STATE OF NORTH CAROLINA
v. Guilford County
No. 05 CRS 74570
RONNIE MCNEIL
Attorney General Roy Cooper, by Special Deputy Attorney
General Mark A. Davis, for the State.
Jarvis John Edgerton, IV, for defendant appellant.
McCULLOUGH, Judge.
Defendant was found guilty of robbery with a dangerous weapon
and received an active prison sentence of 103 to 133 months. On
appeal, he challenges the trial court's refusal to instruct the
jury on voluntary intoxication as a potential defense to the
charge. We find no error.
The State adduced evidence tending to show that defendant
assaulted Nikita Williamson and stole her purse at approximately
1:00 a.m. on 8 April 2005, on the campus of North Carolina A & T
University (NCA&T) in Greensboro. At the time of the robbery,
Williamson was walking from Aggie Suites to her residence in Barbee
Hall. As she reached the outside of her residence hall, defendant
ran up to her with a brick in his right hand. He threw the brickat Williamson, striking her on the arm and side, and grabbed her
purse. After struggling with defendant, she surrendered her purse
to him when she saw a silver-colored object in his left hand. As
defendant ran away, Williamson screamed for help. Campus police
responded to the scene and drove Williamson around campus to look
for the robber. Notified that a suspect was taken into custody,
police took Williamson to the location of the arrest. She found
her purse “laying in the mud” with her personal effects scattered
beside it. At the campus police station, she identified a muddy
defendant as her assailant. Williamson testified at defendant's
trial and identified him to the jury as the man who hit her with
the brick and stole her purse on 8 April 2005.
Lieutenant Jamu Kimyakki Sanders of the NCA&T Police
Department was in his patrol car in a parking lot on Luther Street
on the early morning of 8 April 2005. He “heard a loud screaming
noise” and saw defendant running from the direction of the noise
“at a high rate of speed.” Hearing another scream, Sanders
proceeded to the intersection of Luther and Bluford Streets, where
Williamson told him that “she had just been robbed and assaulted
with a brick.” Sanders notified his fellow officers of the
suspect's path of flight and proceeded in that direction toward the
intersection of Bluford and Daniel Streets. When he arrived,
defendant was in custody. Defendant's “clothes were real warm” and
he was “sweating profusely[.]” Based on his conversation with
Williamson, Sanders asked defendant if he had a knife. Defendant
told Sanders “that he dropped the knife while he was running andthat he had just hit[] her with a brick.” Defendant gave Sanders
his name and address and complained of pain in his back and ankle.
When asked why he was in the area, defendant replied that “he
needed to get some money.” Sanders detected a “strong odor of
alcohol” on defendant's person and saw defendant vomit next to an
ambulance. However, defendant “was coherent[,]” and his “[s]peech
was never really slurred.”
Officer Garfield Whitaker observed defendant running from the
direction of the robbery toward a construction site across from
Benbow Road. When defendant reached the deep mud of the
construction area, he slipped and fell twice. Whitaker took him
into custody as he reached the wood line. Defendant, who emitted
a “pretty strong odor of alcohol“ and “was intoxicated,” told
Whitaker that he had injured his right ankle. He also said that he
was tired and felt as though he was going to vomit. Whitaker
called for an ambulance. Defendant “spoke clearly and coherently”
to Whitaker and did not appear to be “extremely intoxicated” or
“drunk[.]” It appeared to Whitaker that defendant “had a beer or
so” and was “sweating profusely” because he had been running.
Officer J.M. White rode in the ambulance with defendant to
Moses Cone Hospital. Defendant smelled of alcohol but “was
coherent. His speech was not slurred.” Defendant cooperated with
EMS workers, spoke clearly and concisely, and “was able to hold a
conversation.” At the hospital, defendant was visited by his wife
and sister. After asking White “what charges he was facing[,]”
defendant said to his sister, “All I wanted was the money.” Defendant then told White that he drank two beers and purchased a
bottle of whiskey at a store on East Market Street just prior to
the robbery. He walked to a white house on NCA&T's campus and sat
on the porch. Defendant saw a female walking by herself and
“thought 'easy money.'” When he approached her and tried to take
her purse she screamed. Seeing Sanders' patrol car, defendant
threw a brick at the female and ran.
Detective Marty Tillery interviewed defendant at 4:30 a.m. at
the University's police department. Defendant admitted robbing
Williamson with a “rock[,]” and told Tillery, “I knew I was wrong.
. . . I was just sitting on the porch, and the shit just came out.
I didn't mean to hurt anybody.” Defendant said that he had consumed
thirty-two ounces of beer and two gulps of whiskey earlier in the
evening. A videotape of his interview was played for the jury.
Defendant testified that he spent the evening of 7 April 2005
at a party at his sister's house on Abington Drive. He did not
drink any beer but drank “a good fair amount of” whiskey over a
three- or four-hour period. As the party wound down, defendant
walked outside, “realized how drunk [he] really was[,]” and decided
“to walk home to [his] wife's house.” On his way home, he stopped
at a friend's apartment on Bluford Street. He knocked at his
friend's door but received no answer. As he left the porch of the
apartment building, defendant heard someone yell, “There he go.
There he go[,]” and saw four people running toward him. He turned
to run away from the group and collided with Williamson, who was
walking in the street. Defendant did not take Williamson'spocketbook but pushed her out of his path, accidentally knocking
her to the ground. Defendant continued to flee the oncoming group
until he fell down in a muddy field and was taken into custody by
campus police. While waiting to go to the hospital, defendant
threw up beside the ambulance. He did not make any incriminating
statements at the scene, in the ambulance, or at the hospital. He
told his sister at the hospital only that the police were
threatening to lock him up because Williamson had accused him of
taking her purse. After he was transported to the campus police
station to be interviewed, defendant falsely confessed to the
robbery so that the detective would “take [him] back downtown,”
where his wife and sister were waiting for him.
Defendant's sister, Barbara Russell, testified that defendant
drank approximately a pint of whiskey before leaving her house at
9:00 p.m. on 7 April 2005. A man telephoned her after midnight and
said, “Your brother is at the hospital.” Russell called
defendant's wife, Keisha McNeil (Keisha), who confirmed that he was
not at home. Russell drove Keisha to the hospital and found
defendant handcuffed to a bed. Russell began cursing the police
and was ordered out of defendant's room by White. Defendant did
not tell Russell what had happened after he left her house.
Keisha testified that she found defendant “in a rage” and
“drunk” when she arrived at the hospital. Defendant told her that
the police were “trying to make [him] say something that [he]
didn't do[,]” but did not otherwise describe what had happened. In his sole argument on appeal, defendant claims that the
trial court erred in denying his request for a jury instruction on
voluntary intoxication. He avers that the evidence before the
court supported a finding that he was so drunk on the morning of 8
April 2005 as to have been incapable of forming the specific intent
to rob Williamson.
“Although voluntary intoxication is no excuse for crime, where
a specific intent is an essential element of the offense charged,
the fact of intoxication may negate the existence of that intent.”
State v. Bunn, 283 N.C. 444, 458, 196 S.E.2d 777, 786 (1973)
(citation omitted). In order to be entitled to a jury instruction
on involuntary intoxication, however, a "defendant must produce
substantial evidence that, at the time of the crime for which he is
being tried, [he] was intoxicated to the point that his mind and
reason were overthrown, and that he was thus utterly incapable of
forming the requisite intent to commit the crime.” State v. Torres,
171 N.C. App. 419, 422, 615 S.E.2d 36, 38 (2005). Evidence of mere
intoxication is insufficient to justify the instruction. Id.
Moreover, “the defense of voluntary intoxication depends not on the
amount of alcohol consumed, but on its effect on the defendant's
ability to form the specific intent” required for the charged
offense. State v. Cagle, 346 N.C. 497, 508, 488 S.E.2d 535, 543,
cert. denied, 522 U.S. 1032, 139 L. Ed. 2d 614 (1997); accord State
v. Williams, 343 N.C. 345, 365, 471 S.E.2d 379, 390 (1996) (“[T]he
focus of the inquiry is not the fact of intoxication, but its
effect.”), cert. denied, 519 U.S. 1061, 136 L. Ed. 2d 618 (1997). Robbery with a dangerous weapon is a specific intent crime,
requiring proof that the defendant intended to permanently deprive
the owner of the property. See State v. Bond, 345 N.C. 1, 23, 478
S.E.2d 163, 174 (1996), cert. denied, 521 U.S. 1124, 138 L. Ed. 2d
1022 (1997); State v. Jerrett, 309 N.C. 239, 264, 307 S.E.2d 339,
352 (1983). Although the defense of voluntary intoxication is thus
applicable to this offense, we agree with the trial court that
defendant failed to adduce substantial evidence that his
intoxication left him utterly incapable of intending to permanently
deprive Williamson of her purse. The defense witnesses testified
that defendant was “drunk” on the morning of 8 April 2005, and that
he consumed as much as a pint of whiskey over a period of hours
before leaving Russell's house at 9:00 p.m. on 7 April 2005.
However, neither the quantity of alcohol defendant drank nor the
general descriptor “drunk” was sufficient to require a jury
instruction on voluntary intoxication. See Cagle, 346 N.C. at 508,
488 S.E.2d at 543; Williams, 343 N.C. at 365, 471 S.E.2d at 390.
In his own testimony, defendant did not purport to have acted
unintentionally in assaulting Williamson and taking her purse; nor
did he claim to lack an accurate memory of the incident. He denied
committing the acts she attributed to him and instead claimed that
he merely collided with her while attempting to run from a group of
people. While conceding that he accidentally knocked Williamson
down, defendant insisted that he took nothing from her and never
possessed a brick. He also denied making the statements attributed
to him by Officers Sanders, Whitaker, and White. Finally,defendant explained that he consciously chose to give a false
confession to Tillery in order to avoid a protracted interrogation.
The State's witnesses likewise provided no support for the
requested instruction, describing defendant as both fully coherent
and clear about his intentions in assailing Williamson. Defendant
told Sanders that he had entered NCA&T's campus because “he needed
to get some money[,]” and told White at the hospital that he saw an
opportunity to obtain “easy money” when he spied Williamson walking
by herself. After his release from the hospital, defendant gave a
taped confession to the robbery at the campus police station. His
statements immediately after the offense were inconsistent with a
claim that he was unable to form an intention to rob Williamson.
See Torres, 171 N.C. App. at 422-23, 615 S.E.2d at 38; State v.
Cheek, 351 N.C. 48, 74-75, 520 S.E.2d 545, 560-61 (1999), cert.
denied, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000).
The record on appeal includes additional assignments of error
which are not addressed in defendant's brief to this Court.
Pursuant to N.C. R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
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