An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-336
                       NORTH CAROLINA COURT OF APPEALS
                             Filed:    21 January 2014
STATE OF NORTH CAROLINA

                                                Carteret County
      v.
                                                No. 11 CRS 51395

AARON WESLEY McGARVA


      Appeal by defendant from judgment entered 26 April 2012 by

Judge Kenneth F. Crow in Carteret County Superior Court.                      Heard

in the Court of Appeals 12 September 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Kathryne E. Hathcock, for the State.

      Cheshire Parker Schneider & Bryan, PLLC, by John Keating
      Wiles, for Defendant.


      ERVIN, Judge.


      Defendant     Aaron    Wesley    McGarva     appeals     from   a   judgment

sentencing him to a term of 132 to 168 months imprisonment based

upon his consolidated convictions for second degree murder and

felonious hit and run driving involving serious injury or death.

On   appeal,    Defendant     argues     that    the   trial    court     erred   by

denying his motion to dismiss the second degree murder charge on

the grounds that the record did not contain sufficient evidence
                                     -2-
to support a finding that he acted with malice and by improperly

instructing the jury concerning the extent, if any, to which

voluntary intoxication sufficed to preclude a finding of malice.

After   careful    consideration    of   Defendant’s    challenges      to    the

trial court’s judgment in light of the record and the applicable

law, we conclude that the trial court’s judgment should remain

undisturbed.

                            I. Factual Background

                            A. Substantive Facts

    At approximately 9:00 p.m. on 2 April 2011, Defendant Aaron

McGarva went to the apartment of his friend, Chris Taylor, in

downtown Morehead City so that the two of them could play their

guitars.   After Defendant’s arrival, the two men began playing

their guitars, drinking beer, and smoking some marijuana that

Defendant had brought with him.            In addition, Defendant offered

LSD to Mr. Taylor, who consumed some of the LSD although he had

never   ingested    that    substance    before.      Mr.   Taylor   did      not

remember seeing Defendant consume any LSD.

    A    while     later,   Mr.   Taylor    and    Defendant   walked    to    a

downtown bar, where they encountered their friend, Christopher

Baggett, and his girlfriend, Morgan Smith, both of whom were

invited to come back to Mr. Taylor’s apartment to play music.

Mr. Baggett and Ms. Smith arrived at Mr. Taylor’s apartment at
                                           -3-
around 10:00 or 11:00 p.m.                Although Defendant offered some LSD

to Mr. Baggett, he declined that offer.                  After remaining at Mr.

Taylor’s apartment for a couple of hours, Mr. Baggett and Ms.

Smith left because, as Mr. Baggett noted, “[y]ou could tell that

they were starting to feel the effects of the acid” and because,

“if you’re not in the same mindset as them, it kind of makes you

feel awkward.”

       Although Defendant was “really chill” and “just kind of

relaxed” for most of the night, Mr. Taylor noticed a change in

Defendant’s behavior at around 5:00 a.m. on 3 April 2011.                           At

that point, Defendant went from being “chill” to “pretty-much

ready to go” and wanted to load up all of the guitar-related

equipment in his car so that Mr. Taylor could come play guitars

at Defendant’s house.              After Mr. Taylor told Defendant that he

was    not   going      to    comply   with      Defendant’s    wishes,     Defendant

grabbed Mr. Taylor’s amplifier, unplugged it, and put it in his

car.

       As    Mr.    Taylor    attempted     to    retrieve     his   amplifier    from

Defendant’s car, the two men exchanged words in the parking lot.

Mr. Taylor had never seen                 Defendant, who       was “agitated” and

“belligerent,”          act   in   this    manner    before.         Upon   regaining

possession         of   his    amplifier,     Mr.     Taylor     returned    to   his

apartment and locked the door in an effort to avoid a fight.
                                           -4-
After beating on the door of Mr. Taylor’s apartment for a few

minutes, Defendant got into his car, revved the engine a couple

of times, and drove off.

       The    intersection     of    4th    Street   and    Arendell    Street,    at

which Mr. Taylor’s apartment was located, was depicted on a

video camera operated by the State Ports Authority on the early

morning of 3 April 2011.              According to the images captured by

this    video     camera,    three     vehicles      were   traveling    eastbound

toward the high rise bridge that connected Morehead City and

Beaufort at 5:32 a.m. on 3 April 2011.                      The first of these

vehicles was a Beaufort city police car,                     which was       followed

about eight seconds later by a Toyota Tacoma pickup truck driven

by   William     Henry    Knott,     Jr.,   and    about    thirteen    to    fifteen

seconds later by Defendant’s Mitsubishi sports car.                      According

to     the    images     captured    by     the    video    camera,    Defendant’s

Mitsubishi made a proper stop at a stop sign and turned right

before proceeding toward the bridge.

       A different video camera, which was also operated by the

State Ports Authority, faced the high rise bridge and depicted

Mr. Knott’s pickup truck as it traveled east across the bridge.

Defendant’s vehicle, which appeared as a “little white dot,”

could be seen on images captured by this second camera as it

headed       towards   Mr.   Knott’s      truck.     According   to     the   images
                                                -5-
captured on the second video camera, an explosion occurred as

Defendant’s vehicle crashed into the back of Mr. Knott’s truck.

       According to Lieutenant James Gaskill of the Morehead City

Police    Department,          who    testified         as    an     expert      in     accident

reconstruction,         Defendant’s          vehicle         drove    up     underneath      Mr.

Knott’s pickup truck at the moment of impact and pushed his

truck    toward    the    right       to    a    point   adjacent          to   the     bridge’s

guardrail.       At that point, Mr. Knott’s truck flipped over, slid

down    the     guardrail,      and    fell       from       the     bridge.          Lieutenant

Gaskill       estimated    that,       at       the   time     of    the     collision,      Mr.

Knott’s pickup truck was traveling at a minimum speed of 54

miles per hour, that Defendant’s Mitsubishi was traveling at a

minimum speed of 102 miles per hour, and that Defendant made no

attempt to stop, slow, or otherwise avoid the crash.                                  Mr. Knott

died as a result of a broken neck sustained in the collision.

       Nivard Malcolm lived near the foot of the high rise bridge.

About    5:30    a.m.     on   3     April      2011,    Mr.       Malcolm      heard    a   loud

rumbling noise that lasted for about ten to fifteen seconds and

sounded like a cinematic depiction of a train crash.                                    After he

went outside, Mr. Malcolm saw a smoking car that had sustained

damage to its front end.                   Although the vehicle was unoccupied,

Mr. Malcolm saw someone lying on his back in the vicinity of the

car.     When Mr. Malcolm approached the person in question and
                                       -6-
inquired about his condition, the person repeatedly said, “I’m

dead,”   then    got    up;   swore   at    Mr.    Malcolm;     said,   “I’m   going

home”; and walked away in the direction of Beaufort.                        Although

the person whom he observed was agitated, Mr. Malcolm thought

that he was walking with an unremarkable gait at the time of his

departure.

    Deputies James McClenny and Michael Mull of the Carteret

County   Sheriff’s      Department    were    among    the      first   persons    to

arrive at the scene of the collision on the high rise bridge.

Both deputies observed a large amount of debris on the bridge at

the time of their arrival.            More specifically, Deputy McClenny

found what appeared to be the rear glass portion of a pickup

truck that displayed a complete VIN number that was assigned to

a pickup truck registered to Mr. Knott.                After realizing that a

large section of the bridge’s guardrail was missing and looking

over the side of the bridge without seeing a car in the water,

Deputy   Mull     walked      down    the    bridge       and   saw     a   burgundy

convertible in the bushes off the eastbound side of the road.

Although Deputy Mull did not see the driver of the convertible,

he did observe a bag of marijuana and a marijuana grinder on the

ground adjacent to the driver’s seat.

    After       being   dispatched     to    the   high    rise   bridge     in   the

aftermath of the collision, Officer Chris Morey of the Beaufort
                                            -7-
Police Department was told to be on the lookout for a pedestrian

heading in the direction of Beaufort.                         Subsequently, Officer

Morey    observed    a   white        male,       who   was    later    identified      as

Defendant, walking in the middle of the road towards Beaufort.

After Officer Morey approached Defendant and attempted to speak

to him, Defendant said something about “a guitar and Jesus” and

admitted that he had been driving the wrecked vehicle that had

been found near the railroad tracks at the foot of the high rise

bridge.       However, when Officer Morey attempted to get Defendant

to come to his patrol vehicle for further questioning, Defendant

“flipped out” and started cursing, swinging his arms, and trying

to shove Officer Morey.

    As a result of his inability to detain Defendant on his

own, Officer Morey radioed Officer Tim Tucker of the Beaufort

Police Department with a request for assistance.                          At the time

that Officer Tucker arrived, Defendant was on the ground with

Officer Morey, who was attempting to position Defendant’s hands

behind    his    back    for    the     purpose         of    placing    Defendant      in

handcuffs.      Acting jointly, Officers Tucker and Morey were able

to handcuff Defendant.

    After       Defendant      had    been    detained,        Officers       Tucker   and

Morey noticed that Defendant had a small fresh bump, or “goose

egg,”    on   his   forehead;        that   his     pupils     were    very    large   and
                                        -8-
dilated; and that Defendant was behaving in an erratic manner.

More specifically, Defendant was agitated, angry, unable to sit

still, and randomly broke down in tears.                  According to Officer

Tucker,    Defendant       was    “talking    out   of   his   head,”    repeating

random    and     apparently      irrelevant    statements      such    as    “Jesus

Christ” and “I want a guitar.”                Defendant did admit to having

smoked marijuana earlier.             Based upon the observations that he

made of Defendant’s condition, appearance, and conduct, Officer

Tucker concluded that Defendant was under the influence of some

impairing substance.

       Emergency medical personnel were dispatched to the scene as

well.     Dione Willis, a paramedic with Beaufort Emergency Medical

Services, observed that Defendant was acting in a hostile and

belligerent manner and that he was waving his arms around to

such an extent that the officers were having a difficult time

settling    him    down.         Defendant   treated     the   emergency     medical

service personnel in a hostile manner, screaming over and over,

“Jesus Christ.        Jesus Christ.          I want a Ferrari.          Where’s my

guitar?     I’m going to slap you--with expletives--if I don’t get

it.”     After placing Defendant on a heart monitor, the emergency

medical    service    personnel       noticed   that     Defendant’s    heart    was

beating very rapidly and that he “didn’t act like he was in his

right mind.”        Although Defendant had a “little bit of a goose
                                           -9-
egg” on his mid-forehead area, the emergency medical personnel

saw no evidence that Defendant had sustained any major injury.

The   law   enforcement         officers    and     emergency      medical    service

personnel who were present at the scene needed between eight and

ten   minutes      to     get   Defendant        under   control     and   into   the

ambulance because he was fighting and screaming and cursing.                        On

her medical report prepared for the hospital, Ms. Willis wrote

that Defendant “was higher than a kite.”

      After       his   arrival      at    Carteret      General     Hospital,    the

attending medical personnel noted that Defendant’s pupils were

dilated and that he had a contusion on his forehead.                         Defendant

continued     to    act    in   an      erratic    manner    after    reaching     the

hospital.         For example, Defendant was extremely agitated and

made bizarre statements like “Jesus Christ.                     Jesus Christ.        I

want my guitar.            I want a fast car.”              As a result of his

behavior, Defendant had to be restrained.                     Although Defendant

admitted having smoked marijuana, he denied that he had consumed

any “spice or bath salts.”                In light of Defendant’s behavior,

Emergency Room Technician David Garner reached the conclusion

that Defendant was under the influence of some substance other

than marijuana and that Defendant was “really really impaired.”

      At    the    hospital,      the     attending      medical    personnel     gave

Defendant two doses of the sedative Ativan in order to calm him
                                              -10-
down sufficiently so that a CT scan could be performed.                            Since

the Ativan did not sufficiently sedate Defendant, he was given

Haldol, an        anti-psychotic drug, which                did operate in such a

manner     that    the    CT    scan     could       be   performed.      A    sample   of

Defendant’s       urine        was     taken     for      later    chemical    analysis.

Defendant’s blood was not, however, tested for the presence of

LSD.

       Dr.   John    Robert          Duda,    the    physician     who   was   primarily

responsible for treating Defendant at Carteret Medical Center,

explained that unusual behavior is sometimes observed following

a brain injury.           After examining the results of Defendant’s CT

scan, Dr. Duda saw no signs that Defendant had sustained any

brain injury.1           Although testing performed upon a urine sample

taken from Defendant revealed the presence of a metabolite of

marijuana and benzodiazepine, a component of valium and other

Ativan-like       drugs,       Dr.     Duda    expressed     the    opinion    that     the

benzodiazepine metabolite that was reflected in the drug screen

probably did not stem from the Ativan administrated to Defendant

at Carteret General and could have resulted from consumption

that occurred at any time from thirty minutes to two days before

the urine sample in question was taken.                      As a result of the fact

       1
      However, Defendant’s Glasgow coma scale results indicated
that he had sustained a brain injury that registered in the low
end of the moderate injury portion of the scale.
                                         -11-
that the screening performed upon the urine sample taken from

Defendant did not disclose the concentration of the marijuana

found in Defendant’s system, Dr. Duda was unable to determine

the effect that the marijuana had on Defendant’s faculties.

      In light of Defendant’s agitated behavior and the size of

his pupils, Dr. Duda had concerns that Defendant might have

consumed “sympathomimetics,” which are drugs, such as cocaine,

ecstasy and amphetamines, that stimulate an individual’s nervous

system.       However, the drug screen revealed that none of these

drugs were present in Defendant’s system.                   Although LSD would

generally be classified as an hallucinogen, the consumption of

LSD can cause dilated pupils.              According to Dr. Duda, some LSD

users have a very calm experience after consuming LSD, while

others become agitated and have a “bad trip.”                  Although dilated

pupils    can    result    from   a     concussion     or   from   a   frightening

experience      and   although    symptoms      such   as   confusion,    lack    of

focus, incoherent speech, hostility, and short-term memory loss

can result from a brain injury, Defendant’s good pupil response

and   large     dilation   led    Dr.    Duda   to   believe   that    “there    was

something else in addition to the head injury that was producing

[Defendant’s dilated pupils].”              Ultimately, Dr. Duda concluded

that Defendant suffered an acute blunt head injury and multiple
                                              -12-
trauma due to a motor vehicle collision, and had altered mental

status and a concussion.

       Lieutenant Tim Tomczak of the Raleigh Police Department, an

expert in recognizing the drugs consumed by other individuals

based    on     the    symptoms     exhibited          by     such      persons,        reviewed

Defendant’s case file, which included various medical reports

and    statements       taken     from    the        law     enforcement          and   medical

personnel       who    had    observed         Defendant,         and       testified      that,

“overwhelmingly, what was given to me was very consistent with

LSD impairment.”             According to Lieutenant Tomczak, LSD, like

cocaine       and    amphetamines,       is    classified        as     a    sympathomimetic

agent.         Lieutenant       Tomczak,       like        Dr.    Duda,      believed      that

Defendant’s elevated pulse, elevated blood pressure, and dilated

pupils indicated that Defendant was under the influence of a

sympathomimetic drug.              In addition, Lieutenant Tomczak opined

that    Defendant’s      bizarre     behavior          and    the     strange      statements

that     he    had    made    indicated         that       Defendant        was    under     the

influence of an hallucinogenic drug.                          In Lieutenant Tomczak’s

opinion,       the    statements    that       Defendant         made    about      “guitars,”

“Ferraris,” and “Jesus Christ” were more consistent with the

consumption of an hallucinogenic agent like LSD than they were

with the consumption of drugs like cocaine or amphetamines.                                  Dr.

Duda’s testimony that a concussion can result in dilated pupils,
                                            -13-
slurred speech, memory loss, agitation, and bizarre statements

did not surprise Lieutenant Tomczak, given that these symptoms

are   consistent        with   LSD     consumption        as    well.           According   to

Lieutenant       Tomczak,      everything         in     the        medical     records     was

consistent       with    LSD    use,    with      the     exception        of    Defendant’s

uncontrollable          nystagmus      of   the        eyes,    a     symptom      that     was

inconsistent with LSD use alone and that could be consistent

with the incurrence of a brain injury.

      After being discharged from the hospital and released into

police custody at around 1:00 p.m. on 3 April 2011, Defendant

was   interviewed        by    Agent    David      Chunn       of    the   North    Carolina

Alcohol    Law    Enforcement        Division       who    was,       at   that     time,    an

officer with the Morehead City Police Department.                                Once he had

waived his Miranda rights, Defendant told Agent Chunn that he

had gone to a friend’s house to upgrade a guitar, that he had

been there for a few hours, and that he had left his friend’s

apartment at approximately 5:30 a.m.                     As he drove home over the

high rise bridge, Defendant                 noticed at the last second that

there was a vehicle in front of him.                       However, it was too late

to avoid a collision by the time that he noticed the other

vehicle.     Defendant estimated that he was traveling about 50 or

55 miles per hour at the time that he collided with the other

vehicle.
                                               -14-
                               B. Procedural History

      On   3    April    2011,      magistrate’s          orders      charging       Defendant

with felonious hit and run driving involving serious injury or

death and felony death by vehicle were issued.                               On 2 May 2011,

the   Carteret       County    grand       jury       returned      bills     of    indictment

charging Defendant with hit and run driving involving serious

injury or death and second degree murder.                            The charges against

Defendant came on for trial before the trial court and a jury at

the 16 April 2012 criminal session of Carteret County Superior

Court.     On 26 April 2012, the jury returned a verdict convicting

Defendant       as   charged.             At    the     conclusion       of    the     ensuing

sentencing       hearing,     the     trial       court     consolidated           Defendant’s

convictions       for    judgment         and     entered       a    judgment       sentencing

Defendant       to   a    term      of     132     to     168       months     imprisonment.

Defendant noted an appeal to this Court from the trial court’s

judgment.

                         II. Substantive Legal Analysis

                               A. Motion to Dismiss

      In his initial challenge to the trial court’s judgment,

Defendant       argues    that      the    trial       court    erred    by        denying    his

motion     to    dismiss      the    second       degree        murder       charge.         More

specifically, Defendant argues that the trial court should have

dismissed the second degree murder charge on the grounds that
                                      -15-
the record did not contain sufficient evidence to establish that

he acted with malice.        Defendant’s argument lacks merit.

                            1. Standard of Review

    A   motion     to     dismiss   for    insufficiency       of    the    evidence

requires   the    court     to   determine    whether    the    record      contains

substantial      evidence    supporting      each   element     of    the    offense

charged and identifying the defendant as the perpetrator.                      State

v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651–52 (1982)

(citing State v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294

(1971)).     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, 78–79, 265 S.E.2d

164, 169 (1980) (citations omitted).                In deciding a motion to

dismiss, the court is to consider the record in the light most

favorable to the State, giving the State the benefit of every

reasonable inference that can be drawn from the evidence.                      State

v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).                         The

fact that the record reveals the presence of contradictions and

discrepancies in the evidence does not warrant dismissal of the

case, since such contradictions or discrepancies simply signal

the existence of issues for the jury’s consideration.                       State v.

Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992).

               2. Sufficiency of the Evidence of Malice
                                     -16-
    Second degree murder is “the unlawful killing of a human

being with malice but without premeditation and deliberation.”

State v. Snyder, 311 N.C. 391, 393, 317 S.E.2d 394, 395 (1984).

“While an intent to kill is not a necessary element of second

degree murder, the crime does not exist in the absence of some

intentional act sufficient to show malice and which proximately

causes   death.”      State   v.   Wilkerson,     295   N.C.   559,   580,    247

S.E.2d   905,   917   (1978).      The   malice   necessary    for    guilt   of

second degree murder exists “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).                In order to prove

the existence of malice in a case arising from the operation of

a motor vehicle, “[t]he State need only show ‘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. Miller,

142 N.C. App. 435, 441, 543 S.E.2d 201, 205 (2001) (quoting

State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304 (2000)),

with sufficiently reckless conduct occurring while the defendant

drives in an impaired state being sufficient to support a second

degree murder conviction.          State v. Patterson, 209 N.C. App.
                                        -17-
708, 715, 708 S.E.2d 133, 137-38, disc. review denied, 365 N.C.

203, 709 S.E.2d 920 (2011).             The extent to which the State has

adduced sufficient evidence to establish the existence of malice

depends, in the final analysis, on the facts and circumstances

present in each case.          State v. McBride, 109 N.C. App. 64, 67,

425 S.E.2d 731, 733 (1993).

       A careful review of the record developed before the trial

court, when taken in the light most favorable to the State,

indicates the existence of ample evidence tending to show that

Defendant acted with the malice necessary to support a second

degree murder conviction.              As the record reflects, Defendant,

after staying up virtually all night, drove over the high rise

bridge at a speed in excess of 100 miles per hour and slammed

into   the   rear   of   Mr.   Knott’s    truck    without   having   made   any

effort to slow down or to take any sort of evasive action in an

attempt to avoid the collision.                In addition, the existence of

evidence to the effect that Defendant had been in possession of

LSD    within   hours    prior    to    the     collision;   that   Defendant’s

behavior     suddenly    became    “agitated”       and   “belligerent”;     that

Defendant    had    dilated    pupils,     behaved    erratically,    and    made

bizarre statements after the collision; that law enforcement and

medical personnel believed that Defendant was “higher than a

kite” and “really really impaired”; and that an expert witness
                                            -18-
had concluded that Defendant’s behavior was consistent with that

which    would    be       expected       following       the     consumption           of    LSD

provides ample justification for a conclusion that Defendant was

substantially impaired by the effects of LSD at the time that he

collided with Mr. Knott’s truck.                      Thus, the record contains

ample    evidence      tending       to    show      that       Defendant        engaged       in

exceedingly      reckless      conduct       while        driving       in       an    impaired

condition.       As    a    result,       when   considered        in   the       light       most

favorable to the State, we believe that the record contains more

than sufficient evidence to establish “‘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,’” Miller, 142 N.C. App. at

441, 543 S.E.2d at 205 (quoting Rich, 351 N.C. at 395, 527

S.E.2d at 403), a determination that supports the trial court’s

decision to deny Defendant’s dismissal motion.

    In seeking to persuade us to reach a different result,

Defendant argues that, while his conduct was clearly reckless,

the recklessness that he exhibited at the time of the collision

did not rise to the level necessary to support a second degree

murder   conviction.           As     support      for    his     position,           Defendant

argues    that    the       record        reveals     nothing       more         than        “such

recklessness     or    carelessness          . . .       as   imports        a    thoughtless
                                              -19-
disregard    of       consequences       or    a     heedless         indifference      to    the

safety and rights of others,” State v. Mack, 206 N.C. App. 512,

517, 697 S.E.2d 490, 494 (citing State v. Wade, 161 N.C. App.

686, 589 S.E.2d 379, 382 (2003)), disc. review denied, 364 N.C.

608, 704 S.E.2d 276 (2010), of the type necessary to support an

involuntary          manslaughter         conviction;            cites       several        cases

concluding      that     the   record         contained         sufficient       evidence      to

establish       the    existence        of     malice;          and    argues    that       those

decisions establish that a second degree murder conviction, as

compared to an involuntary manslaughter conviction, would not be

appropriate in the absence of unequivocal evidence of impairment

or    driving    after      the    defendant’s         license         had     been   revoked,

multi-faceted bad driving, and one or more prior convictions for

impaired driving or driving while license revoked.                               As a result

of the fact that he had a clean driving record, that the testing

performed       at    the   hospital         did     not    reveal       the    presence       of

alcohol,     that      there      were       alternative          explanations        for     his

physical condition and the behaviors that he exhibited after the

collision, and that he did not run a stop sign, swerve or drive

on the wrong side of the road, Defendant asserts that the record

did    not   demonstrate          the    existence         of    the    malice    needed      to

support a second degree murder conviction.
                                           -20-
       The fact that Defendant’s driving may not have been as

deficient as others deemed to have acted with malice does not,

contrary to Defendant’s argument, establish that the record was

insufficient to support his conviction for second degree murder.

As this Court has previously stated, “we need not engage in fine

tuning exactly how fast a defendant must be driving, or how many

stop   signs      or   red   lights   he    must    run    to   provide    sufficient

evidence of malice.”           State v. Lloyd, 187 N.C. App. 174, 179,

652 S.E.2d 299, 302 (2007), cert. denied, 363 N.C. 586, 683

S.E.2d 214 (2009).           Although the fact pattern present in this

case is, not surprisingly, somewhat different than that present

in other cases that have been decided in this jurisdiction in

the past, we have no hesitation in concluding that driving at a

high rate of speed on a high rise bridge while in an impaired

condition      and     colliding   with     another       vehicle   from    the   rear

without any effort having been made to avoid the collision is

more than sufficient to establish the existence of the malice

necessary for a second degree murder conviction.                      As a result,

the trial court did not err in denying Defendant’s dismissal

motion.

                              B. Jury Instructions

       In   his    second    challenge      to    the   trial   court’s    judgment,

Defendant argues that the trial court erred by instructing the
                                       -21-
jury that voluntary intoxication did not suffice to negate the

existence of the malice necessary for guilt of second degree

murder.    More specifically, Defendant contends that a voluntary

intoxication instruction should not have been delivered given

that Defendant had been charged with second, rather than first,

degree    murder       and    given   that    the    challenged        instruction

undermined Defendant’s contention that he was not impaired at

the time of the collision.            We do not find Defendant’s argument

persuasive.

                              1. Standard of Review

      “[Arguments]       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).   “However, an error in jury instructions is prejudicial

and   requires     a    new   trial   only    if    ‘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.’”            State v. Castaneda, 196 N.C. App.

109, 116, 674 S.E.2d 707, 712 (2009) (quoting N.C. Gen. Stat. §

15A-1443(a) (2007)).

                 2. Voluntary Intoxication Instruction

      At the conclusion of Defendant’s trial, the trial court

instructed the jury with respect to the issue of Defendant’s
                                     -22-
guilt of second degree murder and included in its instructions

concerning the issue of Defendant’s guilt of that offense                       a

statement contained in a footnote to N.C.P.J.I. 206.32A to the

effect that, “[i]n a prosecution for second-degree murder, one’s

voluntary intoxication from drugs does not negate the element of

malice.”2      According   to     Defendant,     a   voluntary     intoxication

instruction such as that at issue here should only be given in

cases     involving   specific    intent    crimes   such     as   first   degree

murder, where “a potential defense to negate specific intent to

kill arises on evidence of intoxication.”                   Although we agree

with Defendant’s contention that voluntary intoxication is only

a defense to specific intent crimes, we are unable to concur in

his   assertion   that   the     trial   court   erred   by    delivering    the

challenged instruction in this case.




      2
      As Defendant notes, the footnote from which the language
utilized by the trial court was derived contains a citation to
the decision in State v. Snyder, 311 N.C. 391, 393-94, 317
S.E.2d 394, 395-96 (1984).    Although Defendant argues at some
length that nothing in Snyder supports the use of the language
contained in the trial court’s instruction in a second degree
murder case arising from the operation of a motor vehicle, we
note that the citation to Snyder in the footnote in question
supports the definition of malice utilized in the relevant
pattern instruction and has nothing to do with the language
relating to the impact of a defendant’s voluntary intoxication
upon the existence or non-existence of the malice needed to
support a second degree murder conviction. As a result, we need
not address Defendant’s challenge to the citation to Snyder
contained in N.C.P.J.I. 206.32A in this opinion.
                                                -23-
       As Defendant notes, “[v]oluntary intoxication is a defense

only    to    those         crimes      which   require        a    showing         of   a    specific

intent.”       State v. White, 291 N.C. 118, 126, 229 S.E.2d 152, 157

(1976).        For         that    reason,      voluntary          intoxication           is       not    a

defense to general intent crimes such as second degree murder.

See State v. Harvell, 334 N.C. 356, 368, 432 S.E.2d 125, 131

(1993) (stating that “the law does not require any ‘specific

intent’ for a defendant to be guilty of second-degree murder,

and a defendant’s voluntary intoxication does not negate that

crime”); State v. Harris, 171 N.C. App. 127, 131, 613 S.E.2d

701,    704    (2005)         (stating      that    “voluntary           intoxication              is    no

defense       to       a    general      intent     crime          or    a    strict         liability

offense.”)         In the face of a contention similar to that advanced

in     this    case         in    an     appeal     arising         from       the       defendant’s

conviction for failing to register as a sex offender, this Court

held    that,      since          the    defendant       had       not       been    charged        with

committing         a       specific      intent    crime,          the       defendant        was       not

entitled to rely on a voluntary intoxication defense and that

“the     trial         court       did    not      err    by        instructing              the    jury

accordingly.”              Harris, 171 N.C. App. at 132, 613 S.E.2d at 704.

Similarly, since Defendant was not charged with committing a

specific intent crime in this case, he was not entitled to rely

on a voluntary intoxication defense and the trial court did not
                                     -24-
err   by   communicating     that   information    to   the   jury   in   its

instructions.3

      Even if the trial court did, in fact, err by instructing

the jury that voluntary intoxication did not suffice to negate

the existence of malice in this case, we are unable to see how

the   delivery   of   that   instruction    prejudiced    Defendant.       In

attempting to persuade us that the necessary prejudice exists,

Defendant   argues    that   the    challenged    instruction   effectively

pre-judged the factual question of whether Defendant was, in

fact, intoxicated and that acceptance of his contention that he

was not impaired was critical to his attempt to avoid a second

degree murder conviction.       We believe, however, that Defendant’s

      3
      In his brief, Defendant asserts that a decision that the
trial court did not err by including the challenged instruction
concerning the impact of involuntary intoxication on the
existence or non-existence of the malice needed to support a
finding that Defendant was guilty of second degree murder would
be tantamount to a determination that the challenged instruction
should be given in every case in which the defendant was accused
of second degree murder on the basis of an unintentional
killing. We are unable to agree with this assertion given that
such an instruction is not essential to an adequate discussion
of the substantive issues that a jury is called upon to resolve
in a second degree murder case arising from the operation of a
motor vehicle.   As a result, even though it might not be an
error of law to deliver an instruction like the one at issue
here in a second degree murder case arising from the operation
of a motor vehicle, we see no reason for the delivery of such an
instruction in such cases on a routine basis and suggest that
the trial bench would be well-advised to refrain from delivering
such an instruction in second degree murder cases arising from
the operation of a motor vehicle in the absence of some specific
reason for delivering such an instruction.
                               -25-
argument reads too much into the challenged instruction, which

merely stated that “voluntary intoxication does not negate the

element of malice” and never suggested that Defendant was, in

fact, intoxicated.    For that reason, we conclude that, even if

the trial court erred by instructing the jury that voluntary

intoxication did not negate the existence of malice, we do not

believe that “there is a reasonable possibility that, had the

error in question not been committed, a different result would

have been reached.”   Castaneda, 196 N.C. App. at 116, 674 S.E.2d

at 712.   As a result, Defendant is not entitled to relief on

appeal based on the delivery of the challenged instruction.

                         III. Conclusion

    Thus, for the reasons set forth above, we conclude that

none of Defendant’s challenges to the trial court’s judgment

have merit.   As a result, the trial court’s judgment should, and

hereby does, remain undisturbed.

    NO ERROR.

    Judges ROBERT N. HUNTER, JR. and DAVIS concur.

    Report per Rule 30(e).
