An unpublished opinion of the North Carolina Court of Appeals does not constitute 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

v.

Carteret County

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 
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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.
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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 

 

1However, 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.
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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
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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 
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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 
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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.

 

2As 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 

 

3In 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.
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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).