IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-414
Filed 18 June 2025
Duplin County, Nos. 20CRS051542-300, 21CRS000354-300
STATE OF NORTH CAROLINA
v.
MARSHJE TREANNAH SWINSON
Appeal by defendant from judgment entered 15 June 2023 by Judge George
Robert Hicks III in Duplin County Superior Court. Heard in the Court of Appeals 16
January 2025.
Attorney General Jeff Jackson, by Assistant Attorney General Reginaldo E. Williams, Jr., for the State.
William D. Spence for defendant.
FREEMAN, Judge.
Defendant appeals from judgment entered upon a jury verdict of guilty on the
charges of second-degree murder, assault with a deadly weapon with intent to kill
inflicting serious injury, and assault with a deadly weapon inflicting serious injury.
On appeal, defendant argues that the trial court erred by: (1) denying her motion to
dismiss the second-degree murder charge; (2) sentencing her as a Class B1 felon
instead of a Class B2 felon for the second-degree murder conviction; and (3) denying
her motion to dismiss the assault with a deadly weapon with intent to kill inflicting STATE V. SWINSON
Opinion of the Court
serious injury charge. After careful review, we conclude that defendant received a
trial free of prejudicial error.
I. Factual and Procedural Background
In October 2020, defendant was living with the murder victim, Lonnel
Henderson, at the Wells Trailer Park. On the morning of 23 October, defendant and
Lonnel had a volatile argument and defendant left to stay with Lonnel’s sister,
Lannel Henderson, in the same park.
Later that day, defendant went shopping with her cousin, Zeniqua Carr.
Defendant then returned to the Lonnel’s trailer with Lannel to retrieve some personal
belongings while Zeniqua waited outside. Defendant visibly carried a handgun in her
pants. Lonnel, who was inside the trailer, noticed that defendant was carrying a
handgun and the two began arguing. At this point, two of Lonnel’s other sisters,
Shardonnay Langley and Kyra Pearsall, came to the trailer and the argument
escalated. Ultimately, the argument moved outside where it turned into a physical
altercation.
At trial, the State and defendant presented conflicting evidence as to what
occurred next. The State’s evidence tended to show that once outside of the trailer,
Lonnel pushed Zeniqua to the ground, then Shardonnay jumped on top of her and
began beating her. Defendant then took out her gun and used it to hit Shardonnay
on the back of her head. Shardonnay continued to fight Zeniqua, and Lonnel knocked
the gun out of defendant’s hand. Zeniqua then picked up the gun, and defendant told
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her, “There’s one in the head, [Zeniqua],” which meant there was “one bullet ready to
be fired.” Zeniqua handed the gun back to defendant. Defendant raised the gun and
shot Lonnel.
Shardonnay then ran at defendant. Defendant again raised the gun and shot
Shardonnay; the bullet grazed her forehead, causing her to bleed. Lonnel died at the
scene of a gunshot wound to the chest, as the bullet entered his shoulder and pierced
both of his lungs and his pulmonary artery.
In contrast, defendant’s testimony painted a different version of events.
According to defendant, Lonnel pushed Zeniqua to the ground and began hitting her,
while Shardonnay started “coming at” defendant after the fracas started. Defendant
then pulled out the gun “for her safety,” cocked it, and asked everyone to “chill” and
“leave [Zeniqua] alone.” Then, Shardonnay tried “to grab the gun out of [her] hand,”
and defendant “kept trying to move it so the gun was pretty much going which or
every way.” During this clash, the gun discharged, and defendant saw Lonnel holding
his arm. Shardonnay “still kept trying to fight like nothing ever happened,” which
resulted in the gun “going off a second time.” After the second shot went off,
Shardonnay let go of the gun and “ended up trying to get towards her brother.”
Defendant testified that she did not know who pulled the trigger for either shot.
Defendant left the trailer park after the shootings. Early the next morning,
defendant voluntarily went to the Wallace Police Department where she was placed
under arrest. Defendant was indicted for the first-degree murder of Lonnel
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Henderson. Defendant was also indicted for the attempted first-degree murder,
assault with a deadly weapon with intent to kill inflicting serious injury, and assault
with a deadly weapon inflicting serious injury upon Shardonnay Langley.
Defendant’s matter came on for trial on 30 May 2023. At the close of evidence,
defendant moved to dismiss the murder and assault with a deadly weapon with intent
to kill inflicting serious injury charges. The trial court denied these motions. The
jury found defendant guilty of second-degree murder, assault with a deadly weapon
with intent to kill inflicting serious injury, and assault with a deadly weapon
inflicting serious injury.
The trial court found no aggravating or mitigating factors and sentenced
defendant to 240–300 months imprisonment upon the Class B1 felony conviction of
second-degree murder. The trial court further sentenced defendant to 73–100 months
imprisonment for the assault with a deadly weapon with intent to kill inflicting
serious injury and assault with a deadly weapon inflicting serious injury convictions,
to run consecutively with defendant’s second-degree murder sentence. Defendant
timely appealed.
II. Jurisdiction
This Court has jurisdiction to review “any final judgment of a superior court,
other than one based on a plea of guilty or nolo contendere[.]” N.C.G.S. § 7A-27(b)(1)
(2023); see also N.C.G.S. § 15A-1444(a) (2023) (“A defendant who has entered a plea
of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled
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to appeal as a matter of right when final judgment has been entered.”). Accordingly,
we have jurisdiction over defendant’s appeal of right.
III. Standard of Review
We review a denial of a motion to dismiss de novo to determine whether “there
was substantial evidence (1) of each essential element of the offense charged, and (2)
that defendant is the perpetrator of the offense[.]” State v. Collins, 283 N.C. App.
458, 465 (2022) (cleaned up). We review sentencing errors de novo. State v. Mosley,
256 N.C. App. 148, 150 (2017).
IV. Discussion
Defendant argues that the trial court erred by: (1) denying her motion to
dismiss the second-degree murder charge; (2) sentencing her as a Class B1 felon
instead of a Class B2 felon upon conviction of second-degree murder; and (3) denying
her motion to dismiss the assault with a deadly weapon with intent to kill inflicting
serious injury charge. We address each argument in turn.
A. Motion to Dismiss the Second-Degree Murder Charge
Defendant first contends that the trial court erred in denying her motion to
dismiss the second-degree murder charge. Specifically, defendant argues the State
failed to present substantial evidence that she acted with the malice necessary to
sustain a conviction of second-degree murder.
To survive a motion to dismiss, the State must submit substantial evidence of
each essential element of the charge. Collins, 283 N.C. App. at 465. “Substantial
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evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” State v. Vause, 328 N.C. 231, 236 (1991) (cleaned up). This
evidence need only be more than a “mere scintilla, which only raises a suspicion or
possibility of the fact in issue.” State v. Earnhardt, 307 N.C. 62, 66 (1982) (quoting
State v. Johnson, 199 N.C. 429, 431 (1930)). “[I]t is well settled that the evidence is
to be considered in the light most favorable to the State and that the State is entitled
to every reasonable inference to be drawn therefrom.” State v. Alexander, 337 N.C.
182, 187 (1994). “Any contradictions or conflicts in the evidence are resolved in favor
of the State[.]” State v. Miller, 363 N.C. 96, 98 (2009).
The elements of second-degree murder are “(1) the unlawful killing, (2) of
another human being, (3) with malice, but (4) without premeditation and
deliberation.” State v. Arrington, 371 N.C. 518, 523 (2018) (cleaned up). “Intent to
kill is not a necessary element of second-degree murder, but there must be an
intentional act sufficient to show malice.” State v. Brewer, 328 N.C. 515, 522 (1991).
There are three theories of malice:
(1) express hatred, ill will, or spite; (2) commission of inherently dangerous acts in such a reckless and wanton manner as to manifest a mind utterly without regard for human and social duty and deliberately bent on mischief; or (3) a condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification.
State v. Coble, 351 N.C. 448, 450–51 (2000) (cleaned up). The second kind of malice
is commonly referred to as depraved-heart malice. State v. Fuller, 138 N.C. App. 481,
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484 (2000). The third kind of malice, condition of mind malice, may be “established
by [an] intentional infliction of a wound with a deadly weapon that results in death.”
Coble, 351 N.C. at 451 (cleaned up).
This Court has held that the State presented substantial evidence of malice by
showing a defendant’s intentional act under circumstances analogous to those
present here. For instance, evidence that a defendant shot two people at close range
after a heated argument was “sufficient evidence presented that defendant
unlawfully murdered [the victim] with malice.” State v. Stitt, 201 N.C. App. 233, 246
(2009). In another case, when “the State presented evidence that [the] defendant
retrieved a gun from his vehicle and intentionally fired the gun” at the victim, we
held that there was “sufficient evidence for the jury to infer malice on the part of
defendant” to survive a motion to dismiss. State v. Banks, 191 N.C. App. 743, 746,
751 (2008).
Here, defendant’s argument that there was insufficient evidence to show
malice fails. The State’s evidence, viewed in the light most favorable to the State,
provided more than a “mere scintilla of evidence,” Earnhardt, 307 N.C. at 66 (citation
omitted), that defendant acted intentionally when she retrieved and fired the gun.
Specifically, the State presented the testimonies of three witnesses who saw
defendant raise the gun and shoot Lonnel. Their testimonies further established that
defendant was in control of the gun when it was discharged because Shardonnay was
occupied with fighting Zeniqua at the time Lonnel was shot. Additionally,
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defendant’s own testimony showed that she pulled out the gun and cocked it before
Lonnel was shot.
Though portions of defendant’s evidence conflict with the State’s evidence,
“[a]ny contradictions or conflicts in the evidence are resolved in favor of the State.”
Miller, 363 N.C. at 98. Accordingly, defendant’s contradictory evidence does not
impact our analysis of whether the State presented substantial evidence to survive
defendant’s motion to dismiss.
This evidence, including the testimony that defendant raised the gun and shot
Lonnel, is sufficient to allow a reasonable mind to accept as adequate to support the
conclusion that defendant acted intentionally when she fired the gun. And because
evidence of such intentional conduct is “sufficient evidence for the jury to infer malice
on the part of the defendant,” Banks, 191 N.C. App. at 751, the trial court did not err
by denying defendant’s motion to dismiss the second-degree murder charge.
B. Sentencing
Defendant next asserts that the trial court erred in sentencing her as a Class
B1 felon upon her conviction of second-degree murder because the jury’s verdict was
ambiguous. Specifically, defendant argues her testimony “that she did not intend to
shoot [Lonnel] and that the gun went off during a struggle for the gun” was sufficient
evidence to support sentencing as a Class B2 felon because this testimony
demonstrated that she acted with depraved-heart malice.
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“Any person sentenced who commits second degree murder shall be punished
as a Class B1 felon[.]” N.C.G.S. § 14-17(b) (2023). However, if “the malice necessary
to prove second degree murder is based on an inherently dangerous act or omission,
done in such a reckless and wanton manner as to manifest a mind utterly without
regard for human life and social duty and deliberately bent on mischief[,]” then the
defendant “shall be punished as a Class B2 felon.” Id. (emphasis added). In other
words, a defendant convicted of second-degree murder can be sentenced as a Class
B2 felon only if there is no evidence to show that they acted with anything other than
depraved-heart malice. See id.
When a defendant is charged with second-degree murder, the trial court may
provide the jury with special verdict form to identify under which theory of malice it
found the defendant guilty. See State v. Borum, 384 N.C. 118, 118 (2023). Otherwise,
the trial court gives the jury a general verdict form, which means that the specific
theory for the jury’s finding is unknown. See Mosley, 256 N.C. App. at 149.
When there is no evidence “presented that would support a finding that an
accused acted with depraved-heart malice, . . . it would be inferred from a general
verdict that the jury found the accused guilty of B1 second-degree murder.” State v.
Lail, 251 N.C. App. 463, 471 (2016). However, a general verdict form is ambiguous
for sentencing purposes when “the jury is . . . presented with evidence that may allow
[it] to find that either B2 depraved-heart malice or another B1 malice theory existed.”
Id. at 475. With a verdict so ambiguous, “neither we nor the trial court [are] free to
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speculate as to the basis of a jury’s verdict, and the verdict should be construed in
favor of the defendant.” Mosley, 256 N.C. App. at 153.
In determining whether the defendant in Mosley was entitled to resentencing
as a Class B2 felon, we reasoned:
In the case sub judice, . . . there was evidence of defendant’s reckless use of a rifle, a deadly weapon. Specifically, defendant testified that as he was arguing with the victim, he was holding the rifle with his finger on the trigger and without the safety on. Defendant stated this was how he always handled the rifle—finger on the trigger and no safety. Defendant testified that in this instance, the gun went off when the victim grabbed the barrel of the rifle and he pushed her away. There was also testimony about the safety of the rifle and testimony from a firearm expert that “you would never teach anyone to have their finger on the trigger until they are ready to fire.”
Id. at 152–53 (cleaned up).
We held that this was evidence “from which the jury could have found
depraved-heart malice to convict [the] defendant of a Class B2 second degree
murder.” Id. at 153. Because the evidence there could have supported a finding of
depraved-heart malice, we concluded that the jury’s general verdict form was
ambiguous and that the trial court therefore erred by sentencing the defendant as a
Class B1 felon rather than construing the verdict in favor of the defendant. Id.
On the other hand, in State v. Crisp, we concluded the defendant was not
entitled to resentencing in part because there was no “reckless use of a deadly weapon
constitut[ing] depraved heart malice.” 281 N.C. App. 127, 137 (2021) (emphasis
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added) (citing Mosley, 256 N.C. App. at 152–53). There, we determined the evidence
that the defendant “left an empty-chambered gun unattended, or that [the victim]
grabbed the gun, which [the defendant] maintain[ed] he did not use and believed was
unloaded” was “insufficient to show that [the defendant] committed an inherently
dangerous act” that would support a finding of depraved-heart malice. Id. (emphasis
added). Because this evidence—which did not indicate the defendant’s reckless use
of a deadly weapon—could not support a finding of depraved-heart malice, the
general verdict was unambiguous and the trial court did not err by sentencing the
defendant as a Class B1 felon. Id.
Here, defendant’s contention that the jury’s verdict was ambiguous because
this case is “identical” to Mosley fails because there was no “evidence of defendant’s
reckless use . . . [of] a deadly weapon.” Mosley, 256 N.C. App. at 152. At trial, the
State’s evidence tended to show that the defendant intentionally raised the gun and
shot Lonnel. Defendant’s own testimony, on the other hand, failed to provide
evidence of her reckless use of the firearm. Specifically, when repeatedly asked to
describe “how the gun discharged,” defendant testified:
Q. Now, you testified that you shot twice?
A. I did not say I shot twice. I said someone’s trying to get the gun out of my hand and fight me while the gun was in my hand, and that’s how the gun went off.
Q. Okay. Twice?
A. Yes. It went twice. She never stopped trying to fight. She
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kept going . . .
A. She kept trying to fight me with the gun in my hand repeatedly. That’s how the gun went off the first time, and she kept going, and that’s how it went off the second time.
...
Q. Did you fire the handgun that night, Ms. Swinson?
A. No, sir, I did not.
Q. Do you know how the gun discharged that night?
A. Because me and Shardonnay—again, like I stated, she kept trying to fight me with the gun in my hand, was trying to jump on me with the gun in my hand. And I constantly kept saying, Shardonnay stop, stop Shardonnay, stop. She wouldn’t stop. That’s when the first shot went off.
Q. Originally, where was it when you—you had possession of it?
A. I had it right here, like on my side, telling her to stop.
Q. When Shardonnay was grabbing for the handgun, where did it go, to the best of your recollection?
A. Pretty much like I said, pretty much everywhere ‘cause I kept saying to Shardonnay, stop. So I’m trying to pull, and she’s keep trying to fight me and keep swinging and swinging and swinging. I’m, Shardonnay, stop, and that’s when the first pow went off. Like I said I just stood there after the first pow went off.
Thus, according to defendant, she did not recklessly use the firearm because
she did not use the firearm at all. Unlike in Mosley, where the defendant testified
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that “he was holding the rifle with his finger on the trigger and without the safety
on” and that “the gun went off when the victim grabbed the barrel of the rifle and he
pushed her away,” 256 N.C. App. at 152–53, defendant here did not provide any
evidence that she was using the firearm in such a reckless manner or any explanation
of how the gun discharged. Instead, according to defendant, the gun mysteriously
fired twice because Shardonnay “kept going.”
Neither version of events—the State’s version in which defendant intentionally
fired two shots, or defendant’s version in which she did nothing wrong and the gun
mysteriously fired two shots—constitute the kind of reckless conduct that could
support depraved-heart malice. Based on the evidence presented at trial, the jury
only could have found defendant guilty of second-degree murder under the theories
that support sentencing as a Class B1 felon. Therefore, the jury’s verdict is
unambiguous, and the trial court did not err by sentencing defendant as a Class B1
felon.
Defendant alternatively argues that the trial court plainly erred by failing to
instruct the jury on the depraved-heart theory of malice. An instruction on depraved-
heart malice would be warranted when there is evidence presented at trial that would
support a finding that a defendant acted with depraved-heart malice. See Lail, 251
N.C. App. at 475; see also State v. Clark, 201 N.C. App. 319, 323 (2009) (“An
instruction on a lesser-included offense must be given only if the evidence would
permit the jury to rationally find [the] defendant guilty of the lesser offense and to
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acquit him of the greater.” (citation omitted)). “When determining whether there is
sufficient evidence for submission of a lesser included offense to the jury, we view the
evidence in the light most favorable to defendant.” Clark, 201 N.C. App. at 323
(citation omitted).
As discussed above, the evidence in this case, even in the light most favorable
to defendant, could not support a finding that defendant acted with depraved-heart
malice because the evidence does not demonstrate reckless use of the firearm.
Accordingly, the trial court did not err, let alone plainly err, by failing to instruct the
jury on the depraved-heart theory of malice.
C. Motion to Dismiss Assault with a Deadly Weapon with Intent to Kill
Inflicting Serious Injury Charge
Finally, defendant contends the trial court erred by denying her motion to
dismiss the assault with a deadly weapon with intent to kill inflicting serious injury
charge. Defendant specifically argues the State did not present substantial evidence
that defendant had an intent to kill.
“The essential elements of assault with a deadly weapon with intent to kill
inflicting serious injury are (1) an assault, (2) with a deadly weapon, (3) with intent
to kill, (4) inflicting serious injury, (5) not resulting in death.” State v. Liggons, 194
N.C. App. 734, 742 (2009) (cleaned up); see also N.C.G.S. § 14-32(a) (2023) (“Any
person who assaults another person with a deadly weapon with intent to kill and
inflicts serious injury shall be punished as a Class C felon.”).
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“An intent to kill is a mental attitude, and ordinarily it must be proved . . . by
circumstantial evidence, that is, by proving facts from which the fact sought to be
proven may be reasonably inferred.” State v. Cauley, 244 N.C. 701, 708 (1956). “An
intent to kill may be inferred from the nature of the assault, the manner in which it
was made, the conduct of the parties, and other relevant circumstances.” State v.
Thacker, 281 N.C. 447, 455 (1972). “The surrounding circumstances include the
foreseeable consequences of a defendant’s deliberate actions[,] as a defendant must
be held to intend the normal and natural results of his deliberate act.” Liggons, 194
N.C. App. at 739 (cleaned up).
Here, the State offered evidence that defendant raised her loaded and cocked
gun and shot at Shardonnay while she was running towards defendant.
Shardonnay’s death would have been a natural and foreseeable consequence of
shooing directly at her, so the jury could have reasonably found that defendant acted
with intent to kill when she shot at Shardonnay.
Considering the evidence in the light most favorable to the State, there was
substantial evidence to show that defendant acted with intent to kill Shardonnay.
Therefore, the trial court did not err by denying defendant’s motion to dismiss the
assault with a deadly weapon with intent to kill inflict serious injury.
V. Conclusion
The trial court correctly denied defendant’s motion to dismiss the
second-degree murder charge because the State presented substantial evidence that
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defendant acted with malice. Because there was no evidence presented by either
party to support that defendant acted with depraved-heart malice such to render the
jury’s verdict ambiguous, the trial court properly sentenced defendant as a Class B1
felon upon the conviction of second-degree murder. Finally, the trial court also
correctly denied defendant’s motion to dismiss the assault with a deadly weapon with
intent to kill inflicting serious injury charge because the State presented substantial
evidence that defendant acted with intent to kill. Accordingly, we conclude that
defendant received a fair trial, free from prejudicial error.
NO ERROR.
Judges HAMPSON and GORE concur.
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