An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1310


Filed: 18 April 2006


         v.                        Edgecombe County
                                No. 03 CRS 53543

    Appeal by Defendant from judgment entered 28 March 2005 by Judge W. Russell Duke, Jr. in Superior Court, Edgecombe County . Heard in the Court of Appeals

    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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