State v. Brichikov

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-140
No. 41A22
Filed 16 December 2022
STATE OF NORTH CAROLINA
v.
MARK BRICHIKOV
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 281 N.C. App. 408, 2022-NCCOA-33, vacating a judgment
entered on 11 December 2019 by Judge Rebecca W. Holt in Superior Court, Wake
County, and holding that defendant was entitled to a new trial. Heard in the Supreme
Court on 5 October 2022.
Joshua H. Stein, Attorney General, by Marc X. Sneed, Special Deputy Attorney
General, for the State-appellant.
M. Gordon Widenhouse, Jr. for defendant-appellee.
MORGAN, Justice.
¶1 The appeal in this homicide case raises the sole issue of whether the trial court
committed prejudicial error by declining to deliver defendant’s requested jury
instruction on involuntary manslaughter. We hold that the evidence, viewed in the
light most favorable to defendant, was sufficient to require the trial court to submit
defendant’s requested instruction to the jury and that this error prejudiced defendant
because there was a reasonable possibility that a different result would have been
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reached if the jury had been so instructed. Accordingly, we affirm the decision of the
Court of Appeals, vacating the trial court’s judgment and granting defendant a new
trial.
I. Procedural and Factual Background
¶2 Defendant was indicted by a grand jury for the criminal offense of first-degree
murder in connection with the death of his wife, Nadia Brichikov, following her death
on 22 April 2018. Defendant pleaded not guilty. A jury trial was held beginning 2
December 2019 before the Honorable Rebecca W. Holt in Superior Court, Wake
County. The State elicited evidence through the testimony of fifteen witnesses.
Defendant did not testify on his own behalf but did call two witnesses to establish his
defense.
¶3 The evidence presented at trial tended to show the following: On 21 April 2018,
defendant arranged to meet his wife, Mrs. Brichikov, at the Knights Inn motel in
Raleigh. The Knights Inn was known by local law enforcement as a bustling location
for criminal activity and illicit drug use. Defendant and Mrs. Brichikov both suffered
from extensive histories of drug addiction. Mrs. Brichikov had been a regular user of
marijuana, powder cocaine, and crack cocaine since at least the 1990s. Over time, her
addiction worsened, and her drug use became an “all the time thing.” Although Mrs.
Brichikov had tried to end her drug use after having a son with her first husband in
2007, she “just couldn’t kick it.” Mrs. Brichikov’s mother also told detectives that her
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daughter was addicted to heroin and frequently subject to arrest by law enforcement.
Mrs. Brichikov and defendant first met at a session of Narcotics Anonymous or
Alcoholics Anonymous. They were married in 2015 and continued to purchase and
use drugs together afterward.
¶4 Defendant had just been released from the recovery and addiction treatment
center known as The Healing Place, and Mrs. Brichikov was recovering from an
opioid overdose that she had experienced on the previous day, when defendant
arranged to rendezvous with his wife on 21 April 2018. Mrs. Brichikov’s overdose
required the administration of the medication Narcan to her by emergency medical
personnel to revive her after a fall which had led to a significant wound to the back
of her head which required staples to close. Mrs. Brichikov had also been recently
arrested for possession of methamphetamines and was released from jail on 18 April
2018 after agreeing to act as a confidential police informant. Defendant and his wife
exchanged text messages expressing their love for, and promising their fidelity to,
one another leading up to their meeting on 21 April 2018. Defendant also urged his
wife to avoid using drugs, as he would be “sad to lose” her. Despite promising her
loyalty to defendant, however, Mrs. Brichikov had been residing with Clay Trott, a
man who provided her with money, rides, and a place to stay in exchange for sexual
favors, prior to and immediately following her 20 April 2018 overdose. At trial, Trott
identified Mrs. Brichikov as his girlfriend.
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¶5 On 21 April 2018, defendant and Mrs. Brichikov met in Room 241 at the
Knights Inn in Raleigh. Mrs. Brichikov checked into the room at 1:57 p.m. and
defendant arrived at the Knights Inn at or around 10:30 p.m. Between 11:14 p.m. and
11:17 p.m., Mrs. Brichikov sent text messages to a contact saved as “Knight1,” stating
that defendant was “acting stupid,” calling defendant a “[s]tupid crackhead,” and
claiming that she had had to “kick him out of [her] room.” Between 3:15 a.m. and 3:17
a.m., Mrs. Brichikov made outgoing cellular telephone calls to contacts saved in her
telephone directory as “Royalty Royalty” and “Julio New” which lasted a little over a
minute each.
¶6 Motel surveillance video footage showed defendant exiting Room 241 at
approximately 1:13 a.m. on 22 April 2018, wearing an “orangeish-brown” hooded
sweatshirt and white shorts, and walking toward a nearby Exxon gas station. Video
footage from the gas station showed defendant purchasing alcohol there and then
approaching the passenger side of a red truck in the parking lot. Detective Kelly
Kinney, who reviewed the footage and testified about it at trial, opined that this
interaction was an illegal drug transaction. Motel video footage then showed
defendant reentering Room 241 at approximately 1:35 a.m. with a black plastic bag
in his hand. Defendant exited the motel room again at 3:20 a.m. to go back toward
the Exxon gas station, then returned and reentered Room 241 at 3:25 a.m.; the video
footage showed Mrs. Brichikov standing at the motel room door and letting defendant
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back into the room. Between 3:29 a.m. and 3:43 a.m., the same action occurred. Mrs.
Brichikov exited the room to smoke a cigarette at 3:34 a.m. and reentered with
defendant at 3:43 a.m.
¶7 No one left or entered Room 241 again until 4:09 a.m., at which point defendant
exited the room for the last time, leaving the door open to reveal Mrs. Brichikov lying
on the floor with her arm moving back and forth. Defendant walked upstairs to the
next level of the motel and knocked on at least two different motel room doors without
receiving a response. Defendant briefly entered Room 341—the room directly above
Room 241—before going back downstairs, jumping over a wall, and walking toward
the front of the motel and out of the sight of the camera. At this point, defendant was
wearing a black long-sleeve shirt and green boxer shorts while carrying an orange-
brown hooded sweatshirt with him. Defendant then took his employer’s truck, along
with two iPad electronic tablets and his employer’s credit card, and left for
Wilmington, North Carolina. Defendant was later arrested in Wilmington.
¶8 At or around 5:00 a.m. on 22 April 2018, law enforcement officers were
dispatched to Room 241 at the Knights Inn motel. Officer Gregory Modetz, who
testified at trial, responded to the dispatch and arrived to find Mrs. Brichikov lying
in the doorway. Her face had been “badly beaten and bloodied”; her tank top and bra
had been pulled up to her neck, exposing her chest and abdomen; and she did not
appear to be breathing. Officer Modetz summoned members of the fire department to
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determine if Mrs. Brichikov had a pulse; she did not. Law enforcement officers
discovered a glass crack cocaine pipe and twenty-dollar bills in the room. Defendant’s
wallet containing his identification, permanent resident card, credit card, and Social
Security card was recovered on the same table as the crack pipe. A motel ice bucket
was found containing loose hypodermic needles, cotton balls, alcohol preparation
pads, bandages, two unused Narcan nasal sprays, small metal bowls commonly used
for mixing illegal drugs, and long rubber bands commonly used for injecting
intravenous drugs. Two more long rubber bands were found in the motel room’s trash
can. No weapons were found inside the room.
¶9 Agent Tracy Tremlett of the City-County Bureau of Identification (CCBI)
testified at trial that she had also examined the room for evidence. She noted the
presence of alcohol and white powder residue which appeared to be cocaine. To Agent
Tremlett, the scene portrayed a struggle: furniture including the bed, side table, and
a sitting chair had been moved, and Mrs. Brichikov’s body was “entwined” with a
chair. The agent noted smears or wipe marks through the blood stains on the motel
room’s floor, indicating movement consistent with a struggle. Four of Mrs. Brichikov’s
teeth had been knocked out. A chemical reagent designed to interact with trace
amounts of blood not visible to the naked eye indicated the presence of blood in and
around the motel room’s sink and on a motel towel and washcloth. CCBI recovered
from Room 241 a pair of red-stained white Hype shorts with “MB” written on the
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waistband and an orange hooded sweatshirt from the bushes outside of the room.
¶ 10 Defendant and the State both retained medical experts to testify. Dr. Craig
Nelson, who performed Mrs. Brichikov’s autopsy, testified on behalf of the State that
the majority of blood on Mrs. Brichikov was on her face, appearing to have emanated
from her nose and mouth. Dr. Nelson noted Mrs. Brichikov’s stapled laceration of the
head, stating that it was consistent with the injuries accompanying her opioid
overdose on 20 April 2018. She had slight intracranial bleeding, which had not been
found by the CT1 scan performed on her after her prior overdose. Dr. Nelson also
noted numerous blunt force injuries on Mrs. Brichikov’s face, neck, torso, and
extremities, including fractures of her nose, cheekbones, and jaw. She had lacerations
and a massive hematoma on her face, blood inside of her nose and mouth, and
numerous absent or broken teeth that had appeared to be in poor dental repair prior
to her death. Blood was not found inside of her lungs, esophagus, or stomach. There
were bite marks on her torso and numerous marks at various stages of healing on her
right arm consistent with intravenous drug use. Her upper chest and abdomen had
“dirt-soiled adhesive” residue indicating a recent removal of electrocardiogram pads.
¶ 11 Dr. Nelson’s autopsy also revealed atherosclerosis of Mrs. Brichikov’s heart,
including a narrowing of the middle portion of one of the major arteries of her heart
by 80%. Dr. Nelson testified that a narrowing of 75% or more is associated with
1 “CT” is an abbreviated reference for the term “computerized tomography.”
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sudden death. He opined that this condition was at least a “component of her death”
since “the combination of a hard-working heart in a struggle, as well as that narrow
coronary artery, is a setup for the heart to have a sudden irregular beat and stop.”
Additionally, Mrs. Brichikov’s toxicology report revealed the presence of both cocaine
and fentanyl, as well as the cocaine metabolites cocaethylene and benzoylecgonine,
within her system. Dr. Nelson recognized that this likely played a role in her death
as well. The doctor concluded that the totality of the drug use, Mrs. Brichikov’s heart
disease, and defendant’s assault resulted in her death. He was unable to conclude
whether she would have died in the absence of any one of these factors.
¶ 12 Dr. Jonathan Privette testified on behalf of defendant, opining that the “most
suitable explanation for [Mrs. Brichikov’s] immediate cause of death was the drugs
that she had in her system, the fentanyl and the cocaine.” Dr. Privette testified that,
in his experience, Mrs. Brichikov would have survived the facial injuries inflicted by
defendant if she had not had fentanyl in her system. Dr. Privette also testified that
Mrs. Brichikov’s movements on the floor when defendant exited Room 241 for the last
time were consistent with a fentanyl overdose, but he could not exclude the possibility
that she had suffered a heart attack since such an event could have been triggered
by either Mrs. Brichikov’s drug use or defendant’s assault and would be difficult to
detect postmortem. He also concluded that the superficial bruises and contusions on
Mrs. Brichikov’s neck were consistent with her practice of injecting drugs in that
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region of her body.
¶ 13 The State called Dr. Dana Copeland to testify in rebuttal. Dr. Copeland agreed
with Dr. Nelson that the proximate cause of Mrs. Brichikov’s death was blunt force
trauma, not drug toxicity; specifically, Dr. Copeland concluded that Mrs. Brichikov
died from a trauma-induced heart attack, to which the presence of cocaine and
fentanyl in her system as well as her head injury significantly contributed. Dr.
Copeland disagreed with Dr. Privette that Mrs. Brichikov’s final movements were
consistent with an opioid overdose. Finally, Dr. Copeland testified that the bruising
on Mrs. Brichikov’s neck was consistent with an effort to strangle her and attributed
greater significance to her above-average brain weight than either Drs. Nelson or
Privette, while concluding that she had suffered a substantial enough intracranial
injury from the assault to contribute to her confusion or a likely concussion. All three
doctors agreed that, in their experience, the levels of fentanyl and cocaine in Mrs.
Brichikov’s system were capable of causing death in at least some drug users.
¶ 14 During the jury charge conference after both sides had concluded their
respective case presentations, defendant conceded to his assault of Mrs. Brichikov
and gave permission to his attorney to admit the assault during closing arguments.
However, defense counsel requested that the trial court issue jury instructions on
voluntary and involuntary manslaughter. Specifically, defense counsel requested an
instruction on involuntary manslaughter under a theory of negligent omission—that
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Mrs. Brichikov may have died as a result of defendant’s negligent failure to render or
obtain medical aid for her overdose. After the trial court went through the instruction
for second-degree murder with the parties, the trial court verified with defense
counsel:
THE COURT: All right. So this [instruction] does
include at the end of the second-degree, “If you do not find
the defendant guilty of second-degree murder, you must
determine whether the defendant is guilty of involuntary
manslaughter,” and . . . “First that the defendant acted in
a criminally negligent way” is what you’re requesting?
[DEFENSE COUNSEL]: Yes, Your Honor.
¶ 15 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” contains the following instruction on involuntary
manslaughter as a lesser-included offense of second-degree murder:
Involuntary manslaughter is the unintentional killing of a
human being by an unlawful act not amounting to a felony,
or by an act done in a criminally negligent way.
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
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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.
N.C.P.I.—Crim. 206.30A (2019) (alterations in original).
¶ 16 The trial court instructed the jury on the crimes of first-degree murder and
second-degree murder, as well as the possibility of finding the defendant not guilty.
The trial court did not issue instructions on the crimes of voluntary manslaughter or
involuntary manslaughter. On the charge of second-degree murder, the trial court
instructed the jury that:
Second-degree murder is the unlawful killing of a
human being with malice but without premeditation and
deliberation. Second-degree murder differs from first-
degree murder in that the State need not prove a specific
intent to kill, premeditation, deliberation or that the killing
was committed in the perpetration of a felony.
In order for you to find the defendant guilty of
second-degree murder, the State must prove beyond a
reasonable doubt that the defendant acted—let me start
over. In order for you to find the defendant guilty of second-
degree murder, the State must prove beyond a reasonable
doubt that the defendant intentionally and with malice
wounded the victim with a deadly weapon thereby
proximately causing the victim’s death.
If the State proves beyond a reasonable doubt that
the defendant intentionally inflicted a wound upon the
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
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are not compelled to do so. You may consider the inferences
along with all other facts and circumstances in
determining whether the killing was unlawful and whether
it was done with malice. If the killing was unlawful and
was done with malice, the defendant would be guilty of
second-degree murder.
If you find from the evidence beyond a reasonable
doubt that on or about the alleged date the defendant
intentionally and with malice wounded the victim with a
deadly weapon and that this proximately caused the
victim’s death, it would be your duty to return a verdict of
guilty of second-degree murder. If you do not so find or have
a reasonable doubt as to one or more of these things, it
would be your duty to return a verdict of not guilty.
¶ 17 On the issue of malice, the trial court charged the jury that:
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.
¶ 18 This language largely conforms with the pattern jury instruction for “Second
Degree Murder Where a Deadly Weapon Is Used, Not Including Self-Defense,
Covering All Lesser Included Homicide Offenses,” which defines malice as:
[N]ot 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 which prompts a person to take the
life of another intentionally or to intentionally inflict
serious bodily harm which proximately results in another’s
death, without just cause, excuse or justification.] [malice
also arises when an act which is inherently dangerous to
human life is intentionally done so recklessly and wantonly
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as to manifest a mind utterly without regard for human life
and social duty and deliberately bent on mischief].
N.C.P.I.—Crim. 206.30A.
¶ 19 Defendant objected, first during the jury charge conference and again prior to
the reading of the jury’s verdict, to the trial court’s failure to submit instructions on
voluntary manslaughter and involuntary manslaughter as options to the jury.
¶ 20 At the conclusion of defendant’s trial on 11 December 2019, the jury returned
a verdict of guilty of second-degree murder after more than five hours of deliberation.
While deliberating, the jury asked to review Mrs. Brichikov’s autopsy and toxicology
reports, records concerning the duration of defendant’s stay at The Healing Place,
and Mrs. Brichikov’s and defendant’s cellular telephone records. During the
sentencing phase of defendant’s trial, the jury found three aggravating factors: that
(1) his offense was especially heinous, atrocious, or cruel; (2) he was in willful
violation of a condition of parole or post-release supervision; and (3) he had taken
advantage of a position of trust or confidence in order to commit his offense. The trial
court sentenced defendant to a minimum term of incarceration of 338 months and a
maximum term of 418 months. Defendant appealed to the Court of Appeals, arguing
that the trial court had erred by failing to submit to the jury his requested jury
instruction on involuntary manslaughter since the jury could have found that he had
assaulted his wife in a culpably negligent manner or that his failure to render aid to
her was a culpably negligent omission.
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¶ 21 In an opinion filed on 18 January 2022, State v. Brichikov, 281 N.C. App. 408,
2022-NCCOA-33, a divided panel of the Court of Appeals vacated defendant’s
conviction and remanded his matter for a new trial. The majority first dispensed of
defendant’s negligent omission theory since the pattern jury instruction on
involuntary manslaughter does not address negligent omissions and thus he would
have had to submit his request for the instruction in writing for the trial court’s
failure to give such an instruction to be considered error. Brichikov, ¶ 17; see also
State v. McNeill, 346 N.C. 233, 240 (1997); State v. Martin, 322 N.C. 229, 237 (1988).
However, the lower appellate court ultimately held that defendant was entitled to a
pattern jury instruction on the lesser-included offense of involuntary manslaughter
under a theory of negligent action since the evidence, viewed in the light most
favorable to defendant, tended to negate the “malice” element of second-degree
murder and because there was a reasonable possibility that a different result would
have been reached at trial if this instruction had been given. Brichikov, ¶¶ 31, 35.
¶ 22 The dissenting judge of the Court of Appeals panel disagreed that the trial
court’s failure to render an instruction on involuntary manslaughter amounted to
prejudicial error. Specifically, the dissent took an opposing view on 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” because, from “the jury finding beyond a reasonable doubt that this offense
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was especially heinous, atrocious, or cruel as an aggravating factor, it appears clear
that the verdict would not have been different had the trial judge given the lesser
included involuntary manslaughter instruction.” Brichikov, ¶ 39 (Carpenter, J.,
dissenting).
¶ 23 The State filed a timely notice of appeal pursuant to N.C.G.S. § 7A-30(2) based
upon the dissent filed in the lower appellate court’s consideration of this matter. Since
no petitions for discretionary review have been allowed in this matter, we therefore
limit our review to those issues raised by the dissent: whether the trial court erred
by declining to issue a pattern jury instruction on involuntary manslaughter and
whether this error was prejudicial in light of the jury’s finding that defendant’s
offense was “especially heinous, atrocious, or cruel.”
II. Analysis
¶ 24 “The jury charge is one of the most critical parts of a criminal trial.” State v.
Walston, 367 N.C. 721, 730 (2014). When a “defendant’s request for [an] instruction
[is] correct in law and supported by the evidence in the case, the trial court [is]
required to give the instruction, at least in substance.” State v. Shaw, 322 N.C. 797,
804 (1988) (citing State v. Howard, 274 N.C. 186, 199 (1968)). For over a century, we
have held, specifically, that “when there is evidence tending to support a verdict of
guilty of an included crime of lesser degree than that charged,” the trial court “must
instruct the jury that it is permissible for them to reach such a verdict if it accords
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with their findings.” State v. Hicks, 241 N.C. 156, 160 (1954) (citing State v. Jones, 79
N.C. 630, 631 (1878) (“It was [defendant’s] privilege to have the State’s evidence
applied to any theory justified by it . . . . This right he demanded in his prayer for
instructions which ought to have been given.”)).
¶ 25 In order to be granted a new trial for the trial court’s failure to instruct the
jury on a lesser-included offense, a criminal defendant must demonstrate that there
was evidence presented at trial that, viewed in the light most favorable to the
defendant, would permit a rational jury to acquit the accused of the greater charge
and convict him or her of the lesser offense. Upon reviewing the trial record, we agree
that there was sufficient evidence adduced at defendant’s trial to permit a rational
jury to acquit him of second-degree murder and to convict him of involuntary
manslaughter. We further hold that there was a reasonable possibility that the jury
would have acquitted defendant of the greater offense and convicted him of the lesser
offense in the event that both instructions had been given to the jury. Accordingly,
we affirm the decision of the Court of Appeals.
¶ 26 We begin by observing that the dissenting judge at the Court of Appeals wed
the dissent’s view that the trial court did not commit error in the present case to the
dissent’s position that the verdict would not have been different had an instruction
on involuntary manslaughter been given by concluding that the dissent “would find
no error in the trial court’s decision to decline to deliver an instruction to the jury on
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involuntary manslaughter because the jury’s verdict would not have been different
had the instruction been given.” Brichikov, ¶ 44 (Carpenter, J., dissenting) (emphasis
added). However, since the dissenter on the Court of Appeals panel paid some tribute
to the Court of Appeals majority’s position on the element of malice and since the
analyses for error and prejudice overlap significantly in this area of law, we shall
discuss both aspects in turn in order to develop our appreciation for the ultimate issue
before us: whether there was a reasonable possibility that the jury might have
convicted defendant of involuntary manslaughter as opposed to second-degree
murder, if the jury had been instructed on both offenses.
¶ 27 “An instruction on a lesser-included offense must be given only if the evidence
would permit the jury rationally to find defendant guilty of the lesser offense and to
acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561 (2002) (citing State v.
Conaway, 339 N.C. 487, 514). “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
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.” State v. Drumgold, 297 N.C. 267, 271 (1979) (extraneity
omitted). “The determinative factor is what the State’s evidence tends to prove. If the
evidence is sufficient to fully satisfy the State’s burden of proving each and every
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element of the offense . . . and there is no evidence to negate these elements other
than defendant’s denial that he committed the offense, the trial judge should properly
exclude from jury consideration the possibility of [the lesser-included offense].” State
v. Strickland, 307 N.C. 274, 293 (1983), overruled in part on other grounds by State
v. Johnson, 317 N.C. 193 (1986).
¶ 28 We exercise review here in order to determine whether the State provided
sufficient evidence to fully satisfy its burden of proving each element of second-degree
murder beyond a reasonable doubt and if any other evidence tended to negate those
elements when viewed in the light most favorable to defendant. Specifically, we focus
on the element of malice since involuntary manslaughter is “the unlawful and
unintentional killing of another without malice which proximately results from an
unlawful act not amounting to a felony nor naturally dangerous to human life, or by
an act or omission constituting culpable negligence.” Johnson, 317 N.C. at 205
(emphasis added). Malice can be shown in at least three ways: (1) actual malice, a
“positive concept of express hatred, ill-will or spite”; (2) an act inherently dangerous
to human life that is “done so recklessly and wantonly as to manifest a mind utterly
without regard for human life and social duty and deliberately bent on mischief”; or
(3) “that condition of mind which prompts a person to take the life of another
intentionally without just cause, excuse, or justification.” State v. Reynolds, 307 N.C.
184, 191 (1982) (extraneity omitted).
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¶ 29 First, we note 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 (1992). “When the killing with a deadly weapon is admitted . . . two presumptions
arise: (1) that the killing was unlawful; (2) that it was done with malice; and an
unlawful killing with malice is murder in the second degree.” State v. Fisher, 318 N.C.
512, 525 (1986) (quoting State v. Gordon, 241 N.C. 356, 358 (1955)). This presumption
is only mandatory, however, in the sense that, the “defendant, to avoid its effect, must
produce some evidence raising an issue on the existence of malice and unlawfulness
or rely on such evidence as the state may have adduced. In the presence of evidence
raising such issues, the presumption disappears altogether, leaving only a permissible
inference which the jury may accept or reject.” Reynolds, 307 N.C. at 190 (emphasis
added). Here, the trial court properly instructed the jury that it could, but was not
compelled to, infer malice from the fact that defendant intentionally inflicted a wound
upon his victim Mrs. Brichikov with a deadly weapon in the form of his hands.
¶ 30 In the alternative, the State contends that defendant’s actions were
“inherently dangerous and done in [such] a fashion that had no regard for human life
or social duty” and thus satisfy the second theory of malice. However, the “distinction
between ‘recklessness’ indicative of murder and ‘recklessness’ associated with
manslaughter is one of degree rather than kind.” State v. Rich, 351 N.C. 386, 393
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(2000) (extraneity omitted). The criminal negligence required to support a charge of
involuntary manslaughter “is something more than actionable negligence in the law
of torts; it is such recklessness, proximately resulting in injury or death, as imports
a thoughtless disregard of consequences or a heedless indifference to the safety and
rights of others.” State v. Massey, 271 N.C. 555, 557 (1967) (extraneity omitted).
Defendant’s acts, viewed in the light most favorable to him, squarely meet the
standard for criminal negligence, but do not conclusively rise to the degree of
recklessness evincing an utter disregard for human life or a mind deliberately bent
on mischief.
¶ 31 Indeed, the evidence adduced at defendant’s trial permits a finding by a jury
that he acted intentionally and recklessly in assaulting his wife, but without hatred,
an intent to take Mrs. Brichikov’s life, or “a mind utterly without regard for human
life.” See Reynolds, 307 N.C. at 191. Specifically, the jury heard testimony and
received evidence that tended to show the following: that defendant and Mrs.
Brichikov arranged to get together on 21 April 2018 after expressing love, concern,
and fidelity for one another; that they consumed alcohol and opioids together over the
course of several hours without any apparent violence between them; that something
provoked a confrontation between them in the early hours of 22 April 2018; that
defendant left the motel room after having assaulted his wife but before she had
expired; that Mrs. Brichikov’s movements when defendant exited the room for the
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Opinion of the Court
last time were consistent with a fentanyl overdose; and that her death likely would
not have occurred in the absence of her preexisting heart condition and state of
intoxication.
¶ 32 Taken together, a rational juror could conclude that defendant had acted with
culpable negligence in assaulting his wife and leaving her behind while she suffered
a drug overdose or heart attack that was at least partially exacerbated by his actions,
but that it was done without malice given the potentially volatile and drug-induced
confrontation erupting between them in the twenty-six minutes between 3:43 a.m.
and 4:09 a.m. and the unpredictability of Mrs. Brichikov’s subsequent death. See
State v. Wilkerson, 295 N.C. 559, 583 (1978) (“[A] mere assault which proximately
results in death, but which does not indicate a total disregard for human life and is
committed with no intent to kill or to inflict serious bodily injury, will support, at
most, a verdict of involuntary manslaughter.”). Because the evidence elicited by
defendant was sufficient to support a verdict of involuntary manslaughter as the
lesser-included offense of second-degree murder, the trial court erred by declining to
issue a jury instruction on that offense.
¶ 33 Failure to submit a requested jury instruction on a lesser-included offense
when one is warranted is generally reversible error. See State v. Price, 344 N.C. 583,
589 (1996) (“Our law states that when the court improperly fails to submit a lesser
included offense of the offense charged, and the jury had only two options in reaching
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a verdict—guilty of the offense charged and not guilty—then a verdict of guilty of the
offense charged is not reliable, and a new trial must be granted.”). However, an error
does not require reversal unless it is found to be prejudicial under the harmless error
analysis provided by N.C.G.S. § 15A-1443. For an error which does not arise under
the Constitution of the United States, a criminal defendant bears the burden of
demonstrating a “reasonable possibility” that had the error not been committed, a
different result would have been reached at trial. N.C.G.S. § 15A-1443(a) (2021). This
is a non-exacting inquiry that considers, inter alia, the strength of the State’s
evidence supporting defendant’s conviction and whether the jury’s considerations
tended to suggest that it may have been persuaded to adopt a different finding had it
been given the excluded instruction. See State v. Keller, 374 N.C. 637, 649 (2020).
¶ 34 This Court finds no prejudicial effect for a trial court’s failure to submit
instructions on voluntary manslaughter or involuntary manslaughter in cases where
both first-degree murder and second-degree murder instructions are submitted to the
jury and the jury renders a verdict of first-degree murder based on premeditation and
deliberation. Price, 344 N.C. at 590. However, where a jury convicts a criminal
defendant of second-degree murder in the absence of an instruction on a lesser-
included offense, appellate courts are not permitted to infer that there is no
reasonable possibility that the jury would have convicted the defendant of the lesser-
included offense on the basis of that conviction, State v. Thacker, 281 N.C. 447, 456
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Opinion of the Court
(1972). A jury may feel compelled to convict a criminal defendant of some offense in
light of the gravity of the accused’s admitted transgressions, especially in a case such
as the one here. See Keeble v. United States, 412 U.S. 205, 212 (1973) (“Where one of
the elements of the offense charged remains in doubt, but the defendant is plainly
guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”);
State v. Thomas, 325 N.C. 583, 599 (1989) (holding that a jury must “be permitted to
consider whether [the] defendant was guilty of the lesser-included offense of
involuntary manslaughter and not be forced to choose between guilty as charged or
not guilty” where “almost all the evidence point[ed] to some criminal culpability on
[the] defendant’s part”). In the instant case, the jury had no option presented to it
other than to either convict defendant of murder or to acquit him. Consequently, the
trial court’s failure to charge the jury on the crime of involuntary manslaughter
cannot be found harmless as a result of the jury’s verdict.
¶ 35 Likewise, we decline to infer from the jury’s determination of the aggravating
factor that defendant’s offense was “especially heinous, atrocious, or cruel” that there
is no reasonable possibility that it would have convicted him of involuntary
manslaughter instead of second-degree murder had it been instructed as to both
offenses. The jury at defendant’s trial found that his offense was “especially heinous,
atrocious, or cruel” during the sentencing phase of his trial after having convicted
him of second-degree murder. The trial court did not elaborate on the meaning or
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Opinion of the Court
significance of such a finding. The State did not provide any additional evidence to
support this finding, instead relying upon the evidence presented at trial establishing
Mrs. Brichikov’s significant facial injuries and the struggle portrayed by the crime
scene. It is not as clear to us, as it was to the dissent at the lower appellate court, how
the jury “gave substantially the same consideration to the evidence” in finding the
presence of this aggravating factor “that it would have given in the determination of
the presence of malice.” Brichikov, ¶ 42 (Carpenter, J., dissenting).
¶ 36 Indeed, a criminal defendant can be both convicted of involuntary
manslaughter and have his crime found to have been “especially heinous, atrocious,
or cruel.” See, e.g., State v. West, 103 N.C. App. 1, 11–12 (1991); State v. Shadrick, 99
N.C. App. 354, 355–56 (1990). Since, as the Court of Appeals has held, “[i]nvoluntary
manslaughter differs from second degree murder only in that malice is present in the
latter but not the former,” State v. Allen, 77 N.C. App. 142, 145 (1985), it necessarily
follows that a finding that a criminal defendant committed a homicide offense in an
especially heinous, atrocious, or cruel way does not require a finding that he acted
with malice in bringing about his victim’s death. As such, we do not believe that the
jury’s finding that defendant acted in an especially heinous, atrocious, or cruel way
in the instant case serves as the jury’s definite rejection of the evidence tending to
undermine his conviction for second-degree murder. Rather, we discern that the jury
could have found both that defendant had acted with especial heinousness,
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Opinion of the Court
atrociousness, or cruelty in assaulting his wife and that he lacked malice in causing
her subsequent death. We refuse to speculate about any insight the jury’s findings at
defendant’s subsequent sentencing proceeding may give us into what the jury would
have or would not have considered persuasive as to the element of malice prior to its
rendition of the verdict in defendant’s case.
¶ 37 We hold that the trial court’s refusal to instruct the jury on the criminal offense
of involuntary manslaughter was prejudicial error warranting reversal due to (1) the
strength of the evidence tending to undermine the State’s contention of malice, and
(2) the jury’s consideration of various factors, including Mrs. Brichikov’s toxicology
report and the record of her communications with defendant prior to their meeting
on 21 April 2018, suggesting that it may have struggled with its decision to convict
defendant of murder and could have used such evidence to support a finding of
involuntary manslaughter instead if the jury had been so instructed. We therefore
conclude that there is a reasonable possibility that, had the jury been instructed on
involuntary manslaughter, it would have returned a verdict of guilty of involuntary
manslaughter rather than a verdict of second-degree murder.
III. Conclusion
¶ 38 In light of our determination that the trial court committed prejudicial error
by declining defendant’s request to issue a pattern jury instruction on involuntary
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Opinion of the Court
manslaughter, we affirm the decision of the Court of Appeals, in which it vacated
defendant’s judgment and determined that defendant was entitled to a new trial.
AFFIRMED.
Justice BERGER dissenting.
¶ 39 The evidence at trial tended to show that Nadia Flores was beaten so badly
that her face was “unrecognizable,” and officers responding to the scene of her murder
could not identify her body through photographs. Defendant admitted that he
assaulted Ms. Flores.1
¶ 40 The medical examiner who performed the autopsy on Ms. Flores noted that she
had “numerous blunt force injuries” and that she had a broken nose, broken
zygomatic arches, and a broken jaw. Her injuries were so extensive that “the central
portion of her face . . . could shift without moving the rest of the head,” and the
medical examiner “could feel bone grinding on bone as those fractures, those breaks,
shifted against one another.” In addition to the multiple broken bones in her face,
Ms. Flores had lacerations to her head, a contusion, bruising to her neck, and bite
marks on her back.
¶ 41 According to the medical examiner, Ms. Flores’s injuries were the result of
“substantial force” equivalent to a long-distance fall or car crash. The medical
examiner testified that the “cause of death was physical assault, including blunt force
injuries” with drug use and a cardiac event as contributing conditions. A forensic
pathologist testified that the “primary cause” of Ms. Flores’s death was “multiple
1 Ms. Flores was initially identified as Nadia Natasha Brichikov. However, the
medical examiner testified that he corrected “the name to Nadia Flores later by comparison
of proper information given on the death certificate.”
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blunt force trauma to face, head and neck” as a result of the assault. Defendant’s
own expert conceded that the effects of the assault contributed to Ms. Flores’s death.
¶ 42 “Murder in the second degree is the unlawful killing of a human being with
malice, but without premeditation and deliberation.” State v. Foust, 258 N.C. 453,
458, 128 S.E.2d 889, 892 (1963). “An intent to inflict a wound which produces a
homicide is an essential element of murder in the second degree.” State v. Williams,
235 N.C. 752, 753, 71 S.E.2d 138, 139 (1952). “While an intent to kill is not a
necessary element of murder in the second degree, that crime does not exist in the
absence of some intentional act sufficient to show malice and which proximately
causes death.” State v. Snyder, 311 N.C. 391, 393, 317 S.E.2d 394, 395 (1984).
¶ 43 To the extent there was an error in the jury instructions, the error worked in
defendant’s favor. The jury should have been instructed that if it determined beyond
a reasonable doubt that “defendant intentionally assaulted the deceased with his
hands, fists, or feet, which were then used as deadly weapons, and that her death was
a proximate result of his acts, then the law presumes malice and . . . defendant must
be convicted of murder in the second degree.” State v. Lang, 309 N.C. 512, 526–27,
308 S.E.2d 317, 324–25 (1983). “The effect of the presumption is to impose upon the
defendant the burden of going forward with or producing some evidence of a lawful
reason for the killing or an absence of malice.” State v. Simpson, 303 N.C. 439, 451,
279 S.E.2d 542, 550 (1981). When a defendant produces no evidence that the killing
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was lawful or that it was committed without malice, the jury should be instructed
that the defendant must be convicted of second-degree murder. Lang, 309 N.C. at
526, 308 S.E.2d at 324.
¶ 44 Both the Court of Appeals and the majority today misconstrue the effect of
these mandatory presumptions. Controlling precedent from this Court dictates that
once these presumptions arise, a burden is imposed on a criminal defendant to rebut
these presumptions. In this case, defendant failed to produce any evidence to
overcome these presumptions of unlawfulness and malice. In fact, defendant
admitted that he assaulted Ms. Flores, and his own expert confirmed that Ms. Flores’s
death was nonaccidental and proximately caused by the assault.
¶ 45 Because defendant failed to rebut the mandatory presumption of malice, a
properly instructed jury would have been compelled to find that defendant acted with
malice if it found that defendant intentionally assaulted the victim with his hands,
which were used as deadly weapons, and that the victim’s death was proximately
caused by such an assault. The trial court instructed the jury only that an inference
of unlawfulness and malice arose. This error by the trial court worked to defendant’s
advantage in that the jury had to deliberate and decide the issue of malice in the
absence of the presumptions referenced above. The majority either inadvertently
misses this step in its analysis, or it has implicitly overruled longstanding precedent.
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Berger, J., dissenting
¶ 46 Because “the State’s evidence [wa]s positive as to each and every element of
[second-degree murder] and there [wa]s no conflicting evidence relating to any
element of the charged crime,” State v. Harvey, 281 N.C. 1, 13–14, 187 S.E.2d 706,
714 (1972), the trial court was not required to instruct the jury on involuntary
manslaughter.
¶ 47 Defendant’s argument and the majority’s discussion of involuntary
manslaughter is misplaced. There is no evidence from which defendant was entitled
to an instruction on the lesser offense because not only was malice presumptively
established and not rebutted, but the evidence did not meet the elements of
involuntary manslaughter. See State v. Wallace, 309 N.C. 141, 145, 305 S.E.2d 548,
551 (1983).
¶ 48 “Involuntary manslaughter is the unintentional killing of a human being
without either express or implied malice (1) by some unlawful act not amounting to
a felony [o]r naturally dangerous to human life, or (2) by an act or omission
constituting culpable negligence.” State v. Wilkerson, 295 N.C. 559, 579, 247 S.E.2d
905, 916 (1978). Stated another way, the crime of involuntary manslaughter is
committed “[w]here death results unintentionally, . . . from an unlawful act on his
part not amounting to a felony, or from a lawful act negligently done.” Foust, 258
N.C. at 459, 128 S.E.2d at 893 (quoting State v. Hovis, 233 N.C. 359, 365, 64 S.E.2d
564, 568 (1951)). “To constitute involuntary manslaughter, the homicide must have
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Berger, J., dissenting
been without intention to kill or inflict serious bodily injury, and without either
express or implied malice.” Id.¶ 49 The majority’s focus on malice, though relevant, is not determinative in this
case given defendant’s intentional and felonious assault upon Ms. Flores.2 Moreover,
the majority’s discussion of culpable negligence misses the mark because the
intentional, felonious assault was not “a lawful act negligently done.” Id. Defendant’s
actions here do not satisfy the elements of involuntary manslaughter, and this Court
should reverse the Court of Appeals.
¶ 50 I respectfully dissent.
Chief Justice NEWBY and Justice BARRINGER join in this dissenting
opinion.
2 Although not argued, defendant’s assertions, and much of the majority’s reasoning,
appear to align more appropriately with the offense of voluntary manslaughter committed in
a sudden heat of passion. See State v. Rummage, 280 N.C. 51, 56, 185 S.E.2d 221, 225 (1971)
(“Manslaughter is the unlawful killing of another without malice, and, under given
conditions, this crime may be established, though the killing has been both unlawful and
intentional.” (cleaned up)).