Opinion
No. COA08-742
Filed 7 April 2009 This case not for publication
Appeal by defendant from judgment entered 28 February 2008 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 10 December 2008.
Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State. Greene Wilson, P.A., by Thomas Reston Wilson, for defendant.
Wake County No. 06 CRS 079763.
Charlie Christopher Morgan (defendant) appeals from his conviction and sentence for felonious breaking and entering, under N.C. Gen. Stat. § 14-54. He argues that the trial court erred by failing to make sufficient findings of fact supporting its decision to declare a mistrial, by failing to instruct the jury on the defense of voluntary intoxication, and by failing to instruct the jury on the lesser-included offense of misdemeanor breaking and entering. We find no error, and, therefore, affirm the judgment of the trial court.
The evidence tended to show that on 21 September 2006, defendant broke into a convenience store in Wake County and stole two bottles of Wild Irish Rose Whiskey and a package of "nabs" crackers. Defendant was indicted on 31 October 2006 for the offenses of felonious breaking and entering and felonious larceny, violations of N.C. Gen. Stat. §§ 14-54 and 14-72, respectively. On 1 May 2007, defendant filed a Notice to Offer Defense of Intoxication for his felony breaking and entering charge.
On 9 August 2007, after a half-day of trial, defendant moved for mistrial based on improper witness testimony. A State's witness testified that, during defendant's arrest, defendant became aggressive. The district attorney asked the witness about defendant's aggressive behavior, and the witness testified that "[defendant] started stating that he'd already been to prison one time for — ." Immediately, defendant objected and sought to strike the testimony. The trial judge sustained the objection and granted the motion. The district attorney proceeded to question the same witness, asking "how did [defendant] become aggressive?" The witness replied, "[defendant] stated he had already been to prison for beating — ." Defendant objected and moved for mistrial on the basis of this testimony. The trial judge granted the motion for mistrial and dismissed the jury.
A second trial began on 27 February 2008, and a jury returned verdicts of guilty for both charges. The trial court dismissed the larceny charge on defendant's motion because the State had failed to establish the required elements for the conviction. Defendant was sentenced to eleven to fourteen months in the custody of the Department of Corrections on the breaking and entering charge. Defendant appeals his conviction for felony breaking and entering. Defendant first contends that the trial court erred by "failing to make sufficient findings of fact as to the grounds supporting its decision to [grant a] mistrial [during] the first trial [on August 9, 2007]." Relying on N.C. Gen. Stat. § 15A-1064, which provides that "[b]efore granting a mistrial, the judge must make findings of fact with respect to the grounds for the mistrial and insert the findings in the record of the case," defendant argues that the trial judge was required to make findings of fact and insert them into the record, thereby providing documentation on the basis of the mistrial. N.C. Gen. Stat. § 15A-1064 (2007).
The official commentary following N.C. Gen. Stat. § 15A-1064 states: "This provision will be important when the rule against prior jeopardy prohibits retrial unless the mistrial is upon certain recognized grounds or unless the defendant requests or acquiesces in the mistrial. If the defendant requests or acquiesces in the mistrial, that finding alone should suffice." N.C. Gen. Stat. § 15A-1064, Official Commentary (2007). The requirement for judicial findings of fact in a mistrial arises from a concern for protecting the rights of the accused under the principle of double jeopardy. When a defendant requests a mistrial, the request itself satisfies the requirement of factual information needed for the record.
There are at least two cases addressing the issue of whether a trial judge's failure to insert findings of fact of mistrial into the record constitutes error. In State v. White, we held that it was harmless error for a trial judge to fail to make findings of fact to support a mistrial order where "grounds for the mistrial are clear, and were obviously clear to the trial court at the hearing on defendant's motion to dismiss[.]" 85 N.C. App. 81, 85, 354 S.E.2d 324, 327 (1987). Subsequently, on appeal, the North Carolina Supreme Court explained that when a defendant moves for a mistrial, he normally has waived the right not to be tried a second time for the offense. State v. White, 322 N.C. 506, 511, 369 S.E.2d 813, 815 (1988).
In State v. Moses, we concluded that the absence of judicial findings of fact on the record was harmless error when the defendant's own motion for mistrial was granted. 52 N.C. App. 412, 418, 279 S.E.2d 59, 64 (1981) (holding that "defendant Moses' subsequent trial was not precluded by his plea of former jeopardy where the record discloses that the order of mistrial in the previous trial was granted at [the] defendant's request").
Defendant's motion for mistrial was granted on 9 August 2007. Defendant requested the mistrial based upon the introduction of improper evidence. The trial court acknowledged the prejudicial effect of the evidence, but it did not see a way to cure the introduction; thus, the court granted defendant's motion and declared a mistrial. Like the defendants in White and Moses, defendant requested a mistrial and the trial court granted that request. See White, 322 N.C. at 508, 369 S.E.2d at 813; Moses, 52 N.C. App. at 418, 279 S.E.2d at 64. Because defendant requested the mistrial, he was not prejudiced by the trial judge's failure to make findings of fact. The purpose of the statute is to "ensure that [a] mistrial is declared only where there exists real necessity for such an order." Defendant's motion establishes a basis on the record for which the finding of mistrial can be supported, and "[t]he right of the accused to completion of the proceedings before the same tribunal is thereby protected from sudden and arbitrary judicial action." State v. Jones, 67 N.C. App. 377, 382, 313 S.E.2d 808, 812 (1984). We hold that the absence in the record of judicial findings of fact supporting mistrial is not error and does not constitute grounds for reversal.
Defendant next argues that the trial court erred by failing to instruct the jury on the defense of voluntary intoxication. Defendant claims that the State presented sufficient evidence from which the inference can be drawn that he acted without the required criminal intent. Defendant contends that evidence of intoxication can be inferred from the State's case and that intoxication prevented defendant from forming the requisite intent required for a conviction of felony breaking and entering. See N.C. Gen. Stat. § 14-54(a) (2007) (requiring intent to commit felony or larceny for a conviction of felony breaking and entering).
The trial court is required to instruct a jury on the defense of voluntary intoxication only when there is "evidence of intoxication to a degree precluding the ability to form a specific intent to commit the offenses." State v. Lancaster, 137 N.C. App. 37, 45, 527 S.E.2d 61, 67 (2000) (citations omitted). Furthermore, we have also explained that
[b]efore the trial court will be required to instruct on voluntary intoxication, [a]defendant must produce substantial evidence that, at the time of the crime for which he is being tried, [the] defendant 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). Where a defendant seeks jury instruction on voluntary intoxication, "evidence of mere intoxication is not enough to meet the defendant's burden of production." Lancaster, 137 N.C. App. at 45, 527 S.E.2d at 67. Defendant failed to meet his burden of producing substantial evidence to show a level of intoxication causing his mind and reason to be so impaired as to render him incapable of forming the required intent for felonious breaking and entering. While the State presented evidence of defendant's intoxication, evidence of intoxication alone is not sufficient to meet defendant's burden. Id. at 45, 527 S.E.2d at 67. The burden of production requires defendant to produce substantial evidence that he was so intoxicated that his ability to form intent was destroyed. See Torres, 171 N.C. App. at 422, 615 S.E.2d at 38 (holding that a defendant must be utterly incapable of forming intent to justify a voluntary intoxication instruction). The State's evidence tends to establish only that defendant was intoxicated on 20-21 September 2006. The State presented evidence that police officers were called to a convenience store at approximately 9:15 p.m. on 20 September 2006 because defendant was intoxicated and disruptive. A State's witness also described defendant as acting intoxicated during his arrest on 21 September 2006. Evidence of defendant's intoxication alone is not sufficient to warrant instruction on the defense of voluntary intoxication. Without substantial evidence that defendant was intoxicated to the point of rendering him incapable of forming intent, the burden of production is not met. Id. We hold that the trial court did not err in denying defendant's request for a jury instruction on the defense of voluntary intoxication because defendant failed to meet his burden of producing substantial evidence supporting a conclusion that his level of intoxication rendered him unable to form intent.
Defendant also contends that the trial court erred by failing to instruct the jury on the lesser included offense of misdemeanor breaking and entering. Defendant argues that he lacked the specific intent required for felonious breaking and entering due to intoxication, and, therefore, the evidence of intoxication provided by the State requires an instruction on the misdemeanor charge of breaking and entering, which does not require intent be proven. He maintains that the evidence of impairment prevents the formation of the requisite intent necessary for the felony charge.
When the State seeks to convict a defendant of only the greater offense, "the trial court needs to present an instruction on the lesser included offense only when the defendant presents evidence thereof or when the State's evidence is conflicting." State v. Woody, 124 N.C. App. 296, 307, 477 S.E.2d 462, 467 (1996) (quotations and citation omitted). Where "evidence is clear and positive as to each element of the offense," a trial court is not required to instruct the jury on the lesser included offense unless there is evidence that supports the lesser included offense. State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807, 819 (2000).
N.C. Gen. Stat. § 14-54(a) states that "[a]ny person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon." The statute further provides that "[a]ny person who wrongfully breaks or enters any building is guilty of a Class 1 misdemeanor." N.C. Gen. Stat. § 14-54(b) (2007). Thus, under a felony conviction, the State must establish the element of intent. "A specific intent crime requires the State to prove that defendant acted willfully or with purpose in committing [the] offense." State v. Creech, 128 N.C. App. 592, 598, 495 S.E.2d 752, 756 (1998) (quotations and citation omitted).
Defendant claims that he did not have the intent necessary to commit the felony offense because of his level of intoxication. However, as discussed above, defendant failed to meet his burden of establishing substantial evidence of intoxication sufficient to negate the requisite intent. A trial court may refrain from instructing the jury on a lesser included offense when evidence is clear and positive for the greater offense and there is no evidence supporting the lesser offense. Lawrence, 352 N.C. at 19, 530 S.E.2d at 819. In this case, defendant did not present substantial evidence of intoxication so great as to prevent the formation of intent, and the State provided clear evidence for every element of the felony charge of the offense. We hold that the trial court did not err by denying defendant's request for an instruction on the lesser included misdemeanor breaking and entering offense.
For the foregoing reasons, we hold that defendant's trial was free from error.
No error.
Judges HUNTER, Robert C., and JACKSON concur.
Report per Rule 30(e).