State v. Monroe

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-846

No. COA20-839

Filed 20 December 2022

Wake County, No. 17 CRS 220095

STATE OF NORTH CAROLINA

v.

AUSBAN MONROE, III, Defendant.

Appeal by Defendant from judgment entered 29 January 2020 by Judge

Rebecca W. Holt in Wake County Superior Court. Heard in the Court of Appeals 20

October 2021.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Steven
Armstrong, for the State.

Michael E. Casterline for Defendant-Appellant.

JACKSON, Judge.

¶1 Defendant Ausban Monroe, III, (“Defendant”) appeals from his conviction for

second-degree murder. For the reasons detailed below, we hold that the trial court

did not err.

I. Background

¶2 Early in the morning on 15 October 2017, Lazarus Hohn attended a house

party on New Market Way in Raleigh, North Carolina, with several friends.

Relatively soon after arriving at the party, Mr. Hohn and two of his friends, Khalid
 STATE V. MONROE

2022-NCCOA-846

Opinion of the Court

Al-Najjar and Jamie Reyes, became involved in an altercation with another

individual, Victor Benitez, outside the front of the house. Mr. Benitez ended up on

the ground. After the fight was over, Mr. Hohn, Mr. Al-Najjar, and Mr. Reyes walked

to the complex’s parking lot to leave. As they approached their car, Defendant and

one of his friends entered the parking lot on foot. Mr. Benitez had informed

Defendant, who was attending the same house party, about the altercation in front

of the home and that he felt that it had been an unfair fight. Defendant, already

heavily intoxicated at that point, decided to seek out Mr. Hohn, Mr. Al-Najjar, and

Mr. Reyes to confront them. Once in the parking lot, Defendant pulled out a gun and

began pointing it between the three friends, asking who had fought Mr. Benitez.

Defendant had purchased the gun on the street, and testimony at trial revealed that

it had been stolen from the original owner’s home. Defendant testified that he

purchased the gun and kept it on him for protection.

¶3 Mr. Hohn stepped forward in response to Defendant’s question and answered

that he had been the one to fight Mr. Benitez. Defendant then pointed the gun at Mr.

Hohn, and Mr. Hohn attempted to hit the gun away from him. Defendant and Mr.

Hohn started fighting, while Mr. Reyes started fighting with the other individual who

had accompanied Defendant to the parking lot. Mr. Al-Najjar testified at trial that

he attempted to grab the gun from Defendant during the fight and that it was “going

everywhere.” As Defendant and Mr. Hohn were fighting, the gun that Defendant was
 STATE V. MONROE

2022-NCCOA-846

Opinion of the Court

holding fired, and Mr. Hohn fell to the ground, having been shot in the chest. Mr. Al-

Najjar threw Defendant to the ground and grabbed the gun. He then discarded the

gun and applied pressure to Mr. Hohn’s wound with his shirt. Defendant and his

friend left the scene.

¶4 Paramedics arrived and determined that Mr. Hohn had a single gunshot

wound and did not have a pulse or other signs of life. Mr. Hohn was transported to

Wake County Medical Center and was pronounced dead shortly after arriving.

¶5 Defendant was arrested and, on 6 November 2017, was indicted on one count

of first-degree murder. Defendant was tried by jury at the 21 January 2020 Criminal

Session of Wake County Superior Court. At the close of the evidence, the trial court

instructed the jury on first-degree murder, second-degree murder, and involuntary

manslaughter.

¶6 With respect to second-degree murder, the trial court instructed the jury that,

if they found Defendant guilty of second-degree murder, they should indicate on the

verdict form which theory or theories of malice they found. The verdict form itself

listed three theories of malice: (1) malice meaning hatred, ill will, or spite; (2) malice

defined as 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; and (3) malice that arises when an act which is inherently

dangerous to human life is intentionally done so recklessly and wantonly as to
 STATE V. MONROE

2022-NCCOA-846

Opinion of the Court

manifest a mind utterly without regard for human life and social duty and

deliberately bent on mischief.

¶7 During deliberations, the jury asked for clarification on malice and second-

degree murder. The trial court repeated its prior second-degree murder instructions.

¶8 On 29 January 2020, the jury returned a verdict finding Defendant guilty of

second-degree murder. The jury answered “yes” on the form as to whether they found

each of the three theories of malice, finding all three present. The trial court

sentenced Defendant for second-degree murder as a Class B1 to a minimum of 240

months to a maximum of 300 months active incarceration. Defendant objected to the

B1 classification, contending that a B2 classification was appropriate.

¶9 Defendant orally noticed appeal.

II. Analysis

¶ 10 Defendant argues on appeal that he is entitled to be resentenced as a Class B2

felon because N.C. Gen. Stat. § 14-17(b) is ambiguous as to how a defendant should

be sentenced when the jury finds that the evidence supports multiple theories of

malice that do not all carry the same sentence.

A. Standard of Review

¶ 11 “The standard of review relating to the sentence imposed by the trial court is

whether the sentence is supported by evidence introduced at the trial and sentencing

hearing.” State v. Fortney, 201 N.C. App. 662, 669, 687 S.E.2d 518, 524 (2010). “We
 STATE V. MONROE

2022-NCCOA-846

Opinion of the Court

review de novo whether the sentence imposed was authorized by the jury’s verdict.”

State v. Lail, 251 N.C. App. 463, 471, 795 S.E.2d 401, 408 (2016).

B. Rule of Lenity

¶ 12 Defendant contends that he is entitled to the application of the rule of lenity,

and therefore that he should be sentenced as Class B2 rather than Class B1 for his

second-degree murder conviction. We disagree.

¶ 13 “The rule of lenity forbids a court to interpret a statute so as to increase the

penalty that it places on an individual when the Legislature has not clearly stated

such an intention.” State v. Conley, 374 N.C. 209, 212, 839 S.E.2d 805, 807 (2020)

(internal quotations omitted). This rule is only applicable to ambiguous criminal

statutes. State v. Cates, 154 N.C. App. 737, 740, 573 S.E.2d 208, 210 (2002).

¶ 14 For example, in State v. Smith, our Supreme Court held that a statute which

prohibited the dissemination of “any obscene writing, picture, record or other

representation or embodiment of the obscene” was ambiguous. 323 N.C. 439, 444,

373 S.E.2d 435, 438 (1988). Because the use of the word “any” could be reasonably

construed as referring to either a single item or multiple items, the Court applied the

rule of lenity and held that the defendant could only be convicted of one violation of

that statute, even where there were multiple items seized. Id.

¶ 15 Similarly, in Conley, our Supreme Court held that the prohibition contained in

N.C. Gen. Stat. § 14-269.2(b) on the possession or carrying of “any gun, rifle, pistol,
 STATE V. MONROE

2022-NCCOA-846

Opinion of the Court

or other firearm” on educational property was ambiguous and prohibited conviction

for multiple violations where the defendant had several firearms in his possession on

school grounds. Conley, 374 N.C. at 214, 839 S.E.2d at 808.

¶ 16 “When the language of a statute is clear and without ambiguity, it is the duty

of this Court to give effect to the plain meaning of the statute, and judicial

construction of legislative intent is not required.” Diaz v. Div. of Soc. Servs. & Div.

of Med. Assistance, N.C. Dep’t of Health and Human Servs., 360 N.C. 384, 387, 628

S.E.2d 1, 3 (2006). The statute at issue here is our sentencing scheme for second-

degree murder, specifically N.C. Gen. Stat. § 14-17(b).

¶ 17 “Second-degree murder is defined as (1) the unlawful killing, (2) of another

human being, (3) with malice, but (4) without premeditation and deliberation.” State

v. Arrington, 371 N.C. 518, 523, 819 S.E.2d 329, 332 (2018). North Carolina

recognizes three forms of malice: (1) “actual malice, meaning hatred, ill-will or spite”;

(2) “that condition of mind which prompts a person to take the life of another

intentionally without just cause, excuse, or justification”; and (3) “an inherently

dangerous act done so recklessly and wantonly as to manifest a mind utterly without

regard for human life and social duty and deliberately bent on mischief.” Id. (internal

citations and quotations omitted). The third theory of malice is often referred to as

“depraved heart” malice. Lail, 251 N.C. App. at 464, 795 S.E.2d at 404.

¶ 18 North Carolina General Statute § 14-17 was amended in 2012, and, in relevant
 STATE V. MONROE

2022-NCCOA-846

Opinion of the Court

part, currently reads:

(b) A murder other than described in subsection (a) or
(a1) of this section or in G.S. 14-23.2 shall be deemed
second degree murder. Any person who commits second
degree murder shall be punished as a Class B1 felon,
except that a person who commits second degree murder
shall be punished as a Class B2 felon in either of the
following circumstances:

(1) The malice necessary to prove second degree murder
is based on an inherently dangerous act or omission, done
in such a reckless and wanton manner as to manifest a
mind utterly without regard for human life and social duty
and deliberately bent on mischief.

....

(emphasis added).

¶ 19 Defendant contends that this statute is ambiguous as to how a trial court

should sentence a defendant that is found guilty of second-degree murder under

multiple theories of malice, and therefore the rule of lenity prohibits the trial court

from sentencing him at the higher Class B1 range. We disagree.

¶ 20 The key term contained in N.C. Gen. Stat. § 14-17(b) is that for a defendant to

be entitled to sentencing as a Class B2, the malice necessary to prove second-degree

murder must be “based on an inherently dangerous act or omission, done in such a

reckless and wanton manner as to manifest a mind utterly without regard for human

life and social duty and deliberately bent on mischief[],” i.e. depraved heart malice.

The word “necessary” has a plain and routinely used meaning in our law. According
 STATE V. MONROE

2022-NCCOA-846

Opinion of the Court

to Black’s Law Dictionary, it means “needed for some purpose or reason; essential.”

Necessary, Black's Law Dictionary (11th ed. 2019). A “necessary element” of an

offense is one that is required to support a conviction. See State v. Ledwell, 171 N.C.

App. 328, 329, 614 S.E.2d 412, 413 (2005). A “necessary witness” is one whose

testimony is “relevant, material, and unobtainable by other means.” See State v.

Smith, 230 N.C. App. 387, 391, 749 S.E.2d 507, 510 (2013) (emphasis added)

(discussing Rule 3.7(a) of the North Carolina Rules of Professional conduct).

¶ 21 We hold that the language of N.C. Gen. Stat. § 14-17(b) is clear and without

ambiguity. It is apparent from the statute that a defendant is only entitled to be

sentenced as a Class B2 if the malice that is essential or required for the defendant

to be convicted of second-degree murder is depraved heart malice. If the jury finds

that the evidence supports either, or both, of the other two forms of malice in addition

to depraved heart malice, then a finding of depraved heart malice is not necessary to

convict the defendant of second-degree murder, and he is not entitled to sentencing

as a Class B2 and will instead be sentenced as a Class B1.

¶ 22 Here, a finding of depraved heart malice was not necessary or essential for the

jury to convict Defendant of second-degree murder. Defendant concedes that the jury

verdict itself was not ambiguous and does not challenge its finding of all three

theories of malice beyond a reasonable doubt. A second-degree murder conviction

predicated on a malice theory other than depraved heart malice is sentenced as a
 STATE V. MONROE

2022-NCCOA-846

Opinion of the Court

Class B1. The jury not only found that the evidence supported depraved heart malice,

but that it also supported the other two theories of malice. If the jury had found that

the evidence did not support depraved heart malice, Defendant still would have been

convicted of second-degree murder under the other two theories. A finding of

depraved heart malice was therefore not necessary to his conviction and Defendant

was appropriately sentenced as a Class B1 felon.

¶ 23 Defendant relies on our prior decision in State v. Mosley, 256 N.C. App. 148,

806 S.E.2d 365 (2017), for his contention that the jury’s verdict finding all three forms

of malice present in his case requires a sentence in the Class B2 range. Mosley is

inapplicable under the circumstances of this case.

¶ 24 In Mosley, we found that where there was evidence presented at trial that

would have supported a second-degree murder conviction on more than one theory of

malice, and because those theories of malice carry different sentences, the jury’s

general finding of unspecified malice was ambiguous. Id. at 153, 806 S.E.2d at 369.

The trial court had provided the jury with a general verdict form that did not specify

which potential forms of malice the jury could find. Id. at 149, 806 S.E.2d at 367.

When the jury returned a guilty verdict for second-degree murder, the trial court had

no way of knowing under which theory of malice that verdict resulted from, and

therefore was unable to properly sentence the defendant. Id. at 153, 806 S.E.2d at

369. We recommended that:
 STATE V. MONROE

2022-NCCOA-846

Opinion of the Court

In order to avoid such ambiguity in the future, we
recommend two actions. First, the second degree murder
instructions contained as a lesser included offense in
N.C.P.I.—Crim. 206.13 should be expanded to explain all
the theories of malice that can support a verdict of second
degree murder, as set forth in N.C.P.I.—Crim. 206.30A.
Secondly, when there is evidence to support more than one
theory of malice for second degree murder, the trial court
should present a special verdict form that requires the jury
to specify the theory of malice found to support a second
degree murder conviction.

Id.

¶ 25 The trial court in this case did provide the jury with instructions that explained

all three theories of malice, in addition to providing a verdict form that required the

jury to specify the theory of malice that they found supported a second-degree murder

conviction. Further, Defendant does not challenge the jury verdict here as

ambiguous. Therefore, the issues we identified in Mosley were not present in this

case.

¶ 26 We note that this Court recently decided a similar issue where the jury was

presented with, and selected, all three categories of malice on the verdict form for

second-degree murder in State v. Borum, 274 N.C. App. 249, 849 S.E.2d 367 (2020).

However, our Supreme Court granted a petition for discretionary review and petition

for writ of supersedeas in Borum, in addition to a temporary stay. State v. Borum,

867 S.E.2d 667 (N.C. 2022). Borum is still pending at our Supreme Court and

therefore it is not controlling on our decision here. See State v. Hutchens, 272 N.C.
 STATE V. MONROE

2022-NCCOA-846

Opinion of the Court

App. 156, 161, 846 S.E.2d 306, 311 (2020).

¶ 27 We hold that N.C. Gen. Stat. § 14-17(b) is not ambiguous, and therefore

Defendant is not entitled to the application of the rule of lenity. The statute is clear

that only where a finding of depraved heart malice is necessary to the conviction of

second-degree murder will a defendant be entitled to sentencing as a Class B2 felon.

Because the jury here explicitly found that the evidence supported other theories of

malice in addition to depraved heart malice, Defendant was properly sentenced as a

Class B1 felon.

III. Conclusion

¶ 28 For the aforementioned reasons, we hold that the trial court did not err in

sentencing Defendant as a Class B1 felon.

NO ERROR.

Judge CARPENTER concurs.

Judge HAMPSON concurs in result only.