concurring in part and dissenting in part.
I concur with the majority that there is sufficient evidence of defendant’s identity as the perpetrator of the crime. I respectfully dissent from the majority’s holding that there is insufficient evidence that defendant acted with malice. The majority correctly states the law regarding second degree murder and malice. The majority misapplies the law to the facts in this case.
The evidence was sufficient to prove that defendant acted with malice as that element has been defined and applied by this Court and our Supreme Court. I find no error in defendant’s conviction of second degree murder.
I. Malice
The majority’s opinion sets forth three types of malice to support a charge of second degree murder. With regard to the second type of malice, the majority distinguishes between a higher and lesser degree of “recklessness” to separate second degree murder from manslaughter. The majority never analyzes why defendant’s actions the night of the murder were the lesser “recklessness” to reduce defendant’s conviction to involuntary manslaughter.
Their opinion sets forth defendant’s statements about what he did and possibly did to Amanda the night of her death. Defendant admitted to: (1) possibly shaking Amanda; and, (2) possibly slapping her face; and, (3) “popping ” her mouth; and, (4) possibly hitting her in the head; and, (5) previously shaking Amanda; and, (6) consuming alcohol the night Amanda died.
The majority cites State v. Blue for the proposition that mere “shaking” of a baby will not sustain malice. 138 N.C. App. 404, 413, 531 S.E.2d 267, 274 (2000). The majority attempts to buttress that point by stating that the pathologist (“Dr. Clark”) was unsure whether shaking alone or a blunt blow to the head caused Amanda’s death. However, Dr. Clark testified that Amanda’s death was “the result of blunt force injury to the head, including physical injury resulting in *15bruises, and in all likelihood including shaking.” Dr. Clark also testified that the injuries Amanda suffered “takes more force than a child is likely to sustain in the ordinary activities of daily living.” The jury could have reasonably concluded that Amanda’s injuries were not “accidental.” The majority’s implication that the injuries might have been an accident is inconsistent with the entirety of Dr. Clark’s testimony. Taken as a whole, Dr. Clark’s testimony concluded that these injuries were the result of violent shaking and one or more blunt force injuries to the head administered by an adult.
The majority also discusses mitigating actions by defendant after Amanda’s death intending to show a lack of “malice,” and that the State presented no evidence that defendant previously abused Amanda. Not only is this factually inaccurate, but their opinion mentions that “[defendant further stated that it was possible he had shaken Amanda, but that when he has done so before, Amanda cries, and he immediately stops.” (emphasis supplied). The opinion concludes that this evidence raises no more than a “suspicion” that defendant inflicted prior abuse. I cannot agree that previous shaking of a twenty-one pound, two-year-old is not “abuse.” Our focus should concentrate on whether defendant’s actions were malicious the night Amanda died.
Finally, the majority mentions that none of the State’s evidence suggested that the blow to the head was administered “willfully or with the degree of recklessness required to find malice.” Intent to kill or harm is not an element of second degree murder. Only an intentional act sufficient to demonstrate malice is required. State v. Lang, 309 N.C. at 524, 308 S.E.2d at 323.
Here the evidence was sufficient to demonstrate defendant acted with malice. The majority relies on State v. Blue to control the result in this case. The facts in this case are distinguishable from Blue, and the facts here are more analogous to other infant death cases where malice was shown and convictions of second degree murder were upheld.
A. State v. Qualls
In State v. Qualls, 130 N.C. App. 1, 502 S.E.2d 31 (1998), defendant argued that the State’s evidence that he may have shaken the baby was insufficient to support malice and his conviction for second degree murder. Id. at 10, 502 S.E.2d at 37. The factual similarities of Qualls and the present case are compelling. Defendant was home *16alone with the Qualls victim. The defendant called 911 after victim choked and gaged. The victim was rushed to the hospital and died four days later.
The treating physician testified that:
[T]here [are] a number of findings on [the victim’s] exam . . . that are consistent with a shaking type injury, one of the most remarkable of those being that the hemorrhages, or bleeding, that was seen ... in the back of. . . the eye or on the retina.. . That, along with the evidence of head trauma and the fractures that were seen on a brain scan and swelling of the brain, taken together, were evidence that. . . this baby had suffered a severe injury and possibly some shaking to cause that swelling . . .
Id. at 4, 502 S.E.2d at 33-34.
These injuries are virtually identical to those described in Dr. Clark’s testimony in the present case. Two differences are that Amanda did not have a fractured skull, although she did have a blunt blow to the head in addition to injuries sustained from violent shaking. Another difference is that the baby in Qualls died four days after being brought into and cared for by the hospital. Amanda never made it to the hospital. She died alone, uncovered, wearing only a diaper.
The defendant in Qualls denied responsibility for the severe injuries to the victim. He stated that “he may have accidently kicked or tripped on the victim." Id. at 5, 502 S.E.2d at 34. The next day defendant said that “he may have also shaken the victim . . . trying to arouse him.” Id. At another time “he denied that he either shook, kicked or tripped on the victim.” Id. As here, defendant in Qualls had exclusive control and possession of the victim during the time period the injuries were sustained that resulted in death. This Court found no error in defendant’s conviction for second degree murder.
B. State v. Hemphill
In State v. Hemphill, 104 N.C. App. 431, 409 S.E.2d 744 (1991) the facts are also similar to the present case.
The defendant in Hemphill contended that the “trial court erred in denying his motion to dismiss the charge of second degree murder. He argues that the evidence is insufficient to support a finding of the element of malice.” Id. at 433, 409 S.E.2d at 745.
*17As in the present case, Hemphill was alone with the victim baby. During an interview, defendant initially denied that he had shaken the victim. At trial defendant testified that he “had shaken the child because she was choking,. . .” Id. This Court held that “the evidence in the present case is sufficient to support a finding by the jury that defendant acted with malice as defined in Wilkerson, ” even though no direct evidence linked defendant’s conduct to the violent shaking which produced the fatal injuries. Id. at 434, 409 S.E.2d at 745. Our Court stated:
evidence that defendant shook the baby as well as the expert testimony that the cause of death was ‘Shaken Baby Syndrome,’ which typically results from an infant’s head being held and shaken so violently that the brain is shaken inside the skull causing bruising and tearing of blood vessels on the surface of and inside the brain, is sufficient to show that defendant acted with ‘recklessness of consequences,. . . though there may be no intention to injure a particular person.’
Id.
In Hemphill there was no evidence that the baby was “hit about the head, or popped in the mouth.” Medical evidence of violent shaking was sufficient to show that defendant acted with the requisite “recklessness of consequences” to sustain his conviction for second degree murder.
The majority’s opinion misapplies our central holding in Hemphill. Evidence that a person shakes a baby plus expert testimony of head injuries that resulted from violent shaking “is sufficient to show recklessness of consequences” to show malice. In the present case, defendant admitted that “[he] might have [shaken Amanda] . . . [and] it could have been last night.” These statements are not mere “suspicion” that defendant shook Amanda. A jury reasonably could have concluded that defendant shook Amanda. Dr. Clark testified that massive injuries to Amanda’s head and brain were caused by violent shaking and a blunt force injury to the head.
C. State v. Blue
In Blue we emphasized that “a defendant’s shaking a baby and the baby’s death by shaken baby syndrome are not the sole determinants of whether the State has produced sufficient evidence of malice to convict the defendant of murder in a shaken baby syndrome case.” State v. Blue, at 413, 531 S.E.2d at 274. This Court in Blue found that *18the evidence was “sufficient only to raise a suspicion or conjecture of malice ...” Id. at 414, 531 S.E.2d at 275. The Supreme Court remanded the case for sentencing under involuntary manslaughter. State v. Blue, 353 N.C. 364, 543 S.E.2d 478 (2001).
The majority relies on Blue to support its holding that the evidence does not rise to the level of “recklessness of consequences” to show malice. That reliance is misplaced.
The facts in Blue are distinguishable from the facts in this case, Qualls, and Hemphill. In Blue the baby was undeveloped, weak and only two months old. The defendant-father had placed the victim on his knee and began to bounce her to try and get her to stop crying. Defendant said that he probably was not supporting the back of the baby’s head properly when he shook her. The pathologist in Blue testified that “many small blood vessels on the surface of the brain were torn and bleeding, but that larger blood vessels were not tom. ” Id. at 406, 531 S.E.2d at 270 (emphasis supplied). “There were no other internal or external injuries to [the victim’s] body... .” Id. at 407, 531 S.E.2d at 270. The pathologist also testified there were no external head injuries and that the skull was not fractured. “The evidence did not show she was shaken violently or vigorously and she did not suffer from the same signs of injury as the baby in Hemphill or in Qualls.'” Id. at 413, 531 S.E.2d at 274. No evidence was presented that the baby in Blue was either hit or struck. The injuries Amanda sustained are much more severe than those of the victim in Blue.
II. Evidence of Malice
State v. Blue emphasizes that we should “examine all of the State’s evidence to determine whether it was sufficient to permit a rational jury to find the existence of malice beyond a reasonable doubt.” Id. at 412, 531 S.E.2d at 273 (citation omitted).
A. Defendant’s Statements
Defendant in the present case did not testify. Defendant did meet twice with investigator Ned Thorpe (“Thorpe”). These meetings produced lengthy recorded statements that were played for the jury for corroboration of the State’s evidence.
Defendant-stepfather had the sole care, custody, and control of Amanda from the time her mother left for work at 3:55 p.m. on 9 December until after midnight when Amanda’s mother returned home. Defendant admitted to arriving home from work at “about 3:30 *19p.m.” Amanda was asleep on the couch with her mother. Defendant stated that Amanda was “alert,” after she awoke. Amanda “got up off the couch, she walked over, [and] got her clothes on . . . .” Defendant stated that he took Amanda and his natural daughter to pick up his two sons at approximately 4:30 p.m. and brought them back for dinner. Around 8:30 p.m. he “got the shoes on the little ones, put their jackets on, we went out to the car so [he] could drop the boys back off.” Defendant stated that he, Amanda, and her infant sister arrived back home around 9:20 p.m. Defendant stated that after returning home, Amanda “sat down, took her shoes off, like she normally does inside the back door, come [sic] in and sat down in the living room . . . she was watching TV . . . .” This evidence shows that Amanda was alive, conscious, alert, and ambulatory for more than five hours after Amanda was left in defendant’s sole custody.
Defendant stated that he drinks alcohol, and that he had been drinking alcohol the night Amanda died. Detective Thorpe asked “[o]n last evening, December 9th, did you consume any alcohol?” Defendant responded “[y]es I did . . . Probably three beers and a mixed drink.” Defendant also stated that he believed he was not drunk and “[t]o consider myself drunk . . . I’ve drank over a 12-pack, and still wasn’t.” Defendant stated that there was “four or five cases” of beer in the house on the night of Amanda’s death.
Thorpe asked defendant, “Mr. Smith let me ask you point blank, this morning, last night, did at any time you strike [Amanda] Cook about the face or head?” Defendant responded that “if I did, I might have popped her in the mouth, she has a bad habit of saying no . . .” Defendant was also asked “Mr. Smith, on December 9th, at any time did you shake [Amanda]?” He responded “I might have, I’m not positive.” Later, Thorpe again asked defendant “Mr. Smith . . ., you admitted hitting the child ... on 12-9-98, when did you shake her last trying to make her stop crying or whatever?” Defendant responded “I can’t recall.” When asked again “[d]id you shake her last night” defendant stated “ [i]t could have been last night, what I — if I realize that I’ve got her up shaking her, I sit her down and I walk off.” When defendant discussed shaking Amanda with Thorpe, he also stated “I realize I go too far when I do that.”
The uncontroverted facts in this case and defendant’s own statements show that Amanda was conscious and ambulatory when she and defendant returned to the house at approximately 9:20 p.m. on 9 December. Defendant stated that he was “upset” with Amanda and had to “discipline” her that night before putting her to bed around *2010:30 p.m. or 11:00 p.m. According to defendant's statements, this discipline included possible shaking, possibly hitting her about the head, and popping her in the mouth; all administered while defendant was under the influence of alcohol. Mrs. Smith testified that she arrived home from work after midnight and never checked on Amanda. Amanda was found dead by defendant when he checked on her at 5:45 a.m. on 10 December. Defendant stated that Amanda was warm but stiff at that time. Amanda’s mother testified that after defendant told her that Amanda was dead, the defendant further stated that “they were going to come and get [me].”
After defendant made these statements, he called 911. Defendant stated the paramedics arrived about 15 minutes after the 911 call. Paramedic Pope did not attempt any lifesaving measures on Amanda. Pope testified that Amanda had been dead in “excess of a couple of hours, at least.” He testified that Amanda’s body was cool and rigor mortis had set in when he had arrived.
B. Dr. Clark’s Testimony
Dr. Clark testified as an expert witness to the extent of Amanda’s injuries and the cause of her death as follows: Two year old Amanda was “32 inches tall and weighed 21 pounds.” “The external examination of this body showed extensive evidence of injury. There were bruises of varying ages distributed over the body from the top of the head to the legs, and even one on the foot.” There were three groups of bruises which were “purple” in color, indicating that they were recent. Dr. Clark stated that “[t]he shape and distribution of the bruises was often in a pattern suggestive of an adult hand.” All of the bruises “relate to the cause of death, in that they are the basis for my having called this battered child syndrome, but they don’t contribute directly to the death as it resulted from head injury.”
As to the head injuries, Dr. Clark testified that the
brain was quite bloody . . . blood [was] present on both sides of the brain . . . [Approximately 25 grams [on one side and] 5 grams [on the other]. . . The brain itself had a bruise or a contusion on it . . . [Also there were bruises on the underside of the scalp, on the top and both sides.] [B]lood was present in the retinas of both eyes . . ., one of them somewhat more than the other . . . The spinal cord also . . . had blood surrounding its membranes, as did the brain.
*21Dr. Clark concluded, “I would expect that shaking played at least a part in this death. And by shaking, I mean picking up the child, shaking the child violently, so that the head snaps back and forth enough that blood vessels are ruptured, causing the bleeding within the eyes and the bleeding surrounding the brain.” (emphasis supplied).
Also the “presence of bruises on top of the head and all over the rest of the body also shows that blunt force injury occurred.” “As there were bruises present internally and externally, I concluded that blunt force injury was present and played a significant role in this death.” “There was a small amount of hemorrhage or bleeding of the inner upper lip, . . .
With respect to the time and cause of death, Dr. Clark testified that “[t]he child could conceivably have lived for a day or more with these injuries. But not in a conscious state.” (emphasis supplied). “I think [Amanda] would have been conscious either no time or a very short period of time following these injuries. Very short meaning measured in minutes." (emphasis supplied). The majority’s opinion ignores this testimony.
During cross-examination Dr. Clark maintained that “I don’t think this child could have behaved normally following these injuries, and the child could have lived in an unconscious state for a period of hours or more than a day. I think if it was a day, there would have been at least some early pneumonia.” The autopsy evidence showed none. Dr. Clark concluded that Amanda died as a “result of blunt force injury to the head, including physical injury resulting in bruises, and in all likelihood including shaking.”
Clearly, defendant’s actions and conduct were as egregious as the defendant’s actions in Qualls and Hemphill, and far worse than those of the defendant in Blue. None of the defendants in those cases were under the influence of alcohol when the acts resulting in death were inflicted.
C. State v. Perdue
The majority also correctly points out that our Supreme Court has held that malice may also be inferred from a “willful blow by an adult on the head of an infant.” State v. Perdue, 320 N.C. 51, 58, 357 S.E.2d 345, 350 (citation omitted). Willfully is defined as “purposely” and “designedly.” State v. Whittle, 118 N.C. App. 130, 135, 454 S.E.2d 688, 691 (1995).
*22Defendant admitted to being upset with Amanda and disciplined her sometime during the evening when she was in his exclusive custody. Defendant also admitted to being under the influence of alcohol. During the course of his interviews, defendant vacillated as to whether he hit and shook Amanda, the amount of force used, and adjusted his version of events.
Defendant said he had to strike Amanda because she had a bad habit of saying “no, no, no, no.” According to defendant, the purpose of his discipline was to keep Amanda away from her baby sister who, according to defendant, Amanda was pestering. It was the defendant’s “conscious object” or “purpose” to strike Amanda. The forensic evidence is overwhelming that the blow or blows to Amanda were from an adult, and, combined with the violent shaking, were significant enough to cause death. A jury could have reasonably concluded that defendant willfully and maliciously struck Amanda’s head and violently shook her.
The majority’s opinion concludes that “[t]he evidence presented did not establish that the blunt force trauma which caused Amanda’s death was administered by an adult hand.” This conclusion confuses Dr. Clark’s testimony about Amanda’s body injuries with her head injuries. Dr. Clark testified that the injuries and bruises to the body were indicative of an “adult hand.” The fatal blow and violent shaking which caused Amanda’s death were administered by an adult.
The majority’s opinion also recites at length Mrs. Smith’s bizarre behavior and actions toward Amanda. Without doubt, Mrs. Smith’s actions were deplorable and totally inconsistent with those of a loving, natural mother. Mrs. Smith testified at trial and was subjected to a vigorous cross-examination by defense counsel. The jury had a full opportunity to observe her responses and demeanor. Despite Amanda’s mother’s inexcusable behavior and uncaring neglect, the jury concluded that defendant was guilty of second degree murder and not involuntary manslaughter. Although defendant did not testify in his own defense, his version of the events were heard and considered by the jury through his recorded statements to Detective Thorpe.
Defendant presumably did not testify due to his prior convictions for driving while impaired, misdemeanor child abuse, and indecent liberties with a child. The jury was unaware of defendant’s prior record when it returned its verdict of second degree murder. The trial *23court determined that there were seven prior record points and imposed a sentence for a minimum term of 220 months and for a maximum term of 273 months, due to these prior convictions. N.C. Gen. Stat. § 15A-1340.17(c) (1997). The trial court ordered this judgment be executed with credit for 371 days of prior confinement.
III. Summary
The evidence shows that Amanda was sick for several days before her death. The individual that Amanda counted on, and who had a legal duty to protect her and to keep her safe, treated her illness not by caring for her or taking her to the doctor, but with a “pop in the mouth,” hitting her in the head, and shaking her. Defendant admitted to consuming at least three beers and a mixed drink on the night Amanda died, and to keeping four to five cases of beer in the home. Defendant also admitted to shaking and spanking Amanda on prior occasions. Dr. Clark testified that Amanda died as a result of violent shaking and a blow or blows to the head administered by an adult.
Viewing this evidence in totality after giving the State the benefit of all reasonable inferences, the jury could have concluded that defendant acted with malice. The facts more than satisfy the Wilkerson definition of malice as used in Hemphill, Qualls and Blue. Wilkerson requires “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind utterly regardless of social duty and deliberately bent on mischief, though there may be no intention to injure a particular person.” State v. Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905, 916 (1978). The majority mistakenly holds that these facts raise only a suspicion of “recklessness of consequences,” and do not show malice. The evidence was sufficient for the jury to conclude that defendant acted with malice to sustain the conviction for second degree murder. I find no error in the jury’s verdict or the judgment. Therefore, I respectfully dissent.