STATE OF NORTH CAROLINA
v. Edgecombe County
No. 03 CRS 53543
HARRY KNIGHT,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General William P. Hart and Assistant Attorney General Lauren
M. Clemmons, for the State.
William D. Spence for defendant-appellant.
WYNN, Judge.
To convict a defendant on the offense of taking indecent
liberties with a minor the State must prove, inter alia, that the
action by the defendant was for the purpose of arousing or
gratifying sexual desire. State v. Rhodes, 321 N.C. 102, 104-05,
361 S.E.2d 578, 580 (1987)
. In this case, Defendant argues that
the State did not produce sufficient evidence to prove this element
of the offense. Because the State's evidence showed that Defendant
went into the victim's room when she was asleep, pulled off her
covers, and attempted to pull down her underpants six times, we
hold that this was sufficient evidence for the jury to inferDefendant's purpose of gratifying a sexual desire. We further hold
that the trial court did not err in denying Defendant's requested
jury instruction on voluntary intoxication, as Defendant's evidence
did not show he was incapable of forming specific intent.
The evidence presented at trial tended to show the following:
On 23 September 2003, Defendant Harry Knight visited his cousin's
home where a nine-year-old female child lived with her mother and
siblings. While the child slept alone in her bedroom, someone
awakened her by pulling the covers off of her. The child was
dressed in a shirt and underwear. After the covers were pulled off
of her, the person pulled her underwear down to her thigh by
grabbing the top part of the waistband. The child pulled them back
up and told the person to stop. However, the person kept trying to
pull them down, and the child kept pulling them back up. The child
testified that this happened about six times. Finally, after the
last time, the person said “man” and then “sucked his teeth” and
“lit a cigarette.” The child identified Defendant as the person
who had pulled her underwear down. She testified that she
recognized Defendant because she had previously heard him sucking
his teeth, she recognized his voice, and she “kind of” saw him in
the light when he lit his cigarette. The child reported what
happened to Defendant's cousin who confronted Defendant and threw
him out of the house.
At trial, Defendant denied ever entering the child's bedroom
or touching her. Defendant testified that he had been drinking at
a bar earlier in the day, and that his cousin drove him to thehouse because he had drunk “more than I should at the bar.” At the
house, they drank beer. At some point, Defendant went to the
bathroom and threw up.
Defendant also pulled his boots off and
went to sleep on the couch. Defendant further testified that he
did not “really” recall being confronted by the child, and did not
remember who “jumped on me.” All he remembered was who was in the
house.
Defendant was convicted of taking indecent liberties with a
child and sentenced to a term of sixteen to twenty months
imprisonment.
Defendant appeals.
__________________________________________
We first consider whether the trial court erred
by denying
Defendant's motion to dismiss for insufficiency of the evidence.
Defendant contends that the State failed to present evidence that
he acted for the purpose of sexual gratification. We disagree.
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, 716-17, 483 S.E.2d 432, 434
(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)). When reviewing the
sufficiency of the evidence, “[t]he trial court must consider such
evidence in the light most favorable to the State, giving the State
the benefit of every reasonable inference to be drawn therefrom.”
State v. Patterson, 335 N.C. 437, 450, 439 S.E.2d 578, 585 (1994)(citing State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61
(1991))
.
In the instant case,
Defendant was charged with taking
indecent liberties with a minor.
In order to convict Defendant,
the State must prove:
(1) the defendant was at least 16 years of
age, (2) he was five years older than his
victim, (3) he willfully took or attempted to
take an indecent liberty with the victim, (4)
the victim was under 16 years of age at the
time the alleged act or attempted act
occurred, and (5) the action by the defendant
was for the purpose of arousing or gratifying
sexual desire.
Rhodes, 321 N.C. at 104-05, 361 S.E.2d at 580 (citing State v.
Hicks, 79 N.C. App. 599, 339 S.E.2d 806 (1986)).
Defendant argues
that there was no evidence that he engaged in the alleged acts for
the purpose of arousing or gratifying sexual desire. However, this
Court has noted that a “'defendant's purpose, being a mental
attitude, is seldom provable by direct evidence and must ordinarily
be proven by inference.'” State v. Rogers, 109 N.C. App. 491, 505,
428 S.E.2d 220, 228 (1993) (citation omitted
).
In the case sub judice,
the child testified that Defendant
pulled her underwear down, and she pulled them back up. This
happened six times. Defendant's act, and the fact that it was
repeated again and again despite the child's objections, is plenary
evidence that Defendant committed an indecent liberty for the
purpose of sexual gratification. The fact that Defendant did not
actually touch the child is of no consequence. See Hicks, 79 N.C.
App. at 603, 339 S.E.2d at 809 (
“no actual touching of a child isnecessary to complete the offense described in G.S. 14-202.1.”).
There is no evidence in the record to suggest any alternative
rationale for Defendant's actions. Thus, a jury could properly
infer that Defendant's actions were for the purpose of arousing or
gratifying sexual desire. Rhodes, 321 N.C.
at 105, 361 S.E.2d at
580.
Accordingly, we conclude the trial court did not err in
denying the motion to dismiss.
Defendant next argues
that the trial court erred by failing to
instruct the jury on voluntary intoxication
.
Defendant contends
there was substantial evidence that he was too intoxicated to form
the necessary specific intent to arouse or gratify sexual desire.
We are not persuaded.
This Court has explained the rule concerning jury instructions
on voluntary intoxication as follows:
Before the trial court will be required to
instruct on voluntary intoxication, defendant
must produce substantial evidence which would
support a conclusion by the trial court that
at the time of the crime for which he is being
tried defendant's mind and reason were so
completely intoxicated and overthrown as to
render him utterly incapable of forming [the
requisite intent to commit the crime.] In the
absence of some evidence of intoxication to
such degree, the court is not required to
charge the jury thereon.
State v. Keitt, 153 N.C. App. 671, 676-77, 571 S.E.2d 35, 39
(2002), aff'd per curium, 357 N.C. 155, 579 S.E.2d 250 (2003)
(citations omitted). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Id. at 677, 571 S.E.2d at 39 (citation omitted).
“When determining whether the evidence is sufficient to entitle adefendant to jury instructions on a defense or mitigating factor,
courts must consider the evidence in the light most favorable to
the defendant.” State v. Mash, 323 N.C. 339, 348, 372 S.E.2d 532,
537 (1988).
Defendant was charged with taking indecent liberties with a
child. “The crime of taking indecent liberties with a minor is a
specific intent crime.” State v. Creech, 128 N.C. App. 592, 598,
495 S.E.2d 752, 756 (1998) (citing
State v. Craven, 312 N.C. 580,
584, 324 S.E.2d 599, 602 (1985)). 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” of
forming 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 an instruction on the defense. Defendant
testified that he drank more than he should have at the bar, and
then drank some more beer while watching the football game.
However, there was no evidence that Defendant was so intoxicated
that he could not form the specific intent to commit the charged
offenses.
According to his own testimony, Defendant remembered
pulling off his boots and going to sleep on the couch, going to the
bathroom and throwing up, being woken up, and being “jumped on.”
Defendant testified that when he awoke, he thought they wereleaving to pick up the child's mother from work. Thus, the
evidence shows that Defendant was able to recall events that
happened immediately before and after the alleged crime. See State
v. Herring, 338 N.C. 271, 276, 449 S.E.2d 183, 186 (1994)
(no
instruction on voluntary intoxication where the defendant was able
to testify regarding the details of the evening of the murder).
Furthermore, Defendant did not testify that he was so intoxicated
that he did not know what he was doing. Therefore, in the light
most favorable to Defendant, the evidence shows that while
Defendant may have been intoxicated, he was not so intoxicated as
to be “utterly incapable” of forming the specific intent to commit
the charged offense. Id.
Accordingly, we find no error.
No error
.
Judges MCGEE and HUNTER concur.
Report per Rule 30(e).
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