{ "id": 4033601, "name": "STATE OF NORTH CAROLINA v. ROBERT JOHN LEWIS, Defendant", "name_abbreviation": "State v. Lewis", "decision_date": "2012-09-04", "docket_number": "No. COA12-100", "first_page": "747", "last_page": "754", "citations": [ { "type": "official", "cite": "222 N.C. App. 747" } ], "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": "656 S.E.2d 695", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640369 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "696-97" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0695-01" ] }, { "cite": "188 N.C. App. 842", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4155675 ], "year": 2008, "pin_cites": [ { "page": "845" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0842-01" ] }, { "cite": "273 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "720" } ], "opinion_index": 0 }, { "cite": "302 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564083 ], "year": 1981, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0137-01" ] }, { "cite": "693 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 610", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175499 ], "year": 2010, "pin_cites": [ { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0610-01" ] }, { "cite": "446 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "31", "parenthetical": "\"Proximate cause is a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed.\"" }, { "page": "31" } ], "opinion_index": 0 }, { "cite": "336 N.C. 762", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535497 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "771-72", "parenthetical": "\"Proximate cause is a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed.\"" }, { "page": "771-72" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0762-01" ] }, { "cite": "336 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "88-89", "parenthetical": "emphasis added" }, { "page": "89" } ], "opinion_index": 0 }, { "cite": "314 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4687281 ], "year": 1985, "pin_cites": [ { "page": "651-52", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0649-01" ] }, { "cite": "295 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573306 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0629-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-315.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 9, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14515.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "706 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "813", "parenthetical": "citation and quotation marks omitted" }, { "page": "813" } ], "opinion_index": 0 }, { "cite": "693 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2010, "pin_cites": [ { "page": "148", "parenthetical": "citations and quotation marks omitted" }, { "page": "148" }, { "page": "148" }, { "page": "148" }, { "page": "148" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176301 ], "weight": 5, "year": 2010, "pin_cites": [ { "page": "724", "parenthetical": "citations and quotation marks omitted" }, { "page": "724" }, { "page": "724" }, { "page": "724" }, { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0718-01" ] } ], "analysis": { "cardinality": 720, "char_count": 17691, "ocr_confidence": 0.747, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1266064160497388 }, "sha256": "5bfe2ebb7c3529fbfce3b341c26e853ef4237987020374fd1fefc7fbb97c6e30", "simhash": "1:19a8323682bfb57a", "word_count": 2905 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and McCULLOUGH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT JOHN LEWIS, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant appeals his convictions for improper storage, of a firearm and involuntary manslaughter. For the following reasons, we find no error but remand for correction of a clerical error.\nI. Background\nThis case arises from the tragic death of defendant\u2019s three-year-old son, Sam. The State\u2019s evidence tended to show that on the morning of 16 November 2009, defendant was at work and Ms. Kimberly Lewis, defendant\u2019s wife, was at home with Sam. After breakfast, Sam went to his room, and within ten seconds Ms. Lewis \u201cheard a [loud] noise[.]\u201d When Ms. Lewis entered Sam\u2019s room she saw Sam and a handgun \u201claying on the floor.\u201d Sam died from a \u201c[g]unshot wound to the head.\u201d The evidence also showed that the handgun\u2019s trigger weight had been lessened which meant it \u201cwould require less force to activate the triggerf,]\u201d and the gun was found, after the shooting, loaded with at least one hollow point bullet.\nOn or about 14 September 2010, defendant was indicted for possession of a weapon of mass destruction, storing a firearm in a manner accessible to a minor (\u201cimproper storage\u201d), involuntary manslaughter, and contributing to the delinquency of a minor. On 24 March 2011, the trial court entered an order granting a mistrial as to the charges of improper storage, involuntary manslaughter, and contributing to the delinquency of a minor because the jury had been unable to reach a unanimous verdict on these charges. After defendant\u2019s second trial by jury, defendant was found guilty of involuntary manslaughter and improper storage. The trial court arrested judgment on defendant\u2019s conviction for improper storage, suspended defendant\u2019s sentence for involuntary manslaughter, and placed defendant on 36 months of supervised probation. Defendant appeals.\nII. Motion to Dismiss\nDefendant first contends that \u201cthe trial court erred when it denied . . . [his] motion to dismiss\u201d the charges of improper storage and involuntary manslaughter because \u201cthe State\u2019s case rested on mere conjecture and was legally insufficient to withstand his motion to dismiss.\u201d\nThe standard of review for a motion to dismiss is well known. A defendant\u2019s motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant\u2019s being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence.\nState v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted). Furthermore, in evaluating evidence, \u201c[circumstantial evidence and direct evidence are subject to the same test for sufficiency, and the law does not distinguish between the weight given to direct and circumstantial evidence.\u201d State v. Banks,_N.C. App._,_, 706 S.E.2d 807, 813 (2011) (citation and quotation marks omitted).\nA. Improper Storage of a Firearm\nThe crime of improper storage of a firearm is defined by North Carolina General Statute \u00a7 14-315.1(a) which provides that\n[a]ny person who resides in the same premises as a minor, owns or possesses a firearm, and stores or leaves the firearm (i) in a condition that the firearm can be discharged and (ii) in a manner that the person knew or should have known that an unsupervised minor would be able to gain access to the firearm, is guilty of a Class 1 misdemeanor if a minor gains access to the firearm without the lawful permission of the minor\u2019s parents or a person having charge of the minor and the minor:\n(1) Possesses it in violation of G.S. 14-269.2(b);\n(2) Exhibits it in a public place in a careless, angry, or threatening manner;\n(3) Causes personal injury or death with it not in self defense; or\n(4) Uses it in the commission of a crime.\nN.C. Gen. Stat. \u00a7 14515.1(a) (2009).\nA plain reading of N.C. Gen. Stat. \u00a7 14-315.1(a) shows that in this case the State was required to prove: (1) the defendant \u201creside [d] in the same premises as a minor[;]\u201d (2) the defendant \u201cowns or possesses a firearmf;]\u201d (3) the defendant \u201cstores or leaves the firearm [(a)] in a condition that the firearm can be discharged and [(b)] in a manner that the [defendant] knew or should have known that an unsupervised minor would be able to gain access to the firearm[;]\u201d (4) \u201ca minor gains access to the firearm without the lawful permission of the minor\u2019s parents or a person having charge of the minor[;]\u201d and (5a) the minor \u201c[possesses [the firearm] in violation of G.S. 14-269.2(b);\u201d or (5b) the minor \u201c[e]xhibits [the firearm] in a public place in a careless, angry, or threatening manner;\u201d or (5c) the minor \u201c[c]auses personal injury or death with [the firearm] not in self defense; or\u201d (5d) the minor \u201c[u]ses [the firearm] in the commission of a crime.\u201d Id.\nDefendant does not dispute that he lived with Sam or that he owned the handgun at issue, satisfying the first two elements of improper storage. See id. Defendant also does not dispute that Sam gained access to the firearm without parental permission, and Sam died as a result of his self-inflicted gunshot wound, satisfying elements four and five of improper storage. See id. Lastly, defendant does not dispute that the gun was \u201cin a condition that the firearm can be discharged\u201d as the handgun was loaded and was not secured by any type of safety mechanism, satisfying the first portion of the third element of improper storage. Id. Thus, the second portion of the third element is the source of the dispute which requires this Court to determine whether there was substantial evidence that defendant stored the handgun \u201cin a manner that the [defendant] knew or should have known, that an unsupervised minor would be able to gain access to the firearm[.]\u201d Id.; see Johnson, 203 N.C. App. at 724, 693 S.E.2d at 148.\nDefendant argues that \u201c[t]he State\u2019s evidence did not show how or from where three-year old [Sam] got the Glock handgun that he use to shoot himself[;]\u201d \u201cthe fact of [Sam]\u2019s death is not \u2018substantial evidence\u2019 that Robert Lewis himself had stored or left the Glock handgun in a condition and manner accessible to [Sam;]\u201d and \u201c[t]he State\u2019s evidence was limited to conjecture about how the Glock handgun might have been left the morning of [Sam]\u2019s death.\u201d But viewing the evidence in the light most favorable to the State, as we must, Johnson, 203 N.C. App. at 724, 693 S.E.2d at 148, Ms. Lewis testified that defendant was \u201cresponsible for storing\u201d the handgun and was the last person seen with the handgun the night before the incident. The evidence also indicates that defendant normally kept the handgun on the top of an entertainment center that not even his wife was tall enough to reach, but on the day that Sam got the handgun, defendant and his family were in the process of moving, and the items on the entertainment center had been removed, and it had been moved out of the room in which it was normally located to the hallway of the home. While it is true that there is no direct evidence of how Sam managed to get the handgun, the circumstantial evidence strongly suggests that the handgun was not stored on top of the entertainment center when Sam gained access to it because Sam was not tall enough to reach the top of the entertainment center, but managed to get the handgun and shoot himself in approximately ten seconds. See generally Banks,_N.C. App. at_, 706 S.E.2d at 813. In any event, the handgun was left in such a manner that Sam was able to access and discharge it within ten seconds or less of discovering it. See N.C. Gen. Stat. \u00a7 14-315.1(a). Accordingly, the trial court properly denied defendant\u2019s motion to dismiss the charge for improper storage. See Johnson, 203 N.C. App. at 724, 693 S.E.2d at 148.\nB. Involuntary Manslaughter\nWe will next consider defendant\u2019s conviction for involuntary manslaughter. Defendant argues that the State presented insufficient evidence \u201cthat he had caused the death of [Sam] through an unlawful act or culpable negligence.\u201d However, defendant\u2019s argument is based upon a misapprehension of the elements of involuntary manslaughter. Our Supreme Court has clarified that\n[i]nvoluntary manslaughter is the unlawful killing of a human being without malice, without premeditation and deliberation, and without intention to kill or inflict serious bodily injury.\nInvoluntary manslaughter has also been defined as the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission.\nThe single essential element common to all four degrees of homicide is that there be an unlawful killing of a human being. Involuntary manslaughter is not distinguished from murder or voluntary manslaughter by the presence of an essential element not contained in the greater offenses; it is distinguished from those offenses by the absence of elements that are essential to the greater offenses but not to involuntary manslaughter. It is the absence of malice, premeditation, deliberation, intent to kill, and intent to inflict serious bodily injury that separates involuntary manslaughter from murder and voluntary manslaughter.\nDefendant argues in this Court that when the definitional test of State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982), is applied to the charge in this case, involuntary manslaughter is not a lesser included offense of murder in the second degree. His theory is that involuntary manslaughter contains an essential element which is not found in murder: either (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission. We disagree.\nContrary to defendant\u2019s arguments, these are not elements of involuntary manslaughter but are two methods of proving the essential element that the killing was unlawful. If the state proves beyond a reasonable doubt that the killing was caused either by an unlawful act not amounting to a felony or by culpably negligent conduct, it has proven that the killing was unlawful. That the killing be unlawful is the essential element that must be proved; showing that the killing was by an unlawful act not amounting to a felony or by culpable conduct is evidence to prove that the killing was unlawful.\nState v. Greene, 314 N.C. 649, 651-52, 336 S.E.2d 87, 88-89 (1985) (emphasis added) (citations omitted). Thus, the only \u201cessential element\u201d the State must prove to establish involuntary manslaughter is an unlawful killing; the State proved this element by showing defendant committed the misdemeanor of improper storage which resulted in Sam\u2019s death, i.e., \u201can unlawful act not amounting to a felony.\u201d Id. at 652, 336 S.E.2d at 89; see N.C. Gen. Stat. \u00a7 14-315.1(a) (noting that violation of N.C. Gen. Stat. \u00a7 14-315.1 is a misdemeanor).\nThough defendant also contends that the State failed to prove that his \u201cconduct was the proximate cause of [Sam]\u2019s death[,]\u201d the State did present sufficient evidence, as discussed above, that Sam died from a self-inflicted gunshot wound because defendant improperly stored his firearm in violation of N.C. Gen. Stat. \u00a7 14-315.1. See State v. Powell, 336 N.C. 762, 771-72, 446 S.E.2d 26, 31 (1994) (\u201cProximate cause is a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed.\u201d). Accordingly, the State presented \u201c [substantial evidence\u201d that defendant\u2019s improper storage of a firearm was the proximate cause of Sam\u2019s death, and thus the trial court did not err in denying defendant\u2019s motion to dismiss the charge of involuntary manslaughter. Johnson, 203 N.C. App. at 724, 693 S.E.2d at 148; see Powell, 336 N.C. at 771-72, 446 S.E.2d at 31.\nIII. Admission of Photograph\nAt trial, evidence was presented that defendant was a former Marine; had sold firearms in a retail store; and at the time of Sam\u2019s death, was a civilian police officer. Over defendant\u2019s objection, a photograph of other weapons found in defendant\u2019s home was admitted into evidence. Deputy Michael Gibbs of the Onslow County Sheriff\u2019s Office testified that though the other weapons found in defendant\u2019s home were stored in cases, law enforcement \u201cstaged\u201d the photograph by taking the weapons out of their cases and piling them in the middle of a room to show the \u201cnet effectf.]\u201d Defendant argues \u201cthe trial court abused its discretion in admitting into evidence a photograph staged by law enforcement which grossly misrepresented how . . . [defendant]^ legally-owned weapons were kept.\u201d Defendant contends that admission of the photograph was erroneous as it was both irrelevant and the \u201cprobative value was far outweighed by the danger that it would mislead and unfairly prejudice the jury.\u201d\nEven assuming arguendo that the trial court erred in admitting the photograph, Ms. Lewis\u2019 testimony alone establishing that defendant improperly stored the handgun which caused Sam\u2019s death is sufficient for this Court to conclude that \u201ca different result would [not] have been reached\u201d \u201chad the error in question not been committed[,]\u201d and thus we do not believe that admitting the photqgraph was prejudicial to defendant. State v. Samuel, 203 N.C. App. 610, 618, 693 S.E.2d 662, 667 (2010) (\u201cWhere a defendant has made a timely objection at trial, the admission of evidence which is technically inadmissible will be treated as harmless unless prejudice is shown. A 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 out of which the appeal arises.\u201d (citations, q\u00faotation marks, ellipses, and brackets omitted)); see State v. Milby and State v. Boyd, 302 N.C. 137, 142, 273 S.E.2d 716, 720 (1981) (\u201cIt is well-established that the burden is on the appellant not only to show error but also to show that he suffered prejudice as a result of the error. ... In view of the overwhelming evidence which was presented by the state, as well as the quality of the evidence, we conclude that there is no reasonable possibility that the verdicts returned by the jury were affected by the introduction of the handguns in question.\u201d (citation omitted)).\nIV. Fine Imposed\nAt sentencing the trial court orally imposed a $100.00 fine; however, the involuntary manslaughter judgment orders a $500.00 fine. Defendant contends that \u201c[t]he trial court erred by entering Judgment imposing a $500 fine on . . . [defendant] after orally imposing a $100 fine at sentencing.\u201d Both defendant and the State agree that the discrepancy is the result of a clerical error. State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696-97 (2008) (\u201cWhen, on appeal, a clerical error is discovered in the trial court\u2019s judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record speak the truth. Accordingly, we remand for correction of the clerical error found on the sentencing form.\u201d (citation and quotation marks omitted)). As such, we remand for correction of the clerical error. See id.\nV. Conclusion\nFor the foregoing reasons, we find no prejudicial error but remand for correction of a clerical error.\nNO ERROR; REMANDED in part.\nJudges CALABRIA and McCULLOUGH concur.\n. A pseudonym will be used.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Appellate Defendant Staple Hughes, by Kathleen M. Joyce, for defendant-appellant.", "Attorney General Roy A. Cooper, III by Assistant Attorney General David N. Kirkman, for the State." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT JOHN LEWIS, Defendant\nNo. COA12-100\n(Filed 4 September 2012)\n1. Firearms and Other Weapons \u2014 improper storage of firearm \u2014 sufficient evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of improper storage of a firearm. There was sufficient evidence of each element of the crime, including that defendant stored a handgun in such a manner that defendant knew or should have known that an unsupervised minor would be able to gain access to it.\n2. Homicide \u2014 involuntary manslaughter \u2014 sufficient evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of involuntary manslaughter. The State presented substantial evidence that defendant\u2019s improper storage of a firearm was the proximate cause of defendant\u2019s child\u2019s death.\n3. Evidence \u2014 photograph\u2014staged by law enforcement \u2014 no reasonable probability verdicts affected\nDefendant\u2019s argument that the trial court abused its discretion in a prosecution for improper storage of a firearm and involuntary manslaughter by admitting into evidence a photograph staged by law enforcement which grossly misrepresented how defendant\u2019s legally owned weapons were kept was overruled. Even assuming arguendo that the trial court erred in admitting the photograph, in view of the overwhelming evidence presented by the State, there was no reasonable possibility that the verdicts returned by the jury were affected by the error.\n4. Penalties, Fines, and Forfeitures \u2014 imposition of fine\u2014 remanded \u2014 clerical error\nA judgment imposing a $500 fine for involuntary manslaughter was remanded for correction of a clerical error where the trial court orally imposed a $100 fine.\nAppeal by defendant from judgments entered on or about 2 September 2011 by Judge Phyllis M. Gorham in Superior Court, Onslow County. Heard in the Court of Appeals 16 August 2012.\nAppellate Defendant Staple Hughes, by Kathleen M. Joyce, for defendant-appellant.\nAttorney General Roy A. Cooper, III by Assistant Attorney General David N. Kirkman, for the State." }, "file_name": "0747-01", "first_page_order": 757, "last_page_order": 764 }