              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA19-552

                                Filed: 3 March 2020

Orange County, Nos. 16 CRS 711684, 711720, 711721; 17 CRS 78, 79

STATE OF NORTH CAROLINA

             v.

MICHAEL ADDIB NAZZAL, Defendant.


      Appeal by defendant from judgments entered 22 February 2018 by Judge

Rebecca W. Holt in Orange County Superior Court. Heard in the Court of Appeals

5 February 2020.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E.
      Hathcock, for the State.

      M. Gordon Widenhouse, Jr., for defendant.


      ARROWOOD, Judge.


      Michael Addib Nazzal (“defendant”) appeals from judgments sentencing him

upon his convictions for second-degree murder, driving while impaired (“DWI”),

felony death by motor vehicle, and failure to maintain lane control. For the following

reasons, we reverse defendant’s convictions for DWI and felony death by motor

vehicle. We otherwise hold that defendant’s trial was free of prejudicial error.

                                 I.       Background
                                  STATE V. NAZZAL

                                  Opinion of the Court



      This case arises from an automobile collision caused by defendant on Interstate

40 West (“I-40 West”) resulting in the death of Francisco Nolasco (“Mr. Nolasco”). As

a result of this collision, defendant was indicted on 15 May 2017 for felony hit and

run causing death, driving while license revoked (“DWLR”), DWLR for impaired

driving, displaying revoked tags, operating a vehicle without insurance, failing to

maintain lane control, DWI, felony death by motor vehicle, and second-degree

murder. Defendant’s case came on for trial before the Honorable Rebecca W. Holt at

the 12 February 2018 Criminal Session of Orange County Superior Court.            The

evidence at trial tended to show the following.

      Just before 2:00 a.m. on 17 December 2016, Mr. Nolasco’s pickup truck was

involved in a single-vehicle accident requiring assistance on I-40 West in Orange

County. Road conditions that night were wet and icy. Mr. Nolasco called his friend

and tow truck driver Omar Castillo (“Mr. Castillo”) for assistance, and he arrived

shortly thereafter.   Upon realizing that Mr. Nolasco’s pickup was precariously

positioned partially in the right lane of traffic, Mr. Castillo immediately set about

removing the vehicle from the road.

      Mr. Castillo testified that he then positioned his tow truck in front of Mr.

Nolasco’s pickup, partially in the right lane of traffic. For unknown reasons, the tow

truck’s cable system failed to lift the pickup onto its rollback. At this time, Mr.

Nolasco was standing on the shoulder of the road, with the tow truck between himself



                                         -2-
                                  STATE V. NAZZAL

                                  Opinion of the Court



and the westbound lanes of traffic. Mr. Castillo began walking around the front of

the tow truck to address the cable system malfunction. As he was in front of the tow

truck, he heard screeching tires, dove over the guardrail, and observed a black Honda

crash into the guardrail and hurdle forward, hitting the pickup and tow truck before

proceeding down the shoulder between the tow truck and guardrail, hitting Mr.

Nolasco and knocking him into the road.

      Mr. Castillo testified that he went into the road to assist Mr. Nolasco and found

him unconscious. He tried to signal oncoming cars but they did not see him, and he

had to leave Mr. Nolasco in the road to preserve his own safety. Then another car

traveling about forty seconds behind defendant ran over Mr. Nolasco. Based on his

observation of the collision’s intensity and Mr. Nolasco’s unconscious body in the

roadway, Mr. Castillo opined that defendant’s black Honda killed him before the

second car arrived. He testified that the second car stopped immediately after hitting

Mr. Nolasco, but defendant only stopped briefly and then continued.

      Austin Phillips (“Mr. Phillips”), the driver of the second car, testified that he

saw the tow truck’s flashing lights and switched from the right to left lane of

westbound traffic in order to “avoid any contact with the person that may be getting

out of the tow truck[.]” After realizing he had run over a human body, Mr. Phillips

immediately pulled over and called 911 for assistance.




                                         -3-
                                  STATE V. NAZZAL

                                  Opinion of the Court



      Trooper Kyle Underwood testified that he, Trooper Matthew Morrison, and one

other highway patrolman arrived at the scene at 1:54 a.m. and began taking

measurements, recording witness statements, and investigating the wreckage and

other evidence at the scene. Trooper Underwood noted damage to the shoulder’s

guardrail at a position prior to the tow truck, damage to Mr. Nolasco’s pickup, and a

missing passenger side mirror on the tow truck. He discovered the front bumper of a

black Honda 99 feet away.

      After searching the serial number on the bumper, the troopers discovered that

it belonged to a 2010 Honda Accord registered to defendant’s name at a Greensboro

address. They also determined that defendant’s tags and registration were currently

revoked due to a failure to carry insurance and his driver’s license was currently

suspended for a previous DWI conviction. The troopers then contacted the Guilford

County Sheriff’s Office for assistance locating defendant.

      Sergeant James Meacham and Master Corporal Todd Riddle of the Guilford

County Sheriff’s Office arrived at defendant’s Greensboro address just after 4:00 a.m.

Thirty minutes later, defendant arrived in a black Honda Accord with significant

front-end damage.    This damage included deployed airbags, no front bumper, a

shattered windshield, damage to the hood, missing headlights, and general body

damage on the front of the car. Sergeant Meacham called Trooper Morrison and

informed him that they had detained defendant at his residence. In his conversation



                                         -4-
                                   STATE V. NAZZAL

                                  Opinion of the Court



with the deputies, defendant admitted that he had been involved in a collision but

said “it wasn’t a very bad one[,]” so he drove away. Sergeant Meacham testified that

“[defendant’s] actions indicated just a very carefreeness [sic] attitude about what had

transpired[.]” The two deputies were relieved by deputies on the day shift at around

6:00 a.m.

      Troopers Underwood and Morrison obtained an arrest warrant for felony hit

and run and arrived at defendant’s residence in Greensboro at around 7:00 a.m.

Trooper Morrison observed that defendant’s car was covered in droplets of ice and

appeared to be much cleaner than his own patrol vehicle covered in road salt, despite

both cars making a similar drive from Orange County to Greensboro in identical

weather conditions. Defendant was arrested and transported by the troopers to the

Orange County Sheriff’s Office for booking. Two cell phones found on defendant’s

person at the time of his arrest were seized.

      Based upon his observations of defendant while they were en route to the

sheriff’s office, Trooper Underwood testified that he formed an opinion that defendant

was appreciably impaired to the extent that it was unsafe for him to drive an

automobile at the time of the collision five hours earlier. In addition to the mere

nature of the collision site and his flight therefrom, Trooper Underwood based this

opinion on the following evidence. When he observed defendant at approximately

7:00 a.m., defendant had red, glassy eyes, was unsteady on his feet, and at times was



                                         -5-
                                   STATE V. NAZZAL

                                   Opinion of the Court



“speaking out of his head” and “rambling, going on with half sentences, speaking [in

a way] that just did not make sense.” Defendant also made contradictory statements

regarding his location at the time of the collision, seeming confused about where it

occurred.   Additionally, defendant fell asleep on the ride to the sheriff’s office.

Trooper Underwood found this very strange because defendant had just been told the

jarring news that he had killed a man. He stopped his patrol vehicle and had Trooper

Morrison shake defendant awake, upon which defendant stated that he was fine. No

other testifying officer formed the opinion that defendant was impaired at the time

of the collision. Nor did any investigating officer ever subject defendant to any of the

numerous field tests for impairment utilized by law enforcement.

      A later search of defendant’s phones revealed text messages tending to suggest

he had been attempting to buy crack cocaine earlier in the day before the collision.

The search also led the State to two testifying witnesses. Tiffany Haynes (“Ms.

Haynes”) testified that defendant called her for a “date” the day of the collision,

stating that he would drive from Cary to her motel room in Greensboro that night.

Because they had done the same thing on a previous “date” three weeks prior, Ms.

Haynes believed that defendant intended to smoke crack with her, engage her in

sexual intercourse, and then smoke marijuana. Robert Tate testified that defendant

had bought an ounce of high-grade marijuana from him the day before the collision.




                                          -6-
                                   STATE V. NAZZAL

                                   Opinion of the Court



      Defendant moved to dismiss the charges against him at the close of the State’s

evidence. The trial court denied the motions. The jury returned verdicts finding

defendant guilty of DWLR, DWLR for impaired driving, displaying revoked tags,

operating a vehicle without insurance, failing to maintain lane control, DWI,

felonious hit and run causing injury, felony death by motor vehicle, and second-degree

murder. The trial court arrested judgment on defendant’s convictions for DWI and

felony death by motor vehicle.     The court consolidated judgment on defendant’s

remaining convictions and sentenced him to 175 to 222 months’ imprisonment.

Defendant timely appealed.

                                   II.    Discussion

      On appeal, defendant argues that the trial court erred by: (a) denying his

motions to dismiss the charges of second-degree murder, DWI, felony death by motor

vehicle, and failure to maintain lane control; (b) denying his motion to suppress

evidence obtained from a search of his cell phones; (c) admitting prejudicial testimony

of prior drug use; and (d) refusing to instruct the jury on the defense of accident. For

the foregoing reasons, we reverse defendant’s convictions for DWI and felony death

by vehicle and otherwise hold his trial was free of prejudicial error.

                              A.     Motions to Dismiss

      Defendant argues that substantial evidence did not support his convictions for

DWI, felony death by vehicle, and failure to maintain lane control, and thus the trial



                                          -7-
                                   STATE V. NAZZAL

                                   Opinion of the Court



court erred in denying his motion to dismiss those charges. He further contends that

the trial court erred in denying his motion to dismiss his second-degree murder

charge, because the jury was instructed that defendant would need to be found guilty

of either DWI or failure to maintain lane control to be guilty of second-degree murder.

        We hold that the trial court erred in denying defendant’s motion to dismiss the

DWI and felony death by vehicle charges due to insufficient evidence of impairment.

The trial court properly submitted the failure to maintain lane control charge to the

jury.    Substantial evidence supported the element of malice in defendant’s

commission of this offense, therefore the trial court did not err in submitting the

second-degree murder charge to the jury.

                              1.     Standard of Review

        “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 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918

(1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is

such relevant evidence as a reasonable mind might accept as adequate to support a



                                          -8-
                                   STATE V. NAZZAL

                                   Opinion of the Court



conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In

making its determination, the trial court must consider all evidence admitted,

whether competent or incompetent, in the light most favorable to the State, giving

the State the benefit of every reasonable inference and resolving any contradictions

in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation

omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). “The trial court is not

required to determine that the evidence excludes every reasonable hypothesis of

innocence before denying a defendant’s motion to dismiss.” State v. Barfield, 127 N.C.

App. 399, 401, 489 S.E.2d 905, 907 (1997) (citation omitted).

                      2.     DWI and Felony Death by Vehicle

      Defendant maintains that the trial court erred in denying his motions to

dismiss the charges of DWI and felony death by vehicle because the State presented

insufficient evidence that he was appreciably impaired at the time he caused the

collision and hit Mr. Nolasco. We agree.

      “A person commits the offense of impaired driving if he drives any vehicle upon

any highway, any street, or any public vehicular area within this State . . . [w]hile

under the influence of an impairing substance . . . .” N.C. Gen. Stat. § 20-138.1(a)(1)

(2019). The person must “hav[e] his physical or mental faculties, or both, appreciably

impaired by an impairing substance.” N.C. Gen. Stat. § 20-4.01(48b) (2019).




                                          -9-
                                   STATE V. NAZZAL

                                   Opinion of the Court



      We find our opinion in State v. Eldred to be instructive in the instant case. 259

N.C. App. 345, 815 S.E.2d 742 (2018). In Eldred, officers got a report of a wrecked,

abandoned car on the roadside at 8:30 p.m. Id. at 346, 815 S.E.2d at 743. Though he

did not testify how soon after the report the interaction occurred, an officer observed

the defendant walking along the roadside approximately two to three miles from the

car. Id. The defendant had visible head injuries, stated that he was “smoked up on

meth” and needed medical attention, and exhibited signs of impairment such as

twitching and having difficulty walking straight. Id. at 346-47, 815 S.E.2d at 743

The defendant was then taken to the hospital, where a highway patrolman observed

him at 9:55 p.m. Id. at 346, 815 S.E.2d at 743. He told the patrolman that he had

been driving his car and set out on foot when it ran out of gas, later indicated that he

had been hurt in a car wreck “a couple of hours ago[,]” and stated that he was

currently “on meth.” Id. at 347, 815 S.E.2d at 743 (internal quotation marks omitted).

After observing the defendant exhibit numerous signs of impairment at the hospital,

the patrolman formed the opinion that the defendant was appreciably impaired. Id.

      This Court held this evidence insufficient to prove that the defendant was

appreciably impaired at the time he wrecked his car. It observed that:

             [The first officer], who first found Defendant after he had
             walked two or three miles beyond his vehicle, did not
             determine whether Defendant’s condition was caused by an
             impairing substance or by the injury that resulted in
             emergency medical personnel taking Defendant to the
             hospital. [The patrolman], who interviewed Defendant in


                                          - 10 -
                                  STATE V. NAZZAL

                                  Opinion of the Court



             the hospital, did not obtain information concerning when
             or where Defendant had consumed meth or any other
             impairing substance. Neither officer even knew when
             Defendant’s vehicle had veered off the highway.

Id. at 350, 815 S.E.2d at 745.

      In the instant case, Trooper Underwood formed his opinion of impairment

entirely through passive observation of defendant. He did not request defendant to

perform any of the several field tests law enforcement officers often use to gauge a

motorist’s impairment. Moreover, as in Eldred, he did not ask defendant if or when

he had ingested any impairing substances. Trooper Underwood was the only law

enforcement officer that observed defendant and formed an opinion that he was

appreciably impaired. These observations occurred at 6:48 a.m., approximately five

hours after the collision occurred. This lapse of time is over three times longer than

the one that was found unacceptable in Eldred.

      The State argues that the signs of impairment observed by Trooper Underwood

five hours later, when coupled with the very nature of the collision, defendant’s

immediate flight from the scene, and his gross understatement of the collision’s

severity, provide substantial evidence that defendant was appreciably impaired at

the time of the collision. We disagree. Hit and run and DWI are separate offenses

for a reason. Without more, the former cannot suffice as substantial evidence of the

latter. Furthermore, defendant’s understatement of the collision’s severity can more

readily be interpreted as downplaying his culpability than an impaired perception of


                                         - 11 -
                                   STATE V. NAZZAL

                                   Opinion of the Court



events.   Again, without more this cannot suffice as substantial evidence of

appreciable impairment at the time of the collision. There must be some evidence

closer to that time which more than circumstantially implies that defendant was

impaired. See State v. Rich, 351 N.C. 386, 398-99, 527 S.E.2d 299, 305-306 (2000)

(upholding trial court’s admission of officer opinion of appreciable impairment based

upon investigation of accident scene, defendant’s high rate of speed, observation of

defendant’s combative behavior with EMS at scene and bloodshot, watery eyes

shortly after wreck, no indication of injuries to defendant, and smell of alcohol

observed at hospital two hours later).

      Therefore, the trial court erred in denying defendant’s motion to dismiss the

DWI charge. The trial court also erred in denying defendant’s motion to dismiss the

felony death by motor vehicle charge, because DWI is a necessary element of this

offense. See N.C. Gen. Stat. § 20-141.4(a1)(2) (2019). Since the trial court arrested

judgment on both convictions, we reverse them without remand.

                       3.    Failure to Maintain Lane Control

      Defendant argues that the State failed to present substantial evidence that he

violated N.C. Gen. Stat. § 20-146(d)(1) (2019) by veering to the right of Mr. Castillo’s

tow truck and attempting to pass it on the shoulder of the road. We disagree.

      “Whenever any street has been divided into two or more clearly marked lanes

for traffic . . . [a] vehicle shall be driven as nearly as practicable entirely within a



                                          - 12 -
                                    STATE V. NAZZAL

                                    Opinion of the Court



single lane and shall not be moved from such lane until the driver has first

ascertained that such movement can be made with safety.” Id. Defendant argues

that because the evidence showed that Mr. Castillo’s tow truck partially obstructed

the right lane in which he was traveling, it was not “practicable” for him to drive

entirely within that lane of traffic.

      According to defendant, the offense has not been committed if a motorist

recklessly veers out of his lane when it is no longer practicable to remain there due

to an upcoming obstruction. In other words, defendant interprets the statute such

that impracticability is an absolute defense. Although defendant’s Memorandum of

Additional Authority includes N.C.P.I. Crim. 207.90 (2019), which he argues supports

this interpretation, we note that on appeal defendant has not challenged any of the

trial court’s jury instructions omitting the practicability element from the offense.

      We do not interpret N.C. Gen. Stat. § 20-146(d)(1) to apply only to situations

where it is practicable for a motorist to stay within his current lane of traffic. Rather,

this provision contains two disjunctive mandates. A motorist must drive his vehicle

“as nearly as practicable entirely within a single lane[.]” Id. A motorist must also

refrain from changing lanes unless he “has first ascertained that such movement can

be made with safety.” Id.

      Here, there was substantial evidence from which the jury could infer that

defendant did not ascertain that veering onto the shoulder and passing the tow truck



                                           - 13 -
                                   STATE V. NAZZAL

                                   Opinion of the Court



on its right side could be done with safety. Viewing the evidence in a light most

favorable to the State, defendant was driving late at night at a speed unreasonably

fast for the icy conditions. Upon seeing Mr. Castillo’s tow truck partially obstructing

his current lane of traffic, defendant decided to pass the vehicle on the shoulder

without first determining what, if any, further perils lay in his redirected course. The

tow truck obstructed his view of at least some portion of the shoulder through which

he would soon drive. As evidenced by the testimony of Mr. Phillips, a reasonable

motorist would not have attempted to pass the tow truck to its right along the

shoulder. A motorist traveling 40 seconds behind defendant ascertained that passing

the tow truck on the shoulder-side could not be done with safety. From this evidence

a reasonable juror could find that defendant did not make such a determination

before conducting his maneuver.

      Even under defendant’s interpretation of N.C. Gen. Stat. § 20-146(d)(1), there

was substantial evidence on each side of the practicability issue from which the jury

could make its own determination. In negligence per se cases interpreting N.C. Gen.

Stat. § 20-146(d)(1), we have previously held that where a plaintiff puts forth evidence

that the defendant crossed the center line into oncoming traffic and the defendant

puts forth evidence that it was impracticable to stay within his lane “for reasons other

than his own negligence,” the conflicting evidence “merely . . . raise[s] an issue of

credibility for the jury to resolve.” Sessoms v. Roberson, 47 N.C. App. 573, 579, 268



                                          - 14 -
                                   STATE V. NAZZAL

                                   Opinion of the Court



S.E.2d 24, 28 (1980) (citations omitted). Mr. Castillo testified that road conditions

were icy, he heard screeching tires before the collision, and defendant’s vehicle passed

his tow truck traveling at a high rate of speed. From this a reasonable juror could

infer that, had defendant been traveling at a reasonable speed for conditions, it may

have been practicable for him to come to a complete stop, or significantly slow his

speed before proceeding, without departing from the right lane of I-40 West.

      Therefore, substantial evidence supported submission of the failure to

maintain lane control charge to the jury. The trial court did not err in denying

defendant’s motion to dismiss this charge.

                            4.     Second-Degree Murder

      Defendant argues that the State failed to present substantial evidence of

certain elements of second-degree murder. We disagree.

      In the instant case, the jury was instructed that defendant would need to be

found guilty of either DWI or failure to maintain lane control to be guilty of second-

degree murder. See State v. Wilson, 345 N.C. 119, 123, 478 S.E.2d 507, 510 (1996)

(limiting review of substantial evidence supporting conviction to limited theory of

conviction on which jury was instructed). On appeal, defendant does not dispute that

the State presented substantial evidence that he drove the car that hit Mr. Nolasco

and proximately caused his death. Defendant’s only argument is that a lack of




                                          - 15 -
                                   STATE V. NAZZAL

                                  Opinion of the Court



substantial evidence supporting malice and either DWI or failure to maintain lane

control mandates reversal of his conviction for second-degree murder.

      Because we uphold defendant’s conviction for failure to maintain lane control,

our only remaining task is to determine whether the State presented substantial

evidence of defendant’s malice in the commission of this offense.

                     Second-degree murder is an unlawful killing with
             malice, but without premeditation and deliberation. Intent
             to kill is not a necessary element of second-degree murder,
             but there must be an intentional act sufficient to show
             malice. . . . Accordingly, in [cases where the defendant is
             charged with committing second-degree murder by
             vehicle], it [i]s necessary for the State to prove only that
             [the] defendant had the intent to perform the act of driving
             in such a reckless manner as reflects knowledge that injury
             or death would likely result, thus evidencing depravity of
             mind. The State [i]s not required to show that [the]
             defendant had a conscious, direct purpose to do specific
             harm or damage, or had a specific intent to kill.

Rich, 351 N.C. at 395, 527 S.E.2d at 304 (internal quotation marks and citations

omitted).

      Viewing the evidence in a light most favorable to the State, defendant was

driving while his license was revoked both for prior DWI and non-DWI offenses. He

failed to insure his car. It was late at night, and road conditions were icy. Defendant

was driving at a speed that was irresponsible in these driving conditions and did not

allow him to maintain control of his vehicle and make safe maneuvers around

potential hazards. He became aware that a tow truck with flashing lights was in the



                                         - 16 -
                                  STATE V. NAZZAL

                                  Opinion of the Court



process of loading another car onto its rollback, sitting partially within his current

lane of traffic. Rather than switching to the left lane as Mr. Phillips did, defendant

veered his vehicle to the right in an attempt to pass the tow truck along the shoulder

of the interstate. In so doing, he was unaware of what additional obstacles or people

may be on the portion of the shoulder obstructed from his view by the tow truck. See

State v. Schmieder, __ N.C. App. __, __, 827 S.E.2d 322, 328 (finding substantial

evidence of malice where, in addition to extensive driving record, defendant “was

driving above the speed limit, following too close to see around the cars in front of

him, and passing across a double yellow line without using turn signals”), disc. rev.

dismissed, 372 N.C. 711, 830 S.E.2d 832 (2019).

      Defendant lost control of his vehicle and hit the guard rail, the tow truck, and

Mr. Nolasco. He stopped briefly. The collision was so severe that it ripped the front

bumper from his car, cracked the windshield, broke the headlights, and deployed the

airbags. Despite the severity of the collision, defendant did not try to ascertain if

anyone was harmed or attempt to render assistance of any sort. He drove away and

washed his car, suggesting he was aware that he had hit someone and needed to

remove blood and other evidence from his vehicle. See State v. Tellez, 200 N.C. App.

517, 525, 684 S.E.2d 733, 739 (2009) (finding substantial evidence of malice where,

among other things, defendant fled scene of accident and took steps to avoid

apprehension without rendering any assistance or checking on safety of others



                                         - 17 -
                                   STATE V. NAZZAL

                                   Opinion of the Court



involved in accident). In his interactions with law enforcement officers at his home,

he casually downplayed the severity of the collision despite being informed that he

had killed someone.

      The State published a redacted version of defendant’s extensive driving record

to the jury. In addition to six speed-related offenses, two willful refusals to submit to

a chemical test for intoxicants, and two prior convictions for driving while license

revoked, defendant’s driving record revealed that his license was revoked for a DWI

conviction at the time of the collision. The jury also heard testimony from a law

enforcement officer that arrested defendant on suspicion of DWI on a prior occasion.

Defendant had boasted to this officer that he “kn[e]w how to work [the system]” and

avoid the consequences of his conduct behind the wheel. Furthermore, defendant’s

driving record revealed that he had been involved in five car accidents in the last

twenty years, two of which caused personal injury. Schmieder, __ N.C. App. at __,

827 S.E.2d at 326 (“This Court has held evidence of a defendant’s prior traffic-related

convictions admissible to prove the malice element in a second-degree murder

prosecution based on vehicular homicide. Likewise, whether defendant knew that he

was driving with a suspended license tends to show that he was acting recklessly,

which in turn tends to show malice.”) (internal quotation marks, citations, and

alterations omitted). Thus, the jury could infer that defendant was aware of the risk

to human life caused by his behavior on the road.



                                          - 18 -
                                    STATE V. NAZZAL

                                   Opinion of the Court



      From all this evidence, the jury could infer that defendant was well aware of

the dangers to human life posed by his pattern of behavior behind the wheel, and on

this occasion once again engaged in dangerous driving with indifference to its

consequences. Therefore, substantial evidence supported the element of malice by

reckless disregard for human life.       Accordingly, the trial court did not err in

submitting the second-degree murder charge to the jury.

           B.    Motion to Suppress and Admission of Witness Testimony

      Defendant next argues that the trial court erred in denying his motion to

suppress evidence obtained as fruits of the search of his two cellular phones. He

further argues that the trial court erred in admitting the testimony of Ms. Haynes

relating to his prior use of crack cocaine.

      We have determined that substantial evidence supported defendant’s second-

degree murder conviction on the theory of failure to maintain lane control with

malice. We have also reversed defendant’s conviction for DWI. We agree with the

concession of defendant’s counsel at oral argument: the evidence obtained from his

cell phones was used solely to prove his impairment at the time of the collision.

Because we have vacated the driving while impaired conviction, we need not address

defendant’s arguments regarding the alleged error in the denial of defendant’s motion

to suppress and admission of evidence obtained as fruits of the search of his phones.

Because this evidence is not relevant to the remaining charges, any error is harmless.



                                          - 19 -
                                   STATE V. NAZZAL

                                   Opinion of the Court



                         C.     Jury Instruction on Accident

      Defendant’s final argument is that the trial court erred by denying his request

for a jury instruction on accident. Accepting defendant’s position arguendo, we find

this error harmless in light of other instructions given to the jury.

      “The defense of accident is triggered in factual situations where a defendant,

without premeditation, intent, or culpable negligence, commits acts which bring

about the death of another.” State v. Riddick, 340 N.C. 338, 342, 457 S.E.2d 728, 731

(1995) (internal quotation marks and citation omitted). We have previously held that

failure to give an instruction on accident in a trial court’s instructions on murder is

harmless error if the jury is instructed on lesser-included offenses that do not require

a mens rea of intent. Id. at 343-44, 457 S.E.2d at 732. In Riddick, the trial court gave

an instruction on involuntary manslaughter as a lesser-included offense and the jury

found the defendant guilty of first-degree murder. Id. Assuming arguendo that

failure to give an accident instruction was error, we held that this error was harmless.

Id. Because first-degree murder requires specific intent to kill, we reasoned that the

jury’s verdict expressed rejection of any notion that defendant’s conduct was

accidental. Id.

      In the instant case, the trial court instructed the jury on second-degree murder

and the lesser-included offenses of involuntary manslaughter and misdemeanor

death by vehicle, noting that both lesser offenses involved killings that were



                                          - 20 -
                                   STATE V. NAZZAL

                                  Opinion of the Court



unintentional. The jury chose to convict defendant of second-degree murder, which

requires a mens rea of malice: that defendant intentionally performed “an inherently

dangerous act or omission, done in . . . a reckless and wanton manner . . .

manifest[ing] a mind utterly without regard for human life and social duty and

deliberately bent on mischief.” N.C. Gen. Stat. § 14-17(b)(1) (2019). As in Riddick,

the jury’s verdict rejects the notion that defendant’s passing of the tow truck along

the shoulder was unintentional. Therefore, any error in failing to give an instruction

on accident was harmless.

                                  III.     Conclusion

      For the foregoing reasons, we reverse defendant’s convictions for DWI and

felony death by vehicle due to insufficient evidence of impairment. Defendant’s trial

was otherwise free of prejudicial error.

      REVERSED IN PART; NO ERROR IN PART.

      Chief Judge MCGEE and Judge ZACHARY concur.




                                           - 21 -
