An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-1469 NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Union County Nos. 10 CRS 53476-77
TYRONE DEVON SLOAN
Appeal by defendant from judgment entered 3 July 2013 by
Judge W. Erwin Spainhour in Union County Superior Court. Heard
in the Court of Appeals 19 May 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Ryan F. Haigh, for the State.
Tin Fulton Walker & Owen, PLLC, by Noell P. Tin, for defendant-appellant.
STEELMAN, Judge.
Where defendant cannot demonstrate based upon the evidence
at trial, that he would have been entitled to a jury instruction
based upon voluntary intoxication, he cannot show the prejudice
necessary to support his argument of ineffective assistance of
counsel. The trial court did not err in denying defendant’s -2- motion to dismiss the charges of first-degree kidnapping and
felony conspiracy.
I. Factual and Procedural Background
On 20 June 2010, Jonathan Fincher (Fincher) and Tyrone
Sloan (Defendant) had an altercation after a night of drinking
which resulted in Fincher striking Sloan on the head several
times with a level. These cases arise out of an incident five
days later, on 25 June 2010, at the residence of defendant’s
sister.
Defendant met with Steven Barbour (Barbour), Michael Ivey
(Ivey), and Johan Sloan (Sloan). They discussed how to lure
Fincher to the residence of defendant’s sister. Barbour was to
pick up Fincher and drive him there. Ivey and Sloan were
responsible for making sure Fincher did not have a weapon.
Defendant would then assault Fincher with a baseball bat.
Barbour brought Fincher to the residence. Defendant struck
Fincher with the baseball bat, bringing him to the ground. Sloan
checked Fincher for weapons, and then ran away. Ivey held
Fincher while defendant beat him with a baseball bat. Fincher
was unable to escape because Ivey was blocking the gate leading
from the yard and was holding him. When defendant inadvertently
struck Ivey with the bat, Ivey left. Defendant continued to -3- pummel Fincher with the bat, and then attacked and cut him with
a box cutter. Eventually, defendant also left.
Fincher suffered a broken collarbone, lost five units of
blood, and required multiple stitches and staples about his head
and back. He almost died in the hospital during surgery.
Defendant was indicted for attempted first-degree murder,
first-degree kidnapping, robbery with a dangerous weapon, felony
conspiracy, and assault with a deadly weapon with the intent to
kill, inflicting serious injury. The jury found defendant not
guilty of robbery with a dangerous weapon, but guilty of
attempted first-degree murder, first-degree kidnapping, felony
conspiracy, and assault with a deadly weapon with intent to
kill, inflicting serious injury. The trial court consolidated
the four charges for judgment, and imposed an active sentence of
144-182 months.
Defendant appeals.
II. Ineffective Assistance of Counsel
In his first argument, defendant contends that his trial
counsel was ineffective in failing to request a jury instruction
on diminished capacity based on voluntary intoxication. We
disagree.
A. Standard of Review -4- To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel’s performance was deficient and then that counsel’s deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel’s representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286
(citations and quotation marks omitted), cert. denied, 549 U.S.
867, 166 L. Ed. 2d 116 (2006).
B. Analysis
Whether defense counsel was ineffective is analyzed under a
two-part test. Strickland v. Washington, 466 U.S. 668, 687, 80
L.Ed.2d 674, 693 (1984). Defendant must first show that
counsel’s performance was deficient. Id. Second, the defendant
must show that the deficient performance prejudiced his defense.
Id. In order to establish prejudice, the defendant must show
that there was a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.
466 U.S. at 694, 80 L.Ed.2d at 698. -5- In order to have been entitled to a jury instruction on
diminished capacity based upon voluntary intoxication there must
be evidence that at the time of the crime, “the defendant’s mind
and reason were so completely intoxicated and overthrown” that
he could not form the specific intent required of the relevant
offense. State v. Gerald, 304 N.C. 511, 521, 284 S.E.2d 312,
318–19 (1981).
While the trial court must consider all evidence in the
light most favorable to the defendant, “a person may be excited,
intoxicated and emotionally upset, and still have the capability
to formulate the necessary plan, design, or intention.” State v.
Mash, 323 N.C. 339, 347, 372 S.E.2d 532, 537 (1988) (quoting
State v. Hamby, 276 N.C. 674, 678, 174 S.E.2d 385, 387 (1970)).
Our appellate courts have held on numerous occasions that
despite the ingestion of a large amount of alcohol or drugs by
the defendant, a jury instruction on voluntary intoxication was
not warranted. See State v. Cheek, 351 N.C. 48, 74–76, 520
S.E.2d 545, 560–61 (1999) (holding that defendant was not
entitled to voluntary intoxication instruction when he had taken
two hits of acid prior to the murder but was able to recall
events both before and after the murder); State v. Herring, 338
N.C. 271, 274-76, 449 S.E.2d 183, 185-87 (1994) (holding that -6- defendant was not entitled to voluntary intoxication instruction
when he consumed forty to sixty ounces of fortified wine, forty-
eight ounces of malt liquor beers, and smoked three marijuana
joints and testified he was intoxicated at the time of the
shooting but was able to recall the event); State v. Long, 354
N.C. 534, 538-39, 557 S.E.2d 89, 92 (2001) (holding that
defendant was not entitled to a voluntary intoxication
instruction because actions taken after the murder to clean up
and hide evidence demonstrate that the defendant could plan and
think rationally).
The North Carolina Supreme Court has held that “[e]vidence
tending to show only that defendant drank some unknown quantity
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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. COA13-1469 NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
STATE OF NORTH CAROLINA
v. Union County Nos. 10 CRS 53476-77
TYRONE DEVON SLOAN
Appeal by defendant from judgment entered 3 July 2013 by
Judge W. Erwin Spainhour in Union County Superior Court. Heard
in the Court of Appeals 19 May 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Ryan F. Haigh, for the State.
Tin Fulton Walker & Owen, PLLC, by Noell P. Tin, for defendant-appellant.
STEELMAN, Judge.
Where defendant cannot demonstrate based upon the evidence
at trial, that he would have been entitled to a jury instruction
based upon voluntary intoxication, he cannot show the prejudice
necessary to support his argument of ineffective assistance of
counsel. The trial court did not err in denying defendant’s -2- motion to dismiss the charges of first-degree kidnapping and
felony conspiracy.
I. Factual and Procedural Background
On 20 June 2010, Jonathan Fincher (Fincher) and Tyrone
Sloan (Defendant) had an altercation after a night of drinking
which resulted in Fincher striking Sloan on the head several
times with a level. These cases arise out of an incident five
days later, on 25 June 2010, at the residence of defendant’s
sister.
Defendant met with Steven Barbour (Barbour), Michael Ivey
(Ivey), and Johan Sloan (Sloan). They discussed how to lure
Fincher to the residence of defendant’s sister. Barbour was to
pick up Fincher and drive him there. Ivey and Sloan were
responsible for making sure Fincher did not have a weapon.
Defendant would then assault Fincher with a baseball bat.
Barbour brought Fincher to the residence. Defendant struck
Fincher with the baseball bat, bringing him to the ground. Sloan
checked Fincher for weapons, and then ran away. Ivey held
Fincher while defendant beat him with a baseball bat. Fincher
was unable to escape because Ivey was blocking the gate leading
from the yard and was holding him. When defendant inadvertently
struck Ivey with the bat, Ivey left. Defendant continued to -3- pummel Fincher with the bat, and then attacked and cut him with
a box cutter. Eventually, defendant also left.
Fincher suffered a broken collarbone, lost five units of
blood, and required multiple stitches and staples about his head
and back. He almost died in the hospital during surgery.
Defendant was indicted for attempted first-degree murder,
first-degree kidnapping, robbery with a dangerous weapon, felony
conspiracy, and assault with a deadly weapon with the intent to
kill, inflicting serious injury. The jury found defendant not
guilty of robbery with a dangerous weapon, but guilty of
attempted first-degree murder, first-degree kidnapping, felony
conspiracy, and assault with a deadly weapon with intent to
kill, inflicting serious injury. The trial court consolidated
the four charges for judgment, and imposed an active sentence of
144-182 months.
Defendant appeals.
II. Ineffective Assistance of Counsel
In his first argument, defendant contends that his trial
counsel was ineffective in failing to request a jury instruction
on diminished capacity based on voluntary intoxication. We
disagree.
A. Standard of Review -4- To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel’s performance was deficient and then that counsel’s deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel’s representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286
(citations and quotation marks omitted), cert. denied, 549 U.S.
867, 166 L. Ed. 2d 116 (2006).
B. Analysis
Whether defense counsel was ineffective is analyzed under a
two-part test. Strickland v. Washington, 466 U.S. 668, 687, 80
L.Ed.2d 674, 693 (1984). Defendant must first show that
counsel’s performance was deficient. Id. Second, the defendant
must show that the deficient performance prejudiced his defense.
Id. In order to establish prejudice, the defendant must show
that there was a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.
466 U.S. at 694, 80 L.Ed.2d at 698. -5- In order to have been entitled to a jury instruction on
diminished capacity based upon voluntary intoxication there must
be evidence that at the time of the crime, “the defendant’s mind
and reason were so completely intoxicated and overthrown” that
he could not form the specific intent required of the relevant
offense. State v. Gerald, 304 N.C. 511, 521, 284 S.E.2d 312,
318–19 (1981).
While the trial court must consider all evidence in the
light most favorable to the defendant, “a person may be excited,
intoxicated and emotionally upset, and still have the capability
to formulate the necessary plan, design, or intention.” State v.
Mash, 323 N.C. 339, 347, 372 S.E.2d 532, 537 (1988) (quoting
State v. Hamby, 276 N.C. 674, 678, 174 S.E.2d 385, 387 (1970)).
Our appellate courts have held on numerous occasions that
despite the ingestion of a large amount of alcohol or drugs by
the defendant, a jury instruction on voluntary intoxication was
not warranted. See State v. Cheek, 351 N.C. 48, 74–76, 520
S.E.2d 545, 560–61 (1999) (holding that defendant was not
entitled to voluntary intoxication instruction when he had taken
two hits of acid prior to the murder but was able to recall
events both before and after the murder); State v. Herring, 338
N.C. 271, 274-76, 449 S.E.2d 183, 185-87 (1994) (holding that -6- defendant was not entitled to voluntary intoxication instruction
when he consumed forty to sixty ounces of fortified wine, forty-
eight ounces of malt liquor beers, and smoked three marijuana
joints and testified he was intoxicated at the time of the
shooting but was able to recall the event); State v. Long, 354
N.C. 534, 538-39, 557 S.E.2d 89, 92 (2001) (holding that
defendant was not entitled to a voluntary intoxication
instruction because actions taken after the murder to clean up
and hide evidence demonstrate that the defendant could plan and
think rationally).
The North Carolina Supreme Court has held that “[e]vidence
tending to show only that defendant drank some unknown quantity
of alcohol over an indefinite period of time before the murder
does not satisfy the defendant's burden of production.” State v.
Long, 354 N.C. 534, 538, 557 S.E.2d 89, 92 (2001) (quoting State
v. Geddie, 345 N.C. 73, 95, 478 S.E.2d 146, 157 (1996)). In the
instant case, the only evidence presented at trial regarding
defendant’s intoxication on the night in question was his
sister’s testimony that she gave him some “red liquor” when he
arrived at her house and that he drank “some beer” with his
nephews prior to the assault. There was no evidence of the -7- number of beers defendant drank, the amount of red liquor
defendant drank, or the alcohol content of the red liquor.
On 25 June 2010, defendant devised an elaborate plan to
assault Fincher and assigned roles to Barbour, Ivey, and Sloan.
The luring of Fincher to the residence of defendant’s sister and
the assault of Fincher was substantially carried out in
accordance with the plan. Defendant was also able to recall
detail of the events of 25 June 2010 when he testified at trial.
These are not the actions of someone so intoxicated that they
could not form the specific intent required of the relevant
offenses.
We hold that the evidence at trial would not have supported
a jury instruction on voluntary intoxication. Therefore,
defendant cannot show prejudice arising from his counsel’s
failure to request such a jury instruction.
This argument is without merit.
III. Motion to Dismiss Kidnapping Charge
In his second argument, defendant contends that the trial
court erred in denying his motion to dismiss the charge of
first-degree kidnapping. We disagree.
A. Standard of Review -8- “This Court reviews the trial court’s denial of a motion to
dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650
S.E.2d 29, 33 (2007) (citing State v. McKinnon, 306 N.C. 288,
298, 293 S.E.2d 118, 125 (1982)). “‘Upon defendant’s motion for
dismissal, the question for the Court is whether there is
substantial evidence (1) of each essential element of the
offense charged, or of a lesser offense included therein, and
(2) of defendant’s being the perpetrator of such offense. If so,
the motion is properly denied.’” State v. Fritsch, 351 N.C. 373,
378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67,
75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148
L. Ed. 2d 150 (2000).
While constitutional protections against double jeopardy do
not preclude convictions for both kidnapping and another felony
committed after such restraint, the restraint constituting the
kidnapping must be “a separate, complete act, independent of and
apart from the other felony.” State v. Fulcher, 294 N.C. 503,
524, 243 S.E.2d 338, 352 (1978). “[T]he key question is whether
the kidnapping charge is supported by evidence from which a jury
could reasonably find that the necessary restraint for
kidnapping exposed the victim to greater danger than that -9- inherent in the underlying felony itself.” State v. Muhammad,
146 N.C. App. 292, 295, 552 S.E.2d 236, 237 (2001).
In the instant case, the indictment for first-degree
kidnapping alleged that Fincher was unlawfully confined or
restrained or removed from one place to another without his
consent for the purpose of doing serious bodily injury to him.
The trial court instructed the jury on first-degree kidnapping
based upon restraint for “the purpose of doing serious bodily
injury.” The jury was further instructed that the restraint had
to be “a separate, complete act independent of and apart from
the injury.” Finally to first-degree kidnapping, the jury was
instructed as to the theory of acting in concert.
Defendant contends that any restraint was inherent in the
assault of Fincher, and that the alleged restraint did not
expose Fincher to any greater danger than was inherent in the
felony assault.
The North Carolina Supreme Court has recognized that there
are certain felonies that cannot be committed without some
restraint of the victim, such as forcible rape and armed
robbery. Fulcher at 523, 243 S.E.2d at 351. Assault with a
deadly weapon with intent to kill, inflicting serious injury is
not within that class of felonies because “[s]uch an assault may -10- be committed without ever necessitating the restraint or
confining of the victim.” State v. Carrillo, 115 N.C. App. 674,
677, 446 S.E.2d 379, 382 (1994) (holding that tying the victim
up with an electrical cord was a separate restraint apart from
the assault which occurred when the defendant plugged the cord
into the wall outlet and severely burned the victim); see also
State v. Gayton-Barbosa, 197 N.C. App. 129, 140, 676 S.E.2d 586,
593 (2009) (holding that a separate kidnapping charge was proper
when the defendant kept the victim from leaving her house by
repeatedly striking her with a bat then grabbed her when she
attempted to escape because “detaining [the victim] in her home
and then again outside was not necessary to effectuate the
assaults”); State v. Washington, 157 N.C. App. 535, 538-39, 579
S.E.2d 463, 466 (2003) (holding that restraint was separate and
distinct from assault when the defendant grabbed the victim,
threw him to the ground, and the victim could not flee because
defendant continued to hold him while assaulting him).
In the instant case, it was not an inherent or inevitable
part of the assault that Ivey hold Fincher down or that the gate
be blocked so Fincher could not escape. This degree of restraint
goes beyond what is required for an assault with a deadly weapon -11- with intent to kill, inflicting serious injury and was separate
and apart from the assault.
There was substantial evidence presented at trial to
support a first-degree kidnapping conviction. The trial court
did not err in denying defendant’s motion to dismiss that
charge.
IV. Motion to Dismiss Felony Conspiracy
In his third argument, defendant contends that the trial
felony conspiracy. We disagree.
A. Standard of Review
The appropriate standard of review for a motion to dismiss
has been described in Section III A, above.
A conspiracy is “an agreement, express or implied, between
two or more persons, to do an unlawful act or to do a lawful act
in an unlawful way or by unlawful means.” State v. Brewton, 173
N.C. App. 323, 327, 618 S.E.2d 850, 854 (2005) (quoting State v.
Gell, 351 N.C. 192, 209, 524 S.E.2d 332, 343 (2000)). The crime
of conspiracy is completed when the agreement is made and no
overt act is necessary to charge the defendant with conspiracy. -12- State v. Davenport, 227 N.C. 475, 494, 42 S.E.2d 686, 699
(1947). Furthermore, direct evidence of an express agreement is
not necessary; conspiracy may be established by circumstantial
evidence of a mutual, implied understanding. State v. Lyons, 102
N.C. App. 174, 183, 401 S.E.2d 776, 781 aff'd, 330 N.C. 298, 412
S.E.2d 308 (1991) (citing State v. Collins, 81 N.C. App. 346,
350, 344 S.E.2d 310, 313 (1986).
In order to charge defendant with conspiracy to commit
kidnapping, the State had the burden of presenting substantial
evidence that defendant entered into an agreement with Michael
Ivey, Johan Sloan, and Steven Barbour to commit first-degree
kidnapping. First-degree kidnapping occurs when any person
unlawfully confines, restrains, or removes from one place to
another, any other person 16 years of age or over without the
consent of such person, or any other person under the age of 16
years without the consent of a parent or legal custodian of such
person, if such confinement, restraint or removal is for the
purpose of doing serious bodily harm to the person so confined
or restrained. N.C. Gen. Stat. § 14-39 (2013).
Conspiracy is generally established by “a number of
indefinite acts, each of which, standing alone, might have
little weight, but, taken collectively, they point unerringly to -13- the existence of a conspiracy.” State v. Whiteside, 204 N.C.
710, 712 169 S.E. 711, 712 (1933) (citing State v. Wrenn, 198
N.C. 260, 151 S.E. 261 (1930)). “In order to prove conspiracy,
the State need not prove an express agreement; evidence tending
to show a mutual, implied understanding will suffice.” State v.
Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (citing
State v. Bell, 311 N.C. 131, 141, 316 S.E.2d 611, 617 (1984)).
On the night of 25 June 2010, defendant, Barbour, Ivey, and
Sloan met at the residence of defendant’s sister. Defendant
explained the altercation between himself and Fincher that
occurred on 20 June 2010, and devised a plan to get revenge
against Fincher. Defendant planned to lure Fincher to his
sister’s house and instructed Barbour to pick up Fincher and
drive him there. Ivey and Sloan were responsible for patting
Fincher down to insure that he did not have a weapon. Defendant
told Sloan, Barbour, and Ivey that he would then attack Fincher
with a baseball bat.
There was substantial evidence presented at trial that
there was a plan made between defendant, Sloan, Barbour, and
Ivey to unlawfully restrain Fincher for the purpose of doing to
him serious bodily harm. We hold that the mutual, implied
understanding between defendant, Sloan, Barbour, and Ivey was -14- that restraint would be required in order to pat Fincher down
against his will and assault him with a baseball bat. Thus, the
requirements for felony conspiracy based upon first-degree
kidnapping were all met. The trial court did not err in denying
defendant’s motion to dismiss the charge of felony conspiracy.
NO ERROR.
Chief Judge MARTIN and Judge DILLON concur.
Report per Rule 30(e).