An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-905
                        NORTH CAROLINA COURT OF APPEALS

                               Filed:    17 June 2014


STATE OF NORTH CAROLINA

       v.                                     Rowan County
                                              Nos. 10 CRS 58246, 11 CRS 3083

KENNETH MYLES LEWIS, JR.



       Appeal by defendant from judgment entered 14 February 2013

by Judge W. Erwin Spainhour             in    Rowan County Superior Court.

Heard in the Court of Appeals 6 February 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       Kathryne E. Hathcock, for the State.

       Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr.,
       for defendant-appellant.


       CALABRIA, Judge.


       Kenneth    Myles    Lewis,    Jr.     (“defendant”)     appeals     from    a

judgment entered upon jury verdicts finding him guilty of second

degree murder and expired registration.              We find no error.

                                 I. Background

       On 6 December 2010, defendant and four of his employees

were   engaged     in   tree    removal      work   in   a   residential      area.
                                     -2-
Defendant left the work site at one point for a few hours. When

defendant returned, employee Douglas Sander (“Sander”) noticed

some pills packaged in plastic on the dashboard of defendant’s

Chevrolet Silverado pick-up truck (“the truck”).                 When the work

was completed, defendant attempted to drive his employees to

another    work   site.     However,      defendant    “kept    going   off   the

road,”    and   almost    hit   several    mailboxes    before    leaving     the

subdivision.      Defendant’s employees convinced defendant to allow

Sander to drive the truck to the next work site.

    After completing work and leaving the second work site,

defendant and Sander argued, and defendant ultimately punched

Sander in the head.         Sander stopped driving, exited the truck,

and walked to a nearby gas station.                 Defendant moved to the

driver’s seat and dropped off the remaining employees before

proceeding west on Highway 150.

    Several minutes later, defendant crossed into the lane of

oncoming    traffic   and    collided     head-on     with   Carolyn    Wilson’s

(“Mrs. Wilson”) Toyota Prius (“the Prius”).                    After Emergency

Medical    Services   personnel    arrived,    they     removed   Mrs.    Wilson

from the severely damaged Prius.             Mrs. Wilson was subsequently

transported by AirCare helicopter to Carolinas Medical Center,

where she later died as a result of the injuries she sustained
                                       -3-
in the collision.

    Paramedics found defendant standing in a field beside the

truck several feet from the            roadway.        Paramedic        Katie Smith

(“Smith”) detected an odor of alcohol from defendant, who was

unsteady on his feet, talking loudly, and cursing.                       When Smith

informed defendant that the other individual involved in the

collision had been seriously injured, defendant stated that he

did not care.         Defendant admitted to having three drinks and

requested cigarettes and food while he was transported to the

hospital.        During Smith’s attempts to treat defendant, he was

belligerent and shouted and cursed at her.

    Trooper        Malcolm    Eason   (“Trooper      Eason”)       of    the     North

Carolina     State    Highway      Patrol    (“NCSHP”)       responded      to    the

collision.        While he spoke to defendant in the back of the

ambulance,       Trooper   Eason    detected    an    odor    of    alcohol,      and

noticed    that    defendant    appeared     disoriented.          Trooper       Eason

stated that defendant’s speech was “very gargled [sic], very

slurred,” and that he formed the opinion that defendant’s mental

and physical faculties were appreciably impaired.                   NCSHP Trooper

David     Deal    (“Trooper    Deal”),      spoke    with    defendant      in    the

hospital.        Defendant told Trooper Deal that “he was going down

the road and someone ran him into a ditch.”                   Trooper Deal also
                                           -4-
detected a “moderate to strong” odor of alcohol on defendant’s

breath,    and    formed      the      opinion   that    defendant’s       mental      and

physical    faculties         were     impaired.       Subsequently,       a    chemical

analysis of defendant’s blood by the North Carolina State Bureau

of Investigation (“the SBI”) revealed the presence of Xanax and

a reported alcohol concentration of .02.                        The SBI calculated

defendant’s      blood    alcohol        concentration      using   the    retrograde

extrapolation      method        and     determined      that    defendant’s          blood

alcohol concentration at the time of the collision was either

.07 or .08.

     Defendant was arrested and charged with felony death by

vehicle, driving while impaired, expired registration, expired

inspection, driving left of center, and second degree murder.

The State later voluntarily dismissed the charge of felony death

by vehicle.

     On    14    February       2013    the   jury   returned      verdicts         finding

defendant       guilty     of     second      degree     murder,     driving          while

impaired, and expired registration.                     The trial court arrested

judgment on the driving while impaired offense, and sentenced

defendant to a minimum of 238 months and a maximum of 295 months

in   the    custody      of     the     North    Carolina       Division       of    Adult

Correction.      Defendant appeals.
                                       -5-
                            II. Driving Record

    Defendant argues that the trial court erred in admitting

evidence of his certified driving history in violation of Rule

404(b).    We disagree.

    “We review de novo the legal conclusion that the evidence

is, or is not, within the coverage of Rule 404(b).                        We then

review the trial court’s Rule 403 determination for abuse of

discretion.”     State v. Beckelheimer, 366 N.C. 127, 130, 726

S.E.2d 156, 159 (2012).            An abuse of discretion occurs only

“where the court’s ruling is manifestly unsupported by reason or

is so arbitrary that it could not have been the result of a

reasoned decision.”        State v. Campbell, 359 N.C. 644, 673, 617

S.E.2d 1, 19 (2005) (citation omitted).

    Rule     404(b)   of    the    North     Carolina      Rules   of     Evidence

provides that

           [e]vidence of other crimes, wrongs, or acts
           is not admissible to prove the character of
           a person in order to show that he acted in
           conformity therewith. It may, however, be
           admissible for other purposes, such as proof
           of motive, opportunity, intent, preparation,
           plan, knowledge, identity, or absence of
           mistake, entrapment or accident.

N.C. Gen. Stat. § 8C-1, Rule 404(b) (2013).                   Rule 403 states

that relevant evidence may be excluded if its probative value is

substantially   outweighed        by   the   danger   of    unfair      prejudice.
                                         -6-
N.C. Gen. Stat. § 8C-1, Rule 403 (2013).                    Our Courts have held

that “prior driving convictions of a defendant are admissible to

show malice, and the showing of malice in a second-degree murder

case is a proper purpose within the meaning of Rule 404(b).”

State v. Westbrook, 175 N.C. App. 128, 132, 623 S.E.2d 73, 76

(2005) (quotations and citations omitted);                   see State v. Rich,

351 N.C. 386, 400, 527 S.E.2d 299, 307 (2000) (prior speeding

convictions admissible to show “defendant knew and acted with a

total disregard of the consequences, which is relevant to show

malice”).

      In    the   instant   case,    although         the    State       specifically

offered defendant’s driving history for the purpose of showing

malice,     the   trial   court    conducted      a    review       of    defendant’s

driving history and allowed the parties to redact entries that

were entered in duplicate or otherwise potentially prejudicial

or confusing.

      Defendant’s       driving    history       included       several       traffic

violations, including       charges for         speeding, reckless driving,

and   hit   and   run   offenses    in    the   months      prior    to    the   fatal

December 2010 collision.          Even with the redacted driving record

that the trial court ultimately admitted, defendant’s knowledge

that he “acted with a total disregard of the consequences” was
                                      -7-
evidence of a high degree of recklessness.                  Rich, 351 N.C. at

400, 527 S.E.2d at 307.          Therefore, the trial court admitted

defendant’s driving history for the proper purpose of showing

malice pursuant to Rule 404(b).             In addition, because the trial

court   allowed    the    redactions         and     considered     defendant’s

violations in the months prior to the December 2010 collision,

the trial court’s decision to admit the evidence based upon the

probative value of the redacted driving record outweighing any

prejudicial effect was not “manifestly unsupported by reason” or

“so   arbitrary   that   it   could    not    have   been   the    result   of   a

reasoned decision.”       Campbell, 359 N.C. at 673, 617 S.E.2d at

19.

      Assuming,   arguendo,     that    the     admission     of    defendant’s

driving record constituted error, any error was harmless.                    The

State presented evidence from several witnesses indicating that

although defendant had notice from his employees that he was too

impaired to drive, he nevertheless proceeded to drive despite

being under the influence of both Xanax and alcohol, and he was

appreciably   impaired    at    the    time    of    the    collision.      When

paramedics told defendant that the other driver in the collision

was severely injured, his response was that he did not care.

Since the State presented substantial evidence of malice besides
                                       -8-
defendant’s driving record, defendant has failed to show that

the admission of his driving record prejudiced his defense.

                            III. Jury Instruction

      Defendant’s next argument is that the trial court committed

plain error by instructing the jury on second degree murder and

involuntary manslaughter without sufficiently defining culpable

negligence.     Specifically, defendant argues that the trial court

failed to define the phrase “culpable negligence” by drawing a

sufficient    distinction      between       the   degrees       of   recklessness

required for each charge.          We disagree.

      As an initial matter, since defendant did not object or

request   additional    jury       instructions       on   the    definitions   of

recklessness or culpable negligence, our review is limited to

determining whether there was plain error.                   Plain error arises

when the error is “‘so basic, so prejudicial, so lacking in its

elements that justice cannot have been done[.]’”                  State v. Odom,

307   N.C.    655,   660,    300    S.E.2d     375,    378    (1983)    (citation

omitted).     “Under the plain error rule, defendant must convince

this Court not only that there was error, but that absent the

error, the jury probably would have reached a different result.”

State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).
                                               -9-
       In State v. Rich, the defendant also drove impaired and was

on trial for second degree murder.                     The trial court explained to

the jury that if the defendant’s actions were so “inherently

dangerous      to    human    life       [and    were]    done    so     recklessly        and

wantonly as to manifest a mind utterly without regard for human

life and social duty and deliberately bent on mischief,” then

the defendant acted with malice.                     351 N.C. at 396, 527 S.E.2d at

304.    The defendant appealed the second degree murder judgment.

On appeal, the defendant argued, inter alia, that because the

trial court erroneously instructed the jury on malice, the trial

court    relieved      the       State    of    its     burden    to     prove    all       the

essential elements of second degree murder.                       Id. at 386-392, 527

S.E.2d at 299-303.           This Court affirmed the trial court, and on

discretionary review the Supreme Court affirmed the holding of

this Court.         Id. at 389, 527 S.E.2d at 300.                     The Supreme Court

ultimately held that the jury instructions correctly conveyed

the    level   of    recklessness          sufficient       for    the    jury        to   find

defendant guilty of              second degree murder.                 In addition, the

Supreme     Court         held     that        “[b]ecause        the     trial        court’s

instructions,        in      their       entirety,       conveyed        the     level      of

recklessness        required       for    second-degree       murder,          [the    Court]

cannot conclude that the jury could have confused such a high
                             -10-
degree of recklessness with mere culpable negligence.”   Id. at

394, 527 S.E.2d at 303-04.

    In the instant case, the trial court instructed the jury,

in pertinent part:

         The defendant has been accused of second-
         degree murder.      Under the law and the
         evidence in this case, it is your duty to
         return   one  of   the   following verdicts:
         guilty of second-degree murder or guilty of
         involuntary manslaughter or not guilty.
         Second-degree murder is the unlawful killing
         of a human being by an act done in a
         culpably negligent way.

         Now, for you to find the defendant guilty of
         second-degree murder . . . the [S]tate must
         prove seven things beyond a reasonable
         doubt.

         . . .

         Sixth, that the defendant acted unlawfully
         and with malice.    Malice is a necessary
         element which distinguishes second-degree
         murder from manslaughter.    Malice arises
         when an act, which is inherently dangerous
         to human life, is intentionally done so
         recklessly and wantonly as to manifest a
         mind utterly without regard for human life
         and social duty and deliberately bent on
         mischief.

         . . .

         If you do not find the defendant guilty of
         second-degree murder, you must consider
         whether   the   defendant   is   guilty   of
         involuntary   manslaughter.      Involuntary
         manslaughter is the unlawful, unintentional
         killing of a human being by an act done in a
                    -11-
culpably negligent way. For you to find the
defendant      guilty     of      involuntary
manslaughter, the [S]tate must prove two
things beyond a reasonable doubt.

First, that in operating a motor vehicle,
the defendant drove while impaired, as I
previously instructed you.

And second, that the defendant’s    culpable
negligence proximately caused the   victim’s
death.

If you find from the evidence beyond a
reasonable doubt that on or about the
alleged date the defendant drove a vehicle
on a highway, and that when the defendant
did   so,   the  defendant   was  under   the
influence of an impairing substance or
substances, and that the defendant acted
intentionally and so recklessly and wantonly
as to manifest a mind utterly without regard
for   human   life  and    social  duty   and
deliberately bent on mischief and that this
conduct constituted malice, and that such
conduct proximately caused the death of the
victim, it would be your duty to return a
verdict of guilty of second-degree murder.

If you do not so find, or have a reasonable
doubt as to one or more of these things, you
will not return a verdict of guilty of
second-degree    murder,   you   must   then
determine whether the defendant is guilty of
involuntary manslaughter.

And so, if you find from the evidence beyond
a reasonable doubt that on or about the
alleged date, the defendant drove a motor
vehicle on a highway while impaired and
without malice, but in a culpably negligent
manner, violated the laws of this state
governing the operation of motor vehicles,
and that this impaired driving and culpably
                                    -12-
            negligent conduct proximately caused the
            death of the victim, it would be your duty
            to return a verdict of guilty of involuntary
            manslaughter.

            If you do not so find or have a reasonable
            doubt as to one or more of these things, you
            will return a verdict of not guilty.

      The trial court’s instructions were taken directly from the

North Carolina Pattern Jury Instructions, and the definition of

malice mirrors, in part, the language of the jury instructions

in Rich.       N.C.P.I. Crim. 206.32; Rich, 351 N.C. at 391, 527

S.E.2d at 301.       A finding of malice was explicitly limited to

the   second    degree   murder   instruction,       while    the     element   of

culpable negligence was limited to the voluntary manslaughter

instruction.      The trial court specifically instructed the jury

regarding      involuntary   manslaughter     that    it     should    return    a

guilty verdict if it found that defendant drove a motor vehicle

on a highway while impaired in a culpably negligent way and

without    malice.       Furthermore,   the    jury    did     not    request    a

definition of culpable negligence during deliberations.                    Since

the trial court’s instructions to the jury explained the type of

conduct to find defendant guilty of either second degree murder

or involuntary manslaughter were clear and correct, the jury

could not have confused such a high degree of recklessness or

malice with mere culpable negligence.            Rich, 351 N.C. at 394,
                                           -13-
527    S.E.2d     at    304.      The     jury    ultimately     returned      verdicts

finding    defendant       guilty    of    second    degree     murder,      indicating

that the jurors found defendant’s conduct displayed evidence of

malice beyond a reasonable doubt.

       Assuming,       arguendo,     that    the     trial     court’s    failure   to

specifically define            culpable negligence did constitute error,

any error was harmless because the State presented sufficient

evidence to show malice.                  The State      presented evidence that

after defendant ingested Xanax and drank alcohol, he attempted

to drive his employees home from a job site.                     The employees were

so    concerned    about       defendant’s       condition     that   they    convinced

defendant to allow Sander to drive instead.                     Despite notice from

his employees that he was too impaired to drive, defendant left

the gas station and proceeded west down Highway 150, where he

crossed into the eastbound lane and collided with Mrs. Wilson’s

Prius.    When paramedics told defendant he had killed or severely

injured Mrs. Wilson, he stated that he did not care.                         Therefore,

the State presented sufficient evidence that defendant chose to

drive while impaired, regardless of the consequences.                        The trial

court’s    instructions         to   the    jury    on   the    difference      between

involuntary manslaughter and second degree murder, without the

jury    asking    for    any    clarification       regarding     the    instruction,
                                        -14-
shows that defendant fails to demonstrate that the jury would

have returned a different verdict even with a definition of

culpable negligence.

                   IV. Ineffective Assistance of Counsel

       Defendant finally argues that his trial counsel’s failure

to request a limiting instruction concerning defendant’s driving

history     constituted      ineffective       assistance    of   counsel.      To

prevail on a claim of ineffective assistance of counsel, defendant

must    demonstrate      that    his    trial    counsel’s    performance     was

“deficient,” and that “the deficient performance prejudiced the

defense.”     Strickland v. Washington, 466 U.S. 668, 687, 80 L.

Ed. 2d 674, 693 (1984).

       In the instant case, defendant’s trial counsel objected to

the    admission    of    defendant’s      driving   history,     but   did   not

request a limiting instruction regarding its admission.                 Because

the    driving     history      was    admissible,   defendant     cannot     show

prejudice from its admission.             In addition, the State presented

sufficient evidence to support the jury’s finding of malice.                    It

is unlikely that any error in failing to request a limiting

instruction regarding defendant’s driving record would have led

the jury to return a different verdict.

                                  V. Conclusion
                                          -15-
       The State offered defendant’s driving record specifically

for    the   purpose      of    showing   malice,    which     is   a    permissible

purpose pursuant to North Carolina case law.                    In addition, the

State presented evidence that defendant was under the impairing

influence of both Xanax and alcohol when he collided with Mrs.

Wilson’s Prius, that he was belligerent with emergency services

and hospital personnel, and that he was not concerned about the

other driver’s welfare.               Where the verdict indicates that the

jury    found    evidence        of   malice     beyond    a   reasonable       doubt,

defendant fails to show that the jury would have returned a

different       verdict        even   with     the   definition         of    culpable

negligence.        Finally,       trial   counsel’s       failure   to       request   a

limiting instruction did not prejudice defendant, therefore his

ineffective assistance of counsel claim is without merit.                              We

hold that there was no error in defendant’s trial.

       No error.

       Judges STROUD and DAVIS concur.

       Report per Rule 30(e).
