An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA03-244


Filed: 6 July 2004


v .                         Guilford County
                            Nos. 01 CRS 98935, 98936,
                                     98939, 98940,
                                     98941, 98942


    Appeal by defendants from judgment entered 24 May 2002 by Judge John O. Craig, III in Guilford County Superior Court. Heard in the Court of Appeals 24 May 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Karen E. Long, for the State.

    Robert W. Ewing, for defendant-appellant Gary Dean Nelson.

    James P. Hill, for defendant-appellant Jerry Dale Nelson.

    MARTIN, Chief Judge.

    Defendant Jerry Dale Nelson appeals from judgments imposing active sentences entered upon his convictions by a jury of first degree burglary, assault with a deadly weapon inflicting serious injury on Dwayne Kearns and assault with a deadly weapon with intent to kill inflicting serious injury on Larry Ayers. Defendant Gary Dean Nelson appeals from judgments imposing active sentences entered upon his convictions by a jury of first degree burglary and assault with a deadly weapon with intent to kill inflicting seriousinjury on Larry Ayers.
    The State presented evidence at trial which tended to show the following: On the evening of 26 September 2001, Larry Ayers (Ayers), his friend Brian Hayes (Hayes) and Hayes's son, Jason, went to Pinecroft Sports Bar to shoot pool. When they arrived, defendants Gary Nelson (Gary) and Jerry Nelson (Jerry) were in the parking lot with Kelly Shropshire. As Ayers, Hayes and Jason walked past them, Jerry made a racial remark to Jason but the three men ignored him and continued walking toward the bar.
    Hayes testified at trial that shortly after the men entered the bar, Jerry approached him and threatened that he and his brother were going to “whop their ass.” Although Hayes told Jerry he was not going to fight him, Gary jumped out from behind Jerry and punched Ayers off the bar stool. While Gary and Ayers scuffled, other people in the bar were trying to keep Jerry from jumping into the fight. Ayers pinned Gary down and when Gary begged to be let up, Ayers told him, “I'm going to let you up, Gary, but don't do nothing stupid.”
    Ayers testified that after he let Gary up, Gary pulled out a knife and dove over the pool table at him, tripping in the process. Ayers ran outside and across the street to the Circle K store where he called his brother on the telephone. He told his brother what had happened and asked him to call Hayes to tell him to pick him up at his friend Dwayne Kearns' (Kearns) house, just a short walk from the Circle K.
    Ayers stated that when he arrived at Kearns' house, Kearns'ten-year-old daughter, Ashley, let him inside the house. Kearns' fiancé, Sandra Rene Hunt (Hunt), testified that she told Ayers that Kearns was in the shower. While Ayers was in the bathroom talking with Kearns, Ashley and Hunt heard someone kicking at the front door and knocking on the windows trying to get inside. Hunt screamed for Kearns just as a kerosene heater was thrown through the front door and two men came into the house.
    Hearing screams from the other room, Ayers ran out of the bathroom. Kearns got out of the shower, grabbed a towel to put around him, and went into the room with defendants. When Kearns asked defendants to leave, Gary cut Kearns across his face with a large knife. Jerry jerked the phone out of the wall and then he and Gary went after Ayers while Hunt and Ashley ran to a neighbor's house.
    Ayers, in fear for his life, ran back into the bathroom and locked the door. Jerry kicked in the door to the bathroom and hit Kearns as Gary cut him with the knife. While Gary and Kearns were struggling on the floor, Jerry slammed Kearns across the back, knocking him into the bathtub. Gary stabbed Kearns and then the defendants just walked out of the bathroom.
    While defendants were in the bathroom with Ayers, Kearns went outside and later saw defendants walking down the driveway. After Ayers came stumbling out the back door covered in blood, police and paramedics arrived on the scene.
    Defendants presented evidence which tended to show that after following Ayers, Hayes and Jason into Pinecroft Sports Bar, Garywas playing pool with his brother when out of the corner of his eye he saw Ayers coming at him with a pool stick. He tried to block it with his arm but it knocked him down. Ayers jumped on top of him but because of his recent hernia operation, Gary had no strength to fight.
    Gary also testified that when Ayers ran out of the bar, both Jerry and Gary followed him although Gary had a difficult time keeping up because he couldn't run. Jerry, however, testified that Gary was right behind him. Neither man admitted to throwing the kerosene heater through the front door. Jerry testified he just opened the door and entered the house in order to get Ayers. Gary testified that the only reason he entered the house was to get his brother out.
    Gary admitted to cutting Hayes across the face but claims he did it while in a rage and in great pain from a kick to the area of his hernia operation. He also admitted he cut Ayers on the forehead but says Ayers got other cuts when reaching for the knife. Gary testified that he never meant to stab Ayers but slipped and fell on him puncturing his chest with the knife in the process. He did, however, intend to cut him.
    Jerry testified that he went into the bathroom to hit Ayers but when Gary came into the bathroom, he backed out. When he turned around and made eye contact with Ayers, Ayers pleaded, “Don't let him cut me no more.” Jerry realized only then that Gary had a knife and was cutting Ayers.
    After Ayers quit struggling, defendants left. Gary drove hisbrother home and then went to his home in Rockingham County. Later that night, Gary was picked up by police and taken to Greensboro for questioning. When the police went to Jerry's house he acted as if he were not there. He turned himself in three days later after negotiating his bond.
    At trial, defendants moved to dismiss the charges at the close of the State's evidence and at the close of all the evidence. The trial court denied the motions.    

    Defendants set forth twelve assignments of error, one of which is not argued in either brief. The assignment of error is deemed abandoned pursuant to N.C. R. App. P. 28(a).

Gary Dean Nelson's Appeal
    Defendant Gary Nelson first argues the trial court erred by refusing to instruct the jury on the defense of voluntary intoxication. Defendant contends that he could not formulate the specific intent required for assault with a deadly weapon with intent to kill inflicting serious injury because he was intoxicated.
    Voluntary intoxication “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). “To be entitled to an instruction on voluntary intoxication, a defendant'must produce substantial evidence which would support a conclusion by the judge that he was so intoxicated that he could not form a deliberate and premeditated intent to kill.'” State v. Vaughn, 324 N.C. 301, 308, 377 S.E.2d 738, 741 (1989) (citation omitted). “Evidence of mere intoxication, however, is not enough to meet defendant's burden of production.” State v. Mash, 323 N.C. 339, 346, 372 S.E.2d 532, 536 (1988). The evidence must support a conclusion by the judge that at the time of the crime “defendant's mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated” intent. Id. (citation omitted). “In absence of some evidence of intoxication to such degree, the court is not required to charge the jury thereon.” Id. (citation omitted).
    To support his argument that he did not have the required intent, defendant points to his own testimony that he had taken two to four Oxycodones every four hours that day to ease the pain from his recent hernia surgery, which took place nine days prior to the incident. In addition, he drank a “few beers” at his brother's house that afternoon and “several” beers while at the bar. This testimony does not establish that he was so intoxicated as to be incapable of forming the necessary intent.
     Defendant contends evidence showing he was unable to recollect some of the details of the event, such as seeing Hunt and Ashley and hearing them screaming, shows that he was intoxicated and also shows that he was not aware of what was occurring around him at the time of the event. However, defendant was able torecall following his brother to Kearns's home, cutting Kearns with his hunting knife, cutting Ayers after he fell in the bathtub, and leaving the house after Ayers quit struggling. He was able to drive his brother home before driving to his own home. There is no evidence that defendant exhibited slurred speech or had difficulty walking due to intoxication. Moreover, defendant presented no evidence showing that he was “so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated” intent. Id. Viewing the evidence in the light most favorable to defendant, Id. at 348, 372 S.E.2d at 537, we conclude that the evidence was insufficient to require an instruction on voluntary intoxication.
    Defendant next contends the trial court erred in denying defendant's motion to dismiss the charge of first degree burglary. In ruling on a defendant's motion to dismiss, the court must determine, in the light most favorable to the State, if there is “substantial evidence of each essential element of the offense charged, or of a lesser offense included therein, and of the defendant's being the perpetrator of such offense.” State v. Bates, 313 N.C. 580, 581, 330 S.E.2d 200, 201 (1985). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
To withstand a motion to dismiss on a charge of first degree burglary, the State must present substantial evidence of “(1) breaking and entering (2) at night (3) into the dwelling of another(4) that is occupied at that time (5) with the intent to commit a felony therein.” State v. Cunningham, 140 N.C. App. 315, 321, 536 S.E.2d 341, 346 (2000), disc. review denied, 353 N.C. 385, 547 S.E.2d 23 (2001). Defendant concedes that he and his brother broke into the Kearns residence on the night of 26 September 2001 while the home was occupied, but he argues that the State failed to prove that he had the intent to commit a felony at the time he entered.
“The intent to commit the felony must be present at the time of entrance, and this can but need not be inferred from the defendant's subsequent actions.” State v. Montgomery, 341 N.C. 553, 566, 461 S.E.2d 732, 739 (1995).
    The State presented evidence which tended to show that defendant provoked a fight in the bar which he lost, that he followed Ayers to Kearns' residence, that he tried two different ways to get into the house, that he threw a kerosene heater into the house, that he was armed with a knife upon entering, and that he broke down the bathroom door to assault Ayers with the knife. This evidence is substantial evidence to support a conclusion that defendant had the intent to commit a felonious assault when he broke into the house. Therefore, defendant's motion to dismiss was properly denied.
    Defendant also argues the trial court erred in denying his motion to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury. “The essential elements of the crime are (1) an assault, (2) with a deadly weapon, (3) withintent to kill, (4) inflicting serious injury, (5) not resulting in death.” State v. Cain, 79 N.C. App. 35, 46, 338 S.E.2d 898, 905, disc. review denied, 316 N.C. 380, 342 S.E.2d 899, (1986). The evidence that defendant seriously injured Ayers during an assault is uncontradicted. Defendant argues, however, that the State failed to prove that he had an intent to kill.
    “Proof of an assault with a deadly weapon inflicting serious injury not resulting in death does not, as a matter of law, establish a presumption of intent to kill.” State v. Wampler, 145 N.C. App. 127, 130, 549 S.E.2d 563, 566 (2001) (citation omitted). “However, 'an intent to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances.'” Id. (internal quotation omitted). The State presented evidence that defendant, armed with a knife, followed Ayers to Kearns' home, broke into the house and trapped Ayers in the bathroom where he proceeded to stab him. Thus, we hold there was substantial evidence from which a jury could reasonably infer that the defendant had the requisite intent to kill.

Jerry Dale Nelson's Appeal
    Defendant Jerry Nelson argues the indictments returned against him were insufficient because the indictments do not charge defendant with acting in concert. An indictment, in order to give a “defendant notice of the charge against him so that he mayprepare his defense,” State v. Westbrooks, 345 N.C. 43, 58, 478 S.E.2d 483, 492 (1996), “must allege all of the essential elements of the crime sought to be charged.” Id. at 57, 478 S.E.2d at 492. “Allegations beyond the essential elements of the crime sought to be charged are irrelevant.” Id. Acting in concert is not an essential element of a crime, id., but a theory or principal upon which defendant's culpability is based. Acting in concert requires defendant's presence at the scene of the crime and evidence “sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.” State v. Williams, 299 N.C. 652, 657, 263 S.E.2d 774, 778 (1980).
    For each charge against defendant, the prosecution alleged the elements of the crime in the indictment such that defendant had sufficient notice of the charges against him. There was no need to allege defendant acted in concert because it was not an element of any of the crimes of which defendant was charged. The assignment of error is overruled.
    Defendant contends the trial court erred in denying co- defendant Gary Nelson's request to instruct the jury on the defense of voluntary intoxication. If Gary Nelson was so intoxicated that he lacked specific intent to kill, Jerry Nelson, acting in concert, lacked the intent to kill. However, we have previously determined that the evidence was insufficient to require instruction on voluntary intoxication as to defendant Gary Nelson, and thus, theinstruction was not available as to defendant Jerry Nelson.
     Next, defendant asserts there was insufficient evidence to support the trial court's jury instruction on acting in concert. “It is generally error, prejudicial to defendant, for the trial court to instruct the jury upon a theory of a defendant's guilt which is not supported by the evidence.” State v. Brown, 80 N.C. App. 307, 311, 342 S.E.2d 42, 44 (1986).
    The doctrine of acting in concert requires that when “two persons join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose . . . or as a natural or probable consequence thereof.” State v. Mann, 355 N.C. 294, 306, 560 S.E.2d 776, 784 (citations omitted), cert. denied, 537 U.S. 1005, 154 L. Ed. 2d 403 (2002). “For purposes of the doctrine, '[a] person is constructively present during the commission of a crime if he or she is close enough to be able to render assistance if needed and to encourage the actual perpetration of the crime.'” Id. (citation omitted).
    The State's evidence tended to show that defendants Jerry Nelson and Gary Nelson ran after Ayers when he left the bar and followed him to Kearnes' house. Together the defendants attempted to enter the house through a utili