STATE of North Carolina
v.
Irvin Kenneth SCALES.
No. 7521SC787.
Court of Appeals of North Carolina.
February 18, 1976. Certiorari Denied April 6, 1976.*901 Atty. Gen. Rufus L. Edmisten, by Associate Atty. Elizabeth R. Cochrane, Raleigh, for the State.
David B. Hough, Winston-Salem, for defendant appellant.
Certiorari Denied by Supreme Court April 6, 1976.
BRITT, Judge.
Defendant assigns as error the denial of his timely made motion for nonsuit. We hold that the evidence was more than sufficient to survive the motion, therefore, the assignment is overruled.
Defendant assigns as errors the failure of the court to give requested jury instructions to the effect that "[i]f, as a result of a drugged condition, the defendant did not have the required specific intent", or "did not have the physical capability or motor skills to engage in" the alleged breaking and entering or the larceny, the jury should find him not guilty. We find no merit in the assignments.
To be entitled to a special instruction, the request must be in writing, signed by counsel, and tendered to the court prior to the beginning of argument to the jury. G.S. 1-181. The proffered instruction must also contain a correct legal request and be pertinent to the evidence and the issues of the case. Calhoun v. Highway Comm'n, 208 N.C. 424, 181 S.E.2d 271 (1935). Here, the requested instruction not only failed to contain a correct legal request but was not sufficiently pertinent to the evidence and the issues in the case.
Decisions from the appellate division of this jurisdiction relating to the ability of a defendant to form a specific intent for the reason that he was under the influence of drugs are few; however, decisions relating to the inability to form an intent due to being under the influence of intoxicants are numerous, and we think the rules applicable to the latter apply to the former.
In order to vitiate criminal responsibility, drug usage must present something more than mere voluntary intoxication. Our cases have long held voluntary intoxication an insufficient basis to excuse criminal conduct. State v. Tillman, 22 N.C.App. 688, 207 S.E.2d 316 (1974). To excuse criminality the additional element of mental defect or disease must be present or the accused must show that his faculties were so overcome by drug or drink that he was "virtually unable" to form the requisite level of intent. State v. Bronson, 10 N.C.App. 638, 179 S.E.2d 823 (1971). North Carolina strictly adheres to the McNaughten or right-wrong test of criminal responsibility. State v. Humphrey, 283 N.C. 570, 196 S.E.2d 516 (1973), cert. denied, 414 U.S. 1042, 94 S. Ct. 546, 38 L. Ed. 2d 334 (1973).
In State v. Cureton, 218 N.C. 491, 495, 11 S.E.2d 469, 471 (1940), we find:
"While intoxication is an affirmative defense no special plea is required. However, to avail the defendant and require the court to explain and apply the law in respect thereto, there must be some evidence tending to show that the defendant's *902 mental processes were so overcome by the excessive use of liquor or other intoxicants that he had temporarily, at least, lost the capacity to think and plan. As to this, he is not relegated to his own testimony. It is sufficient if the testimony of any witness tends to establish the fact. But it must be made to appear affirmatively in some manner that this defense is relied upon to rebut the presumption of sanity before the doctrine becomes a part of the law of the case which the judge must explain and apply to the evidence." (Emphasis ours.)
Defendant's argument under the facts in the instant case is somewhat novel. Our Reports reveal many cases in which an intoxicated defendant broke into and entered a dwelling or other building and was found therein, but there was no evidence that he committed a felony after entry. In such case, there is a real issue as to whether the defendant entered the premises with the intent to commit a felony therein. Here, the evidence tended to show not only a breaking and entering but the commission of a felony following the entry.
Assuming, arguendo, that the instructions requested by defendant would ever be appropriate where the breaking and entering is followed by the commission of a felony after entry, we do not think the instructions were required under the evidence in this case. As stated above, being under the influence of intoxicants or drugs is an affirmative defense, and to require the court to explain and apply the law with respect thereto, there must be threshold evidence tending to show that defendant's mental processes were so overcome that he had, at least temporarily, "lost the capacity to think and plan". State v. Cureton, supra.
While there was evidence tending to show that defendant was not acting normally at school, that he was unsteady on his feet, that he appeared to be very sleepy and his speech was impaired, there was no evidence that he did not have the capacity to think and plan. His own testimony was to the effect that he prepared his lunch and did other things requiring both thought and execution. Other testimony fully justified a jury finding that after he got home from school, defendant devised and executed a plan to enter the Squires' apartment by crossing the rail on the balcony separating the Squires' premises from the Scales' premises, breaking the glass in the door, entering the apartment, disconnecting the television and stereo equipment, removing it and other property onto the balcony, across the rail, and into his room in his mother's apartment.
We hold that defendant was not entitled to the requested instructions.
When the State presented evidence showing that on the same day of the alleged offenses the stolen property was found in defendant's bedroom, there arose a presumption of fact that defendant was guilty both of the larceny and the breaking and entering. State v. Blackmon, 6 N.C. App. 66, 169 S.E.2d 472 (1969), and cases therein cited. Defendant then had the burden of rebutting the presumption. This he failed to do.
Finally, defendant contends that the trial court erred by entering judgment imposing prison sentence on him as a committed youthful offender for a maximum term of four years without a set minimum term. On this contention, defendant relies on G.S. 148-42. We find no merit in the contention.
Defendant was sentenced pursuant to G.S. 148-49.4 as a committed youthful offender. This statute specifically provides for incarceration without a set minimum term. State v. Jones, 26 N.C.App. 63, 214 S.E.2d 779 (1975). The precise duration of the term is to be determined by the Parole Commission on an individualized basis consistent with the goals of the juvenile justice system. State v. Mitchell, 24 N.C.App. 484, 211 S.E.2d 645 (1975).
*903 We conclude that defendant received a fair trial free from prejudicial error.
No error.
HEDRICK and MARTIN, JJ., concur.