              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA17-345

                               Filed: 17 October 2017

McDowell County, No. 13 CRS 50608

STATE OF NORTH CAROLINA

             v.

DARIAN JARELLE MOSLEY


      Appeal by defendant from judgment entered 24 May 2016 by Judge R. Gregory

Horne in McDowell County Superior Court.              Heard in the Court of Appeals

21 September 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Steven
      Armstrong, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender John F.
      Carella, for defendant-appellant.


      ARROWOOD, Judge.


      Darian Jarelle Mosley (“defendant”) appeals from judgment entered upon his

conviction for second degree murder.       For the following reasons, we vacate and

remand to the trial court for resentencing.

                                 I.       Background
                                  STATE V. MOSLEY

                                  Opinion of the Court



      On 20 May 2013, a McDowell County Grand Jury indicted defendant on one

charge of first degree murder. The case was called for a jury trial in McDowell County

Superior Court on 16 May 2016, the Honorable R. Gregory Horne, Judge, presiding.

      The evidence presented at trial tended to show the following facts: Defendant

and the victim were in a relationship. In the early morning hours of 16 April 2013,

defendant and the victim had an argument, during the course of which the victim was

fatally shot in the abdomen by a .22 rifle held by defendant.

      Defendant did not deny that he shot the victim, but stated it was an accident.

Defendant testified that he left the victim’s residence following the initial dispute,

but returned shortly thereafter to gather his belongings, specifically his clothes and

his rifle. Defendant testified that as he was leaving with his belongings, he stopped

in the bedroom doorway to talk to the victim, who was in the bedroom. Defendant

had a plastic bag of clothes in his right hand and the rifle in his left hand with his

finger around the trigger. Defendant also testified that “[the victim] reached towards

the gun, and [he] took it away from her, and that’s when the gun went off.”

      On cross-examination, defendant further testified that the victim wanted him

to put this belongings down and as he pushed the victim away, she grabbed the barrel

of the rifle and it went off. Defendant knew how to fire the rifle, but never had any

safety training. Defendant stated that he always carried the rifle around with his




                                         -2-
                                   STATE V. MOSLEY

                                   Opinion of the Court



finger on the trigger and that he never used the safety. Defendant also testified he

did not know the rifle was loaded.

      At the conclusion of the evidence, the trial court instructed the jury on first

degree murder and the lesser included offenses of second degree murder, voluntary

manslaughter, and involuntary manslaughter in accordance with N.C.P.I--Crim.

206.13, the pattern instruction for first degree murder where a deadly weapon is

used, not involving self-defense, covering all lesser included homicide offenses.

Included in the instructions for first degree murder, the trial court instructed the jury

on the definitions of express malice and deadly weapon implied malice. The trial

court did not give the additional definition of malice included in N.C.P.I--Crim.

206.30A when it instructed on second degree murder, only stating that malice was

required. On 24 May 2016, the jury returned a general verdict finding defendant

guilty of second degree murder.          The trial judge entered judgment sentencing

defendant to 240 to 300 months imprisonment for second degree murder, a term

within the presumptive range of punishment for a Class B1 felony. Defendant gave

notice of appeal in open court.

                                   II.      Discussion

      On appeal, defendant argues the trial court erred in sentencing him for second

degree murder as a Class B1 offense because “[t]he jury’s verdict of second-degree

murder failed to support the trial court’s imposition of a Class B1 sentence and



                                            -3-
                                        STATE V. MOSLEY

                                        Opinion of the Court



supported only a sentence for a Class B2 offense.” Thus, defendant asserts this Court

must remand for resentencing. Alternatively, defendant argues that if this Court

denies relief under his first argument, this Court should order a new trial because

the trial court plainly erred in omitting an “inherently dangerous acts” definition of

malice from the second degree murder instructions. We reach only the first issue on

appeal, which is similar to an issue recently addressed by this Court in State v. Lail,

__ N.C. App. __, 795 S.E.2d 401 (2016), disc. review denied, __ N.C. __, 796 S.E.2d 927

(2017).1 “We review de novo whether the sentence imposed was authorized by the

jury’s verdict.” Id. at __, 795 S.E.2d at 408.

       In Lail, the defendant appealed from a judgment sentencing him as a B1 felon

for second degree murder. Specifically,

               [the d]efendant conted[ed] the trial court improperly
               sentenced him as a B1 felon based on the jury’s general
               verdict, since the evidence presented may have supported
               a finding that he acted with depraved-heart malice.
               Therefore, [the] defendant argue[d], the jury’s verdict
               failing to specify whether depraved-heart malice theory
               supported its conviction did not authorize the trial judge to
               sentence him as a B1 felon but requires that he be
               resentenced as a B2 felon.

Id. at __, 795 S.E.2d at 408. Before addressing the defendant’s argument, this Court

explained the relevant law on malice as it relates to second degree murder as follows:

               Malice is an essential element of second-degree murder.
               See, e.g., State v. Thomas, 325 N.C. 583, 604, 386 S.E.2d

       1 We note that this Court issued its opinion in Lail after the trial court entered judgment in
the present case. Thus, the trial court did not have the benefit of Lail’s guidance.

                                                -4-
                                   STATE V. MOSLEY

                                   Opinion of the Court



             555, 567 (1989). North Carolina recognizes at least three
             malice theories:

                 (1) “express hatred, ill-will or spite”; (2) commission of
                 inherently dangerous acts in such a reckless and
                 wanton manner as to “manifest a mind utterly without
                 regard for human life and social duty and deliberately
                 bent on mischief”; or (3) a “condition of mind which
                 prompts a person to take the life of another
                 intentionally without just cause, excuse, or
                 justification.”

             State v. Coble, 351 N.C. 448, 450-51, 527 S.E.2d 45, 47
             (2000) (quoting State v. Reynolds, 307 N.C. 184, 191, 297
             S.E.2d 532, 536 (1982)). “The second type of malice [is]
             commonly referred to as ‘depraved-heart’ malice[.]” State
             v. Fuller, 138 N.C. App. 481, 484, 531 S.E.2d 861, 864
             (2000) (citing State v. Rich, 351 N.C. 386, 527 S.E.2d 299
             (2000)).

Id. at __, 795 S.E.2d at 407. The Court further explained that while “depraved-heart

malice” had been frequently used to support second degree murder convictions in

drunk driving cases, it was not limited to such situations. Id. at __, 795 S.E.2d at

407.

       Prior to 2012, all second degree murders were classified as Class B2 felonies.

In 2012, our General Assembly amended N.C. Gen. Stat. § 14-17 to classify all second

degree murders as Class B1 felonies except for in two specific exceptions, in which

second degree murder remains a Class B2 felony. See 2012 N.C. Sess. Laws ch. 165,

§ 1. The exception at issue here is found in N.C. Gen. Stat. § 14-17(b)(1), which states:

             The malice necessary to prove second degree murder is
             based on an inherently dangerous act or omission, done in
             such a reckless and wanton manner as to manifest a mind

                                          -5-
                                 STATE V. MOSLEY

                                 Opinion of the Court



             utterly without regard for human life and social duty and
             deliberately bent on mischief.

N.C. Gen. Stat. § 14-17(b)(1) (2015). This exception is the previous common law

definition of depraved-heart malice. See Coble, 351 N.C. at 450-51, 527 S.E.2d at 47.

      In Lail, the Court rejected the defendant’s contention finding that

             [n]o evidence presented would have supported a finding
             that [the] defendant acted with B2 depraved-heart malice.
             The evidence presented supported only B1 theories of
             malice and the jury was instructed only on those theories.
             Therefore, although the jury was not instructed to answer
             under what malice theory it convicted defendant of second-
             degree murder, it [was] readily apparent from the evidence
             presented and instructions given that the jury, by their
             verdict, found defendant guilty of B1 second-degree
             murder.

__ N.C. App. at __, 795 S.E.2d at 410. Pertinent to this case, however, this Court

noted that

             a general verdict would be ambiguous for sentencing
             purposes where the jury is charged on second-degree
             murder and presented with evidence that may allow them
             to find that either B2 depraved-heart malice or another B1
             malice theory existed. In such a situation, courts cannot
             speculate as to which malice theory the jury used to
             support its conviction of second-degree murder. See State
             v. Goodman, 298 N.C. 1, 16, 257 S.E.2d 569, 580 (1979) (“If
             the jury’s verdict were general, not specifying the theory
             upon which guilt was found, the court would have no way
             of knowing what theory the jury used and would not have
             proper basis for passing judgment.”).

Id. at __, 795 S.E.2d at 411.




                                        -6-
                                  STATE V. MOSLEY

                                  Opinion of the Court



      In the present case, the jury unanimously convicted defendant of second degree

murder. The jury verdict, however, was silent on whether the second degree murder

was a Class B1 or a Class B2 offense. Defendant’s first argument on appeal is that

the jury’s general verdict of guilty of second degree murder is ambiguous for

sentencing purposes because there was evidence in this case of depraved-heart malice

to support a verdict of guilty of a Class B2 second degree murder. We agree.

      As this Court made clear in Lail, our Supreme Court has held that “the reckless

use of a deadly weapon constituted a depraved-heart malice theory supporting a

murder conviction.” Id. at __, 795 S.E.2d at 409 (citing State v. Lilliston, 141 N.C.

857, 859, 54 S.E. 427, 427 (1906) (upholding murder conviction under depraved-heart

malice theory where the defendant in the crowded reception room of a railroad station

engaged in a shootout, causing the death of an innocent bystander)).

      In the case sub judice, unlike in Lail, there was evidence of defendant’s reckless

use of a rifle, a deadly weapon. Specifically, defendant testified that as he was

arguing with the victim, he was holding the rifle with his finger on the trigger and

without the safety on. Defendant stated this was how he always handled the rifle –

finger on the trigger and no safety. Defendant testified that in this instance, the gun

went off when the victim grabbed the barrel of the rifle and he pushed her away.

There was also testimony about the safety on the rifle and testimony from a firearm

expert that “[y]ou would never teach anyone to have their finger on the trigger until



                                         -7-
                                   STATE V. MOSLEY

                                   Opinion of the Court



they are ready to fire.” Moreover, the State argued to the jury that defendant’s

actions amounted to more than criminal negligence, claiming that defendant’s

handling of the rifle amounted to “gross recklessness or carelessness as to amount to

the heedless indifference to the safety and rights of others.”

      In response to defendant’s argument that the evidence supported a depraved-

heart theory of malice and a Class B2 second degree murder, the State points to other

evidence presented in the case from which the State claims the trial judge could have

correctly concluded that the Class B1 felony sentence was proper. That evidence,

however, is not in question. There is no doubt that there is evidence of malice

supporting a Class B1 second degree murder. The issue presently before this Court

is whether there is also evidence from which the jury could have found depraved-

heart malice to convict defendant of a Class B2 second degree murder. We hold there

is such evidence in this case.

      Because there was evidence presented which would have supported a verdict

on second degree murder on more than one theory of malice, and because those

theories support different levels of punishment under N.C. Gen. Stat. § 14-17(b), the

verdict rendered in this case was ambiguous. When a verdict is ambiguous, neither

we nor the trial court is free to speculate as to the basis of a jury’s verdict, and the

verdict should be construed in favor of the defendant. State v. Whittington, 318 N.C.

114, 123, 347 S.E.2d 403, 408 (1986); see also State v. Williams, 235 N.C. 429, 430, 70



                                          -8-
                                  STATE V. MOSLEY

                                  Opinion of the Court



S.E.2d 1, 2 (1952) (“Any ambiguity in a verdict will be construed in favor of the

defendant.”). Given the ambiguity in the second degree murder verdict in this case,

we vacate defendant’s sentence and remand the matter for resentencing for second

degree murder as a Class B2 felony offense.

      In order to avoid such ambiguity in the future, we recommend two actions.

First, the second degree murder instructions contained as a lesser included offense in

N.C.P.I.--Crim. 206.13 should be expanded to explain all the theories of malice that

can support a verdict of second degree murder, as set forth in N.C.P.I.--Crim.

206.30A. Secondly, when there is evidence to support more than one theory of malice

for second degree murder, the trial court should present a special verdict form that

requires the jury to specify the theory of malice found to support a second degree

murder conviction.

                                  III.   Conclusion

      For the reasons discussed above, we hold the trial court erred in sentencing

defendant for second degree murder as a Class B1 offense. Thus, we vacate the

judgment and remand the matter for resentencing for second degree murder as a

Class B2 felony offense.

      VACATED AND REMANDED.

      Judges HUNTER, JR., and DILLON concur.




                                         -9-
