After a morning filled with impassioned pleas and gripping sorrow, Superior Court Judge Jerry Tillett on Saturday sentenced Melissa Lynn Marvin to a minimum of 60 years in prison.

Marvin was convicted late Friday on four counts of second-degree murder and one count of assault with a deadly weapon inflicting serious injury in a crash last April that killed four teen-agers. She was sentenced to 174 to 218 months - 14 1/2 to 18 years - for each murder count and 24 to 29 months for the assault charge, to be served consecutively.Tillett said that under the state's 1994 structured sentencing law, Marvin will not be eligible for parole for 60 years. Marvin's lawyer will appeal.

The 30-year-old Kitty Hawk waitress ran a red light at the intersection of U.S. 158 and Ocean Bay Boulevard in her sports utility vehicle, killing Amanda Geiger, Angie McGrady and Megan Blong, all of Medford, N.J. Shana Lawler of Colington Harbour died six days later. Passenger Michael Horner of Indian Mills, N.J., was injured severely but survived. All were 17.

In the course of the six-day trial, witnesses told the court that Marvin drank two margaritas and three shots of 100-proof schnapps between noon and 2 p.m. - less than an hour before the crash in Kill Devil Hills. She did not testify in her own defense.

She spent much of the week hiding behind her long black hair or crying and rocking with her back to the jury, but the courtroom was mesmerized Saturday when Marvin, striking in a powder blue pantsuit, stood to make the trial's last statement.

"I'm so sorry for everything that happened,' she said, sobbing and leaning intently toward the families of the victims. "I never intended to hurt anyone. There's not a malicious bone in my body.

"What happened was a tragedy, and it was an accident. It was not intentional,' she said, her voice rising and tears streaming down her face. "It's not OK that they're dead, and it's not OK that Michael was hurt. I just hope that one day you will be OK, and I pray for you."

Already wrung out with emotion, observers in the room sat stunned until the judge called a recess. Families of the victims and the defendant, for the first time, shared condolences and cried together. Earlier, all the mothers, fathers, sisters and brothers of the dead teen-agers spoke about how much the girls were missed and urged the judge to give Marvin the maximum sentence.

"This should not have happened to Angela - she didn't deserve to die this way,' Kathleen McGrady said of her daughter. "Angela would never have hurt anybody. . . . I miss her so much. Now our home is so empty."

Wracked with sobs, McGrady was helped off the witness stand by her husband. Faces of people on both sides of the courtroom were wet with tears.

"I believe Miss Marvin needs to be kept off the road for a long time," said Shana's mother, Brenda Lawler.

Paul Lawler, Shana's father, said Dare County courts have been too lenient with alcohol-related driving offenses: "Littering seems to be a more serious penalty. A liberal attitude toward drunken driving does and will affect each one of us."

Many family members of the victims wore red buttons distributed by Mothers Against Drunk Driving that say "A drunk driver killed somebody I love."

Joan Forrest, Marvin's mother, said her daughter has expressed regret and sadness for her actions that led to the deaths.

"She said, `Mom, why couldn't it be me?" Forrest, a resident of Williamsburg, told the judge. "She has never shown anything but compassion and remorse."

A friend who worked at 1587 Restaurant in Manteo with Marvin said she was one of the best servers at the establishment and seemed to be well-liked by many people. "She's a good person,' said Ann Pond. "She's not a bad person at all. I know she didn't mean for any of this to happen at all."

Tillett said he had to consider each charge separately and on its own merit - the reason he decided that the sentences must be served consecutively.

"I don't know how I could have said to one parent your child's life didn't matter,' he said after the sentencing.

The judge was one of the few participants in the trial who did not exhibit his feelings - the voices of both defense attorney Michael Sanders and Assistant District Attorney Robert Trivette broke while talking about the case in the courtroom. But Tillett appeared drawn and drained at the end.

"I've never had a case that has been as difficult as this one," Tillett, a judge for more than seven years, said after the trial. "I don't mean in terms of the legal issues presented. I mean in terms of the emotional stress."

Trivette said the verdict was tough, but it fit the crime.

"I think it does send a message," he said. "This is an unusual case. I've never prosecuted somebody for four counts of second-degree murder.

"While I feel some sympathy for Missy Marvin and her family, I do believe it was appropriate."

Sanders declined to comment.

Marvin will be held in state prison pending her appeal.

First in flight, but last in mercy

By grafting murder law onto DWI cases, North Carolina may be running roughshod over traditional notions of justice

By Ann G. Sjoerdsma - The Baltimore Sun

February 20, 2000

KITTY HAWK, N.C. -- The large sign next to the four roadside crosses reads "DRINKING + DRIVING CAN COST YOU A PRECIOUS GEM." Garnished in flowers, each simple white cross bears a name: Megan, Angie, Amanda, Shana. On April 6, 1999, at this site on Highway 158 in Kill Devil Hills, four 17-year-old girls last saw each other.

The crash instantly killed Megan Blong, Angie McGrady and Amanda Geiger, all from New Jersey. Shana Lawler, whose family had recently moved to North Carolina's Outer Banks, died six days later. Only Michael Horner, 17, sitting in the front passenger seat of the Lawler family's Chevrolet Cavalier, survived, with serious injuries.

Last month, Michael returned to the scene of his beach-vacation-turned-nightmare. He came to testify in court that his friend, Megan, had waited for a green traffic signal before she drove into the intersection, intending to turn left onto the 158 bypass. He came to tell once again of the Mitsubishi Montero that barreled through the opposing red light, broadsiding the old Cavalier.

He also came to help a Dare County jury decide that 30-year-old Melissa Lynn Marvin, who, witnesses testified, drank two 16-ounce margaritas and three shots of 100-proof schnapps in a two-hour period before running that red light, committed murder.

Thousands of Marylanders visit North Carolina's lush barrier islands each year, many staying in their own dream-of-a-lifetime beach cottages. They all know this intersection, at Colington Road, just south of the Wright Brothers Memorial, before the fast-food stretch of 158 known as "French Fry Alley." They also know how much alcohol fits into their idea of a good-time vacation.

Before they get behind the wheel again, after having had a few beers at an Outer Banks bar or restaurant, I suggest these Marylanders learn the law. The state that was first in flight nearly a century ago is hardly first in compassion.

The Melissa Marvin trial opened Monday, Jan. 10, with a pool of 400 jurors reporting to the Manteo courthouse, and ended the next Saturday afternoon, when Dare County Superior Court Judge Jerry R. Tillett passed sentence. Nine men and three women deliberated only four hours Friday before finding Marvin guilty of four counts of second-degree murder and one count of "assault with a deadly weapon inflicting serious injury."

Said one Kitty Hawk lawyer: "There was such a lynch-mob mentality in that courtroom. You cannot imagine."

Applying North Carolina's structured sentencing law, the judge imposed a prison term of 174 to 218 months for each murder count and 24 to 29 months for the assault. He chose not only to "aggravate" Marvin's sentence, punishing her again for the facts that proved her crimes, but also to run the terms consecutively.

Marvin, a waitress, student and competitive surfer who has lived on the Outer Banks for 10 years, must serve 60 years -- the combined minimum --without parole.

Most locals reacted to the verdict with shock. A remorseful Marvin received a life sentence for a crime she did not "intend" -- in any sense of the word -- to commit. But, in seeking murder convictions, lead prosecutor Robert P. Trivette clearly intended to send a "message": Drink, drive and kill in the Tar Heel State, and you will be sorry beyond measure.

As sorry as I am for the heartbreaking loss that four families have suffered, I hear a different message. It's a message about justice. Or the lack thereof.

North Carolina's chief district attorneys and judges, all of whom are elected -- even the seven justices on the state Supreme Court -- have allowed public outrage over drunken driving, and their desire for political popularity, to undermine the rule of law. In grafting murder law onto DWI deaths, through slam-dunk opinions for the prosecution, the courts have made of the people they serve merciless law-and-order taskmasters.

We have an eye fixed on punishment but not on prevention or rehabilitation. Drunken drivers -- some of whom are alcoholics, as acquaintances say Marvin is -- are people we revile, not friends and neighbors we know or sick people we want to help.

North Carolina prosecutors are routinely charging drunken drivers who kill with second-degree murder, on an "implied malice" theory. Intent to kill need not be proved, and drivers need not be aware of their dangerousness. Grossly reckless conduct is sufficient for a conviction.

Statewide, inventive district attorneys have obtained three verdicts of first-degree DWI murder, under the felony-murder rule: The "murder" is said to have occurred during the perpetration of an assault with a deadly weapon -- the vehicle being a deadly weapon. A DWI felony-murder conviction out of Forsyth County is on appeal before the North Carolina Supreme Court and being closely watched.

Marking a national "first," the prosecutor in State vs. Jones, Vincent Rabil, sought -- but the jury did not recommend -- the death penalty.

North Carolina leads the country in DWI murder prosecutions. But, said John Henry Hingson III, chair of the National Association of Criminal Defense Lawyers' driving-under-the-influence task force, "there are very few other states in the race." They include California, Alabama and Florida. Not Maryland, which appears forgiving by comparison.

Maryland appellate courts have ruled that not only do drunken drivers lack the "viciousness" and "willfullness" for implied malice, but state vehicular-death statutes pre-empt common-law homicide. The maximum penalty for Maryland's "manslaughter by motor vehicle," which requires gross negligence, is 10 years and $5,000; for "homicide by motor vehicle while intoxicated," five years and $5,000.

Witnesses who saw Melissa Marvin before the fatal collision described her driving as erratic, with frequent lane-changing and excessive speed. One woman testified that Marvin drove with her left foot up on her sport utility vehicle's dashboard. Marvin's blood alcohol level four hours after the crash tested at 0.21 percent -- far in excess of the legal limit of 0.08 percent. (North Carolina is one of 15 states -- not including Maryland -- with an adult DWI limit of 0.08.)

As damning as this evidence was, however, Marvin's two previous convictions for reckless driving (in 1991 and 1996), plea-bargained reductions of DWI charges, sealed her fate. In step with a questionable practice established in other DWI-murder cases, Tillett allowed these "bad acts" as proof of malice. Marvin's past -- and the system's failure to prevent or treat her destructiveness -- came back to haunt her.

Like most Americans, North Carolinians once regarded DWI fatalities as mere traffic "accidents," not crimes. They saw drunken drivers as social drinkers and thought, "There, but for the grace of God, go I."

To coax juries into getting tougher, the North Carolina General Assembly enacted in 1973 "felony death by vehicle," defined as an unintentional death caused by a legally impaired driver. Because felony death was punishable by about a year's imprisonment, lenient juries embraced it in lieu of involuntary manslaughter, which carried a three-year sentence. Manslaughter -- an unlawful killing without malice caused by "culpable negligence" -- had always befuddled juries: They had to judge a driver's recklessness -- Was it "gross"? -- and decide if he had "disregarded the consequences" of his acts.

Lax attitudes toward drunken drivers began to recede with the rise of Mothers Against Drunk Driving, founded in California in 1980. North Carolina initiated its own crackdown in the 1983 Safe Roads Act, which introduced a tough, five-level scheme of punishment for DWI offenders that still exists.

Then, in 1984, the North Carolina Supreme Court summarily ruled that the recklessness of a very drunk Lance Albert Snyder, whose speeding Oldsmobile Cutlass ricocheted like a pinball on a Winston-Salem highway before he ran a red light and killed three people, could be considered malice. He could be guilty of second-degree murder. This proved the judicial turning point.

Soon, the courts would decide that driving while impaired is, ipso facto, culpable negligence. If an impaired driver kills, he's guilty of manslaughter. No more questions asked. Then, they would rule that felony death has the same elements as manslaughter and, therefore, cannot be considered a "lesser-included offense." This means a judge need not instruct a jury to consider both involuntary manslaughter and felony death by vehicle in a drunken-driving death.

With felony death and manslaughter being "equal," said Trivette, "I can never imagine a situation, given DWI and a death, that I'm going to charge less than involuntary manslaughter. From a prosecutor's point of view, it doesn't make sense to charge the less serious charge."

Essentially, the courts raised the stakes. They "did away" with felony death by making involuntary manslaughter easier to prove, and they have done the same to involuntary manslaughter with easier proof of murder.

Malice can be "implied" in North Carolina when "an act which is inherently dangerous to human life 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."

While this legal gobbledygook would appear to restate the gross negligence required for involuntary manslaughter, the courts have said that a person must intend to commit an "inherently dangerous" act. They have also ruled that anyone who drinks to the point of intoxication and drives has such intent. Never mind that thousands of North Carolinians drive each week while being "impaired," reach their destinations without harming anyone and regard themselves as in control, not dangerous.

So how does one drive "recklessly" and "wantonly" and "without regard for human life"?

"I wish there were statutes that defined these words. They're impossible for people to understand," said Trivette, who stressed Marvin's "selfish attitude" and "egregious behavior."

The courts have cooperated here, too, finding that a DWI-murder defendant who drives knowing that his license is permanently revoked, or who uses false license tags and lies to inspection personnel to get a sticker, has no "regard for social duty" and is "deliberately bent on mischief." Speeding? Running a red light? The same.

Most important, the courts have ruled that anyone who drives drunk after previous DWI convictions manifests malice. Allowing such "priors" into evidence, despite a well-known rule designed to exclude bad acts that would unduly prejudice the jury against the defendant, is a backboard-shattering slam dunk for the prosecution.

Once, "you had one or two second-degree DWI murder cases a year," said Forsyth County's Rabil. "Now the Court of Appeals is not even publishing opinions. It's just affirming them routinely."

North Carolina is heading toward murder prosecutions of drunken drivers who, unlike Marvin, have no previous DWI convictions and exhibit no signs of recklessness. Soon, DWI by itself will equal second-degree murder.

"What's going on is very, very scary," said Charlesena Elliot Walker, a state assistant appellate defender who lost a key 1998 DWI-second-degree-murder appeal. "People need to know that if they have a few beers and then drive and accidentally kill somebody, they can be tried for murder in North Carolina. People need to know that this can happen to ordinary, regular people who have a couple of beers."

In October, an alleged drunken driver killed a 30-year-old Virginia woman at the same intersection where the four white crosses serve as a poignant reminder of loss and injustice. A Kill Devil Hills woman has been charged with second-degree murder. Potential jurors might be reporting to Manteo for her trial this summer. Amid swigs of their Budweisers, Marylanders visiting our island paradise should pay attention, because "there, but for the grace of God . . ." makes a poor defense."

State v. Marvin

3/19/2002

UNPUBLISHED

A decision without a published opinion is authority only in the case in which such decision is rendered and should not be cited in any other case in any court for any other purpose, nor should any court consider any such decision for any purpose except in the case in which such decision is rendered. See Rule of Appellate Procedure 30 (e)(3).

Appeal by defendant from judgment entered 15 January 2000 by Judge Jerry R. Tillett in Dare County Superior Court. Heard in the Court of Appeals 17 October 2001.

Defendant appeals from her convictions of second-degree murder and assault with a deadly weapon inflicting serious bodily injury.

At approximately noon on 6 April 1999, defendant Melissa Lynn Marvin went to a bar in Nags Head and consumed two margaritas without eating. At approximately 1:00 p.m., defendant went to a restaurant, where she ordered a Rumple Minze, an alcoholic beverage that is 100-proof alcohol served "straight-up" in a shot glass. She consumed three shots, also without eating. The bartender warned defendant against trying to drive to Williamsburg, where she was going to a concert. Defendant decided to drive anyway. At approximately 2:50 p.m., witnesses saw defendant's sport utility vehicle weaving through traffic on Highway 158 North in Kill Devil Hills, traveling between 50-60 mph in a 50 mph zone. Witnesses also observed defendant's left foot on the dash. Defendant ran a red light and collided with a car in which five teenagers were traveling. Four of the teens were killed and one was seriously injured. Defendant sustained minor injuries.

Defendant was arrested and initially charged with three counts of felony death by vehicle based on impaired driving, and one count each of driving while impaired , running a red light, exceeding a safe speed and reckless driving. Defendant was indicted on four counts of second-degree murder and one count of assault with a deadly weapon inflicting serious injury. At trial, the jury returned verdicts of guilty on all counts. Defendant was sentenced and now appeals.

We note at the outset that defendant raised fifteen assignments of error in the Record on Appeal. Defendant argues only seven assignments of error in her brief. Our Rules of Appellate Procedure provide that assignments of error not discussed in a party's brief are deemed abandoned.

N.C. R. App. P. 28(a). Therefore, the additional eight assignments of error defendant failed to raise in her brief are deemed abandoned and will not be considered. Further, defendant abandoned the second argument inher brief at oral argument, which included two assignments of error. We therefore deem these assignments of error abandoned.

Defendant's remaining assignments of error are combined into two issues: 1) whether the defendant was prejudiced by the admission of evidence of defendant's prior convictions and conduct underlying those convictions; and 2) whether the defendant was prejudiced by the prosecutor's arguments based on evidence not in the record or that had been excluded. We hold that defendant was not prejudiced by the admission of this evidence nor by the prosecutor's statements and find no error.

I. Prior Convictions

The determination of the admissibility of evidence under Rule 403 of the North Carolina Rules of Evidence, N.C.G.S. § 8C-1, Rule 403 (1999), is left to the sound discretion of the trial court. State v. Mickey, 347 N.C. 508, 518, 495 S.E.2d 669, 676 (1998) (citing State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)). The trial court's ruling will not be overturned on appeal for abuse of discretion unless "its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision." Id. (quoting State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)). The standard of reviewing evidence admitted under Rule 404(b), N.C.G.S. § 8C-1, Rule 404(b) (1999), is the same. See State v. Aldridge, 139 N.C. App. 706, 714, 534 S.E.2d 629, 635 (2000), review denied, 353 N.C. 382, 546 S.E.2d 114 (2000).

A. Underlying Conduct

Defendant argues that she was prejudiced by the trial court's admission of evidence of defendant's prior convictions and conduct underlying the convictions. Defendant first complains that the trial court allowed a "mini-trial" of the conduct underlying two prior careless and reckless driving convictions by allowing the State to present evidence of the DWI charges to show the malice necessary to prove second-degree murder. Defendant was charged with DWI in 1991 and 1996, but convicted both times of careless and reckless driving. The trial court properly allowed evidence of defendant's conduct at the time of each DWI charge, and the subsequent convictions of careless and reckless driving, to establish malice.

In State v. Miller, 142 N.C. App. 435, 439, 543 S.E.2d 201, 204 (2001), this Court allowed evidence of the defendant's two prior convictions of careless and reckless driving, one prior conviction of driving under the influence , and one prior conviction of driving while impaired to establish malice in a second-degree murder case. Miller was charged with second-degree murder, DWI and careless and reckless driving after the truck he was driving collided with another car, killing the driver. The trial court allowed evidence of the prior convictions to establishmalice or knowledge of the dangerousness of one's behavior, even though the convictions were up to sixteen years old.

In State v. McBride, 109 N.C. App. 64, 425 S.E.2d 731 (1993), the defendant was convicted of, inter alia, second-degree murder and DWI when he collided with another car and killed an occupant. At trial, the State admitted evidence of two prior DUI convictions to establish malice in the second-degree murder charge. On appeal, this Court affirmed, holding that " ur Court has held that prior conduct such as prior convictions . . . will be admissible under Rule 404(b) of the North Carolina Rules of Evidence as evidence of malice to support a second-degree murder charge." Id. at 69, 425 S.E.2d at 734. The evidence must go toward the requisite mental state for a conviction of second-degree murder, not toward the defendant's propensity to commit the crime. Id.

In the case sub judice, the trial court properly allowed evidence of defendant's prior conduct involving impaired driving to establish malice. Based on this record and on Miller and McBride, we find no error.

B. Jury Instruction

Defendant next argues that the court erred in instructing the jury that there was evidence "tending to show that the defendant has previously committed two offenses of driving while subject to an impairing substance prior to these charges, and have been convicted of two charges of reckless driving . . . ." (emphasis added). As we stated above, evidence of defendant's careless and reckless driving record and the underlying conduct was properlyadmitted on the issue of malice. See State v. Miller, 142 N.C. App. 435, 439, 543 S.E.2d 201, 204 (2001) (holding defendant's prior DUI, DWI and careless and reckless driving convictions admissible to establish malice element of second-degree murder); State v. McBride, 109 N.C. App. 64, 425 S.E.2d 731 (1993) (holding that defendant's prior DWI and driving while license revoked convictions admissible to establish malice element of second-degree murder). Further, the trial court instructed the jury:

This evidence is not evidence of the defendant's character nor is it offered to show that . . . the defendant acted in conformity therewith. Instead, this evidence was received solely for the purpose of showing that there existed in the mind of the defendant a particular mental state, that of malice.

If you believe such evidence, you may consider it but only for the limited purpose for which it was received.

The trial court's limiting instruction to the jury to consider the evidence only to determine the existence of malice was sufficient to instruct the jury on the proper use of the evidence. See State v. Holden, 346 N.C. 404, 420, 488 S.E.2d 514, 522 (1997), cert. denied, 522 U.S. 1126, 140 L. Ed. 2d 132 (1998).

C. Rule 403 Balancing Test

Defendant next argues that the trial court abused its discretion when performing the balancing test required by Rule 403 of the North Carolina Rules of Evidence. N.C.G.S. § 8C-1, Rule 403. Defendant argues that, rather than engaging in a factual analysis of probative value and unfair prejudice, the trial court abused its discretion by limiting its balancing to a "conclusoryparroting" of Rule 403. Defendant further argues that the trial court abused its discretion by failing to assess the similarities or differences in the 404(b) evidence and by its conclusory recitation of Rule 403. We disagree.

Rule 403 states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Id. " he ultimate test for determining whether such evidence is admissible is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under the balancing test of N.C.G.S. § 8C-1, Rule 403." State v. Boyd, 321 N.C. 574, 577, 364 S.E.2d 118, 119 (1988); State v. Beckham, 145 N.C. App. 119, 550 S.E.2d 231 (2001). When reviewing a trial court's ruling on the admissibility of evidence under Rule 403, this Court will not disturb the trial court's ruling absent abuse of discretion because the balancing test under Rule 403 falls within the sound discretion of the trial court. Williams v. McCoy, 145 N.C. App. 111, 117, 550 S.E.2d 796, 801 (2001). For this Court to overrule the trial court's ruling under Rule 403, the trial court's decision must be "'manifestly unsupported by reason or . . . so arbitrary that it could not have been the result of a reasoned decision.'" Id. (quoting State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998)). In the instant case, the trial court found that evidence of the conduct leading to the DWI charges and the convictions of careless and reckless driving were "sufficiently relevant and similar to the charges . . . that are pending . . . to show the requisite mental state of malice, which is an element of the offense charged." The court further found that the conduct leading to the DWI charges was "not too remote to prevent or otherwise limit its relevance."

This Court has held that prior convictions over fifteen years old were admissible to establish the element of malice. Miller, 142 N.C. App. at 439, 543 S.E.2d at 204. In the instant case, defendant's convictions were from 1991 and 1996. The accident leading to the second-degree murder charges occurred in 1999. The trial court specifically found that "the prior instances wherein charges were made of driving while subject to impairing substances were not too remote to prevent or otherwise limit its relevance." The court was not required to list specific factors in balancing probative value versus unfair prejudice. However, in conducting its balancing test under Rule 403 the court specifically found that:

the probative value is not outweighed, substantially or otherwise, by the danger of any unfair prejudice, confusing of issues, misleading the jury, nor is it deemed to be cumulative evidence, nor are there any other considerations under Rule 403 which would prevent its admissibility. Other matters will go to weight as opposed to admissibility.

We do not find the court's balancing to be conclusory, nor was it a mere parroting of the rule as alleged by defendant. The trial court's admission of evidence of defendant's prior convictions and underlying conduct was not "'manifestly unsupported by reason or . . . so arbitrary that it could not have been the result of a reasoned decision.'" Williams v. McCoy, 145 N.C. App. 111, 117, 550 S.E.2d 796, 801 (2001) (quoting State v. McDonald, 130 N.C. App. 263, 267, 502 S.E.2d 409, 413 (1998)). For the reasons stated herein, this assignment of error is overruled.

II. Evidence not in the Record

Defendant last argues that she was prejudiced by the trial court's overruling of defense counsel's objections to the prosecution's arguments based on evidence not in the record or that had been excluded. In its closing argument, the State argued:

You know, it's one thing to surf drunk at the First Street Beach Access . . . o surf with alcohol in your system if you want to, to rip the waves and curl where no one is around and no one can get hurt. But [U.S.] 158 is not the Atlantic Ocean and a Montero is not a surfboard. Context, behavior and attitude. That is malice. And that is why she's guilty of murder.

Defendant alleges that the State's closing argument referred to voir dire testimony of reserve Deputy Sheriff Ted Kearns, who encountered defendant surfing with the "odor of alcohol" about a week before the accident. Defendant had objected during voir dire to Kearns's testimony, which the State wanted to use to establish the element of malice. The trial court sustained the objection after finding the proffer to be inadmissible character evidence under 404(b). However, because the record contains other evidence sufficient to support the State's argument, we find no error.

Trooper Shelton Smith of the North Carolina State Highway Patrol testified before the jury that he stopped defendant at 10:15 p.m. on 28 June 1996 after she cut off another vehicle at a high rate of speed. When Trooper Smith smelled alcohol on her breath and asked if she had anything to drink, defendant responded that she had a couple of beers. The Trooper placed defendant under arrest after observing her bloodshot eyes and red face. Trooper Smith then testified that when defendant realized she was under arrest for DWI, she began crying and voluntarily told Trooper Smith that:

he and her boyfriend had gotten in a fight. She had left the residence. She was headed to, as I understand it, her place of employment which at the time, I believe, was Black Pelican, to have a few drinks because the boyfriend--is what she told me, was upset because she had been surfing all day and had started drinking approximately 2 o'clock that afternoon and she was tired of arguing and fussing so she had to get out of the house. (emphasis added)

Furthermore, Officer Liverman who arrested defendant following the traffic accident on 6 April 1999, testified at trial that he knew defendant because he had seen her surfing at the First Street beach access. The testimony of Trooper Smith and the testimony of Officer Liverman was presented to the jury without objection by defendant.

In addition, witness testimony regarding events on the date of the accident indicate defendant's drinking and her enthusiasm for surfing. The bartender at the Nags Head bar testified that hebought her a margarita (one of two she consumed at noon without eating) because she was a friend and a regular. The bartender at the next restaurant where she consumed three drinks without eating testified that he warned her against driving. The owner of a surf shop testified that he had known defendant a number of years through her surfing activities, and that just before the accident, defendant stopped by his shop to borrow surfing videos to show to a middle school surf club. It is clear from the record that there was evidence to show that defendant was a surfer, that she surfed after consuming alcohol, and that based on her past driving record, on several occasions she drove recklessly after consuming alcohol.

Our Supreme Court has stated:

Trial counsel is allowed wide latitude in argument to the jury and may argue all of the evidence which has been presented as well as reasonable inferences which arise therefrom. We further emphasize that 'statements contained in closing arguments to the jury are not to be placed in isolation or taken out of context on appeal. Instead, on appeal we must give consideration to the context in which the remarks were made and the overall factual circumstances to which they referred.' State v. Guevara, 349 N.C. 243, 257, 506 S.E.2d 711, 721 (1998) (citation omitted), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999).

We find that the statements made during closing arguments were reasonably inferred from and properly supported by factual evidence properly before the jury.

NO ERROR.

Judges WYNN and McCULLOUGH concur.

Report per Rule 30(e).