An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1269 NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Transylvania County Nos. 11CRS050972, JUSTIN DULUS CASE, 11CRS050979-80, Defendant. 11CRS052101, 12CRS052184, 12CRS050115
Appeal by defendant from Judgments entered on or about 30
May 2013 by Judge Alan Z. Thornburg in Superior Court,
Transylvania County. Heard in the Court of Appeals 7 May 2014.
Attorney General Roy A. Cooper III, by Assistant Attorney General Sherri Horner Lawrence, for the State.
Michael E. Casterline, for defendant-appellant.
STROUD, Judge.
Justin Case (“defendant”) appeals from judgments entered
after a Transylvania County jury found him guilty of indecent
liberties with a child. We find no error.
I. Background
On 11 February 2013, defendant was indicted in Transylvania
County for taking indecent liberties with a child. Defendant -2- pled not guilty and proceeded to jury trial on 29 May 2013. At
trial the evidence tended to show the following:
On 21 October 2012, Kara and Sam were living together along
with Kara’s two children—Jada, age 3, and Robby, age 1.1
Defendant is Sam’s uncle and had previously dated Kara’s sister.
At the time, defendant was 22 years old. Kara and Sam invited
defendant over to their house for a cookout. Defendant brought
a six-pack of beer with him. Kara and Sam only saw him drink one
or two of the beers.2 Sam and defendant also smoked one “joint”
of marijuana that evening.
After dinner, which defendant did not eat, Kara, Sam,
defendant, and the children sat down to watch cartoons. Kara
and Sam were resting in a recliner, while Jada was on a covered
pallet on the floor. Kara, Sam, and the children fell asleep
while watching TV. Kara had offered defendant their extra
bedroom to sleep in, but by the time they fell asleep, defendant
was still awake. He did not sleep in the spare bedroom.
Around 1 or 2 a.m., Kara woke up and saw defendant sitting
on the couch. He was leaning over and rubbing Jada—who was still
1 We will refer to all four individuals by pseudonyms to protect their privacy. 2 At trial, both Kara and Sam testified that defendant had consumed two beers at most, but Sam had previously told an investigating officer that defendant may have consumed a six- pack. -3- asleep—on her “private areas.” Kara started screaming, which
woke up Sam. Sam did not see defendant touching Jada, but he did
see defendant pull his hand away from her. Kara immediately
woke the children and took them into another room. Defendant
repeatedly said, “I’m sorry, I’m sorry.” When Sam asked him
what he was doing, defendant responded, “[I]t was versity. It’s
versity. I’m sorry. I’m sorry.” Sam did not know what defendant
meant by “versity.” Sam led defendant out of the house, then
pushed him off the front porch. Sam threw the four beers that
remained of defendant’s six-pack at defendant. Defendant left
the scene on foot shortly before police arrived.
Defendant decided not to present any evidence in his own
defense. He submitted a written request that the trial court
include an instruction on voluntary intoxication and submitted a
proposed instruction that largely tracked the language of the
pattern jury instruction. The trial court refused to give the
instruction.
The jury found defendant guilty of indecent liberties with
a child. At the time of the conviction, defendant was on
probation for a number of prior offenses. The trial court
revoked his probation and activated his sentences in those other
cases. The various convictions were consolidated into three -4- judgments—two for the prior offenses and one for the indecent
liberties conviction. The court sentenced defendant to 25-39
months imprisonment for the first judgment, a consecutive
sentence of 16-29 months imprisonment for the second judgment,
and a split sentence for the indecent liberties conviction
consisting of 21-35 months imprisonment, suspended for 30 months
of supervised probation, with 8 months active imprisonment.
Defendant gave notice of appeal in open court.
II. Voluntary Intoxication
Defendant argues that the trial court erred in refusing to
instruct the jury on the defense of voluntary intoxication. We
disagree.
Defendant specifically requested an instruction on
voluntary intoxication in writing and at the charge conference,
but the trial court refused to give the requested instruction.
“Properly preserved challenges to the trial court’s decisions
regarding jury instructions are reviewed de novo[] by this
Court.” State v. King, ___ N.C. App. ___, ___, 742 S.E.2d 315,
319 (2013) (citation and quotation marks omitted). “A trial
court must give a requested instruction if it is a correct
statement of the law and is supported by the evidence.” State v.
Riley, 154 N.C. App. 692, 697, 572 S.E.2d 857, 860 (2002) -5- (citation and quotation marks omitted). It is undisputed that
the proposed instruction was a correct statement of law. The
only question is whether an instruction on voluntary
intoxication was warranted by the evidence.
The crime of taking indecent liberties with a minor is a specific intent crime. A specific intent crime requires the State to prove that defendant acted willfully or with purpose in committing the offense. . . . Where a crime requires a showing of specific intent, voluntary intoxication may be a defense to the criminal charge.
State v. Merrell, 212 N.C. App. 502, 505-06, 713 S.E.2d 77, 79-
80 (2011) (citations and quotation marks omitted).
It is well established that an instruction on voluntary intoxication is not required in every case in which a defendant claims that he [committed a specific intent crime] after consuming intoxicating beverages or controlled substances. Evidence of mere intoxication is not enough to meet defendant’s burden of production. 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 [specific intent]. In absence of some evidence of intoxication to such degree, the court is not required to charge the jury thereon. -6- State v. Kornegay, 149 N.C. App. 390, 395, 562 S.E.2d 541, 545
(citations and quotation marks omitted), app. dismissed and
disc. rev. denied, 355 N.C. 497, 564 S.E.2d 51 (2002).
Here, there was not sufficient evidence to warrant an
instruction on voluntary intoxication. Defendant only points to
two pieces of evidence in support of his argument: (1) his use
of a nonsense word, “versity,” when confronted by Sam, and (2)
the fact that Sam was able to throw him off the porch. These
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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. COA13-1269 NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Transylvania County Nos. 11CRS050972, JUSTIN DULUS CASE, 11CRS050979-80, Defendant. 11CRS052101, 12CRS052184, 12CRS050115
Appeal by defendant from Judgments entered on or about 30
May 2013 by Judge Alan Z. Thornburg in Superior Court,
Transylvania County. Heard in the Court of Appeals 7 May 2014.
Attorney General Roy A. Cooper III, by Assistant Attorney General Sherri Horner Lawrence, for the State.
Michael E. Casterline, for defendant-appellant.
STROUD, Judge.
Justin Case (“defendant”) appeals from judgments entered
after a Transylvania County jury found him guilty of indecent
liberties with a child. We find no error.
I. Background
On 11 February 2013, defendant was indicted in Transylvania
County for taking indecent liberties with a child. Defendant -2- pled not guilty and proceeded to jury trial on 29 May 2013. At
trial the evidence tended to show the following:
On 21 October 2012, Kara and Sam were living together along
with Kara’s two children—Jada, age 3, and Robby, age 1.1
Defendant is Sam’s uncle and had previously dated Kara’s sister.
At the time, defendant was 22 years old. Kara and Sam invited
defendant over to their house for a cookout. Defendant brought
a six-pack of beer with him. Kara and Sam only saw him drink one
or two of the beers.2 Sam and defendant also smoked one “joint”
of marijuana that evening.
After dinner, which defendant did not eat, Kara, Sam,
defendant, and the children sat down to watch cartoons. Kara
and Sam were resting in a recliner, while Jada was on a covered
pallet on the floor. Kara, Sam, and the children fell asleep
while watching TV. Kara had offered defendant their extra
bedroom to sleep in, but by the time they fell asleep, defendant
was still awake. He did not sleep in the spare bedroom.
Around 1 or 2 a.m., Kara woke up and saw defendant sitting
on the couch. He was leaning over and rubbing Jada—who was still
1 We will refer to all four individuals by pseudonyms to protect their privacy. 2 At trial, both Kara and Sam testified that defendant had consumed two beers at most, but Sam had previously told an investigating officer that defendant may have consumed a six- pack. -3- asleep—on her “private areas.” Kara started screaming, which
woke up Sam. Sam did not see defendant touching Jada, but he did
see defendant pull his hand away from her. Kara immediately
woke the children and took them into another room. Defendant
repeatedly said, “I’m sorry, I’m sorry.” When Sam asked him
what he was doing, defendant responded, “[I]t was versity. It’s
versity. I’m sorry. I’m sorry.” Sam did not know what defendant
meant by “versity.” Sam led defendant out of the house, then
pushed him off the front porch. Sam threw the four beers that
remained of defendant’s six-pack at defendant. Defendant left
the scene on foot shortly before police arrived.
Defendant decided not to present any evidence in his own
defense. He submitted a written request that the trial court
include an instruction on voluntary intoxication and submitted a
proposed instruction that largely tracked the language of the
pattern jury instruction. The trial court refused to give the
instruction.
The jury found defendant guilty of indecent liberties with
a child. At the time of the conviction, defendant was on
probation for a number of prior offenses. The trial court
revoked his probation and activated his sentences in those other
cases. The various convictions were consolidated into three -4- judgments—two for the prior offenses and one for the indecent
liberties conviction. The court sentenced defendant to 25-39
months imprisonment for the first judgment, a consecutive
sentence of 16-29 months imprisonment for the second judgment,
and a split sentence for the indecent liberties conviction
consisting of 21-35 months imprisonment, suspended for 30 months
of supervised probation, with 8 months active imprisonment.
Defendant gave notice of appeal in open court.
II. Voluntary Intoxication
Defendant argues that the trial court erred in refusing to
instruct the jury on the defense of voluntary intoxication. We
disagree.
Defendant specifically requested an instruction on
voluntary intoxication in writing and at the charge conference,
but the trial court refused to give the requested instruction.
“Properly preserved challenges to the trial court’s decisions
regarding jury instructions are reviewed de novo[] by this
Court.” State v. King, ___ N.C. App. ___, ___, 742 S.E.2d 315,
319 (2013) (citation and quotation marks omitted). “A trial
court must give a requested instruction if it is a correct
statement of the law and is supported by the evidence.” State v.
Riley, 154 N.C. App. 692, 697, 572 S.E.2d 857, 860 (2002) -5- (citation and quotation marks omitted). It is undisputed that
the proposed instruction was a correct statement of law. The
only question is whether an instruction on voluntary
intoxication was warranted by the evidence.
The crime of taking indecent liberties with a minor is a specific intent crime. A specific intent crime requires the State to prove that defendant acted willfully or with purpose in committing the offense. . . . Where a crime requires a showing of specific intent, voluntary intoxication may be a defense to the criminal charge.
State v. Merrell, 212 N.C. App. 502, 505-06, 713 S.E.2d 77, 79-
80 (2011) (citations and quotation marks omitted).
It is well established that an instruction on voluntary intoxication is not required in every case in which a defendant claims that he [committed a specific intent crime] after consuming intoxicating beverages or controlled substances. Evidence of mere intoxication is not enough to meet defendant’s burden of production. 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 [specific intent]. In absence of some evidence of intoxication to such degree, the court is not required to charge the jury thereon. -6- State v. Kornegay, 149 N.C. App. 390, 395, 562 S.E.2d 541, 545
(citations and quotation marks omitted), app. dismissed and
disc. rev. denied, 355 N.C. 497, 564 S.E.2d 51 (2002).
Here, there was not sufficient evidence to warrant an
instruction on voluntary intoxication. Defendant only points to
two pieces of evidence in support of his argument: (1) his use
of a nonsense word, “versity,” when confronted by Sam, and (2)
the fact that Sam was able to throw him off the porch. These
facts do not come close to showing that defendant was so
intoxicated that “defendant’s mind and reason were so completely
. . . overthrown as to render him utterly incapable of forming
[specific intent].” Id. Although one of the investigating
deputies had noted that Sam said that defendant may have
consumed a six-pack of beer, Kara and Sam testified that
defendant had consumed two beers and smoked one joint of
marijuana in the hours preceding his touching of Jada. Both
Kara and Sam testified that defendant did not seem impaired. Sam
had shared the joint with defendant and testified that he did
not feel impaired by it.
In State v. Baldwin, the Supreme Court held that the
evidence was insufficient to warrant an instruction on voluntary
intoxication. 330 N.C. 446, 463, 412 S.E.2d 31, 41 (1992). The -7- Court concluded that “the evidence presented in this case—that
defendant drank ‘about five or six’ beers and consumed an
indeterminate amount of marijuana and cocaine at some time
earlier in the day—was insufficient to show that defendant was
so intoxicated that he was incapable of forming the intent
necessary to commit first-degree premeditated and deliberated
murder.” Id.
Similarly, here, there was evidence that defendant had
consumed some beer—at most, six beers—some hours prior to the
criminal act and shared one joint. Defendant never testified
about the effect of the beer and marijuana on his mental state.
Cf. State v. Surrett, 217 N.C. App. 89, 97, 719 S.E.2d 120, 126
(2011) (finding no error in a trial court’s refusal to give a
voluntary intoxication instruction where there was no evidence
concerning how the intoxicating substance affected the
defendant’s mental state). The two witnesses who did testify
about the apparent effects of the substances stated that
defendant did not appear intoxicated. Evidence that defendant
uttered a single nonsense word and was thrown from the porch,
even taken in the light most favorable to defendant, does not
show that defendant was so intoxicated that he could not form
specific intent when he was rubbing Jada. -8- We conclude that the evidence here was insufficient to
warrant an instruction on voluntary intoxication. Therefore, we
hold that the trial court did not err in refusing to give
defendant’s requested instruction.
III. Conclusion
For the foregoing reasons, we conclude that the trial court
did not err in refusing to instruct the jury on voluntary
intoxication.
NO ERROR.
Judges STEPHENS and MCCULLOUGH concur.
Report per Rule 30(e).