State v. Boyd
300 S.E.2d 578
N.C. Ct. App.
1983
Check Treatment
ARNOLD, Judge.

The defendant’s first assignment of error is the denial of his motion to dismiss at the close of the State’s evidence. He did not make a similar motion at the close of all the evidence.

In State v. Mendez, 42 N.C. App. 141, 256 S.E. 2d 405 (1979), the court held that presentation of evidence by a defendant following denial of this motion and failure to renew the motion at the close of all the evidence is a waiver of the right to assert the denial as error on appeal. But we will consider the sufficiency of all the evidence here, pursuant to G.S. 15A-1227(d) and G.S. 15A-1446(d)(5), as the court did in State v. Alston, 44 N.C. App. 72, 259 S.E. 2d 767 (1979), cert. denied, 304 N.C. 589, 290 S.E. 2d 709 (1981).

In judging the sufficiency of the evidence in a criminal case, we are guided by the words of the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, reh’g denied, 444 U.S. 890 (1979). The test is whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a *242 reasonable doubt.” 443 U.S. at 319 (emphasis in original). See also State v. Locklear, 304 N.C. 534, 537-38, 284 S.E. 2d 500, 502 (1981).

Involuntary manslaughter is defined in North Carolina as “the unintentional killing of a human being without malice, proximately caused by (1) an unlawful act not amounting to a felony nor naturally dangerous to human life, or (2) a culpably negligent act or omission.” State v. Redfern, 291 N.C. 319, 321, 230 S.E. 2d 152, 153 (1976).

Because involuntary manslaughter is a felony, G.S. 14-18, and part (1) of the Redfern definition of the crime is not applicable to the facts before us, this case turns on if the facts show “a culpably negligent act or omission” by the defendant.

It is a well-accepted tenet of our jurisprudence that “[o]ne who handles a firearm in a reckless or wanton manner and thereby unintentionally causes the death of another is guilty of involuntary manslaughter.” State v. Moore, 275 N.C. 198, 212, 166 S.E. 2d 652, 662 (1969); accord, State v. Brooks, 260 N.C. 186, 132 S.E. 2d 354 (1963); State v. Foust, 258 N.C. 453, 128 S.E. 2d 889 (1963).

What is culpable negligence was defined in State v. Everhart, 291 N.C. 700, 231 S.E. 2d 604 (1977).

Culpable negligence in the criminal law requires more than the negligence necessary to sustain a recovery in tort. Rather, for negligence to constitute the basis for the imposition of criminal sanctions, it must be such reckless or careless behavior that the act imports a thoughtless disregard of the consequences of the act or the act shows a heedless indifference to the rights and safety of others.

291 N.C. at 702, 231 S.E. 2d at 606.

The evidence here, when considered in the light most favorable to the prosecution, shows that the defendant acted with the requisite culpable negligence. His signed statement contains facts that could be seen by a rational jury as sufficient to meet the elements of the crime.

Me and Loretta Stevens were arguing. I had got real mad at Loretta, and I had my gun on my side in my pants. The next *243 thing I knew, I had the gun out. I was real mad and heard the shots. I went outside and came back inside. I then realized I had shot Loretta.

Both of the cases cited by the defendant in support of his argument that the shooting was an accident can be distinguished from this case on the facts. In State v. Honeycutt, 250 N.C. 229, 108 S.E. 2d 485 (1959), the defendant’s gun discharged after it hit a porch post. The defendant there had been aiming at a tree.

The only evidence to implicate the defendant in State v. Church, 265 N.C. 534, 144 S.E. 2d 624 (1965), was his statement that “It was an accident. I didn’t mean to.” 265 N.C. at 536, 144 S.E. 2d at 625. Thus, the facts in both cases cited are weaker than those in the case sub judice where the defendant voluntarily drew his gun while involved in an argument. Although involuntary manslaughter does not concern intent to kill, it does connote an intentional act, like the defendant voluntarily drawing his gun. State v. Wilkerson, 295 N.C. 559, 582, 247 S.E. 2d 905, 918 (1978). See also State v. Shepard, 61 N.C. App. 159, 300 S.E. 2d 268 (1983) (upheld an involuntary manslaughter conviction because it found culpable negligence from facts similar to the ones in this case).

The other assignment of error by the defendant is that an instruction to the jury on involuntary manslaughter should not have been given because of the lack of evidence to support a verdict of guilty of that crime. Because involuntary manslaughter is a lesser included offense of the indicted crime of murder, State v. Hudson, 54 N.C. App. 437, 283 S.E. 2d 561 (1981), an instruction on its elements was proper only if there was evidence to support it. See Redfern, 291 N.C. at 321, 230 S.E. 2d at 153.

Our discussion above shows that we find sufficient evidence of involuntary manslaughter to warrant an instruction on it. Because it was proper to give a jury instruction on the elements of involuntary manslaughter and the evidence supports the conviction, we find

No error.

Judges HILL and WHICHARD concur.