               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-1089

                                   Filed: 5 July 2016

Guilford County, No. 12 CRS 95918

STATE OF NORTH CAROLINA

              v.

BRIAN JACK FRAZIER


        Appeal by defendant from judgment entered 8 April 2015 by Judge Richard L.

Doughton in Guilford County Superior Court. Heard in the Court of Appeals 8 March

2016.


        Attorney General Roy Cooper, by Assistant Attorney General Anne M.
        Middleton, for the State.

        Massengale & Ozer, by Marilyn G. Ozer, for defendant-appellant.


        BRYANT, Judge.


        Where the trial court did not err in instructing the jury on first-degree felony

murder and the intent required for felonious child abuse as a predicate felony to

felony murder, and where the trial court properly denied defendant’s motion to

dismiss based on the felony merger doctrine, we affirm the verdict of the jury and find

no error in the judgment of the trial court.

        In November 2012, twenty-year-old defendant Brian James Frazier was living

with his girlfriend, Stefany Ash, in High Point, North Carolina. Defendant and Ash

had two children together, an eighteen-month-old boy and a thirteen-day-old baby
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                                         Opinion of the Court



boy named Kahn.1 Defendant had taken time off from high school to help Ash with

Baby Kahn, but had stayed up all night for several nights playing video games.

       On the afternoon of 27 November 2012, around 3:00 PM, Guilford County

Emergency Medical Services (“EMS”) received a 911 call to respond to what they

believed was the cardiac arrest of an approximately one-month-old child. EMS, High

Point Fire Department, and Officer Matthew Blackmon of the High Point Police

Department all responded to the call shortly after 3:00 PM. When the responders

arrived, they had to knock and wait for defendant to unlock the door and let them in.

       Defendant led EMS and Officer Blackmon to a room at the back of the house.

They found a bruised infant, Baby Kahn, lying on its back in a bassinet. The 911 call

had indicated that the baby’s breathing difficulties had just occurred. However, Baby

Kahn was cold to the touch, had no pulse, and rigor mortis had already set in. He

was also very pale and bloated, with bruises on his chest.

       Upon seeing Baby Kahn’s body, Officer Blackmon concluded the child’s death

had not just occurred, and started an investigation. He called the violent crimes

supervisor, set in motion the application for a search warrant, and asked defendant

to step into the kitchen in order to separate him from Stefany Ash, who was also

present and appeared upset.




       1 The victim in this case is a deceased murder victim. Rules 3.1 and 4(e) of the Rules of
Appellate Procedure therefore do not apply in this case. The surviving minor child is not named herein.

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      Detectives Leonard and Meyer of the major crimes unit arrived at the house at

approximately 3:30 PM. They took about five minutes to observe garbage, half-eaten

food, and raw meat lying on the floor of the house, as well as a sink filled with dirty

water, an open refrigerator, and a dirty or moldy high chair.        Detective Meyer

interviewed Ash while Detective Leonard asked defendant for background

information about what occurred.

      Defendant stated that the night before he had been playing video games all

night until about 5:00 AM. As soon as defendant laid down to go to sleep, Baby Kahn

began to stir and cry, and defendant explained that at this point he snapped and lost

control. Defendant said he grabbed Baby Kahn by the neck with one hand while he

struck him several times with his other hand. Defendant said he hit the baby in the

head, body, and arms. At this point in the conversation, defendant dropped his head

in his hands and began to cry.

      Defendant was taken to the police department. There he was arrested, then

taken to an interview room where he waived the Miranda warnings given by

Detectives Leonard and Meyer. Defendant talked at length and in detail regarding

the manner in which he had caused his son’s death. On 11 February 2013, defendant

was indicted on one count of first-degree murder. The case came on for jury trial at

the 30 March 2015 Session of the Guilford County Superior Court, the Honorable

Richard L. Doughton, Judge presiding.



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      Defendant’s interview with Detectives Leonard and Meyer was videotaped and

played for the jury at trial and admitted into evidence as State’s Exhibit 12. During

the taped interview, defendant said he “snapped” and lost control, striking the baby

in the head, body, and arms. Defendant said he was in high school, but had been

staying home to take care of Baby Kahn and the other minor child while Ash healed

from surgery after giving birth by C-section. Defendant told the detectives about

several social workers and a doctor who regularly came to the house to help them,

stating that these visits started after the first baby was born because someone had

anonymously reported that the house they were living in had black mold.

      Defendant recounted the events of the night before, saying he had stayed up

all night playing video games for the past three or four nights, and right when he

went to lay down to go to sleep, the baby woke up and started fussing. Defendant

said he “guessed he just couldn’t take it,” “snapped,” and “lost control.” Defendant

said he was not thinking; he was so exhausted he claimed it was as if he had blacked

out. Defendant stated that he had never lost control like this with either of the

children before, he did not use drugs or alcohol, and he had never been in trouble. He

also did not think he had hurt Baby Kahn because the baby seemed to be breathing

normally when defendant laid back down to go to sleep.

      Defendant slept until about 2:00 PM the next afternoon. Ash got up first and

said she was going to check on Baby Kahn and feed him. When she told defendant



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that Baby Kahn looked pale, defendant walked over to look at him and found the baby

dead. After they discovered the baby was dead, Ash attempted to convince defendant

to flee, but defendant claimed he did not want to do that, he knew he had done wrong

and needed to pay for it.

      Dr. Lauren Scott, a forensic pathologist in the Office of the Chief Medical

Examiner, testified that she performed an autopsy on Baby Kahn on 28 November

2012. The body had several external bruises: two bruises on the left forehead, one

bruise to the side of the left eye, a small bruise on the right eyelid, a larger bruise on

the central chest, a smaller bruise to the right of the center chest, and a small bruise

on the left abdomen. There were also tiny hemorrhages in the lining of the eyes.

      The internal examination revealed bruising within the abdominal cavity

underlying the bruise on the outside. There was a tear or laceration on the underside

of the liver and some bleeding from that tear into the capsule that surrounds the liver

and into the abdominal cavity. Inside the scalp were several small bruises on the left

forehead region and a large area of bleeding from the back to the top of the head

across the midline, injuries consistent with blunt force trauma. There was also

bleeding between the two membranes that surround the brain and between the brain

surface and inner membrane. The distribution of bleeding on the brain indicated

there were at least two different applications of blunt force injury to the head.




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      Dr. Scott’s opinion as to the cause of death was blunt force trauma to the

abdomen and head. Her opinion was that there were at least three instances of blunt

force trauma applied to Baby Kahn—at least two separate injuries to the head and

at least one, and up to three, injuries to the abdomen and chest region. Dr. Scott

opined that death would likely have been instantaneous given the significant

bleeding and injuries in the head.

      At the close of the State’s evidence and at the close of all the evidence at trial,

defendant moved to dismiss the charge of felony murder, based on the State’s asserted

failure to provide evidence of the required mens rea, and based on the felony merger

doctrine. Defendant also argued that the submission of the charge of felony murder

would violate the Fifth, Sixth, and Fourteenth Amendments. The trial court denied

these motions to dismiss.

      On 8 April 2015, the jury found defendant guilty of first-degree murder. The

trial court entered a sentence of life imprisonment without parole.          Defendant

appeals.

            _______________________________________________________

      On appeal, defendant contends that the trial court erred by (I) denying

defendant’s requests for certain jury instructions on premeditation and deliberation;

(II) instructing the jury that defendant did not need to intend to seriously injure the

child; (III) denying defendant’s motion to dismiss based on the felony merger doctrine;



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and (IV) denying defendant’s request to instruct the jury that a single assault on a

single victim cannot serve as the predicate felony for felony murder.

                                            I

      Defendant first argues that the trial court erred by denying defendant’s

request to instruct the jury on first-degree murder based on premeditation and

deliberation and on other lesser included offenses. He also argues that an instruction

based on premeditation and deliberation was appropriate because the evidence of the

underlying felony was in conflict. We disagree.

      “Assignments of error challenging the trial court’s decisions regarding jury

instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458,

466, 675 S.E.2d 144, 149 (2009) (citations omitted).       “A trial court must give a

requested instruction if it is a correct statement of the law and is supported by the

evidence.” State v. Haywood, 144 N.C. App. 223, 234, 550 S.E.2d 38, 45 (2001)

(citation omitted). “[A] trial judge should not give instructions to the jury which are

not supported by the evidence produced at the trial.” State v. Epps, 231 N.C. App.

584, 586, 752 S.E.2d 733, 734 (2014) (alteration in original) (citation omitted), aff’d,

368 N.C. 1, 769 S.E.2d 838 (2015). Here, defendant was tried and convicted for first-

degree murder based on felony murder.

      Felony murder is defined as “[a] murder which shall be . . . committed in the

perpetration or attempted perpetration of [certain named felonies] . . . with the use



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of a deadly weapon” and is considered “murder in the first degree . . . .” N.C. Gen.

Stat. § 14-17(a) (2015). “[P]remeditation and deliberation are not elements of the

crime of felony-murder.” State v. Swift, 290 N.C. 383, 407, 226 S.E.2d 652, 669 (1976).

       During the charge conference, defendant requested that the jury be instructed

on premeditation and deliberation with lesser offenses included, as well as on felony

murder. Defendant argued that preventing the defense from arguing premeditation

and deliberation “denie[d] [defendant] due process, equal protection, cruel and

unusual punishment . . . .” The trial court denied defendant’s request.

       We hold that the trial court did not err in denying defendant’s request for an

instruction on premeditated first-degree murder, because there was no evidence that

defendant possessed a “specific intent to kill formed after some measure of

premeditation and deliberation.” State v. Peterson, 361 N.C. 587, 595, 652 S.E.2d

216, 223 (2007) (citations omitted). “Specific intent to kill . . . is . . . a necessary

constituent of the elements of premeditation and deliberation.” State v. Jones, 303

N.C. 500, 505, 279 S.E.2d 835, 838–39 (1981) (citation omitted); see also State v. Holt,

342 N.C. 395, 397–98, 464 S.E.2d 672, 673 (1995) (“Premeditation and deliberation

are necessary elements of first-degree murder based on premeditation and

deliberation . . . . Premeditation means that the defendant thought out the act

beforehand for some length of time, however short. Deliberation means an intent to

kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or



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to accomplish an unlawful purpose and not under the influence of a violent passion,

suddenly aroused by lawful or just cause or legal provocation.”).

      Indeed, defense counsel, in requesting the instruction, acknowledged that the

evidence did not meet the sufficiency standard for first-degree murder: “I’m not

suggesting [the facts are] sufficient to convict [on first-degree murder], but I think

there’s enough from which a juror -- jury may want to address it . . . .” Defendant’s

counsel argued during the charge conference that because the choking and strangling

of Baby Kahn took place after defendant heard the baby making noises, this might

mean defendant was not unconscious or “blacked out” and therefore there was

premeditation and deliberation on the part of defendant.            Notwithstanding

defendant’s argument, which was rejected by the trial court, all of the evidence at

trial tended to show that defendant “snapped,” not that his actions were

premeditated. Further, the evidence showed that even when defendant was pressed

by the detectives to admit he planned his actions, defendant insisted he did not plan

them, that he was not thinking, and that he “just snapped.”

      Here, there was no evidence of any specific intent to kill. Rather, the evidence

consistently showed that defendant “lost control” and punched two-week-old Baby

Kahn. Because there was no evidence of specific intent to kill, the existing evidence

was insufficient to support an instruction on first-degree murder based on

premeditation and deliberation.



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                                   Opinion of the Court



      In addition, there was no theory that would have supported conviction of any

lesser-included   offense   (second-degree         murder,   involuntary   or   voluntary

manslaughter) of first-degree murder. Second-degree murder cannot be a lesser-

included offense of first-degree murder based on felony murder alone, because malice

is not an element of felony murder. State v. Golden, 143 N.C. App. 426, 434–35, 546

S.E.2d 163, 169 (2001) (citing State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 379

(1982), overruled on other grounds, State v. Collins, 334 N.C. 54, 431 S.E.2d 188

(1993)). There is also no offense of second-degree felony murder in this jurisdiction.

Id. at 435, 546 S.E.2d at 169 (citation omitted).

      We realize defendant argued zealously at trial, and now on appeal, that the

trial court should have given a first-degree murder instruction based on

premeditation and deliberation, and further realize that defendant’s trial counsel’s

only reason for pressing for the instruction was to have the option of lesser-included

offenses—second-degree murder, manslaughter, etc.—presented to the jury for their

consideration. However, defendant’s arguments, no matter how strongly stated, do

not change the law. Felony murder was the only first-degree murder theory on which

the trial court could properly instruct the jury.

      “[W]hen the law and evidence justify the use of the felony murder rule,” as it

does here, “the State is not required to prove premeditation and deliberation, and

neither is the [trial] [c]ourt required to submit to the jury second degree murder or



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                                   Opinion of the Court



manslaughter unless there is evidence to support [such lesser offenses].” See State v.

Strickland, 307 N.C. 274, 292, 298 S.E.2d 645, 657 (1983) (citation and quotation

mark omitted), overruled on other grounds, 317 N.C. 193, 344 S.E.2d 775 (1986).

Defendant’s argument that he was entitled to an instruction on premeditation and

deliberation is overruled.

      Defendant also argues that because the underlying felony (here, child abuse)

was in conflict, such conflicting evidence supports a lesser-included offense. When

the State proceeds on a theory of felony murder only, the question “turns on whether

the evidence of [the underlying felony] was in conflict.” State v. Gwynn, 362 N.C. 334,

337, 661 S.E.2d 706, 707 (2008) (citation omitted). Specifically, defendant contends

that because the trial court submitted the pattern jury instruction on automatism, it

must have found evidence that supported the jury’s possible finding of lack of mens

rea required for the underlying felony.

       “The practical effect of automatism is that the ‘absence of consciousness not

only precludes the existence of any specific mental state, but also excludes the

possibility of a voluntary act without which there can be no criminal liability.’ ” State

v. Boggess, 195 N.C. App. 770, 772, 673 S.E.2d 791, 793 (2009) (quoting State v. Fields,

324 N.C. 204, 208, 376 S.E.2d 740, 742 (1989)). “The rule in this jurisdiction is that

where a person commits an act without being conscious thereof, the act is not a

criminal act even though it would be a crime if it had been committed by a person



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who was conscious.” State v. Jerrett, 309 N.C. 239, 264, 307 S.E.2d 339, 353 (1983)

(citations omitted). “[A]utomatism . . . is a complete defense to a criminal charge . . .

and . . . the burden rests upon the defendant to establish this defense, unless it arises

out of the State’s own evidence . . . .” State v. Cadell, 287 N.C. 266, 290, 215 S.E.2d

348, 364 (1975).

      Here, the only evidence of defendant’s possible unconsciousness arose from

defendant’s statement to detectives where he indicated he was exhausted from

playing video games and it “was if he blacked out.” However, defendant’s statements

to detectives, along with the medical evidence of the condition of Baby Kahn’s body

at autopsy, was sufficient to show beyond a reasonable doubt that defendant was

conscious when he hit Baby Kahn.

      Furthermore, a defendant’s inability to explain why he did certain criminal

acts does not equate to having been in a state of unconsciousness at the time he

committed those acts.     In other words, defendant’s inability to explain why he

assaulted the child did not render him unable to explain what he did to Baby Kahn.

See State v. Boyd, 343 N.C. 699, 714, 473 S.E.2d 327, 334–35 (1996) (finding the

defendant failed to support defense of automatism where he had given a detailed

recollection of his actions to police on the day of the murder and only later claimed

not to recall the events); State v. Fisher, 336 N.C. 684, 705, 445 S.E.2d 866, 877–78




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                                  Opinion of the Court



(1994) (holding defendant’s detailed statement the day of the murder belied his claim

of unconsciousness).

      In the instant case, defendant gave a detailed confession to police, including a

description of his actions—how he held the baby around the neck with one hand while

punching him with the other.      We think defendant’s own detailed statement is

sufficient evidence to prove defendant was conscious when he committed the acts

charged. Even on appeal, defendant highlights only his inability to articulate a

reason for the assault and not any inability to recall the events. Defendant’s asserted

defense of automatism does not render any element of felonious child abuse in conflict

in this case. Accordingly, where defendant’s proposed instruction was not supported

by the evidence, defendant has shown no error. This argument is overruled.

                                          II

      Defendant next argues that the trial court erred by denying defendant’s

request to instruct the jury on the intent required for the predicate felony to felony

murder. Specifically, defendant contends the trial court was required to instruct the

jury that defendant must have intended to inflict serious physical injury on the child,

as opposed to intentionally assaulting the child which proximately resulted in serious

physical injury, and the trial court’s failure to so instruct violated defendant’s

constitutional right to due process and to be free of cruel or unusual punishment. We

disagree.



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      To sustain a conviction for felonious child abuse, the State must prove that

defendant is “[a] parent or any other person providing care to or supervision of a child

less than 16 years of age” and that the defendant “intentionally inflict[ed] any serious

physical injury upon or to the child or . . . intentionally commit[ed] an assault upon

the child which result[ed] in any serious physical injury to the child.” N.C. Gen. Stat.

§ 14-318.4(a) (2015) (emphasis added). “In felonious child abuse cases, the State is

not required to prove that the defendant specifically intended that the injury be

serious.” State v. Krider, 145 N.C. App. 711, 713, 550 S.E.2d 861, 862 (2001) (citations

and quotation marks omitted). “ ‘This crime does not require the State to prove any

specific intent on the part of the accused.’ ” State v. Perry, 229 N.C. App. 304, 319,

750 S.E.2d 521, 533 (2013) (quoting State v. Pierce, 346 N.C. 471, 494, 488 S.E.2d

576, 589 (1997)).

      Felony murder where the predicate felony is felonious child abuse requires the

State to prove that “the killing took place while the accused was perpetrating or

attempting to perpetrate felonious child abuse with the use of a deadly weapon.”

Pierce, 346 N.C. at 493, 488 S.E.2d at 589. “When a strong or mature person makes

an attack by hands alone upon a small child, the jury may infer that the hands were

used as deadly weapons.” Id. Furthermore, to support a felony murder conviction

based on felonious child abuse, the State does not have to show that a defendant

intended for the injury to be serious; the State must only show that the defendant



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intended to assault the child, which resulted in serious injury. See Perry, 229 N.C.

App. at 319, 750 S.E.2d at 533 (holding “that the record contained sufficient

circumstantial evidence to support a determination that [the d]efendant used his

hands as a deadly weapon” on a 14-month-old child).

      Indeed, in Perry, the defendant appealed his conviction for first-degree murder

to this Court, arguing that “ ‘felony child abuse is not a viable underlying felony’

sufficient to support a conviction for first degree murder under the felony murder

rule[,]” while at the same time acknowledging “ ‘that this issue has been decided

adversely [to his position] by the Court of Appeals[.]’ ” Id. at 322, 750 S.E.2d at 534

(alteration in original); see Krider, 145 N.C. App. at 714, 550 S.E.2d at 863 (affirming

the defendant’s conviction for first-degree murder based on the felony murder rule

where “defendant actually intended to commit the underlying offense (felonious child

abuse) with the use of her hands as a deadly weapon”).

      As defendant’s argument on this point is practically identical to the defendant’s

argument in Perry, and because of well-established precedent that “the State is not

required to prove any specific intent on the part of the accused” for the crime of felony

murder based on child abuse, we overrule defendant’s argument.

                                           III

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

dismiss the felony murder charge for insufficiency of the evidence because the felony



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murder merger doctrine prevents conviction of first-degree murder when there is only

one victim and one assault. Defendant contends the trial court’s failure to dismiss

the felony murder charge violated his constitutional rights as he was deprived of life

and liberty without due process of law. We disagree.

      Felony murder elevates a homicide to first-degree murder if the killing is

committed in the perpetration or attempted perpetration of certain felonies or any

“other felony committed or attempted with the use of a deadly weapon[.]” N.C.G.S. §

14-17(a); see also State v. Abraham, 338 N.C. 315, 331–32, 451 S.E.2d 131, 139 (1994)

(“[T]he legislature clearly intended . . . that felony murder included a killing

committed during the commission or attempted commission of a felony ‘with the use

of a deadly weapon.’ ” (emphasis added) (quoting State v. Wall, 304 N.C. 609, 614, 286

S.E.2d 68, 72 (1982)). “Felony murder, by its definition, does not require intent to kill

as an element that must be satisfied for a conviction.” State v. Cagle, 346 N.C. 497,

517, 488 S.E.2d 535, 548 (1997) (citation and quotation marks omitted).

      Here, the offense of felonious child abuse, where defendant’s hands were a

deadly weapon, served to elevate the killing to first-degree murder under the felony

murder rule. Felonious child abuse does not merge with first-degree murder because

the crime of felonious child abuse requires proof of specific elements which are not

required to prove first-degree murder: that the victim is a child under sixteen, and

that defendant was a parent or any other person providing care to or supervision of



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the child. The crime of felonious child abuse is among those offenses that address

specific types of assaultive behavior that have special attributes distinguishing the

offense from other assaults that result in death. See, e.g., State v. Coria, 131 N.C.

App. 449, 456–57, 508 S.E.2d 1, 6 (1998) (holding a defendant may be convicted of

and punished for assault with a deadly weapon with intent to kill and for assault with

a firearm on a law enforcement officer arising out of the same shooting because each

offense contains an element not present in the other). Therefore, our courts have

declined to apply the “merger doctrine” in cases where the underlying felony (here,

child abuse) was not an offense included within the murder.

      However, defendant’s merger argument might apply to sentencing (as opposed

to his motion to dismiss). “The felony murder merger doctrine provides that when a

defendant is convicted of felony murder only, the underlying felony constitutes an

element of first-degree murder and merges into the murder conviction” for purposes

of sentencing. State v. Rush, 196 N.C. App. 307, 313–14, 674 S.E.2d 764, 770 (2009)

(citation and quotation marks omitted). Therefore, “when the sole theory of first-

degree murder is the felony murder rule, a defendant cannot be sentenced on the

underlying felony in addition to the sentence for first-degree murder[.]” State v.

Wilson, 345 N.C. 119, 122, 478 S.E.2d 507, 510 (1996) (emphasis added) (citation

omitted), abrogated by State v. Millsaps, 365 N.C. 556, 572 S.E.2d 770 (2002).

             The merger doctrine does not preclude indictments for both
             the murder and the underlying felony, nor a guilty verdict


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             for both; rather it requires that, if a defendant is found
             guilty of both felony murder and the underlying felony, the
             judgment on the underlying felony is arrested, and
             “merges” into the felony murder conviction.

State v. Juarez, ___ N.C. App. ___, ___, 777 S.E.2d 325, 329 (2015), review allowed,

writ allowed, ___ N.C. ___, 781 S.E.2d 473 (2016).

      In the instant case, there was no separate indictment and no separate verdict

for the underlying offense of felony child abuse. The jury had only to decide whether

defendant was guilty of first-degree murder. The verdict was guilty as to one count

of first-degree murder. Defendant was sentenced accordingly. Thus, to the extent

that defendant’s argument is that he cannot be convicted of felony murder where the

underlying felony is child abuse, we reaffirm our analysis in Section II and overrule

defendant’s argument. See Perry, 229 N.C. App. at 322, 750 S.E.2d at 534 (upholding

felony murder based on felonious child abuse where hands used as deadly weapon);

Krider, 145 N.C. App. at 714, 550 S.E.2d at 863 (affirming the “defendant’s conviction

for first-degree murder based on the felony rule” where “the State proved beyond a

reasonable doubt that the defendant actually intended to commit the underlying

offense (felonious child abuse) with the use of her hands as a deadly weapon”).

      The trial court did not sentence defendant for both first-degree murder and

felonious child abuse as the underlying offense of felonious child abuse was an

element of first-degree murder and merged with defendant’s first-degree murder

conviction. Accordingly, as the trial court did not err in denying defendant’s motion


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to dismiss, and properly sentenced defendant on felony murder, defendant’s

argument is overruled.

                                           IV

      Lastly, defendant argues that the trial court erred by denying defendant’s

request to instruct the jury that a single assault on a single victim cannot serve as

the predicate felony for felony murder. Defendant contends the trial court’s denial of

this request to instruct the jury that separate and distinct acts were necessary to find

felony murder violated defendant’s constitutional rights to a fair trial by a unanimous

verdict, due process of law, and freedom from cruel and unusual punishment. We

disagree.

      Defendant had filed a written request for a special jury instruction that a

single assault on a single victim cannot serve as the predicate felony for felony

murder. The trial court denied defendant’s request.

      “[R]equested instructions need only be given in substance if correct in law and

supported by the evidence.” State v. McNeill, 360 N.C. 231, 250, 624 S.E.2d 329, 341–

42 (2006) (alteration in original) (quoting State v. Morgan, 359 N.C. 131, 169, 604

S.E.2d 886, 909 (2004)). The trial court’s failure to give a requested instruction is

reviewed de novo. Osorio, 196 N.C. App. at 466, 675 S.E.2d at 149.

      As shown in Section III, supra, it is well-settled that felonious child abuse with

a deadly weapon (here, defendant’s hands) may serve as the predicate felony for



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felony murder. See Perry, 229 N.C. App. at 322, 750 S.E.2d at 534; Krider, 145 N.C.

App. at 714, 550 S.E.2d at 863; Pierce, 346 N.C. at 493, 488 S.E.2d at 589.

Accordingly, the trial court did not err by denying defendant’s requested instruction

as it was not a correct statement of the law. Defendant’s argument is overruled.

      NO ERROR.

      Judges STEPHENS and MCCULLOUGH concur.




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