State v. Henderson

THIGPEN

Appeal by defendant from judgments entered 22 November 2010 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 7 February 2012. Roy Cooper, Attorney General, by Kathryne E. Hathcock, Assistant Attorney General, for the State. Reece & Reece, by Michael J. Reece, for the defendant.
THIGPEN, Judge.

While driving under the influence of alcohol, and in the wrong lane of traffic, Cory Lamar Henderson (“Defendant”) collided with a vehicle driven by Eddie Ogburn (“Ogburn”), which resulted in Ogburn's death. On appeal, we must determine whether the trial court erred in concluding there was substantial evidence of malice, such that Defendant's motion to dismiss was properly denied. After careful review, we conclude the trial court did not err by denying Defendant's motion to dismiss.

The evidence of record tends to show the following: On 29 August 2009 at 1:56 a.m., Raleigh Police Officer J.E. Krueger answered a call regarding a fight at the Carolina Ale House at Falls of the Neuse and Old Wake Forest Road. Defendant was one of the parties involved in the fight. When Officer Krueger arrived, he heard Defendant talking on his cell phone and arranging for a ride home. Officer Krueger did not note any signs of impairment and no citations were given to anyone involved in the fight for being intoxicated or disruptive.

Sergeant V.R. Johnson was also called to the Carolina Ale House that night and observed Defendant. Sergeant Johnson had been told Defendant might be intoxicated, so he wanted to make sure Defendant got a ride home and did not drive. Sergeant Johnson sat outside the Carolina Ale House in his car and saw Defendant leave the parking lot driving a silver Infiniti. Sergeant Johnson followed him and turned on his blue lights, but Defendant sped off and turned onto the main road. Sergeant Johnson turned off his lights and did not chase him; the Raleigh Police Department has a policy not to chase suspected impaired drivers. Sergeant Johnson radioed other officers to be on the lookout for Defendant's car. Sergeant Johnson continued driving in the direction Defendant had driven.

On 28 August 2009, Jenny Ragone (“Ragone”), Kristen Knutson (“Knutson”), and Ogburn went out to several nightspots on Glenwood Avenue in downtown Raleigh, North Carolina. Ogburn drove them in his Jeep. Each had two or three drinks, and around 1:30 a.m. the next morning—the same morning Defendant fled from Sergeant Johnson—they left to return to Ogburn's home located in a neighborhood off of Old Wake Forest Road. As Ogburn turned left into his neighborhood, a silver Infiniti, driven by Defendant, crashed into them.

Sergeant Johnson, who had followed Defendant after he left the Carolina Ale House, quickly came upon the crash scene. Sergeant Johnson saw Defendant walk away from the driver's side of the Infiniti, go around the front of the car, and run into the woods. Defendant's driver's license was found in the ashtray of the Infiniti.

Officer Eric Sweden, an expert in accident reconstruction, testified that before the impact, Ogburn was traveling at approximately five miles per hour, westward and perpendicular to the main road, as he turned into the neighborhood. Defendant was traveling northward in the southbound lane: His entire vehicle was across the center line in the left hand lane at the time of impact because Defendant had attempted to pass Ogburn. As a result of the impact of Defendant's Infiniti with Ogburn's Jeep, the Jeep traveled 223 feet northward at approximately 40 miles per hour.

Ogburn died from injuries sustained in the crash. Toxicology tests showed that Ogburn had a blood alcohol content of .07 by blood test and .09 by vitreous humor of the eye. Ragone sustained a concussion, a broken left leg and ankle, which required permanent pins and plates, an injured left knee, a dislocated right ankle, and a broken right big toe. Ragone spent five days in the hospital.

At approximately 3:00 a.m. on the morning of 29 August 2009, Officer B. DiCello saw Defendant come out of the woods onto the 4700 block of Atlantic Avenue, and Defendant was arrested. Officer J.D. Rattelade said Defendant was disheveled, dirty, and covered with sweat. He had sustained scrapes to his skin and was missing his shoes. Defendant also had an extremely strong odor of alcohol, was unsteady on his feet, and had glassy and bloodshot eyes. Defendant refused to take an Intoximeter test. However, after a warrant was procured, Defendant's blood was drawn for chemical analysis at 5:25 a.m. In Officer Rattelade's opinion, Defendant had consumed a sufficient quantity of an impairing substance so as to substantially impair his mental and physical faculties. The results of an SBI blood test showed that Defendant's blood alcohol content was .13 at the time it was tested several hours after the crash.

On 13 September 2009, Defendant was indicted on charges of second-degree murder, felony hit and run, aggravated serious injury by motor vehicle, driving while impaired, and for obtaining the status of an habitual felon. The jury convicted Defendant of second-degree murder, felony hit and run, aggravated serious injury by motor vehicle, and driving while impaired. Defendant then stipulated to an aggravating factor and sentences in the aggravated range, to run consecutively, in exchange for a dismissal of the habitual felon indictment. The trial court arrested judgment on the driving while impaired conviction and entered judgments on the remaining charges, sentencing Defendant to consecutive sentences of 276 to 341 months incarceration on the second-degree murder conviction, 42 to 60 months incarceration on the aggravated serious injury by motor vehicle conviction, and 26 to 32 months incarceration on the felony hit and run conviction. From the judgment convicting Defendant of second-degree murder, Defendant appeals.

In Defendant's sole argument on appeal, he contends the trial court erred by denying Defendant's motion to dismiss the charge of second-degree murder. We disagree.

When reviewing a challenge to the denial of a defendant's motion to dismiss a charge on the basis of insufficiency of the evidence, this Court determines “whether the State presented substantial evidence in support of each element of the charged offense.” State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005) (quotation omitted). “Substantial evidence is relevant evidence that a reasonable person might accept as adequate, or would consider necessary to support a particular conclusion.” State v. Abshire, 363 N.C. 322, 328, 677 S.E.2d 444, 449 (2009) (quotation omitted). “In this determination, all evidence is considered in the light most favorable to the State, and the State receives the benefit of every reasonable inference supported by that evidence.” Id. (quotation omitted). Additionally, a “substantial evidence inquiry examines the sufficiency of the evidence presented but not its weight,” which remains a matter for the jury. State v. McNeil, 359 N.C. 800, 804, 617 S.E.2d 271, 274 (2005) (quotation omitted). Thus, “[i]f there is substantial evidence—whether direct, circumstantial, or both—to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.” Id. (quotation omitted).

“Second-degree murder is the (1) unlawful killing (2) of a human being (3) with malice, but without premeditation and deliberation.” 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 specifically challenges the sufficiency of the evidence of malice. “Sufficient evidence of malice exists to establish second degree murder where the defendant's acts show cruelty, recklessness of consequences, a mind regardless of social duty and deliberately bent on mischief, or manifest a total disregard for human life.” State v. McAllister, 138 N.C.App. 252, 260, 530 S.E.2d 859, 864,appeal dismissed,352 N.C. 681, 545 S.E.2d 724 (2000). “The State need not show that the defendant intended to kill in order to establish malice for second degree murder, but instead may meet its burden by showing that the 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.” Id. (quotation omitted); see also State v. McDonald, 151 N.C.App. 236, 243, 565 S.E.2d 273, 277,appeal dismissed, disc. review denied,356 N.C. 310, 570 S.E.2d 892 (2002) (“[I]n order to prove malice, [the State] need[s] only to prove that [the] defendant had the intent to drive in a reckless manner which would reflect the knowledge that injury or death would likely occur, evidencing a depravity of mind”).

Defendant contends the State did not present substantial evidence of malice because “the State's evidence of impairment ... after the crash ... conflicted directly with Officer Krueger's failure to note any impairment when he encountered Defendant prior to the crash.” Defendant also stresses that although he has two prior impaired driving convictions, at the time of the crash, he had a valid license. We find Defendant's argument unconvincing.

In this case, Defendant had two prior driving while impaired convictions. On the morning of the crash, evidence shows that Defendant fled from Sergeant Johnson's blue-light signal; that Defendant's blood alcohol content was .13 at the time it was tested several hours after the crash; that Defendant attempted to pass Ogburn, driving northward in the southbound lane, as Ogburn was turning left into his neighborhood; that Defendant's vehicle impacted Ogburn's vehicle with such force that Ogburn's vehicle, which was traveling at five miles per hour before impact, was propelled 223 feet northward at a speed of 40 miles per hour; and that after the crash, Defendant ran away from the scene into the woods. We believe this was substantial evidence to support the element of malice, such that the question of whether Defendant committed second-degree murder was properly one for the jury. The trial court did not err by denying Defendant's motion to dismiss.

NO ERROR. Judges HUNTER and McCULLOUGH concur.

Report per Rule 30(e).
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