State v. HemphillAnnotate this Case
409 S.E.2d 744 (1991)
104 N.C. App. 431
STATE of North Carolina v. Stephen Andre HEMPHILL.
Court of Appeals of North Carolina.
November 5, 1991.
*745 Attorney General Lacy H. Thornburg by Asst. Atty. Gen., John F. Maddrey, Raleigh, for the State.
Horton and Horton by Shelby E. Horton, Asheville, for defendant, appellant.
HEDRICK, Chief Judge.
Defendant's one assignment of error is that the trial court erred in denying his motion to dismiss the charge of second degree murder. He argues that the evidence is insufficient to support a finding of the element of malice.
In State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978) our Supreme Court defined malice as follows:[I]t comprehends not only particular animosity `but also wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty and deliberately bent on mischief, thought there may be no intention to injure a particular person.' This Court has said that `[m]alice does not necessarily mean an actual intent to take human life; it may be inferential or implied, instead of positive, as when an act which imports danger to anther is done so recklessly or wantonly as to manifest depravity of mind and disregard of human life.' In such a situation `the law regards the circumstances of the act as so harmful that the law punishes the act as though malice did in fact exist.
295 N.C. at 578-579, 247 S.E.2d at 916 (citations omitted).
We hold the evidence in the present case is sufficient to support a finding by the jury that defendant acted with malice as defined by Wilkerson. The evidence that defendant shook the baby as well as the expert testimony that the cause of death was "Shaken Baby Syndrome," which typically results from an infant's head being held and shaken so violently that the brain is shaken inside the skull causing bruising and tearing of blood vessels on the surface of and inside the brain, is sufficient to show that defendant acted with "recklessness of consequences, ... though there may be no intention to injure a particular person."
We hold the trial court properly denied defendant's motion to dismiss the charge of second degree murder, and that defendant had a fair trial free from prejudicial error.
EAGLES, J., concurs.
GREENE, J., dissents.
GREENE, Judge, dissenting.
I disagree with the majority's conclusion that the evidence is sufficient to support a *746 finding that the defendant acted with "recklessness of consequences" and therefore with malice.
"When a defendant moves for dismissal, the trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). "Whether evidence presented constitutes substantial evidence is a question of law for the court." Id. On a motion to dismiss,`the evidence for the State is taken to be true, conflicts and discrepancies therein are resolved in the State's favor and it is entitled to every reasonable inference which may be drawn from the evidence.'... `All of the evidence actually admitted, whether competent or incompetent, which is favorable to the State is considered by the Court in ruling upon the motion.'
State v. Mize, 315 N.C. 285, 290, 337 S.E.2d 562, 565 (1985) (citations omitted).
The evidence on the malice element of the second degree murder charge tends to show that the baby's death was caused by "Shaken Baby Syndrome," the "intentional violent repeated shaking" of the baby. As part of its case, the State introduced the defendant's two statements that he made to the police on 21 April 1989. In his second statement, the defendant stated that at approximately 11:30 a.m. on 20 April 1989, the baby was throwing up, and because he was scared and thought she was choking, he shook the baby hard about four times to try to clear her airway. This evidence is uncontradicted and must be taken as true. Mize, 315 N.C. at 290, 337 S.E.2d at 565. Indeed, the State's expert testimony tends to show that the baby died from intentional violent repeated shaking. Accordingly, the issue becomes whether the evidence, viewed in the light most favorable to the State, is sufficient to support a finding that the defendant acted with "recklessness of consequences" and therefore malice.According to our Supreme Court, any act evidencing `wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person' is sufficient to supply the malice necessary for second degree murder. .... An act that indicates a total disregard for human life is sufficient to supply the malice necessary to support the crime of second degree murder.
State v. Wilkerson, 295 N.C. 559, 581, 247 S.E.2d 905, 917-18 (1978) (citation omitted). The evidence from the defendant's statement does not show wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, a mind regardless of social duty and deliberately bent on mischief, or total disregard for human life. To the contrary, the evidence tends to show a person who, fearing for the welfare of his child, made a very poor decision about how to handle his child's apparent choking. Furthermore, the uncontradicted evidence shows that once the defendant realized that his child had stopped breathing, he took her to the hospital, and after learning that she was dead, "he was beside himself with grief" and requested that an autopsy be performed on her. His conduct may rise to the level of culpable negligence for a conviction of involuntary manslaughter, but it does not amount to second degree murder. See Wilkerson, 295 N.C. at 579-80, 247 S.E.2d at 916-17; see also State v. Evans, 74 N.C.App. 31, 327 S.E.2d 638 (1985), aff'd per curiam, 317 N.C. 326, 345 S.E.2d 193 (1986) (defendant charged with and convicted of involuntary manslaughter for death by violent shaking of two-year-old child); State v. Lane, 39 N.C.App. 33, 249 S.E.2d 449 (1978) (defendant charged with second degree murder, defendant's motion to dismiss allowed as to second degree murder, and defendant convicted of involuntary manslaughter for death by violent shaking of his seven-month-old baby); State v. Ojeda, 119 Idaho 862, 810 P.2d 1148 (App.1991) (defendant charged with and convicted of involuntary manslaughter for death by violent shaking of three-month-old baby); *747 Commonwealth v. Earnest, 386 Pa.Super. 461, 563 A.2d 158 (1989) (defendant convicted of involuntary manslaughter for death by striking and shaking fifteen-month-old child). Cf. State v. Crawford, 329 N.C. 466, 406 S.E.2d 579 (1991) (defendant convicted of first degree murder for death by torture of six-year-old child); State v. Huggins, 71 N.C.App. 63, 67, 321 S.E.2d 584, 587 (1984), disc. rev. denied, 313 N.C. 333, 327 S.E.2d 895 (1985) (charged with first degree murder, defendant was tried on and convicted of second degree murder for death by intentionally striking a two and one-half year old child in the abdomen "as hard as one would hit an adult"); State v. Mapp, 45 N.C.App. 574, 264 S.E.2d 348 (1980) (defendant charged with and convicted of second degree murder for death of five-year-old child, the victim of "battered child syndrome"); State v. Sallie, 13 N.C.App. 499, 186 S.E.2d 667, cert. denied, 281 N.C. 316, 188 S.E.2d 900 (1972) (defendant charged with first degree murder and convicted of second degree murder for death by severe blow to abdomen of three-year-old child, the victim of horrible abuse for period of time prior to death). Because there was no substantial evidence tending to support a determination of malice, the trial court should have allowed the defendant's motion to dismiss the charge of second degree murder. Accordingly, I would grant the defendant a new trial.