{ "id": 8957565, "name": "STATE OF NORTH CAROLINA v. BUDDY LEE LOCKLEAR", "name_abbreviation": "State v. Locklear", "decision_date": "2003-08-05", "docket_number": "No. COA02-1409", "first_page": "588", "last_page": "598", "citations": [ { "type": "official", "cite": "159 N.C. App. 588" } ], "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": "474 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "341", "parenthetical": "concluding that in light of evidence of defendant's guilt, there was no basis for determining that a different result would have been reached" } ], "opinion_index": 0 }, { "cite": "344 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867667 ], "year": 1996, "pin_cites": [ { "page": "387", "parenthetical": "concluding that in light of evidence of defendant's guilt, there was no basis for determining that a different result would have been reached" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0381-01" ] }, { "cite": "406 S.E.2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "891" } ], "opinion_index": 0 }, { "cite": "329 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554614 ], "year": 1991, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0278-01" ] }, { "cite": "444 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2533846 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0482-01" ] }, { "cite": "424 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "451" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524737 ], "year": 1993, "pin_cites": [ { "page": "509-10" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0506-01" ] }, { "cite": "468 S.E.2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915232 ], "year": 1996, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0025-01" ] }, { "cite": "176 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "770" } ], "opinion_index": 0 }, { "cite": "277 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563764 ], "year": 1970, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0205-01" ] }, { "cite": "97 S.E. 496", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1918, "pin_cites": [ { "page": "497" } ], "opinion_index": 0 }, { "cite": "176 N.C. 751", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658342 ], "year": 1918, "pin_cites": [ { "page": "754-55" } ], "opinion_index": 0, "case_paths": [ "/nc/176/0751-01" ] }, { "cite": "527 S.E.2d 299", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 2000, "pin_cites": [ { "page": "391" }, { "page": "302" }, { "page": "303" }, { "page": "393" }, { "page": "303" }, { "page": "303" }, { "page": "303" } ], "opinion_index": 0 }, { "cite": "351 N.C. 386", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155839 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "394" }, { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0386-01" ] }, { "cite": "425 S.E.2d 731", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "733" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524237 ], "year": 1993, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0064-01" ] }, { "cite": "570 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "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. App. 236", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079887 ], "year": 2002, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0236-01" ] }, { "cite": "418 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "194" } ], "opinion_index": 0 }, { "cite": "331 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501824 ], "year": 1992, "pin_cites": [ { "page": "457-58" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0427-01" ] }, { "cite": "463 S.E.2d 182", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "186", "parenthetical": "quoting State v. Phipps, 331 N.C. 427, 457-58, 418 S.E.2d 178, 194 (1992)" } ], "opinion_index": 0 }, { "cite": "342 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795987 ], "year": 1995, "pin_cites": [ { "page": "98", "parenthetical": "quoting State v. Phipps, 331 N.C. 427, 457-58, 418 S.E.2d 178, 194 (1992)" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0091-01" ] }, { "cite": "265 S.E.2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "169" } ], "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "447 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537923, 2533868, 2539477, 2537785, 2534751 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0612-04", "/nc/336/0612-03", "/nc/336/0612-02", "/nc/336/0612-01", "/nc/336/0612-05" ] }, { "cite": "429 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 169", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525123 ], "year": 1993, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0169-01" ] }, { "cite": "417 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "331 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498402 ], "year": 1992, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0537-01" ] }, { "cite": "538 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "928" } ], "opinion_index": 1 }, { "cite": "353 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135783 ], "year": 2000, "pin_cites": [ { "page": "173" } ], "opinion_index": 1, "case_paths": [ "/nc/353/0159-01" ] }, { "cite": "530 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 1 }, { "cite": "138 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079314 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/nc-app/138/0252-01" ] }, { "cite": "406 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 1 }, { "cite": "329 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556038 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/nc/329/0679-01" ] }, { "cite": "108 L. Ed. 2d 604", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 1 }, { "cite": "110 S. Ct. 1466", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1990, "opinion_index": 1 }, { "cite": "494 U.S. 1023", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 4836, 5158, 4882, 5207, 5176 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/us/494/1023-04", "/us/494/1023-03", "/us/494/1023-05", "/us/494/1023-02", "/us/494/1023-01" ] }, { "cite": "384 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "481" } ], "opinion_index": 1 }, { "cite": "325 N.C. 278", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492599 ], "year": 1989, "pin_cites": [ { "page": "299" } ], "opinion_index": 1, "case_paths": [ "/nc/325/0278-01" ] }, { "cite": "491 S.E.2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "653" } ], "opinion_index": 1 }, { "cite": "347 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551053 ], "year": 1997, "pin_cites": [ { "page": "213" } ], "opinion_index": 1, "case_paths": [ "/nc/347/0193-01" ] } ], "analysis": { "cardinality": 1029, "char_count": 23335, "ocr_confidence": 0.773, "pagerank": { "raw": 3.2371563702776854e-07, "percentile": 0.86809115126017 }, "sha256": "8dc039d196139fb2b4531d147476203ef4b719efc64ef6e9f741b7409229df25", "simhash": "1:886e54ab622d6452", "word_count": 3771 }, "last_updated": "2023-07-14T16:27:55.515420+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge HUNTER concurs.", "Judge ELMORE dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. BUDDY LEE LOCKLEAR" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nBuddy Lee Locklear (\u201cdefendant\u201d) appeals his convictions of second-degree murder, assault with a deadly weapon inflicting serious injury, driving while impaired, and unsafe movement of his motor vehicle. For the reasons stated herein, we find no error by the trial court.\nThe State presented evidence at trial tending to show the following: On 2 August 2001, at approximately 10:30 p.m., defendant was operating a motor vehicle on Piney Green Road when he collided with a vehicle operated by Joseph Matthews, III (\u201cMatthews\u201d). Joseph Matthews, IV (\u201cJoseph\u201d), Matthews\u2019s seven- year-old son, died as a result of injuries sustained in the collision. An autopsy examination of Joseph\u2019s body revealed that he suffered contusions to the chest, throat and neck areas. Testimony from Dr. Charles L. Garrett, a forensic pathologist, revealed that Joseph\u2019s death resulted from him suffocating when the shoulder belt of the motor vehicle restraint system tore his. windpipe and prevented air from entering his lungs. Matthews also sustained numerous injuries to his body as a result of the collision.\nOfficer Kenneth Smith (\u201cOfficer Smith\u201d) testified that he observed the front end of defendant\u2019s vehicle on the top of the automobile operated by Matthews. Upon questioning defendant about the collision, Officer Smith \u201cnoticed a strong odor of alcohol coming from [defendant\u2019s person].\u201d Officer Smith then examined defendant\u2019s physical appearance and further noticed that defendant\u2019s \u201ceyes were red, glassy and watery, his speech was slurred, and defendant was unsteady on his feet.\u201d Therefore, Officer Smith arrested defendant for driving while impaired.\nUpon his arrival at the police station, defendant was administered an Intoxilyzer test which recorded a breath alcohol concentration of 0.08. Additionally, Officer Smith administered several field sobriety tests at the police station. Officer Smith testified that defendant \u201cswayed the entire thirty (30) seconds\u201d and failed to maintain balance on one leg during the test.\nOn 9 May 2002, defendant was convicted of second-degree murder, assault with a deadly weapon inflicting serious injury, driving while impaired, and unsafe turning of a vehicle. Defendant was sentenced to the following: Two (2) years for driving while impaired and active terms of imprisonment of a minimum term of 125 months to a maximum term of 159 months and ordered to pay $36,000.00 in restitution. Defendant appeals.\nDefendant presents four issues for review, contending that the trial court erred in (1) denying defendant\u2019s motion to dismiss the charge of second-degree murder; (2) instructing the jury on the definition of malice; (3) excluding evidence regarding the seat belt restraint worn by Joseph; and (4) allowing testimony regarding defendant\u2019s prior arrest and conviction for driving while impaired.\nWe first address the assignment of error in which defendant argues that the trial court erred by denying his motion to dismiss the charge of second-degree murder. Specifically, defendant asserts that there was insufficient evidence to show malice. We disagree.\nIn considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference that may be drawn from the evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The standard of review for a \u201cmotion to dismiss based on insufficiency of the evidence is the substantial evidence test.\u201d State v. Jones, 110 N.C. App. 169, 177, 429 S.E.2d 597, 602 (1993), cert. denied, 336 N.C. 612, 447 S.E.2d 407 (1994). \u201cThe substantial evidence test requires a determination that there is substantial evidence (1) of each essential element of the offense charged, and (2) that the defendant is the perpetrator of the offense.\u201d Id. Substantial evidence is defined as the amount of \u201crelevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980).\n\u201c \u2018Second-degree murder is defined as the unlawful killing of a human being with malice but without premeditation and deliberation.\u2019 \u201d State v. Rick, 342 N.C. 91, 98, 463 S.E.2d 182, 186 (1995) (quoting State v. Phipps, 331 N.C. 427, 457-58, 418 S.E.2d 178, 194 (1992)). See also State v. McDonald, 151 N.C. App. 236, 243, 565 S.E.2d 273, 277, disc. review denied, 356 N.C. 310, 570 S.E.2d 892 (2002). Whether the State has carried its burden of proof of malice depends on the factual circumstances of each case. State v. McBride, 109 N.C. App. 64, 67, 425 S.E.2d 731, 733 (1993). In State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000), our Supreme Court addressed the precise issue of malice as raised by defendant. Our Supreme Court adopted the position that, \u201c. . . wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief...\u201d are examples, any one of which may provide the malice necessary to convict a defendant of second-degree murder. Id. at 391, 527 S.E.2d at 302.\nOur Supreme Court has approved the following definition of \u201cdeliberately bent on mischief,\u201d one of the attitudinal indices of legal malice.\n[The term deliberately bent on mischief] connotes conduct as exhibits conscious indifference to consequences wherein probability of harm to another within the circumference of such conduct is reasonably apparent, though no harm to such other is intended. [It] connotes an entire absence of care for the safety of others which exhibits indifference to consequences. It connotes conduct where the actor, having reason to believe his act may injure another, does it, being indifferent to whether it injures or not. It indicates a realization of the imminence of danger, and reckless disregard, complete indifference and unconcern for probable consequences. It connotes conduct where the actor is conscious of his conduct, and conscious of his knowledge of the existing conditions that injury would probably result, and that, with reckless indifference to consequences, the actor consciously and intentionally did some wrongful act to produce injurious result.\nRich, 351 N.C. at 394, 527 S.E.2d at 303. Further, our Supreme Court announced that any one of the descriptive phrases provided in the malice instruction helps define malice and does not constitute \u201celements\u201d of malice. Thus, the jury may infer malice from any one of those attitudinal examples. Id. at 393, 527 S.E.2d at 303. It is necessary for the State to prove only that defendant had the intent to perform the act of driving in such a reckless manner as reflects knowledge that injury or death would likely result, thus evidencing depravity of mind.\nIn the instant case, the State\u2019s evidence on the issue of malice tended to show that defendant was driving while impaired with an alcohol concentration of 0.08, which is above the legal limit, and that defendant was on notice as to the serious consequences of driving while impaired as a result of his prior driving while impaired conviction which occurred four years earlier. Examining the evidence in the light most favorable to the State, there was substantial evidence presented from which the jury could find malice and each of the other essential elements of second-degree murder. Thus, the trial court did not err in denying defendant\u2019s motion to dismiss the charge of second-degree murder.\nIn the next assignment of error, defendant challenges the trial court\u2019s instructions to the jury on the definition of malice. Specifically, defendant argues that the trial court erred in failing to instruct the jury that the jury was required to find at least one of the attitudinal examples to infer the element of malice. We disagree.\n\u201cThe charge of the court must be read as a whole ..., in the same connected way that the judge is supposed to have intended it and the jury to have considered it. . . Rich, 351 N.C. at 393, 527 S.E.2d at 303 (quoting State v. Wilson, 176 N.C. 751, 754-55, 97 S.E. 496, 497 (1918)). A charge to the jury is viewed contextually, and isolated portions will not be held prejudicial when the charge as a whole is correct. Id. at 394, 527 S.E.2d at 303. \u201cIf the charge presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal.\u201d State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970).\nAfter initially charging the jury, the jury deliberated for one hour and returned with a question for the trial court regarding the definition of malice. After a discussion with counsel, the trial court gave the following instruction to the jury:\nMalice comprehends not only particular animosity, but also wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty and deliberately bent on mischief. While there may be no intention to injure a particular person it does not mean an actual intent to take human life. It may be inferred or implied instead of positive as when an act which imports danger to another is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life.\nAfter deliberating for fifty-five minutes, the jury sent the following written question to the trial court: \u201cwe are still stuck on malice, specifically, the words \u2018and deliberately bent on mischief.\u2019 Where did that come from?\u201d The judge then instructed the jury as follows:\nMy answer to these questions is this, what I have read to you in my written instructions, and also, I have given additional instructions on circumstances of malice in my clarification, which I gave orally to you. These attitudinal circumstances given in the jury instructions for malice serve as descriptive phrases. These words or phrases are each descriptive of the type or types of thought, attitude, or condition of mind sufficient to constitute malice. The descriptive phrases listed in the instructions for malice serve to help define malice for the jury. They do not constitute elements of malice, which is, itself, an element of second-degree murder. And thus, the State need not prove each and every one of these attitudinal examples of malice in order for the jury to infer the element of malice.\nThe jury instructions made clear that the State need not prove each and every one of the attitudinal examples of malice. Taken as a whole, the trial court\u2019s instruction on \u201cmalice\u201d was a correct statement of the law.\nIn the third assignment of error, defendant contends that the trial court erred in excluding evidence that the deceased victim was improperly restrained by a seat belt. This argument is dismissed. \u201cIn order to preserve an argument on appeal which relates to the exclusion of evidence . . . the defendant must make an offer of proof so that the substance and significance of the excluded evidence is in the record.\u201d State v. Ginyard, 122 N.C. App. 25, 33, 468 S.E.2d 525, 531 (1996). According to North Carolina General Statutes section 8C-1, Rule 103, \u201c[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and . . . [i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 103 (2001).\nIn the instant case, the record reveals that defendant failed to produce any witnesses or submit affidavits regarding the seat belt restraint. Defendant failed to make an offer of proof by a competent witness that Joseph would not have suffered a fatal injury if he had been restrained in a different manner. Accordingly, this assignment of error is overruled.\nIn the last assignment of error, defendant argues that the trial court erred in allowing testimony regarding the facts and circumstances surrounding his prior arrest and conviction for driving while impaired. Specifically, defendant contends that testimony from the arresting officer, Paul Ehrler, (\u201cOfficer Ehrler\u201d) regarding the events of defendant\u2019s 1996 arrest and subsequent conviction, were not probative as to the issue of malice and should have been excluded. We disagree.\nDefendant concedes in his brief that the State in its case-in-chief may properly present evidence of a prior conviction for driving while impaired for the purpose of showing malice. Defendant also recognizes that the events and circumstances of a prior driving while impaired arrest may also be admitted if the events are sufficiently similar to the circumstances at issue. The point on which defendant disagrees is whether the facts and circumstances of his prior driving while impaired arrest are sufficiently similar to the present case so as to be admissible.\nEvidence of prior convictions may have probative value as long as the incidents are relevant to any fact or issue other than to show character of the accused. Rule 404(b) of the North Carolina Rules of Evidence does not require that these prior incidents be exactly the same in order to have probative value. See State v. Sneeden, 108 N.C. App. 506, 509-10, 424 S.E.2d 449, 451 (1993), affirmed, 336 N.C. 482, 444 S.E.2d 218 (1994). Further, the similarities between the circumstances need not rise to the level of the unique and bizarre but simply \u201cmust tend to support a reasonable inference that the same person committed both the earlier and later acts.\u201d State v. Stager, 329 N.C. 278, 304, 406 S.E.2d 876, 891 (1991). The evidence reveals several significant similarities between the prior driving while impaired charge and the case at issue. Officer Ehrler\u2019s testimony regarding defendant\u2019s 1996 arrest revealed that defendant was operating a motor vehicle; had a blood alcohol level above the legal limit; and while operating his vehicle under the influence of alcohol, defendant made an unsafe traffic turn that resulted in a collision. Officer Ehrler testified that defendant performed poorly on sobriety tests and that he resisted arrest by twisting the officer\u2019s wrist and cursing the officer. In the present case, the evidence tended to show that while driving with a blood alcohol content of .08, defendant caused a traffic accident by making an improper turn into the path of Mathews\u2019s car. We conclude that the circumstances of the 1996 driving while impaired arrest were sufficiently similar so as to have probative value.\nDefendant next argues that even if the details surrounding his 1996 driving while impaired arrest have \u201csome limited probative value,\u201d the probative value of the evidence is outweighed by the danger of prejudice. Defendant urges this Court to vacate the second-degree murder conviction because of the prejudicial nature of the evidence of defendant\u2019s combativeness with the arresting officer during his 1996 arrest. \u201cA defendant is prejudiced . . . when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial. . . .\u201d N.C. Gen. Stat. \u00a715A-1443(a) (2001). Assuming arguendo, that it was error to admit testimony that defendant resisted arrest at his prior driving while impaired charge, we conclude that the admission of this evidence was not such that the jury would have reached a different result. See State v. Bruton, 344 N.C. 381, 387, 474 S.E.2d 336, 341 (1996) (concluding that in light of evidence of defendant\u2019s guilt, there was no basis for determining that a different result would have been reached). The testimony of defendant\u2019s actions in resisting his 1996 arrest did not rise to the level of altering the balance of the scales against defendant in light of all the evidence. Absent the evidence of resisting arrest, the State, presented as a whole sufficient evidence that defendant was guilty of second-degree murder. Joseph died as a result of defendant\u2019s unsafe operation of his vehicle while driving with a blood alcohol concentration in excess of the legal limit. The second-degree murder charge arose five years after defendant\u2019s arrest and conviction for another driving while impaired charge. The prior driving while impaired arrest and conviction should have alerted him to the hazards of driving while impaired.\nTherefore, evidence of the events surrounding defendant\u2019s 1996 driving while impaired arrest and conviction was admissible to establish malice. We therefore hold that the trial court did not err in admitting the evidence of the events surrounding defendant\u2019s prior arrest and conviction for driving while impaired.\nFor the reasons stated herein, we conclude that the trial court committed no error.\nNo error.\nJudge HUNTER concurs.\nJudge ELMORE dissents.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." }, { "text": "ELMORE, Judge,\ndissenting.\nI disagree with the majority on the last assignment of error concerning the testimony of Officer Ehrler of the circumstances of defendant\u2019s prior arrest. The admission of the Officer\u2019s testimony was in error, and that error was prejudicial.\nAt trial, Officer Ehrler testified that in May of 1996 he observed the defendant run a red light and weave in the lane, and pulled the defendant over. Officer Ehrler went on to testify in detail of the defendant\u2019s demeanor and actions throughout the course of the traffic stop, field sobriety tests, and subsequent arrest. Officer Ehrler testified in part:\nQ: So at that point [after field sobriety tests] did you place him under arrest?\nA: Yes, I did.\nQ: Did you have any difficulty placing him under arrest?\nA: I put one handcuff on him, yes, I did, and he turned around and said \u201cwhat are you doing?\u201d and grabbed my wrist and started twisting it. He started cussing. Luckily, another officer arrived and we had to wrestle him a little bit, not too much, but a little bit to get him into cuffs.\nIn transport to the police department, according to Officer Ehrler\u2019s testimony, defendant was \u201c[c]ussing. Screaming. One minute he begged me to let him go, next thing he\u2019d be cussing me, told me how horrible a police officer I am.\u201d In response to questioning by the trial court, the officer noted that defendant had not been speeding, had not left his lane of travel and gone into another lane, and had no trouble producing his license and registration.\nDefendant assigns error to the admission of this testimony concerning the details surrounding the 1996 arrest as lacking probative value, and also any probative value would be substantially outweighed by danger of unfair prejudice to the defendant.\nState v. Jones, 347 N.C. 193, 213, 491 S.E.2d 641, 653 (1997), provides that an evidentiary ruling by a lower court should only be overturned if the decision was so arbitrary as to be irrational. If there was any rational basis for admitting this evidence, the ruling must stand. Although evidence of prior crimes, wrongs or acts by a defendant is allowed into evidence for purposes of proving malice under Rule 404(b), the admissibility is guided by the constraints of similarity and temporal proximity. State v. Artis, 325 N.C. 278, 299, 384 S.E.2d 470, 481 (1989), judgment vacated on other grounds, 494 U.S. 1023, 110 S. Ct. 1466, 108 L. Ed. 2d 604 (1990), on remand, 329 N.C. 679, 406 S.E.2d 827 (1991). \u201cWhen the features of the earlier act are dissimilar from those of the offense with which the defendant is currently charged, such evidence lacks probative value. When otherwise similar offenses are distanced by significant stretches of time, commonalities become less striking!) ]\u201d 7<\u00b1 For example, the evidence is properly admitted when the prior offense and the offense charged are identical. See e.g. State v. McAllister, 138 N.C. App. 252, 530 S.E.2d 859 (2000). Details of the arrest are admissible for the purpose of proving malice only when they have a tendency to demonstrate the defendant knew his conduct was \u201creckless and inherently dangerous to human life.\u201d State v. Jones, 353 N.C. 159, 173, 538 S.E.2d 917, 928 (2000). I disagree with the majority that this officer\u2019s testimony had any tendency to prove malice. That defendant had been stopped before in a traffic stop with no other cars involved does not tend to prove that he knew in the incident before us that his actions were inherently dangerous.\nAlthough defendant was intoxicated in both cases, neither the details of how the. 1996 accident occurred, the facts surrounding his field sobriety tests nor the fact that he resisted arrest are similar or relevant to the case at bar. None of these details have any tendency to demonstrate that defendant was aware that his conduct leading up to the collision at issue was reckless and inherently dangerous to human life. The testimony only tended to make the defendant look uncooperative and belligerent with officials, which had not been the case in the incident at issue here. This evidence was more prejudicial than it was probative. Given all the circumstances of the case, this evidence is of a nature likely to prejudice the jury\u2019s consideration. I would vacate the judgment and remand for a new trial.", "type": "dissent", "author": "ELMORE, Judge," } ], "attorneys": [ "Attorney General Roy A. Cooper, by Special Deputy Attorney General Isaac T Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.", "Duncan B. McCormick for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BUDDY LEE LOCKLEAR\nNo. COA02-1409\n(Filed 5 August 2003)\n1. Homicide\u2014 second-degree murder \u2014 sufficiency of evidence \u2014 malice\u2014driving while impaired\nThe evidence of malice was sufficient in a second-degree murder prosecution where defendant was driving with an alcohol concentration of .08 when he collided with another vehicle; a seven-year-old boy in the other vehicle suffocated when the shoulder belt tore his windpipe; and a prior conviction put defendant on notice of the consequences of driving while impaired.\n2. Homicide\u2014 second-degree murder \u2014 malice\u2014instructions\nThe trial court\u2019s instruction on malice in a second-degree murder prosecution was correct, taken as a whole, where defendant argued the court should have instructed the jury that it was required to find at least one of the examples of attitude given in the instruction.\n3. Appeal and Error\u2014 preservation of issues \u2014 no offer of proof \u2014 appeal not considered\nDefendant\u2019s failure to make an offer of proof resulted in the dismissal of an assignment of error that evidence was wrongly excluded. N.C.G.S. \u00a7 8C-1, Rule 103.\n4. Evidence\u2014 prior offense \u2014 similar\u2014probative value\nThe admission of the circumstances around a prior arrest of defendant for driving while impaired was admissible in his current second-degree murder conviction, which also resulted from drunken driving. The prior circumstances were similar enough to have probative value and were admissible to establish malice.\n5. Evidence\u2014 prior offense \u2014 not prejudicial \u2014 other evidence of guilt\nAdmission of the circumstances of a prior conviction for driving while impaired did not tilt the scales against defendant in his current second-degree murder prosecution and was not more prejudicial than probative. The State presented sufficient evidence of guilt absent this evidence.\nJudge Elmore dissenting.\nAppeal by defendant from judgment entered 9 May 2002 by Judge Jay Hockenbury in Onslow County Superior Court. Heard in the Court of Appeals 11 June 2003.\nAttorney General Roy A. Cooper, by Special Deputy Attorney General Isaac T Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.\nDuncan B. McCormick for defendant appellant." }, "file_name": "0588-01", "first_page_order": 618, "last_page_order": 628 }