{ "id": 9250203, "name": "STATE OF NORTH CAROLINA v. RICHARD WAYNE VASSEY", "name_abbreviation": "State v. Vassey", "decision_date": "2002-12-03", "docket_number": "No. COA02-229", "first_page": "384", "last_page": "392", "citations": [ { "type": "official", "cite": "154 N.C. App. 384" } ], "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": "545 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "352 N.C. 681", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684881, 685105, 685010, 684922, 685020 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/352/0681-03", "/nc/352/0681-05", "/nc/352/0681-01", "/nc/352/0681-02", "/nc/352/0681-04" ] }, { "cite": "530 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "864-65" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079314 ], "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0252-01" ] }, { "cite": "546 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135586, 135716, 135621, 135595, 135666 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0271-03", "/nc/353/0271-02", "/nc/353/0271-04", "/nc/353/0271-01", "/nc/353/0271-05" ] }, { "cite": "454 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "842" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918006 ], "year": 1995, "pin_cites": [ { "page": "319-20" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0316-01" ] }, { "cite": "531 S.E.2d 861", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "867" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 481", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080396 ], "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0481-01" ] }, { "cite": "140 S.E.2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "244" } ], "opinion_index": 0 }, { "cite": "263 N.C. 759", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572949 ], "year": 1965, "pin_cites": [ { "page": "764" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0759-01" ] }, { "cite": "368 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 333", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524283 ], "year": 1988, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0333-01" ] }, { "cite": "336 S.E.2d 852", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "855", "parenthetical": "citations omitted" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 39", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519454 ], "year": 1985, "pin_cites": [ { "page": "45", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0039-01" ] }, { "cite": "543 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "205", "parenthetical": "quoting Rich, 351 N.C. at 395, 527 S.E.2d at 304" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 435", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441585 ], "year": 2001, "pin_cites": [ { "page": "441", "parenthetical": "quoting Rich, 351 N.C. at 395, 527 S.E.2d at 304" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0435-01" ] }, { "cite": "402 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "385" } ], "opinion_index": 0 }, { "cite": "328 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542671 ], "year": 1991, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0515-01" ] }, { "cite": "527 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "304", "parenthetical": "quoting State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991)" }, { "page": "304" }, { "page": "305-06" } ], "opinion_index": 0 }, { "cite": "351 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155839 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "395", "parenthetical": "quoting State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991)" }, { "page": "395" }, { "page": "398-99" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0386-01" ] }, { "cite": "356 N.C. 310", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511460, 1511194, 1511354, 1511355, 1511263 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0310-01", "/nc/356/0310-03", "/nc/356/0310-04", "/nc/356/0310-05", "/nc/356/0310-02" ] }, { "cite": "565 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "277" } ], "opinion_index": 0 }, { "cite": "151 N.C. 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App.", "case_ids": [ 9079887 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/151/0236-01" ] }, { "cite": "368 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "383" } ], "opinion_index": 0 }, { "cite": "322 N.C. 349", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515495 ], "year": 1988, "pin_cites": [ { "page": "358" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0349-01" ] }, { "cite": "400 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "328 N.C. 231", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541929 ], "year": 1991, "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0231-01" ] }, { "cite": "528 S.E.2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "30" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 352", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11093361 ], "year": 2000, "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0352-01" ] } ], "analysis": { "cardinality": 934, "char_count": 21590, "ocr_confidence": 0.75, "pagerank": { "raw": 4.173352246551783e-07, "percentile": 0.9122914115842276 }, "sha256": "d151743d876f21d121ef2de9af5f7a81d7385cdd72a11b2f9ea53de41fda0e72", "simhash": "1:e1e63060461e88fb", "word_count": 3552 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HUNTER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RICHARD WAYNE VASSEY" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nRichard Wayne Vassey (\u201cdefendant\u201d) appeals from judgments of the trial court entered upon jury verdicts finding defendant guilty of second-degree murder, driving while impaired and with a revoked license, and felonious hit and run/failure to stop for personal injury. For the reasons stated herein, we uphold defendant\u2019s convictions.\nAt trial, the State presented evidence tending to show the following: In the early morning hours of 3 January 2001, passing motorists on Route 274 in Gaston County, North Carolina, discovered a vehicle in the ditch beside the road. As the motorists approached the vehicle, they noticed feet protruding from the driver\u2019s side window. Inside the vehicle was the body of Kathy Elaine Long (\u201cLong\u201d). Responding emergency assistance crews pronounced Long dead at the scene. A pathologist for the State testified that Long suffered lethal injuries to her skull and heart caused by blunt force trauma. The pathologist also noted that Long was legally intoxicated at the time of her death.\nState Trooper Brian Owenby (\u201cTrooper Owenby\u201d) testified for the State and described the scene of the accident. When Trooper Owenby arrived at the scene, he observed damage to the front left and the back right quarter panels of the vehicle. Black tire impressions on the roadway revealed that the vehicle skidded sideways, crossing over the center divider line into the opposite lane and onto the shoulder of the road, where it collided with a mailbox and crashed into the ditch. Trooper Owenby confirmed that the road conditions were dry, with no snow or rain.\nMr. Trenton Wright (\u201cWright\u201d), a former volunteer fireman, testified on behalf of the State. Wright stated that he and his family lived near Route 274, less than two miles away from the scene of the accident. In the early morning of 3 January 2001, Wright responded to someone at his front door. Looking outside, Wright observed defendant standing on the front porch. Defendant explained that his car had broken down at a restaurant located approximately four miles away, and that he was \u201cfreezing to death.\u201d Although the temperature was only twelve degrees Fahrenheit outside, defendant wore no shoes. Wright further described defendant\u2019s general physical appearance as \u201cpretty rough,\u201d with \u201creddish\u201d eyes, \u201cmessed-up\u201d hair, and what appeared to be blood smeared across his forehead. Because he felt \u201cuneasy\u201d about defendant, Wright did not open the door and asked defendant to step away from the house. Wright did, however, offer to make a telephone call on defendant\u2019s behalf. Defendant instructed Wright to call Wendell Bunch (\u201cBunch\u201d), the owner of a restaurant where defendant worked. After Wright reached Bunch at his home, he left the telephone on the porch for defendant\u2019s use. Defendant spoke on the telephone briefly, thanked Wright, and walked away.\nWendell Bunch testified that he had been acquainted with defendant, his employee, for approximately four years. Bunch stated that Long was defendant\u2019s girlfriend, that they lived together, and that she \u201calways chauffeured [defendant] around\u201d because defendant had no driver\u2019s license. Bunch reported that, when he spoke with defendant on Wright\u2019s telephone the morning of 3 January 2001, defendant told him that he was \u201call to hell in a bucket\u201d and asked Bunch to pick him up. When Bunch asked defendant where Long was, defendant responded, \u201cJust come and get me.\u201d According to Bunch, the \u201cfirst thing [he] noticed\u201d upon picking defendant up \u201cwas a strong presence of alcohol\u201d emanating from defendant\u2019s person. Defendant\u2019s speech was slightly slurred, his eyes were glassy, and his hair was \u201cmessed up.\u201d Bunch noticed that defendant\u2019s blue jeans were ripped and there was blood on his right hand. In Bunch\u2019s opinion, defendant \u201cwasn\u2019t knee-walking drunk, but he was definitely drunk.\u201d Shortly after Bunch picked defendant up, \u201che broke down and whimpered a little bit and he said, T think something might have happened to [Long], I think she might be dead.\u2019 \u201d Defendant denied knowing Long\u2019s location, however, explaining that he was worried because she had left home that morning at four a.m. and had not returned. Bunch drove defendant to his residence and left him there.\nA few hours , later, Bunch telephoned defendant, who informed him that Long had not yet returned home. Bunch was then contacted by State Trooper Charles Thomas (\u201cTrooper Thomas\u201d), who asked Bunch for defendant\u2019s telephone number. Bunch gave the officer defendant\u2019s number, but told Trooper Thomas nothing about his previous interaction with defendant that morning. Approximately fifteen minutes later, defendant called Bunch. Defendant told Bunch that he was very upset, because the police had informed him that Long had been killed in a wreck, and he was \u201cworried that they were going to blame him for the accident.\u201d When defendant learned that Bunch had been contacted by Trooper Thomas, Bunch testified that defendant \u201ccame out and told me that he was involved in the wreck and to keep quiet about it and not say anything about me picking him up or anything.\u201d Bunch then \u201chit the ceiling,\u201d rebuking defendant for \u201cdragging] [him] into something that [he] didn\u2019t want to be in the middle of.\u201d Before he hung up the telephone, Bunch told defendant to \u201ceither tell Trooper Thomas the truth or I will.\u201d After he and defendant spoke, Bunch telephoned Trooper Thomas and \u201cbasically told him the whole story.\u201d\nLinda Anderson (\u201cAnderson\u201d), one of defendant\u2019s former coworkers at the restaurant, also testified for the State. Anderson spoke about the accident with defendant, who insisted that Long had been driving the car when the accident occurred. When Anderson told defendant that his story made no sense and demanded \u201cto know the truth,\u201d defendant \u201cstarted crying, he had been driving.\u201d According to Anderson, defendant said, \u201cI was driving instead of [Long] and I had been drinking and I wrecked; and I pulled [Long] out from the passenger side to the driver\u2019s side out the driver\u2019s door.\u201d When Anderson asked defendant whether he attempted to obtain assistance for Long, defendant replied, \u201cNo, I panicked and I ran until my shoes fell off of my feet.\u201d Defendant told Anderson that he moved Long\u2019s body to the driver\u2019s side of the vehicle in order \u201cto make it look like she was driving.\u201d\nAnother of defendant\u2019s co-workers, William Hovis (\u201cHovis\u201d), testified similarly. Hovis spoke with defendant the morning of the accident. Although defendant initially told Hovis that Long had been driving the vehicle, he later stated that \u201che was driving and the car went off the road and that \u2014 and that he got panicky and ran.\u201d\nTrooper Thomas gave further evidence for the State. Although defendant initially denied having any knowledge of the accident, he eventually gave the following statement to Trooper Thomas:\nWe were drinking beer heavy [sic] last night. We ran out of champagne and we were going to the store. We rode up toward Rick\u2019s store, went to the stop sign at Cherryville. She turned right, went down that road for a little ways, and I told her she was going the wrong way. She turned around and went back toward Cherryville. The next thing I know, we was [sic] riding on grass and were in a ditch. I don\u2019t know. I hollered and said, \u201cBe careful, we\u2019re going to hit that ditch.\u201d I looked over and she wasn\u2019t moving. I pulled her out of the car and tried to revive her by giving her mouth-to-mouth. I got scared and left. I panicked and flipped out. I\u2019m being honest. I kept walking and walking. I went to a house and called my bossman [sic] and he came and got me in about 20 to 30 minutes.\nAfter signing his statement, defendant told Trooper Thomas that \u201che was scared [Long\u2019s son] would kill him for what happened.\u201d\nUnconvinced by defendant\u2019s statement, Trooper Thomas contacted Detective Jeff Costner (\u201cDetective Costner\u201d) of the Gaston County Police Department. Detective Costner testified that he visited defendant at his residence on 8 January 2001, and that defendant agreed to accompany Detective Costner to the Cleveland County Sheriff\u2019s Department in order to answer questions. After being advised of his constitutional rights, defendant made the following statement:\nLast week, Wednesday morning, 1-3-01, me and [Long] had been drinking. We were drinking beer and we ran out. We were at home, it was probably about 1:00 or 1:30 a.m. We were drinking Busch Lite and Bud Dry. We both decided to go out and get some more. I just put on my flip-flops, or they are actually sandals. We got in the car and [Long] drove. I don\u2019t know why she didn\u2019t even take her pocketbook or her glasses. We drove to several grocery stores that were closed .... We drove on Highway 216 and stopped at Rick\u2019s Country Store. [Long] couldn\u2019t see, so I got behind the wheel and drove .... I realized I was going the wrong way, so I turned around. I drove off the side of the road to the right first. I don\u2019t know why I ran off the road, I guess it was the alcohol. I drank, probably, 10 to 12 beers before this. When I ran off the road, it caused me to hit the bank on the other side of the road. I had been drinking since 7:00 p.m. and I stopped when me and [Long] ran out around . . . 1:00 or 1:30 a.m. I just remember looking over and seeing [Long\u2019s] head jerk forward and backwards. I heard her grunt. I\u2019m not sure whether we had our seat-belts on, but we had the automatic seatbelts in the car. I left after I tried to revive her. I pulled [Long] from the passenger seat over to the driver\u2019s seat and tried to do CPR on her, but she was gone. I panicked and I ran. I seen [sic] the ambulances go by and I went to a couple of houses, but no one would let me . . . use the phone. I finally got this one guy to call my boss, Wendell Bunch. I feel so much better after I\u2019ve told someone about this. I\u2019ve been saved and quit drinking since this happened. I am sure [sic] sorry for what happened. I wish I could change it.\nFinally, the State offered evidence tending to show that defendant\u2019s driver\u2019s license was permanently revoked and that defendant had been convicted of driving while impaired and driving with a revoked license on numerous previous occasions. Defendant offered no evidence. Upon conclusion of the evidence and after being instructed by the court, the jury found defendant guilty of second-degree murder, driving while impaired and with a revoked license, and felonious hit and run/failure to stop for personal injury. Defendant appeals.\nDefendant contends that the trial court erred in denying his motion to dismiss the charge of second-degree murder, and in allowing evidence of defendant\u2019s prior conviction for driving while impaired. We address these issues in turn.\nBy his first argument, defendant contends that the trial court erred in failing to dismiss the charge of second-degree murder. \u201cIn ruling upon a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences which may be drawn from the evidence.\u201d State v. Hairston, 137 N.C. App. 352, 354, 528 S.E.2d 29, 30 (2000). \u201cWhen 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.\u201d State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See id. If there is substantial evidence of each element of the charged offense and of the defendant being the perpetrator of the offense, the case is for the jury and the motion to dismiss should therefore be denied. See State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988).\nSecond-degree murder is the (1) unlawful killing (2) of a human being (3) with malice, but without premeditation and deliberation. See State v. McDonald, 151 N.C. App. 236, 565 S.E.2d 273, 277, disc. review denied, 356 N.C. 310, - S.E.2d -(2002). Thus, intent to kill is not a necessary element of second-degree murder, but \u201c \u2018there must be an intentional act sufficient to show malice.\u2019 \u201d State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304 (2000) (quoting State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991)). Where the State seeks to prove malice connected with the act of driving a vehicle, \u201c[t]he State need only show \u2018that defendant had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind.\u2019 \u201d State v. Miller, 142 N.C. App. 435, 441, 543 S.E.2d 201, 205 (2001) (quoting Rich, 351 N.C. at 395, 527 S.E.2d at 304).\nIn the instant case, defendant argues that the State presented insufficient evidence that defendant was appreciably impaired at the time of the accident, and that such impairment caused the accident leading to Long\u2019s death. Defendant correctly notes that, \u201c[u]nder our statutes, the consumption of alcohol, standing alone, does not render a person impaired. An effect, however slight, on the defendant\u2019s faculties, is not enough to render him or her impaired. Nor does the fact that defendant smells of alcohol by itself control.\u201d State v. Harrington, 78 N.C. App. 39, 45, 336 S.E.2d 852, 855 (1985) (citations omitted). The Harrington Court went on to state, however, that \u201c[o]n the other hand, the State need not show that the defendant is \u2018drunk,\u2019 i.e., that his or her faculties are materially impaired. The effect must be appreciable, that is, sufficient to be recognized and estimated, for a proper finding that defendant was impaired.\u201d Id. (citations omitted).\nViewed in the light most favorable to the State, there was substantial evidence that defendant\u2019s impaired driving caused the accident in which Long was killed. First, as to defendant\u2019s impairment, the State presented evidence tending to show that defendant consumed at least ten to twelve beers over the course of six hours. Defendant stated that he had been \u201cdrinking beer heavy [sic],\u201d and possibly champagne as well. Bunch testified that defendant was still \u201cdefinitely drunk\u201d at approximately seven o\u2019clock on the morning of 3 January 2001, some six hours after defendant last reported consuming alcohol. It is well established that an opinion of a lay witness that the defendant was impaired is sufficient evidence of impairment, provided that the opinion is based on more than just the odor of alcohol. See Rich, 351 N.C. at 398-99, 527 S.E.2d at 305-06; State v. Adkerson, 90 N.C. App. 333, 338, 368 S.E.2d 434, 437 (1988). Bunch, who had known defendant for four years and was in defendant\u2019s presence for at least twenty minutes the morning of the accident, testified that defendant not only \u201creeked of alcohol,\u201d but that his eyes were glassy and his speech was slightly slurred. We conclude that the above-stated evidence sufficiently supported the jury\u2019s conclusion that defendant was impaired at the time of the accident in which Long was killed.\nSecondly, the State provided substantial evidence that defendant\u2019s impaired driving caused the accident that killed Long. \u201cThe fact that a motorist has been drinking, when considered in connection with faulty driving such as following an irregular course on the highway or other conduct indicating an impairment of physical or mental faculties, is sufficient prima facie to show a violation of [the impaired driving statute].\u201d State v. Hewitt, 263 N.C. 759, 764, 140 S.E.2d 241, 244 (1965). Defendant told several people, including Anderson, that \u201che had been drinking and . . . wrecked [the vehicle].\u201d In his statement to Detective Costner, defendant asserted, \u201cI don\u2019t know why I ran off the road, I guess it was the alcohol.\u201d Evidence from the accident site revealed that, although road conditions were clear, defendant lost all control of the vehicle he was driving. The vehicle skidded into the oncoming lane of traffic and onto the shoulder of the road, where it collided with a mailbox and crashed into the ditch. The evidence of defendant\u2019s impairment, together with the physical evidence from the crash site, provided ample evidence that defendant\u2019s impaired driving was the cause of the accident that killed Long.\nBecause there was substantial evidence that defendant was impaired at the time of the accident, and that his impaired driving caused the accident that resulted in Long\u2019s death, the trial court did not err in denying defendant\u2019s motion to dismiss the charge of second-degree murder. The evidence showed that defendant made a deliberate decision to drive, despite the fact that he had no license and was impaired at the time. The evidence further showed that defendant had been convicted of driving while impaired and with a revoked license on numerous occasions. \u201c \u2018[A]ny reasonable person should know that an automobile operated by a legally intoxicated driver is reasonably likely to cause death to any and all persons who may find themselves in the automobile\u2019s path.\u2019 \u201d State v. Fuller, 138 N.C. App. 481, 488, 531 S.E.2d 861, 867 (quoting State v. McBride, 118 N.C. App. 316, 319-20, 454 S.E.2d 840, 842 (1995)), disc. review denied, 353 N.C. 271, 546 S.E.2d 120 (2000); see also State v. McAllister, 138 N.C. App. 252, 260, 530 S.E.2d 859, 864-65 (holding that, where the defendant drove while impaired and with a revoked license, and where the defendant had been convicted of driving while impaired in the past, such evidence properly supported a finding of malice), appeal dismissed, 352 N.C. 681, 545 S.E.2d 724 (2000). Defendant\u2019s actions in the instant case clearly demonstrated the malice necessary for conviction of second-degree murder, and we therefore overrule defendant\u2019s first exception to the record.\nDefendant next argues that the trial court committed prejudicial error by admitting his 1978 conviction for driving while impaired into evidence for the purpose of proving malice. Defendant contends that this conviction was too remote in time to be relevant and irreparably prejudiced his case before the jury. We conclude that, even if the 1978 conviction was erroneously admitted, such admission did not prejudice defendant. In addition to the 1978 conviction, the State presented evidence of three later convictions for driving while impaired. The State also demonstrated that defendant had been convicted four times for driving with a revoked license. Given the overwhelming evidence of defendant\u2019s faulty driving record, we hold that the exclusion of one additional conviction out of the seven that were before the jury could not have resulted in a different verdict. We therefore overrule this assignment of error.\nIn conclusion, we hold that the trial court did not err in failing to dismiss the charge of second-degree murder. We further hold that the admission of defendant\u2019s conviction in 1978 of impaired driving did not prejudice defendant.\nNo error.\nJudges WYNN and HUNTER concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.", "J. Clark Fischer for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RICHARD WAYNE VASSEY\nNo. COA02-229\n(Filed 3 December 2002)\n1. Homicide\u2014 second-degree murder \u2014 impaired driving \u2014 sufficiency of evidence\nThe trial court did not err by failing to dismiss the charge of second-degree murder because there was substantial evidence that defendant\u2019s impaired driving caused the accident in which his girlfriend was killed including that: (1) defendant consumed at least ten to twelve beers over a course of six hours; (2) defendant stated he had been drinking beer heavily and possibly champagne as well; (3) defendant\u2019s employer who was in defendant\u2019s presence for at least twenty minutes the morning of the accident testified that defendant was still heavily drunk some six hours after defendant last reported consuming alcohol; (4) defendant\u2019s employer testified that defendant not only reeked of alcohol but that his eyes were glassy and his speech was slightly slurred; (5) the physical evidence from the crash site showed that, although road conditions were clear, defendant lost all control of the vehicle he was driving; and (6) defendant made a deliberate decision to drive despite the fact that he had no license and was impaired at the time, and defendant had been convicted of driving while impaired and with a revoked license on numerous occasions.\n2. Evidence\u2014 prior crimes or bad acts \u2014 impaired driving\u2014 malice \u2014 remoteness-harmless error\nThe trial court did not err in a second-degree murder, driving while impaired and with a revoked license, and felonious hit and run/failure to stop for personal injury case by admitting defendant\u2019s conviction in 1978 for impaired driving for the purpose of proving malice, because: (1) even if the conviction was erroneously admitted, such admission did not prejudice defendant when the State presented evidence of three later convictions for driving while impaired; (2) the State also demonstrated that defendant had been convicted four times of driving while license revoked; and (3) given the overwhelming evidence of defendant\u2019s faulty driving record, the exclusion of one additional conviction out of the seven that were before the jury could not have resulted in a different verdict.\nAppeal by defendant from judgments entered 24 September 2001 by Judge Gentry Caudell in Gaston County Superior Court. Heard in the Court of Appeals 30 October 2002.\nAttorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.\nJ. Clark Fischer for defendant appellant." }, "file_name": "0384-01", "first_page_order": 412, "last_page_order": 420 }