State v. Crisp

867 S.E.2d 399

STATE of North Carolina

v.Alexander Michael CRISP

No. COA20-882

Court of Appeals of North Carolina.

Filed December 21, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General Marissa K. Jensen, for the State-Appellee.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Candace Washington, for Defendant-Appellant.

COLLINS, Judge.

¶ 1 Defendant Alexander Crisp appeals from a judgment entered upon a jury verdict of guilty of second-degree murder. Defendant argues that the trial court plainly erred by omitting a jury instruction on the defense of accident. Defendant also argues that the trial court erred by sentencing him as a Class B1 felon because the jury's verdict was ambiguous in light of evidence that Defendant acted with a depraved heart. Because there was insufficient evidence to support an accident instruction and there was no evidence to support a depraved-heart theory of malice, we discern no error.

I. Procedural History

¶ 2 Defendant was indicted for first-degree murder on 10 March 2014. Defendant was tried before a jury from 29 July to 16 September 2019. The jury found Defendant guilty of second-degree murder. The trial court sentenced Defendant, as a Class B1 felon with a prior record level of II, to 221 to 278 months in prison with credit for time served in pretrial confinement. Defendant timely gave written notice of appeal.

II. Factual Background

¶ 3 In February 2014, Defendant, his girlfriend Summer Lynn Johnson, and their seven-month-old daughter were living in a trailer on the property of Defendant's parents. Defendant's parents, Michael Crisp and Andrea Crisp ("Mr. Crisp" and "Mrs. Crisp") lived in a home nearby on the same property.

¶ 4 The evidence at trial tended to show the following: On the morning of 19 February 2014, Defendant, Johnson, and their daughter were the only persons in the trailer. Between 5:30 and 6:00 am, Defendant was asleep on the couch and woke to Johnson "yelling at [him] to wake up." When Defendant saw their daughter "crawling down the hallway right through the kitchen," Defendant picked her up and began to make her a bottle. Defendant estimated that he and Johnson were up for 30 to 40 minutes and continued to argue, "yell[ing] back and forth" and "confront[ing] each other."

¶ 5 During the argument, Johnson suffered a gunshot wound to her left eye. Defendant called 911 at 6:19 am. After the 911 dispatcher instructed him to perform CPR, Defendant ended the call and called his parents’ home phone to reach his mother, who knew CPR. Defendant's parents both ran to the trailer, where they saw Defendant at the back door. Mrs. Crisp heard Defendant yell, "She shot herself in the eye." Mrs. Crisp entered the trailer and began to perform CPR on Johnson.

¶ 6 Two ambulances arrived at the trailer at 6:29 am. Paramedics and EMTs entered the trailer, went to the back bedroom where Johnson was laying, and directed Mrs. Crisp to discontinue CPR. The paramedics and EMTs noticed Defendant racking the slide of a pistol and requested that he put the gun down. The paramedics and EMTs’ attempts to resuscitate Johnson were unsuccessful and Johnson was pronounced dead at 6:40 am.

¶ 7 At trial, the State's theory was that Johnson was planning to leave Defendant, the argument between Defendant and Johnson escalated, and Defendant intentionally shot Johnson. Defendant's theory was that Johnson shot herself either accidentally or intentionally. Defendant testified that he was not in the bedroom and did not fire the gun. Likewise, multiple witnesses testified that Defendant stated that he was outside the bedroom when the gun fired.

III. Discussion

A. Accident Instruction

¶ 8 Defendant argues that the trial court plainly erred by failing to instruct the jury on the defense of accident.

¶ 9 A party may not make the trial court's omission of a jury instruction "the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict, stating distinctly that to which objection is made and the grounds of the objection[.]" N.C. R. App. P. 10(a)(2). Defendant neither requested an instruction on the defense of accident nor objected to the trial court's omission of such an instruction. However, because Defendant "specifically and distinctly" contends that the trial court's omission of an accident instruction amounted to plain error, we will review this issue for plain error.

N.C. R. App. P. 10(a)(4) ; State v. Smith , 362 N.C. 583, 596, 669 S.E.2d 299, 308 (2008) (reviewing jury instructions for plain error where defendant failed to object at trial).

¶ 10 "For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial." State v. Lawrence , 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation omitted). "To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error ‘had a probable impact on the jury's finding that the defendant was guilty.’ " Id. (quoting State v. Odom , 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) ).

¶ 11 A trial court must

instruct the jury on all of the substantive features of a case. This is a duty which arises notwithstanding the absence of a request by one of the parties for a particular instruction. All defenses arising from the evidence presented during the trial constitute substantive features of a case and therefore warrant the trial court's instruction thereon.

State v. Loftin, 322 N.C. 375, 381, 368 S.E.2d 613, 617 (1988) (citations omitted). "When determining whether the evidence is sufficient to entitle a defendant to jury instructions on a defense or mitigating factor, courts must consider the evidence in the light most favorable to defendant." State v. Mercer , 373 N.C. 459, 464, 838 S.E.2d 359, 363 (2020) (quotation marks and citations omitted).

¶ 12 The defense of accident "is not an affirmative defense, but acts to negate the mens rea element of homicide." State v. Lytton , 319 N.C. 422, 425-26, 355 S.E.2d 485, 487 (1987) (citations omitted). "A killing will be excused as an accident when it is unintentional and when the perpetrator, in doing the homicidal act, did so without wrongful purpose or criminal negligence while engaged in a lawful enterprise." State v. Riddick , 340 N.C. 338, 342, 457 S.E.2d 728, 731 (1995) (citation omitted). "The defense of accident is triggered in factual situations where a defendant, without premeditation, intent, or culpable negligence, commits acts which bring about the death of another." Id. (quotation marks and citations omitted).

¶ 13 The evidence in the present case, when viewed in the light most favorable to Defendant, did not warrant an instruction on the defense of accident. To the contrary, when viewed in the light most favorable to Defendant, the evidence suggested that Defendant was not in the bedroom and did not shoot the gun: The dispatcher who fielded the 911 call from Defendant noted in the call log that Defendant "advised ... that someone had shot themselves in the eye accidentally with his .22 pistol[.]" Thomas Simmons, one of the paramedics who responded to the scene, testified that Defendant "made a comment that the gun wasn't supposed to go off, that she grabbed for the gun and it just went off[.]" Steven Howell, another paramedic, testified that he overheard Defendant state that "he couldn't believe there had been a bullet in the chamber. He couldn't believe that it was loaded." Howell further testified that Defendant stated that "during the argument ... [Johnson] grabbed the barrel" and "stated several times that she would kill herself, that she would put a bullet in her head."

¶ 14 Mr. Crisp testified that after he arrived at the trailer, Defendant was crying and said that "[h]e didn't know what happened" and "couldn't figure out what happened." Mr. Crisp was within earshot of Defendant's conversation with Sergeant Dennis Elliott of the Swain County Sheriffs’ Department. Mr. Crisp testified that he heard Defendant say to Elliott

that Summer threatened to shoot [Defendant] in the head.... He said that he was fixing a bottle at the kitchen sink and ... [h]e started back into the bedroom and he heard a pop or heard something and saw a small flash, and he thought that maybe she had shot into the wall.

¶ 15 Mr. Crisp further testified that he heard Defendant say "that he wasn't even to the bedroom" when he heard the pop and saw the flash. Mr. Crisp also testified that he watched Defendant walk with Elliott down the hallway, Defendant "showed [Elliott] how far down the hall he had gotten," and Defendant "stopped before going in the door of the bedroom and said, I got right about here and I heard a pop and a flash." At trial, Mr. Crisp listened to the portion of the 911 call recorded after he arrived at the scene and testified that Defendant stated that the gun was "[h]alf cocked, and it fell off the dresser or something and shot her in the F'ing eye" or was "on f[***]ing half cocked. It moved on the table and shot her in the f[***]ing eye."

¶ 16 Mrs. Crisp testified that when she arrived at the trailer, she heard Defendant screaming that Johnson had "shot herself in the eye" and Defendant stated, "I don't know if she grabbed the barrel of the gun and it went off. I don't know what happened." Mrs. Crisp also testified that Defendant stated, "I don't know how she did this. I don't want people to think Summer committed suicide. I don't know what happened." Mrs. Crisp further testified that while she was in the trailer, Defendant

was crying. He was saying he didn't know what happened. He said they had been arguing[;] that [Defendant's daughter] had gotten up and wanted a bottle; that Summer called him a piece of S dad and he called her a piece of S mom; and he was trying to figure out what could have happened. He said that he was in the kitchen fixing a bottle and that he heard a pop and may have seen a flash and that he was trying to

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