State v. Mitchell ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-270
Filed 5 December 2023
Guilford County, Nos. 21CRS073733-34, 21CRS073737, 21CRS074321
STATE OF NORTH CAROLINA
v.
JORDAN NATHANIEL MITCHELL
Appeal by Defendant from judgments entered 9 August 2022 by Judge Patrick
Thomas Nadolski in Guilford County Superior Court. Heard in the Court of Appeals
1 November 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Scott A.
Conklin, for the State-Appellee.
Mary McCullers Reece for Defendant-Appellant.
COLLINS, Judge.
Defendant, Jordan Nathaniel Mitchell, appeals from judgments entered upon
guilty verdicts of breaking and entering, two counts of larceny after breaking and
entering, possession of a firearm by a felon, and resisting a public officer. Defendant
argues that the trial court erred by denying his request for a jury instruction on
voluntary intoxication, and that the trial court plainly erred by not identifying the
specific firearm in its jury instructions for possession of a firearm by a felon. We find
no error or plain error.
STATE V. MITCHELL
Opinion of the Court
I. Background
The evidence at trial tended to show the following: Greensboro Police Officer
Taylor Brame received a call around 5:00 a.m. on 10 May 2021, reporting two males
wearing black hoodies and blue jeans had broken into a Walgreens pharmacy through
a roll-up door behind the pharmacy. When Brame arrived on the scene, she observed
a white Jeep Cherokee parked near the roll-up door behind the pharmacy. The
vehicle was unlocked, and the keys were in the ignition. Brame removed the keys
from the ignition and “proceeded to do a perimeter around the store [and] check for
broken windows, while [she] waited for additional units to respond.”
Two males, later identified as Defendant and Lloyd Harper, briefly stepped out
of the rear door on the right side of the pharmacy. Brame “barely could give
commands [before] they shut the door again[.]” Defendant and Harper then exited
the pharmacy through the front door and ran through the parking lot. While
Defendant and Harper were running through the parking lot, Defendant dropped
what “looked to be a gun[.]” Defendant and Harper crossed through the bushes at
the front of the parking lot and ran into a field across the street. Defendant was
apprehended, while trying to climb over a fence, and Harper was later apprehended
after climbing over the fence and running into the woods.
Upon searching the parking lot, officers discovered “a .22 Ruger caliber
[revolver] in a holster . . . along with a tire iron that [Defendant and Harper had]
discarded.” The “revolver was damaged, so th[e] barrel fell out of that.” Two bottles
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Opinion of the Court
of Oxybutynin, a prescription bladder medication, were found in the field where
Defendant was apprehended. The shelves inside the pharmacy “[l]ooked like stuff
had been knocked over. . . . [either] purposely knocked over or knocked over as
[Defendant and Harper] came out[.]” Three boxes of Newport cigarettes, two boxes
of compression socks, and another bottle of prescription medication were found on the
floor near the pharmacy exit.
Officers searched the Jeep that was parked behind the pharmacy and
discovered the following: two HP laptop computers, an HP PC charger, a Samsung
TV, Razer headphones, an HP all-in-one printer, and a Byrna PepperBall pistol.
These items, along with the Ruger .22 caliber revolver, had been stolen earlier that
night from Wilson & Lysiak, an architectural business approximately a half-mile
away from the Walgreens. Officers also discovered a nine-millimeter Beretta on the
passenger side dashboard.
Defendant was indicted for two counts of breaking and entering, breaking and
entering a pharmacy, two counts of larceny after breaking and entering, possession
of a firearm by a felon, and resisting a public officer. Defendant filed a notice of
defense, asserting that “[D]efendant was so intoxicated that he was unable to form
the requisite specific intent” for the charged offenses.
The matter came on for trial on 11 July 2022. Defendant moved to dismiss at
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Opinion of the Court
the close of the State’s evidence, and the trial court denied the motion.1 The trial
court denied Defendant’s request for a jury instruction on voluntary intoxication
during the jury charge conference. The jury returned guilty verdicts of breaking and
entering, breaking and entering with intent to commit larceny, two counts of larceny
after breaking and entering, possession of a firearm by a felon, and resisting a public
officer.
The trial court sentenced Defendant to 19 to 32 months of imprisonment for
possession of a firearm by a felon. Furthermore, the trial court sentenced Defendant
to three consecutive terms of 11 to 23 months of imprisonment for breaking and
entering, two counts of larceny after breaking and entering, and resisting a public
officer. Finally, the trial court arrested judgment on Defendant’s conviction for
breaking and entering with intent to commit larceny. Defendant appealed.
II. Discussion
A. Voluntary Intoxication
Defendant first argues that the trial court erred by denying his request for a
jury instruction on voluntary intoxication.
“To determine whether a defendant is entitled to a requested instruction on
voluntary intoxication, this Court reviews de novo whether each element of the
1 Defendant was also indicted for breaking and entering a private residence. The indictment
does not appear in the record before us; however, it appears from the record and transcripts that the
trial court dismissed this charge at the close of the State’s evidence and denied the motion to dismiss
with respect to the relevant charges.
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Opinion of the Court
defense is supported by substantial evidence when taken in the light most favorable
to the defendant.” State v. Meader, 377 N.C. 157, 162, 856 S.E.2d 533, 537 (2021)
(citation omitted). “Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Id. (quotation marks and
citation omitted).
“The doctrine of voluntary intoxication should be applied with great caution.”
Id. (quotation marks, brackets, and citation omitted). “A defendant is not entitled to
an instruction on voluntary intoxication in every case in which a defendant consumes
intoxicating beverages or controlled substances.” Id. (quotation marks, brackets,
ellipses, and citation omitted). To obtain a voluntary intoxication instruction, a
defendant “must produce substantial evidence which would support a conclusion by
the judge that he was so intoxicated that he could not form” the specific intent to
commit the underlying offenses. State v. Mash, 323 N.C. 339, 346, 372 S.E.2d 532,
536 (1988). “Evidence of mere intoxication, however, is not enough to meet
defendant’s burden of production.” Id. “There must be some evidence tending to show
that the defendant’s 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.” Meader, 377 N.C. at 162, 856 S.E.2d at 537 (quotation marks, brackets, and
citation omitted).
Here, surveillance footage from the Walgreens showed that Defendant and
Harper “pried [the exterior roll-up door] up enough to where they . . . were actually
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Opinion of the Court
able to slide under the door and into the stock room.” Defendant and Harper “went
upstairs to see what was in the upstairs stock room” and then came back downstairs,
“jimmied the door, [and] got into the pharmacy.” When Brame arrived at the
Walgreens, she observed the white Jeep parked near the roll-up door behind the
pharmacy. At that time, Defendant and Lloyd Harper briefly stepped out of the rear
door on the right side of the pharmacy, and Brame “barely could give commands
[before] they shut the door again[.]” Defendant and Harper then exited the pharmacy
through the front door, ran through the parking lot into a field across the street, and
attempted to climb over a fence. Brame testified that Defendant was “very sweaty”
and “breathing heavily,” and that “we all were, as you could hear in the [bodycam
footage].”
Greensboro Police Detective Martin attempted to interview Defendant after he
was apprehended and observed that Defendant “was pretty sleepy . . . [and] hadn’t
slept in a couple days.” Defendant “would talk to himself, kind of not complete any
thoughts or sentences. He had a hard time standing up, which I think would relate
to him being sleepy at that time, and he said that he was tired.”
Defendant testified that he had used “probably like 3.5 grams” of cocaine over
the span of two or three days and that he “kind of lost control of [him]self at the time
somewhat.” He recalled meeting up with Harper, driving around in the white Jeep,
and going to the Walgreens because he was “probably [looking for] money[.]”
Defendant felt “[p]anicked” as he was leaving the Walgreens and running
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Opinion of the Court
through the parking lot, and remembered “[t]he road, a fence, and being tackled[.]”
Defendant recalled being interviewed at the police station, and that he “didn’t really
have much to say.” Defendant further testified, “I was nodding off. I was really tired,
and they was just dragging me through the processing. I just wanted to go to sleep,
talk about it -- wake up later. Didn’t really -- but they drug me through that process.
I was really exhausted.”
When viewed in the light most favorable to Defendant, he has failed to produce
substantial evidence which would support a conclusion by the judge that he was so
intoxicated that he could not form the specific intent to commit the underlying
offenses. See Mash, 323 N.C. at 346, 372 S.E.2d at 536.
Accordingly, the trial court did not err by denying Defendant’s request for a
jury instruction on voluntary intoxication.
B. Possession of a Firearm by a Felon
Defendant next argues that the trial court plainly erred by not identifying the
specific firearm listed in the indictment in its jury instructions for possession of a
firearm by a felon.
“If at trial, a defendant fails to object to a jury instruction, that instruction is
reviewable on a plain error standard on appeal.” State v. Raynor, 128 N.C. App. 244,
247, 495 S.E.2d 176, 178 (1998) (citation omitted). “For error to constitute plain error,
a defendant must demonstrate that a fundamental error occurred at trial.” State v.
Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation omitted). “To show
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Opinion of the Court
that an error was fundamental, a defendant must establish prejudice—that, after
examination of the entire record, the error had a probable impact on the jury’s finding
that the defendant was guilty.” Id. (quotation marks and citation omitted).
“Moreover, because plain error is to be applied cautiously and only in the exceptional
case, the error will often be one that seriously affects the fairness, integrity or public
reputation of judicial proceedings[.]” Id. (quotation marks, brackets, and citations
omitted).
Here, the indictment alleged that Defendant “unlawfully, willfully and
feloniously did possess a Ruger 22 caliber revolver, which is a firearm.” The trial
court gave the following jury instruction for possession of a firearm by a felon:
The defendant has been charged with possession --
possessing a firearm after having been convicted of a
felony. For you to find the defendant guilty of this offense,
the State must prove two things beyond a reasonable
doubt:
First, that on March 31st, 2010, in Moore County Superior
Court, the defendant pled guilty to or was found guilty of a
felony that was committed in violation of the laws of the
State of North Carolina.
And second, that after March 31st, 2010, the defendant
possessed a firearm. A person has actual possession of a
firearm -- strike that . A person has actual possession of
an article if the person has it on the person, is aware of its
presence, and either alone or together with others has both
the power and intent to control its disposition or use.
If you find from the evidence beyond a reasonable doubt
that on March 31st, 2010, in Moore County Superior Court,
the defendant pled guilty to or was found guilty of a felony
that was committed in violation of the laws of the State of
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Opinion of the Court
North Carolina and that the defendant, after March 31st,
2010, possessed a firearm, it would be your duty to return
a verdict of guilty. If you do not so find or have a reasonable
doubt as to one or more of these things, it would be your
duty to return a verdict of not guilty.
Aside from briefly stepping out of the rear door on the right side of the
pharmacy, Defendant was not near the Jeep where the Byrna PepperBall pistol and
nine-millimeter Beretta were later found. Rather, Defendant exited the pharmacy
through the front door and dropped what “looked to be a gun” while running through
the parking lot. After Defendant was apprehended, “a .22 Ruger caliber [revolver] in
a holster” was found in the parking lot. The trial court instructed the jury that “[a]
person has actual possession of an article if the person has it on the person, is aware
of its presence, and either alone or together with others has both the power and intent
to control its disposition or use.” Because Defendant was not near the Jeep where
the Byrna PepperBall pistol and nine-millimeter Beretta were found and thus could
not have had actual possession of either weapon, the trial court did not plainly err by
not specifically identifying the .22 Ruger caliber revolver in its jury instructions for
possession of a firearm by a felon.
III. Conclusion
The trial court did not err by denying Defendant’s request for a jury instruction
on voluntary intoxication. Furthermore, the trial court did not plainly err by not
identifying the specific firearm in its jury instructions for possession of a firearm by
a felon.
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STATE V. MITCHELL
Opinion of the Court
NO ERROR; NO PLAIN ERROR.
Judge TYSON concurs.
Judge MURPHY concurs in the result only as to Part II-A and concurs in Part
II-B.
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