State v. Brichikov

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-33

No. COA20-660

Filed 18 January 2022

Wake County, No. 18 CRS 207577

STATE OF NORTH CAROLINA

v.

MARK BRICHIKOV, Defendant.

Appeal by Defendant from judgment entered 11 December 2019 by Judge

Rebecca W. Holt in Wake County Superior Court. Heard in the Court of Appeals 11

May 2021.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Marc X.

Sneed, for the State.

M. Gordon Widenhouse, Jr., for defendant-appellant.

MURPHY, Judge.

¶1 A defendant is entitled to a jury instruction on a lesser included offense when

the evidence, viewed in the light most favorable to the defendant, could support a jury

verdict on that lesser included offense. When there is a reasonable possibility that

the jury would have reached a different result had the trial court given the jury

instruction on a lesser included offense, a defendant suffers prejudice and is entitled

to a new trial.

¶2 Here, the evidence, when viewed in the light most favorable to Defendant,

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entitled him to a jury instruction on the lesser included offense of involuntary

manslaughter. There was a reasonable possibility that a different result would have

been reached had the involuntary manslaughter instruction been given to the jury,

and Defendant is entitled to a new trial.

BACKGROUND

¶3 Defendant Mark Brichikov appeals his second-degree murder conviction in the

death of his wife, Nadia Brichikov. Defendant and Mrs. Brichikov both were regular

drug users. Only two days prior to her death, Mrs. Brichikov suffered a drug

overdose, which resulted in a significant wound to the back of her head and required

medical personnel to use Narcan to reverse the impact of opioids in her system. Mrs.

Brichikov subsequently told Defendant about the overdose and the use of Narcan to

revive her.

¶4 On 21 April 2018, Defendant and Mrs. Brichikov coordinated their meet up at

a motel, and expressed their love for one another and desire to be together multiple

times. Defendant had just left a drug rehabilitation facility, and Mrs. Brichikov had

recently left jail and suffered the overdose the day before. However, Mrs. Brichikov

had been sexually active with at least one individual other than Defendant, and she

was also presently working as a confidential police informant. Defendant and Mrs.

Brichikov met at a motel on the evening of 21 April 2018; during that evening and

the early morning hours of 22 April 2018, Defendant and Mrs. Brichikov exited their

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motel room multiple times, and Defendant appeared to have purchased drugs from a

truck nearby.

¶5 In the early morning hours on 22 April 2018, responding law enforcement

personnel found Mrs. Brichikov deceased in her motel room, with blunt force trauma

to her face, as well as drug paraphernalia and Narcan in the room. Mrs. Brichikov

had cocaine and fentanyl in her system at the time of her death. Responding law

enforcement viewed motel surveillance video, which showed Defendant exiting the

motel room and Mrs. Brichikov lying on the floor of the room. Law enforcement

obtained a warrant and arrested Defendant for murder.

¶6 Defendant was indicted for first-degree murder in the death of Mrs. Brichikov.

At trial, the State presented evidence Defendant assaulted Mrs. Brichikov in the

motel room after they entered the motel room together for the final time in the early

morning of 22 April 2018. During the assault and until she was located by police,

Defendant and Mrs. Brichikov were the only individuals inside the motel room; while

multiple individuals walked by Mrs. Brichikov while she was lying on the ground in

the motel room, they did not enter the room. The State introduced motel video

surveillance, which showed Defendant left the motel room for the final time in the

early morning hours of 22 April 2018, and also showed Mrs. Brichikov assaulted, on

the floor, and moving when Defendant left.

¶7 At trial, the medical examiner called by the State opined that Mrs. Brichikov’s

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death was a “homicide,” due to the presence of blunt force trauma consistent with an

assault as at least a partial cause of the death. The medical examiner called by

Defendant agreed.

¶8 Further, both experts also agreed that Mrs. Brichikov’s significant heart

condition (due to a narrowing of a coronary artery), as well as fentanyl in her system,

contributed to her death, and pointed to all three circumstances–the assault, the

heart condition, and the fentanyl–as contributing factors to her death, or

comorbidities. The State’s expert was not certain whether the removal of any one of

these factors would have prevented Mrs. Brichikov’s death, while Defendant’s expert

testified Mrs. Brichikov would not have died of the facial fractures from the assault

alone. Defendant’s expert also testified that Mrs. Brichikov’s movements when

Defendant left the room appeared to be consistent with a fentanyl overdose, rather

than the assault to her face, and noted Mrs. Brichikov’s airways “were

unobstructed.”1

1We note the experts’ disagreement does not negate Defendant’s criminal

responsibility. See State v. Bethea, 167 N.C. App. 215, 222, 605 S.E.2d 173, 179 (2004) (marks

and citations omitted) (“To escape responsibility based on an intervening or superseding

cause, the defendant must show that the intervening or superseding act was the sole cause

of death. An intervening or superseding cause is a cause that so entirely intervenes in or

supersedes the operation of the defendant’s negligence that it alone, without his negligence

contributing thereto in the slightest degree, produces the injury.”), cert. denied, 362 N.C. 88

(2007); see also State v. Quesinberry, 319 N.C. 228, 233, 354 S.E.2d 446, 449 (1987) (“A person

is criminally responsible for a homicide if his act caused or directly contributed to the death

of the victim.”). Here, Defendant could still be criminally responsible for Mrs. Brichikov’s

death because his assaultive behavior directly contributed to her death.

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¶9 Defendant did not testify during his case in chief, but he admitted under oath

outside the jury’s presence during the charge conference that he assaulted Mrs.

Brichikov and allowed his attorney to admit the same in closing arguments. After

both sides rested, Defendant requested voluntary manslaughter and involuntary

manslaughter jury instructions. During the charge conference, Defendant also

requested a pattern jury instruction for second-degree murder that included

involuntary manslaughter and stated the following:

[DEFENSE COUNSEL]: . . . . We are also requesting

involuntary manslaughter under a different theory. And

the theory is that if the jury determines that [Defendant]

is not guilty of first-, second- and voluntary, if submitted,

on the theory that he did not proximately cause her death,

then we would submit that an involuntary manslaughter

is appropriate under the theory that, based on the video,

he -- and text messages and circumstantial evidence, that

he would’ve had knowledge of her drug use and did not

adequately get her any medical assistance, and as a result

of no medical assistance, [Mrs. Brichikov] expired.

In addition to that request, the trial court and Defense Counsel had the following

exchanges during the charge conference:

THE COURT: . . . . I believe you mentioned earlier that

you’re requesting involuntary manslaughter.

[DEFENSE COUNSEL]: Yes, Your Honor.

....

THE COURT: . . . . -- assuming the Court gives involuntary

manslaughter, or not, either way, do you intend to argue

that [Defendant] is guilty of . . .

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[DEFENSE COUNSEL]: Yes, Judge. If the Court is

inclined to give the involuntary instruction, then yes, I

would be inclined to argue [Defendant] is guilty. We have

had that discussion, Judge.

....

THE COURT: All right. So this one does include at the end

of the second-degree, “If you do not find [Defendant] guilty

of second-degree murder, you must determine whether

[Defendant] is guilty of involuntary manslaughter,” and . .

. “First that [Defendant] acted in a criminally negligent

way” is what you’re requesting?

[DEFENSE COUNSEL]: Yes, Your Honor.

¶ 10 The North Carolina pattern jury instruction for “Second Degree Murder Where

a Deadly Weapon Is Used, Not Including Self-Defense, Covering All Lesser Included

Homicide Offenses” reads, inter alia, as follows regarding the lesser included offense

of involuntary manslaughter:

For you to find the defendant guilty of involuntary

manslaughter, the State must prove two things beyond a

reasonable doubt:

First, that the defendant acted a) [unlawfully] (or) b) [in a

criminally negligent way]. a) [The defendant’s act was

unlawful if (define crime e.g. defendant recklessly

discharged a gun, killing the victim).] b) [Criminal

negligence is more than mere carelessness. The

defendant’s act was criminally negligent, if, judging by

reasonable foresight, it was done with such gross

recklessness or carelessness as to amount to a heedless

indifference to the safety and rights of others.]

And Second, the defendant’s [unlawful] (or) [criminally

negligent] act proximately caused the victim’s death.

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N.C.P.I.–Crim. 206.30A (2019). The involuntary manslaughter pattern jury

instruction does not include language specifically discussing a culpable omission. See

id.

¶ 11 The trial court rejected Defendant’s requests for pattern voluntary and

involuntary manslaughter instructions. Defendant objected at the charge conference

to the trial court’s refusal to submit those instructions, and renewed his objection

after the trial court instructed the jury. The trial court instructed the jury as to first-

degree murder and second-degree murder.

¶ 12 On the element of malice, and the use of Defendant’s hands as a deadly

weapon, the trial court instructed as follows:

Malice means not only hatred, ill will or spite, as it is

ordinarily understood -- to be sure, that is malice -- but it

also means that condition of mind that prompts a person to

take the life of another intentionally or to intentionally

inflict a wound with a deadly weapon upon another which

proximately results in her death, without just cause,

excuse or justification.

If the State proves beyond a reasonable doubt that

[Defendant] intentionally killed the victim with a deadly

weapon or intentionally inflicted a wound upon the victim

with a deadly weapon that proximately caused the person’s

death, you may infer first that the killing was unlawful

and, second, that it was done with malice, but you are not

compelled to do so.

....

If the State proves beyond a reasonable doubt that

[Defendant] intentionally inflicted a wound upon the

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victim with a deadly weapon that proximately caused the

victim’s death, you may infer, first, that the killing was

unlawful and, second, that it was done with malice, but you

are not compelled to do so.

(Emphases added). The trial court’s instructions closely track the pattern jury

instructions regarding malice in the “Second Degree Murder Where a Deadly Weapon

Is Used, Not Including Self-Defense, Covering All Lesser Included Homicide

Offenses” jury instruction. See N.C.P.I.–Crim. 206.30A (2019). In its closing

argument, specifically regarding malice, the State referred to Mrs. Brichikov’s facial

wounds from Defendant’s assault in arguing “[t]hat’s malice. That’s ill will. That’s

hatred. That’s anger.”

¶ 13 The jury convicted Defendant of second-degree murder. On appeal, Defendant

argues the trial court’s failure to instruct the jury on involuntary manslaughter was

reversible error, as the jury could have found Defendant assaulted Mrs. Brichikov in

a culpably negligent manner and failed to render aid in a culpably negligent omission,

and accordingly could have convicted him of involuntary manslaughter.

¶ 14 The State argues a presumption of malice arose due to Defendant’s use of his

hands in his assault of Mrs. Brichikov. Specifically, the State argues it “has

established malice in the instant case.” (Emphasis added). Of note, in its brief, the

State does not attempt to distinguish one of the most important cases relied on by

Defendant, State v. Debiase, 211 N.C. App. 497, 711 S.E.2d 436, disc. rev. denied, 365

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N.C. 335, 717 S.E.2d 399 (2011).

ANALYSIS

A. Preservation

¶ 15 “Where a defendant has properly preserved [a] challenge to jury instructions,

an appellate court reviews the trial court’s decisions regarding jury instructions de

novo.” State v. Richardson, 270 N.C. App. 149, 152, 838 S.E.2d 470, 473 (2020); see

also State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009) (“Assignments

of error challenging the trial court’s decisions regarding jury instructions are

reviewed de novo by this Court.”).

¶ 16 We examine two preservation issues regarding the involuntary manslaughter

instruction. First, we analyze whether Defendant’s requests for an involuntary

manslaughter instruction, with subsequent argument regarding the theory of

culpable omission, were sufficient requests for a pattern jury instruction for

involuntary manslaughter. Second, we examine whether Defendant preserved the

involuntary manslaughter instruction via objection.

¶ 17 While Defendant requested a pattern jury instruction for involuntary

manslaughter, the focus of the request turned to a theory of Defendant’s culpable

omission to obtain aid for his wife when he knew she was overdosing. A request for

a culpable omission instruction would be a deviation from the pattern jury

instruction, qualify as a special instruction, and would have needed to be submitted

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to the trial court in writing. See State v. McNeill, 346 N.C. 233, 240, 485 S.E.2d 284,

288 (1997) (citation omitted) (“We note initially that [the] defendant’s proposed

instructions [to modify the pattern jury instructions] were tantamount to a request

for special instructions. . . . This Court has held that a trial court’s ruling denying

requested [special] instructions is not error where the defendant fails to submit his

request for instructions in writing. [The] [d]efendant here did not submit either of

his proposed modifications in writing, and therefore it was not error for the trial court

to fail to charge as requested.”), cert. denied, 522 U.S. 1053, 139 L. Ed. 2d 647 (1998).

¶ 18 However, upon a thorough review of the Record, Defendant requested

involuntary manslaughter under multiple theories and was not limited to the

culpable omission theory. While Defendant requested a special instruction regarding

culpable omission that deviated from the pattern jury instructions, he also requested

the pattern jury instruction for involuntary manslaughter by responding

affirmatively to the trial court’s question regarding whether Defendant was

requesting the following instruction: “First that the defendant acted in a criminally

negligent way[.]” The trial court’s language in that question derives from the pattern

jury instruction for involuntary manslaughter, and Defendant orally requested the

pattern jury instruction for involuntary manslaughter. See N.C.P.I.–Crim. 206.30A

(2019) (marks omitted) (“For you to find the defendant guilty of involuntary

manslaughter, the State must prove . . . that the defendant acted . . . in a criminally

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negligent way.”).

¶ 19 Further, Defendant’s objections to the trial court’s refusal to give the

involuntary manslaughter instruction preserved the issue for appeal. See State v.

McNeil, 350 N.C. 657, 691, 518 S.E.2d 486, 507 (1999) (“We note that [the] defendant

waived this [improper jury instructions] argument by failing to properly object during

the charge conference.”), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d. 321 (2000); State

v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988); N.C. R. App. P. 10(a)(2) (2021)

(“A party may not make any portion of the jury charge or omission therefrom 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; provided that opportunity was given to the party to make

the objection out of the hearing of the jury, and, on request of any party, out of the

presence of the jury.”). Defendant objected during the charge conference and after

the trial court instructed the jury, and properly preserved his challenge to the trial

court’s refusal to give a pattern involuntary manslaughter instruction to the jury.

B. Refusal to Give Pattern Involuntary Manslaughter Instruction

¶ 20 “When determining whether the evidence is sufficient to entitle a defendant to

jury instructions, courts must consider the evidence in the light most favorable to the

defendant.” State v. Clegg, 142 N.C. App. 35, 46, 542 S.E.2d 269, 277 (marks omitted),

disc. rev. denied, 353 N.C. 453, 548 S.E.2d 529 (2001).

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¶ 21 “[A] judge presiding over a jury trial must instruct the jury as to a lesser

included offense of the crime charged where there is evidence from which the jury

could reasonably conclude that the defendant committed the lesser included offense.”

State v. McConnaughey, 66 N.C. App. 92, 95, 311 S.E.2d 26, 28 (1984) (emphasis

added); see also State v. Collins, 334 N.C. 54, 58, 431 S.E.2d 188, 190-91 (1993) (“If

the evidence before the trial court in the defendant’s non-capital trial . . . tended to

show that the defendant might be guilty of lesser-included offenses, the trial court

was required . . . to instruct the jury as to those lesser-included crimes.”).

A trial judge is required to instruct the jury on the law

arising from evidence presented at trial. The necessity of

instructing the jury as to lesser included offenses arises

only where there is evidence from which the jury could find

that a lesser included offense had been committed.

Further, the trial judge is not required to submit lesser

included offenses for a jury’s consideration when the

State’s evidence is positive as to each and every element of

the crime charged and there is no conflicting evidence

related to any element of the crime charged.

State v. Washington, 142 N.C. App. 657, 659-60, 544 S.E.2d 249, 251 (2001)

(emphases added) (citation omitted), disc. rev. denied, 353 N.C. 532, 550 S.E.2d 165

(2001); see also State v. Drumgold, 297 N.C. 267, 271, 254 S.E.2d 531, 533 (1979)

(citation and marks omitted) (“It is well settled that a defendant is entitled to have

all lesser degrees of offenses supported by the evidence submitted to the jury as

possible alternate verdicts. On the other hand, the trial court need not submit lesser

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degrees of a crime to the jury when the State’s evidence is positive as to each and

every element of the crime charged and there is no conflicting evidence relating to any

element of the charged crime.”).

¶ 22 We review whether the State’s evidence was sufficient to fully satisfy its

burden of proving each element of the crime–second-degree murder. See State v.

Johnson, 317 N.C. 193, 205, 344 S.E.2d 775, 783 (1986). Where other evidence

negates those elements, when viewed in the light most favorable to Defendant,

Defendant is entitled to an instruction regarding the lesser included offense of

involuntary manslaughter. Id. (“Since the State’s evidence was sufficient to fully

satisfy its burden of proving each element of first-degree murder and there was no

other evidence to negate these elements other than the defendant’s denial that he

committed the offense, the defendant was not entitled to an instruction on the lesser-

included offense of involuntary manslaughter.”). Defendant’s argument that the trial

court should have given an involuntary manslaughter jury instruction posits that the

evidence negated the element of malice and supported a jury verdict of involuntary

manslaughter due to his criminally negligent actions.

¶ 23 Additionally,

[o]n appeal, a defendant is required not only to show that

a challenged jury instruction was erroneous, but also that

such error prejudiced the defendant. “A defendant is

prejudiced . . . when there is a reasonable possibility that,

had the error in question not been committed, a different

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result would have been reached at the trial out of which the

appeal arises.”

Richardson, 270 N.C. App. at 152, 838 S.E.2d at 473 (citation omitted) (quoting

N.C.G.S. § 15A-1443(a) (2019)).

1. Second-Degree Murder and Malice Presumption

¶ 24 Before our analysis of the lesser included offense of involuntary manslaughter,

we note the elements of the more serious crime of second-degree murder, and analyze

its element of malice. “Second-degree murder . . . is defined as an unlawful killing of

a human being with malice but without premeditation and deliberation.” State v.

Thomas, 325 N.C. 583, 567, 386 S.E.2d 555, 603-04 (1989). The pattern jury

instructions require the State to prove three things beyond a reasonable doubt in

order to obtain a second-degree murder conviction: “the defendant wounded the

victim with a deadly weapon”; “the defendant acted intentionally and with malice”;

and “the defendant’s act was a proximate cause of the victim’s death.” N.C.P.I.–Crim.

206.30A (2019).

¶ 25 Malice is defined as follows:

[M]alice, as it is ordinarily understood, means not only

hatred, ill will, or spite, but also that condition of mind

which prompts a person to take the life of another

intentionally, without just cause, excuse, or justification, or

to wantonly act in such a manner as to manifest depravity

of mind, a heart devoid of a sense of social duty, and a

callous disregard for human life.

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State v. Crawford, 329 N.C. 466, 481, 406 S.E.2d 579, 587 (1991).

¶ 26 “It is well settled that an instruction to the jury that the law implies malice

and unlawfulness from the intentional use of a deadly weapon proximately resulting

in death is not a conclusive irrebuttable presumption.” State v. Holder, 331 N.C. 462,

487, 418 S.E.2d 197, 211 (1992) (citing State v. Reynolds, 307 N.C. 184, 297 S.E.2d

532 (1982)); see also State v. Forrest, 321 N.C. 186, 191-92, 362 S.E.2d 252, 255 (1987)

(“The trial court properly instructed the jury that it should consider this permissive

inference [of malice] along with all the other facts and circumstances . . . .”).

Defendant and the State disagree regarding whether the evidence established the

second-degree murder element of malice, which would preclude a lesser included

offense instruction in this case. After analyzing caselaw below, we do not agree with

the State’s contention that each element of second-degree murder, specifically malice,

was conclusively established when the evidence is viewed in the light most favorable

to Defendant.

2. Involuntary Manslaughter–Criminal Negligence

¶ 27 “Involuntary manslaughter, which is a lesser included offense of second degree

murder, is the unlawful killing of a human being without malice, without

premeditation and deliberation, and without intention to kill or inflict serious bodily

injury.” Debiase, 211 N.C. App. at 505, 711 S.E.2d at 441 (emphasis added) (citation

and marks omitted).

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¶ 28 “Involuntary manslaughter may also be defined 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. Powell, 336 N.C. 762, 767, 446 S.E.2d 26, 29 (1994)

(emphasis added).

[W]hile involuntary manslaughter imports an

unintentional killing, i.e., the absence of a specific intent to

kill, it is . . . accomplished by means of some intentional

act. [W]ithout some intentional act in the chain of

causation leading to death there can be no criminal

responsibility. Death under such circumstances would be

the result of accident or misadventure.

State v. Wilkerson, 295 N.C. 559, 582, 247 S.E.2d 905, 918 (1978).

¶ 29 Defendant was entitled to an involuntary manslaughter jury instruction,

specifically in light of our opinion in Debiase. In Debiase, the defendant and the

victim argued, and the defendant attacked the victim with a beer bottle and hit the

victim multiple times in the head. Debiase, 211 N.C. App. at 500, 711 S.E.2d at 438.

During the course of the attack, the beer bottle broke, the defendant “jabbed [the

victim] multiple times with the bottle[,]” and the victim died. Id. at 498, 500, 711

S.E.2d at 437, 438 (marks omitted). The defendant was convicted of second-degree

murder, but argued the trial court erred in failing to instruct the jury on the lesser

included offense of involuntary manslaughter because the evidence supported the

charge. Id. at 503, 711 S.E.2d at 440. We agreed, stating the evidence, when viewed

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in the light most favorable to the defendant, indicated “[the] [d]efendant did not know

and had no reason to believe that the bottle would break or that the breaking of the

bottle would inflict a fatal wound to [the victim’s] neck.” Id. at 506, 711 S.E.2d at

442.

¶ 30 Moreover, in Debiase, we rejected the State’s argument that the defendant’s

use of a deadly weapon required a “conclusive, irrebuttable presumption” that the

defendant acted with malice, which would have rendered the trial court’s refusal to

instruct the jury regarding involuntary manslaughter valid. Id. at 509, 711 S.E.2d

at 444. The State makes a similar argument here regarding a required and

established presumption of malice. This argument is similarly unpersuasive and is

now in direct contradiction to our caselaw. The trial court’s instruction regarding

malice, which told the jury it was permitted, but not required, to infer malice from

Defendant’s use of his hands in the assault, comported with our holding in Debiase,

which treated malice as a “permissible inference,” and not a “mandatory

presumption,” when “the defendant adduces evidence or relies on a portion of the

State’s evidence raising an issue on the existence of malice[.]” Debiase, 211 N.C. App.

at 509-10, 711 S.E.2d at 444-45 (marks omitted).

¶ 31 Viewing the evidence in the light most favorable to Defendant, the evidence

was not “positive” as to the element of malice for second-degree murder. The jury

could reasonably have found Defendant did not act with malice, but rather committed

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a reckless act without the intent to kill or seriously injure2–he spent the day declaring

his love for Mrs. Brichikov, they used drugs together, something occurred to trigger

a confrontation after they spent hours together the day of the killing, and her body

was in a weakened state from a recent overdose, heart blockage, and fentanyl

overdose. Further, according to Defendant’s expert, the assault did not cause the

2 We have held:

Had the jury been permitted to consider the issue of Defendant’s

guilt of involuntary manslaughter, there is a reasonable

possibility that it might have concluded that he acted ‘without

intention to kill or inflict serious bodily injury, and without

either express or implied malice,’ making him guilty of

involuntary manslaughter rather than second degree murder.

Debiase, 211 N.C. App. at 510, 711 S.E.2d at 445 (quoting State v. Foust, 258 N.C. 453, 459,

128 S.E.2d 889, 893 (1963)). “‘In this setting, and with credibility a matter for the jury, the

court should have submitted involuntary manslaughter with appropriate instructions’ to the

jury.” Id. (quoting State v. Wrenn, 279 N.C. 676, 683, 185 S.E.2d 129, 133 (1971)).

Further, we note Defendant acted intentionally in assaulting Mrs. Brichikov, which

does not negate the possibility of him acting with criminal negligence to support an

involuntary manslaughter conviction. “[W]hile involuntary manslaughter imports an

unintentional killing, i.e., the absence of a specific intent to kill, it is . . . accomplished by

means of some intentional act. Indeed without some intentional act in the chain of causation

leading to death there can be no criminal responsibility.” Wilkerson, 295 N.C. at 582, 247

S.E.2d at 918; see also State v. Drew, 162 N.C. App. 682, 686-87, 592 S.E.2d 27, 30 (holding

that, where the defendant stabbed an individual he did not expect to be in his home, “the jury

could have . . . concluded that [the] defendant . . . intended to strike at [the intruder] to keep

him away, but did not intend to kill or seriously injure him,” which merited an involuntary

manslaughter instruction), disc. rev. denied, appeal dismissed, 358 N.C. 735, 601 S.E.2d 867

(2004); Debiase, 211 N.C. App. at 508-10, 711 S.E.2d at 443-45 (noting that, despite the

defendant’s admission that he intentionally hit the deceased on the head with a beer bottle,

the “evidence tending to show the occurrence of a killing caused by the negligent or reckless

use of a deadly weapon without any intent to inflict death or serious injury [was] sufficient

to support an involuntary manslaughter conviction” and merited an involuntary

manslaughter instruction). Here, the evidence tending to show Mrs. Brichikov’s death was

caused by Defendant’s negligent or reckless use of his hands without intent to kill or seriously

injure Mrs. Brichikov was sufficient to support an involuntary manslaughter conviction.

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death on its own. Defendant also arguably used a less deadly weapon than the bottle

used in Debiase, his hands, and “the evidence contained in the present [R]ecord is

susceptible to the interpretation that, at the time that [Defendant] struck [Mrs.

Brichikov],” he did so recklessly and with culpable negligence, permitting an

involuntary manslaughter conviction. Debiase, 211 N.C. App. at 506, 711 S.E.2d at

442.

¶ 32 The State relies on State v. Smith, inter alia, to advance an argument that

malice is presumed due to the use of a deadly weapon. See State v. Smith, 351 N.C.

251, 266-67, 524 S.E.2d 28, 40, cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000);

see also State v. Bush, 289 N.C 159, 170, 221 S.E.2d 333, 340, judgment vacated in

part and remanded on other grounds, Bush v. North Carolina, 429 U.S. 809, 50 L. Ed.

2d 69 (1976). Specifically, the State argues it “has established malice in the instant

case.” (Emphasis added). Our Supreme Court’s holding in Smith, where malice was

not required to be shown in a first-degree murder conviction where the defendant

used poison as a weapon, is clearly distinguishable from this case, where Defendant’s

hands were his deadly weapon, which do not support an irrebuttable presumption of

malice. See Smith, 351 N.C. at 267, 524 S.E.2d at 40 (marks omitted) (“This Court

has already stated that murder by torture, which is in the same class as murder by

poison, is a dangerous activity of such reckless disregard for human life that, like

felony murder, malice is implied by the law. The commission of torture implies the

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Opinion of the Court

requisite malice, and a separate showing of malice is not necessary.”). We find Smith

inapplicable to this case. Further, such an established, conclusive presumption of

malice would be at odds with the trial court’s permissible inference instruction in this

case. Finally, such a mandatory presumption of malice would be contrary to our

Supreme Court’s precedent. See Holder, 331 N.C. at 487, 418 S.E.2d at 211 (holding

a jury instruction regarding the implication of “malice and unlawfulness from the

intentional use of a deadly weapon proximately resulting in death is not a conclusive

irrebuttable presumption”).

¶ 33 In light of Debiase, a defendant wielding a deadly weapon that is not a tool

deemed per se malicious, such as poison, merits an involuntary manslaughter

instruction when the evidence, viewed in the light most favorable to the defendant,

supports that the defendant acted intentionally and recklessly or carelessly, rather

than intentionally and maliciously, and also acted without a specific intent to kill.

See State v. Brewer, 325 N.C. 550, 575-76, 386 S.E.2d 569, 583 (1989), cert. denied,

495 U.S. 951, 109 L. Ed. 2d 541 (1990); State v. Fleming, 296 N.C. 559, 564, 251 S.E.2d

430, 433 (1979); Wilkerson, 295 N.C. at 582, 247 S.E.2d at 918. The evidence, viewed

in the light most favorable to Defendant, merited an involuntary manslaughter

instruction, as the evidence supported a finding Defendant acted with criminal

negligence. The trial court erred in denying Defendant’s request for an involuntary

manslaughter instruction.

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Opinion of the Court

3. Prejudice

¶ 34 The trial court must give a requested instruction, at least

in substance, if a defendant requests it and the instruction

is correct in law and supported by the evidence. In

determining whether the evidence supports an instruction

requested by a defendant, the evidence must be interpreted

in the light most favorable to [the defendant]. The trial

judge making the decision must focus on the sufficiency of

the evidence, not the credibility of the evidence. Failure to

give the requested instruction where required is a

reversible error.

State v. Reynolds, 160 N.C. App. 579, 581, 586 S.E.2d 798, 800 (2003) (citations

omitted), disc. rev. denied, 358 N.C. 548, 599 S.E.2d 916 (2004); see also State v.

Tidwell, 112 N.C. App. 770, 775-77, 436 S.E.2d 922, 926-27 (1993) (ordering a new

trial where the trial court refused the defendant’s request for an involuntary

manslaughter jury instruction and the defendant’s testimony supported a finding of

culpably negligent action).

Error in failing to submit the question of a defendant’s guilt

of lesser degrees of the same crime is not cured by a verdict

of guilty of the offense charged because, in such case, it

cannot be known whether the jury would have convicted of

a lesser degree if the different permissible degrees arising

on the evidence had been correctly presented in the charge.

State v. Thacker, 281 N.C. 447, 456, 189 S.E.2d 145, 151 (1972), disapproved on other

grounds in North Carolina v. Butler, 441 U.S. 369, 372, 60 L. Ed. 2d 286, 291 (1979).

¶ 35 Upon our review of the Record, “there is a reasonable possibility that, had the

error in question not been committed, a different result would have been reached[,]”

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Opinion of the Court

as the jury could have found Defendant did not act with malice, but rather with

culpable negligence, but we cannot know with certainty. See Richardson, 270 N.C.

App. at 152, 838 S.E.2d at 473 (marks omitted) (“A defendant is prejudiced when

there is a reasonable possibility that, had the error in question not been committed,

a different result would have been reached at the trial out of which the appeal

arises.”). Defendant suffered prejudice due to the trial court’s failure to instruct the

jury regarding involuntary manslaughter and is entitled to a new trial.

4. Involuntary Manslaughter-Culpable Omission

¶ 36 Our holding that the evidence, when viewed in the light most favorable to

Defendant, supported a finding Defendant acted with criminal negligence and

entitled him to a jury instruction regarding involuntary manslaughter renders

Defendant’s second argument–the evidence supported a finding Defendant’s actions

were a culpable omission meriting an involuntary manslaughter instruction–moot.

See State v. Angram, 270 N.C. App. 82, 88, 839 S.E.2d 865, 869 (2020) (“Because we

must reverse the judgment, we need not address [the] defendant’s other issue on

appeal.”). We decline to address the substance of Defendant’s second and

unpreserved argument. The mootness of Defendant’s second argument is no

indictment on the validity or invalidity of the argument.

CONCLUSION

¶ 37 Defendant was entitled to a jury instruction on involuntary manslaughter, as

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Opinion of the Court

the evidence could have supported a guilty verdict for involuntary manslaughter

under a theory of culpable negligence. Further, Defendant suffered prejudicial error,

as there was a reasonable possibility that a different result would have been reached

had the involuntary manslaughter instruction been given to the jury.

NEW TRIAL.

Judge GORE concurs.

Judge CARPENTER dissents by separate opinion.

No. 20-660 – State v. Brichikov

CARPENTER, Judge, dissenting.

¶ 38 In this matter, I concur with the majority that an instruction on involuntary

manslaughter based upon a theory of culpable omission would require a special

instruction be given to the jury, and Defendant failed to properly preserve this issue

for appeal by failing to present his proposed special instruction in writing to permit

review by this Court.

¶ 39 I write to respectfully dissent regarding the issue of whether the trial court’s

refusal to grant Defendant’s request for a lesser included instruction on involuntary

manslaughter contained in the pattern jury instructions was error. Based upon the

jury finding beyond a reasonable doubt that this offense was especially heinous,

atrocious, or cruel as an aggravating factor, it appears clear the verdict would not

have been different had the trial judge given the lesser included involuntary

manslaughter instruction.

¶ 40 “Involuntary manslaughter, which is a lesser included offense of second degree

murder, is the unlawful killing of a human being without malice, without

premeditation and deliberation, and without intention to kill or inflict serious bodily

injury.” State v. Debiase, 211 N.C. App. 497, 505, 711 S.E.2d 436, 441, disc. rev.

denied, 365 N.C. 335, 717 S.E.2d 399 (2011) (emphasis added) (citation and marks

omitted). “Involuntary manslaughter may also be defined 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

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CARPENTER, J., dissenting.

negligent act or omission.” State v. Powell, 336 N.C. 762, 767, 446 S.E.2d 26, 29 (1994)

(emphasis added).

¶ 41 My colleagues rely heavily on the application of Debiase, 211 N.C. App. 497,

711 S.E.2d 436. However, Debiase is distinguishable from this case. In Debiase,

factual accounts varied as to the occurrences resulting in the victim’s fatal wound,

and the jury had to determine whether the defendant acted intentionally in inflicting

the wound. See Debiase, 211 N.C. App. at 499, 711 S.E.2d at 438 (testimony presented

to the effect the defendant did not make a stabbing motion at the victim using a

broken beer bottle).

¶ 42 In the case at bar, there was no dispute Defendant intentionally and

feloniously assaulted the victim, causing facial fractures. At all times, expert

testimony was consistent in the conclusion the death was a homicide. Further, there

was substantial evidence of malice in this case. The jury was asked to consider

aggravating factors and found beyond a reasonable doubt the presence of the

aggravating factor: the offense was “especially heinous, atrocious, or cruel.” {R. p.

38}. We have special insight into the jury’s treatment and consideration of the malice

element of second degree murder, based upon its findings of aggravating factors:

insight that we would not ordinarily have. In finding this offense was especially

heinous, atrocious, or cruel beyond a reasonable doubt, it is clear the jury gave

substantially the same consideration to the evidence that it would have given in the

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CARPENTER, J., dissenting.

determination of the presence of malice. Therefore, the verdict would not have been

different had the lesser included instruction on involuntary manslaughter been

given. The majority correctly writes that in Debiase, we decided, when viewing the

evidence in the light most favorable to the defendant, “[the] [d]efendant did not know

and had no reason to believe that the bottle would break or that the breaking of the

bottle would inflict a fatal wound to [the victim’s] neck.” Id. at 506, 711 S.E.2d at

442. I cannot similarly agree that in the case at bar, where Defendant beat his wife

so badly that she suffered multiple facial fractures, the Defendant did not know or

did not have reason to believe he would cause serious bodily injury or inflict a fatal

wound.

¶ 43 Given that the jury found this crime to be especially heinous, atrocious, or

cruel, the evidence is undisputed that Defendant committed an unlawful act

amounting to a felony intended to inflict serious bodily injury. Even in the light most

favorable to Defendant, no evidence existed to contravene the fact that Defendant

assaulted his wife, nor did evidence exist to contravene the fact that Defendant acted

with the intention to inflict serious bodily injury, or the knowledge or reason to know

his actions could do so. Therefore, Defendant was not entitled to an involuntary

manslaughter instruction.

¶ 44 I would find no error in the trial court’s decision to decline to deliver an

instruction to the jury on involuntary manslaughter because the jury’s verdict would

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CARPENTER, J., dissenting.

not have been different had the instruction been given. Therefore, I respectfully

dissent.