State v Pascasio
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA11-527 NORTH CAROLINA COURT OF APPEALS Filed: 20 December 2011 STATE OF NORTH CAROLINA v. Forsyth County No. 08 CRS 59333 CHRISTIAN NUNEZ PASCASIO Appeal by defendant from judgment entered 7 December 2010 by Judge Edgar B. Gregory in Forsyth County Superior Court. Heard in the Court of Appeals 26 October 2011. Attorney General Roy Cooper, by Special General L. Michael Dodd, for the State. Deputy Attorney Mary March Exum, attorney for defendant. ELMORE, Judge. Christian Nunez Pascasio (defendant) appeals from judgment entered upon jury convictions of 1) first degree murder and 2) discharging a weapon into an occupied vehicle. After careful consideration, we find no error. Shortly after midnight on 24 August 2008, defendant and several friends were riding in a Toyota Tacoma pickup truck -2towards the Sagebrush restaurant in Kernersville. to meet Josh Atkins and his father evening to settle a dispute. the restaurant that Atkins and his father arrived at the restaurant first, separately. Chevrolet Tahoe. at They planned Atkins s father drove a black He arrived at the restaurant moments before defendant and his friends. As the pickup truck transporting defendant approached the restaurant, Atkins s father was still operating his vehicle. towards each other. them. and The two vehicles then began moving One of defendant s friends said that s Defendant then opened fire from the bed of the truck, discharged fifteen rounds from a semiautomatic millimeter handgun in the direction of the Tahoe. nine- One of the bullets struck Atkins s father in the back, traveled through his lungs, and killed him. scene and drove to Defendant and his friends then left the Parkland High School. Officers of the Winston-Salem Police Department arrested them there. Defendant later gave a videotaped statement officers, admitting that he fired the shots. defendant was discharging a indicted weapon for into 1) an first occupied degree to the On 1 June 2009, murder vehicle. At and 2) trial, defendant testified that he never intended to shoot the gun. Also at trial, the State played defendant s videotaped statement -3to the jury. At the conclusion of all evidence, the trial court instructed the jury on first degree murder, felony murder, and second-degree murder. Defendant also requested that the trial court instruct the jury on 1) involuntary manslaughter and 2) the defense of voluntary intoxication. The trial court denied both of those requests. On 7 December 2010, the jury found defendant 1) guilty of first degree murder under the felony murder rule and 2) guilty of discharging a firearm into occupied property. court then parole sentenced in the defendant North to Carolina life The imprisonment Department of that the court jury instruction trial without Correction. Defendant now appeals. Defendant denying his first motion manslaughter. argues for a trial on erred by involuntary We disagree. 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. 256 (2008) State v. Taylor, 362 N.C. 514, 530, 669 S.E.2d 239, (quotations and citations omitted). Involuntary manslaughter has been defined as the unlawful and unintentional killing of another without malice which proximately results from -4an unlawful act not amounting to a felony [and not] naturally dangerous to human life[.] 524 S.E.2d 28, 40 (2000) State v. Smith, 351 N.C. 251, 268, (quotations and citations omitted) (alterations in original). Here, the evidence would not rationally permit the jury to find defendant guilty of involuntary manslaughter. indicates that defendant fired fifteen shots semiautomatic handgun towards an occupied vehicle. clearly dangerous to a human life. The record from a This act is Furthermore, the jury was presented with the videotaped statement of defendant in which he admitted to firing the shots. Therefore, we conclude that the trial court did not err in denying defendant s motion for a jury instruction on involuntary manslaughter. Defendant next argues that the trial court erred by giving the jury an erroneous limiting instruction based on the 404(b) evidence offered at trial. We disagree. When analyzing errors in limiting instructions, this Court follows the rule that [i]f the charge as a whole presents the law fairly and clearly to the jury, the fact that isolated expressions, standing alone, might be considered erroneous will afford no ground for a reversal. Furthermore, insubstantial technical errors which could not have affected the result will -5not be held prejudicial. State v. Chandler, 342 N.C. 742, 752, 467 S.E.2d 636, 641 (1996) (quotations and citations omitted). Here, Jose Colunga testified for the State that defendant had fired the same gun at a different vehicle about a month before the shooting at issue. The State offered this evidence to show defendant s knowledge of the murder weapon and its operation. The trial court later offered a limiting instruction as to this testimony, stating in sum that defendant may have discharged a firearm at some person but that you alone determine what any evidence does or does not show. It is clear from the record that the trial court s characterization of Colunga s testimony was inaccurate. Colunga clearly testified that defendant had fired the gun at a vehicle, and not at some person. However, the record also indicates that the State only offered this testimony to show that defendant had simply fired the weapon at some point prior to the shooting at issue here. The subject at which he fired the weapon had no bearing on the proffered purpose for the testimony s admission. Therefore, we conclude that the trial court s limiting instruction, while in part factually inaccurate, was nonetheless sufficient. Defendant next argues that the trial court erred by denying his motions for a mistrial, when a female juror was threatened -6by Hispanic trial witnesses and defendant is Hispanic. We disagree. The decision to grant or deny a mistrial lies within the sound discretion of the trial court and is entitled to great deference since [the trial court] is in a far better position than an appellate court to determine the effect of any [misconduct] on the jury. Absent an abuse of discretion, therefore, the trial court s ruling will not be disturbed on appeal. An abuse of discretion occurs when a ruling is manifestly unsupported by reason, which is to say it is so arbitrary that it could not have been the result of a reasoned decision. Taylor, 362 N.C. at 538, 669 S.E.2d at 260 (quotations and citation omitted) (alterations in original). Here, a female juror informed a security guard that she felt threatened by several Hispanic people in the courthouse hallway. The security guard informed the trial court of the juror s concerns. The trial court then held two hearings with the juror to further investigate the incident, and to determine if the incident would affect the juror s ability to render a fair verdict. [the juror] At the first hearing, the trial court found that indicated that she could 100 percent base her verdict on the evidence that she heard in the trial and the law as I give it to her. At the second hearing the juror again indicated that she could base her verdict solely on the law and the evidence. Based on these findings, the trial court denied -7defendant s motion for a mistrial. Therefore, we conclude that the decision of the trial court was supported by reason, and the trial court did not abuse its discretion. Defendant next argues that the trial refusing to instruct the jury on accident. Where defendant . was . . the engaged evidence in is unlawful court erred by We disagree. uncontroverted conduct and that acted the with a wrongful purpose when the killing occurred, the trial court does not err in refusing to submit the defense of accident. State v. Riddick, 340 N.C. 338, 343, 457 S.E.2d 728, 731-32 (1995). Here, no credible evidence was presented at trial to support an instruction indicates on accident. that defendant As already fired noted, fifteen the shots semiautomatic weapon towards an occupied vehicle. defendant was clearly unlawful purpose. engaged in unlawful evidence from a Therefore, conduct with an Accordingly, we conclude that the trial court did not err by refusing to instruct the jury on accident. Defendant next argues that the trial court erred by denying his request for a jury instruction on voluntary intoxication. Specifically, defendant argues that at the time of the shooting he was so intoxicated that he could not have formed the -8requisite intent to shoot into an occupied vehicle or to commit premeditated and deliberate murder. We disagree. In order for an instruction on voluntary intoxication to be required the evidence must be that defendant s intoxication rendered him premeditated utterly intent incapable to of kill. Mere sufficient to meet this burden. 492, 439 S.E.2d 589, 598 forming a deliberate intoxication is and not State v. Brown, 335 N.C. 477, (1994) (quotations and citation omitted). Here, the intoxication record rendered intent to kill. fails him to utterly establish that incapable of defendant s forming the Defendant testified at trial that he began drinking around 12:00 PM or 12:30 PM prior to the shooting. He also testified that he smoked marijuana and did a little bit of coke. mere As already noted, in Brown our Supreme Court ruled that intoxication is voluntary intoxication. not sufficient for an instruction on In Brown, the trial court found that the defendant had consumed approximately ten or eleven beers prior to the murder. Id. On appeal, our Supreme Court concluded that [t]he evidence . . . suggests that defendant was intoxicated to some degree, but nothing in the record, taken in the light most favorable to defendant, suggests that his degree -9of intoxication approached the level necessary to support an instruction on the defense of voluntary intoxication. Id. For similar reasons, we conclude that nothing in the record here suggests that defendant s degree of intoxication approached the requisite level. Accordingly, the trial court did not err in denying defendant s request for a jury instruction on voluntary intoxication. Lastly, forbidding defendant defense argues counsel that from the trial arguing to court the erred jury by that defendant was drunk or intoxicated on the evening of the murder. Specifically, defendant argues that the State in its closing argument made reference to defendant s alleged voluntary intoxication, and that defendant s counsel was precluded from addressing defendant s level of intoxication in his own closing argument. Defendant prejudicial error. argues that the trial court committed We disagree. A defendant is prejudiced [by an error] 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. State v. Wilkerson, 363 N.C. (2009) 382, 415, 683 quotations omitted). S.E.2d 174, 194 (citations and Voluntary intoxication is not a legal -10excuse for a criminal act; however, it may be sufficient in degree to prevent and therefore disprove the existence of a specific intent such as an intent to kill. State v. Torres, 171 N.C. App. 419, 422, 615 S.E.2d 36, 38 (2005) (quotations and citation omitted). However, intent to kill is not an element of felony murder[.] State v. Cummings, 353 N.C. 281, 298, 543 S.E.2d 849, 859 (2001) (citation omitted). Here, the jury found defendant murder under the felony murder rule. not an element of felony murder, guilty of first degree Since intent to kill is there is no reasonable possibility that a different result would have been reached at trial if defendant s counsel had been permitted to argue to the jury that defendant was drunk or intoxicated. trial court did not err by forbidding making this argument. No error. Judges BRYANT and STEPHENS concur. Report per Rule 30(e). Accordingly, the defense counsel from
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