An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA04-1492


Filed: 19 July 2005


         v.                        Pitt County
                                Nos. 03 CRS 65556-59,
MICHAEL PIERRE DOELMAN,                    65794

    Appeal by defendant from judgments entered 13 May 2004 by Judge W. Russell Duke, Jr. in the Superior Court in Pitt County. Heard in the Court of Appeals on June 20 2005.

    Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.

    McAfee Law, P.A., by Robert J. McAfee, for defendant- appellant.

    HUDSON, Judge.

    On 9 February 2004, the grand jury indicted defendant, Michael Pierre Doleman, on charges of first-degree burglary, assault on a female, two counts of resisting a public officer, and two counts of attempted first-degree burglary. The case was tried at the 10 May 2004 Criminal Session of the Superior Court of Pitt County.
     Defendant was convicted of attempted first-degree burglary, two counts of resisting a public officer, two counts of misdemeanor breaking or entering, and assault on a female. The convictions were consolidated into two judgments, and defendant was sentenced to a term of twenty-five to thirty-nine months imprisonment, as well as a consecutive term of sixty days imprisonment. Defendantappeals. As explained below, we conclude there was no error.
    The State presented evidence at trial which tended to show the following: On 18 December 2003, Mary Elizabeth Horner was in her residence in Greenville, North Carolina, studying for exams. At approximately 3 or 4 a.m., Horner heard a noise outside her kitchen window. Horner went to investigate and saw the defendant trying to open her window. When Horner ran up to the window and banged on it, defendant stuck his middle finger up at her and went away. Horner called police and gave them a description of the man she had seen. She later identified the defendant.
    On the same date, Elizabeth Adrian Smith was living in Greenville with two roommates. Shortly after 4 a.m., while Smith was in bed, somebody opened her bedroom door. Smith did not recognize the person. Smith pretended to be asleep, and the person turned her bedroom light on and off, and then turned off a nightlight so the room was pitch black. The person, who Smith identified as being the defendant, walked around to her bed and started coming at her. Smith started screaming, and defendant sat on her bed and tried to put his hand over her mouth. Smith jumped up and ran out of the room and into her roommate's room. When she looked back, she saw the defendant leave. Before Smith could call the police, they saw police cars in the street with lights on. Smith found a police officer and reported the incident. Smith later identified the defendant as the person who had entered her bedroom.
    Also on the same date, Gregg Hecimovich, a professor at EastCarolina University, lived with his fiancee at 203 Library Street in Greenville. At around 4 a.m., Hecimovich was in bed when he heard movement along the side of his house. Hecimovich became alarmed when he heard a noise in the bathroom “like a window opening” and got out of bed to investigate. Hecimovich turned on the light to his bathroom and saw a person coming through the window. Hecimovich initially retreated, but then ran back screaming at the person. The person left, and Hecimovich's fiancee called the police.
    Officer A.J. Hartzog of the Greenville Police Department responded to the report of a break-in in progress at Hecimovich's residence. Officer Hartzog arrived within minutes, and saw a black male fitting the description of the suspect walking down the fence line in the yard of 203 Library Street. Officer Hartzog stopped his patrol car, and the suspect began to run. Officer Hartzog told him to stop and began chasing the suspect, but the suspect got away. Officer Hartzog identified the defendant as the suspect.
    Officer Michael Dawson of the Greenville Police Department arrived at the scene and saw the defendant running. He turned on his blue lights and ordered the defendant to stop. Once he got twenty to thirty feet past the defendant, he stopped his car, got out and chased him. After a brief struggle, Officer Dawson arrested the defendant.
    Defendant testified that he had gone to some clubs in downtown Greenville and had been drinking Jagermeister, Budweiser, Corona, and Bacardi rum mixed with Dr. Pepper. He met a girl and she gavehim her phone number and address. She left before he did, and he continued to drink. Defendant the club to find her, and stopped at a convenience store for directions. Defendant did not remember trying to enter anyone's home, but testified that he knocked on doors looking for the girl's residence. Defendant testified that he was drunk and did not know where he was going. Defendant also called Wayne Sutton as a witness. Sutton, an investigator for the public defender's office, testified that he located defendant's vehicle in storage, and found an empty bottle of Bacardi rum inside.
     Defendant argues that the trial court erred by failing to instruct the jury on voluntary intoxication . Defendant contends that there was substantial evidence that he was intoxicated, supporting an instruction on the defense of involuntary intoxication. Moreover, defendant contends that after the prosecution argued against intoxication as a defense during closing arguments, it was plain error for the trial court to fail to give the instruction.
     Defendant was charged with first degree-burglary and attempted first-degree burglary. Burglary is a specific intent crime. State v. Moore, 94 N.C. App. 55, 61, 379 S.E.2d 858, 862, disc. rev. denied, 325 N.C. 435, 384 S.E.2d 544 (1989). This Court has stated that:
        Voluntary intoxication may negate the existence of specific intent as an essential element of a crime. . . . In order for intoxication to negate the existence of specific intent, the evidence must show that the defendant was “utterly incapable” offorming the requisite     intent. Evidence of mere intoxication is insufficient to meet this burden.

State v. Howie, 116 N.C. App. 609, 613, 448 S.E.2d 867, 869-70 (1994)(citations omitted)(emphasis added).
    Here, we conclude that the evidence of intoxication was insufficient to require the instruction defendant sought. Defendant testified that he was “drunk” at the time of the alleged crimes. However, there was no evidence that defendant was so intoxicated that he could not form the specific intent to commit the charged offenses. Although one of the investigating officers detected the odor of alcohol on defendant, the same officer testified that defendant was not so intoxicated that he would have been concerned about the defendant driving a car. The officer testified that defendant “had no problem turn[ing] and running in between cars and things of that nature. . . .” Furthermore, defendant himself testified that he was okay to drive, and that he was sufficiently lucid to realize he was lost and to ask for directions at a convenience store. Moreover, when confronted by the police, defendant fled, giving rise to the possible inference that he was aware that he had done something wrong.
    Defendant additionally contends that once the prosecution argued that he was not so intoxicated so as to negate intent, the trial court should have ex mero motu instructed the jury on the defense. We disagree. Our Supreme Court has stated:
        The law regarding arguments of counsel is well established: Counsel must be allowed wide latitude in arguing hotly contested cases. Counsel may argue the facts in evidencetogether with all reasonable inferences that may be drawn therefrom in presenting counsel's side of the case. Whether counsel has abused this right is a matter ordinarily left to the sound discretion of the trial court. Where defendant fails to object to an alleged impropriety in the State's argument and so flag the error for the trial court, “the impropriety . . . must be gross indeed in order for this court to hold that a trial judge abused his discretion in not recognizing and correcting ex mero motu an argument which defense counsel apparently did not believe was prejudicial when he heard it.”

State v. Abraham, 338 N.C. 315, 338, 451 S.E.2d 131, 143 (1994)(citations omitted). Here, the prosecution's argument regarding voluntary intoxication was in response to defendant's own arguments on the subject. Counsel for defendant argued that defendant “had drunk enough alcohol” so as to have an “inability to formulate any intent to carry out any kind of logical plan.” Defendant opened the door, and the State merely responded to the argument. Under these circumstances we see no error that would have required the trial judge to intervene ex mero motu, and we overrule this assignment of error.
    No error.
    Judges MCGEE and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***