{ "id": 4343002, "name": "STATE OF NORTH CAROLINA v. CHAD JARRETT BARROW", "name_abbreviation": "State v. Barrow", "decision_date": "2011-11-01", "docket_number": "No. COA10-978", "first_page": "436", "last_page": "452", "citations": [ { "type": "official", "cite": "216 N.C. App. 436" } ], "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": "573 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "214", "parenthetical": "holding that when defendant was charged with second degree sexual offense, trial court erred in finding aggravating factor that defendant abused position of trust because State's theory of the case relied upon finding of constructive force based upon parent-child relationship" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251951 ], "year": 2002, "pin_cites": [ { "page": "717" } ], "opinion_index": 0, "case_paths": [ "/nc-app/154/0713-01" ] }, { "cite": "247 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "918", "parenthetical": "\"An act that indicates a total disregard for human life is sufficient to supply the malice necessary to support the crime of second degree murder.\"" } ], "opinion_index": 0 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "page": "581", "parenthetical": "\"An act that indicates a total disregard for human life is sufficient to supply the malice necessary to support the crime of second degree murder.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "335 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "8" } ], "opinion_index": 0 }, { "cite": "314 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4691739 ], "year": 1985, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0522-01" ] }, { "cite": "491 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "685" }, { "page": "686" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798543 ], "year": 1997, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0536-01" ] }, { "cite": "361 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "917" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358661 ], "year": 1987, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0512-01" ] }, { "cite": "451 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "236" } ], "opinion_index": 0 }, { "cite": "339 N.C. 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557173 ], "year": 1994, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0456-01" ] }, { "cite": "423 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "333 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550426 ], "year": 1992, "pin_cites": [ { "page": "56-57" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0052-01" ] }, { "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", "year": 1998, "pin_cites": [ { "page": "37", "parenthetical": "holding that sufficient evidence of malice existed for second degree murder when defendant severely shook child, \"an act which ultimately led to his death\"" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11464900 ], "year": 1998, "pin_cites": [ { "page": "10-11", "parenthetical": "holding that sufficient evidence of malice existed for second degree murder when defendant severely shook child, \"an act which ultimately led to his death\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0001-01" ] }, { "cite": "559 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220145 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0268-01" ] }, { "cite": "551 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "902", "parenthetical": "Tyson, J., dissenting" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11353464 ], "year": 2001, "pin_cites": [ { "page": "23", "parenthetical": "Tyson, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0001-01" ] }, { "cite": "581 S.E.2d 51", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491850 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0220-01" ] }, { "cite": "565 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "205", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 211", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080744 ], "year": 2002, "pin_cites": [ { "page": "225", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/150/0211-01" ] }, { "cite": "488 S.E.2d 576", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "589", "parenthetical": "\"Felony murder on the basis of felonious child abuse requires the State to prove that the killing took place while the accused was perpetrating or attempting to perpetrate felonious child abuse with the use of a deadly weapon.\"" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "346 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139632 ], "year": 1997, "pin_cites": [ { "page": "493", "parenthetical": "\"Felony murder on the basis of felonious child abuse requires the State to prove that the killing took place while the accused was perpetrating or attempting to perpetrate felonious child abuse with the use of a deadly weapon.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0471-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2009, "opinion_index": 0 }, { "cite": "572 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "774" }, { "page": "771" } ], "opinion_index": 0 }, { "cite": "356 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511555 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "565" }, { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0556-01" ] }, { "cite": "661 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2008, "pin_cites": [ { "page": "707", "parenthetical": "quoting State v. Millsaps, 356 N.C. 556, 565, 572 S.E.2d 767, 774 (2002)" } ], "opinion_index": 0 }, { "cite": "362 N.C. 334", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150724 ], "year": 2008, "pin_cites": [ { "page": "336", "parenthetical": "quoting State v. Millsaps, 356 N.C. 556, 565, 572 S.E.2d 767, 774 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0334-01" ] }, { "cite": "642 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "pin_cites": [ { "page": "515", "parenthetical": "holding that admission of nurse's testimony was harmless error when it substantially reiterated another witness' expert testimony that was not challenged on appeal" } ], "opinion_index": 0 }, { "cite": "182 N.C. App. 406", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8172566 ], "year": 2007, "pin_cites": [ { "page": "416", "parenthetical": "holding that admission of nurse's testimony was harmless error when it substantially reiterated another witness' expert testimony that was not challenged on appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0406-01" ] }, { "cite": "110 S. Ct. 1464", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1990, "opinion_index": 0 }, { "cite": "108 L. Ed. 2d 602", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "494 U.S. 1022", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5540, 5547, 5516, 5166, 5366, 4823, 5560 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/494/1022-04", "/us/494/1022-06", "/us/494/1022-03", "/us/494/1022-05", "/us/494/1022-01", "/us/494/1022-02", "/us/494/1022-07" ] }, { "cite": "373 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "526-27", "parenthetical": "holding that admission of expert testimony that defendant's wounds were self-inflicted was harmless error when two other doctors testified to essentially same opinions" } ], "opinion_index": 0 }, { "cite": "323 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564753 ], "year": 1988, "pin_cites": [ { "page": "384", "parenthetical": "holding that admission of expert testimony that defendant's wounds were self-inflicted was harmless error when two other doctors testified to essentially same opinions" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0371-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "694 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152316 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0133-01" ] }, { "cite": "398 U.S. 323", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170963 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/us/398/0323-01" ] }, { "cite": "392 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "150" } ], "opinion_index": 1 }, { "cite": "98 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525243 ], "year": 1990, "pin_cites": [ { "page": "533" } ], "opinion_index": 1, "case_paths": [ "/nc-app/98/0518-01" ] }, { "cite": "404 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1991, "pin_cites": [ { "page": "829", "parenthetical": "citation omitted" }, { "page": "829-30", "parenthetical": "citation omitted" }, { "page": "830" } ], "opinion_index": 1 }, { "cite": "329 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2554442 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "140", "parenthetical": "citation omitted" }, { "page": "140" } ], "opinion_index": 1, "case_paths": [ "/nc/329/0128-01" ] }, { "cite": "538 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "opinion_index": 1 }, { "cite": "353 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135783 ], "year": 2000, "opinion_index": 1, "case_paths": [ "/nc/353/0159-01" ] }, { "cite": "443 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "72", "parenthetical": "additional quotations and citations omitted" } ], "opinion_index": 1 }, { "cite": "336 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535615 ], "year": 1994, "pin_cites": [ { "page": "276-77", "parenthetical": "additional quotations and citations omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/336/0268-01" ] }, { "cite": "456 U.S. 605", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6189237 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "611" }, { "page": "373" } ], "opinion_index": 1, "case_paths": [ "/us/456/0605-01" ] }, { "cite": "572 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "771", "parenthetical": "citation omitted; emphasis added" }, { "page": "771", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "356 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511555 ], "year": 2002, "pin_cites": [ { "page": "561", "parenthetical": "citation omitted; emphasis added" } ], "opinion_index": 1, "case_paths": [ "/nc/356/0556-01" ] } ], "analysis": { "cardinality": 1379, "char_count": 40262, "ocr_confidence": 0.746, "pagerank": { "raw": 5.527646540942415e-08, "percentile": 0.3471679236897595 }, "sha256": "6477634ae914b260f064062994a168cfb03e875ef4dbc03472d3a10105cf6113", "simhash": "1:8b26c22a426ebdf4", "word_count": 6627 }, "last_updated": "2023-07-14T18:13:27.459138+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BRYANT concurs.", "Judge ELMORE dissents in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. CHAD JARRETT BARROW" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Chad Jarrett Barrow appeals from his conviction of second degree murder of his son, Jace. The jury was instructed that it could find defendant guilty of felony murder, second degree murder, or involuntary manslaughter, or it could find defendant not guilty. On appeal, defendant primarily argues that the trial court erred in submitting second degree murder to the jury because, according to defendant, the record does not contain evidence that would allow the jury to find him guilty of second degree murder but not guilty of felony murder. In order, however, for defendant to be guilty of felony murder (based on felonious child abuse), the jury was required to find that defendant used a deadly weapon. Since the State\u2019s evidence would have permitted the jury to find that defendant did not use a deadly weapon but still killed Jace with malice, we hold that the trial court properly instructed the jury on the offense of second degree murder.\nFacts\nThe State\u2019s evidence tended to show the following facts. Jace Barrow was born on 5 March 2007 to Lindsey Kiser and defendant, who lived together in Shelby, North Carolina. According to Jace\u2019s pediatric nurse practitioner, Jace was a healthy child and was growing and developing normally.\nOn 4 July 2007, Ms. Kiser, defendant, and Jace went to Ms. Kiser's family\u2019s lake house to spend the holiday with extended family. While it was defendant\u2019s turn to watch Jace, defendant became agitated and angry. Later, when defendant went to put Jace down for a nap, Ms. Kiser\u2019s cousin, Angela Alexander, went into the house and heard Jace screaming and crying. She saw defendant holding Jace and shaking him vigorously. Ms. Alexander took Jace and calmed him down. Ms. Kiser, who had also heard Jace crying, ran into the room. Defendant told her that when Jace woke up, he was crying, and defendant could not get the baby to calm down or take his bottle. Defendant was very agitated.\nDuring a visit between defendant and Ms. Kiser\u2019s uncle, Keith Blanton, defendant said that caring for Jace was hard and if he could go back and do it over, he would never have had the baby. Defendant told Mr. Blanton, \u201cWe\u2019re not ready for it, unprepared for a baby.\u201d Mr. Blanton observed a change in defendant after Jace was born. While, before, defendant had seemed very happy, afterwards, he was very unhappy and agitated.\nOn 21 August 2007, defendant brought Jace to the house of Ms. Kiser\u2019s aunt, Kay Wallace. Defendant was helping Ms. Wallace\u2019s husband fix an attic fan. Ms. Wallace babysat Jace and took photographs of him. The photographs did not show any bruising on Jace\u2019s face. Towards the end of the day, Ms. Kiser\u2019s best friend, Ashley Pruitt, dropped by defendant and Ms. Kiser\u2019s house to visit, arriving before Ms. Kiser had gotten home from work. Immediately after Ms. Pruitt got there, defendant told her to \u201clook what Jace did to his eye. He must have hit himself with a toy.\u201d Jace had bruises on his eye and nose and seemed lethargic and fussy.\nOn 22 August 2007, when Ms. Kiser went to work, she left Jace in defendant\u2019s care. Jace was happy, responsive, and in his swing as she left the house. Later that day, Officer Julius Littlejohn of the Shelby Police Department responded to a 911 call about an infant who was unable to breathe. When he arrived at defendant\u2019s home, he found defendant holding Jace, asking where EMS was. Officer Littlejohn described defendant as agitated and upset, and Officer Littlejohn took Jace from defendant. Initially, Jace\u2019s breathing was very weak, and then his breathing seemed to stop. Officer Littlejohn observed a bruise under Jace\u2019s left eye and possibly bruises on Jace\u2019s nose and forehead. The officer performed rescue breathing until EMS arrived.\nParamedic Kenneth Dale Childers arrived at defendant\u2019s house at 12:21 p.m. He observed that Jace was cyanotic and only breathing two or three times per minute, which is not enough to sustain life\u2014 infants typically breathe 30 to 40 times per minute.' Mr. Childers moved Jace into the ambulance and began giving him artificial respiration. Mr. Childers observed that Jace had a bruise over his left eye and across the bridge of his nose as well as an abrasion on the left side of his head above the ear with some swelling. Mr. Childers also observed that Jace had decerebrate posture, meaning that his extremities were posturing inward towards his body and his muscles were tight and flexed. Mr. Childers testified at trial that decerebrate posturing is usually a sign of a head injury.\nDefendant told Mr. Childers that he found Jace slumped over in the swing when defendant got up from a nap. Later, Officer Barbie Ledford arrived to assist. She observed bruising around Jace\u2019s eye, across the bridge of his nose, on the left side of his forehead, by his ear, on the left side of his neck, and on the side of his rib cage. She asked defendant what had happened. Defendant told her that he had placed Jace in the swing, had turned on cartoons, and had then gone outside to smoke a cigarette. Defendant said that when he came back inside, Jace was slumped over and not breathing. Defendant could not explain the bruising, but said he thought it was from Jace sleeping on his hand.\nIn the emergency room, Dr. Joseph Mullen ordered a CT scan after observing the bruises on Jace\u2019s face. The CT scan showed intracranial bleeding, and Dr. Mullen had Jace transferred by helicopter to Carolinas Medical Center in Charlotte. Defendant told Dr. Mullen that he found Jace slumped over after he returned from smoking a cigarette outside.\nDr. Michael Brian Wilson treated Jace at the pediatric critical care unit of Levine Children\u2019s Hospital in Charlotte. At that point, Jace was not making any purposeful movements, and another CT scan showed signs of brain swelling. Despite efforts to relieve the pressure, Jace\u2019s condition continued to deteriorate. By the early morning of 23 August 2007, one of his pupils had become fixed and dilated, and another CT scan showed that Jace\u2019s brain had herniated, which Dr. Wilson described as \u201cnot an injury that you can recover from.\u201d\nDr. Wilson concluded that Jace\u2019s bilateral subdural bleeding and a retinal hemorrhage in Jace\u2019s right eye indicated he suffered significant trauma. According to Dr. Wilson, \u201c[t]here has to be either a . . . blunt force injury[] or ... an extremely forceful shaking injury to produce bleeding in the back of the eye.\u201d Dr. Wilson explained that because a five-month-old\u2019s brain and blood vessels are still forming, \u201c[i]f a child is shaken forcefully, the brain slushes back and forth inside the head, and that can produce bleeding\u201d by breaking the \u201cblood vessels that come out of the brain and into the skull\u201d and causing \u201cbleeding at the back of the eye.\u201d Dr. Wilson believed that the bruises on Jace\u2019s face had occurred within 24 to 48 hours and that whatever trauma caused the bruising could also have caused the injury to Jace\u2019s brain.\nDefendant was indicted for first degree murder of Jace. A separate indictment alleged two aggravating factors: that, at the time of the killing, (1) the victim was very young and physically infirm, and (2) defendant took advantage of a position of trust to commit the offense.\nAt trial, the State presented expert testimony that Jace suffered two acute subdural hematomas, cerebral edema, retinal hemorrhages, and bruises and abrasions on his head. Dr. Christopher Gulledge, of the Mecklenburg County Medical Examiner\u2019s office, found that the cause of Jace\u2019s death was abusive head trauma. He testified that the type of injuries suffered by Jace are immediately symptomatic and that, in his opinion, the injuries therefore happened between 8:00 a.m. and 1:00 p.m. on 22 August 2007.\nDr. Jeremy Jones, a neuroradiologist on staff at Carolinas Medical Center, testified regarding the CT scans taken during the course of Jace\u2019s treatment. He concluded that the CT scans were consistent with Jace\u2019s injuries having been inflicted between 8:00 a.m. and 12:00 p.m. on 22 August 2007.\nDefendant presented expert testimony from an associate medical examiner from Florida; a neurosurgeon; the chief of neuropathology and surgical pathology and director of anatomic pathology services at Duke University Medical Center and School of Medicine; and a clinical neurosurgeon. Defendant\u2019s medical experts attributed Jace\u2019s injuries to a chronic subdural hematoma that had been present for at least a month and could have been present since birth. Defendant\u2019s expert witnesses believed that the chronic subdural hematoma had spontaneously re-bled, causing a seizure, which in turn led to hypoxia and severe brain damage. They also expressed the opinion that shaking alone could not cause subdural hematomas or cerebral edema and that Jace\u2019s injuries were not caused by shaking.\nDefendant also called Ms. Kiser to testify regarding an incident when Jace was two months old and had rolled off the couch onto a carpeted floor. In addition, however, Ms. Kiser testified that on the morning of 22 August 2007, Jace was very alert and trying to find his toys. Jace had no bruising or abrasions on his face other than the bruising around his eye from the day before. When she tried to wake defendant, he did not want to get up, but Ms. Kiser told him he had to get up to take care of the baby.\nOn rebuttal, the State presented evidence from a pediatrician with a specialty in child abuse and a pediatric ophthalmologist. The pediatrician testified that it is rare for babies five months old to develop bruises from their own motor actions since they lack the ability to exert enough force to cause bruising. She also testified that violent shaking of a baby causes tears between the top of the brain and the underside of the dura mater that can cause the baby to stop breathing, which leads to a cascade of effects, including a subdural hematoma. Both experts testified that they believed the retinal hemorrhaging in Jace\u2019s left eye was indicative of abusive head trauma. On surrebuttal, however, defendant presented testimony from the Forsyth County Medical Examiner that the findings of Jace\u2019s retinal hemorrhages could have been the result of a number of different causes and did not necessarily indicate head trauma.\nAfter the close of evidence, the trial court instructed the jury on first degree murder under the felony murder rule with felony child abuse as the underlying felony, as well as second degree murder and involuntary manslaughter. The jury found defendant guilty of second degree murder.\nThe trial court then submitted to the jury the two aggravating factors of the victim\u2019s being young and physically infirm and defendant\u2019s taking advantage of a position of trust to commit the offense. The jury found both aggravating factors beyond a reasonable doubt. The trial court found as mitigating factors that defendant supports his family, has a support system in the community, and has a positive employment history or is gainfully employed. After finding that the aggravating factors outweighed the mitigating factors, the trial court sentenced defendant to an aggravated-range term of 196 to 245 months imprisonment. Defendant timely appealed to this Court.\nI\nDefendant first argues that the trial court erred in admitting Dr. Gulledge\u2019s testimony that Jace\u2019s f\u00e1tal injuries were inflicted between 8:00 a.m. and 1:00 p.m. Defendant contends that this testimony failed to meet the reliability standard set out in State v. Ward, 364 N.C. 133, 694 S.E.2d 738 (2010), and Howerton v. Arai Helmet Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004).\nEven assuming, without deciding, that this testimony failed to meet the standards for reliability, defendant has failed to demonstrate that \u201cthere 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. \u00a7 15A-1443(a) (2009). While defendant contends that \u201cDr. Gulledge\u2019s opinion was the State\u2019s only evidence that the injuries occurred during this interval\u201d after Ms. Kiser left for work on the morning of 22 August 2007, Dr. Jeremy Jones in fact gave testimony, without objection, that was almost identical to that of Dr. Gulledge.\nDr. Jones testified that the timeframe of 8:00 a.m. through 12:00 p.m. \u201cwould be consistent with what we see on the CT scans.\u201d He confirmed that his opinion regarding the time frame remained the same after reviewing the third CT taken at 3:35 p.m. on 22 August 2007. Given that this testimony is effectively the same as that of Dr. Gulledge and that defendant has made no objection that Dr. Jones\u2019 testimony was unreliable, we cannot conclude that there is a reasonable possibility that the jury would have acquitted defendant or convicted him of involuntary manslaughter-had Dr. Gulledge\u2019s testimony been excluded. See State v. Fullwood, 323 N.C. 371, 384, 373 S.E.2d 518, 526-27 (1988) (holding that admission of expert testimony that defendant\u2019s wounds were self-inflicted was harmless error when two other doctors testified to essentially same opinions), vacated on other grounds, 494 U.S. 1022, 108 L. Ed. 2d 602, 110 S. Ct. 1464 (1990); State v. Henderson, 182 N.C. App. 406, 416, 642 S.E.2d 509, 515 (2007) (holding that admission of nurse\u2019s testimony was harmless error when it substantially reiterated another witness\u2019 expert testimony that was not challenged on appeal).\nII\nDefendant next argues that the trial court erred in submitting an instruction to the jury on second degree murder. It is well established that \u201cwhen the state proceeds on a theory of felony murder only, the trial court should not instruct on lesser-included offenses \u2018[i]f the evidence as to the underlying felony supporting felony murder is not in conflict and all the evidence supports felony murder.\u2019 \u201d State v. Gwynn, 362 N.C. 334, 336, 661 S.E.2d 706, 707 (2008) (quoting State v. Millsaps, 356 N.C. 556, 565, 572 S.E.2d 767, 774 (2002)).\nDefendant contends that the evidence supporting felonious child abuse \u2014 the underlying felony \u2014 was not in conflict and, therefore, the trial court was barred from instructing on second degree murder. According to defendant, in order to find defendant guilty of second degree murder, the jury would have to make the same factual findings that would dictate a verdict of guilty of felony murder. We disagree.\nN.C. Gen. Stat. \u00a7 14-17 (2009) provides that a defendant can be convicted of felony murder if the murder was \u201ccommitted in the perpetration or attempted perpetration of any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon. . . . \u201d (Emphasis added.) Because felonious child abuse is not specifically listed in N.C. Gen. Stat. \u00a7 14-17, in order to prove felony murder, the State, in this-case, was required to show that the child abuse was committed with the use of a deadly weapon. See State v. Pierce, 346 N.C. 471, 493, 488 S.E.2d 576, 589 (1997) (\u201cFelony murder on the basis of felonious child abuse requires the State to prove that the killing took place while the accused was perpetrating or attempting to perpetrate felonious child abuse with the use of a deadly weapon.\u201d).\nIn Pierce, the Supreme Court explained that \u201c[w]hen a strong or mature person makes an attack by hands alone upon a small child, the jury may infer that the hands were used as deadly weapons.\u201d Id. (emphasis added). The Court concluded that \u201c[t]he evidence that [the defendant] caused a small child\u2019s death by shaking her with his hands was sufficient to permit the jury to conclude that defendant committed felonious child abuse and that he used his hands as deadly weapons.\u201d Id. The Court, therefore, held that \u201cthe trial court did not err by refusing to grant defendant\u2019s motion to dismiss the charge of first-degree murder under the felony murder rule.\u201d Id.\nContrary to defendant\u2019s suggestion otherwise, Pierce does not require a jury to find that a defendant who shook a child was using his or her hands as deadly weapons. It simply held that the trial court properly instructed the jury that it could make that finding. This Court in State v. Stokes, 150 N.C. App. 211, 225, 565 S.E.2d 196, 205 (2002) (internal quotation marks omitted), rev\u2019d in part on other grounds, 357 N.C. 220, 581 S.E.2d 51 (2003), upheld jury instructions as being properly based on Pierce when they \u201cmade it clear to the jury that the jury was not compelled to infer anything, and that it was free to decide from all the evidence whether defendant\u2019s hands had been used as a deadly weapon.\u201d\nHere, the trial court similarly instructed the jury that it could find \u2014 but was not required to find \u2014 that defendant used his hands as a deadly weapon. If the jury decided that defendant\u2019s hands were not a deadly weapon, it was required to find defendant not guilty of felony murder.\nIn that event, the trial court instructed, the jury was required to decide whether defendant was guilty of second degree murder, which the court explained required a finding of the following elements:\nSo I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date Jace Barrow sustained a fatal injury'and that this injury proximately caused the death [of] Jace Barrow and that this injury was inflicted intentionally and not by accident and that it was the defendant who intentionally inflicted this injury and that in so doing the defendant acted with malice, it would be your duty to return a verdict of guilty of second degree murder.\nWith respect to malice, the trial court explained: \u201cTo find that the defendant acted with malice, you need not find that he intended to kill Jace Barrow, but you must find beyond a reasonable doubt that his acts were so reckless or wantonly done as to indicate a total disregard of human life.\u201d\nOur courts have already concluded that evidence of the type submitted by the State in this case is sufficient to support a conviction of second degree murder. See State v. Smith, 146 N.C. App. 1, 23, 551 S.E.2d 889, 902 (2001) (Tyson, J., dissenting) (holding that defendant could be convicted of second degree murder when child died as result of violent shaking and/or blow to head inflicted by defendant), rev\u2019d per curiam for reasons in dissenting opinion, 355 N.C. 268, 559 S.E.2d 786 (2002); State v. Qualls, 130 N.C. App. 1, 10-11, 502 S.E.2d 31, 37 (1998) (holding that sufficient evidence of malice existed for second degree murder when defendant severely shook child, \u201can act which ultimately led to his death\u201d), aff\u2019d, 350 N.C. 56, 510 S.E.2d 376 (1999). See also State v. Trogden, _ N.C. App._, _, _ S.E.2d _, _, 2011 N.C. App. LEXIS 2048 (Sept. 20, 2011) (holding that sufficient evidence of malice was shown for purposes of second degree murder in child abuse case because attack of strong adult on young child is reasonably likely to result in death or serious bodily injury to child).\nConsequently, we hold that the jury in this case could rationally find defendant guilty of second degree murder and not guilty of first degree felony murder. The trial court, therefore, properly instructed the jury on the offense of second degree murder. See Millsaps, 356 N.C. at 561, 572 S.E.2d at 771.\nIll\nFinally, defendant contends that the trial court erred in failing to instruct the jury, as provided in N.C. Gen. Stat. \u00a7 15A-1340.16(d) (2009), that \u201c[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation . . . .\u201d Defendant argues that the jury \u201cprobably\u201d relied on identical evidence to find both the elements of second degree murder and the aggravating factors that Jace was very young and physically infirm and that defendant took advantage of a position of trust to commit the offense.\nThe State argues that defendant did not object to the trial court\u2019s instruction and, therefore, did not preserve the issue for review. In State v. Keel, 333 N.C. 52, 56-57, 423 S.E.2d 458, 461 (1992), however, the Supreme Court held that when the trial court agreed to the State\u2019s request (concurred in by the defendant) that the court would give a particular pattern jury instruction but then changed a portion of the pattern instruction, the defendant could challenge the changed portion on appeal. The Court explained: \u201cThe State\u2019s request, approved by the defendant and agreed to by the trial court, satisfied the requirements of Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure and preserved this question for review on appeal.\u201d Id.\nHere, the trial court advised the parties that it would give the pattern jury instructions applicable in bifurcated proceedings to determine aggravating factors, including N.C.P.I. 204.25, which begins by stating that \u201c[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation[.]\u201d The trial court omitted that portion of the pattern instruction although the remainder of the instruction was nearly identical to N.C.P.I. 294.25. Under Keel, the omission of this portion of the pattern instruction is properly before this Court.\nThe trial court has the burden of declaring and explaining the law arising on evidence as it relates to each substantial feature of the case. State v. Moore, 339 N.C. 456, 464, 451 S.E.2d 232, 236 (1994). Because N.C. Gen. Stat. \u00a7 15A-1340.16(d) limits what evidence the jury can consider in deciding whether an aggravating factor exists, the trial court was required to instruct the jury in accordance with the statute \u2014 as the pattern jury instruction specifies.\nHowever, \u201cit is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.\u201d Robinson v. Seaboard Sys. R.R., Inc., 87 N.C. App. 512, 524, 361 S.E.2d 909, 917 (1987). Further, we must determine whether there is a reasonable possibility that had the instruction been given, the jury would have failed to find the existence of the aggravating factors. See N.C. Gen. Stat. \u00a7 15A-1443(a).\nNothing in the court\u2019s actual instructions to the jury would have indicated to the jury that it could not consider all of the evidence presented during the guilt-innocence phase when deliberating on the aggravating factors. Indeed, during the instructions for the aggravating factor phase, the trial court instructed the jury that \u201c[a] 11 of the evidence has been presented\u201d and that it was the duty of the jury to decide \u201cfrom this evidence what the facts\u201d were regarding the aggravating factors. The court directed the jury to \u201cremember all the evidence\u201d and \u201cconsider all the evidence\u201d in deciding whether the aggravating factors existed. Given these instructions, it is highly likely that the jury believed that it could consider all of the evidence in reaching a verdict on each aggravating factor.\nWith respect to the jury\u2019s finding of the aggravating factor that the victim was \u201cvery young and physically infirm[],\u201d we believe that there is a reasonable possibility that the jury relied upon evidence that was also the basis for its verdict of second degree murder. The underlying purpose of this aggravating factor is \u201cto deter wrongdoers from taking advantage of a victim because of his age or mental or physical infirmity.\u201d State v. Deese, 127 N.C. App. 536, 540, 491 S.E.2d 682, 685 (1997). Consequently, a victim\u2019s age can make \u201c \u2018a defendant more blameworthy [when] the victim\u2019s age causes the victim to be more vulnerable than he or she otherwise would be to the crime committed against him or her, as where age impedes a victim from fleeing, fending off attack, recovering from its effects, or otherwise avoiding being victimized.\u2019 \u201d Id. at 541, 491 S.E.2d at 686 (quoting State v. Hines, 314 N.C. 522, 525, 335 S.E.2d 6, 8 (1985)).\nHere, the State\u2019s theory regarding second degree murder relied almost exclusively on the fact that because of the vulnerability of a five-month old child, shaking him is such a reckless act as to indicate a total disregard of human life \u2014 the showing necessary for malice. See State v. Wilkerson, 295 N.C. 559, 581, 247 S.E.2d 905, 918 (1978) (\u201cAn act that indicates a total disregard for human life is sufficient to supply the malice necessary to support the crime of second degree murder.\u201d). Thus, the State\u2019s theory regarding malice is virtually identical to the rationale underlying submission of the aggravating factor that the victim was \u201cvery young and physically infirm[].\u201d\nThere is, as a result, a reasonable possibility that the jury relied on Jace\u2019s age both in finding malice and in finding the aggravating factor, which would violate N.C. Gen. Stat. \u00a7 15A-1340.16(d). Further, had the jury been instructed in accordance with N.C. Gen. Stat. \u00a7 15A-1340.16(d), a reasonable possibility exists that the jury would have concluded that it could not find the aggravating factor without the evidence that formed the basis for the second degree murder verdict. See State v. Corbett, 154 N.C. App. 713, 717, 573 S.E.2d 210, 214 (2002) (holding that when defendant was charged with second degree sexual offense, trial court erred in finding aggravating factor that defendant abused position of trust because State\u2019s theory of the case relied upon finding of constructive force based upon parent-child relationship).\nWe reach a different conclusion, however, with respect to the aggravating factor that defendant took advantage of a position of trust in committing the offense. The State\u2019s theory of the case and the trial court\u2019s instructions during the guilt-innocence phase did not require that the jury consider, in convicting defendant of second degree murder, whether defendant took advantage of his status as a parent or his being entrusted with his own child\u2019s care. The focus with respect to second degree murder was on the actual physical acts that resulted in Jace\u2019s death. Defendant has not, therefore, demonstrated that a reasonable possibility exists that had the jury been properly instructed it would not have found the existence of the second aggravating factor.\nConsequently, we hold that the trial court erred in failing to give the full pattern jury instruction. Defendant has shown prejudicial error with respect to the first aggravating factor, but not the second. Accordingly, we must reverse and remand for further sentencing proceedings. On remand, the trial court must determine whether the second aggravating factor, standing alone, outweighs the mitigating factors and warrants an aggravated-range sentence.\nNo error in part; reversed and remanded in part.\nJudge BRYANT concurs.\nJudge ELMORE dissents in a separate opinion.", "type": "majority", "author": "GEER, Judge." }, { "text": "ELMORE, Judge,\ndissenting.\nBecause I would vacate the judgment below and order a new trial for defendant, I respectfully dissent.\nDefendant first argues that the trial court erred by instructing the jury on second-degree murder. I agree, because the evidence would not permit the jury to rationally find defendant guilty of second-degree murder and to acquit him of first-degree murder under the felony murder rule.\nThe trial court instructed the jury on first-degree murder under the felony murder rule, with felony child abuse as the underlying felony. The trial court also instructed the jury on second-degree murder and involuntary manslaughter as lesser-included offenses. During the charge conference, defense counsel objected to the second-degree murder instruction.\nAs our Supreme Court has explained, trial courts must not give a lesser-included offense instruction unless the instruction is supported by the evidence:\nPrinciples of due process \u201crequire[] that a lesser included offense instruction be given only when the evidence warrants such an instruction.\u201d Hopper v. Evans, 456 U.S. 605, 611, 72 L. Ed. 2d 367, 373 (1982). Underlying this rule is the realization that instructing the jury on a lesser-included offense that is not supported by the evidence improperly invites a compromise verdict whereby the defendant would be found guilty of an offense, which he did not commit, for the sole reason that some of the jurors believe him guilty of the greater offense.\nState v. Worsley, 336 N.C. 268, 276-77, 443 S.E.2d 68, 72 (1994) (additional quotations and citations omitted). \u201cAn instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.\u201d State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002) (citation omitted; emphasis added), la Millsaps, the Supreme Court set out the following \u201cstandard for deciding whether the trial court must instruct on and submit second-degree murder as a lesser-included offense of first-degree murder\u201d:\nThe determinative factor is what the State\u2019s evidence tends to prove. If the evidence is sufficient to fully satisfy the State\u2019s burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant\u2019s denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.\nId. at 560, 572 S.E.2d at 771 (citation omitted).\nThe trial court summarized the first-degree murder instruction for the jury as follows:\nSo I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant was the parent of Jace Barrow; that Jace Barrow had not yet reached his sixteenth birthday; and that the defendant intentionally inflicted a serious physical injury to the child or intentionally assaulted the child which proximately resulted in a serious physical injury to the child; and that while committing felonious child abuse the defendant killed Jace Barrow; and that the defendant\u2019s act was a proximate cause of Jace Barrow\u2019s death; and that the defendant committed felonious child abuse with the use of a deadly weapon, it would be your duty to return a verdict of guilty of first degree murder.\nThe trial court instructed the jury that, if it found that defendant had \u201cmade an attack by hands alone upon Jace Barrow,\u201d it could \u201cinfer that the hands were used as a deadly weapon.\u201d\nThe trial court summarized the second-degree murder instruction, which the jury was only to consider if it did not find all of the elements of first-degree murder, as follows:\nSo I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date Jace Barrow sustained a fatal injury and that this injury proximately caused the death [of] Jace Barrow and that this injury was inflicted intentionally and not by accident and that it was the defendant who intentionally inflicted this injury and that in so doing the defendant acted with malice, it would be your duty to return a verdict of guilty of second degree murder.\nThe trial court defined proximate cause as\na real cause, a cause without which Jace Barrow\u2019s death would not have occurred. The defendant\u2019s act need not have been the only cause nor the last or nearest cause. It is sufficient if it occurred with some other cause acting at the time which in combination with it caused the death of Jace Barrow.\nWith respect to malice, the trial court explained that, \u201c[t]o find that the defendant acted with malice, you need not find that he intended to kill Jace Barrow, but you must find beyond a reasonable doubt that his acts were so reckless or wantonly done as to indicate a total disregard of human life.\u201d\nDefendant argues that the State\u2019s evidence pointed exclusively to first-degree murder, and his evidence pointed to his not being guilty of any offense; no evidence pointed to defendant being guilty of second-degree murder but not guilty of first-degree murder. In other words, finding defendant guilty of second-degree murder required the same factual findings as finding defendant guilty of first-degree murder with the exception of certain facts that were not at issue, such as whether defendant was Jace\u2019s father and whether Jace was under the age of sixteen. Thus, no jury could rationally find defendant guilty of second-degree murder but not guilty of first-degree murder. I agree with this reasoning.\nTo find defendant guilty of second-degree murder, the jury had to reach the following conclusions: (1) \u201cJace Barrow received a fatal injury\u201d; (2) that \u201cinjury was a proximate cause of Jace Barrow\u2019s death\u201d; (3) that the \u201cinjury was inflicted intentionally and not by accident or misadventure[,]\u201d meaning that \u201cthe person who caused it intended to apply the force by which it was caused\u201d; (4) that the person who inflicted this injury was defendant; and (5) that defendant acted with malice, meaning \u201chis acts were so reckless or wantonly done as to indicate a total disregard of human life.\u201d\nTo find defendant guilty of first-degree murder, the jury had to reach the following conclusions: (1) defendant committed felonious child abuse; (2) while committing felonious child abuse, defendant killed Jace; (3) defendant\u2019s act was the proximate cause of Jace\u2019s death; and (4) the felonious child abuse was committed with the use of a deadly weapon. To conclude that defendant had committed felonious child abuse, the jury had to find that (1) defendant was Jace\u2019s parent; (2) at the time of the abuse, Jace was not yet sixteen years old; and (3) \u201cdefendant intentionally inflicted a serious physical injury to the child or intentionally assaulted the child which proximately resulted in serious physical injury to the child,\u201d a serious physical injury being \u201csuch physical injury as causes great pain and suffering.\u201d The State\u2019s evidence suggested that if defendant hit or shook Jace, he did so using his hands. The State offered no evidence that defendant used any other weapon or that Jace sustained his injuries by any means other than defendant\u2019s hands.\nA jury could not rationally conclude that defendant had committed second-degree murder while also concluding that defendant had not committed first-degree murder. The legal findings required for first-degree murder are identical to the findings required for second-degree murder, with the exception of Jace\u2019s parentage and age, which were not at issue. This is similar to felony murder cases involving a felonious assault on a single victim. State v. Jones, 353 N.C. 159, 170 n.3, 538 S.E.2d 917, 926 n.3 (2000).\nIn such cases, the assault on the victim cannot be used as an underlying felony for purposes of the felony murder rule. Otherwise, virtually all felonious assaults on a single victim that result in his or her death would be first-degree murders via felony murder, thereby negating lesser homicide charges such as second-degree murder and manslaughter.\nId. Accordingly, I would hold that the trial court erred by instructing the jury on the lesser-included offense of second-degree murder.\nI would also hold that the error was not harmless and, as a result, defendant is entitled to a new trial.\n\u201c[S]ome errors of this type are not prejudicial to the defendant because had the jury not had the option of convicting on the lesser offense, it would likely have convicted on the greater offense, subjecting the defendant to harsher penalties.\u201d State v. Arnold, 329 N.C. 128, 140, 404 S.E.2d 822, 829 (1991) (citation omitted). In Arnold, our Supreme Court explained that submitting a lesser-included offense for which there is insufficient evidence violates a defendant\u2019s federal due process rights, which we review under N.C. Gen. Stat. \u00a7 15A-1443(b). Id. Subsection 15A-1443(b) states, in relevant part, that\n[a] violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.\nN.C. Gen. Stat. \u00a7 15A-1443(b) (2009). \u201cThe State must therefore prove that the error was harmless beyond a reasonable doubt. Overwhelming evidence of defendant\u2019s guilt may render constitutional error harmless beyond a reasonable doubt.\u201d Arnold, 329 N.C. at 140, 404 S.E.2d at 829-30 (citation omitted).\nHere, the evidence of defendant\u2019s guilt of first-degree murder was not overwhelming. Defendant\u2019s experts all opined that Jace died of natural causes and was not killed as a result of abusive head trauma. Even the State\u2019s experts agreed that Jace\u2019s brain injuries could have been caused by seizure-induced hypoxia rather than abusive head trauma. Finally, as the Supreme Court in Arnold stated,\nOur conclusion is further demonstrated by the fact that the jury found defendant guilty of murder in the second degree, a charge which was not supported by the evidence. This verdict was also tantamount to a verdict of not guilty as to the [first-degree murder] charge. Had not the inviting verdict of murder in the second degree been available to the jury, and its choice limited to guilty of murder in the first degree or not guilty, the verdict may well have been one of not guilty.\nId. at 141, 404 S.E.2d at 830. The State having failed to prove that the error was harmless beyond a reasonable doubt, I would hold that defendant was prejudiced by the trial court\u2019s error and reverse his conviction for murder in the second degree.\nAccordingly, I believe that defendant is entitled to a new trial. I would add that, as in Arnold, \u201cdefendant may not now be retried for first degree murder. Conviction of second degree murder acts as acquittal of first degree murder, and thus retrial would place the defendant in double jeopardy in violation of h[is] rights under the Fifth and Fourteenth Amendments to the Federal Constitution.\u201d State v. Arnold, 98 N.C. App. 518, 533, 392 S.E.2d 140, 150 (1990), affirmed by 329 N.C. 128, 404 S.E.2d 822 (1991), (citing Price v. Georgia, 398 U.S. 323, 26 L. Ed. 2d 300 (1970); additional citations omitted).", "type": "dissent", "author": "ELMORE, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Melissa L. Trippe, for the State.", "Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHAD JARRETT BARROW\nNo. COA10-978\n(Filed 1 November 2011)\n1. Evidence \u2014 time of fatal injuries \u2014 harmless error\nThe trial court\u2019s admission of a doctor\u2019s testimony that the minor child victim\u2019s fatal injuries were inflicted between 8:00 am and 1:00 pm in a felony murder case was harmless error. Defendant failed to demonstrate there was a reasonable possibility that a different result would have been reached at trial absent the alleged error.\n2. Homicide \u2014 felony, murder \u2014 submission of lesser-included offense of second-degree murder \u2014 child died by violent shaking or blow to head\nThe trial court did not err by submitting a second-degree murder instruction to the jury in a felony murder case. A defendant can be convicted of second-degree murder when a child dies as a result of violent shaking and/or a blow to the head inflicted by defendant.\n3. Sentencing \u2014 aggravating factors \u2014 victim very young and physically infirm \u2014 took advantage of position of trust\nThe trial court erred in a felony murder case by failing to instruct the jury as provided in N.C.G.S. \u00a7 15A-1340.16(d) that evidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation. The State\u2019s theory regarding malice was virtually identical to the rationale underlying submission of the aggravating factor that the victim was very young and physically infirm. However, the trial court did not err with respect to the second aggravating factor that defendant took advantage of a position of trust in committing the offense. The case was reversed and remanded for further sentencing proceedings to determine whether the second aggravating factor, standing alone, outweighed the mitigating factors and warranted an aggravated range sentence.\nJudge ELMORE dissenting.\nAppeal by defendant from judgment entered 7 December 2009 by Judge Nathaniel J. Poovey in Cleveland County Superior Court. Heard in the Court of Appeals 23 February 2011.\nAttorney General Roy Cooper, by Special Deputy Attorney General Melissa L. Trippe, for the State.\nAppellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant." }, "file_name": "0436-01", "first_page_order": 446, "last_page_order": 462 }