Goodwin_ Robert

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NO. 06-1165                                 TENTH DISTRICT

              NORTH CAROLINA COURT OF APPEALS
               *************************************

STATE OF NORTH CAROLINA )
                             )
V.                           )        From Wake County
                             )        O4CrS76639
ROBERT ROLAND GOODWIN )
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            DEFENDANT/APPELLANT’S BRIEF
          *************************************

                     QUESTIONS PRESENTED

I. THE EVIDENCE WAS INSUFFICIENT TO PROVE EACH
ESSENTIAL ELEMENT OF SECOND DEGREE MURDER.

II. THE TRIAL COURT ERRED IN ALLOWING, OVER
OBJECTION, EVIDENCE OF THE SEVEN YEAR OLD
CONVICTION FOR DRIVING WHILE IMPAIRED AND PLAINLY
ERRED IN INSTRUCTING THE JURY THAT IT COULD USE THE
PRIOR OFFENSE TO PROVE MALICE
                                      2



                       STATEMENT OF THE CASE

      The defendant pled not guilty to an indictment charging him with the

September 23, 2004 second degree murder of Haiyun Chen. The case was

tried before a jury during the August 2, 2005 session of Wake County

Criminal Superior Court, the Honorable John R. Jolly, Superior Court Judge

Presiding. The jury found the defendant guilty as charged and he was

sentenced to a minimum term of imprisonment of 125 months and a

maximum term of 159 months, and ordered to pay restitution in the sum of

$9,927.73. The defendant gave timely notice of appeal.

                    STATEMENT OF JURISDICTION

      Pursuant to Appellate Rule 28(b)(4), jurisdiction for this appeal

derives from N.C.G.S.15A-1442 and 1444 and N.C.G.S.7A-27(b). This

appeal is from a final order.

                      STATEMENT OF THE FACTS

      During the middle of the day, a dump truck driven by the defendant

veered into the median, went through the median, and struck a minivan

head-on. (Tp.65) Several bystanders quickly responded to the occupants of

the minivan and were able to rescue two children from the vehicle. The

driver of the van, Ms. Chen, was having difficulty breathing and was

slumped over in the seat. Bystander Ted Reynolds, who had some medical
                                        3


training in the military, tried to keep her head up and tried to keep talking to

her. (Tpp.87-110) Ms. Chen sustained injuries to her legs, and external

injuries to her heart, lungs and liver. Despite an attempt to surgically repair

the lacerations to her heart and liver, she died of the injuries sustained during

the crash. (Tpp.334-339)

      Another bystander, Brian Prater, went over to the truck. He saw the

defendant leaning against the truck, bleeding from his mouth. The defendant

seemed upset and dazed. Prater saw several beer cans lying in the debris in

the street. There was liquid around them. Prater saw the truck right before

the collision. (Tpp. 65-75)

      Prater told the jury that the driving was not erratic and there was

nothing that attracted his attention to the truck. It was as if it “…was a drift,

like a reaction to something being in the road, like someone jerking.”

(Tp.84). When he talked to the defendant, he was about five feet away from

him. He did not smell any alcohol. (Tp.85)

      Gerry Watson worked with the defendant at the Governor Morehead

School. The morning of the collision, he and the defendant were taking the

dump truck to the landfill to clear out some things from the school. On the

way, the got a six pack of beer and each man consumed three 12 ounce beers

as they sat at the landfill. (Tpp.111-116) On the way back to the school,
                                      4


they each bought a sixteen ounce beer. (Tp.122) Before they bought and

consumed beer, Watson did not smell any alcohol on the defendant.

(Tp.122)

      The two men got on U.S. 64 going towards U.S. 1. Watson heard the

back left wheel “whooing” on the back, making a funny noise. He looked in

the left-hand mirror to look down, and when he looked back up again, they

were going across the median. (Tp.123) Watson looked over at the

defendant and he looked as though he had “blanked out” or “passed out or

something.” He did not look like he was asleep. (Tp.123) After the

collision, the two men got out of the truck. The defendant leaned against the

truck and said, “I f-cked up.” (Tp.126)

      Watson said they left the school at about 9:45 a.m. He did not smell

alcohol on the defendant and he had no difficulty loading up the stuff in the

dump truck. The supervisor was present as they loaded up the truck and he

did not say anything to Watson about the defendant being able to drive. As

they drove to the landfill there was no weaving or swerving. The defendant

had no difficulty paying for the beer they bought. They did not drink

anything on the way to the landfill. The defendant purchased the ticket from

the gate clerk and drove into the landfill, without incident. The men

unloaded some of the items and then dumped the remainder. (Tpp.132-141)
                                       5


       After they unloaded the truck, the two men drank three beers each.

Watson said he did not feel impaired and the defendant did not do anything

to make Watson think he was impaired. On the way back, the two men

entered the store and bought the beer. The defendant had no difficulty in the

store and the store clerk never refused to sell him beer on the grounds he

looked impaired to her. The men had just popped the top of the beers when

the collision occurred. (Tpp.142-145) After they left the store, there was

nothing erratic about the way the defendant drove. As they approached the

area of the accident, Watson heard something going on with the back wheel

on the driver’s side. The wheel was making noise and then the truck started

to cross the median. When Watson looked over at him, his head was down

but he could not see if his eyes were open or closed. From the time of the

noise until the time of the collision, only a few seconds passed. (Tpp.146-

148)

       At no time on the day of the collision, from the time he saw the

defendant at the school until the time of the crash, did he ever look or act

impaired. Watson had no idea if the defendant drank the night before or

how much sleep he had gotten the night before. (Tp.151) Watson thought

that the time from leaving the landfill until the time of the collision was

about 15 or 20 minutes. (Tpp.152-153)
                                         6


      Officer Allen arrived at the scene and saw the defendant and Watson

at the truck. He did not notice any alcohol on the defendant but his speech

was slightly slurred and his eyes were glassy. When Allen opened the truck

he smelled beer and there was a puddle of beer on the floor of the truck.

(Tpp.212-243) Allen asked the defendant what happened and he told him he

did not know, that the vehicle turned left and went down the embankment

and crossed the highway. Allen asked him if the vehicle malfunctioned and

the defendant said he did not know. (Tp.222) Allen found one beer in the

area, outside the truck. (Tp.238, 243)

      Officer Howe went to Wake Medical Emergency Room and spoke

with the defendant. The defendant told him he had not had any alcohol that

day. The officer thought the defendant’s eyes were glossy and bloodshot,

his speech was slurred and he exuded a moderate odor of alcohol. (Tp.162)

Howe thought the defendant seemed oblivious to what was going on around

him. The defendant did sustain a head injury. The office asked him to give

a blood sample at about 1:35 p.m., some two and a half hours after the

collision, and the defendant agreed to do so. (Tpp.162-172) Analysis of the

blood sample resulted in a .19 grams of alcohol per milliliter of whole blood.

(Tp.274) The defendant gave a written statement that he did not know what
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happened, that the truck went left and hit another vehicle. The defendant

never told him there was anything wrong with the truck. (Tpp.173, 174)

      Howe did not perform any of the usual sobriety field tests because the

defendant was in a hospital bed with a face and head injury. The defendant

did answer all of the other questions correctly, as to time and place, location

of the collision, etc. The statement written by the defendant was legible,

including the correct spelling of “foliage.” (Tpp. 181-190) The officer said

it was possible for glassy and bloodshot eyes to be caused by an automobile

accident. (Tp.191)

      Over objection, the State introduced evidence that seven years before

the crash, the defendant ran into the back of the car belonging to David

Sawyer. (Tpp.288, 289, 318) The two got out of their respective vehicles to

look at the damage and decided to pull over. Instead, the defendant left the

area. When they spoke, Sawyer did not detect any alcohol or impairment.

The defendant subsequently drove back by Sawyer as Sawyer spoke with

police. The defendant approached and asked why Sawyer said he had hit his

car. The defendant was polite and non-argumentative. (Tpp.290-296)

      The officer who responded to Sawyer’s call testified that he noticed

the odor of alcohol on defendant. The defendant was polite and cooperative.

He thought the defendant was impaired. The defendant told him he had not
                                        8


hit Sawyer and the officer could understand why he thought that because the

damage was so slight. He did not think the defendant was lying but truly did

not think he had hit Sawyer’s vehicle. (Tpp.297-310) A breathalyzer

reading resulted in a .14 blood alcohol level.

      An engineer examined the dump truck involved in the collision as

well as the scene of the crash. The engineer looked at the brakes and the

steering mechanism of the truck. (Tpp.343-352) Further examination

revealed that the power steering fluid was almost empty. The witness

thought the leaking was caused by the accident. Although the brake fluid

leaked, the witness said it could have been a result of sitting for a long time.

In his opinion, the brakes were working at the time of the collision.

(Tpp.352-359) The broken bolts in the axles were, in his opinion, caused by

the impact of the crash. The witness found nothing about the truck that

would cause it to turn left on its own. There was no evidence of braking.

(Tpp.359-367)

      On cross-examination the witness said that Watson’s report of a noise

from the back wheel could suggest a problem with the axle. (Tp.379) The

truck was not driven at all by the engineer and there was never an attempt to

duplicate the conditions that existed when the truck was driven 55 miles per

hour. (Tp.384)
                                      9


       At the close of the State’s evidence, the defendant made a motion to

dismiss the second degree murder charge on the grounds that although there

was evidence of alcohol use, there was no evidence of malice. The State

responded that the prior DWI goes to prove malice, as well as the

consumption of alcohol, was sufficient to withstand the motion. (Tpp. 394-

396) The court was of the opinion that the evidence of malice was thin, but

stated he was “forced to conclude there’s probably enough to let this jury

decide.” (Tp.397)

       The defendant’s wife, Gaylene Goodwin, testified that the defendant

never missed a day of work. He suffers from chronic heart disease and as a

result has had several stents put in. He has had heart attacks and been

warned of the possibility of a stroke. (Tpp.402-403)

       Ms. Goodwin told the jury that her husband drinks beer sometimes but

she does not. The night before the collision they ate dinner as usual. The

two had an argument of sorts and the two sat on the porch swing for a while

until she went to bed. The next morning she saw him up at six o’clock in the

morning. He dressed for work, they spoke briefly and by 6:30 he was on his

way to work. She did not smell any alcohol on him and none of his actions

indicated that he had drunk any alcohol before leaving for work. (Tpp.403-

405)
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      Ms. Goodwin went to the hospital that afternoon after the crash. She

said he was in a state of shock. The defendant has had a difficult time after

he found out what happened to Ms. Chen. Grief counseling and community

support has helped. (Tpp.405-407)

      On cross-examination, Ms. Goodwin said she did not know what time

her husband came to bed the night before the crash. When he told her he

had three beers and a part of another one that day, she was surprised because

to her knowledge he never drank on the job. She did not think her husband

had a problem with alcohol. (Tpp.407-410) She had seen him impaired a

few times. As to the incident with Mr. Sawyer, her husband told her he did

not think he hit him hard enough for there to be any damage, only that the

vehicles made contact. (Tp.410) In the past, if she thought had consumed

too much beer, she drove the car. That was usually about twice a month.

(Tp. 412)

      David Uphan, defendant’s co-worker and a supervisor at the Governor

Morehead School, told the jury that he talked to the defendant who

volunteered to take the dump truck to the landfill. He did not smell any

alcohol on him and there was nothing in his actions to indicate he had been

drinking. (Tpp.414, 415) Because the truck needed to be covered with a
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tarp, which was heavy, Uphan thought Watson should go with the defendant

to the landfill to help him with the tarp. (Tp.417)

       Uphan had told the investigator for the State that to his knowledge

there was no problem with the truck. The school has a zero tolerance policy

as far as consuming alcohol at work. This had never been an issue with the

defendant. (Tpp.417-421)

       The court declined to instruct the jury on misdemeanor death by

motor vehicle. The jury returned a verdict of second degree murder. At the

sentencing hearing, Robert Goodwin expressed remorse. The defense

tendered evidence of his years of being a hard worker and a good provider,

evidence of the effect of this tragedy on him and his family, and his

commitment to his religion. Numerous letters of support from members of

the community were tendered to the Court. The State tendered the testimony

of Ms. Chen’s widower and the effects of the loss of his wife on him and his

children. Earlier in the guilt phase of the proceedings, Mr. Xiao had told the

court about the suffering of his children and the after effects of the accident.

After a sentencing hearing, the court made no findings in aggravation or

mitigation and sentenced the defendant in the presumptive range. (Tpp. 488-

525)
                                      12


      I. THE EVIDENCE WAS INSUFFICIENT TO PROVE EACH

ESSENTIAL ELEMENT OF SECOND DEGREE MURDER.

      Assignment of Error Number 3, Record page 42

      The defense made a motion to dismiss the charges following the

State’s evidence. The defense pointed out that there was no evidence that

the defendant was driving erratically nor was he speeding. There was

nothing about his driving that caused Watson, nor witness Prater, to think he

was intoxicated. The State’s evidence was that he drank 3 beers and within

twenty minutes became so intoxicated to a degree that caused him to lose the

normal control of his bodily or mental faculties, or both, to such an extent

that there was an appreciable impairment of either or both of these faculties.

The defense argued that without proof of bad driving, this was insufficient

proof of malice. (Tpp. 394, 395) The defense renewed the motion at the

close of all of the evidence. (Tp.468, lines 16-25)

      Standard of Review

      In evaluating the sufficiency of the evidence, the reviewing court

examines the evidence in the light most favorable to the State, giving the

State the benefit of all reasonable inferences. State v. Fritsch, 351 N.C. 373,

378-79, 526 S.E.2d 451, 455 (2000). The reviewing court must determine

whether there is substantial evidence of each element of the offense and that
                                      13


the defendant committed the offense. State v. Jones, 110 N.C. App. 169,

177 (1993), disc. review denied, 336 N.C. 612 (1994). Substantial evidence

is defined as such evidence as a reasonable mind might accept as adequate to

form a conclusion. State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164

(1980).

      Applicable Legal Principles

      Second-degree murder is the unlawful killing of another human being,

with malice, but without premeditation and deliberation. State v. Vassey,

154 N.C. App. 384, 390, 572 S.E. 248 (2002). Although the State need not

prove intent to kill, they must establish malice through proof of an

intentional act. State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299 (2000). In

Rich, our Supreme Court found sufficient evidence of malice in a second-

degree murder case where the defendant drove his car, while impaired, at a

high rate of speed, on the wrong side of the road, in a no-passing zone, and

in violation of the right-of-way rules. Id. The State may prove malice, or

depravity of mind, by showing the defendant had the intent to drive in such a

reckless or dangerous manner that injury or death would likely result. State

v. Locklear, 159 N.C. App. 588, 592, 583 S.E.2d 726 (2003).

      Our Supreme Court has approved a definition of “deliberately bent on

mischief,” one of the indices of malice. Rich at 394.
                                      14


      [The term deliberately bent on mischief] connotes conduct as
      exhibits conscious indifference to consequences wherein
      probability of harm to another within the circumference of such
      conduct is reasonably apparent, though no harm to such other is
      intended. [It] connotes an entire absence of care for the safety
      of others which exhibits indifference to consequences. It
      connotes conduct where the actor, having reason to believe his
      act may injure another, does it, being indifferent to whether it
      injures or not. It indicates a realization of the imminence of
      danger, and reckless disregard, complete indifference and
      unconcern for probable consequences. It connotes conduct
      where the actor is conscious of his conduct, and conscious of
      his knowledge of the existing conditions that injury would
      probably result, and that, with reckless indifference to
      consequences, the actor consciously and intentionally did some
      wrongful act to produce injurious result.

      Id. at 394.

      The State bears the burden of proving that the defendant drove the

vehicle while impaired; i.e., that he had consumed a sufficient quantity of

intoxicants to cause him to lose the normal control of his bodily or mental

faculties, or both, to such an extent that there was an appreciable impairment

of either or both of these faculties. State v. Carroll, 226 N.C. 237, 37 S.E.2d

688(1946). It is not enough for the State to show that intoxicating

substances were consumed. The gravamen of the offense is driving while

impaired. Consumption of alcohol or any other substance, standing alone,

does not render a person impaired. State v. Ellis, 261 N.C. 606, 135 S.E.2d

584(1964). An effect, however slight, on the accused’s faculties, is not

enough to render him impaired. State v. Hairr, 244 N.C. 506, 94 S.E.2d
                                       15


472(1956). The evidence must do more than raise a suspicion or conjecture

that the driver of a vehicle was impaired. State v. Hough, 229 N.C. 532, 50

S.E.2d 496(1948).

      To allow a conviction to stand without sufficient proof is a violation

of the due process clause of the United States Constitution. Jackson v.

Virginia, 443 U.S. 307, 61 L.Ed.2d 560(1979).

      Discussion

      In the instant case, the jury was instructed it had to find that the

defendant acted unlawfully and with malice. The State did not present

substantial evidence that Robert Goodwin had depravity of mind rising to

the level of malice.

      Unlike in Rich, the State did not prove that the defendant Goodwin

drove in such a dangerous manner that injury or death would likely result.

In fact, all of the evidence was that his driving was exemplary until the tire

made a noise and the truck veered to the left, colliding with the minivan

within seconds. This is unlike the situation presented in Rich, wherein the

defendant’s driving down the wrong side of the road created an extremely

dangerous situation. Defendant Goodwin’s consumption of alcohol without

proof of impairment, does not, by itself, establish depravity of mind .
                                       16


      The State failed to prove, in this case, that the defendant drove in such

a reckless manner that he knew injury would result or that he had complete

indifference to probable consequences. Furthermore, his seven year old

prior conviction for driving while impaired fails to establish malice

sufficient to constitute substantial evidence of this element of the offense.

The remoteness of the prior conviction does not render it inadmissible, but

renders it insufficient evidence of depravity of mind to establish malice.

      Appellant concedes that our courts have found that prior convictions

may establish malice when they are close in time to the offense charged or

are numerous. See e.g. State v. Locklear, 159 N.C. App. 588, 592

(2003)(holding that four-year-old prior conviction for driving while

impaired put the defendant on notice of serious consequences of driving

while impaired); State v. Vassey, 154 N.C. App. 384, 392 (2002)(admission

of 23-year-old driving while impaired conviction, when combined with three

later convictions and four convictions of driving with a revoked license,

established malice); State v. Miller, 142 N.C. App. 435, 439, 549 S.E.2d 201

(2001)(finding that admission of convictions for careless and reckless

driving and two counts of driving while impaired that were thirteen and

sixteen years prior to the charged offense established malice); State v. Smith,

157 N.C. App. 493, 497-98, 581 S.E.2d 448 (2003)(finding that seventeen
                                      17


and eleven-year-old convictions for driving while impaired established

malice); and State v. Rich, 351 N.C. 386, 400 (2000)(four prior speeding

convictions admitted as other bad act evidence established malice). In this

case, however, the State only admitted one prior conviction for driving while

impaired which occurred seven years prior.

      Thus, the State had only one prior conviction for driving while

impaired that was seven years old at the time of the accident in the case at

bar. This is unlike the situations presented in Smith, Rich, Vassey, Miller,

and Locklear, because the defendants in those cases had multiple convictions

for speeding, reckless driving, and driving while impaired. One driving

while impaired conviction, standing alone, does not establish depravity of

heart in a subsequent case. As such, the State did not present substantial

evidence that defendant Goodwin committed second-degree murder.

      Watson made contradictory statements that the defendant looked

down, blacked out, or passed out. He was not specific in his description.

However, even if the evidence is viewed in the light most favorable to the

State, it did not show that the defendant blacked out from alcohol. His

driving continued to be without rebuke until the tire made a noise and the

truck veered to the left. Failure to brake could have been the result of panic
                                      18


or a mini-stroke and the State’s evidence did not show that alcohol

impairment caused the failure to brake.

      Because the state presented insufficient evidence of malice, the trial

court should have dismissed the charge of second-degree murder. This

Court should vacate Robert Goodwin’s judgment of conviction for second-

degree murder.
                                      19


      II. THE TRIAL COURT ERRED IN ALLOWING, OVER

OBJECTION, EVIDENCE OF THE SEVEN YEAR OLD

CONVICTION FOR DRIVING WHILE IMPAIRED AND PLAINLY

ERRED IN INSTRUCTING THE JURY THAT IT COULD USE THE

PRIOR OFFENSE TO PROVE MALICE.

      Assignment of Error Number 1, Record page 42

      Assignment of Error Number 4, Record page 42

      The defendant submits that the introduction of evidence of the prior

driving while impaired was more prejudicial than probative, and should have

been excluded. The State’s witness, Sawyer, testified that his vehicle was

hit by the defendant’s vehicle. An officer who responded to Sawyer’s call,

and who spoke to the defendant, testified that the defendant seemed to be

impaired and he was given a breathalyzer which showed he had a blood

alcohol content of .14. This prior conviction was appreciably factually

different from the case at trial, and evidence of the conviction only served to

inflame the jury to defendant’s unfair prejudice.

      Further, the jury was instructed that it could use the prior offense to

show malice. The court instructed:

          Evidence in this case was received tending to show that
      the defendant, Robert Goodwin, previously has been convicted
      of the offense of driving while impaired. This evidence was
      received solely for the purpose of showing that defendant’s
                                       20


      driving at the time of the offense charged here, on September
      23, 2004, was done with malice, which is a necessary element
      of the second degree murder offense charged in this case. If
      you believe this evidence, you may consider it but only for
      the limited purpose for which it was received. What it shows
      or does not show and what it proves or does not prove in this
      regard, however, is for you to determine.

      Standard of Review

      Admissibility of evidence is a question of law. Ratliff v. Huntly, 5

Ired. 545 (1845). The trial court’s ruling on the defendant’s objection to the

admission of evidence is reviewable on appeal de novo. State v. Barber, 335

N.C. 120, 436 S.E.2d 106 (1993).

      The plain error rule allows this Court to review of fundamental errors

or defects in jury instructions affecting substantial rights, which were not

brought to the attention of the trial court.'" State v.Bell, 87 N.C.App. 626,

634-35, 362 S.E.2d 288, 293 (1987). In order to obtain relief under this

doctrine, defendant must establish that the instruction was error, and that, in

light of the record as a whole, the error had a probable impact on the verdict.

Id. at 635, 362 S.E.2d at 293

      Applicable Legal Principles

      Appellant concedes that our courts have permitted the State to

introduce evidence concerning prior convictions to establish malice in
                                      21


second-degree murder cases involving driving while impaired. Those cases,

however, are distinguishable from the case at bar.

      Our Supreme Court in Rich, supra, upheld the admission of several

prior traffic violations to establish the element of malice. Id. at 400. The

Court found that the State offered this evidence to show depravity of mind

and reckless disregard for the consequences of his actions. Id. The use of

prior convictions in this manner is proper, under 404(b), as long as the

evidence is relevant to any fact other than the defendant’s propensity to

commit the charged offense. Id. at 399. After Rich, this Court upheld the

use of similar prior convictions.

      In Locklear, supra, this Court held that the admission of a four-year-

old conviction for driving while impaired was sufficiently similar to the case

at issue. Id. at 595. In both cases, the defendant was driving while his blood

alcohol level was over the legal limit and he caused a traffic accident. Id. In

Locklear, the State presented detailed evidence about the prior conviction

through the testimony of the arresting officer. Id. This Court has examined

the admission of older convictions as well.

      In Vassey, supra, this Court did not find prejudicial error in admitting

a twenty-three year old driving while impaired conviction, despite the

remoteness in time. Id. at 392. The defendant in Vassey, however, had three
                                      22


later convictions for driving while impaired. Id. While not finding

prejudicial error in the admission of the 1978 conviction, this Court would

not determine if any error occurred. Id. (emphasis added).

      Similarly, in Miller, supra, the defendant, arrested in 1998 for driving

while impaired and second-degree murder from an ensuing accident, had a

1982 conviction for careless and reckless driving, a 1983 conviction for

driving under the influence, and 1985 convictions for driving while impaired

and reckless driving. Id. at 439. This Court upheld the admission of those

prior crimes to establish malice. Id. at 440.

      Again, in Smith, supra, this Court again upheld the admission of prior

driving while impaired convictions in a second-degree murder case. Id. at

498. Those convictions occurred in 1984 and 1990 and the defendant was

arrested for driving while impaired and second-degree murder in 2001. Id.

This Court held that the admission was proper under 404(b) to establish

malice. Id. In this case, however, the trial court erred in admitting evidence

of defendant Goodwin’s prior conviction. Standing alone, it did not

constitute probative evidence of the element of malice. Even if probative,

however, the prejudicial nature of the prior conviction required its exclusion.

      Evidence admissible under Rule 404(b) is still subject to the balancing

test of Rule 403. State v. McCracken, 157 N.C. App. 524, 529, 579 S.E.2d
                                      23


492 (2003). “Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or needless presentation of cumulative evidence.”

N.C.G.S. §8C-1, Rule 403. Evidence of crimes or other bad acts must be

excluded if its only probative value is to show the defendant had the

propensity to commit an offense such as the one charged. State v. Al-

Bayyinah, 356 N.C. 150, 154, 567 S.E.2d 120 (2002). Moreover, evidence

of other bad acts may be excluded if the events are so remote in time to

render the probative value of this evidence outweighed by its prejudicial

nature. McCracken, supra.

      If the improper admission of other bad act evidence creates prejudicial

error, the defendant must receive a new trial. State v. Emery, 91 N.C. App.

24, 34, 370 S.E.2d 456 (1988). In the instant case, the improper admission

was more prejudicial than probative. Sawyer’s testimony seemed

acrimonious and inflammatory. The facts of the two incidents were so

dissimilar as to render the first offense of minimal proof of the second

degree requirement of malice. In the initial offense, the defendant’s accident

with Sawyer was minimal. The officer who investigated it thought it

plausible that the defendant was unaware he had caused any damage to

Sawyer or his vehicle. The fender-bender with Sawyer was generic, the
                                       24


usual following too closely type of situation, not anything like the

September 23, 2004 incident.

      The defense made a timely motion in limine and consistently argued

against the introduction of the evidence. The defense did not object further

to the use of the prior conviction to prove malice. Nevertheless, the

defendant contends that the failure of the trial court to grant the motion in

limine and to exclude the evidence, entitles him to a new trial. Further, the

instructions on the use of the prior conviction to prove malice were plain

error, subject to review and relief by this Court.



                               CONCLUSION

      The facts of the collision were murky, unlike other cases cited herein.

The truck made a noise, then veered to the left. The defendant was either,

looking down, blanked out, or passed out. The testimony was all three. The

truck was never subjected to the same conditions to determine if there was a

problem with the wheels or the axles. There was plenary evidence that the

defendant exhibited no signs of alcohol use or impairment prior to the

collision. The consumption of the beer was shortly before the collision, not

a sufficient amount of time to impair him to an appreciable degree.
                                      25


      Under these facts, it was error to use the prior conviction of driving

while impaired to fill in the gaps in the State’s evidence. Because of the

gaps in the State’s case, the evidence was insufficient to prove malice

beyond a reasonable doubt. The most the State proved was involuntary

manslaughter. The defendant is therefore, entitled to have his conviction of

second degree murder set aside.

      Respectfully submitted, this the 13th day of October, 2006.



                                       ______________________________
                                       Nora Henry Hargrove
                                       Attorney for Defendant/Appellant
                                       616 Market Street
                                       Wilmington, NC 28401
                                       910-254-1004
                                       910-254-0235 (fax)
                                       nhargrove@edwestlaw.com
                                      26




              CERTIFICATE OF FILING AND SERVICE

      I hereby certify that I have this day filed the foregoing Brief by U.S.
Mail, postage prepaid, properly addressed to John H. Connell, Clerk, North
Carolina Court of Appeals, P.O. Box 2779, Raleigh, NC 27602.

       I further certify that I have this day served a copy of the foregoing
Brief upon Hal F. Askins, Special Deputy Attorney General, 9001 Mail
Service Center, Raleigh, NC 27699-9001, by U.S. Mail, postage prepaid,
properly addressed, as by law provided.

      This the 13th day of October, 2006.


                                       ______________________________
                                       Nora Henry Hargrove
                                       Attorney for Defendant/Appellant
                                                                    27


                                    TABLE OF CASES AND AUTHORITIES
Cases
State v. McCracken, 157 N.C. App. 524, 579 S.E.2d 492 (2003). ................................... 24
State v. Locklear, 159 N.C. App. 588, 583 S.E.2d 726 (2003) ......................................... 17
Jackson v. Virginia, 443 U.S. 307, 61 L.Ed.2d 560(1979). .............................................. 16
Ratliff v. Huntly, 5 Ired. 545 (1845). ................................................................................. 21
State v. Al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120 (2002). ........................................... 24
State v. Carroll, 226 N.C. 237, 37 S.E.2d 688(1946). ...................................................... 15
State v. Ellis, 261 N.C. 606, 135 S.E.2d 584(1964).......................................................... 15
State v. Emery, 91 N.C. App. 24, 370 S.E.2d 456 (1988)........................................... 24, 25
State v. Fritsch, 351 N.C. 373, 526 S.E.2d 451, 455 (2000). ........................................... 13
State v. Hairr, 244 N.C. 506, 94 S.E.2d 472(1956). ......................................................... 16
State v. Hough, 229 N.C. 532, 50 S.E.2d 496(1948). ....................................................... 16
State v. Jones, 110 N.C. App. 169, 177 (1993), disc. review denied, 336 N.C. 612 (1994).
  ....................................................................................................................................... 14
State v. Miller, 142 N.C. App. 435, 543 S.E.2d 201 (2001) ............................................. 17
State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000)......................................................... 14
State v. Smith, 157 N.C. App. 493, 581 S.E.2d 448 (2003) .............................................. 17
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164 (1980). ............................................ 14
State v. Vassey, 154 N.C. App. 384, 572 S.E.2d 248 (2002). ........................................... 14
State v.Bell, 87 N.C.App. 626, 362 S.E.2d 288 (1987)..................................................... 21

GENERAL STATUTES

N.C.G.S.§7A-27(b) …………………………………………………………………..                                                                                          2

N.C.G.S.§8C-1, RULE 403, 404……………………………………………………… 22

N.C.G.S.§15A-1442, 1444 ……………………………………………………………. 2

				
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