{ "id": 11913243, "name": "STATE OF NORTH CAROLINA v. KEITH ERIC HUDSON, Dependant", "name_abbreviation": "State v. Hudson", "decision_date": "1996-08-06", "docket_number": "No. COA95-271", "first_page": "336", "last_page": "344", "citations": [ { "type": "official", "cite": "123 N.C. App. 336" } ], "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": "8 ALR4th 886", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "277 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "77", "parenthetical": "pursuant to constitutional protection against double jeopardy, defendant may not be charged with death by vehicle predicated upon failure to yield right-of-way where defendant previously plead guilty to latter charge" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643401 ], "year": 1981, "pin_cites": [ { "page": "566", "parenthetical": "pursuant to constitutional protection against double jeopardy, defendant may not be charged with death by vehicle predicated upon failure to yield right-of-way where defendant previously plead guilty to latter charge" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0564-01" ] }, { "cite": "232 S.E.2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "428" } ], "opinion_index": 0 }, { "cite": "292 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567750 ], "year": 1977, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0170-01" ] }, { "cite": "270 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "301 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564463 ], "year": 1980, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0153-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "193", "parenthetical": "failure to instruct jury on lesser included offense plain error where sufficient proof of causation element remained in doubt" } ], "opinion_index": 0 }, { "cite": "27 S.E.2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "641", "parenthetical": "although evidence supported defendant's intoxication, none linked this misconduct to fatal accident which \"is essential to a prosecution for involuntary manslaughter\"" } ], "opinion_index": 0 }, { "cite": "223 N.C. 598", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614123 ], "year": 1943, "pin_cites": [ { "page": "603", "parenthetical": "although evidence supported defendant's intoxication, none linked this misconduct to fatal accident which \"is essential to a prosecution for involuntary manslaughter\"" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0598-01" ] }, { "cite": "225 S.E.2d 549", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "552", "parenthetical": "proximate cause must be established to warrant conviction of homicide" } ], "opinion_index": 0 }, { "cite": "290 N.C. 292", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560978 ], "year": 1976, "pin_cites": [ { "page": "298", "parenthetical": "proximate cause must be established to warrant conviction of homicide" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0292-01" ] }, { "cite": "447 U.S. 625", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187280 ], "weight": 8, "year": 1980, "pin_cites": [ { "page": "634", "parenthetical": "emphasis in original" }, { "page": "401", "parenthetical": "emphasis in original" }, { "page": "635" }, { "page": "401", "parenthetical": "citation omitted" }, { "page": "634" }, { "page": "401" }, { "page": "635" }, { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/us/447/0625-01" ] }, { "cite": "133 L. Ed. 2d 46", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "451 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "189" } ], "opinion_index": 0 }, { "cite": "339 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558177 ], "year": 1994, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0426-01" ] }, { "cite": "133 L. Ed. 2d 153", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "453 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1995, "pin_cites": [ { "page": "841" }, { "page": "841" }, { "page": "841" }, { "page": "841" }, { "page": "841" } ], "opinion_index": 0 }, { "cite": "339 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557546 ], "weight": 6, "year": 1995, "pin_cites": [ { "page": "514" }, { "page": "514" }, { "page": "514" }, { "page": "514" }, { "page": "514" }, { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0487-01" ] }, { "cite": "234 S.E.2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "65", "parenthetical": "\"involuntary manslaughter and drunk driving, are not the same either in law or in fact[,] .... [n]or is one a lesser degree of the other.\"" } ], "opinion_index": 0 }, { "cite": "812 S.W.2d 275", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9971390 ], "year": 1991, "pin_cites": [ { "page": "275-76", "parenthetical": "by statute, \"state could not prove its case [of involuntary manslaughter] without necessarily proving the driving while intoxicated charge,\" and latter is thus a lesser included offense." } ], "opinion_index": 0, "case_paths": [ "/sw2d/812/0275-01" ] }, { "cite": "358 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 8858530 ], "year": 1987, "pin_cites": [ { "page": "911", "parenthetical": "driving under the influence \"a lesser included offense of first degree vehicular homicide\" as \"[p]roof of the elements of [the greater offense] necessarily requires proof of the elements of [the lesser offense.]\"" } ], "opinion_index": 0, "case_paths": [ "/ga-app/183/0368-01" ] }, { "cite": "744 P.2d 833", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1433916 ], "year": 1987, "pin_cites": [ { "page": "837" } ], "opinion_index": 0, "case_paths": [ "/kan/242/0020-01" ] }, { "cite": "612 So.2d 1120", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11308581 ], "year": 1992, "pin_cites": [ { "page": "1125-26", "parenthetical": "crime of aggravated driving under the influence a lesser included offense of crime of involuntary manslaughter by culpable negligence due to \"inherent relationship\" existing between the two offenses" } ], "opinion_index": 0, "case_paths": [ "/so2d/612/1120-01" ] }, { "cite": "373 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "felony death by vehicle not lesser offense included within involuntary manslaughter predicated upon driving while impaired as each requires identical essential elements, to wit: willful violation of G.S. \u00a720-138.1, and causal link between violation and death" } ], "opinion_index": 0 }, { "cite": "323 N.C. 369", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2562049, 2561890, 2565383, 2565833, 2566424 ], "year": 1988, "pin_cites": [ { "parenthetical": "felony death by vehicle not lesser offense included within involuntary manslaughter predicated upon driving while impaired as each requires identical essential elements, to wit: willful violation of G.S. \u00a720-138.1, and causal link between violation and death" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0369-05", "/nc/323/0369-02", "/nc/323/0369-01", "/nc/323/0369-04", "/nc/323/0369-03" ] }, { "cite": "369 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525697 ], "year": 1988, "pin_cites": [ { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0614-01" ] }, { "cite": "230 S.E.2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "misdemeanor death by vehicle, pursuant to G.S. \u00a7 20-141.4, is a lesser included offense of involuntary manslaughter because \"every element of G.S. 20-141.4 [is] embraced in the common law definition of involuntary manslaughter\"" } ], "opinion_index": 0 }, { "cite": "291 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558561, 8558533, 8558575, 8558545, 8558591 ], "year": 1976, "pin_cites": [ { "parenthetical": "misdemeanor death by vehicle, pursuant to G.S. \u00a7 20-141.4, is a lesser included offense of involuntary manslaughter because \"every element of G.S. 20-141.4 [is] embraced in the common law definition of involuntary manslaughter\"" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0449-03", "/nc/291/0449-01", "/nc/291/0449-04", "/nc/291/0449-02", "/nc/291/0449-05" ] }, { "cite": "228 S.E.2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "519", "parenthetical": "misdemeanor death by vehicle, pursuant to G.S. \u00a7 20-141.4, is a lesser included offense of involuntary manslaughter because \"every element of G.S. 20-141.4 [is] embraced in the common law definition of involuntary manslaughter\"" }, { "page": "519" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 93", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547674 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "97" }, { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0093-01" ] }, { "cite": "424 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "\"[t]he charge of involuntary manslaughter required the State to prove (1) defendant was driving a motor vehicle, (2) on a highway, (3" } ], "opinion_index": 0 }, { "cite": "332 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505873, 2504894, 2504004, 2507294 ], "year": 1992, "pin_cites": [ { "parenthetical": "\"[t]he charge of involuntary manslaughter required the State to prove (1) defendant was driving a motor vehicle, (2) on a highway, (3" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0670-01", "/nc/332/0670-03", "/nc/332/0670-02", "/nc/332/0670-04" ] }, { "cite": "420 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "697", "parenthetical": "\"[t]he charge of involuntary manslaughter required the State to prove (1) defendant was driving a motor vehicle, (2) on a highway, (3" }, { "page": "697" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527633 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "397", "parenthetical": "\"[t]he charge of involuntary manslaughter required the State to prove (1) defendant was driving a motor vehicle, (2) on a highway, (3" }, { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0388-01" ] }, { "cite": "336 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1986, "pin_cites": [ { "page": "92" }, { "page": "93" }, { "page": "92" }, { "page": "93" }, { "page": "92-93" }, { "page": "92" }, { "page": "93" }, { "page": "92" } ], "opinion_index": 0 }, { "cite": "314 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686938 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "637" }, { "page": "637" }, { "page": "637" }, { "page": "637" }, { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0633-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-4.01", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1991, "pin_cites": [ { "page": "(24a)" } ], "opinion_index": 0 }, { "cite": "370 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "369", "parenthetical": "citing Weaver, \"[i]n determining whether one offense is a lesser included offense of another, we apply a definitional as opposed to a transactional test\"" } ], "opinion_index": 0 }, { "cite": "322 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518633 ], "year": 1988, "pin_cites": [ { "page": "742", "parenthetical": "citing Weaver, \"[i]n determining whether one offense is a lesser included offense of another, we apply a definitional as opposed to a transactional test\"" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0733-01" ] }, { "cite": "369 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1988, "pin_cites": [ { "page": "819" }, { "page": "817" }, { "page": "818" }, { "page": "819" }, { "page": "818" } ], "opinion_index": 0 }, { "cite": "322 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517600 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0506-01" ] }, { "cite": "335 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "455" } ], "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "61" }, { "page": "63", "parenthetical": "failure to instruct jury on lesser included offense plain error where sufficient proof of causation element remained in doubt" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "295 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "379" }, { "page": "379", "parenthetical": "emphasis in original" }, { "page": "379" } ], "opinion_index": 0 }, { "cite": "306 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573306 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "637" }, { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0629-01" ] }, { "cite": "323 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "35" }, { "page": "34", "parenthetical": "because intoxication is element of involuntary manslaughter, trial court erred by using defendant's intoxication as aggravating factor for sentencing purposes" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525953 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "584-85" }, { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0581-01" ] }, { "cite": "432 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "384" }, { "page": "384" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 300", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521786 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "308" }, { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0300-01" ] } ], "analysis": { "cardinality": 1010, "char_count": 21441, "ocr_confidence": 0.758, "pagerank": { "raw": 5.561079509817189e-07, "percentile": 0.9472486619876294 }, "sha256": "728fc9031138c27560b0a20c3a5434965539c3302bd6fa5eccb2423dabf58d6e", "simhash": "1:c1381423a46fb54a", "word_count": 3438 }, "last_updated": "2023-07-14T18:05:31.519627+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WYNN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KEITH ERIC HUDSON, Dependant" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals convictions of three counts of involuntary manslaughter based upon violation of N.C. Gen. Stat. \u00a7 75A-10, \u201cOperating boat . . . while intoxicated . . . (DWI boating). He contends the trial court erred in numerous respects, including its failure to submit DWI boating to the jury as a lesser included offense. We find this argument persuasive and award defendant a new trial.\nThe State\u2019s evidence at trial tended to show that on 6 June 1993, defendant, Amy Stevens (Stevens) and Jason Charlton (Charlton) traveled from defendant\u2019s home on Lake Wylie to the lakefront Bourbon Street Yacht Club (the club) in defendant\u2019s 19-foot Javelin bass boat. They arrived at approximately 9:00 p.m. During the course of the evening, defendant was observed consuming alcoholic beverages and socializing with friends, including Tracey Hamilton (Hamilton). Hamilton requested a ride in defendant\u2019s boat, and defendant consented because he had agreed to take Charlton and Stevens back across the lake that night. The four left the club at approximately midnight and headed south on the lake with defendant operating the boat.\nThat same evening, Rusty Hill (Hill) was traveling in a northerly direction on Lake Wylie in his 26-foot Chris-Craft cabin cruiser. Hill was proceeding at a cruising speed of approximately 18-22 miles per hour when he glanced towards the shore to look at a miniature lighthouse on property belonging to Ken Wilson (Wilson). As Hill directed his attention back to the water in front of him, his cabin cruiser collided with defendant\u2019s boat, sending the cruiser airborne. Hamilton, Stevens and Charlton were killed instantly as a result of the collision.\nDefendant\u2019s uncontradicted testimony was that immediately before the accident, he had engaged the boat\u2019s idle device, or \u201chot foot,\u201d and allowed it to proceed at approximately 1-2 m.p.h. as he approached Wilson\u2019s lighthouse. He then retrieved a floatation device for Hamilton to sit on from a storage compartment near the front of the boat, and next bent down under the console to reach a shirt. He remembered nothing else except regaining consciousness in the hospital about one week later.\nAlthough there was no actual witness to the collision, the defense presented unrefuted testimony from two accident reconstruction experts. Each stated that at the moment of impact, Hill\u2019s larger boat was traveling at approximately 20 m.p.h. while defendant\u2019s boat was either merely idling in the water or moving at a speed of less than 2 m.p.h., and that the larger boat overran the smaller. A test performed by hospital staff indicated defendant was intoxicated, while no alcohol was detected in Hill\u2019s blood.\nOn 21 September 1993, defendant was charged with three counts of involuntary manslaughter in the deaths of Stevens, Charlton, and Hamilton. Guilty verdicts were returned in each case 29 July 1994. Upon judgment entered upon these verdicts and imposition of a sentence totaling nine years, defendant appeals.\nPrior to addressing the merits of defendant\u2019s appeal, we observe his appellate brief is 42 pages in length, thereby exceeding the 35 page limit prescribed by N.C.R. App. P. 28(j). At oral argument, defendant\u2019s counsel proffered minimal justification for this rule violation. Consequently, pursuant to our authority under N.C.R. App. P. 25(b), we impose upon counsel a fine and reimbursement of copying expenses in a total amount of $500.00, to be paid by counsel personally.\nTurning to defendant\u2019s appeal, and notwithstanding objection by the State, we exercise our discretion, see N.C.R. App. P. 2, to consider defendant\u2019s argument that the trial court erred by failing to submit to the jury the lesser included offense of DWI boating.\nResolution of defendant\u2019s argument requires a two-part analysis: (1) whether DWI boating is indeed a lesser included offense of involuntary manslaughter; and (2) if so, whether as a matter of law defendant was entitled to an instruction on the lesser offense. See State v. Owen, 111 N.C. App. 300, 308, 432 S.E.2d 378, 384 (1993). Although the parties in their respective briefs appear to assume an affirmative response to the first question, our research reveals no case law resolving this specific issue. See State v. Lackey, 71 N.C. App. 581, 584-85, 323 S.E.2d 32, 35 (1984), concurring opinion of Becton, J. (\u201cDefendant could have been convicted of both [involuntary manslaughter and DWI] at a joint trial. Whether judgment would have had to have been arrested on one of the convictions is a question we need not decide.\u201d).\nWe commence our examination of the first inquiry by noting the \u201clong-standing rule in this jurisdiction,\u201d State v. Weaver, 306 N.C. 629, 637, 295 S.E.2d 375, 379 (1982), overruled in part on other grounds, State v. Collins, 334 N.C. 54, 61, 335 S.E.2d 437, 455 (1993), \u201cthat a lesser included offense is one in which the greater offense contains all of the essential elements of the lesser offense.\u201d Id. Such determination is made \u201con a definitional, not a factual basis.\u201d Id. at 635, 295 S.E.2d at 379 (emphasis in original).\nHowever, this definitional standard was arguably relaxed somewhat in State v. White, 322 N.C. 506, 369 S.E.2d 813 (1988), wherein the Court held larceny to be a lesser included offense of armed robbery, notwithstanding the absence of complete overlap in elements. Id. at 518, 369 S.E.2d at 819. The Court based its decision in part on the \u201cnatural,\u201d id. at 514, 369 S.E.2d at 817, or \u201cspecial relationship,\u201d between the two offenses. Id. at 516, 369 S.E.2d at 818. Also deemed persuasive were\n[t]he worthy goals of economy, efficiency, accuracy and fairness in judicial proceedings ... by placing all options raised by . . . the evidence before the same jury in a single trial.\nId. at 518, 369 S.E.2d at 819. Nonetheless, absent a specific decision to the contrary, we conclude that the stricter \u201cdefinitional\u201d approach of Weaver remains applicable, see State v. Herring, 322 N.C. 733, 742, 370 S.E.2d 363, 369 (1988) (citing Weaver, \u201c[i]n determining whether one offense is a lesser included offense of another, we apply a definitional as opposed to a transactional test\u201d), and proceed to an examination of the respective definitions of DWI boating and involuntary manslaughter.\nThe offense of DWI boating, codified in G.S. \u00a7 75A-10, provided in pertinent part at the time of the collision sub judice that:\n(bl) No person shall operate any motorboat or motor vessel while underway on the waters of this State:\n(1) While under the influence of an impairing substance,\nor\n(2) After having consumed sufficient alcohol that he has, at any relevant time after the boating, an alcohol concentration of 0.10 or more.\nThe relevant definitions contained in G.S. 20-4.01 shall apply to this subsection. . . .\nG.S. \u00a7 75A-10 (1989) (emphasis added.)\nN.C. Gen. Stat. \u00a7 20-4.01(24a) (1991) defines \u201cOffense Involving Impaired Driving\u201d as, inter alia, any of the following offenses:\na. Impaired driving under G.S. 20-138.1.\nb. Death by vehicle under G.S. 20-141.4 when conviction is based upon impaired driving or a substantially equivalent offense under previous law.\nc. Second degree murder under G.S. 14-17 or involuntary manslaughter under G.S. 14-18 when conviction is based upon impaired driving or a substantially equivalent offense under previous law.\nN.C.G.S. \u00a7 14-18 classifies involuntary manslaughter as a Class H felony, and the offense is defined as\nthe unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission.\nState v. McGill, 314 N.C. 633, 637, 336 S.E.2d 90, 92 (1986).\nBoth driving while impaired (DWI) in violation of G.S. \u00a7 20-138.1 and DWI boating under G.S. \u00a7 76A-10, the latter by virtue of essentially identical elements and of incorporation through statutory reference, see G.S. \u00a7 75A-10(bl) and G.S. \u00a7 20-4.01(24a), constitute as \u201ca matter of law . . . culpable negligence.\u201d McGill, 314 N.C. at 637, 336 S.E.2d at 93. As such, each offense satisfies the \u201csecond alternative\u201d to involuntary manslaughter. Id. at 637, 336 S.E.2d at 92. Moreover, when, as alleged in the instant case, \u201cdeath is caused by one who was driving under the influence of alcohol,\u201d our Supreme Court has required the existence of \u201ctwo elements . . . for the successful prosecution of [involuntary] manslaughter: a willful violation of N.C.G.S. 20-138 and the causal link between that violation and the death.\u201d Id. at 637, 336 S.E.2d at 93. See also State v. Moore, 107 N.C. App. 388, 397, 420 S.E.2d 691, 697, disc. review denied, 332 N.C. 670, 424 S.E.2d 414 (1992) (\u201c[t]he charge of involuntary manslaughter required the State to prove (1) defendant was driving a motor vehicle, (2) on a highway, (3) under the influence of an impairing substance causing appreciable impairment of his normal mental and bodily functions [the elements of driving under the influence pursuant to G.S. \u00a7 20-138.1 (1989)], and (4) [defendant\u2019s] impaired driving proximately but unintentionally caused the death of [the victim.]\u201d).\nMeasurement of the foregoing principles according to the test of Weaver, i.e., whether the greater offense contains all of the essential elements of the lesser offense, Weaver, 306 N.C. at 635, 295 S.E.2d at 379, mandates the conclusion that DWI boating is a lesser included offense of involuntary manslaughter predicated upon that crime. As noted above, DWI and DWI boating satisfy the \u201csecond alternative\u201d or \u201cculpable negligence\u201d within the definition of \u201cinvoluntary manslaughter.\u201d See McGill, 314 N.C. at 637, 336 S.E.2d at 92-93. Moreover, in order to sustain a conviction for involuntary manslaughter by DWI, it is necessary to establish the elements of DWI and that the commission of that offense was the proximate cause of death. See Moore, 107 N.C. App. at 397, 420 S.E.2d at 697. Hence the greater offense of involuntary manslaughter contains each essential element of the lesser charge of DWI. See State v. Freeman, 31 N.C. App. 93, 97, 228 S.E.2d 516, 519, disc. review denied, 291 N.C. 449, 230 S.E.2d 766 (1976) (misdemeanor death by vehicle, pursuant to G.S. \u00a7 20-141.4, is a lesser included offense of involuntary manslaughter because \u201cevery element of G.S. 20-141.4 [is] embraced in the common law definition of involuntary manslaughter\u201d).\nIn the case sub judice, the offense of DWI boating is likewise included within the crime of involuntary manslaughter. \u201cEvery element of [G.S. 75A-10A \u2014 DWI boating] is embraced in the common law definition of involuntary manslaughter,\u201d see Freeman, 31 N.C. App. at 97, 228 S.E.2d at 519, and the latter offense contains the additional element of \u201cthe unintentional killing of a human being without malice.\u201d See McGill, 314 N.C. at 637, 336 S.E.2d at 92; see also State v. Williams, 90 N.C. App. 614, 621, 369 S.E.2d 832, 837, disc. review denied, 323 N.C. 369, 373 S.E.2d 555 (1988) (felony death by vehicle not lesser offense included within involuntary manslaughter predicated upon driving while impaired as each requires identical essential elements, to wit: willful violation of G.S. \u00a720-138.1, and causal link between violation and death), and Lackey, 71 N.C. App. at 584, 323 S.E.2d at 34 (because intoxication is element of involuntary manslaughter, trial court erred by using defendant\u2019s intoxication as aggravating factor for sentencing purposes).\nIn the foregoing context, we observe that a majority of jurisdictions which have considered the issue have held that DWI constitutes a lesser included offense of involuntary manslaughter. See Mayfield v. State, 612 So.2d 1120, 1125-26 (Miss. 1992) (crime of aggravated driving under the influence a lesser included offense of crime of involuntary manslaughter by culpable negligence due to \u201cinherent relationship\u201d existing between the two offenses); State v. Adams, 744 P.2d 833, 837 (Kan. 1987) (driving while under the influence of alcohol a lesser included offense of involuntary manslaughter because \u201c[b]y proving all of the elements necessary to establish involuntary manslaughter, the State necessarily proved each element of the crime of driving while under the influence of alcohol,\u201d thereby precluding \u201cdriving while under the influence of alcohol from being [merely] a \u201c \u2018factually related offense.\u2019 \u201d); Duncan v. State, 358 S.E.2d 910, 911 (Ga. 1987) (driving under the influence \u201ca lesser included offense of first degree vehicular homicide\u201d as \u201c[p]roof of the elements of [the greater offense] necessarily requires proof of the elements of [the lesser offense.]\u201d); State v. Sondermann, 812 S.W.2d 275, 275-76 (Mo. 1991) (by statute, \u201cstate could not prove its case [of involuntary manslaughter] without necessarily proving the driving while intoxicated charge,\u201d and latter is thus a lesser included offense.); contra Ange v. Commonwealth, 234 S.E.2d 64, 65 (Va. 1977) (\u201cinvoluntary manslaughter and drunk driving, are not the same either in law or in fact[,] .... [n]or is one a lesser degree of the other.\u201d)\nHaving held violation of G.S. \u00a7 75A-10 (DWI boating) to constitute a lesser included offense of involuntary manslaughter grounded upon contravention of the statute, we proceed to a consideration of whether defendant was entitled to jury consideration of the lesser included offense. See Owen, 111 N.C. App. at 308, 432 S.E.2d at 384.\nIt is well-established that the jury must be instructed as to a lesser-included offense of the crime charged when there is evidence from which the jury could find that the defendant committed the lesser offense. State v. Conaway, 339 N.C. 487, 514, 453 S.E.2d 824, 841, cert. denied, - U.S. -, 133 L. Ed. 2d 153 (1995). The focus is on \u201c \u2018what the state\u2019s evidence tends to prove.\u2019 \u201d State v. Brown, 339 N.C. 426, 439, 451 S.E.2d 181, 189 (1994), cert. denied, -U.S. -, 133 L. Ed. 2d 46 (1995) (citation omitted). If the State\u2019s evidence meets its burden of proving each element of the charged offense and no evidence negates these elements save the \u201c \u2018defendant\u2019s denial that he committed the offense,\u2019 \u201d the jury should not be instructed on the lesser-included offense. Id. (citation omitted).\nHowever, \u201cwhere one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction,\u201d Beck v. Alabama, 447 U.S. 625, 634, 65 L. Ed. 2d 392, 401 (1980) (emphasis in original), rather than acquitting him altogether. Conaway, 339 N.C. at 514, 453 S.E.2d at 841 (citing Beck.) Accordingly, due process requires an instruction on a third option, i.e., the lesser included offense, if \u201c \u2018the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.\u2019 \u201d See Beck, 447 U.S. at 635, 65 L. Ed. 2d at 401 (citation omitted). See also Conaway, 339 N.C. at 514, 453 S.E.2d at 841.\nIn the case sub judice, to successfully prosecute defendant for involuntary manslaughter predicated upon DWI boating, the state was required to prove: (1) a willful violation of G.S. \u00a7 75A-10, and (2) a causal link between that violation and the deaths of Stevens, Charlton and Hamilton. See McGill, 314 N.C. at 637, 336 S.E.2d at 93. This causal element \u201cbetween the breach and the death\u201d has been characterized as an indispensable component, \u201cdriving under the influence [in itself not being] sufficient to sustain a conviction of manslaughter.\u201d Id. at 636, 336 S.E.2d at 92. See also State v. Jones, 290 N.C. 292, 298, 225 S.E.2d 549, 552 (1976) (proximate cause must be established to warrant conviction of homicide); and State v. Lowery, 223 N.C. 598, 603, 27 S.E.2d 638, 641 (1943) (although evidence supported defendant\u2019s intoxication, none linked this misconduct to fatal accident which \u201cis essential to a prosecution for involuntary manslaughter\u201d).\nA fair review of the record herein results in the conclusion that while the State\u2019s evidence was ample to support a jury determination that defendant violated G.S. \u00a7 75A-10, the causal connection between violation of the statute and the deaths of Stevens, Charlton and Hamilton \u201cremain[ed] in [substantial] doubt.\u201d See Conaway, 339 N.C. at 514, 453 S.E.2d at 841. We note in particular inquiries by the jury to the trial court during deliberations regarding \u201cthe law ... as it relates to [DWI boating],\u201d the definition of culpable negligence, and the definition of proximate cause. Hence, under Beck and Conaway, because \u201cdefendant [was] plainly guilty of some offense,\u201d the jury likely resolved its doubts in favor of conviction of involuntary manslaughter, see Beck, 447 U.S. at 634, 65 L. Ed. 2d at 401, rather than acquitting defendant altogether. See Conaway, 339 N.C. at 514, 453 S.E.2d at 841. Due process therefore required the trial court to instruct on the lesser included offense of DWI boating as an alternative to the choices of either guilty or not guilty of involuntary manslaughter, in that \u201c \u2018the evidence . . . permitted] [the] jury rationally to find him guilty of [DWI boating] and acquit him of [involuntary manslaughter].\u2019 \u201d Beck, 447 U.S. at 635, 65 L. Ed. 2d at 401. See also Conaway, 339 N.C. at 514, 453 S.E.2d at 841, and State v. Collins, 334 N.C. 54, 63, 431 S.E.2d 188, 193 (1993) (failure to instruct jury on lesser included offense plain error where sufficient proof of causation element remained in doubt). This error thus prejudiced defendant, and we are constrained to award him a new trial. See N.C. Gen. Stat. \u00a7\u00a7 15A-1442(4)(d) and 15A-1443(b).\nPrior to concluding, we emphasize that our holding does not address application of the principle of double jeopardy with regards to the sequence and manner in which involuntary manslaughter and the lesser included offense of DWI boating are prosecuted. That issue is not before us. Suffice it to interject, however, that as DWI boating is a misdemeanor, G.S. \u00a7\u00a7 75A-10 and 20-138.1(d), and thus usually tried in district court, N.C. Gen. Stat. \u00a7 7A-272(a), and involuntary manslaughter is a Class H felony, G.S. \u00a7 14-18, over which Superior Court has jurisdiction, N.C. Gen. Stat. \u00a7 7A-271(a), prosecutors anticipating prosecution of the felony would be prudent to exercise caution and restraint regarding prior trial of the misdemeanor in district court. See State v. Revelle, 301 N.C. 153, 162, 270 S.E.2d 476, 481 (1980), overruled in part on other grounds, State v. White, 322 N.C. 506, 517, 369 S.E.2d 813, 818 (1988) (\u201cA person\u2019s right to be free from double jeopardy is violated not only when one is tried for and convicted of offenses which are in law and fact identical, but also when one is charged and convicted of two offenses, one of which is a lesser included offense of the other, where both offenses arose out of the same series of events.\u201d); see also State v. McKenzie, 292 N.C. 170, 175, 232 S.E.2d 424, 428 (1977) (court approves defendant\u2019s \u201csubstantive position\u201d that Constitutional protection against double jeopardy precludes State from subsequently bringing involuntary manslaughter charge predicated upon driving under the influence against defendant previously tried in district court for driving under the influence but convicted only of lesser offense of driving with blood alcohol content of .10 percent), and State v. Griffin, 51 N.C. App. 564, 566, 277 S.E.2d 77, 77 (1981) (pursuant to constitutional protection against double jeopardy, defendant may not be charged with death by vehicle predicated upon failure to yield right-of-way where defendant previously plead guilty to latter charge).\nAs defendant\u2019s remaining assignments of error likely will not occur upon retrial, we decline to discuss them.\nNew Trial.\nJudges LEWIS and WYNN concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorneys General Joseph P. Dugdale, Robert T Hargett, and Linda Fox for the State.", "Theo X. Nixon, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEITH ERIC HUDSON, Dependant\nNo. COA95-271\n(Filed 6 August 1996)\n1. Admiralty, Navigation, and Boating \u00a7 39 (NCI4th)\u2014 involuntary manslaughter \u2014 operating boat while intoxicated as lesser included offense\nOperating a boat while intoxicated is a lesser included offense of involuntary manslaughter predicated upon that crime, since it satisfies the \u201cculpable negligence\u201d alternative within the \u25a0 definition of involuntary manslaughter, and every element of operating a boat while intoxicated, N.C.G.S. \u00a7 75A-10A, is embraced in the common law definition of involuntary manslaughter.\nAm Jur 2d, Boats and Boating \u00a7 17.\nCriminal Liability for injury or death caused by operation of pleasure boat. 8 ALR4th 886.\n2. Admiralty, Navigation, and Boating \u00a7 39 (NCI4th); Homicide \u00a7 550 (NCI4th)\u2014 involuntary manslaughter charged \u2014 instruction on lesser offense of operating boat while intoxicated\nDue process required the trial court to instruct on the lesser included offense of operating a boat while intoxicated as an alternative to the choices of either guilty or not guilty of involuntary manslaughter in that the evidence permitted the jury rationally to find him guilty of operating a boat while intoxicated and acquit him of involuntary manslaughter.\nAm Jur 2d, Boats and Boating \u00a7 17; Homicide \u00a7\u00a7 525 et seq.\nAppeal by defendant from judgments entered 29 July 1994 by Judge Robert M. Burroughs, Sr. in Mecklenburg County Superior Court. Heard in the Court of Appeals 25 October 1995.\nAttorney General Michael F. Easley, by Assistant Attorneys General Joseph P. Dugdale, Robert T Hargett, and Linda Fox for the State.\nTheo X. Nixon, for defendant-appellant." }, "file_name": "0336-01", "first_page_order": 370, "last_page_order": 378 }