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State v. Long10/18/2005
fendant has a community support system and that defendant expressed remorse. The trial court subsequently sentenced defendant to 264 months to 326 months incarceration for the second-degree murder offense, a term of imprisonment within the aggravated range of N.C. Gen. Stat. § 15A-1340.17. The trial court also sentenced defendant to eighteen to twenty-four months incarceration for the driving while impaired offense, to run concurrent with defendant's sentence for second-degree murder. Defendant appeals.
The issues on appeal are whether the trial court erred by: (I) refusing to instruct the jury on the elements of involuntary manslaughter following the jury's request for reinstruction on second-degree murder; (II) excluding evidence of Kalen's blood alcohol concentration; and (III) sentencing defendant in the aggravated range for second-degree murder.
Defendant first argues that the trial court abused its discretion by not instructing the jury on the elements of involuntary manslaughter following the jury's request for reinstruction on second-degree murder. We disagree.
After the jury has retired for deliberations, the trial court may give additional instructions in response to an inquiry by the jury. N.C. Gen. Stat. § 15A-1234(a)(1) (2003). When the trial court gives additional instructions, it "may also give or repeat other instructions to avoid giving undue prominence to the additional instructions." N.C. Gen. Stat. § 15A-1234(b). In State v. Prevette, 317 N.C. 148, 345 S.E.2d 159 (1986), the jury requested clarification as to the elements of first-degree murder. In addressing the defendant's contention that the trial court erred by denying the defendant's request for an additional instruction on the elements of second-degree murder, the Court stated:
We believe it important to note that the trial court is in the best position to determine whether further additional instruction will aid or confuse the jury in its deliberations, or if further instruction will prevent or cause in itself an undue emphasis being placed on a particular portion of the court's instructions.
Id. at 164, 345 S.E.2d at 169. Thus, given that the jury requested clarification of only one offense, the Court heldthat the trial court did not abuse its discretion by denying the defendant's request. Id. Similarly, in the instant case, the jury only requested further instruction regarding the elements of second-degree murder. Thus, we conclude that the trial court did not abuse its discretion in refusing to instruct the jury on the elements of involuntary manslaughter. Therefore, defendant's first argument is overruled.
Defendant next argues that the trial court erred by excluding evidence of Kalen's blood alcohol concentration. We disagree.
According to a toxicology report, Kalen's blood alcohol concentration at the time of her death was .39. Defendant asserts that the exclusion of this evidence restricted his ability to present his defense. In support of this assertion, defendant contends that the evidence was relevant and admissible to negate the element of malice because it demonstrates that, due to acute alcohol intoxication, Kalen was suffering a seizure and thrashing her arms consistent with defendant's testimony.
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2003). "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or b
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