State v. Fisher

745 S.E.2d 894, 228 N.C. App. 463, 2013 WL 3990654, 2013 N.C. App. LEXIS 840
CourtCourt of Appeals of North Carolina
DecidedAugust 6, 2013
DocketNo. COA12-1404
StatusPublished
Cited by9 cases

This text of 745 S.E.2d 894 (State v. Fisher) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fisher, 745 S.E.2d 894, 228 N.C. App. 463, 2013 WL 3990654, 2013 N.C. App. LEXIS 840 (N.C. Ct. App. 2013).

Opinion

ERVIN, Judge.

Defendant Scott Allen Fisher appeals from a judgment sentencing him to a term of 19 to 23 months imprisonment based upon his conviction for involuntary manslaughter. On appeal, Defendant argues that the trial court erred by denying his motion to dismiss for insufficiency of the evidence and committed plain error by failing to instruct the jury that “foreseeability was an essential element of proximate cause where the decedent froze to death.” After careful consideration of Defendant’s challenges to the trial court’s judgment in light of the record and the ápplicable law, we conclude that the trial court’s judgment should remain undisturbed.

I. Factual Background

A. Substantive Facts

1. State’s Evidence

Sixteen year old Michael Scott Rogers died on or about 20 February 2010 after attending a party hosted by Defendant at the residence in which he lived with his parents. Krista Rickards, who had known Defendant for several years, was at the party with several of her friends. Although she was under-aged, Ms. Rickards consumed mixed drinks at the party. Another guest, eighteen year old Brittany Phillipson, recalled that the guests were drinking and using marijuana in addition to “pills and other stuff.”

According to Ms. Rickards, Mr. Rogers was “very intoxicated” and belligerent, telling his fellow guests that he had been in two mental institutions and that he was addicted to drugs. While she was at the party, Ms. Phillipson saw Mr. Rogers on the floor and bleeding as a result of the fact that Defendant had “kicked or stomped” his face. At the time of her departure, Ms. Phillipson noticed that Mr. Rogers was “kind of coming in and out of consciousness” and that one of her friends was cleaning his face.

At around 11:00 p.m., Mr. Rogers made two calls to his mother. During the first call, his speech was slurred and he asked for his mother and stepfather, Robert Leonard, to come pick him up. At the time that he called back a few minutes later, Mr. Rogers was crying. When Ms. Leonard asked him where he was, Mr. Rogers replied “I don’t know. They done beat the hell out of me. I’m laying here and I’m bleeding all over, and I just pray to God they don’t come back and kill me.” After receiving this information and learning where Mr. Rogers was, [465]*465Mr. Leonard arranged to pick Mr. Rogers up at Blantyre Baptist Church, which is located on Kings Road, a short distance from the site of the party and near the dividing line between Henderson and Transylvania Counties. After speaking with Mr. Rogers, Ms. Leonard called 911 and asked someone from the Sheriff’s Department to meet them at the church. At about this time, the remaining guests concluded that investigating officers would soon arrive at the party and dispersed.

The night on which the party occurred was very cold, with temperatures in the 20s. Mr. and Ms. Leonard, as well as Mr. Rogers’ father, Brian Rogers, arrived at Blantyre Baptist Church a few minutes after speaking with Mr. Rogers. However, Mr. Rogers never appeared at that location. As a result, the Leonards and Brian Rogers checked nearby houses and waited at the church for several hours.

In light of Mr. Rogers’ failure to appear at the Blantyre Baptist Church, a number of law enforcement officers began searching for him. Sergeant Chris Hawkins of the Transylvania County Sheriffs Department spoke with someone who been guest at the party and who led him to Defendant’s house, which was located about a quarter mile from Blantyre Baptist Church. At the time that he arrived at Defendant’s residence, Sergeant Hawkins observed blood droplets in front of the house. In the meantime, after listening to a conversation between Mr. Rogers and a 911 dispatcher, Lieutenant Kevin Holden of the Transylvania County Sheriff’s Department decided that Mr. Rogers needed to be found quickly so that he could be “provide[d with] immediate medical attention.” After meeting Sergeant Hawkins at Defendant’s house and examining the blood drops that Sergeant Hawkins had detected outside that structure, Lieutenant Holden determined that exigent circumstances justified the making of an entiy into the house for the purpose of determining whether Mr. Rogers was inside. Although they did not find anyone in the residence, the investigating officers did observe a bloodied towel during their attempt to find Mr. Rogers. Deputy Terrell Scruggs and Detective John Nicholson of the Transylvania County Sheriff’s Department took possession of items found at Defendant’s house and noted that the outside temperature was approximately 28 degrees Fahrenheit shortly before 5:00 a.m.

After determining that Mr. Rogers was not in Defendant’s house, Lieutenant Holden talked with Defendant’s father, Shawn Fisher, by telephone and asked him to contact Defendant for the purpose of ascertaining if Defendant knew where Mr. Rogers was. A short time later, Mr. Fisher called back and reported that Defendant had told him that he had dropped Mr. Rogers off at the end of the Fisher’s driveway. Although [466]*466investigating officers searched the area in question, they did not find Mr. Rogers.

At that point, Lieutenant Holden had a second conversation with Mr. Fisher, who suggested that Defendant might be with a woman named Ashley who drove a silver Volkswagen and lived in an apartment on King Street in Brevard. As a result, investigating officers went to the King Street address, arriving shortly after 3:00 a.m. Upon arriving at the King Street apartment, they located the silver Volkswagen, upon which and in which Deputy Scruggs observed “blood spatter spots” and bloodstains.

After entering Ashley’s apartment, the investigating officers spoke with several people, including Defendant. Richard Thomas, who was one of the persons present in the apartment, told Lieutenant Holden that he had been at the party at Defendant’s house; that he had gotten into a fight with Mr. Rogers; that, after the party had come to an end, they had driven Mr. Rogers a short distance; that Mr. Rogers had exited the car at the intersection of Highway 64 East and King Road and walked towards the bridge; and that the group had not seen him since that time. Defendant told Lieutenant Holden that he had been driving when Mr. Rogers left the car.

After conversing with Mr. Thomas and Defendant, Sergeant Hawkins and Deputy Scruggs went to the intersection of King Road and Highway 64. At that point, the weather was “[freezing cold.” Upon reaching the intersection, Sergeant Hawkins searched a boat access area near Grove Bridge Road, which was just across the Henderson County line. After securing the silver Volkswagen, Lieutenant Holden joined the search.

At approximately 4:00 a.m., investigating officers found a broken taillight lens and more blood drops. In addition, the investigating officers observed oil near the blood spots and ascertained that the blood and oil which they discovered on the ground coincided with the locations of an oil leak and blood spots that were detected on the silver Volkswagen. Upon determining that they had crossed the county line, the investigating officers contacted Henderson County law enforcement officials. As a result, Corporal Breena Williams of the Henderson County Sheriff’s Department was dispatched to the Grove Bridge boat access area at around 7:00 a.m. on 21 February 2010, at which point she collected physical evidence, including blood swabbings and pieces of a taillight lens.

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Cite This Page — Counsel Stack

Bluebook (online)
745 S.E.2d 894, 228 N.C. App. 463, 2013 WL 3990654, 2013 N.C. App. LEXIS 840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fisher-ncctapp-2013.