State v. McBrideAnnotate this Case
425 S.E.2d 731 (1993)
STATE of North Carolina v. Charlie Anderson McBRIDE, Jr.
Court of Appeals of North Carolina.
February 16, 1993.
*733 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen., Linda Anne Morris, Raleigh, for the State.
Glover & Petersen, P.A. by James R. Glover and Ann B. Petersen, Chapel Hill, for defendant-appellant.
Defendant sets forth three assignments of error for our review. First, defendant contends the trial court erred in failing to dismiss the second-degree murder charge because the State's evidence was insufficient to support a conviction. Second, defendant challenges the court's admission of certain evidence of bad character as proof of malice and its giving leave to the State to argue in closing that evidence of bad character tended to show defendant acted with malice. Finally, defendant argues that the trial court erred by improperly relying on factors prohibited by the Fair Sentencing Act as a basis for imposing a life sentence for the offense of second-degree murder.
Defendant contends the court erred in failing to grant defendant's motion to dismiss because the State's evidence was insufficient to establish malice, proof of which is essential to support a charge of second-degree murder. We disagree.
Second-degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983). What constitutes proof of malice will vary depending on the factual circumstances in each case. North Carolina courts have recognized at least three kinds of malice:One connotes a positive concept of express hatred, ill-will or spite, sometimes called actual, express, or particular malice. Another kind of 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. Both these kinds of malice would support a conviction of murder in the second degree. There is, however, a third kind of malice which is defined as nothing more than "that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification."
State v. Reynolds, 307 N.C. 184, 297 S.E.2d 532 (1982) (citations omitted.)
Our Court in State v. Snyder, 66 N.C.App. 358, 311 S.E.2d 379 (1984), applied the first and third definitions of malice to facts similar to the case at hand. In that case, defendant, while operating his vehicle in an impaired state, drove onto the highway at an excessive rate of speed and ultimately struck a car, killing three passengers. Upon reviewing the record, we found no evidence of malice consisting of hatred, ill-will or spite nor did we find defendant to possess the "condition of the mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification." See State v. Snyder, supra. The North Carolina Supreme Court reversed our decision, finding that we applied an inappropriate standard *734 for determining the presence of malice in the context of motor vehicle death. State v. Snyder, 311 N.C. 391, 317 S.E.2d 394 (1984).
Following our Supreme Court's mandate, the test here is whether, from the facts presented, malice arose from "an act which is inherently dangerous to human life [and which] 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." Reynolds, supra. We find the evidence adduced at trial as set forth herein was sufficient to support a finding of malice.
Defendant drove his car knowing that his license was permanently revoked, indicating defendant acted with a mind without regard for social duty and with "recklessness of consequences." State v. Byers, 105 N.C.App. 377, 413 S.E.2d 586 (1992). The fact that defendant used false license tags and lied to inspection personnel to obtain an inspection sticker indicates a mind deliberately "bent on mischief." Id. Defendant's driving while substantially impaired after prior convictions for driving while impaired and driving while his license was revoked manifests "a mind utterly without regard for human life and social duty." Reynolds, supra.
Because such evidence supports a finding of malice sufficient for a conviction of second-degree murder, we find the trial court properly submitted the charge of second-degree murder to the jury.
Defendant's second assignment of error is divided into two related arguments. First, defendant contends that the court erred by allowing the State to present evidence of defendant's prior driving convictions and of defendant's false statement made to an inspection station a month earlier that his car was owned by his son's automobile business, on the theory that it was evidence of malice. Defendant argues that prior conduct cannot be evidence of malice on the day of a fatal accident and is nothing more than improper evidence of bad character.
Our Court has held that prior conduct such as prior convictions and prior bad acts will be admissible under Rule 404(b) of the North Carolina Rules of Evidence as evidence of malice to support a second-degree murder charge. See Byers, supra. Where the State offers such evidence, not to show defendant's propensity to commit the crime, but to show the requisite mental state for a conviction of second-degree murder, admission of such evidence is not error. Id.
Defendant next asserts that the court should not have given opposing counsel leave to argue that the evidence of bad character tended to show malice where the court had previously restricted the basis for admission of certain evidence. Specifically, defendant argues that when evidence is admissible for only a limited purpose, it is improper and prejudicial error for the State to argue in closing that it should be considered by the jury for another purpose. While this is a proper assessment of the law in North Carolina, we cannot review this assignment of error on its merits because defendant failed to record or transcribe opposing counsel's closing argument for review. When defendant fails to properly preserve an issue for review, our Court may not speculate as to any prejudicial error. State v. Arnold, 314 N.C. 301, 333 S.E.2d 34 (1985). Based on the record before us, we can find no prejudicial error and therefore overrule defendant's second assignment of error.
Finally, defendant asserts that the trial court abused its discretion and improperly relied upon factors prohibited by the Fair Sentencing Act in imposing the maximum penaltylife imprisonmentfor the offense of second-degree murder. The Fair Sentencing Act, N.C.Gen.Stat. § 15A-1340.4, prohibits a court from considering certain factors in aggravating a crime covered by the Act. Generally, "a conviction may not be aggravated by prior convictions of other crimes which could have been joined for trial or by a contemporaneous conviction of a crime actually joined by or acts which form the gravamen of these convictions." State v. Hayes, 323 N.C. 306, *735 372 S.E.2d 704 (1988); N.C.Gen.Stat. § 15A-1340.4(a)(1)o. Furthermore, "evidence used to prove an element of a crime may not also be used to prove a factor in aggravation of that same crime." Id.; N.C.Gen.Stat. § 15A-1340.4(a)(1). Here, the trial court found one aggravating factor, prior convictions for criminal offenses punishable by more than 60 days confinement, and no mitigating factors. The State relied on these prior convictions in its case as proof of malice. Evidence offered at trial to prove malice, an element of second-degree murder, cannot be the basis for aggravating that crime. See State v. Withers, 311 N.C. 699, 319 S.E.2d 211 (1984) (prior convictions may be considered as an aggravating factor where prior convictions were not used to establish an element of the crime charged). See also State v. Blackwelder, 309 N.C. 410, 306 S.E.2d 783 (1983). Because defendant's prior convictions were offered by the State as proof of malice, the trial court's consideration of such convictions as a factor in aggravation was error.
We therefore vacate the sentence imposed for second-degree murder and remand for resentencing.
No error in the trial; remand for resentencing on second-degree murder.
COZORT and LEWIS, JJ., concur.NOTES
 For purposes of resentencing, we also note that defendant's contemporaneous conviction for driving while license revoked may not be considered a factor in aggravation as it was a joined offense. N.C.Gen.Stat. § 15A-1340.4(a)(1)o.