An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 
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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 
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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
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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.
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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 
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defendant was not entitled to voluntary intoxication instruction 

when he consumed forty to sixty ounces of fortified wine, fortyeight 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 
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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
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“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 
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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 
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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 
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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. 
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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 
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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 
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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).