Appeal by defendant from judgments entered 15 December 2006 by
Judge W. Douglas Albright in Randolph County Superior Court. Heard
in the Court of Appeals 30 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Tracy C. Curtner, for the State.
Michael J. Reece, for defendant-appellant.
Venancio Resa (defendant) appeals from judgments entered
after a jury found him to be guilty of malicious conduct by a
prisoner pursuant to N.C. Gen. Stat. § 14-258.4, impaired driving
pursuant to N.C. Gen. Stat. § 20-179, and reckless driving to
endanger pursuant to N.C. Gen. Stat. § 20-140(B). We find no
The State's evidence tended to show that in the early morning
of 9 October 2004, Meredith Millikan (Millikan) was driving on
Highway 220 to Asheboro when she observed a truck in front of her
swerve, hit the bridge at the Randleman dam, and wreck. Debris
flew off of the truck and struck Ms. Millikan's vehicle, causingher to stop as well. A truck driver stopped to assist and a 911
call was made.
Randleman Fire Department Captain Darryl Foreman responded and
was the first to arrive at the scene. He found defendant in the
backseat of his vehicle, slightly slumped over. Next to arrive was
Randleman Fire Department Assistant Chief Brian Causey (Chief
Causey) who found defendant to be more aroused, very belligerent,
cursing, and threatening. Due to defendant's behavior, Chief
Causey called law enforcement to respond immediately to the scene
Emergency Medical Services supervisor Ronald Thompson found
defendant to be uncooperative and threatening in response to his
attempts to assist him. Mr. Thompson testified that, at one point,
he observed defendant climb over from the back seat to the front
seat, attempt to start the vehicle, and try to leave. He further
testified that defendant appeared to be under the influence of
Members of the Randleman Police Department and Randolph County
Sheriff's Department arrived and found defendant to be in the same
combative state. Randleman Police Officer Jonathan Leonard
(Officer Leonard) testified that he first saw defendant sitting
in the front seat of the vehicle with his hands gripped firmly on
the steering wheel. Defendant would not release the steering wheel
when the attending personnel attempted to remove him from the
vehicle. Eventually, Randolph County Sheriff's Deputy Hunt
threatened defendant with a taser stun gun and ordered defendant toexit his vehicle. After defendant exited his vehicle, he was
handcuffed and placed in Officer Leonard's patrol car until State
Highway Patrol Trooper Brown (Trooper Brown) arrived to take
charge of the scene and the investigation. When Trooper Brown
arrived, defendant was placed inside his patrol car.
Once inside Trooper Brown's patrol car, Trooper Brown left
defendant in the front seat and returned to talk with some of the
other officers and emergency personnel to determine what had
happened. While Trooper Brown was conducting his investigation,
Officer Leonard observed defendant spit directly onto the passenger
side glass of Trooper Brown's patrol car. Officer Leonard told
Trooper Brown, who went back to his patrol car, opened the door,
and told defendant not to spit in his car anymore. Trooper Brown
then closed the door and resumed his investigation.
Defendant then spit a second time onto the passenger side
glass. Trooper Brown returned to the car, again opened the door,
and again told Defendant not to spit in his car. Defendant then
just reared back and hocked and spit at me. Defendant's spit did
not hit Trooper Brown because he jumped out of the way. Trooper
Brown pushed defendant's face into the back seat, which caused
defendant to have a burst and bleeding lip. Trooper Brown
retrieved a biohazard mask from the back of his patrol car and
placed it onto defendant's face in order to keep him from spitting.
Defendant was transported to jail.
Defendant consented to taking an Intoxilyzer test which
yielded a blood alcohol level of .17. Trooper Brown testifiedthat, in his opinion and based on his observations, defendant was
impaired due to alcohol. In order to perform the Intoxilyzer, the
biohazard mask was removed. Following the chemical analysis and
while Trooper Brown was completing his paperwork, defendant resumed
spitting on the floor. Trooper Brown told him not to spit, and
defendant replied, F_-k you. I'll spit if I want to. You can't
tell me not to spit.
While being presented by Trooper Brown to the magistrate for
completion of the booking and bail process, defendant claimed he
had not been in a wreck, that Trooper Brown had simply pulled his
vehicle over, and Trooper Brown was lying. Defendant then became
so belligerent and non-cooperative that the magistrate ordered
defendant to be placed into a holding cell in order to finish the
Defendant did not present any evidence and moved to dismiss at
the close of the evidence. The trial court denied his motion.
A jury found defendant to be guilty of impaired driving,
malicious conduct by a prisoner, and reckless driving. The trial
court imposed consecutive prison sentences of twelve months and
eighteen to twenty-two months for impaired driving and malicious
conduct by a prisoner. The court suspended an additional
consecutive sentence of sixty days imprisonment for reckless
driving and placed defendant on supervised probation for sixty
months. Defendant appeals.
Defendant's sole argument on appeal is the trial court erred
in refusing to instruct the jury on voluntary intoxication in
connection with the charge of malicious conduct by a prisoner.
III. Voluntary Intoxication
Defendant contends the trial court erred in refusing to
instruct the jury on voluntary intoxication as a defense to the
charge of malicious conduct by a prisoner. We disagree.
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). [I]ntoxication does not negate a general
intent and provides no defense to a general intent crime. State
, 339 N.C. 114, 148, 451 S.E.2d 826, 844 (1994), cert.
, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995); see also State v.
, 43 N.C. App. 541, 544, 259 S.E.2d 356, 358 (1979)
(Intoxication is not a defense unless the crime charged requires
a specific intent[.]).
Because malicious conduct by a prisoner is a general intent
crime defendant had no right to the requested instruction. State
, 161 N.C. App. 288, 293, 587 S.E.2d 902, 905 (2003);
, at 148, 451 S.E.2d at 844. This assignment of error is
The trial court did not err in denying defendant's request for
the instruction of voluntary intoxication. Defendant had a fairtrial free from prejudicial errors he preserved, assigned, and
argued. We find no error.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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