State v. Smith ( 1993 )

Judge COZORT

concurring in part and dissenting in part.

I concur with all of the majority opinion except that portion which holds that the failure of the trial court to instruct the jury on assault with a deadly weapon, as a lesser included offense of armed robbery, requires the reversal of defendant’s conviction in 91 CRS 3332 and an order for a new trial. The issue is whether the trial court was required to instruct the jury on the lesser charge of assault with a deadly weapon, in addition to giving the instruction on the defense of voluntary intoxication. I vote the trial court committed no error.

A trial court need not submit lesser included offenses to the jury when the State’s evidence is positive as to each and every element of a crime charged and there is no conflicting evidence relating to any element of such crime. State v. Drumgold, 297 N.C. 267, 271, 254 S.E.2d 531, 533 (1979). “[T]he contention that the jury might accept the evidence in part and reject it in part is not sufficient to require an instruction on a lesser included offense.” State v. Coats, 46 N.C. App. 615, 617, 265 S.E.2d 486, 487 (1980).

Our case law makes it clear that intoxication may affect one’s ability to form the specific intent required to commit robbery with a firearm. State v. White, 322 N.C. 506, 515-16, 369 S.E.2d 813, 817-18 (1988). Nonetheless, evidence of intoxication should not automatically require an instruction on the lesser included offense of assault with a deadly weapon where an instruction on voluntary intoxication has been. given. In the present case, the defendant requested and received the correct instruction on voluntary intoxication. The general instruction given on voluntary intoxication allowed the jury to consider the evidence of defendant’s intoxication in its deliberations. The jury could have determined the intoxication negated an element of the armed robbery. The defendant should not now be heard to complain that he was entitled to more.

I vote no error on all counts and respectfully dissent.