               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-1150

                                 Filed: 18 July 2017

Clay County, No. 13 CRS 50174

STATE OF NORTH CAROLINA

              v.

MATTHEW ANDREW COLEMAN


        Appeal by defendant from judgment entered 14 December 2015 by Judge J.

Thomas Davis in Clay County Superior Court. Heard in the Court of Appeals 24 May

2017.


        Attorney General Joshua H. Stein, by Assistant Attorney General John P.
        Barkley, for the State.

        Parker Law Firm, PC, by James V. Parker, Jr., for defendant.


        DIETZ, Judge.


        Defendant   Matthew    Coleman     appeals     his   conviction   for   voluntary

manslaughter. At trial, Coleman admitted that he shot and killed his wife. But he

argued that, as a result of diabetes, his blood sugar was dangerously low at the time

of the shooting, causing Coleman to act in a manner that was not voluntary.

        On appeal, Coleman challenges the sufficiency of the evidence and argues that

the trial court committed plain error in various evidentiary and instructional rulings.

As explained below, there was sufficient evidence to send the charge of voluntary
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                                  Opinion of the Court



manslaughter to the jury and the trial court’s rulings were well within the court’s

sound discretion. Accordingly, we find no error in the trial court’s judgment.

                          Facts and Procedural History

       On 22 April 2013, Matthew Coleman and his wife went to the grocery store and

returned home around 1 p.m. Soon after, Coleman’s neighbor, Barbara Hardee,

observed Coleman walking toward her house carrying three briefcases and an

unidentified object. Coleman dropped the object (later discovered to be a gun) in a

brush pile in the yard. Coleman then approached Ms. Hardee’s house and told her

that he killed his wife. Ms. Hardee told Coleman not to “kid that way,” but Coleman

responded, “I’m not kidding, didn’t you hear the shot?”

       Ms. Hardee called 911 while her husband, Roland Hardee, checked Coleman

for weapons. Mr. Hardee was concerned about Coleman’s blood sugar level and gave

Coleman a granola bar. Mr. Hardee asked Coleman why he shot his wife and Coleman

responded, “I don’t know, something told me.” When Mr. Hardee asked Coleman if it

was an accident, Coleman stated “I just went to get my gun and couldn’t find it, then

I just shot her.”

       Police and EMS were dispatched and arrived at approximately 1:40 p.m. In

their initial investigation, law enforcement determined that Coleman shot his wife,

picked up three briefcases and the gun, locked the house, walked past his truck, threw

the gun into a brush pile, and then approached Ms. Hardee and told her that he shot



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his wife. In the three briefcases, the police found approximately $110,000 in cash,

savings bonds, and foreign currency, and various important documents. Coleman told

a police officer that “he didn’t know why he had done it, why did he kill the woman

he loved, they had plans together, plans he made.” Coleman also said, “Why did I kill

the woman I loved? We never fought in 30 years. We had plans together, plans I made.

How could I do such a horrible thing?” Coleman then told the officer that his blood

sugar was dropping.

      On 31 May 2013, the State indicted Coleman for first degree murder. Coleman

entered a plea of not guilty and gave notice of his intent to assert the affirmative

defense of automatism based on his low blood sugar at the time of the shooting.

Coleman was diagnosed as a Type I diabetic in 1981 and had a history of

hypoglycemic episodes where his blood sugar dropped to very low levels. The evidence

presented at trial included a glucometer reading of 39 from 1:22 p.m. on 21 April

2013, along with a handwritten log of corresponding glucose readings indicating that

the glucometer’s date stamps may have been one day behind, meaning the 39 reading

could have been recorded the day Coleman shot his wife.

      At trial, Coleman presented expert testimony from Dr. George Corvin, a

psychiatrist Coleman retained to evaluate him. Dr. Corvin testified that, in his

opinion, Coleman was acting in a state of automatism due to hypoglycemia when he

shot his wife. On cross-examination, over Coleman’s objection, the State questioned



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Dr. Corvin about the amount of fees he was paid to testify as a defense expert in

criminal cases from 2013-2015.

        The State presented expert testimony from Dr. Warner Burch, an

endocrinologist, who testified that in his opinion, Coleman was not in a state of

automatism due to hypoglycemia at the time of the offense. This testimony was

admitted over Coleman’s objection to Dr. Burch giving an opinion as to Coleman’s

state of mind.

        The jury found Coleman guilty of the lesser-included offense of voluntary

manslaughter. The trial court sentenced Coleman to 64-89 months in prison.

Coleman timely appealed.

                                       Analysis

        Coleman raises five issues on appeal. We address each in turn below.

   I.      Denial of motion for directed verdict

        Coleman first argues that the trial court erred by denying his motion for a

directed verdict of not guilty because the State failed to present evidence of all of the

required elements of first degree murder and the lesser-included offenses of second

degree murder and voluntary manslaughter. We disagree.

        In a criminal case, a motion for directed verdict and a motion to dismiss have

the same effect and are reviewed under the same standard of review on appeal. See

State v. Mize, 315 N.C. 285, 290, 337 S.E.2d 563, 565 (1985). “This Court reviews the



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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). “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 (2000). “Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

State v. Smith, 300 N.C. 71, 78, 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).

      Although Coleman argues that the trial court erred in denying his motion for

directed verdict on all of the charges, the jury found Coleman not guilty of the greater

offenses of first and second degree murder, convicting him only of voluntary

manslaughter. Therefore, any error in the denial of Coleman’s motion as to the

murder charges is not prejudicial and we need only address his argument as to the

voluntary manslaughter charge. See N.C. Gen. Stat. § 15A-1443(a).

      “Voluntary manslaughter is the unlawful killing of a human being without

malice and without premeditation and deliberation.” State v. Norris, 303 N.C. 526,



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529, 279 S.E.2d 570, 572 (1981). Voluntary manslaughter requires the State to prove

two elements: “(1) Defendant killed [the victim] by an intentional and unlawful act

and (2) Defendant’s act was the proximate cause of [the victim’s] death.” State v.

English, 241 N.C. App. 98, 105, 772 S.E.2d 740, 745 (2015); see also N.C.P.I. – Crim.

206.13.

      Coleman argues that the trial court should have granted his motion for

directed verdict on the voluntary manslaughter charge because “no evidence was

presented by the State to even suggest that [Coleman] acted in the heat of passion.”

We reject this argument because acting in the “heat of passion” is not an essential

element of voluntary manslaughter. To be sure, evidence that a defendant acted in

the heat of passion can negate the malice element required for the greater offenses of

first or second degree murder. See State v. Rainey, 154 N.C. App. 282, 288, 574 S.E.2d

25, 29 (2002). But to prove voluntary manslaughter, the State need not prove that

the defendant acted in the heat of passion; instead, the State must prove only that

the defendant killed the victim by an intentional and unlawful act and that the

defendant’s act was a proximate cause of the victim’s death.

      Here, the State presented evidence showing that Coleman shot his wife and

admitted that he shot her. His sole defense was that he did not act voluntarily due to

his low blood sugar, which placed him in a state of automatism. The State presented

admissible expert testimony that Coleman was not in a state of automatism when he



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shot his wife. Thus, there was substantial evidence from which a reasonable jury

could reject Coleman’s automatism defense and conclude that Coleman intentionally

shot and killed his wife—the only elements necessary to prove voluntary

manslaughter. Accordingly, the trial court properly denied Coleman’s motion.

   II.      Cross-examination of Coleman’s expert witness regarding fees

         Coleman next argues that the trial court committed plain error by allowing the

State to question his expert witness, Dr. George Corvin, regarding the amount of fees

Dr. Corvin received for testifying in other, unrelated criminal cases. Coleman argues

that the question was not relevant and thus was inadmissible.

         As an initial matter, although Coleman asserts that this was plain error (the

standard of review for unpreserved evidentiary challenges), Coleman’s counsel timely

objected to this line of questioning at trial by stating “objection, relevance.” We

therefore review it for ordinary prejudicial error, rather than the more onerous

standard for plain error.

         This Court reviews a ruling on relevance de novo, but affords the trial court

“great deference” on appeal. State v. Capers, 208 N.C. App. 605, 615, 704 S.E.2d 39,

45 (2010). Evidence is relevant if it has “any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule 401.




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      Applying this definition, we hold that the challenged evidence was relevant to

“test partiality towards the party by whom the expert was called.” State v. Cummings,

352 N.C. 600, 620, 536 S.E.2d 36, 51 (2000). From the large sums of money that

Coleman’s expert earned by testifying solely on behalf of criminal defendants, a

reasonable jury could infer that the expert had an incentive to render opinions

favorable to the criminal defendants who employ him. As our Supreme Court has

observed, this inference readily can be addressed and rebutted on redirect, for

example through the expert’s testimony that his fees are consistent with those

charged by others with similar levels of specialized knowledge and expertise. State v.

Brown, 335 N.C. 477, 493, 439 S.E.2d 589, 599 (1994). Moreover, in appropriate cases,

a court might exclude this testimony because it is substantially more prejudicial than

probative. But as to the threshold question of relevance, the fact that an expert

witness may have a motive to testify favorably for the party calling him certainly is

a “fact of consequence” to the jury’s assessment of that witness’s credibility. Thus, the

challenged testimony was relevant and the trial court did not err in overruling

Coleman’s relevancy objection.

   III.   Expert testimony concerning Coleman’s state of mind

      Coleman next contends that the trial court committed plain error by allowing

Dr. Burch, the State’s expert witness, to testify to Coleman’s state of mind at the time




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of the shooting. Coleman argues that this testimony fell outside the permissible range

of Dr. Burch’s expert testimony.

      Again, we note that although Coleman asserts plain error, his counsel timely

objected to the challenged testimony, preserving this issue for appellate review. We

therefore review it for prejudicial error, rather than the more onerous standard for

plain error.

      “The trial court’s decision regarding what expert testimony to admit will be

reversed only for an abuse of discretion.” State v. Alderson, 173 N.C. App. 344, 350,

618 S.E.2d 844, 848 (2005). “Rule 702(a) has three main parts, and expert testimony

must satisfy each to be admissible. First, the area of proposed testimony must be

based on scientific, technical or other specialized knowledge that will assist the trier

of fact to understand the evidence or to determine a fact in issue.” State v. McGrady,

368 N.C. 880, 889, 787 S.E.2d 1, 8 (2016). “Second, the witness must be qualified as

an expert by knowledge, skill, experience, training, or education.” Id. at 889, 787

S.E.2d at 9. “Third, the testimony must meet the three-pronged reliability test that

is new to the amended rule: (1) The testimony [must be] based upon sufficient facts

or data. (2) The testimony [must be] the product of reliable principles and methods.

(3) The witness [must have] applied the principles and methods reliably to the facts

of the case.” Id. at 890, 787 S.E.2d at 9.




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      Here, Dr. Burch, an endocrinologist, testified that, based on his experience

with hypoglycemia and his review of Coleman’s medical records and accounts of what

had occurred the day of the shooting, Coleman’s actions were “not caused by

automatism due to hypoglycemia. Automatism due to hypoglycemia is possible but

not probable given the bulk of the evidence.” Dr. Burch testified that he reached this

opinion largely because Coleman did not experience any amnesia which, in Dr.

Burch’s experience, is one of the characteristic features of automatism caused by

hypoglycemia.

      Coleman argues that this testimony, while couched as expert medical

testimony, is merely speculation about Coleman’s state of mind at the time of the

shooting. We disagree. Dr. Burch is an endocrinologist whose expertise includes

“automatism primarily as it relates to responsibility in driving motor vehicles and

collisions by those suffering from hypoglycemia.” The trial court properly found that

Dr. Burch was an expert in the signs and symptoms that accompany automatism

caused by hypoglycemia and that his testimony was based on sufficient data and facts

using “well documented and accepted principles and methods in the field of

endocrinology.”

      Applying that expertise, Dr. Burch testified that, in his opinion, Coleman was

not in a state of automatism when he shot his wife because he did not suffer from

amnesia, a key characteristic of the condition. The trial court acted well within its



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sound discretion in admitting this expert testimony. See McGrady, 368 N.C. at 893,

787 S.E.2d at 11.

   IV.      Jury instruction on defense of automatism

         Coleman next argues that the trial court committed plain error in its

instructions to the jury on the defense of automatism.

         We agree that Coleman failed to preserve this error for appellate review and

thus we review solely for plain error. “For error to constitute plain error, a defendant

must demonstrate that a fundamental error occurred at trial.” State v. Lawrence, 365

N.C. 506, 518, 723 S.E.2d 326, 334 (2012). “To show that an error was fundamental,

a defendant must establish prejudice—that, after examination of the entire record,

the error had a probable impact on the jury’s finding that the defendant was guilty.”

Id. Plain error should be “applied cautiously and only in the exceptional case” where

the error “seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Id.

         Coleman contends that the jury instruction was misleading because it implied

that Coleman had to prove the defense of automatism beyond a reasonable doubt. As

explained below, we reject this argument.

         The trial court instructed the jury on the defense of automatism using the

North Carolina Pattern Jury Instructions. The court instructed the jury:

                     You may find there is evidence which tends to show
               that the defendant was physically unable to control his


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             physical    actions    because      of   automatism      or
             unconsciousness; that is a state of mind in which a person,
             though capable of action, is not conscious of what the
             person is doing at the time the crime was alleged to have
             been committed.

                    In this case, one element that the State must prove
             beyond a reasonable doubt is that the act charged be done
             voluntarily. Therefore, unless you find from the evidence
             beyond a reasonable doubt that at the time the defendant
             was able to exercise conscious control of the defendant’s
             physical actions, the defendant would be not guilty of the
             crime.

                   If the defendant was unable to act voluntarily the
             defendant would not be guilty of any offense.

                    The burden of persuasion rests on the defendant to
             establish this defense to the satisfaction of the jury.
             However, unlike the State, which must prove all the other
             elements beyond a reasonable doubt, the defendant need
             only prove the defendant’s unconsciousness to your
             satisfaction. That is, the evidence taken as a whole must
             satisfy you, not beyond a reasonable doubt but simply to
             your satisfaction, that defendant was unconscious at the
             time of the alleged offense.

(Emphasis added). The trial court then instructed the jury on each charge and

explained that if the jury found “beyond a reasonable doubt” that Coleman met all

the elements of the particular offense, “it would be your duty to return a verdict of

guilty . . . unless you are satisfied that the defendant was not guilty by reason of

unconsciousness.” And finally, the court concluded its instructions with, “If you do

not so find or have a reasonable doubt as to one or more of these things, or if you are




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satisfied that the defendant was not guilty by reason of unconsciousness, it would be

your duty to return a verdict of not guilty.”

      These instructions accurately stated the law. As an initial matter, the

instructions are almost entirely a verbatim recitation of the pattern jury instructions,

which this Court has held is the preferred manner of instructing the jury on all issues.

Henry v. Knudsen, 203 N.C. App. 510, 519, 692 S.E.2d 878, 884 (2010). Moreover,

even where these instructions depart from the pattern instructions, they accurately

state the law. The instructions explained the proper burden of proof for the defense

of automatism as well as the principle that if the jury found that Coleman had met

his burden of proving the defense then he would not be guilty of any crime. The

instructions explicitly stated that Coleman’s burden was “to establish this defense to

the satisfaction of the jury” and that “unlike the State, which must prove all the other

elements beyond a reasonable doubt, the defendant need only prove the defendant’s

unconsciousness to your satisfaction.” (Emphasis added). The instructions also

explicitly stated that “[i]f the defendant was unable to act voluntarily the defendant

would not be guilty of any offense.” (Emphasis added). Finally, the instructions on

each of the charged offenses indicated that a finding of unconsciousness or

automatism would require a verdict of not guilty.




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        Accordingly, we hold that the trial court’s jury instructions on automatism,

considered in context, were a correct statement of the law. We therefore find no error

and certainly no plain error.

   V.      Omission of involuntary manslaughter from jury charge

        Finally, Coleman argues that the trial court committed plain error by not

instructing the jury on the lesser-included offense of involuntary manslaughter. This

argument is not preserved for appellate review and thus is subject to the plain error

standard described above.

        “An instruction on a lesser-included offense must be given only if the evidence

would permit the jury rationally to find defendant guilty of the lesser offense and to

acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771

(2002). In the context of a shooting, the charge of involuntary manslaughter requires

evidence of “the absence of intent to discharge the weapon.” State v. Robbins, 309

N.C. 771, 779, 309 S.E.2d 188, 192 (1983). This distinguishes involuntary

manslaughter from its voluntary counterpart, which requires proof of intent.

        Coleman’s argument fails because there was no evidence at trial suggesting

that Coleman did not intend to shoot his wife. Coleman’s defense relied on his

argument that he was in a state of automatism—a complete defense to all criminal

charges. The jury rejected that defense. Setting automatism aside, there is no

evidence suggesting the shooting was an accident. Accordingly, we find no error in



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the trial court’s failure to instruct the jury on the lesser-included offense of

involuntary manslaughter.

                                    Conclusion

      For the reasons discussed above, we find no error in the trial court’s judgment.

      NO ERROR.

      Chief Judge McGEE and Judge MURPHY concur.




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