in the Court of Appeals 21 September 2017.
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.
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
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.
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
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
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.
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.
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