remand for resentencing on second-degree murder.\nJudges COZORT and LEWIS concur.\n. For purposes of resentencing, we also note that defendant\u2019s contemporaneous conviction for driving while license revoked may not be considered a factor in aggravation as it was a joined offense. N.C. Gen. Stat. \u00a7 15A-1340.4(a)(l)o.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.", "Glover & Petersen, P.A., by James R. Glover and Ann B. Petersen, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLIE ANDERSON McBRIDE, JR.\nNo. 9119SC994\n(Filed 16 February 1993)\n1. Automobiles and Other Vehicles \u00a7 790 (NCI4th)\u2014 murder \u2014 driving while impaired \u2014evidence of malice \u2014 sufficient\nThere was sufficient evidence of malice in a second degree murder prosecution arising from an automobile accident where defendant drove his car knowing that his license was permanently revoked, indicating that he acted with a mind without regard for social duty and with recklessness of consequences; the fact that defendant used false license tags and lied to inspection personnel to obtain an inspection sticker indicates a mind deliberately bent on mischief; and defendant\u2019s driving while substantially impaired after prior convictions for driving while impaired and while his license was revoked manifests a mind utterly without regard for human life and social duty.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 340-344.\nAlcohol-related vehicular homicide: nature and elements of offense. 64 ALR4th 166.\n2. Evidence and Witnesses \u00a7 339 (NCI4th)\u2014 driving while impaired \u2014second degree murder \u2014prior driving convictions and false statements \u2014admissible to show malice\nThe trial court did not err in a second degree murder prosecution arising from an automobile accident by allowing the State to present evidence of defendant\u2019s prior driving convictions and a false statement made to an inspection station a month earlier that his car was owned by his son\u2019s automobile business. The State offered the evidence to show the requisite mental state for a conviction of second-degree murder, not to show defendant\u2019s propensity to commit the crime.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7 368; Evidence \u00a7\u00a7 320, 321, 324.\n3. Appeal and Error \u00a7 317 (NCI4th)\u2014 murder \u2014closing argument \u2014not transcribed \u2014issue not preserved for appeal\nThere was no prejudicial error in a second degree murder prosecution arising from an automobile collision where defendant contends that the court should not have allowed the State to argue that evidence which had been admitted for a limited purpose could be considered for another purpose, but failed to record or transcribe opposing counsel\u2019s closing argument for review. The Court of Appeals may not speculate as to prejudicial error when defendant fails to preserve an issue for review.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 624, 625.\n4. Criminal Law \u00a7 1098 (NCI4th) \u2014 murder \u2014 automobile accident \u2014prior convictions as evidence of malice \u2014improperly used as aggravating factor\nThe trial court erred in a second degree murder prosecution arising from an automobile accident by finding prior convictions as an aggravating factor when those convictions were offered by the State as proof of malice. N.C.G.S. \u00a7 15A-1340.4(a)(l)o. '\nAm Jur 2d, Appeal and Error \u00a7\u00a7 515, 516.\nAppeal by defendant from judgment entered 3 May 1991 in Rowan County Superior Court by Judge Howard R. Greeson, Jr. Heard in the Court of Appeals 11 January 1993.\nDefendant was indicted by the Rowan County grand jury for second-degree murder, driving while impaired in violation of G.S. \u00a7 20-138.1, driving while license permanently revoked in violation of G.S. \u00a7 20-28, and illegal transportation of spirituous liquor in violation of G.S. \u00a7 18B-401. The State\u2019s evidence at trial tended to establish the following factual circumstances.\nOn the night of 28 December 1987, three high school students were traveling down Faith Road within the posted speed limit at approximately 10:30 p.m. As they approached a hill, one boy saw lights from an approaching car weaving in and out of their lane. As they came closer to the car, the headlights remained in the wrong lane, facing them head on. When the driver saw the headlights in his lane, he turned the steering wheel to the right, in an attempt to avoid the collision. Despite the maneuver, the two cars collided. Brad Michael Patrick, one of the high school students involved, died as a result of the collision.\nImmediately after the accident, witnesses noticed defendant exit the driver\u2019s side of his car. He had a strong odor of alcohol about him and slurred speech. When questioned by police, defendant denied having driven the car and told the officer that the driver had run away after the accident.\nAt the hospital, defendant underwent a blood alcohol test revealing an alcohol concentration of .183 grams of alcohol per 100 milliliters of blood. Upon investigation of the scene, the police found a broken vodka bottle on the passenger side floorboard of defendant\u2019s vehicle and a second vodka bottle on the road under the driver\u2019s side door. Defendant had been convicted of driving while impaired in 1981, 1982, and driving while license revoked in 1982, 1984 and 1986. The evidence at trial indicated defendant was driving while his license was permanently revoked the night of the collision. Defendant had also lied about the ownership of his car in order to obtain an inspection sticker and had placed illegal license tags on the car.\nAt trial, the jury returned guilty verdicts for second-degree murder, driving while impaired, driving while license permanently revoked, and illegal transportation of spirituous liquor. Defendant was then sentenced to a prison term of life for second-degree murder plus four years for the other offenses. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Linda Anne Morris, for the State.\nGlover & Petersen, P.A., by James R. Glover and Ann B. Petersen, for defendant-appellant." }, "file_name": "0064-01", "first_page_order": 92, "last_page_order": 98 }