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State v. Mosley

Court of Appeals of North Carolina

October 17, 2017

STATE OF NORTH CAROLINA
v.
DARIAN JARELLE MOSLEY

          Heard in the Court of Appeals 21 September 2017.

         Appeal by defendant from judgment entered 24 May 2016 by Judge R. Gregory Horne in McDowell County Superior Court. McDowell County, No. 13 CRS 50608

          Attorney General Joshua H. Stein, by Assistant Attorney General Steven Armstrong, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender John F. Carella, for defendant-appellant.

          ARROWOOD, JUDGE.

         Darian Jarelle Mosley ("defendant") appeals from judgment entered upon his conviction for second degree murder. For the following reasons, we vacate and remand to the trial court for resentencing.

         I. Background

         On 20 May 2013, a McDowell County Grand Jury indicted defendant on one charge of first degree murder. The case was called for a jury trial in McDowell County Superior Court on 16 May 2016, the Honorable R. Gregory Horne, Judge, presiding.

         The evidence presented at trial tended to show the following facts: Defendant and the victim were in a relationship. In the early morning hours of 16 April 2013, defendant and the victim had an argument, during the course of which the victim was fatally shot in the abdomen by a .22 rifle held by defendant.

         Defendant did not deny that he shot the victim, but stated it was an accident. Defendant testified that he left the victim's residence following the initial dispute, but returned shortly thereafter to gather his belongings, specifically his clothes and his rifle. Defendant testified that as he was leaving with his belongings, he stopped in the bedroom doorway to talk to the victim, who was in the bedroom. Defendant had a plastic bag of clothes in his right hand and the rifle in his left hand with his finger around the trigger. Defendant also testified that "[the victim] reached towards the gun, and [he] took it away from her, and that's when the gun went off."

         On cross-examination, defendant further testified that the victim wanted him to put this belongings down and as he pushed the victim away, she grabbed the barrel of the rifle and it went off. Defendant knew how to fire the rifle, but never had any safety training. Defendant stated that he always carried the rifle around with his finger on the trigger and that he never used the safety. Defendant also testified he did not know the rifle was loaded.

         At the conclusion of the evidence, the trial court instructed the jury on first degree murder and the lesser included offenses of second degree murder, voluntary manslaughter, and involuntary manslaughter in accordance with N.C. P.I--Crim. 206.13, the pattern instruction for first degree murder where a deadly weapon is used, not involving self-defense, covering all lesser included homicide offenses. Included in the instructions for first degree murder, the trial court instructed the jury on the definitions of express malice and deadly weapon implied malice. The trial court did not give the additional definition of malice included in N.C. P.I--Crim. 206.30A when it instructed on second degree murder, only stating that malice was required. On 24 May 2016, the jury returned a general verdict finding defendant guilty of second degree murder. The trial judge entered judgment sentencing defendant to 240 to 300 months imprisonment for second degree murder, a term within the presumptive range of punishment for a Class B1 felony. Defendant gave notice of appeal in open court.

         II. Discussion

         On appeal, defendant argues the trial court erred in sentencing him for second degree murder as a Class B1 offense because "[t]he jury's verdict of second-degree murder failed to support the trial court's imposition of a Class B1 sentence and supported only a sentence for a Class B2 offense." Thus, defendant asserts this Court must remand for resentencing. Alternatively, defendant argues that if this Court denies relief under his first argument, this Court should order a new trial because the trial court plainly erred in omitting an "inherently dangerous acts" definition of malice from the second degree murder instructions. We reach only the first issue on appeal, which is similar to an issue recently addressed by this Court in State v. Lail, __ N.C.App. __, 795 S.E.2d 401 ...


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