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Filed June 27, 1996

IN THE SUPREME COURT

STATE OF NORTH DAKOTA
State of North Dakota, Plaintiff and Appellee
v.
Sheila Barnes, Defendant and Appellant

Criminal No. 950323
Appeal from the District Court for Kidder County, South Central Judicial District, the Honorable Donald L. Jorgensen,

Judge.
AFFIRMED.
Opinion of the Court by Neumann, Justice.
David D. Hagler, Assistant Attorney General, Attorney General's Office, 600 East Boulevard Avenue, Bismarck, ND
58505-0040, for plaintiff and appellee.
Michael R. Hoffman, 1120 College Drive Suite 201, Bismarck, ND 58501, for defendant and appellant.


[551 N.W.2d 280]

State v. Barnes
Criminal No. 950323


Neumann, Justice.
Sheila Barnes appealed from a judgment of conviction for delivery of a controlled substance, a class B felony under Section 19-03.1-23(1)(b), N.D.C.C. We conclude Barnes' allegations of error by the district court are without merit, and we affirm.
The relevant facts in this case are not in dispute. Suspecting possible drug activity, Michael Nason, a special agent with the North Dakota Bureau of Criminal Investigation, and Steve Cleveland, an undercover drug enforcement officer with the Bismarck Police Department, met Barnes on the evening of September 22, 1994 at the Lone Steer, a motel, restaurant, and bar in Steele. Barnes was working there as a waitress and served the officers, who testified she appeared to fit the general description of a person they believed may have been engaging in criminal activity. Barnes agreed to join the officers in the bar after she finished work. The officers bought Barnes a few drinks and told her they would like to get some marijuana. She said she could get it for them and took $60 from the officers for that purpose. They agreed to return two days later and pick up the marijuana from Barnes. Barnes testified she traveled to Bismarck where she purchased marijuana with the $60. She testified that when the officers returned she did not want to give the marijuana to them, but she had spent their money to get it and did not have $60 to return to them. Nevertheless, she told the officers their money would be at the front desk waiting for them in the morning. Cleveland responded that they had given Barnes $60 and would not leave without either the money or the marijuana. Barnes then went to her residence located above the Lone Steer and retrieved the marijuana. She gave it to the officers and was immediately arrested. Barnes was ultimately convicted by a jury of delivery of a controlled substance, and she appealed.
Barnes argues the trial court erroneously instructed the jury on voluntary intoxication. During the trial, Barnes testified she is a drug-addicted alcoholic and was intoxicated when she delivered the marijuana to the officers. Because of that "The fact that the Defendant was voluntarily intoxicated at the time she committed the alleged offense
does not relieve her of criminal responsibility for the crime."
Barnes contends the instruction "paints with too broad a brush." Section 19-03.1-23(1), N.D.C.C., makes it unlawful for any person to "willfully" deliver a controlled substance. Under Section 12.1-02-02(1)(e), N.D.C.C., willfully is defined as

[551 N.W.2d 281]
engaging in conduct "intentionally, knowingly, or recklessly." Barnes argues the jury should have been instructed they could find her intoxication negated the culpability requirement of willfully.
Section 12.1-04-02, N.D.C.C., sets forth the effect of intoxication relative to criminal charges:
"1. Intoxication is not a defense to a criminal charge. Intoxication does not, in itself, constitute mental disease or defect within the meaning of section 12.1-04-04. Evidence of intoxication is admissible whenever it is relevant to negate or to establish an element of the offense charged.
"2. A person is reckless with respect to an element of an offense even though his disregard thereof is not conscious, if his not being conscious thereof is due to self-induced intoxication."
Although this statute was rewritten when the new criminal code was adopted in 1973 and was amended in 1977, the basic principles of law regarding the effect of intoxication as it relates to criminal charges have not changed since the first intoxication statute was enacted in 1877. We summarized those principles in State v. Tipler, 316 N.W.2d 97, 101
(N.D. 1982):
"Although voluntary intoxication is not exculpatory in itself, where an offense requires a 'specific intent,' intoxication may be considered in determining whether or not such intent exists. As this court explained long ago, '[Evidence of intoxication is not] considered for the purpose of justifying or excusing the crime, but for the sole purpose of determining whether, in fact, the . . . crime has been committed.'
* * * * *
"[T]he changes in the intoxication statutes did not alter the substance of the law. Rather, the statutes express the same time-honored principles in different words. For instance, the old code said that '[n]o act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition.' Sec. 12-05-01, N.D.C.C. (repealed 1973). The 1973 statute, cast in positive terms, stated that '[i]ntoxication is a defense to the criminal charge only if it negates the culpability required as an element of the offense charged.' Sec. 12.1-04-02, N.D.C.C. The 1977 amendment recast the law in negative terms: 'Intoxication is not a defense to a criminal charge.' Sec. 12.1

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