STATE OF NORTH CAROLINA
v
.
ALLEN SPENCER
Roy Cooper, Attorney General, by Amy C. Kuntsling, Assistant
Attorney General, for the State.
David G. Belser for defendant-appellant.
THOMAS, Judge.
Defendant, Allen Spencer, was convicted of assault with a
deadly weapon with intent to kill inflicting serious injury
(AWDWIKISI) was sentenced to 116 to 149 months in prison.
He appeals, assigning as error the trial court's: (1) failure
to instruct the jury on voluntary intoxication; (2) finding as an
aggravating factor that the offense was committed while defendant
was on pretrial release; and (3) failure to dismiss the indictment
for AWDWIKISI where it did not allege an element of the offense.
For the reasons discussed herein, we hold the trial court did not
err.
The State's evidence tends to show the following: Sharon
Roberts had lived with defendant for the last eight of the thirteen
years she had known him. Her ten-year-old daughter referred to defendant as “Daddy” although he is not her biological father.
During the year 2000, however, Roberts talked with defendant
numerous times about ending their relationship. During these
discussions, defendant said they would “be together forever,” and
he would kill her if she were to leave. In July 2000, defendant
bit the area around Roberts's eye and choked her.
Sometime around November 2000, Roberts asked defendant to
leave her home. He did so for several weeks, going to Fairfield,
North Carolina. A few days after defendant's return to Greensboro,
North Carolina, he went to Roberts's home and said he wanted to
speak with her in her bedroom. When Roberts complied, defendant
locked the door. He asked her “to make love to him for the last
time.” Roberts refused. Defendant then put a knife to her throat
and said he was going to kill her. Roberts pleaded with him to
spare her. Defendant then put the knife to his own throat and said
that he was going to kill himself. Roberts eventually persuaded
defendant to accompany her to the local mental health center for
treatment.
Defendant was hospitalized for several days. Upon his
release, Roberts agreed to help him find a place to live, and
arranged for him to stay with her sister, Alice “Annette” Roberts
(Annette).
On the night of 11 January 2001, Roberts was at Annette's home
“drinking and getting high.” While there, she had consensual sex
with defendant. The next day, 12 January 2001, Roberts saw
defendant several times at Annette's. During the evening, Robertsand Annette went out for a couple of hours to visit some friends,
returning around nine or ten o'clock with about twenty dollars
worth of crack cocaine. They smoked some, with defendant smoking
the majority of it. He also consumed three or four beers.
Sometime earlier that day, Roberts joked in front of defendant
about possibly being pregnant.
Upon receiving a phone call from a male friend, Roberts
decided to leave Annette's home with her daughter. Defendant
appeared agitated and insisted on walking Roberts to her car. Once
there, defendant asked whether Roberts was seeing another man. She
reminded defendant that her daughter was in the car, said they
could talk later, and attempted to drive away. Defendant, however,
was sitting on the door frame and said, “If I had a gun, I'd kill
you.” Defendant then struck her. Roberts later testified that she
initially thought defendant hit her on the neck, but upon seeing
blood, realized he had stabbed her. Defendant stabbed Roberts in
the face, neck, and chest. As she tried to block the knife, her
hand was also cut.
Annette ran to the car and jumped on defendant, who she heard
say, “I'm going to kill you.” Jack Jordan, Annette's boyfriend,
pulled Roberts from inside the car. Defendant then said to
Roberts, “I guess it's over now. That's what you get for not
telling me who you're [sleeping] with.”
Later that night, Deputy James Cuddeback of the Guilford
County Sheriff's Department interrogated defendant. After waiving
his Miranda rights, defendant admitted he stabbed Roberts. Defendant appeared shaken and intermittently cried.
Defendant's evidence tends to show the following: Dr. Gary
Hoover, a forensic psychologist, tested and evaluated defendant.
The Minnesota Multiphasic Personality Inventory test indicated
defendant was mildly depressed and somewhat irritable. The Milan
Clinical Multiaxial Inventory showed defendant had “rather severe
anxiety problems that were set in the context of a dependent
personality.” Hoover, meanwhile, said he believes defendant is
extremely dependent, and “tends to become anxious and fragmented in
his thinking when placed in stressful, anxiety-producing
situations.” According to Hoover, when defendant finally
understood his relationship with Roberts had ended, “he lost
control, he blew up.” In Hoover's opinion, the stabbing was an
impulsive act, or “an act without thinking,” rather than a
thoughtful one.
The jury returned a guilty verdict. The trial court found as
an aggravating factor that defendant committed the offense while on
pretrial release for a charge of assault on a female. It found as
a mitigating factor that defendant acknowledged wrongdoing at an
early stage of the proceedings. After the aggravating factor was
found to outweigh the mitigating factor, defendant was sentenced to
116 to 149 months in prison.
By his first assignment of error, defendant contends the trial
court committed plain error in failing to instruct the jury on
voluntary intoxication as a defense to AWDWIKISI. We disagree.
As defendant raises this argument for the first time onappeal, he correctly assigns plain error as the standard of review.
See N.C. R. App. P. 10(c)(4). Plain error is “'fundamental error,
something so basic, so prejudicial, so lacking in its elements that
justice cannot have been done'. . . or it can be fairly said 'the
instructional mistake had a probable impact on the jury's finding
that the defendant was guilty.'” State v. Odom, 307 N.C. 655, 660,
300 S.E.2d 375, 378 (1983) (emphasis in original) (quoting U.S. v.
McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S.
1018, 74 L. Ed. 2d 513 (1982)).
“Voluntary intoxication is not a legal excuse for a criminal
act; however, it may be sufficient in degree to prevent and
therefore disprove the existence of a specific intent such as an
intent to kill.” State v. Gerald, 304 N.C. 511, 521, 284 S.E.2d
312, 318 (1981). To require an instruction on voluntary
intoxication, there must be evidence that “defendant's mind and
reason were so completely intoxicated and overthrown that he could
not form a specific intent to kill.” Id. at 511, 284 S.E.2d at
318-19. In resolving the question of whether defendant is entitled
to an instruction on voluntary intoxication, we examine the
evidence in the light most favorable to defendant. State v. Boyd,
343 N.C. 699, 713, 473 S.E.2d 327, 334 (1996), cert. denied, 519
U.S. 1096, 136 L. Ed. 2d 722 (1997).
The evidence here shows defendant consumed crack cocaine and
beer on 12 January 2001. It is unclear precisely how much he
consumed. Roberts and Annette both testified he smoked the
majority of the crack they shared. Roberts, however, said they“didn't have very much” crack; Annette estimated it was about
twenty dollars worth. In addition, according to Roberts, defendant
drank several beers, two earlier that day, and three or four that
evening.
Further, shortly after the assault, defendant told police
about the events leading to it. He recalled the phone call from
Roberts's male friend, the conversation she and defendant had at
the car, Roberts's refusal to discuss their relationship at that
moment, Roberts's threat to call the police, and his stabbing her
in the neck.
Viewed in the light most favorable to defendant, this evidence
does not establish that defendant was intoxicated to the degree of
being incapable of forming an intent to kill. While it may be
sufficient to show he was intoxicated, defendant has not met his
burden of presenting substantial evidence of being “unable to
reason.” See Gerald, 304 N.C. at 521-22, 284 S.E.2d at 319
(holding no voluntary instruction required as defense to AWDWIKISI
where defendant drank rum and wine prior to the shooting but was
coherent and able to understand others).
We likewise reject defendant's contention that Hoover's
opinion mandates an instruction on voluntary intoxication.
Hoover's description of defendant's conduct as “impulsive” and
“without thinking” does not equate to defendant being so
intoxicated that he was “utterly incapable” of forming a specific
intent. Impulsiveness and acting without first thinking are unwise
behaviors; however, the degree is far different when heavyconsumption of drugs or alcohol, “intoxicate[] and overthrow[]” a
defendant's “mind and reason so that he could not form a specific
intent to kill.” Gerald, 304 N.C. at 511, 284 S.E.2d at 318-19.
See also State v. Brown, 335 N.C. 477, 492, 439 S.E.2d 589, 598
(1994) (instruction not required where expert testified defendant
was “acutely intoxicated” at time of crime); Boyd, 343 N.C. at 712-
13, 473 S.E.2d at 333-34 (instruction not mandated where expert
testified defendant was intoxicated at time of crime).
In State v. Cheek, 351 N.C. 48, 74-76, 520 S.E.2d 545, 560-61
(1999), cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000), the
defendant had taken “two hits of acid” prior to the murder but was
able to recall events both before and after the murder. Based on
those facts, the Court held the defendant had not produced
sufficient evidence from which a jury could conclude he was so
intoxicated that he was “utterly incapable” of forming the specific
intent to commit first-degree murder. Id. at 75-76, 520 S.E.2d at
561; see also State v. Herring, 338 N.C. 271, 274-76, 449 S.E.2d
183, 185-86 (1994) (no instruction required where defendant
consumed forty to sixty ounces of fortified wine, four twelve-ounce
malt liquor beers, and smoked three marijuana joints and testified
he was in a state of intoxication at the time of the shooting but
was able to recall the event).
Accordingly, we hold there was no error. This argument, based
on plain error, is without merit.
By his second assignment of error, defendant contends there
was insufficient evidence for the trial court to find as anaggravating factor that the offense was committed while defendant
was on pretrial release. Specifically, defendant contends the
trial court erred because it solely relied on the prosecutor's
assertion that the factor existed. We disagree.
Section 15A-1340.16(a) of the North Carolina General Statutes
provides:
(a) Generally, Burden of Proof.--The court
shall consider evidence of aggravating or
mitigating factors present in the offense that
make an aggravated or mitigated sentence
appropriate, but the decision to depart from
the presumptive range is in the discretion of
the court. The State bears the burden of
proving by a preponderance of the evidence
that an aggravating factor exists, and the
offender bears the burden of proving by a
preponderance of the evidence that a
mitigating factor exists.
N.C. Gen. Stat. § 15A-1340.16(a) (2001). The statute sets forth no
instructions regarding the types of proof permissible for
establishing an aggravating factor. It simply requires the State
to prove it exists “by a preponderance of the evidence.” Id.
Defendant correctly notes, however, that “a trial court may
not find an aggravating factor where the only evidence to support
it is the prosecutor's mere assertion that the factor exists.”
State v. Swimm, 316 N.C. 24, 32, 340 S.E.2d 65, 70-71 (1986).
Here, however, after the prosecutor asserted he believed defendant
was on pretrial release, the trial court instructed the Clerk of
Court to “check on any criminal warrants on [defendant], when they
were served.” The Clerk verified that defendant was served for
assault on a female on “9/22.” The Clerk's statement was also
consistent with Hoover's testimony of defendant having “a pendingcharge that was lodged in September of 2000.” Rather than merely
rely on the prosecutor's assertion, the trial court verified
defendant's status by checking the Clerk's records. Based on these
facts, we hold the State proved by a preponderance of the evidence
that an aggravating factor exists. Defendant's assignment of error
is overruled.
By his third assignment of error, defendant contends the
indictment against him failed to allege all of the elements of
AWDWIKISI. Specifically, he argues it did not allege the element
of specific intent to kill Roberts. We conclude otherwise. The
indictment reads: “[D]efendant . . . did assault Sharon Renee
Roberts . . . with the intent to kill and inflicting serious injury
. . .” (Emphasis added.) This sufficiently alleges an intent to
kill Roberts. The indictment “charges all essential elements of
[the] alleged criminal offense to inform [defendant] of the
accusation against him and enable[] him to be tried accordingly.”
State v. Surcey, 139 N.C. App. 432, 434, 533 S.E.2d 479, 481
(2000). Defendant's final assignment of error is therefore
overruled.
NO ERROR.
Judges WALKER and BIGGS concur.
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