An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 6 July 2004
STATE OF NORTH CAROLINA
Nos. 01 CRS 98935, 98936,
GARY DEAN NELSON and
JERRY DALE NELSON
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
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
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
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
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
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
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