State v. Lewis

• Court: Court of Appeals of North Carolina
• Decided: June 17, 2014
• Docket: 13-905
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-905 NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

STATE OF NORTH CAROLINA

v. Rowan County Nos. 10 CRS 58246, 11 CRS 3083

KENNETH MYLES LEWIS, JR.

Appeal by defendant from judgment entered 14 February 2013

by Judge W. Erwin Spainhour in Rowan County Superior Court.

Heard in the Court of Appeals 6 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State.

Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant.

CALABRIA, Judge.

Kenneth Myles Lewis, Jr. (“defendant”) appeals from a

judgment entered upon jury verdicts finding him guilty of second

degree murder and expired registration. We find no error.

I. Background

On 6 December 2010, defendant and four of his employees

were engaged in tree removal work in a residential area. -2- Defendant left the work site at one point for a few hours. When

defendant returned, employee Douglas Sander (“Sander”) noticed

some pills packaged in plastic on the dashboard of defendant’s

Chevrolet Silverado pick-up truck (“the truck”). When the work

was completed, defendant attempted to drive his employees to

another work site. However, defendant “kept going off the

road,” and almost hit several mailboxes before leaving the

subdivision. Defendant’s employees convinced defendant to allow

Sander to drive the truck to the next work site.

After completing work and leaving the second work site,

defendant and Sander argued, and defendant ultimately punched

Sander in the head. Sander stopped driving, exited the truck,

and walked to a nearby gas station. Defendant moved to the

driver’s seat and dropped off the remaining employees before

proceeding west on Highway 150.

Several minutes later, defendant crossed into the lane of

oncoming traffic and collided head-on with Carolyn Wilson’s

(“Mrs. Wilson”) Toyota Prius (“the Prius”). After Emergency

Medical Services personnel arrived, they removed Mrs. Wilson

from the severely damaged Prius. Mrs. Wilson was subsequently

transported by AirCare helicopter to Carolinas Medical Center,

where she later died as a result of the injuries she sustained -3- in the collision.

Paramedics found defendant standing in a field beside the

truck several feet from the roadway. Paramedic Katie Smith

(“Smith”) detected an odor of alcohol from defendant, who was

unsteady on his feet, talking loudly, and cursing. When Smith

informed defendant that the other individual involved in the

collision had been seriously injured, defendant stated that he

did not care. Defendant admitted to having three drinks and

requested cigarettes and food while he was transported to the

hospital. During Smith’s attempts to treat defendant, he was

belligerent and shouted and cursed at her.

Trooper Malcolm Eason (“Trooper Eason”) of the North

Carolina State Highway Patrol (“NCSHP”) responded to the

collision. While he spoke to defendant in the back of the

ambulance, Trooper Eason detected an odor of alcohol, and

noticed that defendant appeared disoriented. Trooper Eason

stated that defendant’s speech was “very gargled [sic], very

slurred,” and that he formed the opinion that defendant’s mental

and physical faculties were appreciably impaired. NCSHP Trooper

David Deal (“Trooper Deal”), spoke with defendant in the

hospital. Defendant told Trooper Deal that “he was going down

the road and someone ran him into a ditch.” Trooper Deal also -4- detected a “moderate to strong” odor of alcohol on defendant’s

breath, and formed the opinion that defendant’s mental and

physical faculties were impaired. Subsequently, a chemical

analysis of defendant’s blood by the North Carolina State Bureau

of Investigation (“the SBI”) revealed the presence of Xanax and

a reported alcohol concentration of .02. The SBI calculated

defendant’s blood alcohol concentration using the retrograde

extrapolation method and determined that defendant’s blood

alcohol concentration at the time of the collision was either

.07 or .08.

Defendant was arrested and charged with felony death by

vehicle, driving while impaired, expired registration, expired

inspection, driving left of center, and second degree murder.

The State later voluntarily dismissed the charge of felony death

by vehicle.

On 14 February 2013 the jury returned verdicts finding

defendant guilty of second degree murder, driving while

impaired, and expired registration. The trial court arrested

judgment on the driving while impaired offense, and sentenced

defendant to a minimum of 238 months and a maximum of 295 months

in the custody of the North Carolina Division of Adult

Correction. Defendant appeals. -5- II. Driving Record

Defendant argues that the trial court erred in admitting

evidence of his certified driving history in violation of Rule

404(b). We disagree.

“We review de novo the legal conclusion that the evidence

is, or is not, within the coverage of Rule 404(b). We then

review the trial court’s Rule 403 determination for abuse of

discretion.” State v. Beckelheimer, 366 N.C. 127, 130, 726

S.E.2d 156, 159 (2012). An abuse of discretion occurs only

“where the court’s ruling is manifestly unsupported by reason or

is so arbitrary that it could not have been the result of a

reasoned decision.” State v. Campbell, 359 N.C. 644, 673, 617

S.E.2d 1, 19 (2005) (citation omitted).

Rule 404(b) of the North Carolina Rules of Evidence

provides that

[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2013). Rule 403 states

that relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. -6- N.C. Gen. Stat. § 8C-1, Rule 403 (2013). Our Courts have held

that “prior driving convictions of a defendant are admissible to

show malice, and the showing of malice in a second-degree murder

case is a proper purpose within the meaning of Rule 404(b).”

State v. Westbrook, 175 N.C. App. 128, 132, 623 S.E.2d 73, 76

(2005) (quotations and citations omitted); see State v. Rich,

351 N.C. 386, 400, 527 S.E.2d 299, 307 (2000) (prior speeding

convictions admissible to show “defendant knew and acted with a

total disregard of the consequences, which is relevant to show

malice”).

In the instant case, although the State specifically

offered defendant’s driving history for the purpose of showing

malice, the trial court conducted a review of defendant’s

driving history and allowed the parties to redact entries that

were entered in duplicate or otherwise potentially prejudicial

or confusing.

Defendant’s driving history included several traffic

violations, including charges for speeding, reckless driving,

and hit and run offenses in the months prior to the fatal

December 2010 collision. Even with the redacted driving record

that the trial court ultimately admitted, defendant’s knowledge

that he “acted with a total disregard of the consequences” was -7- evidence of a high degree of recklessness. Rich, 351 N.C. at

400, 527 S.E.2d at 307. Therefore, the trial court admitted

defendant’s driving history for the proper purpose of showing

malice pursuant to Rule 404(b). In addition, because the trial

court allowed the redactions and considered defendant’s

violations in the months prior to the December 2010 collision,

the trial court’s decision to admit the evidence based upon the

probative value of the redacted driving record outweighing any

prejudicial effect was not “manifestly unsupported by reason” or

“so arbitrary that it could not have been the result of a

reasoned decision.” Campbell, 359 N.C. at 673, 617 S.E.2d at

19.

Assuming, arguendo, that the admission of defendant’s

driving record constituted error, any error was harmless. The

State presented evidence from several witnesses indicating that

although defendant had notice from his employees that he was too

impaired to drive, he nevertheless proceeded to drive despite

being under the influence of both Xanax and alcohol, and he was

appreciably impaired at the time of the collision. When

paramedics told defendant that the other driver in the collision

was severely injured, his response was that he did not care.

Since the State presented substantial evidence of malice besides -8- defendant’s driving record, defendant has failed to show that

the admission of his driving record prejudiced his defense.

III. Jury Instruction

Defendant’s next argument is that the trial court committed

plain error by instructing the jury on second degree murder and

involuntary manslaughter without sufficiently defining culpable

negligence. Specifically, defendant argues that the trial court

failed to define the phrase “culpable negligence” by drawing a

sufficient distinction between the degrees of recklessness

required for each charge. We disagree.

As an initial matter, since defendant did not object or

request additional jury instructions on the definitions of

recklessness or culpable negligence, our review is limited to

determining whether there was plain error. Plain error arises

when the error is “‘so basic, so prejudicial, so lacking in its

elements that justice cannot have been done[.]’” State v. Odom,

307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation

omitted). “Under the plain error rule, defendant must convince

this Court not only that there was error, but that absent the

error, the jury probably would have reached a different result.”

State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). -9- In State v. Rich, the defendant also drove impaired and was

on trial for second degree murder. The trial court explained to

the jury that if the defendant’s actions were so “inherently

dangerous to human life [and were] done so recklessly and

wantonly as to manifest a mind utterly without regard for human

life and social duty and deliberately bent on mischief,” then

the defendant acted with malice. 351 N.C. at 396, 527 S.E.2d at

304. The defendant appealed the second degree murder judgment.

On appeal, the defendant argued, inter alia, that because the

trial court erroneously instructed the jury on malice, the trial

court relieved the State of its burden to prove all the

essential elements of second degree murder. Id. at 386-392, 527

S.E.2d at 299-303. This Court affirmed the trial court, and on

discretionary review the Supreme Court affirmed the holding of

this Court. Id. at 389, 527 S.E.2d at 300. The Supreme Court

ultimately held that the jury instructions correctly conveyed

the level of recklessness sufficient for the jury to find

defendant guilty of second degree murder. In addition, the

Supreme Court held that “[b]ecause the trial court’s

instructions, in their entirety, conveyed the level of

recklessness required for second-degree murder, [the Court]

cannot conclude that the jury could have confused such a high -10- degree of recklessness with mere culpable negligence.” Id. at

394, 527 S.E.2d at 303-04.

In the instant case, the trial court instructed the jury,

in pertinent part:

The defendant has been accused of second- degree murder. Under the law and the evidence in this case, it is your duty to return one of the following verdicts: guilty of second-degree murder or guilty of involuntary manslaughter or not guilty. Second-degree murder is the unlawful killing of a human being by an act done in a culpably negligent way.

Now, for you to find the defendant guilty of second-degree murder . . . the [S]tate must prove seven things beyond a reasonable doubt.

. . .

Sixth, that the defendant acted unlawfully and with malice. Malice is a necessary element which distinguishes second-degree murder from manslaughter. Malice arises when an act, which is inherently dangerous to human life, is intentionally done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief.

If you do not find the defendant guilty of second-degree murder, you must consider whether the defendant is guilty of involuntary manslaughter. Involuntary manslaughter is the unlawful, unintentional killing of a human being by an act done in a -11- culpably negligent way. For you to find the defendant guilty of involuntary manslaughter, the [S]tate must prove two things beyond a reasonable doubt.

First, that in operating a motor vehicle, the defendant drove while impaired, as I previously instructed you.

And second, that the defendant’s culpable negligence proximately caused the victim’s death.

If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant drove a vehicle on a highway, and that when the defendant did so, the defendant was under the influence of an impairing substance or substances, and that the defendant acted intentionally and so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief and that this conduct constituted malice, and that such conduct proximately caused the death of the victim, it would be your duty to return a verdict of guilty of second-degree murder.

If you do not so find, or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of second-degree murder, you must then determine whether the defendant is guilty of involuntary manslaughter.

And so, if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant drove a motor vehicle on a highway while impaired and without malice, but in a culpably negligent manner, violated the laws of this state governing the operation of motor vehicles, and that this impaired driving and culpably -12- negligent conduct proximately caused the death of the victim, it would be your duty to return a verdict of guilty of involuntary manslaughter.

If you do not so find or have a reasonable doubt as to one or more of these things, you will return a verdict of not guilty.

The trial court’s instructions were taken directly from the

North Carolina Pattern Jury Instructions, and the definition of

malice mirrors, in part, the language of the jury instructions

in Rich. N.C.P.I. Crim. 206.32; Rich, 351 N.C. at 391, 527

S.E.2d at 301. A finding of malice was explicitly limited to

the second degree murder instruction, while the element of

culpable negligence was limited to the voluntary manslaughter

instruction. The trial court specifically instructed the jury

regarding involuntary manslaughter that it should return a

guilty verdict if it found that defendant drove a motor vehicle

on a highway while impaired in a culpably negligent way and

without malice. Furthermore, the jury did not request a

definition of culpable negligence during deliberations. Since

the trial court’s instructions to the jury explained the type of

conduct to find defendant guilty of either second degree murder

or involuntary manslaughter were clear and correct, the jury

could not have confused such a high degree of recklessness or

malice with mere culpable negligence. Rich, 351 N.C. at 394, -13- 527 S.E.2d at 304. The jury ultimately returned verdicts

finding defendant guilty of second degree murder, indicating

that the jurors found defendant’s conduct displayed evidence of

malice beyond a reasonable doubt.

Assuming, arguendo, that the trial court’s failure to

specifically define culpable negligence did constitute error,

any error was harmless because the State presented sufficient

evidence to show malice. The State presented evidence that

after defendant ingested Xanax and drank alcohol, he attempted

to drive his employees home from a job site. The employees were

so concerned about defendant’s condition that they convinced

defendant to allow Sander to drive instead. Despite notice from

his employees that he was too impaired to drive, defendant left

the gas station and proceeded west down Highway 150, where he

crossed into the eastbound lane and collided with Mrs. Wilson’s

Prius. When paramedics told defendant he had killed or severely

injured Mrs. Wilson, he stated that he did not care. Therefore,

the State presented sufficient evidence that defendant chose to

drive while impaired, regardless of the consequences. The trial

court’s instructions to the jury on the difference between

involuntary manslaughter and second degree murder, without the

jury asking for any clarification regarding the instruction, -14- shows that defendant fails to demonstrate that the jury would

have returned a different verdict even with a definition of

culpable negligence.

IV. Ineffective Assistance of Counsel

Defendant finally argues that his trial counsel’s failure

to request a limiting instruction concerning defendant’s driving

history constituted ineffective assistance of counsel. To

prevail on a claim of ineffective assistance of counsel, defendant

must demonstrate that his trial counsel’s performance was

“deficient,” and that “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687, 80 L.

Ed. 2d 674, 693 (1984).

In the instant case, defendant’s trial counsel objected to

the admission of defendant’s driving history, but did not

request a limiting instruction regarding its admission. Because

the driving history was admissible, defendant cannot show

prejudice from its admission. In addition, the State presented

sufficient evidence to support the jury’s finding of malice. It

is unlikely that any error in failing to request a limiting

instruction regarding defendant’s driving record would have led

the jury to return a different verdict.

V. Conclusion -15- The State offered defendant’s driving record specifically

for the purpose of showing malice, which is a permissible

purpose pursuant to North Carolina case law. In addition, the

State presented evidence that defendant was under the impairing

influence of both Xanax and alcohol when he collided with Mrs.

Wilson’s Prius, that he was belligerent with emergency services

and hospital personnel, and that he was not concerned about the

other driver’s welfare. Where the verdict indicates that the

jury found evidence of malice beyond a reasonable doubt,

defendant fails to show that the jury would have returned a

different verdict even with the definition of culpable

negligence. Finally, trial counsel’s failure to request a

limiting instruction did not prejudice defendant, therefore his

ineffective assistance of counsel claim is without merit. We

hold that there was no error in defendant’s trial.

No error.

Judges STROUD and DAVIS concur.

Report per Rule 30(e).