IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA18-1027 Filed: 16 April 2019 Henderson County, No. 17 CRS 337 STATE OF NORTH CAROLINA v. MATTHEW JOSEPH SCHMIEDER Appeal by defendant from judgment entered 26 March 2018 by Judge Julia Lynn Gullett in Henderson County Superior Court. Heard in the Court of Appeals 5 March 2019. Attorney General Joshua H. Stein, by Special Deputy Attorney General Neil Dalton, for the State. James R. Parish for defendant. DIETZ, Judge. Defendant Matthew Joseph Schmieder appeals his conviction for second degree murder following a fatal motor vehicle accident. Schmieder argues that the trial court erroneously admitted evidence of his past driving offenses and that, without that evidence, the trial court should have granted his motion to dismiss. He also argues that the trial court erred by entering judgment on the Class B2 second degree murder offense because the indictment only was sufficient to charge the Class B1 version of that offense. STATE V. SCHMIEDER Opinion of the Court As explained below, the trial court did not abuse its discretion in admitting Schmieder’s driving record because the court properly found sufficient similarity and temporal proximity between the charged offense and a lengthy pattern of past driving offenses. As a result, the trial court also did not err in denying Schmieder’s motions to dismiss because the driving record provided substantial evidence from which the jury could infer the element of malice. Finally, the indictment in this case was sufficient to charge second degree murder under all theories permitted by law and Schmieder was not misled by the indictment. We therefore find no error in the trial court’s judgment. Facts and Procedural History On 22 December 2016 around 7:30 p.m., Evelyn Argueta was driving along Kanuga Road in Henderson County. It was dark and the road was two lanes with a double yellow line down the middle and narrow shoulders. The road has turns and inclines and a posted speed limit of 40 mph. Argueta noticed a white BMW behind her and became “a little scared” when the BMW passed her across the double yellow line without using turn signals. Argueta estimated that the BMW was travelling at 45 to 50 mph. After passing Argueta, the BMW increased its speed and caught up to a Silverado pickup truck. The BMW started to pass the Silverado without using any turn signals, and Argueta thought that the BMW was following too close behind the -2- STATE V. SCHMIEDER Opinion of the Court Silverado to see around it. When the BMW entered the left lane to pass, it became apparent that there was an oncoming red pickup truck in that lane. The BMW hit the brakes and attempted to get back into the right lane, but it was too late. The BMW collided head-on with the oncoming red truck and then hit the Silverado. Argueta estimated that the BMW was going 55 to 60 mph at the time of the attempted pass. First responders arrived on the scene in ...
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