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).

NO. COA01-1104
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Filed: 7 May 2002


         v.                        Guilford County
                                No. 00 CRS 23781, 100029

    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.


    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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