An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                               NO. COA13-997
                      NORTH CAROLINA COURT OF APPEALS

                               Filed:     20 May 2014


STATE OF NORTH CAROLINA

       v.                                      Rockingham County
                                               Nos. 11 CRS 817
                                                    11 CRS 50150
                                                    13 CRS 354
WOODROW JOSH CRADDOCK, JR.



       Appeal by defendant from judgment entered 11 April 2013 by

Judge    Edwin   G.   Wilson        in   Rockingham    County     Superior    Court.

Heard in the Court of Appeals 20 February 2014.


       Roy Cooper, Attorney General, by Kimberly                     N.   Callahan,
       Assistant Attorney General, for the State.

       David L. Neal for defendant-appellant.


       DAVIS, Judge.


       Woodrow   Josh    Craddock,       Jr.    (“Defendant”)      appeals    from    a

judgment    entered     upon    a    jury   verdict     finding    him    guilty     of

attempted murder, assault with a deadly weapon with intent to

kill    inflicting      serious      injury,     and   malicious    assault    in    a

secret manner.        On appeal, he argues that (1) the trial court
                                       -2-
erred by failing to instruct the jury on voluntary intoxication;

and (2) he received ineffective assistance of counsel.                        After

careful review, we conclude that Defendant received a fair trial

free from error.

                              Factual Background

    The evidence presented by the State at trial tended to show

the following:       On the evening of 15 January 2011, Joel Craddock

(“Joel”),   Defendant’s       son,   was   celebrating      his   36th   birthday

with his wife and friends at the home of David Willoughby (“Mr.

Willoughby”).    At approximately 9:00 p.m., Defendant arrived at

the birthday party and began drinking alcoholic beverages with

the other guests.        While the record is unclear regarding the

exact amount of alcohol he consumed, Defendant was seen taking

several shots of tequila.

    Sometime before midnight, Defendant and Joel got into a

heated   discussion     regarding     finances,     which    escalated    into   a

physical altercation, requiring several of the other men at the

party to separate them.          Defendant and Joel continued to argue

back and forth as Defendant was ushered out of the house and

told to leave.        Defendant walked to his truck and drove away.

After    Defendant    left,    he    and     Joel   continued     to   send   text

messages back and forth to each other.                  Joel told a friend,

Clyde Griffin (“Mr. Griffin”), that Defendant had sent him a
                                            -3-
text message stating that he was coming back to the party and

bringing a friend.

      Approximately        45     minutes    after      he    had    left    the    party,

Defendant returned.             Defendant sent Joel a text message telling

him   to    come    outside.          Mr.   Griffin     and    Mr.    Willoughby      went

outside to ask Defendant to leave while Joel stayed inside the

house.      Defendant stood by his truck in the road in front of the

house with his hands in his coat pockets.                       As Mr. Griffin and

Mr. Willoughby approached him, Defendant repeatedly warned them

not to “walk up” on him.               Mr. Griffin testified that Defendant

then stated “he was going to leave Joel dead in the road.”

      When       Joel   came    outside,     he   and    Defendant      resumed      their

argument, standing approximately a foot apart from one another.

Mr. Griffin was standing in between Defendant and Joel in an

attempt to keep them apart when he heard three gunshots.                               The

shots      were    fired       from    Defendant’s      left-hand       coat       pocket.

Bullets     struck      Joel    in    his   chest,    upper    leg,    and    hand.      A

firearm analysis performed by the State Bureau of Investigation

(“SBI”) determined that the gun required a separate trigger pull

for each shot fired.

      After firing the shots, Defendant calmly walked back to his

truck      and    drove    to    a    bar   approximately       eight       miles    away.

Defendant later went to the home of a friend, Douglas Crawford
                                         -4-
(“Mr. Crawford”), and told Mr. Crawford what he had done.                              Mr.

Crawford drove Defendant to the police station to turn himself

in.   Defendant admitted to police officers that he had shot Joel

and said that he felt bad about the incident.

      A search warrant was obtained for Defendant’s truck, and

officers found a revolver in the vehicle.                    Testing conducted by

the SBI revealed that a bullet recovered from the crime scene

had been fired from the revolver found in Defendant’s truck.                           In

addition, gunshot residue was found on Defendant’s hands.

      Defendant    was    indicted       on    charges      of     attempted     murder,

assault with a deadly weapon with intent to kill inflicting

serious injury, and malicious assault in a secret manner.                              The

case proceeded to trial in Rockingham County Superior Court on 8

April 2013.       Defendant was convicted by a jury on all three

charges    and    sentenced     to       a    term    of     180     to    225   months

imprisonment.     Defendant appealed to this Court.

                                     Analysis

I. Instruction on Voluntary Intoxication

      Defendant    first     argues      that       the    trial    court      erred    in

denying    his    request     for    a       jury    instruction          on   voluntary

intoxication.     We disagree.

      On   appeal,       arguments       “challenging         the     trial      court’s

decisions regarding jury instructions are reviewed de novo by
                                         -5-
this     Court.”       State    v.     Osorio,     196 N.C.       App.      458,     466,

675 S.E.2d    144,     149    (2009).      “The     trial       court    must   give   a

requested    instruction       when    supported     by    the    evidence      in   the

case.”     State v. Soles, 119 N.C. App. 375, 382, 459 S.E.2d 4, 9,

appeal     dismissed     and    disc.      review       denied,         341 N.C.     655,

462 S.E.2d 523 (1995).

             Before the trial court will be required to
             instruct    on     voluntary    intoxication,
             defendant must produce substantial evidence
             which would support a conclusion by the
             trial court that at the time of the crime
             for which he is being tried “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. Kornegay, 149 N.C. App. 390, 395, 562 S.E.2d 541, 545

(quoting State v. Strickland, 321 N.C. 31, 41, 361 S.E.2d 882,

888 (1987)), appeal dismissed and disc. review denied, 355 N.C.

497,     564 S.E.2d    51     (2002).       When    determining           whether    the

evidence is sufficient to support an instruction on voluntary

intoxication, the evidence must be viewed “in the light most

favorable to defendant.”               State v. Mash, 323 N.C. 339, 348,

372 S.E.2d 532, 537 (1988).

       Defendant     relies    on     testimony    by     the    State’s     witnesses

tending to show that he was intoxicated and impaired to some
                                       -6-
degree on the night in question.               Based on our review of the

record, we believe that while the evidence shows that Defendant

was intoxicated, the evidence falls short of showing that at the

time of the shooting, Defendant was intoxicated to such a degree

as to render him      utterly incapable of forming                the requisite

intent to commit the crimes.           To the contrary, the record shows

that Defendant (1) returned to the residence with a loaded gun

after a physical altercation with Joel; (2) stated that “he was

going to leave Joel dead in the road”; (3) fired the gun three

times at point blank range; and (4) hit Joel with all three

shots.    Moreover, after shooting Joel, Defendant was able to

recognize the gravity of what he had done, admitting to law

enforcement officers that he had shot his son and stating that

he felt bad for having done so.

      Even viewing the evidence in the light most favorable to

Defendant,   we   conclude      that   he    failed   to    produce   sufficient

evidence to show that at the time of the shooting, he was so

completely intoxicated that he was utterly incapable of forming

the   requisite   intent   to    commit      the   crimes   for   which   he   was

convicted.   Accordingly, the trial court did not err in refusing

to give an instruction on voluntary intoxication.

      Defendant takes issue with the trial court’s statement that

it was not “convinced” that Defendant had demonstrated that he
                                        -7-
was utterly incapable of forming the requisite intent to commit

the crimes charged, arguing that the trial court usurped the

jury’s fact-finding role.           Defendant contends that the trial

court need not itself be convinced that Defendant’s intoxication

rendered him utterly incapable of forming the requisite intent,

and that instead, the court need only determine whether there

was substantial evidence that Defendant was utterly incapable of

forming the requisite intent.           However, in order to be entitled

to an instruction on voluntary intoxication, a defendant “must

produce substantial evidence which would support a conclusion by

the judge that he was so intoxicated that he could not form a

deliberate and premeditated intent to kill.”                   Mash, 323 N.C. at

346, 372 S.E.2d at 536 (emphasis added).

       Therefore, we are satisfied the trial court did not err in

stating that it was not convinced that Defendant had met his

burden of production.        Accordingly, Defendant’s argument on this

issue is overruled.

II. Ineffective Assistance of Counsel

       Defendant      next   contends    that        he   received    ineffective

assistance of counsel.          Defendant’s argument is two-fold.                He

first    asserts      that   his   trial      counsel      provided    inadequate

representation by promising in his opening statement that the

jury    would   not   hear   any   evidence     of    intent    by   Defendant   to
                                           -8-
commit the crimes for which he was charged despite the existence

of ample circumstantial evidence of Defendant’s intent to kill

Joel.       Defendant      also     argues   that     his   counsel’s   error   was

compounded when counsel elicited testimony from Joel regarding

whether he believed Defendant was trying to kill him.

       In order to establish ineffective assistance of counsel, a

defendant     must    show:         (1)    “that    counsel’s    performance     was

deficient,” and (2) “that the deficient performance prejudiced

the defense.”        State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d

241, 248 (1985) (citation and quotation marks omitted).                         Our

Supreme     Court    has    further       explained    that   “[t]he    fact    that

counsel made an error, even an unreasonable error, does not

warrant reversal of a conviction unless there is a reasonable

probability that, but for counsel’s errors, there would have

been    a   different      result    in   the    proceedings.”      Id.   at    563,

324 S.E.2d at 248.         “Thus, if a reviewing court can determine at

the outset that there is no reasonable probability that in the

absence of counsel’s alleged errors the result of the proceeding

would have been different, then the court need not determine

whether counsel’s performance was actually deficient.”                     Id. at

563, 324 S.E.2d at 249.

       In light of the overwhelming evidence of Defendant’s guilt,

we conclude that there is no reasonable probability that the
                                          -9-
outcome    of     Defendant’s     trial    would   have     been    different   had

defense counsel not          engaged in the actions              complained of by

Defendant.       The evidence at trial showed that after a physical

altercation with Joel and being asked to leave the residence

where     Joel    was     present,   Defendant         continued    to   send   Joel

antagonistic       text    messages.       Defendant      then   returned    with   a

loaded gun in his coat pocket and stated “he was going to leave

Joel dead in the road.”              Defendant shot Joel three times at

point blank range and then calmly walked back to his truck and

drove   away.       Following     the     shooting,     Defendant    realized    the

gravity of his actions and admitted to law enforcement officers

that he had shot Joel.            Based on the abundant evidence of guilt

presented    at    trial,    we   conclude      that    Defendant’s      ineffective

assistance of counsel claim lacks merit.

                                     Conclusion

    For these reasons, we conclude that Defendant received a

fair trial free from error.

    NO ERROR.

    Judges CALABRIA and STROUD concur.

    Report per Rule 30(e).
