Opinion
No. COA12–193.
2012-08-21
STATE of North Carolina v. Cody Lee CHAVIS.
Roy Cooper, Attorney General, by Kathleen Mary Barry, Special Deputy Attorney General, for the State. Thigpen and Jenkins, LLP, by Walter I. Jenkins III, for the defendant.
Appeal by defendant from judgment entered 15 September 2011 by Judge James Gregory Bell in Richmond County Superior Court. Heard in the Court of Appeals 23 May 2012. Roy Cooper, Attorney General, by Kathleen Mary Barry, Special Deputy Attorney General, for the State. Thigpen and Jenkins, LLP, by Walter I. Jenkins III, for the defendant.
THIGPEN, Judge.
Cody Lee Chavis (“Defendant”) appeals from a judgment convicting him of second-degree murder. We must determine whether the trial court erred by failing to (I) dismiss the charge of second-degree murder and (II) find three mitigating factors. After a review of the record on appeal, we find no error.
I. Factual and Procedural History
On 4 April 2010, Alicia Thomas was in the passenger seat of a vehicle traveling on the 74 Bypass in Richmond County, North Carolina. As the vehicle passed under the Old Cheraw Highway overpass, Ms. Thomas was struck by a 14.7 pound rock that fell through the windshield into the car. Defendant and his friend, Jeremy Webster, had each thrown a rock from the overpass above the 74 Bypass. Ms. Thomas died as a result of her injuries. On 5 April 2010, Defendant was arrested and charged with first-degree murder.
At Defendant's trial, defense counsel made a motion to dismiss the charge of first-degree murder at the close of the State's evidence. The trial court denied the motion. Defendant did not offer evidence. The jury found Defendant guilty of second-degree murder. During the sentencing hearing, Defendant submitted four mitigating factors to the trial court. The trial court found one mitigating factor, that Defendant's “age, or immaturity, at the time of the commission of the offense significantly reduced” his culpability, and sentenced Defendant in the mitigated range of 120 to 153 months imprisonment. Defendant appeals from this judgment.
II. Failure to Dismiss Charge of Second–Degree Murder
Defendant first contends the trial court erred by failing to dismiss the charge of second-degree murder because there was insufficient evidence of malice. We conclude that Defendant failed to preserve this issue for appellate review. We further conclude that even assuming, arguendo, that the issue was preserved, the evidence was sufficient to submit the case to the jury and to support the jury verdict.
Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure states that “[i]n order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C. R.App. P. 10(a)(1). Additionally, Rule 10(a)(3) provides that “[i]n a criminal case, a defendant may not make insufficiency of the evidence to prove the crime charged the basis of an issue presented on appeal unless a motion to dismiss the action, or for judgment as in case of nonsuit, is made at trial.” N.C. R.App. P. 10(a)(3).
At the close of the State's evidence, Defendant made a motion to dismiss the charge of first-degree murder. Defense counsel explained:
There may have been evidence submitted up to this point that could possibly stand for the position that some other lesser included offenses may be able to be submitted to the jury at this point. But, Your Honor, I would argue stringently that at this point clearly first degree does not go back to them.
Following the State's argument regarding Defendant's motion to dismiss, defense counsel stated to the trial court:
You've heard the evidence. The case law doesn't support a first degree charge. No evidence at all of premeditation or deliberation by anybody involved. And we'd, renew our motion for the Court to dismiss, at a minimum, at this stage, the first degree component. Again, there may be evidence of a lesser included that could possibly be submitted to the jury for their consideration. But I do not believe it would be appropriate under any circumstances for the first degree to go back.
The trial court denied the motion, and Defendant did not present evidence.
While Defendant clearly made a motion to dismiss the charge of first-degree murder, Defendant asks this Court to consider defense counsel's statement “at a minimum” as a motion to dismiss all charges, including the charge of second-degree murder. However, the trial transcript shows that Defendant neither moved to dismiss the charge of second-degree murder nor argued to the trial court that there was insufficient evidence of any of the elements of second-degree murder. Furthermore, defense counsel informed the trial court “there may be evidence of a lesser included that could possibly be submitted to the jury for their consideration.” Thus, Defendant failed to preserve for appellate review the issue of the sufficiency of the evidence of the charge of second-degree murder. SeeN.C. R.App. P. 10(a)(1), N.C. R.App. P. 10(a)(3); see also State v. Neville, 202 N.C.App. 121, 124, 688 S.E.2d 76, 79 (holding that “Defendant neither moved to dismiss the charge of second-degree murder, nor argued to the trial court that there was insufficient evidence of any of the elements of second-degree murder. Thus, Defendant failed to preserve for appellate review the sufficiency of the evidence of the charge.”) (citation omitted), disc. review denied,364 N.C. 130, 696 S.E.2d 696 (2010). Even assuming, arguendo, that the issue was preserved, we conclude the evidence was adequate to submit the charge of second-degree murder to the jury.
Defendant also admits he failed to renew his motion to dismiss at the close of all the evidence, but he contends that N.C. Gen.Stat. § 15A–1227(d) (2011) and N.C. Gen.Stat. § 15A–1446(d)(5) (2011) “allow him to raise this issue on appeal.” We note that our Supreme Court has rejected this argument. See State v. Jordan, 321 N.C. 714, 716–17, 365 S.E.2d 617, 619 (1988) (stating that “[a]lthough N.C.G.S. § 15A–1446(d)(5) allows a defendant to appeal on insufficiency of evidence grounds, notwithstanding the fact that no objection, exception or motion was made at trial, this Court has held that this statute is negated by N.C. R.App. P. 10(b)(3) [now N.C. R.App. P. 10(a)(3) ], which states that a defendant may not assign as error the insufficiency of the evidence to prove the crime charged unless he moves to dismiss the action, or for judgment as in case of nonsuit at trial”) (citation and quotation marks omitted).
“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 (citation and quotation marks omitted), cert. denied, 531 U.S. 890, 121 S.Ct. 213, 148 L.Ed.2d 150 (2000). “In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.” Id. at 378–79,526 S.E.2d at 455 (citations omitted).
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. Coble, 351 N .C. 448, 449, 527 S.E.2d 45, 46 (2000) (citations omitted). The element of malice may be established by at least three different types of proof:
(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 life 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.
Id. at 450–51, 527 S.E.2d at 47 (citation and quotation marks omitted).
In this case, the State's evidence tended to show that it was Defendant's idea to intentionally throw rocks off of the overpass onto the highway. Defendant's friend, Alex Cox, testified that Defendant “[a]sked if me and Jeremy [Webster] would throw rocks off the bridge with him. And I told him no, because ... ‘[w]hat if that was your grandpa, or someone else down there that you loved?’ “ Mr. Cox testified that Defendant and Mr. Webster got rocks from “a ditch off the side on the bypass.” As Mr. Cox walked away from the overpass, he “heard a crash of like a windshield breaking[,]” and Defendant and Mr. Webster both told him, “[r]un. We hit a car.” Terri Childers, a detective with the Richmond County Sheriff's Office, testified that a 14.7 pound rock hit the vehicle Ms. Thomas was traveling in. Additionally, Lieutenant Detective Michael Williams testified that it was “27 feet and 3 inches from the top of the overpass railing to the paved surface on the westbound lane [of Highway 74].”
Viewing this evidence in the light most favorable to the State, see Fritsch, 351 N.C. at 378–79, 526 S.E.2d at 455, we conclude the State presented substantial evidence of malice. By intentionally throwing a large rock off of an overpass onto a highway approximately 27 feet below, Defendant committed an “inherently dangerous act[ ] 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[.]” Coble, 351 N.C. at 450–51, 527 S.E.2d at 47 (citation and quotation marks omitted).
III. Mitigating Factors
Defendant next contends the trial court erred by failing to find three mitigating factors. We disagree.
We note that the trial court found one mitigating factor in this case, and Defendant was sentenced in the mitigated range. However, “a defendant may, pursuant to N.C. Gen.Stat. § 15A–1444(a1), appeal the issue of the sufficiency of the evidence to support his or her sentence even though he or she was sentenced in the mitigagted range.” State v. Mabry, ––– N.C. ––––, ––––, 720 S.E.2d 697, 702 (2011).
N.C. Gen.Stat. § 15A–1340.16 (2011) governs aggravated and mitigated sentences and provides, in part, as follows:
The court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court.... [T] he offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists.
N.C. Gen.Stat. § 15A–1340.16(a). N.C. Gen.Stat. § 15A–1340.16(e) lists twenty-one mitigating factors. “A defendant proves a mitigating factor when the evidence is substantial, uncontradicted, and there is no reason to doubt its credibility.” Mabry, ––– N.C.App. at ––––, 720 S.E.2d at 702 (citation and quotation marks omitted). “[A] trial judge is given wide latitude in determining the existence of mitigating factors, and the trial court's failure to find a mitigating factor is error only when no other reasonable inferences can be drawn from the evidence.” Id. (citation and quotation marks omitted). “An appellate court may reverse a trial court for failing to find a mitigating factor only when the evidence offered in support of that factor is both uncontradicted and manifestly credible.” Id. (citation and quotation marks omitted).
Defendant first contends the trial court failed to find that he “is a minor and has reliable supervision available.” N.C. Gen.Stat. § 15A–1340.16(e)(13). There is sufficient evidence that Defendant was sixteen years old at the time of the offense. Defendant points to his testimony at the sentencing hearing that he was residing with his grandfather at the time of Ms. Thomas' death and that his grandfather was the primary person he answered to as evidence of reliable supervision. However, Defendant also testified at the hearing that his parents were not in his life at the time of Ms. Thomas' death, and, when asked if his grandfather was his primary source of supervision, Defendant responded, “I'm not sure. I don't remember.” Furthermore, Defendant admitted at the hearing that he was charged with breaking and entering three or four months after Ms. Thomas' death. Considering Defendant's testimony as a whole, we cannot conclude that there was substantial or uncontradicted evidence that Defendant “has reliable supervision available.” Accordingly, the trial court did not err in failing to find this mitigating factor.
Defendant next contends the trial court failed to find that he “has entered and is currently involved in or has successfully completed a drug treatment program or an alcohol treatment program subsequent to arrest and prior to trial.” N.C. Gen.Stat. § 15A–1340.16(e)(16). Defendant points to his testimony at the sentencing hearing that he had been attending Carolina Behavioral facility as evidence of this factor. However, Defendant admits in his brief that “this treatment was not specifically designed to be treatment for drug or alcohol abuse[.]” Although Defendant's testimony is evidence that he was receiving counseling, there is no evidence that he entered or completed a drug or alcohol treatment program. Accordingly, the trial court did not err in failing to find this mitigating factor.
Defendant lastly contends the trial court failed to find that he “has a good treatment prognosis, and a workable treatment plan is available.” N.C. Gen.Stat. § 15A–1340. 16(e)(20). Defendant cites his “regular participation in treatment at Carolina Behavioral” as evidence of “his willingness to actively pursue his treatment.” However, Defendant does not cite, and we did not find, any evidence regarding his treatment prognosis or his treatment plan. In fact, Defendant notes in his brief that his counselor was not present in court. Accordingly, the trial court did not err in failing to find this mitigating factor.
NO ERROR. Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).