                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA 17-295

                                Filed: 1 May 2018

Davidson County, Nos. 14CRS052802, 052862

STATE OF NORTH CAROLINA

            v.

QUINCY JEROME SOLOMON, Defendant.


      Appeal by defendant from judgment entered 18 October 2016 by Judge Eric L.

Levinson in Davidson County Superior Court. Heard in the Court of Appeals 5

October 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General John W.
      Congleton, for the State.

      Glover & Petersen, P.A., by James R. Glover, for defendant-appellant.


      BERGER, Judge.


      On October 18, 2016, a Davidson County jury found Quincy Jerome Solomon

(“Defendant”) guilty of second degree murder and fleeing to elude arrest. Defendant

appeals contending the trial court erred by excluding testimony regarding

Defendant’s purported diagnosed mental disorders. We disagree.

                       Factual and Procedural Background

      On the night of May 28, 2014, Defendant transported a group of his friends in

his Mitsubishi Eclipse from Thomasville, North Carolina to a friend’s home in High
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                                   Opinion of the Court



Point, North Carolina.    Defendant was never issued a driver’s license, and his

privilege to drive was suspended in October 2013 due to a conviction for driving by a

person less than twenty-one years old after consuming alcohol or drugs. Defendant’s

vehicle had no insurance, registration, or license plate.

       After staying in Thomasville for approximately one hour, Defendant attempted

to return to High Point with Keith Sheffield (“the victim”) sitting in the front-

passenger seat and Justin Walker (“Justin”) sitting on the rear floor as there were no

seats in the back of Defendant’s vehicle.       At that time, the Thomasville Police

Department had established a license check station on National Highway. Around

1:00 a.m. on May 29, 2014, Sergeant Jason Annas observed Defendant’s vehicle travel

towards the license check station, crest over a hill, and make an illegal U-turn.

Defendant traveled away from the license check station at a high rate of speed with

a rear taillight out.

       Officer Dustin Gallimore activated the lights and siren on his marked patrol

car and pursued Defendant’s vehicle heading northeast on National Highway. Officer

Gallimore’s patrol car reached speeds in excess of 100 miles per hour in a forty-five

mile-per-hour zone in his effort to apprehend Defendant. During the seven-mile

pursuit, Defendant: (1) drove his vehicle between fifteen and fifty-five miles per hour

over the speed limit while driving through multiple residential areas where he passed

both pedestrians and vehicles parked on narrow streets; (2) drove into a private



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                                   Opinion of the Court



driveway, turned around, and then drove towards the oncoming officer’s patrol car

while revving his engine; (3) drove left of the center lane and straddled the middle

double yellow lines; (4) lost control of his vehicle on a curve in the road and went off

of the road; (5) traveled at speeds of seventy to eighty miles per hour; (6) avoided stop

sticks deployed by law enforcement; and (7) failed to stop at five stop signs during the

pursuit. Defendant ultimately lost control of the vehicle and crashed into a ravine.

      Officers arrived on scene shortly thereafter to find the vehicle upside down in

the ravine, Justin standing behind the vehicle with a laceration to his arm, and

Defendant on the ground holding the victim’s head in his hands. Defendant told

officers on scene, “This is all my fault. They were telling me to slow down and stop.

I did not. I was driving. These other guys did not have anything to do with this.

They were telling me to slow down and stop.” The victim died on May 31, 2014 from

injuries sustained in the crash.

      On June 2, 2014, Defendant was indicted by the Davidson County Grand Jury

for second degree murder, speeding to elude arrest, and attempted assault with a

deadly weapon on a law enforcement officer. The charge of attempted assault with a

deadly weapon on a law enforcement officer was dismissed.

      At trial, Defendant attempted to testify to his cognitive impairments and

behavioral problems on direct examination.          The State objected to Defendant’s

testimony, arguing that Defendant had failed to provide notice of an insanity or



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diminished capacity defense, and he had failed to provide an expert witness or

medical documentation for any of the purported conditions. On voir dire, Defendant

testified that he suffered from several mental disorder including Attention Deficit

Disorder (“ADD”), Attention Deficit Hyperactivity Disorder (“ADHD”), Pediatric

Bipolar Disorder (“PBD”), and Oppositional Defiant Disorder (“ODD”). Defendant’s

counsel stated they were not offering the testimony as a defense, but instead “offering

it so the jury would be aware of [Defendant’s] condition and state of mind.”

      The trial court determined that lay testimony from Defendant regarding his

various purported mental disorders would not be allowed because it was not relevant

pursuant to Rule 401 of the North Carolina Rules of Evidence. However, the trial

court did allow Defendant to testify to his general behavioral issues and academic

performance.

      On October 18, 2016, the jury found Defendant guilty of second degree murder

and fleeing to elude arrest. Defendant was sentenced to 162 to 207 months in prison

for the second degree murder offense, and the trial court arrested judgment on the

fleeing to elude arrest offense. Defendant gave notice of appeal in open court upon

entry of final judgment.

                                       Analysis




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                                       Opinion of the Court



       Defendant contends on appeal that the trial court erred by excluding

Defendant’s testimony concerning his purported medical diagnoses as irrelevant

under N.C. Gen Stat. § 8C-401, Rule 401. We disagree.

               Although the trial court’s rulings on relevancy technically
               are not discretionary and therefore are not reviewed under
               the abuse of discretion standard applicable to Rule 403,
               such rulings are given great deference on appeal. Because
               the trial court is better situated to evaluate whether a
               particular piece of evidence tends to make the existence of
               a fact of consequence more or less probable, the appropriate
               standard of review for a trial court’s ruling on relevancy
               pursuant to Rule 401 is not as deferential as the “abuse of
               discretion” standard which applies to rulings made
               pursuant to Rule 403.1

Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004) (citations and

quotation marks omitted).

       “ ‘Relevant evidence’ means evidence having 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-401, Rule 401 (2017). “The admissibility of evidence is governed by a threshold

inquiry into its relevance. In order to be relevant, the evidence must have a logical

tendency to prove any fact that is of consequence in the case being litigated.” State

v. Griffin, 136 N.C. App. 531, 550, 525 S.E.2d 793, 806 (citations and quotation marks


       1  “Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C.
Gen. Stat. § 8C-403, Rule 403 (2017).

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omitted), appeal dismissed and disc. review denied, 351 N.C. 644, 543 S.E.2d 877

(2000).

             If the witness is not testifying as an expert, his testimony
             in the form of opinions or inferences is limited to those
             opinions or inferences which are (a) rationally based on the
             perception of the witness and (b) helpful to a clear
             understanding of his testimony or the determination of a
             fact in issue.

N.C. Gen. Stat. § 8C-701, Rule 701 (2017).

      Defendant contends that informing the jury of his medical diagnoses would

have been “helpful to [give a] clear understanding of his testimony or the

determination of a fact in issue.” See id. Specifically, Defendant argues it was

essential that the jury hear evidence of Defendant’s inability to comprehend the

gravity of his actions and the danger that his conduct presented to the victim because

of his purported medical diagnoses.

      Defendant attempted to offer specific medical diagnoses through his own

testimony to lessen his culpability or explain his conduct without any accompanying

documentation, foundation, or expert testimony. Defendant’s testimony regarding

the relationship between his medical diagnoses and his criminal conduct was not

relevant without additional foundation or support.       Such evidence would have

required a tendered expert witness to put forth testimony that complies with the rules

of evidence. Without a proper foundation from an expert witness and accompanying

medical documentation, Defendant’s testimony would not make a fact of consequence


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more or less probable from its admittance. See N.C. Gen. Stat. § 8C-401, Rule 401;

Griffin, 136 N.C. App. at 550, 525 S.E.2d at 806.

      Accordingly, we find no error in the exclusion of Defendant’s opinion testimony

regarding his medical conditions and its impact on his conduct as it was more

confusing than helpful to the jury without further supporting evidence demonstrating

its relevance.

      Assuming, arguendo, the trial court improperly excluded Defendant’s

testimony under Rule 401, the purported error was not prejudicial against Defendant.

             A defendant is prejudiced by errors relating to rights
             arising other than under the Constitution of the United
             States when there is a reasonable possibility that, had the
             error in question not been committed, a different result
             would have been reached at the trial out of which the
             appeal arises. The burden of showing such prejudice under
             this subsection is upon the defendant.

N.C. Gen. Stat. § 15A-1443(a) (2017); see also State v. Lawrence, 365 N.C. 506, 513,

723 S.E.2d 326, 331 (2012) (citation omitted) (“North Carolina harmless error review

requires the defendant to bear the burden of showing prejudice.”). Defendant has

presented no evidence to indicate the likelihood that the jury would have reached a

different verdict had the testimony been allowed. See State v. Weeks, 322 N.C. 152,

163, 367 S.E.2d 895, 902 (1988).

             [T]o prove malice in second-degree murder prosecutions
             involving automobile accidents, it is necessary for the State
             to prove only that defendant had the intent to perform the
             act of driving in such a reckless manner as reflects


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             knowledge that injury or death would likely result, thus
             evidencing depravity of mind.

State v. Bethea, 167 N.C. App. 215, 218-19, 605 S.E.2d 173, 177 (2004) (citation,

quotation marks, and brackets omitted). “[W]hat constitutes proof of malice will vary

depending on the factual circumstances in each case.” Id. (citation and quotation

marks omitted). In North Carolina, our Supreme Court has recognized that “malice

arises when an act which is inherently dangerous to human life is done so recklessly

and wantonly as to manifest a mind utterly without regard for human life and social

duty and deliberately bent on mischief.” State v. Reynolds, 307 N.C. 184, 191, 297

S.E.2d 532, 536 (1982) (citation omitted). “In the context of an automobile accident,

this requirement [of malice] means that the State must prove that 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.” State v.

Mack, 206 N.C. App. 512, 517, 697 S.E.2d 490, 493-94, disc. review denied, 364 N.C.

608, 704 S.E.2d 276 (2010) (citation and quotation marks omitted).

      The State presented evidence that tended to show Defendant (1) drove while

his license was suspended, (2) fled to elude law enforcement, and (3) drove at speeds

nearly double the posted forty-five mile per hour speed limit. Defendant testified at

trial: “There was a road block. I decided to turn around and leave. I decided because

the car was not legal, the car had no tags, no insurance, and I don’t have a license




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because they suspended my license for drinking alcohol.” Defendant concedes there

was sufficient evidence to submit the charge of second degree murder to the jury.

      Further, Defendant admitted on cross-examination:

            [The State]: Tell us about the stop sticks. You saw the stop
            sticks. You saw the blue lights and avoided those?

            [Defendant]: Yes, ma’am. I saw the blue lights on the left-
            hand side of the intersection and the right-hand side of the
            intersection. The only way I saw the spikes, [the victim]
            said “spikes,” pointed them out to me. I went to the right
            side of the road, slowed down through the intersection,
            kept going.

            [The State]: You kept going and you kept speeding and you
            lost control of the car again at Will Johnson Road?

            [Defendant]: Yes, ma’am.

            [The State]: And crashed into the ravine?

            [Defendant]: Yes, ma’am.

            [The State]: And [the victim] and Justin were asking you
            to stop, weren’t they?

            [Defendant]: Yes, ma’am, after the first time. We sped out
            that first time. About 35 minutes down [the] road they
            asked me to stop and I told them I got you, meaning, that’s
            slang for you know I’m going to do it.

            [The State]: So you kept driving even though they asked
            you to stop?

            [Defendant]: I was looking for a straight to pull over on.
            We was in that residential area. I didn’t know which was
            streets or which was driveways.



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             ....

             [The State]:    You could have stopped back at the road
             block?

             [Defendant]: I could have stopped, yes, ma’am, you are
             right.

             [The State]: They asked you to slow down, too, didn’t they?

             [Defendant]: Yes, ma’am, and I did.

             [The State]: You told the officers that you did it, you were
             responsible, nobody but me?

             [Defendant]: That is true. I am responsible. I was the
             driver.

      Defendant’s testimony on cross-examination demonstrates that he understood

and appreciated the increased risk that resulted from his conduct.           Defendant

admitted he was driving the vehicle without a license, intentionally did not stop for

police, did not drive safely while in residential neighborhoods or on state roads, failed

to stop at stop signs, and lost control of the vehicle several times. Defendant further

admitted that he ignored his passengers’ pleas to slow down and stop fleeing from

law enforcement, knowing that his operation of the vehicle was extremely dangerous.

See Mack, 206 N.C. App. at 517, 697 S.E.2d at 493-94. Defendant’s testimony and

statements showed he had the requisite “knowledge that injury or death would likely

result” from his actions, satisfying the malice element of the crime charged. Id.




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      Accordingly, we hold that any possible error in the preclusion of Defendant’s

medical testimony would have been harmless because the State presented evidence

tending to show malice through Defendant’s conduct leading to the victim’s death.

See id.   Defendant did not put forth evidence to satisfy the burden of showing

prejudice from the trial court excluding his opinion testimony regarding specific

medical diagnoses. See Lawrence, 365 N.C. at 513, 723 S.E.2d at 331.

                                    Conclusion

      Defendant received a fair trial free from error. The trial court did not err in

precluding Defendant from testifying about his purported diagnosed mental disorders

without documentation, evidence, or proper foundation. Furthermore, even if the

trial court erred, the purported error was harmless.

      NO ERROR.

      Judges DAVIS and ZACHARY concur.




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