State v. Lewis (Lawyers Weekly No. 12-07-0913, 13 pp.) (Donna S. Stroud, J.) Appealed from Onslow County Superior Court (Phyllis M. Gorham, J.) N.C. App.
Holding: Defendant’s wife testified that defendant was “responsible for storing” his Glock handgun and was the last person seen with the handgun before their three-year-old son shot himself with it. There was also evidence that defendant normally kept the handgun on the top of an entertainment center that not even his wife was tall enough to reach, but on the day the child got the handgun, the family was in the process of moving and the items on the entertainment center had been moved. This circumstantial evidence was sufficient to show that the handgun was left in such a manner that the child was able to access and discharge it within 10 seconds or less of discovering it. The trial court properly denied defendant’s motion to dismiss the charge of storing a firearm in a manner accessible to a minor.
We find no error in defendant’s convictions of involuntary manslaughter and improper storage of a firearm. We remand for correction of a clerical error.
Since the only essential element the state must prove to establish involuntary manslaughter is an unlawful killing, and since the state proved this element by showing defendant committed the misdemeanor of improper storage which resulted in his son’s death, the trial court did not err in denying defendant’s motion to dismiss the charge of involuntary manslaughter.
At sentencing, the trial court orally imposed a $100 fine; however, the judgment orders a $500 fine. The parties agree that the discrepancy is the result of a clerical error, so we remand for its correction.