Appeal by defendant from judgment entered 12 March 2001 by
Judge L. Todd Burke in Guilford County Superior Court. Heard in
the Court of Appeals 22 April 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Marc Bernstein, for the State
Donald E. Gillespie, Jr., for defendant-appellant.
MARTIN, Judge.
Defendant was indicted on charges of common law robbery and
being an habitual felon. He entered pleas of not guilty. A jury
found him guilty of common law robbery and of having attained the
status as an habitual felon. He appeals from the judgments entered
upon the verdicts.
The State presented evidence at trial which tended to show the
following: On 20 August 2000, at about 11 p.m., Charles Deberry
left his home in Greensboro, North Carolina, to take a walk.
Deberry brought with him a large duffel bag which contained his
identification and other items, and a soda bottle filled with port
wine. Eventually, Deberry sat down on a cement wall, smoked acigarette, and began drinking the wine. After about fifteen
minutes, defendant approached Deberry, and the two had a
conversation. After talking for a bit, Deberry offered defendant
a drink, and the two began to pass the bottle back and forth.
After sharing the wine for a bit, defendant refused to give
the wine back to Deberry, and the two began to argue. Defendant
got close to Deberry, and Deberry feared that defendant was going
to take his duffel bag. The two struggled, and defendant hit
Deberry several times, striking him in the left eye and on his
nose, and breaking Deberry's glasses. Deberry fell to the pavement
unconscious and defendant left with the wine.
Officers arrived on the scene a short time later and found
Deberry conscious, but his face swollen and bleeding from his nose
and mouth. Deberry told officers what had happened and described
his assailant. Police searched the area and discovered defendant,
who matched the description given by Deberry. Defendant had blood
on his pants and had a green plastic bottle which contained wine.
Defendant also smelled of alcohol and the officer believed he was
intoxicated.
Defendant testified as to his version of the incident.
According to defendant, he had been smoking marijuana when Deberry
approached him, pulled a bottle of wine out of his backpack, and
offered him a drink. The two then passed the bottle of wine back
and forth until they finished the bottle. Defendant then offered
Deberry some crack cocaine, and Deberry smoked it. Defendant
testified that Deberry then “smacked me on my butt and grabbed meon my butt” and said “I like this, too.” Defendant stated that he
told Deberry not to touch him, and Deberry asked for his wine back.
Defendant testified that he told Deberry “I don't have to let you
touch me to drink with you.” According to defendant, Deberry next
approached him twice, once while holding a razor, and defendant
threatened to punch him if he got closer. Defendant “smacked his
glasses off” and “punched him . . . [w]ith my fist.” Defendant
then turned around and walked away.
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We first consider whether the trial court committed plain
error when it failed to instruct the jury on intoxication.
Defendant contends that common law robbery is a specific intent
crime, and voluntary intoxication can negate intent. Defendant
asserts there was ample evidence before the court that he was
intoxicated, and argues that the failure to instruct the jury on
voluntary intoxication deprived the jury of the ability to acquit
defendant of common law robbery and convict him of a lesser
offense. We are not persuaded.
“[P]lain error is error so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have reached.”
State v. Stancil, 146 N.C. App. 234, 240, 552 S.E.2d 212, 216
(2001),
affirmed as modified, 355 N.C. 266, 559 S.E.2d 788 (2002)
(citing
State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999)).
Common law robbery is a specific intent crime.
State v. Bailey, 4
N.C. App. 407, 167 S.E.2d 24 (1969). While in some instancesvoluntary intoxication may negate specific intent, “[i]t is only a
viable defense if the degree of intoxication is such that a
defendant could not form the specific intent required for the
underlying offense.”
State v. Golden, 143 N.C. App. 426, 430, 546
S.E.2d. 163, 166 (2001) (citing
State v. Gerald, 304 N.C. 511, 521,
284 S.E.2d 312, 318 (1981)). The mere fact that defendant has
consumed alcohol is insufficient to support the instruction.
Instead, defendant must show that he was so completely intoxicated
at the time of the crime that he was utterly incapable of forming
a specific intent to rob Deberry.
Id. at 430, 546 S.E.2d at 166-
67. “In the absence of some evidence of intoxication to such
degree, the court is not required to charge the jury thereon."
Id.
at 430, 546 S.E.2d at 167.
In the present case
, there was insufficient evidence that
defendant was so intoxicated as to negate his intent. The evidence
discloses that defendant had not consumed much alcohol prior to the
incident. The evidence presented by the State suggests that: (1)
defendant had not been drinking before he met Deberry; (2) Deberry
had less than a liter of wine with him; (3) defendant and Deberry
shared the liter of wine; (4) defendant admitted to drinking some
of the wine after the altercation; and (5) there was wine remaining
in the bottle when defendant was arrested. Moreover, there was
little to no evidence of the level of defendant's intoxication at
the time of the robbery. Most of the evidence regarding
defendant's mental state concerned defendant's condition fifteen to
twenty minutes after the robbery, after he had consumed morealcohol, and not his mental state when he robbed Deberry.
Accordingly, we find no plain error.
We next consider whether the trial court erred by denying
defendant's motion to dismiss for insufficiency of the evidence.
Defendant contends that the evidence shows that Deberry shared the
bottle of wine with defendant, and any force or intimidation by the
defendant occurred after the wine had changed hands.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense.
State v. Cross, 345 N.C. 713, 483 S.E.2d 432 (1997)
.
“'Substantial evidence is relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.'”
Id. at 717,
483 S.E.2d at 434 (quoting
State v. Olson, 330 N.C. 557, 564, 411
S.E.2d 592, 595 (1992)).
Defendant was convicted of common law robbery in violation of
G.S. § 14-87.1. “Common law robbery is defined as the
non-consensual taking of money or personal property from another by
means of violence or fear.”
State v. White, 142 N.C. App. 201,
204, 542 S.E.2d 265, 267 (2001). Defendant argues there was
insufficient evidence to support his conviction for robbery because
the evidence shows that he did not threaten or use force on Deberry
until after he had the bottle of wine. However, “[w]here a
continuous transaction occurs, the temporal order of the threat or
the use of [violence] . . . and the taking is immaterial.”
State
v. Gainey, 355 N.C. App. 73, 90, 558 S.E.2d 463, 475 (2002) (citing
State v. Green, 321 N.C. 594, 605, 365 S.E.2d 587, 594,
cert.denied, 488 U.S. 900, 102 L. Ed. 2d 235 (1988)). Accordingly, we
hold that the trial court did not err by denying defendant's motion
to dismiss.
No error.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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