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
STATE V. BRICHIKOV
2022-NCCOA-33
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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2022-NCCOA-33
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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2022-NCCOA-33
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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2022-NCCOA-33
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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2022-NCCOA-33
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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2022-NCCOA-33
CARPENTER, J., dissenting.
not have been different had the instruction been given. Therefore, I respectfully
dissent.