{ "id": 11353464, "name": "STATE OF NORTH CAROLINA v. JAMES RUSSELL SMITH, JR.", "name_abbreviation": "State v. Smith", "decision_date": "2001-09-04", "docket_number": "No. COA00-616", "first_page": "1", "last_page": "23", "citations": [ { "type": "official", "cite": "146 N.C. App. 1" } ], "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": "336 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687281 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0649-01" ] }, { "cite": "300 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "407" } ], "opinion_index": 0 }, { "cite": "61 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519363 ], "year": 1983, "pin_cites": [ { "page": "57-58" } ], "opinion_index": 0, "case_paths": [ "/nc-app/61/0052-01" ] }, { "cite": "531 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "510 S.E.2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 56", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132189 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0056-01" ] }, { "cite": "502 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "38" }, { "page": "37-38" }, { "page": "38" }, { "page": "34" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11464900 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "11" }, { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0001-01" ] }, { "cite": "409 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1991, "pin_cites": [ { "page": "744" }, { "page": "745" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 431", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522090 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "432" }, { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0431-01" ] }, { "cite": "10 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "pin_cites": [ { "page": "823" } ], "opinion_index": 0 }, { "cite": "218 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616782 ], "year": 1940, "pin_cites": [ { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/nc/218/0258-01" ] }, { "cite": "454 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "691", "parenthetical": "quoting State v. Stephenson, 218 N.C. 258, 264, 10 S.E.2d 819, 823 (1940)" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916944 ], "year": 1995, "pin_cites": [ { "page": "135", "parenthetical": "quoting State v. Stephenson, 218 N.C. 258, 264, 10 S.E.2d 819, 823 (1940)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0130-01" ] }, { "cite": "357 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "350" }, { "page": "350", "parenthetical": "malice may be inferred from the \"willful blow by an adult on the head of an infant\"" } ], "opinion_index": 0 }, { "cite": "320 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728091 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "58" }, { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0051-01" ] }, { "cite": "527 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "303" } ], "opinion_index": 0 }, { "cite": "351 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155839 ], "year": 2000, "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0386-01" ] }, { "cite": "543 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135734 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0364-01" ] }, { "cite": "247 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "916" } ], "opinion_index": 0 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "531 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2000, "pin_cites": [ { "page": "272", "parenthetical": "quoting State v. Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978), quoting 21 A. & E. 133 (2d Edition 1902)" }, { "page": "272" }, { "page": "274" }, { "page": "273" }, { "page": "274" }, { "page": "412" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079953 ], "weight": 6, "year": 2000, "pin_cites": [ { "page": "409", "parenthetical": "quoting State v. Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978), quoting 21 A. & E. 133 (2d Edition 1902)" }, { "page": "410" }, { "page": "413" }, { "page": "411" }, { "page": "413" }, { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0404-01" ] }, { "cite": "297 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "536", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "307 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561231 ], "year": 1982, "pin_cites": [ { "page": "191", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0184-01" ] }, { "cite": "308 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "323", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "309 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765436 ], "year": 1983, "pin_cites": [ { "page": "524", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0512-01" ] }, { "cite": "140 L. Ed. 2d 150", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "522 U.S. 1135", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11634688, 11634848, 11634818, 11634787, 11635043, 11634759, 11634727, 11634921, 11635018, 11634704, 11635185, 11634993, 11635091, 11634969, 11635131, 11634878 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/522/1135-01", "/us/522/1135-07", "/us/522/1135-06", "/us/522/1135-05", "/us/522/1135-13", "/us/522/1135-04", "/us/522/1135-03", "/us/522/1135-09", "/us/522/1135-12", "/us/522/1135-02", "/us/522/1135-16", "/us/522/1135-11", "/us/522/1135-14", "/us/522/1135-10", "/us/522/1135-15", "/us/522/1135-08" ] }, { "cite": "489 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "407" } ], "opinion_index": 0 }, { "cite": "347 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551309 ], "year": 1997, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0001-01" ] }, { "cite": "403 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "501-02" } ], "opinion_index": 0 }, { "cite": "328 N.C. 613", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543691 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0613-01" ] }, { "cite": "305 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "730" } ], "opinion_index": 0 }, { "cite": "309 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767092 ], "year": 1983, "pin_cites": [ { "page": "139-40" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0132-01" ] }, { "cite": "250 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "208" } ], "opinion_index": 0 }, { "cite": "296 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565526 ], "year": 1978, "pin_cites": [ { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0236-01" ] }, { "cite": "400 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "61", "parenthetical": "emphasis omitted" }, { "page": "61" } ], "opinion_index": 0 }, { "cite": "328 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541929 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "237", "parenthetical": "emphasis omitted" }, { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0231-01" ] }, { "cite": "502 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1998, "pin_cites": [ { "page": "37" }, { "page": "33-34" }, { "page": "34" } ], "opinion_index": 1 }, { "cite": "130 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11464900 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/nc-app/130/0001-01" ] }, { "cite": "409 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1991, "pin_cites": [ { "page": "745" }, { "page": "745" } ], "opinion_index": 1 }, { "cite": "104 N.C. App. 431", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522090 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc-app/104/0431-01" ] }, { "cite": "454 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "691" } ], "opinion_index": 1 }, { "cite": "118 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916944 ], "year": 1995, "pin_cites": [ { "page": "135" } ], "opinion_index": 1, "case_paths": [ "/nc-app/118/0130-01" ] }, { "cite": "357 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "350" } ], "opinion_index": 1 }, { "cite": "320 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4728091 ], "year": 1987, "pin_cites": [ { "page": "58" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0051-01" ] }, { "cite": "543 S.E.2d 478", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "353 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135734 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/353/0364-01" ] }, { "cite": "247 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "916" } ], "opinion_index": 1 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "page": "578" } ], "opinion_index": 1, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "531 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "274" } ], "opinion_index": 1 }, { "cite": "138 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079953 ], "year": 2000, "pin_cites": [ { "page": "413" } ], "opinion_index": 1, "case_paths": [ "/nc-app/138/0404-01" ] }, { "cite": "308 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "323" } ], "opinion_index": 1 }, { "cite": "309 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765436 ], "year": 1983, "pin_cites": [ { "page": "524" } ], "opinion_index": 1, "case_paths": [ "/nc/309/0512-01" ] } ], "analysis": { "cardinality": 1525, "char_count": 54997, "ocr_confidence": 0.758, "pagerank": { "raw": 4.2122781451022356e-07, "percentile": 0.9136731523729762 }, "sha256": "7ad192530785d7e37db5760316cc6f0d0752dbdba316447d8d849bc6a41c4044", "simhash": "1:1a7e2930d02fea52", "word_count": 9200 }, "last_updated": "2023-07-14T17:14:58.205856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WALKER concurs.", "Judge TYSON concurs in part and dissents in part in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES RUSSELL SMITH, JR." ], "opinions": [ { "text": "HUNTER, Judge.\nJames Russell Smith, Jr. (\u201cdefendant\u201d) appeals the trial court\u2019s judgment convicting him of the second degree murder of his wife\u2019s two-year-old daughter, Amanda. We hold that the trial court erred in failing to grant defendant\u2019s motion to dismiss because the State failed to present substantial evidence that defendant had the necessary malice to sustain a second degree murder conviction. Therefore, we reverse and remand.\nThe evidence presented at trial tended to show that on 21 November 1998, defendant married Angelene Smith (\u201cAngie\u201d). At the time of the incident in question, the couple had one child born of their relationship, and three other children (including Amanda) from prior relationships living with them. Because defendant worked first shift (6:00 a.m. to 3:30 p.m.) and Angie worked second shift (4:00 p.m. to 12:00 midnight), it was customary for defendant to care for the children while Angie was at work, and for Angie to care for the children while defendant was at work.\nOn Monday, 7 December 1998, Amanda was ill, and Angie left her in the care of defendant. On Tuesday, 8 December, Amanda threw up, and \u201cdefendant bathed and cleaned up Amanda.\u201d Later, Angie noticed a bruise on Amanda\u2019s forehead and asked defendant how it came to be. Defendant told Angie that Amanda fell off the toilet in the bathroom and bumped her head. On Wednesday, 9 December, Amanda was still ill. Angie cared for her during the day and left her in defendant\u2019s care that evening. When Angie returned home after midnight that same night, she did not check on Amanda. After she and defendant went to bed, Angie got up during the early morning hours on 10 December and went to get her infant daughter, Angelica, bringing her back to bed with herself and defendant. Later, when the alarm clock rang at 5:30 a.m. for defendant to go to work, Angie woke defendant who then got up, got dressed, and after checking on Amanda, came back into the bedroom and told Angie that Amanda was dead. Both of defendant\u2019s sons were also in the home the night of the incident.\nAt trial, the State asked Angie if she had ever noticed any bruises on Amanda and, if so, whether she had inflicted them. In response, Angie testified that the day before she married defendant she noticed \u201cpurplish\u201d bruises on both of Amanda\u2019s arms. She stated, \u201c [i]t looked like somebody had grabbed her.\u201d Angie further testified that she noticed a yellow \u201cbruise on [Amanda\u2019s] butt[ocks]\u201d a few days after the wedding. Angie also stated that she noticed Amanda\u2019s \u201ceyes were black and blue\u201d on or about 3 December 1998. Angie stated that, although she asked defendant about the bruises on Amanda\u2019s arms and buttocks, she did not ask about Amanda\u2019s black eyes. She testified that she never inflicted any injuries on Amanda and that, aside from the bump on the forehead, these were the only bruises she had ever noticed on Amanda.\nAngie further testified that the Department of Social Services (\u201cDSS\u201d) had intervened in her relationship with Amanda in response to a report that she abused Amanda by violently grabbing Amanda\u2019s arm. However, as to this report of abuse, Angie testified that \u201c[t]here is no evidence showing that I had done that at all. [DSS] was just assuming that I had grabbed her by her arm. I did not do that.\u201d Angie did testify that prior to the time that defendant moved in with her she noticed \u201cbruises on [Amanda\u2019s] legs.\u201d Angie told several people that she did not believe defendant hurt the child; however, Angie testified that at the time defendant told her of Amanda\u2019s death, he stated, \u201cthey[\u2019re] going to come and get [me].\u201d\nKim Barkhurst, the DSS child abuse investigator, testified that she met Angie and defendant when she began investigating another DSS employee\u2019s (Deana Smith) complaint of abuse against Angie. Ms. Barkhurst stated that Ms. Smith had filed a report of abuse against Angie in which Ms. Smith stated \u201cnot only had she seen [Angie] jerk [Amanda]\u2019s arm, but . . . also . . . that she had seen [Angie] pop [Amanda] in the face and on the leg\u201d while the two were in Ms. Smith\u2019s office. Ms. Barkhurst further testified that Angie ignored Amanda during a visit to defendant and Angie\u2019s home, and defendant seemed resentful of Ms. Barkhurst\u2019s being there.\nLisa Mendez, one of Angie\u2019s supervisors at work, testified that Angie called work on the morning Amanda died, sounding like her \u201cnormal self,\u201d to say she would not be in to work that day. When Ms. Mendez asked why she was not coming to work, Angie said, \u201cmy baby\u2019s dead.\u201d However, Ms. Mendez further stated that Angie told her she had not checked on Amanda nor had she called 911. Ms. Mendez advised Angie to hang up the phone with her and to call 911. Ms. Mendez testified that she was disturbed by her conversation with Angie, and that she called the sheriff\u2019s department that same day \u201casking to speak to someone that was in charge of the case.\u201d Ms. Mendez \u201cattempted] to report the phone call that [she] received or the things that [she] observed to the authorities[.]\u201d However, when she \u201cdid speak to someone, . . . they told [her] they had all the information that they needed, thanks for calling.\u201d\nMolly Malden, another of Angie\u2019s co-workers, testified that when she met Angie approximately one to two weeks after Amanda died, Angie \u201cwas real bubbly and giddy, and . . . reminded [her] of a teenager.\u201d Ms. Malden further testified that she never saw Angie upset about Amanda\u2019s death even though she and Angie spent a great deal of time together. Ms. Malden testified that Angie would get upset only when a police officer or detective would come by her job and talk to her. Ms. Malden testified that, after such incidents, Angie would say \u201cthat she was going to go to jail, or she was going to be arrested. . . . They were going to come and take her on her job and take her to jail.\u201d Ms. Malden further stated, \u201cthey thought that she was guilty of having something to do with the \u2014 with the death of the child.\u201d The one time Ms. Malden saw Angie dressed up, Angie said that \u201cshe was celebrating\u201d and that \u201cshe had made some decisions, that she was going back to school, she had signed over custody to Social Services to have her [other] baby adopted, and that she was getting on with her life, that it was time for her to do that.\u201d\nChristina Alexander (one of Angie\u2019s neighbors) testified that she met Angie in February 1997 and that they became friends, spending a great deal of time together with their children. It was her perception that Angie and Amanda had a good relationship at times. However, Ms. Alexander noted that sometimes Angie would mistreat Amanda by slamming her down on the couch, yanking her by the arms, or smacking her in the face. Also, she noted that Amanda would have bruises on her upper arms and legs. Finally, she testified that Angie would treat Amanda this way when she became angry and not for disciplinary reasons. Ms. Alexander had contacted DSS about Angie\u2019s treatment of Amanda.\nDeana Smith was Angie\u2019s case worker at the Alamance County Social Services office. Ms. Smith made the initial call to Child Protective Services after a visit with Angie and Amanda at her office in August 1998 for a case review. During that meeting, Amanda began acting up and Ms. Smith observed Angie jerk Amanda by the arm, pop her on the mouth, and slap her on the leg. Ms. Smith testified that Angie seemed frustrated and angry with Amanda and that they did not have a normal mother-child relationship.\nOn cross-examination by the State, Ms. Smith admitted that Amanda would not obey Angie and acted in an uncontrollable manner. Furthermore, she agreed that the only way for Angie to keep Amanda under any semblance of control was for her to grab and hold onto Amanda. Finally, Ms. Smith testified that she did not notice any bruises on Amanda, despite the fact that Amanda was wearing an outfit that left her arms and legs bare, and that she would have noticed if there had been any bruises due to Amanda\u2019s close proximity in the office.\nDr. Thomas Clark, the forensic pathologist who performed the autopsy on Amanda, testified for the State that during his external examination of Amanda he found \u201cbruises of varying ages distributed over the body from the top of the head to the legs, and even one on the foot.\u201d \u201cThe shape and distribution of the bruises was [sic] often in a pattern suggestive of an adult hand.\u201d Regarding his internal exam of Amanda, Dr. Clark stated that the brain was bloody and that \u201cthere was blood present on both sides of the brain.\u201d He testified that any blood in this space is abnormal and that the brain was bruised. Also, Dr. Clark noted the presence of blood in the retinas of Amanda\u2019s eyes and that \u201c[t]he presence of blood in the retina is almost always a result of injury.\u201d He testified that this indicated that Amanda suffered injury to the head.\nAdditionally, Dr. Clark explained that shaken baby syndrome \u201cinclud[es] the presence of subdural hemorrhage in the head, the presence of retinal hemorrhages in the eyes, and optionally, the presence of hemorrhage within the spinal cord,\u201d of which Amanda had all three. He testified that these injuries occur from the violent shaking of a child \u201cso that the head snaps back and forth enough that blood vessels are ruptured, causing the bleeding within the eyes and . . . surrounding the brain.\u201d Furthermore, he stated that he found bruises on Amanda\u2019s head and all over her body indicating the occurrence of blunt force injury. He then concluded that blunt force injury played a significant role in Amanda\u2019s death and that shaking probably contributed.\nOn appeal from his conviction for second degree murder, defendant raises two assignments of error. First, defendant assigns error to the trial court\u2019s denial of his motion to dismiss. Specifically, defendant argues that there was insufficient evidence: (1) as to him being the perpetrator of Amanda\u2019s death; (2) as to him having the required malice for second degree murder; and (3) as to him having intentionally inflicted a fatal injury on Amanda. We disagree with defendant on the identity issue, but we agree with defendant on the malice issue. Because we find that the evidence as to defendant having the necessary malice was not substantial enough to withstand defendant\u2019s motion to dismiss, we need not address the sufficiency of the evidence as to whether the injury was inflicted intentionally.\nThe applicable standard for ruling on a defendant\u2019s motion to dismiss has been set forth in considerable detail by our Supreme Court:\nWhen a defendant moves for dismissal, the trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. Whether evidence presented constitutes substantial evidence is a question of law for the court. Substantial evidence is \u201csuch relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d The term \u201csubstantial evidence\u201d simply means \u201cthat the evidence must be existing and real, not just seeming or imaginary.\u201d The trial court\u2019s function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged. \u201cIn so doing the trial court should only be concerned that the evidence is sufficient to get the case to the jury; it should not be concerned with the weight of the evidence.\u201d It is not the rule in this jurisdiction that the trial court is required to determine that the evidence excludes every reasonable hypothesis of innocence before denying a defendant\u2019s motion to dismiss.\nIn ruling on a motion to dismiss:\n\u201cThe evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal; and all of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is to be considered by the court in ruling on the motion.\u201d\nState v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991) (emphasis omitted) (citations omitted). This standard, requiring substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense, applies whether the evidence is direct, circumstantial, or both. See State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 208 (1978).\nDefendant argues that there was insufficient evidence of defendant being the perpetrator of the offense because \u201c[t]he physical evidence did not point to either Angie or the defendant as the culprit, although each had ample time alone with the child to commit the act.\u201d Additionally, defendant asserts that during the relevant time period in which Amanda received the fatal blunt force trauma to the head, both defendant and Angie had exclusive control of Amanda at some point and consequently that the evidence could not support a finding that he inflicted the fatal injury.\nTaking the State\u2019s evidence as true and making all reasonable inferences in favor of the State, the evidence as to defendant being the perpetrator of the murder was sufficient to withstand defendant\u2019s motion to dismiss. Defendant had Amanda in his exclusive care between approximately 4:00 p.m. until midnight on the night before she was discovered dead. Angie testified that she did not check on the child when she returned home from work or during the night. By all accounts, Amanda was alive and conscious when Angie left the child to go to work that afternoon. Defendant admitted to Investigator Thorpe that he consumed alcohol that evening, that he \u201cmight\u201d have \u201cpopped\u201d Amanda in the mouth, and that he \u201ccould have\u201d slapped her across the face. Defendant also told Investigator Thorpe that he had shaken Amanda on prior occasions, but that he always stops when Amanda cries because he realizes he is hurting her.\nAs defendant correctly notes, if the evidence raises no more than a suspicion that the defendant committed the charged offense, then the evidence is not sufficient to carry the case to the jury. See State v. Byrd, 309 N.C. 132, 139-40, 305 S.E.2d 724, 730 (1983). While defendant presented some evidence to show that Angie abused Amanda and that there existed a possibility that Angie caused Amanda\u2019s death, this is merely an alternate theory as to the identity of the perpetrator of the offense. As noted above, it is not required for purposes of a motion to dismiss that the evidence exclude every reasonable hypothesis of innocence. See Vause, 328 N.C. at 237, 400 S.E.2d at 61. Thus, although there is some evidence that Angie could have been involved, such evidence does not remove from consideration the evidence tending to implicate defendant as the perpetrator. Since the evidence was sufficient to permit a reasonable inference that defendant was the perpetrator of the offense charged, the trial court did not err in denying defendant\u2019s motion to dismiss on this basis.\nDefendant also argues that the court erred by denying his motion to dismiss on the grounds that the evidence was insufficient to support a finding of malice. We agree with defendant that there was insufficient evidence of malice. Therefore, we reverse the trial court\u2019s ruling denying defendant\u2019s motion to dismiss, and we vacate the judgment for second degree murder. As discussed in further detail below, we further remand this case to the trial court for sentencing and entry of judgment finding defendant guilty of involuntary manslaughter. See State v. Vance, 328 N.C. 613, 403 S.E.2d 495 (1991).\nSecond degree murder is defined as \u201cthe unlawful killing of a human being with malice but without premeditation and deliberation.\u201d State v. Flowers, 347 N.C. 1, 29, 489 S.E.2d 391, 407 (1997), cert. denied, 522 U.S. 1135, 140 L. Ed. 2d 150 (1998). Malice is an essential element of second degree murder, and \u201c[w]hile an intent to kill is not a necessary element of murder in the second degree, that crime does not exist in the absence of some intentional act sufficient to show malice\u201d State v. Lang, 309 N.C. 512, 524, 308 S.E.2d 317, 323 (1983) (emphasis added). Our Supreme Court has recognized three types of malice in homicide cases:\n[I]n our law of homicide there are at least three kinds of malice. One 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, 191, 297 S.E.2d 532, 536 (1982) (citations omitted). The second kind of malice, which the State argues is the kind of malice present here, has been described as follows:\nThis kind of malice . . . \u201ccomprehend[s] not only particular animosity \u2018but 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.\u2019 \u201d\nState v. Blue, 138 N.C. App. 404, 409, 531 S.E.2d 267, 272 (2000) (quoting State v. Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978), quoting 21 A. & E. 133 (2d Edition 1902)), aff\u2019d in part and reversed in part on other grounds, 353 N.C. 364, 543 S.E.2d 478 (2001). Moreover, this Court has addressed the distinction between the \u201crecklessness of consequences\u201d required for a showing of malice and \u201crecklessness of consequences\u201d within the context of manslaughter. In Blue, the Court noted that\n\u201cthe distinction between \u2018recklessness\u2019 indicative of murder and \u2018recklessness\u2019 associated with manslaughter \u2018is one of degree rather than kind.\u2019 \u201d [State v. Rich, 351 N.C. 386, 393, 527 S.E.2d 299, 303 (2000)] (citation omitted). . . .\nFurthermore, the phrase \u201crecklessness of consequences\u201d continues to require a high degree of recklessness to prove malice .... Hence, in the case before us we describe malice . . . keeping in mind that the . . . phrase \u201crecklessness of consequences\u201d denotes the high degree of recklessness required for murder as opposed to the lesser degree required for manslaughter.\nBlue, 138 N.C. App. at 410, 531 S.E.2d at 272.\nThe necessary malice for second degree murder may be inferred from the \u201cwillful blow by an adult on the head of an infant.\u201d State v. Perdue, 320 N.C. 51, 58, 357 S.E.2d 345, 350 (1987). \u201cWillful\u201d has been defined as an act being done \u201c \u2018purposely and designedly in violation of [the] law.\u2019 \u201d State v. Whittle, 118 N.C. App. 130, 135, 454 S.E.2d 688, 691 (1995) (quoting State v. Stephenson, 218 N.C. 258, 264, 10 S.E.2d 819, 823 (1940)).\nHere, the evidence established that Amanda\u2019s death was the result of a blunt force injury to the head. However, the State failed to present any direct evidence that defendant inflicted the lethal blow to Amanda\u2019s head with the degree of recklessness required to find malice. Moreover, because the evidence failed to establish what caused the injury to Amanda\u2019s head, and whether the injury was the result of an intentional and willful act or the result of an accident, the evidence was insufficient to establish an inference of malice.\nThe forensic pathologist, Dr. Clark, testified that Amanda\u2019s death ultimately resulted from \u201ca blow or blows to the head, or included the head striking an object.\u201d Although he testified that shaking may have contributed to the death, Dr. Clark admitted that he could not tell to a certainty that the child had been shaken \u201cbecause it is possible that a significant enough blunt force injury can also produce retinal hemorrhages.\u201d Dr. Clark admitted that he did \u201cnot know exactly how the injuries occurred.\u201d Dr. Clark testified that it was difficult to pinpoint the time of death, and that \u201c[i]t could have been hours\u201d before Amanda died as a result of the blow, or it was possible that \u201cthe injuries could have been inflicted in as little as forty-five minutes before [the child] was found.\u201d Dr. Clark could not determine whether all of the bruises were sustained at the time of death; rather, some of the bruising appeared to have been sustained prior to the time of death. He testified that the bruises did not \u201ccontribute directly to the death as it resulted from [the] head injury.\u201d Dr. Clark did not find any other evidence of serious injury to the child.\nInvestigator Thorpe testified that defendant stated that he may have slapped Amanda in the face or popped her in the mouth. Defendant further stated that it was possible he had shaken Amanda, but that when he has done so before, Amanda cries, and he immediately stops. This Court has held that \u201ca defendant\u2019s shaking a baby and the baby\u2019s death by shaken baby syndrome are not the sole determinants of whether the State has produced sufficient evidence of malice to convict the defendant of murder in a shaken baby syndrome case.\u201d Blue, 138 N.C. App. at 413, 531 S.E.2d at 274.\nThe State argues that there was substantial evidence of malice presented at trial, relying upon State v. Hemphill, 104 N.C. App. 431, 409 S.E.2d 744 (1991), and State v. Qualls, 130 N.C. App. 1, 502 S.E.2d 31 (1998), aff\u2019d, 350 N.C. 56, 510 S.E.2d 376 (1999). However, we believe these cases may be distinguished based upon the same reasoning set forth by this Court in Blue, supra. In Blue, we noted that in Hemphill, the pathologist found significant evidence of shaken baby syndrome, including vomiting, hemorrhaging in the lungs, and bruises on the front and back of the brain. The pathologist testified that death resulted from \u201c \u2018violent or vigorous\u2019 \u201d shaking. Blue, 138 N.C. App. at 411, 531 S.E.2d at 273 (quoting Hemphill, 104 N.C. App. at 432, 409 S.E.2d at 744). The defendant admitted that he had shaken the baby several times shortly before her death, despite the child\u2019s continuous vomiting. Id.\nWhile the Hemphill Court determined that sufficient evidence of malice existed, we noted in Blue that the Hemphill Court \u201cdid not limit its examination to the sole issues of whether the defendant shook the baby and whether the baby died from shaken baby syndrome.\u201d Id. at 413, 531 S.E.2d at 274. Rather, the holding \u201cwas based on all of the State\u2019s evidence and not solely on the two factors that the \u2018defendant shook the baby\u2019 and \u2018the cause of death was \u201cShaken Baby Syndrome.\u201d \u2019 \u201d Id. at 412, 531 S.E.2d 273 (quoting Hemphill, 104 N.C. App. at 434, 409 S.E.2d at 745).\nThe Blue Court also distinguished Qualls, noting that, in Qualls, this Court found sufficient evidence of malice in the defendant\u2019s abuse of the victim, and the victim\u2019s resulting death from subdural hemorrhaging. Id. (citing Qualls, 130 N.C. App. at 11, 502 S.E.2d at 38). In that case, however, the evidence established that the defendant \u201cpreviously inflicted a severe blow to . . . the victim\u2019s head.\u201d Qualls, 130 N.C. App. at 11, 502 S.E.2d at 37-38. In addition, the forensic pathologist testified that the contusions on the child\u2019s brain were \u201c \u2018consistent with more than one episode of intentionally-inflicted injury.\u2019 \u201d Id. at 11, 502 S.E.2d at 38. The pathologist further testified that the injury to the child\u2019s head which lead to his death was \u201c \u2018not an accidental injury.\u2019 \u201d Id. at 4, 502 S.E.2d at 34. In citing Qualls, we reemphasized in Blue that \u201ca defendant\u2019s shaking a baby and the baby\u2019s death by shaken baby syndrome are not the sole determinants of whether the State has produced sufficient evidence of malice to convict the defendant of murder in a shaken baby syndrome case.\u201d Blue, 138 N.C. App. at 413, 531 S.E.2d at 274.\nIn contrast, the State in this case has failed to present any evidence of malice other than the fact of Amanda\u2019s injury, that defendant was with the child from 4:00 p.m. until midnight, and that defendant \u201cmight\u201d have \u201cpopped\u201d Amanda on the mouth or slapped her. The fact that defendant admitted to having physically disciplined Amanda that evening does not support a finding of malice. See Blue, 138 N.C. App. at 414, 531 S.E.2d at 275 (no evidence of malice despite defendant\u2019s admission that he \u201cbecame frustrated\u201d with the child and shook the child). Moreover, unlike the pathologist\u2019s testimony in Qualls, which clearly established an expert opinion that the child\u2019s injuries were \u201cintentionally-inflicted\u201d and \u201cnot . . . accidental,\u201d Dr. Clark admitted that he did \u201cnot know exactly how the injuries occurred\u201d or whether the blunt force trauma to the child\u2019s head was intentionally inflicted.\nIn fact, the evidence presented did not establish that the blunt force trauma which caused Amanda\u2019s death was administered by an adult hand. Although Dr. Clark opined that some of the bruises to Amanda\u2019s body were \u201csuggestive of an adult hand,\u201d he testified that such bruises did not \u201ccontribute directly to the death as it resulted from [the] head injury.\u201d Dr. Clark stated that the blunt force trauma could have been caused either by an object striking the child\u2019s head, or by the child\u2019s head striking an object. Thus, there is no evidence in the record, beyond suspicion, that the fatal blunt force trauma to Amanda\u2019s head was administered by an adult hand. In the absence of such evidence, we do not believe that the evidence supported an inference of malice. See Perdue, 320 N.C. at 58, 357 S.E.2d at 350 (malice may be inferred from the \u201cwillful blow by an adult on the head of an infant\u201d).\nIn addition, although the evidence did tend to show that Amanda had been abused and Dr. Clark opined that she suffered from battered child syndrome, none of the evidence raises more than a suspicion that defendant, rather than some other individual, inflicted the prior abuse. To the contrary, Angie testified that she trusted defendant with the children and that she never witnessed defendant mistreat the children. Indeed, evidence was presented tending to establish that Angie could have been responsible for some of the child\u2019s prior injuries. Thus, the State failed to present evidence of previous acts of child abuse which might permit an inference of malice. See State v. Smith, 61 N.C. App. 52, 57-58, 300 S.E.2d 403, 407 (1983). We also note that the facts show that defendant cooperated with police and investigators, he appeared upset at the child\u2019s death, he made the 911 call, and he attempted to revive Amanda by administering CPR.\nIn sum, although the evidence and circumstances surrounding Amanda\u2019s death most certainly raise a suspicion that defendant could have been responsible for the child\u2019s blunt force head trauma, the State failed to present substantial evidence of the malice required to support a conviction of second degree murder.\nIn his second assignment of error, defendant argues that the trial court committed plain error in its instruction to the jury on how to assess whether the evidence supported a conclusion that the injury which caused Amanda\u2019s death was intentionally inflicted, as required for second degree murder. Because we find that defendant\u2019s conviction for second degree murder must be vacated, we need not consider this matter on appeal.\nIn the present case, the trial court submitted possible verdicts finding defendant guilty of second degree murder, guilty of the lesser included offense of involuntary manslaughter, or not guilty. The jury convicted defendant of second degree murder, and the judgment for second degree murder which we hold must be vacated was entered upon that verdict. In finding defendant guilty of second degree murder, however, the jury necessarily had to find facts establishing the lesser included offense of involuntary manslaughter. See State v. Greene, 314 N.C. 649, 336 S.E.2d 87 (1985). For this reason, we remand this case for judgment as upon a verdict of guilty of involuntary manslaughter. See Vance, 328 N.C. at 623, 403 S.E.2d at 501-02.\nWe hold that the evidence on the issue of malice was not substantial enough to withstand defendant\u2019s motion to dismiss on the charge of second degree murder, and we vacate that judgment. We remand this case to the Superior Court, Orange County, for sentencing and entry of judgment finding defendant guilty of involuntary manslaughter.\nReversed and remanded.\nJudge WALKER concurs.\nJudge TYSON concurs in part and dissents in part in a separate opinion.", "type": "majority", "author": "HUNTER, Judge." }, { "text": "TYSON, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority that there is sufficient evidence of defendant\u2019s identity as the perpetrator of the crime. I respectfully dissent from the majority\u2019s holding that there is insufficient evidence that defendant acted with malice. The majority correctly states the law regarding second degree murder and malice. The majority misapplies the law to the facts in this case.\nThe evidence was sufficient to prove that defendant acted with malice as that element has been defined and applied by this Court and our Supreme Court. I find no error in defendant\u2019s conviction of second degree murder.\nI. Malice\nThe majority\u2019s opinion sets forth three types of malice to support a charge of second degree murder. With regard to the second type of malice, the majority distinguishes between a higher and lesser degree of \u201crecklessness\u201d to separate second degree murder from manslaughter. The majority never analyzes why defendant\u2019s actions the night of the murder were the lesser \u201crecklessness\u201d to reduce defendant\u2019s conviction to involuntary manslaughter.\nTheir opinion sets forth defendant\u2019s statements about what he did and possibly did to Amanda the night of her death. Defendant admitted to: (1) possibly shaking Amanda; and, (2) possibly slapping her face; and, (3) \u201cpopping \u201d her mouth; and, (4) possibly hitting her in the head; and, (5) previously shaking Amanda; and, (6) consuming alcohol the night Amanda died.\nThe majority cites State v. Blue for the proposition that mere \u201cshaking\u201d of a baby will not sustain malice. 138 N.C. App. 404, 413, 531 S.E.2d 267, 274 (2000). The majority attempts to buttress that point by stating that the pathologist (\u201cDr. Clark\u201d) was unsure whether shaking alone or a blunt blow to the head caused Amanda\u2019s death. However, Dr. Clark testified that Amanda\u2019s death was \u201cthe result of blunt force injury to the head, including physical injury resulting in bruises, and in all likelihood including shaking.\u201d Dr. Clark also testified that the injuries Amanda suffered \u201ctakes more force than a child is likely to sustain in the ordinary activities of daily living.\u201d The jury could have reasonably concluded that Amanda\u2019s injuries were not \u201caccidental.\u201d The majority\u2019s implication that the injuries might have been an accident is inconsistent with the entirety of Dr. Clark\u2019s testimony. Taken as a whole, Dr. Clark\u2019s testimony concluded that these injuries were the result of violent shaking and one or more blunt force injuries to the head administered by an adult.\nThe majority also discusses mitigating actions by defendant after Amanda\u2019s death intending to show a lack of \u201cmalice,\u201d and that the State presented no evidence that defendant previously abused Amanda. Not only is this factually inaccurate, but their opinion mentions that \u201c[defendant further stated that it was possible he had shaken Amanda, but that when he has done so before, Amanda cries, and he immediately stops.\u201d (emphasis supplied). The opinion concludes that this evidence raises no more than a \u201csuspicion\u201d that defendant inflicted prior abuse. I cannot agree that previous shaking of a twenty-one pound, two-year-old is not \u201cabuse.\u201d Our focus should concentrate on whether defendant\u2019s actions were malicious the night Amanda died.\nFinally, the majority mentions that none of the State\u2019s evidence suggested that the blow to the head was administered \u201cwillfully or with the degree of recklessness required to find malice.\u201d Intent to kill or harm is not an element of second degree murder. Only an intentional act sufficient to demonstrate malice is required. State v. Lang, 309 N.C. at 524, 308 S.E.2d at 323.\nHere the evidence was sufficient to demonstrate defendant acted with malice. The majority relies on State v. Blue to control the result in this case. The facts in this case are distinguishable from Blue, and the facts here are more analogous to other infant death cases where malice was shown and convictions of second degree murder were upheld.\nA. State v. Qualls\nIn State v. Qualls, 130 N.C. App. 1, 502 S.E.2d 31 (1998), defendant argued that the State\u2019s evidence that he may have shaken the baby was insufficient to support malice and his conviction for second degree murder. Id. at 10, 502 S.E.2d at 37. The factual similarities of Qualls and the present case are compelling. Defendant was home alone with the Qualls victim. The defendant called 911 after victim choked and gaged. The victim was rushed to the hospital and died four days later.\nThe treating physician testified that:\n[T]here [are] a number of findings on [the victim\u2019s] exam . . . that are consistent with a shaking type injury, one of the most remarkable of those being that the hemorrhages, or bleeding, that was seen ... in the back of. . . the eye or on the retina.. . That, along with the evidence of head trauma and the fractures that were seen on a brain scan and swelling of the brain, taken together, were evidence that. . . this baby had suffered a severe injury and possibly some shaking to cause that swelling . . .\nId. at 4, 502 S.E.2d at 33-34.\nThese injuries are virtually identical to those described in Dr. Clark\u2019s testimony in the present case. Two differences are that Amanda did not have a fractured skull, although she did have a blunt blow to the head in addition to injuries sustained from violent shaking. Another difference is that the baby in Qualls died four days after being brought into and cared for by the hospital. Amanda never made it to the hospital. She died alone, uncovered, wearing only a diaper.\nThe defendant in Qualls denied responsibility for the severe injuries to the victim. He stated that \u201che may have accidently kicked or tripped on the victim.\" Id. at 5, 502 S.E.2d at 34. The next day defendant said that \u201che may have also shaken the victim . . . trying to arouse him.\u201d Id. At another time \u201che denied that he either shook, kicked or tripped on the victim.\u201d Id. As here, defendant in Qualls had exclusive control and possession of the victim during the time period the injuries were sustained that resulted in death. This Court found no error in defendant\u2019s conviction for second degree murder.\nB. State v. Hemphill\nIn State v. Hemphill, 104 N.C. App. 431, 409 S.E.2d 744 (1991) the facts are also similar to the present case.\nThe defendant in Hemphill contended that the \u201ctrial court erred in denying his motion to dismiss the charge of second degree murder. He argues that the evidence is insufficient to support a finding of the element of malice.\u201d Id. at 433, 409 S.E.2d at 745.\nAs in the present case, Hemphill was alone with the victim baby. During an interview, defendant initially denied that he had shaken the victim. At trial defendant testified that he \u201chad shaken the child because she was choking,. . .\u201d Id. This Court held that \u201cthe evidence in the present case is sufficient to support a finding by the jury that defendant acted with malice as defined in Wilkerson, \u201d even though no direct evidence linked defendant\u2019s conduct to the violent shaking which produced the fatal injuries. Id. at 434, 409 S.E.2d at 745. Our Court stated:\nevidence that defendant shook the baby as well as the expert testimony that the cause of death was \u2018Shaken Baby Syndrome,\u2019 which typically results from an infant\u2019s head being held and shaken so violently that the brain is shaken inside the skull causing bruising and tearing of blood vessels on the surface of and inside the brain, is sufficient to show that defendant acted with \u2018recklessness of consequences,. . . though there may be no intention to injure a particular person.\u2019\nId.\nIn Hemphill there was no evidence that the baby was \u201chit about the head, or popped in the mouth.\u201d Medical evidence of violent shaking was sufficient to show that defendant acted with the requisite \u201crecklessness of consequences\u201d to sustain his conviction for second degree murder.\nThe majority\u2019s opinion misapplies our central holding in Hemphill. Evidence that a person shakes a baby plus expert testimony of head injuries that resulted from violent shaking \u201cis sufficient to show recklessness of consequences\u201d to show malice. In the present case, defendant admitted that \u201c[he] might have [shaken Amanda] . . . [and] it could have been last night.\u201d These statements are not mere \u201csuspicion\u201d that defendant shook Amanda. A jury reasonably could have concluded that defendant shook Amanda. Dr. Clark testified that massive injuries to Amanda\u2019s head and brain were caused by violent shaking and a blunt force injury to the head.\nC. State v. Blue\nIn Blue we emphasized that \u201ca defendant\u2019s shaking a baby and the baby\u2019s death by shaken baby syndrome are not the sole determinants of whether the State has produced sufficient evidence of malice to convict the defendant of murder in a shaken baby syndrome case.\u201d State v. Blue, at 413, 531 S.E.2d at 274. This Court in Blue found that the evidence was \u201csufficient only to raise a suspicion or conjecture of malice ...\u201d Id. at 414, 531 S.E.2d at 275. The Supreme Court remanded the case for sentencing under involuntary manslaughter. State v. Blue, 353 N.C. 364, 543 S.E.2d 478 (2001).\nThe majority relies on Blue to support its holding that the evidence does not rise to the level of \u201crecklessness of consequences\u201d to show malice. That reliance is misplaced.\nThe facts in Blue are distinguishable from the facts in this case, Qualls, and Hemphill. In Blue the baby was undeveloped, weak and only two months old. The defendant-father had placed the victim on his knee and began to bounce her to try and get her to stop crying. Defendant said that he probably was not supporting the back of the baby\u2019s head properly when he shook her. The pathologist in Blue testified that \u201cmany small blood vessels on the surface of the brain were torn and bleeding, but that larger blood vessels were not tom. \u201d Id. at 406, 531 S.E.2d at 270 (emphasis supplied). \u201cThere were no other internal or external injuries to [the victim\u2019s] body... .\u201d Id. at 407, 531 S.E.2d at 270. The pathologist also testified there were no external head injuries and that the skull was not fractured. \u201cThe evidence did not show she was shaken violently or vigorously and she did not suffer from the same signs of injury as the baby in Hemphill or in Qualls.'\u201d Id. at 413, 531 S.E.2d at 274. No evidence was presented that the baby in Blue was either hit or struck. The injuries Amanda sustained are much more severe than those of the victim in Blue.\nII. Evidence of Malice\nState v. Blue emphasizes that we should \u201cexamine all of the State\u2019s evidence to determine whether it was sufficient to permit a rational jury to find the existence of malice beyond a reasonable doubt.\u201d Id. at 412, 531 S.E.2d at 273 (citation omitted).\nA. Defendant\u2019s Statements\nDefendant in the present case did not testify. Defendant did meet twice with investigator Ned Thorpe (\u201cThorpe\u201d). These meetings produced lengthy recorded statements that were played for the jury for corroboration of the State\u2019s evidence.\nDefendant-stepfather had the sole care, custody, and control of Amanda from the time her mother left for work at 3:55 p.m. on 9 December until after midnight when Amanda\u2019s mother returned home. Defendant admitted to arriving home from work at \u201cabout 3:30 p.m.\u201d Amanda was asleep on the couch with her mother. Defendant stated that Amanda was \u201calert,\u201d after she awoke. Amanda \u201cgot up off the couch, she walked over, [and] got her clothes on . . . .\u201d Defendant stated that he took Amanda and his natural daughter to pick up his two sons at approximately 4:30 p.m. and brought them back for dinner. Around 8:30 p.m. he \u201cgot the shoes on the little ones, put their jackets on, we went out to the car so [he] could drop the boys back off.\u201d Defendant stated that he, Amanda, and her infant sister arrived back home around 9:20 p.m. Defendant stated that after returning home, Amanda \u201csat down, took her shoes off, like she normally does inside the back door, come [sic] in and sat down in the living room . . . she was watching TV . . . .\u201d This evidence shows that Amanda was alive, conscious, alert, and ambulatory for more than five hours after Amanda was left in defendant\u2019s sole custody.\nDefendant stated that he drinks alcohol, and that he had been drinking alcohol the night Amanda died. Detective Thorpe asked \u201c[o]n last evening, December 9th, did you consume any alcohol?\u201d Defendant responded \u201c[y]es I did . . . Probably three beers and a mixed drink.\u201d Defendant also stated that he believed he was not drunk and \u201c[t]o consider myself drunk . . . I\u2019ve drank over a 12-pack, and still wasn\u2019t.\u201d Defendant stated that there was \u201cfour or five cases\u201d of beer in the house on the night of Amanda\u2019s death.\nThorpe asked defendant, \u201cMr. Smith let me ask you point blank, this morning, last night, did at any time you strike [Amanda] Cook about the face or head?\u201d Defendant responded that \u201cif I did, I might have popped her in the mouth, she has a bad habit of saying no . . .\u201d Defendant was also asked \u201cMr. Smith, on December 9th, at any time did you shake [Amanda]?\u201d He responded \u201cI might have, I\u2019m not positive.\u201d Later, Thorpe again asked defendant \u201cMr. Smith . . ., you admitted hitting the child ... on 12-9-98, when did you shake her last trying to make her stop crying or whatever?\u201d Defendant responded \u201cI can\u2019t recall.\u201d When asked again \u201c[d]id you shake her last night\u201d defendant stated \u201c [i]t could have been last night, what I \u2014 if I realize that I\u2019ve got her up shaking her, I sit her down and I walk off.\u201d When defendant discussed shaking Amanda with Thorpe, he also stated \u201cI realize I go too far when I do that.\u201d\nThe uncontroverted facts in this case and defendant\u2019s own statements show that Amanda was conscious and ambulatory when she and defendant returned to the house at approximately 9:20 p.m. on 9 December. Defendant stated that he was \u201cupset\u201d with Amanda and had to \u201cdiscipline\u201d her that night before putting her to bed around 10:30 p.m. or 11:00 p.m. According to defendant's statements, this discipline included possible shaking, possibly hitting her about the head, and popping her in the mouth; all administered while defendant was under the influence of alcohol. Mrs. Smith testified that she arrived home from work after midnight and never checked on Amanda. Amanda was found dead by defendant when he checked on her at 5:45 a.m. on 10 December. Defendant stated that Amanda was warm but stiff at that time. Amanda\u2019s mother testified that after defendant told her that Amanda was dead, the defendant further stated that \u201cthey were going to come and get [me].\u201d\nAfter defendant made these statements, he called 911. Defendant stated the paramedics arrived about 15 minutes after the 911 call. Paramedic Pope did not attempt any lifesaving measures on Amanda. Pope testified that Amanda had been dead in \u201cexcess of a couple of hours, at least.\u201d He testified that Amanda\u2019s body was cool and rigor mortis had set in when he had arrived.\nB. Dr. Clark\u2019s Testimony\nDr. Clark testified as an expert witness to the extent of Amanda\u2019s injuries and the cause of her death as follows: Two year old Amanda was \u201c32 inches tall and weighed 21 pounds.\u201d \u201cThe external examination of this body showed extensive evidence of injury. There were bruises of varying ages distributed over the body from the top of the head to the legs, and even one on the foot.\u201d There were three groups of bruises which were \u201cpurple\u201d in color, indicating that they were recent. Dr. Clark stated that \u201c[t]he shape and distribution of the bruises was often in a pattern suggestive of an adult hand.\u201d All of the bruises \u201crelate to the cause of death, in that they are the basis for my having called this battered child syndrome, but they don\u2019t contribute directly to the death as it resulted from head injury.\u201d\nAs to the head injuries, Dr. Clark testified that the\nbrain was quite bloody . . . blood [was] present on both sides of the brain . . . [Approximately 25 grams [on one side and] 5 grams [on the other]. . . The brain itself had a bruise or a contusion on it . . . [Also there were bruises on the underside of the scalp, on the top and both sides.] [B]lood was present in the retinas of both eyes . . ., one of them somewhat more than the other . . . The spinal cord also . . . had blood surrounding its membranes, as did the brain.\nDr. Clark concluded, \u201cI would expect that shaking played at least a part in this death. And by shaking, I mean picking up the child, shaking the child violently, so that the head snaps back and forth enough that blood vessels are ruptured, causing the bleeding within the eyes and the bleeding surrounding the brain.\u201d (emphasis supplied).\nAlso the \u201cpresence of bruises on top of the head and all over the rest of the body also shows that blunt force injury occurred.\u201d \u201cAs there were bruises present internally and externally, I concluded that blunt force injury was present and played a significant role in this death.\u201d \u201cThere was a small amount of hemorrhage or bleeding of the inner upper lip, . . .\nWith respect to the time and cause of death, Dr. Clark testified that \u201c[t]he child could conceivably have lived for a day or more with these injuries. But not in a conscious state.\u201d (emphasis supplied). \u201cI think [Amanda] would have been conscious either no time or a very short period of time following these injuries. Very short meaning measured in minutes.\" (emphasis supplied). The majority\u2019s opinion ignores this testimony.\nDuring cross-examination Dr. Clark maintained that \u201cI don\u2019t think this child could have behaved normally following these injuries, and the child could have lived in an unconscious state for a period of hours or more than a day. I think if it was a day, there would have been at least some early pneumonia.\u201d The autopsy evidence showed none. Dr. Clark concluded that Amanda died as a \u201cresult of blunt force injury to the head, including physical injury resulting in bruises, and in all likelihood including shaking.\u201d\nClearly, defendant\u2019s actions and conduct were as egregious as the defendant\u2019s actions in Qualls and Hemphill, and far worse than those of the defendant in Blue. None of the defendants in those cases were under the influence of alcohol when the acts resulting in death were inflicted.\nC. State v. Perdue\nThe majority also correctly points out that our Supreme Court has held that malice may also be inferred from a \u201cwillful blow by an adult on the head of an infant.\u201d State v. Perdue, 320 N.C. 51, 58, 357 S.E.2d 345, 350 (citation omitted). Willfully is defined as \u201cpurposely\u201d and \u201cdesignedly.\u201d State v. Whittle, 118 N.C. App. 130, 135, 454 S.E.2d 688, 691 (1995).\nDefendant admitted to being upset with Amanda and disciplined her sometime during the evening when she was in his exclusive custody. Defendant also admitted to being under the influence of alcohol. During the course of his interviews, defendant vacillated as to whether he hit and shook Amanda, the amount of force used, and adjusted his version of events.\nDefendant said he had to strike Amanda because she had a bad habit of saying \u201cno, no, no, no.\u201d According to defendant, the purpose of his discipline was to keep Amanda away from her baby sister who, according to defendant, Amanda was pestering. It was the defendant\u2019s \u201cconscious object\u201d or \u201cpurpose\u201d to strike Amanda. The forensic evidence is overwhelming that the blow or blows to Amanda were from an adult, and, combined with the violent shaking, were significant enough to cause death. A jury could have reasonably concluded that defendant willfully and maliciously struck Amanda\u2019s head and violently shook her.\nThe majority\u2019s opinion concludes that \u201c[t]he evidence presented did not establish that the blunt force trauma which caused Amanda\u2019s death was administered by an adult hand.\u201d This conclusion confuses Dr. Clark\u2019s testimony about Amanda\u2019s body injuries with her head injuries. Dr. Clark testified that the injuries and bruises to the body were indicative of an \u201cadult hand.\u201d The fatal blow and violent shaking which caused Amanda\u2019s death were administered by an adult.\nThe majority\u2019s opinion also recites at length Mrs. Smith\u2019s bizarre behavior and actions toward Amanda. Without doubt, Mrs. Smith\u2019s actions were deplorable and totally inconsistent with those of a loving, natural mother. Mrs. Smith testified at trial and was subjected to a vigorous cross-examination by defense counsel. The jury had a full opportunity to observe her responses and demeanor. Despite Amanda\u2019s mother\u2019s inexcusable behavior and uncaring neglect, the jury concluded that defendant was guilty of second degree murder and not involuntary manslaughter. Although defendant did not testify in his own defense, his version of the events were heard and considered by the jury through his recorded statements to Detective Thorpe.\nDefendant presumably did not testify due to his prior convictions for driving while impaired, misdemeanor child abuse, and indecent liberties with a child. The jury was unaware of defendant\u2019s prior record when it returned its verdict of second degree murder. The trial court determined that there were seven prior record points and imposed a sentence for a minimum term of 220 months and for a maximum term of 273 months, due to these prior convictions. N.C. Gen. Stat. \u00a7 15A-1340.17(c) (1997). The trial court ordered this judgment be executed with credit for 371 days of prior confinement.\nIII. Summary\nThe evidence shows that Amanda was sick for several days before her death. The individual that Amanda counted on, and who had a legal duty to protect her and to keep her safe, treated her illness not by caring for her or taking her to the doctor, but with a \u201cpop in the mouth,\u201d hitting her in the head, and shaking her. Defendant admitted to consuming at least three beers and a mixed drink on the night Amanda died, and to keeping four to five cases of beer in the home. Defendant also admitted to shaking and spanking Amanda on prior occasions. Dr. Clark testified that Amanda died as a result of violent shaking and a blow or blows to the head administered by an adult.\nViewing this evidence in totality after giving the State the benefit of all reasonable inferences, the jury could have concluded that defendant acted with malice. The facts more than satisfy the Wilkerson definition of malice as used in Hemphill, Qualls and Blue. Wilkerson requires \u201cwickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind utterly regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person.\u201d State v. Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978). The majority mistakenly holds that these facts raise only a suspicion of \u201crecklessness of consequences,\u201d and do not show malice. The evidence was sufficient for the jury to conclude that defendant acted with malice to sustain the conviction for second degree murder. I find no error in the jury\u2019s verdict or the judgment. Therefore, I respectfully dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "TYSON, Judge," } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Steven M. Arbogast, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES RUSSELL SMITH, JR.\nNo. COA00-616\n(Filed 4 September 2001)\n1. Homicide\u2014 second-degree murder \u2014 shaken baby syndrome \u2014 motion to dismiss \u2014 defendant as perpetrator\u2014 sufficiency of evidence\nThe trial court did not err in a shaken baby syndrome case by failing to grant defendant stepfather\u2019s motion to dismiss the charge of second-degree murder for the death of his wife\u2019s two-year-old daughter on the basis that there was allegedly insufficient evidence of defendant being the perpetrator of the offense, because the evidence taken in the light most favorable to the State reveals that: (1) defendant had the child in his exclusive care during the time period the injuries were sustained that resulted in the child\u2019s death; (2) the wife did not check on the child when she returned home from work or during the night, but the child was alive and conscious when the wife left the child to go to work that afternoon; (3) defendant admitted to an investigator that defendant consumed alcohol that evening and that he might have popped the child in the mouth and that he could have slapped her across the face; (4) defendant told the investigator that he had shaken the child on prior occasions; and (5) while defendant presented some evidence to show his wife abused the child and that there existed a possibility that his wife caused the child\u2019s death, this evidence was merely an alternative theory as to the identity of the perpetrator of the offense.\n2. Homicide\u2014 second-degree murder \u2014 shaken baby syndrome \u2014 motion to dismiss \u2014 malice\u2014sufficiency of evidence\nThe trial court erred in a shaken baby syndrome case by failing to grant defendant stepfather\u2019s motion to dismiss the charge of second-degree murder for the death of his wife\u2019s two-year-old daughter based on the State\u2019s failure to present substantial evidence that defendant had the necessary malice and the case is remanded for sentencing and entry of judgment finding defendant guilty of involuntary manslaughter, because: (1) the State failed to present any direct evidence that defendant inflicted the lethal blow to the child\u2019s head with the degree of recklessness required to find malice; (2) the evidence failed to establish the cause of the child\u2019s head injury and whether the injury was the result of an intentional and willful act or the result of an accident; (3) the fact that defendant admitted to having physically disciplined the child that evening does not support a finding of malice; (4) the State failed to present evidence of previous acts of child abuse which might permit an inference of malice; and (5) defendant cooperated with police, appeared upset at the child\u2019s death, made the 911 call, and attempted to revive the child by administering CPR.\nJudge Tyson concurring in part and dissenting in part.\nAppeal by defendant from judgment entered 15 December 1999 by Judge J. B. Allen, Jr. in Orange County Superior Court. Heard in the Court of Appeals 18 April 2001.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Steven M. Arbogast, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant." }, "file_name": "0001-01", "first_page_order": 33, "last_page_order": 55 }