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State v. Romero3/19/1998
on on diminished capacity resulting from intoxication when only evidence of drinking alcohol was on the day after the crime occurred).
{27} We conclude that the evidence of intoxication in this case was substantial both in terms of degree and proximity in time to the crime, and we determine that the evidence was sufficient to justify the requested instruction to negate specific intent even without expert testimony. Defendant was intoxicated when he entered Cruz's trailer the second time. He had already passed out drunk during his first visit. Much of this evidence comes from the corroborating observations of the police officers and the victim. It was only fifteen minutes after the officer first removed Defendant from the trailer that Defendant entered Cruz's trailer the second time. Given the short period of time between the two incidents there was substantial evidence of Defendant's drunken condition at or near the time he entered Cruz's trailer the second time which was the critical moment for the jury to analyze Defendant's capacity for specific intent with respect to the crime of aggravated burglary.
{28} The State counters with evidence tending to refute Defendant's intoxication. After Defendant had been removed from Cruz's residence the first time, the police officer's testimony indicated that he was more in control and able to walk into his home without help. In other words the effects of intoxication had worn off before he returned to the Cruz residence. However, " n deciding whether the instruction is proper, the trial court must not weigh the evidence, but must simply determine whether such evidence exists." . Because the evidence of Defendant's intoxication is sufficiently close in time to the aggravated burglary, the jury could reasonably infer that Defendant remained impaired when he entered Cruz's trailer the second time. Viewing the evidence in the light most favorable to giving the instruction, , we hold that Defendant was entitled to an instruction on diminished capacity resulting from intoxication.
Conclusion
{29} Because Defendant was entitled to jury instructions on both criminal trespass as a lesser-included offense of aggravated burglary and diminished capacity resulting from intoxication, we reverse Defendant's conviction for aggravated burglary and remand for a new trial. Defendant's conviction for false imprisonment remains in effect.
{30} IT IS SO ORDERED.
RICHARD C. BOSSON, Judge
WE CONCUR: RUDY S. APODACA, Judge & LYNN PICKARD, Judge.
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