IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-552
Filed: 3 March 2020
Orange County, Nos. 16 CRS 711684, 711720, 711721; 17 CRS 78, 79
STATE OF NORTH CAROLINA
v.
MICHAEL ADDIB NAZZAL, Defendant.
Appeal by defendant from judgments entered 22 February 2018 by Judge
Rebecca W. Holt in Orange County Superior Court. Heard in the Court of Appeals
5 February 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E. Hathcock, for the State.
M. Gordon Widenhouse, Jr., for defendant.
ARROWOOD, Judge.
Michael Addib Nazzal (“defendant”) appeals from judgments sentencing him
upon his convictions for second-degree murder, driving while impaired (“DWI”),
felony death by motor vehicle, and failure to maintain lane control. For the following
reasons, we reverse defendant’s convictions for DWI and felony death by motor
vehicle. We otherwise hold that defendant’s trial was free of prejudicial error.
I. Background STATE V. NAZZAL
Opinion of the Court
This case arises from an automobile collision caused by defendant on Interstate
40 West (“I-40 West”) resulting in the death of Francisco Nolasco (“Mr. Nolasco”). As
a result of this collision, defendant was indicted on 15 May 2017 for felony hit and
run causing death, driving while license revoked (“DWLR”), DWLR for impaired
driving, displaying revoked tags, operating a vehicle without insurance, failing to
maintain lane control, DWI, felony death by motor vehicle, and second-degree
murder. Defendant’s case came on for trial before the Honorable Rebecca W. Holt at
the 12 February 2018 Criminal Session of Orange County Superior Court. The
evidence at trial tended to show the following.
Just before 2:00 a.m. on 17 December 2016, Mr. Nolasco’s pickup truck was
involved in a single-vehicle accident requiring assistance on I-40 West in Orange
County. Road conditions that night were wet and icy. Mr. Nolasco called his friend
and tow truck driver Omar Castillo (“Mr. Castillo”) for assistance, and he arrived
shortly thereafter. Upon realizing that Mr. Nolasco’s pickup was precariously
positioned partially in the right lane of traffic, Mr. Castillo immediately set about
removing the vehicle from the road.
Mr. Castillo testified that he then positioned his tow truck in front of Mr.
Nolasco’s pickup, partially in the right lane of traffic. For unknown reasons, the tow
truck’s cable system failed to lift the pickup onto its rollback. At this time, Mr.
Nolasco was standing on the shoulder of the road, with the tow truck between himself
-2- STATE V. NAZZAL
and the westbound lanes of traffic. Mr. Castillo began walking around the front of
the tow truck to address the cable system malfunction. As he was in front of the tow
truck, he heard screeching tires, dove over the guardrail, and observed a black Honda
crash into the guardrail and hurdle forward, hitting the pickup and tow truck before
proceeding down the shoulder between the tow truck and guardrail, hitting Mr.
Nolasco and knocking him into the road.
Mr. Castillo testified that he went into the road to assist Mr. Nolasco and found
him unconscious. He tried to signal oncoming cars but they did not see him, and he
had to leave Mr. Nolasco in the road to preserve his own safety. Then another car
traveling about forty seconds behind defendant ran over Mr. Nolasco. Based on his
observation of the collision’s intensity and Mr. Nolasco’s unconscious body in the
roadway, Mr. Castillo opined that defendant’s black Honda killed him before the
second car arrived. He testified that the second car stopped immediately after hitting
Mr. Nolasco, but defendant only stopped briefly and then continued.
Austin Phillips (“Mr. Phillips”), the driver of the second car, testified that he
saw the tow truck’s flashing lights and switched from the right to left lane of
westbound traffic in order to “avoid any contact with the person that may be getting
out of the tow truck[.]” After realizing he had run over a human body, Mr. Phillips
immediately pulled over and called 911 for assistance.
-3- STATE V. NAZZAL
Trooper Kyle Underwood testified that he, Trooper Matthew Morrison, and one
other highway patrolman arrived at the scene at 1:54 a.m. and began taking
measurements, recording witness statements, and investigating the wreckage and
other evidence at the scene. Trooper Underwood noted damage to the shoulder’s
guardrail at a position prior to the tow truck, damage to Mr. Nolasco’s pickup, and a
missing passenger side mirror on the tow truck. He discovered the front bumper of a
black Honda 99 feet away.
After searching the serial number on the bumper, the troopers discovered that
it belonged to a 2010 Honda Accord registered to defendant’s name at a Greensboro
address. They also determined that defendant’s tags and registration were currently
revoked due to a failure to carry insurance and his driver’s license was currently
suspended for a previous DWI conviction. The troopers then contacted the Guilford
County Sheriff’s Office for assistance locating defendant.
Sergeant James Meacham and Master Corporal Todd Riddle of the Guilford
County Sheriff’s Office arrived at defendant’s Greensboro address just after 4:00 a.m.
Thirty minutes later, defendant arrived in a black Honda Accord with significant
front-end damage. This damage included deployed airbags, no front bumper, a
shattered windshield, damage to the hood, missing headlights, and general body
damage on the front of the car. Sergeant Meacham called Trooper Morrison and
informed him that they had detained defendant at his residence. In his conversation
-4- STATE V. NAZZAL
with the deputies, defendant admitted that he had been involved in a collision but
said “it wasn’t a very bad one[,]” so he drove away. Sergeant Meacham testified that
“[defendant’s] actions indicated just a very carefreeness [sic] attitude about what had
transpired[.]” The two deputies were relieved by deputies on the day shift at around
6:00 a.m.
Troopers Underwood and Morrison obtained an arrest warrant for felony hit
and run and arrived at defendant’s residence in Greensboro at around 7:00 a.m.
Trooper Morrison observed that defendant’s car was covered in droplets of ice and
appeared to be much cleaner than his own patrol vehicle covered in road salt, despite
both cars making a similar drive from Orange County to Greensboro in identical
weather conditions. Defendant was arrested and transported by the troopers to the
Orange County Sheriff’s Office for booking. Two cell phones found on defendant’s
person at the time of his arrest were seized.
Based upon his observations of defendant while they were en route to the
sheriff’s office, Trooper Underwood testified that he formed an opinion that defendant
was appreciably impaired to the extent that it was unsafe for him to drive an
automobile at the time of the collision five hours earlier. In addition to the mere
nature of the collision site and his flight therefrom, Trooper Underwood based this
opinion on the following evidence. When he observed defendant at approximately
7:00 a.m., defendant had red, glassy eyes, was unsteady on his feet, and at times was
-5- STATE V. NAZZAL
“speaking out of his head” and “rambling, going on with half sentences, speaking [in
a way] that just did not make sense.” Defendant also made contradictory statements
regarding his location at the time of the collision, seeming confused about where it
occurred. Additionally, defendant fell asleep on the ride to the sheriff’s office.
Trooper Underwood found this very strange because defendant had just been told the
jarring news that he had killed a man. He stopped his patrol vehicle and had Trooper
Morrison shake defendant awake, upon which defendant stated that he was fine. No
other testifying officer formed the opinion that defendant was impaired at the time
of the collision. Nor did any investigating officer ever subject defendant to any of the
numerous field tests for impairment utilized by law enforcement.
A later search of defendant’s phones revealed text messages tending to suggest
he had been attempting to buy crack cocaine earlier in the day before the collision.
The search also led the State to two testifying witnesses. Tiffany Haynes (“Ms.
Haynes”) testified that defendant called her for a “date” the day of the collision,
stating that he would drive from Cary to her motel room in Greensboro that night.
Because they had done the same thing on a previous “date” three weeks prior, Ms.
Haynes believed that defendant intended to smoke crack with her, engage her in
sexual intercourse, and then smoke marijuana. Robert Tate testified that defendant
had bought an ounce of high-grade marijuana from him the day before the collision.
-6- STATE V. NAZZAL
Defendant moved to dismiss the charges against him at the close of the State’s
evidence. The trial court denied the motions. The jury returned verdicts finding
defendant guilty of DWLR, DWLR for impaired driving, displaying revoked tags,
operating a vehicle without insurance, failing to maintain lane control, DWI,
felonious hit and run causing injury, felony death by motor vehicle, and second-degree
murder. The trial court arrested judgment on defendant’s convictions for DWI and
felony death by motor vehicle. The court consolidated judgment on defendant’s
remaining convictions and sentenced him to 175 to 222 months’ imprisonment.
Defendant timely appealed.
II. Discussion
On appeal, defendant argues that the trial court erred by: (a) denying his
motions to dismiss the charges of second-degree murder, DWI, felony death by motor
vehicle, and failure to maintain lane control; (b) denying his motion to suppress
evidence obtained from a search of his cell phones; (c) admitting prejudicial testimony
of prior drug use; and (d) refusing to instruct the jury on the defense of accident. For
the foregoing reasons, we reverse defendant’s convictions for DWI and felony death
by vehicle and otherwise hold his trial was free of prejudicial error.
A. Motions to Dismiss
Defendant argues that substantial evidence did not support his convictions for
DWI, felony death by vehicle, and failure to maintain lane control, and thus the trial
-7- STATE V. NAZZAL
court erred in denying his motion to dismiss those charges. He further contends that
the trial court erred in denying his motion to dismiss his second-degree murder
charge, because the jury was instructed that defendant would need to be found guilty
of either DWI or failure to maintain lane control to be guilty of second-degree murder.
We hold that the trial court erred in denying defendant’s motion to dismiss the
DWI and felony death by vehicle charges due to insufficient evidence of impairment.
The trial court properly submitted the failure to maintain lane control charge to the
jury. Substantial evidence supported the element of malice in defendant’s
commission of this offense, therefore the trial court did not err in submitting the
second-degree murder charge to the jury.
1. Standard of Review
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted).
“ ‘Upon defendant’s motion for dismissal, the question for the Court is whether there
is substantial evidence (1) of each essential element of the offense charged, or of a
lesser offense included therein, and (2) of defendant’s being the perpetrator of such
offense. If so, the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373, 378,
526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918
(1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a
-8- STATE V. NAZZAL
conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In
making its determination, the trial court must consider all evidence admitted,
whether competent or incompetent, in the light most favorable to the State, giving
the State the benefit of every reasonable inference and resolving any contradictions
in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation
omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). “The trial court is not
required to determine that the evidence excludes every reasonable hypothesis of
innocence before denying a defendant’s motion to dismiss.” State v. Barfield, 127 N.C.
App. 399, 401, 489 S.E.2d 905, 907 (1997) (citation omitted).
2. DWI and Felony Death by Vehicle
Defendant maintains that the trial court erred in denying his motions to
dismiss the charges of DWI and felony death by vehicle because the State presented
insufficient evidence that he was appreciably impaired at the time he caused the
collision and hit Mr. Nolasco. We agree.
“A person commits the offense of impaired driving if he drives any vehicle upon
any highway, any street, or any public vehicular area within this State . . . [w]hile
under the influence of an impairing substance . . . .” N.C. Gen. Stat. § 20-138.1(a)(1)
(2019). The person must “hav[e] his physical or mental faculties, or both, appreciably
impaired by an impairing substance.” N.C. Gen. Stat. § 20-4.01(48b) (2019).
-9- STATE V. NAZZAL
We find our opinion in State v. Eldred to be instructive in the instant case. 259
N.C. App. 345, 815 S.E.2d 742 (2018). In Eldred, officers got a report of a wrecked,
abandoned car on the roadside at 8:30 p.m. Id. at 346, 815 S.E.2d at 743. Though he
did not testify how soon after the report the interaction occurred, an officer observed
the defendant walking along the roadside approximately two to three miles from the
car. Id. The defendant had visible head injuries, stated that he was “smoked up on
meth” and needed medical attention, and exhibited signs of impairment such as
twitching and having difficulty walking straight. Id. at 346-47, 815 S.E.2d at 743
The defendant was then taken to the hospital, where a highway patrolman observed
him at 9:55 p.m. Id. at 346, 815 S.E.2d at 743. He told the patrolman that he had
been driving his car and set out on foot when it ran out of gas, later indicated that he
had been hurt in a car wreck “a couple of hours ago[,]” and stated that he was
currently “on meth.” Id. at 347, 815 S.E.2d at 743 (internal quotation marks omitted).
After observing the defendant exhibit numerous signs of impairment at the hospital,
the patrolman formed the opinion that the defendant was appreciably impaired. Id.
This Court held this evidence insufficient to prove that the defendant was
appreciably impaired at the time he wrecked his car. It observed that:
[The first officer], who first found Defendant after he had walked two or three miles beyond his vehicle, did not determine whether Defendant’s condition was caused by an impairing substance or by the injury that resulted in emergency medical personnel taking Defendant to the hospital. [The patrolman], who interviewed Defendant in
- 10 - STATE V. NAZZAL
the hospital, did not obtain information concerning when or where Defendant had consumed meth or any other impairing substance. Neither officer even knew when Defendant’s vehicle had veered off the highway.
Id. at 350, 815 S.E.2d at 745.
In the instant case, Trooper Underwood formed his opinion of impairment
entirely through passive observation of defendant. He did not request defendant to
perform any of the several field tests law enforcement officers often use to gauge a
motorist’s impairment. Moreover, as in Eldred, he did not ask defendant if or when
he had ingested any impairing substances. Trooper Underwood was the only law
enforcement officer that observed defendant and formed an opinion that he was
appreciably impaired. These observations occurred at 6:48 a.m., approximately five
hours after the collision occurred. This lapse of time is over three times longer than
the one that was found unacceptable in Eldred.
The State argues that the signs of impairment observed by Trooper Underwood
five hours later, when coupled with the very nature of the collision, defendant’s
immediate flight from the scene, and his gross understatement of the collision’s
severity, provide substantial evidence that defendant was appreciably impaired at
the time of the collision. We disagree. Hit and run and DWI are separate offenses
for a reason. Without more, the former cannot suffice as substantial evidence of the
latter. Furthermore, defendant’s understatement of the collision’s severity can more
readily be interpreted as downplaying his culpability than an impaired perception of
- 11 - STATE V. NAZZAL
events. Again, without more this cannot suffice as substantial evidence of
appreciable impairment at the time of the collision. There must be some evidence
closer to that time which more than circumstantially implies that defendant was
impaired. See State v. Rich, 351 N.C. 386, 398-99, 527 S.E.2d 299, 305-306 (2000)
(upholding trial court’s admission of officer opinion of appreciable impairment based
upon investigation of accident scene, defendant’s high rate of speed, observation of
defendant’s combative behavior with EMS at scene and bloodshot, watery eyes
shortly after wreck, no indication of injuries to defendant, and smell of alcohol
observed at hospital two hours later).
Therefore, the trial court erred in denying defendant’s motion to dismiss the
DWI charge. The trial court also erred in denying defendant’s motion to dismiss the
felony death by motor vehicle charge, because DWI is a necessary element of this
offense. See N.C. Gen. Stat. § 20-141.4(a1)(2) (2019). Since the trial court arrested
judgment on both convictions, we reverse them without remand.
3. Failure to Maintain Lane Control
Defendant argues that the State failed to present substantial evidence that he
violated N.C. Gen. Stat. § 20-146(d)(1) (2019) by veering to the right of Mr. Castillo’s
tow truck and attempting to pass it on the shoulder of the road. We disagree.
“Whenever any street has been divided into two or more clearly marked lanes
for traffic . . . [a] vehicle shall be driven as nearly as practicable entirely within a
- 12 - STATE V. NAZZAL
single lane and shall not be moved from such lane until the driver has first
ascertained that such movement can be made with safety.” Id. Defendant argues
that because the evidence showed that Mr. Castillo’s tow truck partially obstructed
the right lane in which he was traveling, it was not “practicable” for him to drive
entirely within that lane of traffic.
According to defendant, the offense has not been committed if a motorist
recklessly veers out of his lane when it is no longer practicable to remain there due
to an upcoming obstruction. In other words, defendant interprets the statute such
that impracticability is an absolute defense. Although defendant’s Memorandum of
Additional Authority includes N.C.P.I. Crim. 207.90 (2019), which he argues supports
this interpretation, we note that on appeal defendant has not challenged any of the
trial court’s jury instructions omitting the practicability element from the offense.
We do not interpret N.C. Gen. Stat. § 20-146(d)(1) to apply only to situations
where it is practicable for a motorist to stay within his current lane of traffic. Rather,
this provision contains two disjunctive mandates. A motorist must drive his vehicle
“as nearly as practicable entirely within a single lane[.]” Id. A motorist must also
refrain from changing lanes unless he “has first ascertained that such movement can
be made with safety.” Id.
Here, there was substantial evidence from which the jury could infer that
defendant did not ascertain that veering onto the shoulder and passing the tow truck
- 13 - STATE V. NAZZAL
on its right side could be done with safety. Viewing the evidence in a light most
favorable to the State, defendant was driving late at night at a speed unreasonably
fast for the icy conditions. Upon seeing Mr. Castillo’s tow truck partially obstructing
his current lane of traffic, defendant decided to pass the vehicle on the shoulder
without first determining what, if any, further perils lay in his redirected course. The
tow truck obstructed his view of at least some portion of the shoulder through which
he would soon drive. As evidenced by the testimony of Mr. Phillips, a reasonable
motorist would not have attempted to pass the tow truck to its right along the
shoulder. A motorist traveling 40 seconds behind defendant ascertained that passing
the tow truck on the shoulder-side could not be done with safety. From this evidence
a reasonable juror could find that defendant did not make such a determination
before conducting his maneuver.
Even under defendant’s interpretation of N.C. Gen. Stat. § 20-146(d)(1), there
was substantial evidence on each side of the practicability issue from which the jury
could make its own determination. In negligence per se cases interpreting N.C. Gen.
Stat. § 20-146(d)(1), we have previously held that where a plaintiff puts forth evidence
that the defendant crossed the center line into oncoming traffic and the defendant
puts forth evidence that it was impracticable to stay within his lane “for reasons other
than his own negligence,” the conflicting evidence “merely . . . raise[s] an issue of
credibility for the jury to resolve.” Sessoms v. Roberson, 47 N.C. App. 573, 579, 268
- 14 - STATE V. NAZZAL
S.E.2d 24, 28 (1980) (citations omitted). Mr. Castillo testified that road conditions
were icy, he heard screeching tires before the collision, and defendant’s vehicle passed
his tow truck traveling at a high rate of speed. From this a reasonable juror could
infer that, had defendant been traveling at a reasonable speed for conditions, it may
have been practicable for him to come to a complete stop, or significantly slow his
speed before proceeding, without departing from the right lane of I-40 West.
Therefore, substantial evidence supported submission of the failure to
maintain lane control charge to the jury. The trial court did not err in denying
defendant’s motion to dismiss this charge.
4. Second-Degree Murder
Defendant argues that the State failed to present substantial evidence of
certain elements of second-degree murder. We disagree.
In the instant case, the jury was instructed that defendant would need to be
found guilty of either DWI or failure to maintain lane control to be guilty of second-
degree murder. See State v. Wilson, 345 N.C. 119, 123, 478 S.E.2d 507, 510 (1996)
(limiting review of substantial evidence supporting conviction to limited theory of
conviction on which jury was instructed). On appeal, defendant does not dispute that
the State presented substantial evidence that he drove the car that hit Mr. Nolasco
and proximately caused his death. Defendant’s only argument is that a lack of
- 15 - STATE V. NAZZAL
substantial evidence supporting malice and either DWI or failure to maintain lane
control mandates reversal of his conviction for second-degree murder.
Because we uphold defendant’s conviction for failure to maintain lane control,
our only remaining task is to determine whether the State presented substantial
evidence of defendant’s malice in the commission of this offense.
Second-degree murder is an unlawful killing with malice, but without premeditation and deliberation. Intent to kill is not a necessary element of second-degree murder, but there must be an intentional act sufficient to show malice. . . . Accordingly, in [cases where the defendant is charged with committing second-degree murder by vehicle], it [i]s necessary for the State to prove only 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. The State [i]s not required to show that [the] defendant had a conscious, direct purpose to do specific harm or damage, or had a specific intent to kill.
Rich, 351 N.C. at 395, 527 S.E.2d at 304 (internal quotation marks and citations
omitted).
Viewing the evidence in a light most favorable to the State, defendant was
driving while his license was revoked both for prior DWI and non-DWI offenses. He
failed to insure his car. It was late at night, and road conditions were icy. Defendant
was driving at a speed that was irresponsible in these driving conditions and did not
allow him to maintain control of his vehicle and make safe maneuvers around
potential hazards. He became aware that a tow truck with flashing lights was in the
- 16 - STATE V. NAZZAL
process of loading another car onto its rollback, sitting partially within his current
lane of traffic. Rather than switching to the left lane as Mr. Phillips did, defendant
veered his vehicle to the right in an attempt to pass the tow truck along the shoulder
of the interstate. In so doing, he was unaware of what additional obstacles or people
may be on the portion of the shoulder obstructed from his view by the tow truck. See
State v. Schmieder, __ N.C. App. __, __, 827 S.E.2d 322, 328 (finding substantial
evidence of malice where, in addition to extensive driving record, defendant “was
driving above the speed limit, following too close to see around the cars in front of
him, and passing across a double yellow line without using turn signals”), disc. rev.
dismissed, 372 N.C. 711, 830 S.E.2d 832 (2019).
Defendant lost control of his vehicle and hit the guard rail, the tow truck, and
Mr. Nolasco. He stopped briefly. The collision was so severe that it ripped the front
bumper from his car, cracked the windshield, broke the headlights, and deployed the
airbags. Despite the severity of the collision, defendant did not try to ascertain if
anyone was harmed or attempt to render assistance of any sort. He drove away and
washed his car, suggesting he was aware that he had hit someone and needed to
remove blood and other evidence from his vehicle. See State v. Tellez, 200 N.C. App.
517, 525, 684 S.E.2d 733, 739 (2009) (finding substantial evidence of malice where,
among other things, defendant fled scene of accident and took steps to avoid
apprehension without rendering any assistance or checking on safety of others
- 17 - STATE V. NAZZAL
involved in accident). In his interactions with law enforcement officers at his home,
he casually downplayed the severity of the collision despite being informed that he
had killed someone.
The State published a redacted version of defendant’s extensive driving record
to the jury. In addition to six speed-related offenses, two willful refusals to submit to
a chemical test for intoxicants, and two prior convictions for driving while license
revoked, defendant’s driving record revealed that his license was revoked for a DWI
conviction at the time of the collision. The jury also heard testimony from a law
enforcement officer that arrested defendant on suspicion of DWI on a prior occasion.
Defendant had boasted to this officer that he “kn[e]w how to work [the system]” and
avoid the consequences of his conduct behind the wheel. Furthermore, defendant’s
driving record revealed that he had been involved in five car accidents in the last
twenty years, two of which caused personal injury. Schmieder, __ N.C. App. at __,
827 S.E.2d at 326 (“This Court has held evidence of a defendant’s prior traffic-related
convictions admissible to prove the malice element in a second-degree murder
prosecution based on vehicular homicide. Likewise, whether defendant knew that he
was driving with a suspended license tends to show that he was acting recklessly,
which in turn tends to show malice.”) (internal quotation marks, citations, and
alterations omitted). Thus, the jury could infer that defendant was aware of the risk
to human life caused by his behavior on the road.
- 18 - STATE V. NAZZAL
From all this evidence, the jury could infer that defendant was well aware of
the dangers to human life posed by his pattern of behavior behind the wheel, and on
this occasion once again engaged in dangerous driving with indifference to its
consequences. Therefore, substantial evidence supported the element of malice by
reckless disregard for human life. Accordingly, the trial court did not err in
submitting the second-degree murder charge to the jury.
B. Motion to Suppress and Admission of Witness Testimony
Defendant next argues that the trial court erred in denying his motion to
suppress evidence obtained as fruits of the search of his two cellular phones. He
further argues that the trial court erred in admitting the testimony of Ms. Haynes
relating to his prior use of crack cocaine.
We have determined that substantial evidence supported defendant’s second-
degree murder conviction on the theory of failure to maintain lane control with
malice. We have also reversed defendant’s conviction for DWI. We agree with the
concession of defendant’s counsel at oral argument: the evidence obtained from his
cell phones was used solely to prove his impairment at the time of the collision.
Because we have vacated the driving while impaired conviction, we need not address
defendant’s arguments regarding the alleged error in the denial of defendant’s motion
to suppress and admission of evidence obtained as fruits of the search of his phones.
Because this evidence is not relevant to the remaining charges, any error is harmless.
- 19 - STATE V. NAZZAL
C. Jury Instruction on Accident
Defendant’s final argument is that the trial court erred by denying his request
for a jury instruction on accident. Accepting defendant’s position arguendo, we find
this error harmless in light of other instructions given to the jury.
“The defense of accident is triggered in factual situations where a defendant,
without premeditation, intent, or culpable negligence, commits acts which bring
about the death of another.” State v. Riddick, 340 N.C. 338, 342, 457 S.E.2d 728, 731
(1995) (internal quotation marks and citation omitted). We have previously held that
failure to give an instruction on accident in a trial court’s instructions on murder is
harmless error if the jury is instructed on lesser-included offenses that do not require
a mens rea of intent. Id. at 343-44, 457 S.E.2d at 732. In Riddick, the trial court gave
an instruction on involuntary manslaughter as a lesser-included offense and the jury
found the defendant guilty of first-degree murder. Id. Assuming arguendo that
failure to give an accident instruction was error, we held that this error was harmless.
Id. Because first-degree murder requires specific intent to kill, we reasoned that the
jury’s verdict expressed rejection of any notion that defendant’s conduct was
accidental. Id.
In the instant case, the trial court instructed the jury on second-degree murder
and the lesser-included offenses of involuntary manslaughter and misdemeanor
death by vehicle, noting that both lesser offenses involved killings that were
- 20 - STATE V. NAZZAL
unintentional. The jury chose to convict defendant of second-degree murder, which
requires a mens rea of malice: that defendant intentionally performed “an inherently
dangerous act or omission, done in . . . a reckless and wanton manner . . .
manifest[ing] a mind utterly without regard for human life and social duty and
deliberately bent on mischief.” N.C. Gen. Stat. § 14-17(b)(1) (2019). As in Riddick,
the jury’s verdict rejects the notion that defendant’s passing of the tow truck along
the shoulder was unintentional. Therefore, any error in failing to give an instruction
on accident was harmless.
III. Conclusion
For the foregoing reasons, we reverse defendant’s convictions for DWI and
felony death by vehicle due to insufficient evidence of impairment. Defendant’s trial
was otherwise free of prejudicial error.
REVERSED IN PART; NO ERROR IN PART.
Chief Judge MCGEE and Judge ZACHARY concur.
- 21 -