{
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    "judges": [
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    "parties": [
      "STATE OF NORTH CAROLINA v. WILLIAM MICHAEL MACK, Defendant"
    ],
    "opinions": [
      {
        "text": "GEER, Judge.\nDefendant William Michael Mack appeals from the judgment and commitment entered on (1) his convictions of second degree murder; misdemeanor hit and run failure to stop with resulting death; felony fleeing to elude arrest with motor vehicle; failure to stop at a red light; resisting, obstructing, or delaying a public officer; and failure to heed a light and siren; and (2) his guilty pleas to felony breaking and entering; felony larceny; conspiracy to commit felony breaking and entering and larceny; and driving while license revoked. On appeal, defendant focuses on his conviction of second degree murder.\nDefendant primarily argues that the trial court erred in denying his motion to dismiss the charge of second degree murder on the grounds that the State failed to present sufficient evidence of malice. We hold that the trial court properly denied the motion to dismiss given the State\u2019s evidence that defendant, whose license had been revoked, drove extremely recklessly in order to elude arrest after breaking and entering and loading his car with stolen televisions.\nFacts\nThe State\u2019s evidence tended to show the following facts. On the night of 23 January 2007, defendant and his friends Joshua Earl Proby and Jerrick Bernard Boulware \u201cwere getting high\u201d in Charlotte and decided to go to Shelby. As they were driving along Highway 29/74 in a borrowed Ford Focus, they passed a Bestway Rent-to-Own store. Defendant, who was driving, saw flat-screen televisions inside, commented that it \u201clooked interesting,\u201d and asked Proby and Boulware if they wanted to \u201chit it.\u201d When Proby responded that he just wanted to \u201cchill,\u201d defendant asked him if he was scared. Proby said \u201cno\u201d and told defendant to turn the car around.\nDefendant went back to Bestway and pulled up in front of the store. Proby got out of the car, found a brick, and threw it through a window, shattering the glass. Proby and defendant then went inside and passed televisions out through the window to Boulware to put in the car. They loaded five flat-screen televisions in the trunk of the Focus and placed one 42-inch flat-screen television in the back seat. The men could not get the trunk of the car to shut. Nevertheless, the men got back into the car \u2014 defendant in the driver\u2019s seat, Proby in the passenger seat, and Boulware in the back seat with the television \u2014 and began traveling on Highway 29/74 back towards Charlotte.\nAt approximately 1:25 a.m., Officer Ross L. Hoffman of the Lowell Police Department was traveling westbound on Highway 29/74 when he was notified by dispatch of \u201can alarm with a glass break\u201d at the Bestway store. Anticipating that the robbers might have chosen to travel eastbound on Highway 29/74 after leaving Bestway, Officer Hoffman pulled into a left turn lane and prepared to make a U-tum to travel eastbound.\nWhile waiting in the left turn lane, Officer Hoffman saw defendant\u2019s vehicle traveling eastbound in his direction at a speed greater than the posted speed limit of 50 miles per hour. Officer Hoffman activated his radar unit, which indicated that the car was going 65 miles per hour. As defendant\u2019s vehicle passed him, Officer Hoffman also noticed that the back windows were darkly tinted and the lid of the trunk was open.\nAfter Officer Hoffman turned into the eastbound lane and pulled behind defendant\u2019s vehicle, he saw what appeared to be electronic equipment in the trunk of the vehicle. Defendant then quickly moved into a left turn lane and entered a shopping center even though the businesses were closed, which further heightened the officer\u2019s suspicions. As Officer Hoffman turned into the shopping center behind defendant, he activated his blue lights. Defendant immediately \u201cstomped the accelerator and took off.\u201d\nDefendant got back on the highway traveling eastbound with Officer Hoffman following in pursuit. At one point, defendant drove eastward in the westbound lane for approximately 500 to 700 feet before returning to the eastbound lane. Defendant, who was traveling between 90 and 95 miles per hour, also sped through a red traffic light without stopping. Defendant and Officer Hoffman passed through four more intersections during the chase, the traffic light at each being green. Proby testified that he told defendant several times to pull over so they could get out and run, but defendant said he could \u201cdo it.\u201d\nOfficer Hoffman alerted dispatch that he was in pursuit of a vehicle with subjects he believed to be involved in the reported Bestway breaking and entering. As Officer Hoffman and defendant approached the intersection of Wesleyan Drive and Wilkinson Boulevard, two officers of the Cramerton Police Department blocked the intersection with their vehicles to prevent any other vehicles from entering the intersection. After defendant and Officer Hoffman passed through that intersection, the officers followed Officer Hoffman to assist in the pursuit. Meanwhile, Officer Carl Moore of the Lowell Police Department positioned his patrol car at the intersection of Highway 29/74 and Lakewood Drive. Officer Moore blocked off traffic at the intersection and covered the two eastbound lanes of Highway 29/74 with tire deflation spikes.\nAs Officer Hoffman approached the intersection of Highway 29/74 and Lakewood Drive, he saw blue lights and he heard Officer Moore say over the radio, \u201c T got spikes out.\u2019 \u201d Officer Hoffman slowed his vehicle to prevent running over the spikes. Defendant, going at least 90 miles per hour, swerved to the left to avoid the spikes, jumped across the median, briefly drove eastward in the westbound lane, and \u201cjumped back across the median and began a series of out-of-control maneuvers.\u201d The car \u201cskidded to the right, went off the right side of the road, [came] back to the left side of the road, and went back to the right side of the road.\u201d It then collided with a 10-foot-high embankment on the right side of the road, spun so that the back of the car hit trees, and \u201crolled over on its top\u201d while still spinning.\nOfficer Hoffman notified dispatch that the pursued car had crashed and rolled and that he was going to check the car for injured occupants. As Officer Hoffman approached, defendant crawled from underneath the opposite side of the car and began running east down Highway 29/74. Proby also escaped the car and began running up the embankment. The officers chased defendant on foot, but stopped pursuing him when defendant ran into the woods. A K-9 unit arrived and, within minutes, found defendant hiding behind a tree approximately 50 yards from the crash site. Defendant was then taken into custody.\nAt the crash site, officers found several car parts, CDs, and televisions scattered along the roadway. Because of the force of the collision, two of the televisions were compressed so tightly in the trunk that officers could not remove them. Officers noticed a black tennis shoe protruding out of the back window of the vehicle. Because the darkly tinted windows prevented the officers from seeing inside the vehicle, an officer broke the window, and they discovered Boulware pinned beneath the 42-inch television in the back seat. Boulware\u2019s body was upside down, with his head sticking out of the back window, \u201cjust barely missing\u201d the ground.\nEmergency responders from the Cramerton Volunteer Fire Department arrived shortly afterwards and removed the doors from the car. Unable to remove Boulware from the wreckage, the paramedics attached a lead to his leg to check for a pulse. Finding no pulse, the paramedics pronounced him dead. An autopsy determined that Boulware died from head trauma \u2014 multiple brain hemorrhages \u201cdue to force of his head striking different objects in the car: The seat, the roof, a door, whatever happened to be close to his head wherever he was sitting.\u201d\nDefendant was charged with second degree murder, felony hit and run failure to stop with personal injury, driving while license revoked, failure to heed a light or siren, resisting a public officer, felony fleeing to elude arrest with motor vehicle, failure to stop at a steady red light, felony breaking and entering, felony larceny, and felony conspiracy to commit felony breaking and entering and felony larceny. He pled guilty to the charges of misdemeanor driving while license revoked, felony breaking and entering, felony larceny, and felony conspiracy to commit breaking and entering and larceny.\nDefendant proceeded to trial on the remaining charges. The jury found defendant guilty of second degree murder, misdemeanor hit and run failure to stop with resulting death, felony fleeing to elude arrest with motor vehicle, failure to stop at a steady red light, misdemeanor resisting a public officer, and failure to heed a light or siren. The court consolidated all the charges and sentenced defendant to a single presumptive-range term' of 220 to 273 months imprisonment. Defendant timely appealed to this Court.\nI\nOn appeal, defendant first contends that the trial court erred in denying his motion to dismiss the charge of second degree murder. When a defendant moves to dismiss a charge based upon insufficiency of the evidence, \u201cthe question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defedant\u2019s being the perpetrator of such offense. If so, the motion is properly denied.\u201d State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). The trial court considers the evidence in the light most favorable to the State, drawing all reasonable inferences and resolving any conflicts in the evidence in the State\u2019s favor. State v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594 (2009).\nThe essential elements of second degree murder are \u201cthe (1) unlawful killing (2) of a human being (3) with malice, but without premeditation and deliberation.\u201d State v. Vassey, 154 N.C. App. 384, 390, 572 S.E.2d 248, 252 (2002), disc. review denied, 356 N.C. 692, 579 S.E.2d 96, cert. denied, 357 N.C. 469, 587 S.E.2d 339 (2003). Defendant only challenges the sufficiency of the State\u2019s evidence as to the element of malice.\nOur Supreme Court has emphasized that \u201c[i]ntent to kill is not a necessary element of second-degree murder, but there must be an intentional act sufficient to show malice.\u201d State v. Brewer, 328 N.C. 515, 522, 402 S.E.2d 380, 385 (1991). See also State v. Lang, 309 N.C. 512, 524-25, 308 S.E.2d 317, 323 (1983) (\u201cWhile 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 and which proximately causes death.\u201d). In the context of an automobile accident, this requirement means that the State must prove \u201cthat 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.\u201d State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304 (2000).\nNot all recklessness is sufficient to support a second degree murder charge. As our Supreme Court stated in Rich, \u201c[t]he distinction between \u2018recklessness\u2019 indicative of [second degree] murder and \u2018recklessness\u2019 associated with manslaughter \u2018is one of degree rather than kind.\u2019 \u201d Id. at 393, 527 S.E.2d at 303 (quoting United States v. Fleming, 739 F.2d 945, 948 (4th Cir. 1984), cert. denied, 469 U.S. 1193, 83 L. Ed. 2d 973, 105 S. Ct. 970 (1985)). See also id. at 395, 527 S.E.2d at 304 (observing that \u201cthe difference between the type of malice at issue in [a second degree murder case] and culpable negligence is the degree of recklessness that would support a finding of each\u201d).\n\u201c \u2018Standing alone, culpable negligence supports the submission of involuntary manslaughter.\u2019 \u201d Id. (quoting Brewer, 328 N.C. at 523, 402 S.E.2d at 386). Our courts have defined \u201cculpable negligence\u201d sufficient to support an involuntary manslaughter charge as \u201c \u2018such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.\u2019 \u201d State v. Wade, 161 N.C. App. 686, 690, 589 S.E.2d 379, 382 (2003) (quoting State v. Weston, 273 N.C. 275, 280, 159 S.E.2d 883, 886 (1968)), disc. review denied, 358 N.C. 241, 594 S.E.2d 33 (2004).\nWith respect to \u201cthe level of recklessness required for second-degree murder,\u201d we must not confuse \u201csuch a high degree of recklessness with mere culpable negligence.\u201d Rich, 351 N.C. at 394, 527 S.E.2d at 303. \u201c[W]hen that negligence is accompanied by \u2018an act which imports danger to another [and] is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life,\u2019 then it is sufficient to support a second-degree murder charge.\u201d Id. at 395-96, 527 S.E.2d at 304 (quoting State v. Trott, 190 N.C. 674, 679, 130 S.E. 627, 629 (1925)).\nWhile most of the decisions upholding a second degree murder conviction arising out of a motor vehicle collision have involved the defendant\u2019s driving while impaired, this Court in State v. Bethea, 167 N.C. App. 215, 219, 605 S.E.2d 173, 177 (2004), cert. denied, 362 N.C. 88 (2007), rejected the argument made by defendant, in this case, that the State cannot prove the necessary level of recklessness without evidence of impairment: \u201c[0]ur courts have not found driving under the influence to be the only evidence capable of proving malice.\u201d The Court explained that \u201c[w]hile driving under the influence is certainly evidence sufficient to prove malice, defendant\u2019s actions in the instant case, motivated by an attempt to elude law enforcement by driving in an extremely dangerous manner, is an equally reckless and wanton act, which evidences \u2018a mind utterly without regard for human life and social duty and deliberately bent on mischief.\u2019 \u201d Id. (quoting State v. McBride, 109 N.C. App. 64, 68, 425 S.E.2d 731, 733 (1993)). Thus, Bethea found the State presented sufficient evidence of malice when the defendant drove \u201cin an extremely dangerous manner\u201d\u2014 driving at speeds up to 100 miles per hour, speeding through a red light and stop signs, crossing into the oncoming traffic lane several times, and turning his lights off on dark, rural roads \u2014 and he did so for the unlawful purpose of eluding law enforcement. Id.\nBethea was followed in State v. Lloyd, 187 N.C. App. 174, 652 S.E.2d 299 (2007), cert. denied, 363 N.C. 586, 683 S.E.2d 214 (2009). In Lloyd, the Court also concluded that sufficient evidence of malice existed when the defendant, who knew his license was suspended, drove extremely dangerously in an effort to avoid arrest for having stolen the vehicle he was driving. Id. at 179-80, 652 S.E.2d at 302. As the police gave chase,, the defendant drove 85 to 90 miles per hour, passed several cars in a no-passing zone despite oncoming traffic, forced a car off the road, and collided with a station wagon whose occupants subsequently died. Id. at 176, 652 S.E.2d at 300.\nThis case is virtually indistinguishable from Bethea and Lloyd. Just as in those two cases, defendant, whose license was revoked, drove extremely dangerously in order to evade arrest for breaking and entering and larceny. The State presented evidence that when an officer attempted to stop defendant, because of the stolen televisions in his trunk, defendant fled, driving more than 90 miles per hour, passing through a red light without stopping, and traveling the wrong way on a highway \u2014 all with the vehicle\u2019s trunk lid open and with a passenger pinned by a large television and unable to exit the vehicle. Thus, under Lloyd and Bethea, the trial court properly denied defendant\u2019s motion to dismiss.\nDefendant, however, argues that he lacked the necessary malice because Proby was the one who told him to flee and because all but one of the lights were green, there was no traffic on the road to be endangered, and he experienced no problems until he encountered the spike strips. This argument views the evidence in the light most favorable to defendant, rather than the State. Defendant was free to argue all this evidence to the jury, but it was up to the jury to decide what credibility and weight to give it. Because the State presented evidence of both a high level of recklessness combined with the intentional act of fleeing to elude arrest, the trial court properly allowed the charge of second degree murder to proceed to the jury.\nII\nDefendant also contends that the trial court erred under Rule 404(b) of the Rules of Evidence by allowing Proby to answer the State\u2019s question about the identity of the people to whom Proby and defendant planned to sell the televisions. The following exchange occurred during Proby\u2019s direct examination:\nQ. And what were you going to do with the TVS?\nA. Sell them.\nQ. Who were you going to sell them to?\nA. We had numerous people we sold them to.\n[DEFENSE COUNSEL]: Objection. Move to strike.\nTHE COURT: The objection is overruled. Motion to strike is denied.\nQ. ... Go ahead. -Who were you going to sell them to?\nA. We sell them to Jamaicans, Arabs. Mostly Arab.\nImmediately afterward, the trial court sustained defendant\u2019s objection to the State\u2019s asking Proby how many times he and defendant had sold stolen televisions in the past.\nThe State\u2019s question, defendant now argues, was \u201cclearly irrelevant,\u201d and Proby\u2019s response left a \u201chighly inflammatory and unduly prejudicial impression before the jury that [defendant] must have committed robberies on a regular basis.\u201d Defendant argues the testimony allowed the State to \u201cpaint [defendant] with a broad brush as a \u2018bad person\u2019 who committed numerous robberies in the past, as evidenced by the people he sold these stolen TVS to.\u201d\nWe question whether defendant\u2019s objection at trial was sufficient to preserve this issue for review. \u201c \u2018[A] general objection, if overruled, is ordinarily not effective on appeal.\u2019 \u201d State v. White, 104 N.C. App. 165, 170, 408 S.E.2d 871, 874 (1991) (quoting State v. Hamilton, 77 N.C. App. 506, 509, 335 S.E.2d 506, 508 (1985), disc. review denied, 315 N.C. 593, 341 S.E.2d 33 (1986)). \u201c \u2018This rule serves to facilitate proper rulings and to enable opposing counsel to take proper corrective measures to avoid retrial.\u2019\u201d Id., 408 S.E.2d at 874-75 (quoting State v. Catoe, 78 N.C. App. 167, 168, 336 S.E.2d 691, 692 (1985), disc. review denied, 316 N.C. 380, 344 S.E.2d 1 (1986)).\nUnder Rule 10(b)(1) of the Rules of Appellate Procedure, \u201cto preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d (Emphasis added.) Here, it is not readily apparent from the context whether defendant was objecting on Rule 404(b) grounds or on some other basis such as Proby\u2019s answer being non-responsive to the question.\nEven assuming, however, that the issue was preserved, defendant has not shown that he was prejudiced by this testimony. Defendant pled guilty to breaking and entering, larceny, and conspiracy. There is no dispute that the car was packed with stolen televisions. Nor is there any real dispute as to the dangerousness of defendant\u2019s driving during the police chase. Given the larceny of numerous televisions, defendant\u2019s being an instigator of the theft, the circumstances of the chase, and the fact that defendant\u2019s passenger died as a result of the force of the impact during the crash that ended the chase, there is no \u201creasonable possibility that... a different result would have been reached\u201d by the jury absent the suggestion that defendant and Proby had previously sold stolen televisions. N.C. Gen. Stat. \u00a7 15A-1443(a) (2009). See State v. McDonald, 130 N.C. App. 263, 267-68, 502 S.E.2d 409, 413 (1998) (holding that even if irrelevant, admission of evidence of prior break-in was harmless when there was undisputed evidence that defendant brandished handgun and threatened to shoot victim if she did not move away from her door and defendant took victim\u2019s money).\nNo error.\nChief Judge MARTIN and Judge ELMORE concur.\n. Under the recently amended Rules of Appellate Procedure, the former Rule 10(b) is now Rule 10(a). Because defendant filed notice of appeal prior to 1 October 2009, the effective date of the amended rules, we refer to Rule 10(b).",
        "type": "majority",
        "author": "GEER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State.",
      "James N. Freeman, Jr. for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM MICHAEL MACK, Defendant\nNo. COA09-672\n(Filed 17 August 2010)\n1. Homicide\u2014 second-degree \u2014 car chase \u2014 sufficient evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss a charge of second-degree murder where defendant\u2019s passenger died in a car crash that followed their theft of televisions from a store and a police chase. Defendant drove extremely dangerously in order to evade arrest; the argument that he lacked malice because he experienced no problems until he encountered police spikes views the evidence in the light most favorable to defendant rather than the State.\n2. Appeal and Error\u2014 preservation of issues \u2014 general objection at trial\nA general objection at trial did not preserve for appeal the issue of whether the trial court should have allowed a question that implied that defendant had committed theft in the past. Moreover, given the circumstances and the evidence, defendant did not show that he was prejudiced by the testimony.\nAppeal by defendant from judgment entered 10 December 2008 by Judge Nathaniel J. Poovey in Gaston County Superior Court. Heard in the Court of Appeals 16 November 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State.\nJames N. Freeman, Jr. for defendant-appellant."
  },
  "file_name": "0512-01",
  "first_page_order": 536,
  "last_page_order": 545
}
