State v. Rubenstahl ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-314
Filed 19 December 2023
Cumberland County, No. 21 CRS 51709
STATE OF NORTH CAROLINA
v.
LEO GEORGE RUBENSTAHL, Defendant.
Appeal by defendant from judgment entered 23 September 2022 by Judge
James F. Ammons, Jr., in Cumberland County Superior Court. Heard in the Court
of Appeals 18 October 2023.
Attorney General Joshua H. Stein, by Assistant General Counsel South A.
Moore, for the State.
The Sweet Law Firm, PLLC, by Kaelyn N. Sweet, for defendant-appellant.
DILLON, Judge.
Defendant Leo George Rubenstahl appeals from judgment entered upon a
jury’s verdict convicting him of first-degree murder for causing the death of his wife.
Our review shows no error.
I. Background
At approximately 2 a.m. on 25 February 2021, Defendant’s wife Enelrae
Rubenstahl was found dead in the home she shared with Defendant in Linden.
Evidence at trial tended to show as follows:
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Leading up to her death, Enelrae expressed fears to friends and family that
Defendant was going to shoot her. In particular, she was uncomfortable that
Defendant kept his handgun on his nightstand while they slept; her friend testified
that Enelrae said, “I sleep scared.” A co-worker even offered to intervene to protect
her from Defendant. Three weeks before her murder, Enelrae met with her church’s
pastor and deacon. They noticed bruises on both sides of her neck consistent with
strangulation, and she admitted that Defendant had “been holding her head down[.]”
On 24 February 2021, the day before her death, Enelrae spent the afternoon
and evening with Defendant, his daughter Christina, and her children. At
approximately 1 a.m. the next morning, Defendant called Christina to confess that
he had killed Enelrae. Christina testified,
All he kept saying over and over again was I messed up. I
messed up. I did something that I can’t come back from. I
just wanted you to know that I love you and I love the kids.
. . . And he said, I shot [Enelrae]. . . . while we were on the
phone, he said that he had no regrets about it and that he
had shot her and then realized she was still breathing and
kept shooting her. . . . it eventually got to the point of him
talking about taking his own life because he didn’t want to
deal with the consequences of what he had done.
When Christina arrived at the house, she asked Defendant about the location of his
handgun. He initially lied to her—saying he “threw it in the pond”—before admitting
that he hid it within a pile of towels in the bathroom. Before the police arrived,
Christina heard Defendant call his sister and “explain[ ] to her on voicemail . . . what
he had done.”
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When law enforcement arrived at the scene, they found Enelrae deceased in
the bedroom hallway. She was unclothed except for her undergarments, which were
on inside out. They also found Defendant’s handgun hidden within the towels. They
promptly arrested Defendant, and he was subsequently indicted.
At trial, the medical examiner testified that Enelrae was shot ten times on her
chest, arms, and face (including both eyes) at a close range, injuries which “would
take probably several minutes for her to die[,]” rather than cause an instantaneous
death. Enelrae also had a large bruise covering the right side of her neck and face
and her right ear, likely caused by blunt force trauma prior to her death. The medical
examiner did not observe any defensive wounds.
The firearms forensic examiner testified regarding Defendant’s handgun found
at the scene: a 45 Colt single-action revolver. This type of revolver requires the user
to first cock the hammer and then pull the trigger each time the gun is fired—in other
words, pulling the trigger does automatically cock the hammer, as it would in a
double-action revolver. The cylinder holds only six cartridges when fully loaded. To
load it, one must rotate the cylinder and load each cartridge (containing a bullet)
individually. After firing the six cartridges, one must repeat the process of rotating
the cylinder to unload each one individually before reloading the gun. In sum, this is
a cumbersome process.
At trial, Defendant took the stand and testified that Enelrae’s niece had shot
and killed Enelrae.
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Defendant was convicted of first-degree murder and sentenced to life
imprisonment without parole. Defendant timely appealed.
II. Analysis
Defendant argues the trial court erred when it did not instruct the jury on (1)
the affirmative defense of voluntary intoxication and (2) the lesser-included offense
of second-degree murder. We disagree.
A. Voluntary Intoxication Jury Instruction
On appeal—for the first time—Defendant asserts the defense of voluntary
intoxication. Defendant did not request a jury instruction on voluntary intoxication
at trial. Thus, we review this argument for plain error. State v. Collington, 375 N.C.
401, 410, 847 S.E.2d 691, 698 (2020) (“[U]npreserved issues related to jury
instructions are reviewed under a plain error standard, while preserved issues are
reviewed under a harmless error standard.”). See also State v. Lawrence, 365 N.C.
506, 518, 723 S.E.2d 326, 334 (2012) (“To show 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.”).
During the charge conference, the trial court explicitly asked if Defendant
wanted to include voluntary or involuntary intoxication instructions, to which his
counsel declined. Thus, this challenge was not preserved. Assuming the trial court
otherwise erred by not giving the intoxication instruction, for the reasoning below,
we conclude that the trial court did not plainly err.
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To warrant a jury instruction on voluntary intoxication,
[t]he evidence must show that at the time of the killing the
defendant’s mind and reason were so completely
intoxicated and overthrown as to render him utterly
incapable of forming a deliberate and premeditated
purpose to kill. In the absence of some evidence of
intoxication to such degree, the court is not required to
charge the jury thereon.
State v. Strickland, 321 N.C. 31, 41, 361 S.E.2d 882, 888 (1987) (citations omitted).
Our Supreme Court warns our courts to apply “great caution” in allowing a voluntary
intoxication instruction. State v. Meader, 377 N.C. 157, 162, 856 S.E.2d 533, 537
(2021) (quoting State v. Murphy, 157 N.C. 614, 617-18, 72 S.E. 1075, 1076-77 (1911)).
“[A]n instruction on voluntary intoxication is not required in every case in which a
defendant claims that he killed a person after consuming intoxicating beverages[.]”
State v. Baldwin, 330 N.C. 446, 462, 412 S.E.2d 31, 41 (1992). In making this
determination, the evidence must be viewed in the light most favorable to the
defendant. Meader, 377 N.C. at 162, 856 S.E.2d at 537.
Courts consider a variety of factors when determining whether a defendant
should receive a voluntary intoxication jury instruction. One important factor is the
amount of alcohol consumed. See State v. Golden, 143 N.C. App. 426, 431-33, 546
S.E.2d 163, 167-68 (2001). Further, the defendant’s alcohol tolerance affects the
determination—particularly if the defendant is an alcoholic with a presumably
higher tolerance. See State v. Walls, 342 N.C. 1, 46, 463 S.E.2d 738, 761-62 (1995).
Another factor is the defendant’s memory of the killing and the time leading up to
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Opinion of the Court
and following the killing, with a detailed memory weighing against a voluntary
intoxication instruction. See State v. Herring, 338 N.C. 271, 276, 449 S.E.2d 183, 186
(1994); Golden, 143 N.C. App. at 431, 546 S.E.2d at 167.
In this case, Defendant was a heavy drinker and had been for years, suggesting
a higher tolerance for alcohol that the average person. He was unsure how many
beers he consumed, speculating the number could be approximately ten or eleven
from the afternoon of 24 February 2021 through the midnight hours of 25 February
2021 (a nearly twelve-hour period). Further, Defendant testified that he was “slowly
drinking” throughout the day and it was a “normal” day for himself.
In his own testimony, Defendant said he “got drunk” after the killing because
his wife was dead, indicating he was not already drunk during the killing.
Additionally, Defendant’s memory of that day and night are clear. He was able to
describe the people he saw and what they were wearing, his activities that evening,
and a detailed timeline (including his mental processes) leading up to the killing, the
killing itself, and the time and events afterwards. He was also cognizant enough to
hide the revolver and call Christina to confess his actions before Christina and law
enforcement arrived at the scene.
Though Defendant may have been intoxicated from drinking a number of beers
throughout the course of the afternoon, evening, and night, the evidence does not
show that he was “so completely intoxicated and overthrown as to render him utterly
incapable of forming a deliberate and premeditated purpose to kill.” Strickland, 321
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N.C. at 41, 361 S.E.2d at 888. Thus, we conclude Defendant has failed to show plain
error by the trial court not instructing the jury on the affirmative defense of voluntary
intoxication.
B. Second-Degree Murder Jury Instruction
Defendant argues the jury could have reasonably found that Defendant
committed only second-degree murder because he lacked the requisite deliberation
and premeditation elements for first-degree murder. In his brief, Defendant
characterizes himself as “a volatile alcoholic who fired his gun at anything that
frustrated him” and claims he could have shot his wife during an “explosive marital
argument” during which he lacked a “cool state of mind.”
A request for jury instructions on a lesser-included offense during the charge
conference is sufficient to preserve the issue for appellate review. See State v. Collins,
334 N.C. 54, 61-62, 431 S.E.2d 188, 193 (1993).
Here, defense counsel requested a jury instruction on second-degree murder
during the charge conference, but the trial court denied this request. Even though
counsel did not repeat his objections after the charge was given, he nevertheless
preserved this issue for review.
In 1979, our Supreme Court stated that a second-degree murder instruction
must be given where the State seeks a conviction for first-degree murder based on
premeditation and deliberation, so as to leave it up to the jury to decide whether the
defendant premeditated/deliberated to kill rather than merely to assault:
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Assuming arguendo that there was no positive evidence of
the absence of premeditation and deliberation, the trial
court was still required to submit the issue of second degree
murder to the jury. In the instant case the [S]tate relied
upon premeditation and deliberation to support a
conviction of murder in the first degree. In State v. Harris,
290 N.C. 718, 730, 228 S.E.2d 424, 432 (1976), we held that,
“in all cases in which the State relies upon premeditation
and deliberation to support a conviction of murder in the
first degree, the trial court must submit to the jury an issue
of murder in the second degree.” This requirement is
present because premeditation and deliberation are
operations of the mind which must always be proved, if at
all, by circumstantial evidence. If the jury chooses not to
infer the presence of premeditation and deliberation, it
should be given the alternative of finding the defendant
guilty of second degree murder. State v. Keller, 297 N.C.
674, 256 S.E.2d 710 (1979).
State v. Poole, 298 N.C. 254, 258, 258 S.E.2d 339, 342 (1979).
However, four years later, our Supreme Court stated that a second-degree
murder instruction is not required “in every case in which the State relies on
premeditation and deliberation to support a conviction of first-degree murder.” State
v. Strickland, 307 N.C. 274, 281, 298 S.E.2d 645, 651 (1983) (emphasis in original).
And where the State has put forth evidence which establishes premeditation and
deliberation of the intent to kill “and there is no evidence to negate these elements
other than defendant’s denial that he committed the offense, the trial court should
properly exclude from jury consideration the possibility of a conviction of second-
degree murder.” Id. at 293, 298 S.E.2d at 658.
The Court has since stated that “a defendant is not entitled to an instruction
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on [second-degree murder] merely because the jury could possibly believe some of the
State’s evidence [supporting first-degree murder] but not all of it.” State v. Leazer,
353 N.C. 234, 240, 539 S.E.2d 922, 926 (2000) (cleaned up).
However, where the State’s evidence, if believed, is capable of conflicting
reasonable inferences either that (1) the defendant premeditated/deliberated a
specific intent to kill or, alternatively, (2) the defendant merely
premeditated/deliberated an assault, the defendant is entitled to both first-degree
and second-degree murder instructions.1 See, e.g., State v. Jerrett, 309 N.C. 239, 263,
307 S.E.2d 339, 352 (1983) (stating that it is “for the jury to resolve the conflicting
inferences arising from the evidence”); State v. Benton, 299 N.C. 16, 24, 260 S.E.2d
917, 922 (1980) (concluding that testimony permitting conflicting inferences is for the
jury to resolve).
Here, though, we conclude that the evidence only leads to one inference
regarding premeditation and deliberation: Defendant specifically intended to kill his
wife. The evidence indicates that Defendant shot Enelrae many times with a firearm
that required a great deal of effort to operate, manually cocking the gun and pulling
the trigger for each shot. And to shoot Enelrae ten times with the Colt 45 single-
1 Where the evidence is capable of conflicting inferences on premeditation and deliberation,
and if the defendant fails to request that a second-degree murder instruction be given and he is
subsequently convicted for first-degree murder, he would only be entitled to plain error review of the
trial court’s failure to instruct on second-degree murder where he would have to show that the jury
“probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692,
697 (1993).
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action revolver, Defendant must have unloaded and reloaded the revolver during the
killing (since the cylinder only held six bullets at a time).
Defendant also made threats to Enelrae prior to her killing. For example,
Defendant allegedly once shot holes into his above-ground pool; while recounting
what happened, he looked into Enelrae’s eyes and said, “I should have shot you.”
Further, Enelrae did not have defensive wounds, suggesting Defendant continued to
shoot her after she was rendered helpless. Finally, there was evidence of prior
physical and domestic abuse, such as the bruises on Enelrae’s neck three weeks before
her murder that suggested strangulation.
III. Conclusion
In sum, we conclude Defendant received a fair trial, free of reversible error.
NO ERROR.
Judges TYSON and GRIFFIN concur.
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