An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1469
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 15 July 2014



STATE OF NORTH CAROLINA

         v.                                   Union County
                                              Nos. 10 CRS 53476-77

TYRONE DEVON SLOAN


      Appeal by defendant from judgment entered 3 July 2013 by

Judge W. Erwin Spainhour in Union County Superior Court.                      Heard

in the Court of Appeals 19 May 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Ryan F. Haigh, for the State.

      Tin Fulton Walker &           Owen,    PLLC,    by   Noell    P.   Tin,   for
      defendant-appellant.


      STEELMAN, Judge.


      Where defendant cannot demonstrate based upon the evidence

at trial, that he would have been entitled to a jury instruction

based upon voluntary intoxication, he cannot show the prejudice

necessary to support his argument of ineffective assistance of

counsel. The trial court            did not err in denying            defendant’s
                                           -2-
motion to dismiss the charges of first-degree kidnapping and

felony conspiracy.

                    I. Factual and Procedural Background

       On   20    June   2010,     Jonathan      Fincher    (Fincher)         and   Tyrone

Sloan (Defendant) had an altercation after a night of drinking

which resulted in Fincher striking Sloan on the head several

times with a level. These cases arise out of an incident five

days later, on 25 June 2010, at the residence of defendant’s

sister.

       Defendant met with Steven Barbour (Barbour), Michael Ivey

(Ivey), and Johan Sloan (Sloan).                   They discussed how to lure

Fincher to the residence of defendant’s sister. Barbour was to

pick   up    Fincher      and     drive   him    there.     Ivey       and    Sloan   were

responsible       for    making    sure     Fincher   did    not       have    a    weapon.

Defendant        would   then     assault    Fincher       with    a    baseball      bat.

Barbour     brought      Fincher     to    the     residence.      Defendant        struck

Fincher with the baseball bat, bringing him to the ground. Sloan

checked     Fincher      for    weapons,     and    then    ran    away.       Ivey   held

Fincher while defendant beat him with a baseball bat. Fincher

was unable to escape because Ivey was blocking the gate leading

from the yard and was holding him. When defendant inadvertently

struck Ivey with the bat, Ivey left.                       Defendant continued to
                                       -3-
pummel Fincher with the bat, and then attacked and cut him with

a box cutter. Eventually, defendant also left.

      Fincher suffered a broken collarbone, lost five units of

blood, and required multiple stitches and staples about his head

and back. He almost died in the hospital during surgery.

      Defendant was indicted for attempted first-degree murder,

first-degree kidnapping, robbery with a dangerous weapon, felony

conspiracy, and assault with a deadly weapon with the intent to

kill, inflicting serious injury. The jury found defendant not

guilty   of   robbery   with    a   dangerous    weapon,   but   guilty   of

attempted first-degree murder, first-degree kidnapping, felony

conspiracy, and assault with a deadly weapon with intent to

kill, inflicting serious injury. The trial court consolidated

the four charges for judgment, and imposed an active sentence of

144-182 months.

      Defendant appeals.

                  II. Ineffective Assistance of Counsel

      In his first argument, defendant contends that his trial

counsel was ineffective in failing to request a jury instruction

on   diminished    capacity    based    on   voluntary   intoxication.    We

disagree.

                          A. Standard of Review
                                         -4-
               To prevail on a claim of ineffective
               assistance of counsel, a defendant must
               first show that his counsel’s performance
               was   deficient   and   then   that  counsel’s
               deficient    performance     prejudiced    his
               defense.   Deficient    performance   may   be
               established   by    showing    that  counsel’s
               representation   fell    below    an objective
               standard of reasonableness. Generally, to
               establish prejudice, a defendant must show
               that there is a reasonable probability that,
               but for counsel’s unprofessional errors, the
               result of the proceeding would have been
               different. A reasonable probability is a
               probability     sufficient      to   undermine
               confidence in the outcome.

State     v.    Allen,      360   N.C.   297,   316,    626   S.E.2d    271,   286

(citations and quotation marks omitted), cert. denied, 549 U.S.

867, 166 L. Ed. 2d 116 (2006).

                                    B. Analysis

    Whether defense counsel was ineffective is analyzed under a

two-part test. Strickland v. Washington, 466 U.S. 668, 687, 80

L.Ed.2d        674,   693    (1984).     Defendant     must   first    show    that

counsel’s performance was deficient. Id. Second, the defendant

must show that the deficient performance prejudiced his defense.

Id. In order to establish prejudice, the defendant must show

that there was a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different.

466 U.S. at 694, 80 L.Ed.2d at 698.
                                       -5-
      In order to have been entitled to a jury instruction on

diminished capacity based upon voluntary intoxication there must

be evidence that at the time of the crime, “the defendant’s mind

and reason were so completely intoxicated and overthrown” that

he could not form the specific intent required of the relevant

offense. State v. Gerald, 304 N.C. 511, 521, 284 S.E.2d 312,

318–19 (1981).

      While the trial court must consider all evidence in the

light most favorable to the defendant, “a person may be excited,

intoxicated and emotionally upset, and still have the capability

to formulate the necessary plan, design, or intention.” State v.

Mash, 323 N.C. 339, 347, 372 S.E.2d 532, 537 (1988) (quoting

State v. Hamby, 276 N.C. 674, 678, 174 S.E.2d 385, 387 (1970)).

Our   appellate    courts     have    held   on   numerous     occasions      that

despite the ingestion of a large amount of alcohol or drugs by

the defendant, a jury instruction on voluntary intoxication was

not   warranted.   See   State   v.    Cheek,     351   N.C.   48,   74–76,    520

S.E.2d   545,   560–61      (1999)    (holding    that    defendant    was    not

entitled to voluntary intoxication instruction when he had taken

two hits of acid prior to the murder but was able to recall

events both before and after the murder); State v. Herring, 338

N.C. 271, 274-76, 449 S.E.2d 183, 185-87 (1994) (holding that
                                            -6-
defendant was not entitled to voluntary intoxication instruction

when he consumed forty to sixty ounces of fortified wine, forty-

eight ounces of malt liquor beers, and smoked three marijuana

joints    and   testified        he   was   intoxicated         at    the    time    of    the

shooting but was able to recall the event); State v. Long, 354

N.C.   534,     538-39,      557      S.E.2d   89,       92    (2001)       (holding      that

defendant       was    not       entitled      to    a        voluntary       intoxication

instruction because actions taken after the murder to clean up

and hide evidence demonstrate that the defendant could plan and

think rationally).

       The North Carolina Supreme Court has held that “[e]vidence

tending to show only that defendant drank some unknown quantity

of alcohol over an indefinite period of time before the murder

does not satisfy the defendant's burden of production.” State v.

Long, 354 N.C. 534, 538, 557 S.E.2d 89, 92 (2001) (quoting State

v. Geddie, 345 N.C. 73, 95, 478 S.E.2d 146, 157 (1996)). In the

instant case, the only evidence presented at trial regarding

defendant’s      intoxication          on   the     night      in     question      was    his

sister’s testimony that she gave him some “red liquor” when he

arrived at her house and that he drank “some beer” with his

nephews    prior      to   the    assault.     There      was    no    evidence      of    the
                                                 -7-
number       of    beers     defendant         drank,    the   amount    of     red    liquor

defendant drank, or the alcohol content of the red liquor.

       On 25 June 2010, defendant devised an elaborate plan to

assault Fincher and assigned roles to Barbour, Ivey, and Sloan.

The luring of Fincher to the residence of defendant’s sister and

the     assault       of     Fincher       was     substantially        carried       out   in

accordance with the plan.                  Defendant was also able to recall

detail of the events of 25 June 2010 when he testified at trial.

These are not the actions of someone so intoxicated that they

could not          form the specific intent required of the relevant

offenses.

       We hold that the evidence at trial would not have supported

a     jury        instruction       on     voluntary       intoxication.        Therefore,

defendant          cannot    show     prejudice         arising   from    his     counsel’s

failure to request such a jury instruction.

       This argument is without merit.

                    III. Motion to Dismiss Kidnapping Charge

       In his second argument, defendant contends that the trial

court    erred       in     denying      his   motion     to   dismiss    the    charge     of

first-degree kidnapping. We disagree.

                                A. Standard of Review
                                       -8-
    “This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007) (citing State v. McKinnon, 306 N.C. 288,

298, 293 S.E.2d 118, 125 (1982)). “‘Upon defendant’s motion for

dismissal,    the   question    for    the     Court   is   whether     there    is

substantial    evidence   (1)    of    each     essential     element    of     the

offense charged, or of a lesser offense included therein, and

(2) of defendant’s being the perpetrator of such offense. If so,

the motion is properly denied.’” State v. Fritsch, 351 N.C. 373,

378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67,

75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148

L. Ed. 2d 150 (2000).

                                B. Analysis

    While constitutional protections against double jeopardy do

not preclude convictions for both kidnapping and another felony

committed after such restraint, the restraint constituting the

kidnapping must be “a separate, complete act, independent of and

apart from the other felony.” State v. Fulcher, 294 N.C. 503,

524, 243 S.E.2d 338, 352 (1978). “[T]he key question is whether

the kidnapping charge is supported by evidence from which a jury

could   reasonably      find    that     the     necessary     restraint        for

kidnapping    exposed   the    victim    to     greater     danger    than    that
                                                -9-
inherent in the underlying felony itself.” State v. Muhammad,

146 N.C. App. 292, 295, 552 S.E.2d 236, 237 (2001).

      In    the      instant       case,    the       indictment        for        first-degree

kidnapping       alleged         that    Fincher       was      unlawfully         confined      or

restrained or removed from one place                            to another without his

consent for the purpose of doing serious bodily injury to him.

The trial court instructed the jury on first-degree kidnapping

based upon restraint for “the purpose of doing serious bodily

injury.” The jury was further instructed that the restraint had

to be “a separate, complete act independent of and apart from

the injury.” Finally to first-degree kidnapping, the jury was

instructed as to the theory of acting in concert.

      Defendant contends that any restraint was inherent in the

assault    of     Fincher,        and    that    the       alleged     restraint       did    not

expose Fincher to any greater danger than was inherent in the

felony assault.

      The North Carolina Supreme Court has recognized that there

are   certain        felonies      that    cannot          be    committed     without       some

restraint       of    the    victim,       such       as    forcible        rape    and    armed

robbery.    Fulcher         at    523,    243    S.E.2d         at   351.   Assault       with    a

deadly weapon with intent to kill, inflicting serious injury is

not within that class of felonies because “[s]uch an assault may
                                       -10-
be    committed      without    ever   necessitating      the    restraint   or

confining of the victim.” State v. Carrillo, 115 N.C. App. 674,

677, 446 S.E.2d 379, 382 (1994) (holding that tying the victim

up with an electrical cord was a separate restraint apart from

the assault which occurred when the defendant plugged the cord

into the wall outlet and severely burned the victim); see also

State v. Gayton-Barbosa, 197 N.C. App. 129, 140, 676 S.E.2d 586,

593 (2009) (holding that a separate kidnapping charge was proper

when the defendant kept the victim from leaving her house by

repeatedly striking her with a bat then grabbed her when she

attempted to escape because “detaining [the victim] in her home

and   then   again    outside    was   not    necessary   to    effectuate   the

assaults”); State v. Washington, 157 N.C. App. 535, 538-39, 579

S.E.2d 463, 466 (2003) (holding that restraint was separate and

distinct from assault when the defendant grabbed the victim,

threw him to the ground, and the victim could not flee because

defendant continued to hold him while assaulting him).

      In the instant case, it was not an inherent or inevitable

part of the assault that Ivey hold Fincher down or that the gate

be blocked so Fincher could not escape. This degree of restraint

goes beyond what is required for an assault with a deadly weapon
                                         -11-
with intent to kill, inflicting serious injury and was separate

and apart from the assault.

      There     was     substantial      evidence      presented      at   trial     to

support a first-degree kidnapping conviction. The trial court

did   not   err    in    denying    defendant’s        motion   to    dismiss      that

charge.

      This argument is without merit.

                  IV. Motion to Dismiss Felony Conspiracy

      In his third argument, defendant contends that the trial

court   erred     in    denying    his   motion   to    dismiss      the   charge   of

felony conspiracy. We disagree.

                            A. Standard of Review

      The appropriate standard of review for a motion to dismiss

has been described in Section III A, above.

                                    B. Analysis

      A conspiracy is “an agreement, express or implied, between

two or more persons, to do an unlawful act or to do a lawful act

in an unlawful way or by unlawful means.” State v. Brewton, 173

N.C. App. 323, 327, 618 S.E.2d 850, 854 (2005) (quoting State v.

Gell, 351 N.C. 192, 209, 524 S.E.2d 332, 343 (2000)). The crime

of conspiracy is completed when the agreement is made and no

overt act is necessary to charge the defendant with conspiracy.
                                      -12-
State   v.   Davenport,    227     N.C.   475,    494,    42    S.E.2d    686,     699

(1947). Furthermore, direct evidence of an express agreement is

not necessary; conspiracy may be established by circumstantial

evidence of a mutual, implied understanding. State v. Lyons, 102

N.C. App. 174, 183, 401 S.E.2d 776, 781 aff'd, 330 N.C. 298, 412

S.E.2d 308 (1991) (citing State v. Collins, 81 N.C. App. 346,

350, 344 S.E.2d 310, 313 (1986).

    In   order   to    charge      defendant     with    conspiracy      to   commit

kidnapping, the State had the burden of presenting substantial

evidence that defendant entered into an agreement with Michael

Ivey, Johan Sloan, and Steven Barbour to commit first-degree

kidnapping.    First-degree        kidnapping     occurs       when    any    person

unlawfully confines, restrains, or removes from one place to

another, any other person 16 years of age or over without the

consent of such person, or any other person under the age of 16

years without the consent of a parent or legal custodian of such

person, if such confinement, restraint or removal is for the

purpose of doing serious bodily harm to the person so confined

or restrained. N.C. Gen. Stat. § 14-39 (2013).

    Conspiracy        is   generally      established      by     “a     number     of

indefinite    acts,    each   of    which,     standing    alone,      might      have

little weight, but, taken collectively, they point unerringly to
                                        -13-
the existence of a conspiracy.” State v. Whiteside, 204 N.C.

710, 712 169 S.E. 711, 712 (1933) (citing State v. Wrenn, 198

N.C. 260, 151 S.E. 261 (1930)). “In order to prove conspiracy,

the State need not prove an express agreement; evidence tending

to show a mutual, implied understanding will suffice.” State v.

Morgan, 329 N.C. 654, 658, 406 S.E.2d 833, 835 (1991) (citing

State v. Bell, 311 N.C. 131, 141, 316 S.E.2d 611, 617 (1984)).

      On the night of 25 June 2010, defendant, Barbour, Ivey, and

Sloan   met   at    the     residence      of   defendant’s      sister.    Defendant

explained     the    altercation      between      himself    and    Fincher      that

occurred on 20 June 2010, and devised a plan to get revenge

against   Fincher.        Defendant     planned     to    lure    Fincher    to    his

sister’s house and instructed Barbour to pick up Fincher and

drive him there. Ivey and Sloan were responsible for patting

Fincher down to insure that he did not have a weapon. Defendant

told Sloan, Barbour, and Ivey that he would then attack Fincher

with a baseball bat.

      There   was    substantial        evidence    presented       at   trial    that

there was a plan made between defendant, Sloan, Barbour, and

Ivey to unlawfully restrain Fincher for the purpose of doing to

him   serious      bodily    harm.    We    hold   that    the    mutual,    implied

understanding between defendant, Sloan, Barbour, and Ivey was
                                  -14-
that restraint would be required in order to pat Fincher down

against his will and assault him with a baseball bat. Thus, the

requirements    for   felony   conspiracy   based   upon   first-degree

kidnapping were all met. The trial court did not err in denying

defendant’s motion to dismiss the charge of felony conspiracy.

    This argument is without merit.

    NO ERROR.

    Chief Judge MARTIN and Judge DILLON concur.

    Report per Rule 30(e).
