An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                                 NO. COA13-1366
                         NORTH CAROLINA COURT OF APPEALS

                                  Filed: 1 July 2014


STATE OF NORTH CAROLINA

      v.                                       Cumberland County
                                               No. 09 CRS 058449
MARLON CURTIS MCKENZIE
     Defendant.


      Appeal by Defendant from a judgment entered on or about 21

November    2012    by    Judge    Claire    V.   Hill   in   Cumberland    County

Superior Court.       Heard in the Court of Appeals on 10 April 2014.


      Attorney General Roy A. Cooper, III, by Assistant Attorney
      General Brandon L. Truman, for the State.

      William D. Spence, for Defendant-appellant.


      DILLON, Judge.


      Marlon     Curtis     McKenzie        (“Defendant”)     appeals      from    a

conviction for second-degree murder.              For the following reasons,

we find no error in Defendant’s trial.

                                   I. Background

      On 26 July 2010, Defendant was indicted for one count of

first-degree murder.          Defendant was tried at the 13 November

2012 Criminal Session of Cumberland County Superior Court.                        The
                                            -2-
State’s evidence tended to show that in the early morning hours

of 14 June 2009, Eric Edmonds, Nicholas Hicks, Shonta Parson,

Defendant, and Defendant’s brother, Lestroy Lyte, were drinking

beer and smoking marijuana in a shed located in the back of

Defendant’s      mother’s       house   in    Fayetteville.        Defendant,        Mr.

Edmonds, and Mr. Hicks lived in the same neighborhood.

       Around    2   a.m.,      Mr.   Edmonds,     Mr.   Hicks,   and   Ms.    Parson

decided to leave the shed and return to Mr. Edmonds’ residence

to cook some food.              Upon arriving at his house, Mr. Edmonds

discovered that his house key was missing so he returned to the

shed    and   got    in   a    non-physical       confrontation    with     Defendant

about   the     missing       key.    Mr.    Edmonds     told   Defendant     that   he

“better find” his keys, and threatened to hurt him physically.

Mr. Edmonds then angrily threw a bottle on the ground and broke

it. Mr. Edmonds, Mr. Hicks, and Mr. Lyte then walked back to Mr.

Edmonds’ house to look for the key, taking Defendant’s key ring

with him by accident.            Defendant and Ms. Parson then went inside

Defendant’s house.

       A short time later, Ms. Parsons received a call on her

speaker phone from Mr. Lyte stating that Mr. Edmonds had found

his house key on Defendant’s key ring.                   Defendant heard this and

then stated, “[h]e found out.                He found out.        I’m gonna shoot
                                        -3-
him.     I’m gonna shoot him.”       He then took a handgun out of his

dresser and placed it underneath his shirt.                Defendant and Ms.

Parson     then    drove    to    Mr.     Edmonds’      residence,     arriving

approximately 10 to 15 minutes after the initial confrontation

between Defendant and Mr. Edmonds.

       Upon     Defendant   arriving      at    his    house,    Mr.    Edmonds

approached Defendant’s car.          Mr. Edmonds was not armed with a

weapon or holding any object in his hands.                 Mr. Edmonds asked

Defendant in a “normal” tone of voice “[j]ust tell me how my

keys got on your key ring.”             Defendant answered, “It must have

slipped    on   there.”     In   response,     Mr.    Edmonds   and   Mr.   Hicks

laughed, not threatening Defendant in any way.                  Defendant then

started yelling for his brother Mr. Lyte to get in the car, and

acting nervous, shaking and appearing scared.

       When Mr. Lyte got to the car, Defendant fired the handgun

from inside the car at Mr. Edmonds, hitting him four times--once

in his right upper abdomen, once in his right cheek, once in his

right elbow, and once in his right upper posterior chest or

back.     Mr. Edmonds died as a result of his gunshot wounds.                  At

the close of the State’s evidence, Defendant moved to dismiss

the charges, and his motion was denied.
                                         -4-
      Defendant did not testify at trial but he presented the

following evidence:         Defendant’s brother Mr. Lyte testified that

on the night in question Mr. Edmonds, Mr. Hicks, Ms. Parson, Mr.

Lyte,      and   Defendant    had    been      drinking    beer   and    smoking

marijuana.       Mr. Lyte said Defendant and Mr. Edmonds got in a

confrontation about Mr. Edmonds’ missing key and Mr. Lyte made

several threats concerning Defendant.             Specifically, Mr. Edmonds

said he could “have one of us missing,” and could “have our

house shot up.”       Mr. Lyte also testified that at Mr. Edmonds’

house, Mr. Edmonds was not armed, was not holding any object,

and never made physical contact with Defendant.                Mr. Lyte stated

that while he was getting in Defendant’s car, he heard gunshots

but did not see Defendant shoot Mr. Edmonds.

      On    21   November    2012,   a   jury   found     Defendant   guilty   of

second-degree murder.         The trial court sentenced Defendant to an

active term of 157 to 198 months of imprisonment.                       Defendant

gave written notice of appeal from his conviction on 28 November

2012.

                                 II. Analysis

      Defendant argues on appeal that the trial court erred in

(1)     denying his motion to dismiss for insufficiency of the
                                     -5-
evidence; and (2) restricting his right to cross-examine the

State’s witness in violation of his constitutional rights.

                     A.   Sufficiency of the Evidence

    Defendant contends the trial court erred in denying his

motion to dismiss for sufficiency of the evidence because the

evidence showed no malice for second-degree murder, but at most

only supported a conviction for manslaughter because the facts

showed that the killing was committed in the heat of passion

under   adequate     provocation.          Defendant   contends     that    the

evidence showed there was adequate provocation by the victim’s

death   threats    towards    him,   his   brother,    and   his   family   and

Defendant    acted    under    influence     of   passion     rendering     him

“incapable of cool reflection[.]”

    The standard of review for a trial court’s denial of a

defendant’s motion to dismiss for insufficiency of the evidence

is well established:

            A defendant’s motion to dismiss should be
            denied if there is substantial evidence of:
            (1) each essential element of the offense
            charged, and (2) of defendant’s being the
            perpetrator   of    the   charged  offense.
            Substantial evidence is relevant evidence
            that a reasonable mind might accept as
            adequate to support a conclusion.

State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148

(2010) (citations and quotation marks omitted).                Additionally,
                                             -6-
“[t]he    Court      must    consider       the       evidence      in    the     light   most

favorable      to    the    State    and     the      State    is    entitled        to   every

reasonable          inference       to     be      drawn      from        that       evidence.

Contradictions and discrepancies do not warrant dismissal of the

case but are for the jury to resolve.”                        State v. Phillpott, ___

N.C.    App.    ___,       ___,   713      S.E.2d      202,    209       (2011)      (citation

omitted), disc. review denied, 365 N.C. 544, 720 S.E.2d 393

(2012).     Also, we are not concerned about issues regarding the

weight of the evidence.                  State v. Fritsch, 351 N.C. 373, 379,

526 S.E.2d 451, 455-56, cert denied, 531 U.S. 890, 148 L. Ed. 2d

150 (2000) (citation omitted).

       Voluntary manslaughter is the unlawful killing of another

human     being      without      malice        and    without       premeditation          and

deliberation         in    the    heat     of     passion      produced         by   adequate

provocation.         State v. Tidwell, 323 N.C. 668, 673, 374 S.E.2d

577, 580 (1989) (citation omitted).1



1
     Voluntary manslaughter can also be established by a showing
of imperfect self-defense.   See State v. Lyons, 340 N.C. 646,
663, 459 S.E.2d 770, 779 (1995). But, here, Defendant’s theory
at trial was that there was sufficient evidence to establish
voluntary manslaughter, not second-degree murder, based on
evidence that he shot the victim in the heat of passion with
adequate provocation, not pursuant to imperfect self-defense.
The trial court gave only an instruction as to voluntary
manslaughter based on a heat of passion theory, as requested by
Defendant. Defendant raises no argument on appeal regarding the
jury instructions.
                                    -7-
            A killing is without malice if the defendant
            acts in the heat of passion upon adequate
            provocation so that the defendant’s state of
            mind overcomes his ability to reason and to
            control his actions. State v. Montague, 298
            N.C. 752, 259 S.E.2d 899 (1979); State v.
            Best, 79 N.C. App. 734, 340 S.E.2d 524
            (1986). The act of provocation must be such,
            however,   that  it   “would   naturally  and
            reasonably   arouse   the   passions   of  an
            ordinary man beyond his power of control.”
            State v. McLawhorn, 270 N.C. 622, 628, 155
            S.E.2d 198, 203 (1967).

State v. Mathis, 105 N.C. App. 402, 406, 413 S.E.2d 301, 304,

disc.   review   denied,    331   N.C.    289,   417   S.E.2d    259   (1992).

“Voluntary manslaughter is a lesser included offense of second-

degree murder[.]”       State v. Owens, 65 N.C. App. 107, 109, 308

S.E.2d 494, 497 (1983) (citation omitted).

      In    contrast,   second-degree      murder      is    “[t]he    unlawful

killing of a human being with malice but without premeditation

and deliberation[.]”       State v. Bedford, 208 N.C. App. 414, 417,

702   S.E.2d   522,   526-27   (2010)    (citation     and   quotation   marks

omitted).

            What constitutes malice varies depending
            upon the facts of each case. Our courts have
            specifically  recognized   three  kinds   of
            malice:

            One connotes a positive concept of express
            hatred, ill-will or spite, sometimes called
            actual,   express  or   particular  malice.
            Another kind of malice arises when an act
            which is inherently dangerous to human life
                                   -8-
            is done so recklessly and wantonly as to
            manifest a mind utterly without regard for
            human life and social duty and deliberately
            bent on mischief. Both these kinds of malice
            would support a conviction of murder in the
            second degree. There is, however, a third
            kind of malice which is defined as nothing
            more than that condition of mind which
            prompts a person to take the life of another
            intentionally without just cause, excuse, or
            justification.

State v. Grice, 131 N.C. App. 48, 53, 505 S.E.2d 166, 169 (1998)

(citations and quotation marks omitted), disc. rev. denied, 350

N.C. 102, 533 S.E.2d 473 (1999).          This third type of malice can

be inferred from the intentional inflection of a wound with a

deadly weapon that results in death.             State v. Reynolds, 307

N.C. 184, 191, 297 S.E.2d 532, 536 (1982); State v. Deans, 71

N.C. App. 227, 232, 321 S.E.2d 579, 582 (1984) (stating that

malice is presumed when “an individual intentionally takes the

life of another with a deadly weapon[.]”), disc. rev. denied,

313 N.C. 332, 329 S.E.2d 386 (1985).            Therefore, this offense

can   be   established   by   showing    a   voluntary   unlawful   killing

committed with a deadly weapon.          State v. Mercer, 275 N.C. 108,

113, 165 S.E.2d 328, 332 (1975), overruled on other grounds by

State v. Caddell, 287 N.C. 266, 290, 215 S.E.2d 348, 363 (1975).

Second-degree murder “may be reduced to voluntary manslaughter

upon a showing that defendant killed his victim in the heat of
                                           -9-
passion caused by provocation adequate to negate the element of

malice.”     State v. Best, 79 N.C. App. 734, 736-37, 340 S.E.2d

524, 526 (1986) (citation omitted), overruled on other grounds

by State v. Maynor, 331 N.C. 695, 700, 417 S.E.2d 453, 456

(1992).

    Viewing the evidence in the light most favorable to the

State,      there     was         sufficient          evidence      that        Defendant

intentionally shot and killed Mr. Edmonds with a handgun to

establish malice for second-degree murder.                       The trial court did

not err by failing to dismiss the case for insufficiency of

evidence.      We    are     unpersuaded         by    Defendant’s       argument    that

evidence     only         pointed     to     a        conviction     for        voluntary

manslaughter, as his argument suggests that we view the evidence

in the light most favorable to him rather than the State.                             See

Phillpott,     ___        N.C.    App.     at     ___,     713     S.E.2d       at   209.

Specifically, while testimony was presented that Mr. Edmonds did

threaten bodily harm to Defendant during their confrontation,

Defendant did not shoot Mr. Edmonds at this time.                           Rather the

evidence showed that there were 10 to 15 minutes between that

confrontation       and    when     Defendant     drove    over     to    Mr.   Edmonds’

house and shot him, giving Defendant a cooling-off time between

the confrontation and the shooting and showing that the killing
                                              -10-
was not done in the “heat of passion.”                          The jury weighed this

evidence in convicting Defendant of second-degree murder, and we

will not reweigh it on appeal.                    Fritsch, 351 N.C. at 379, 526

S.E.2d at 455-56.           Accordingly, we find no merit in Defendant’s

arguments and they are overruled.

            B. Cross-examination of the State’s witnesses

       Defendant     next    contends          that     his    right   to    confront    the

witnesses against him under Article I, Section 23 of the North

Carolina    Constitution          and    the     Sixth     Amendment     of    the    United

States Constitution was violated when the trial court refused

his    cross-examination          of    (1)    the      State’s   witness,      Ms.    Deana

Smith, about the victim’s conviction listed on the back of a

fingerprint      card;      (2)    the     State’s        witness,     Detective       Jason

Sondergaard about Defendant’s reactions to being arrested which

were    documented     in    his        police    report;       and    (3)    the    State’s

witness, Ms. Shonta Parson, about a prior conviction involving

her    passing   a   counterfeit          check.          Defendant      concludes      that

because of these infringements on his rights, he is entitled to

a new trial.

       We   note      that         Defendant          failed      to        raise     either

constitutional argument at trial.                     We have stated that “[i]t is

well   settled     that     this       Court     will    not    review      constitutional
                                        -11-
questions that ‘[were] not raised or passed upon in the trial

court.’”        State   v.   Carpenter,      155   N.C.    App.   35,    41-42,    573

S.E.2d 668, 673 (2002), (quoting State v. Elam, 302 N.C. 157,

160-61, 273 S.E.2d 661, 664 (1981)), disc. review denied, 356

N.C. 681, 577 S.E.2d 896 (2003); N.C.R. App. P. 10(a)(1) (“In

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[.]”).                Defendant, however, requests,

in the alternative, that “to the extent” Defendant did not base

his challenges on these constitutional arguments, we review his

arguments pursuant to N.C.R. App. P. 2 “to prevent manifest

injustice[.]”

       Pursuant to Rule 2 of the North Carolina Rules of Appellate

Procedure, we may exercise our discretion to review Defendant’s

argument in order to “prevent manifest injustice to a party[.]”

State v. Mobley, 200 N.C. App. 570, 573, 684 S.E.2d 508, 510

(2009) (citation omitted), disc. review denied, 363 N.C. 809,

692    S.E.2d    393    (2010).        Our   discretion        under    Rule   2   “is

exercised ‘cautiously’ and only in exceptional circumstances [to

consider] significant issues of importance.                       However, it has

been    exercised       on   several    occasions         to   review    issues     of
                                             -12-
constitutional importance.”                    Id. (citation omitted).               In the

case     at     hand       “[t]here      are     no     exceptional        circumstances,

significant         issues,        or   manifest        injustices      that     would    be

corrected by our review of the merits of” Defendant’s arguments.

Holland v. Heavner, 164 N.C. App. 218, 222, 595 S.E.2d 224, 228

(2004).       We are cognizant of our discretion in this matter, and

in   light     of    the    consistent,         unchallenged      evidence      concerning

Defendant’s role in Mr. Edmonds’ death, including the testimony

of multiple witnesses and evidence presented by the State and

the defense, we decline to invoke Rule 2 and will not address

Defendant’s unpreserved constitutional arguments.                             See State v.

Davis,    202       N.C.    App.    490,     497,     688   S.E.2d     829,    834   (2010)

(“While this Court may pass upon constitutional questions not

properly      raised       at    the    trial    level      in   the   exercise      of   its

supervisory jurisdiction ‘[t]o prevent manifest injustice [,]’

N.C.R.     App.      P.     2,     because      there    was     copious      unchallenged

evidence before the jury that the substance at issue was cocaine

. . . we decline to invoke Rule 2 in this case.”).                             Defendant’s

constitutional arguments are dismissed.

       For the foregoing reasons, we find no error in Defendant’s

trial.

       NO ERROR.
                              -13-
Judge STROUD and Judge HUNTER, JR. concur.

Report Per Rule 30(e).
