An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-1137


Filed: 07 June 2005


v .                         Johnston County
                            No. 03 CRS 1154

    Appeal by defendant from judgment entered 30 October 2003 by Judge William C. Gore, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 12 May 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Richard J. Votta, for the State.

    Glover & Petersen, P.A., by James R. Glover, for defendant- appellant.

    STEELMAN, Judge.

    Defendant, Christopher Lamont Benjamin, appeals his conviction for attempted first degree murder, robbery with a dangerous weapon, and assault with a dangerous weapon with intent to kill.
    The evidence presented at trial tended to show that during the early morning hours of 21 January 2003 defendant robbed the M & N Citgo convenience store in Selma, North Carolina and shot an employee, Manjit Singh, in the head. At trial, Singh testified he was working the night shift when defendant entered the store and went to the beer cooler. Defendant then brought a twenty-two ounce bottle of Natural Lite beer to the counter. After sitting it on the counter, defendant went behind the counter, pulled out a small gun, pointed it at Singh, and ordered him to give him all the moneyin the register. After Singh opened the register, defendant removed approximately $800.00 from the register. Defendant then dragged Singh by the sleeve to the side of the counter and ordered him to crouch in the corner. Defendant pressed the gun against the right side of Singh's head and pulled the trigger. The bullet grazed Singh's head, leaving fragments lodged in his scalp. After shooting Singh defendant left the store. Singh called 911. When the police arrived on the scene, the officer found Singh bleeding heavily from the wound to his head.
    Maurice Mills (Mills) testified that on the night of the robbery he drove defendant, along with several other individuals, from Smithfield to the Citgo convenience store in Selma. Mills testified he did not know defendant or the other people riding in his car or that they planned to rob the Citgo, but only gave them a ride because they offered to pay him. Mills testified that on the night of the robbery he dropped defendant off outside the Citgo, circled around the building, and picked him up. When defendant came out of the Citgo he was running and money was falling out of his pocket. The other men in the car helped defendant gather the money. Mills testified he did not know defendant had robbed the convenience store until the next day when he saw a report of the robbery in the news. Mills then notified the police of his involvement and gave them a description of defendant. Mills identified defendant from a photographic line-up, as well as at trial. Singh viewed the same photographic line-up, but stated he did not see his assailant among the pictures. Attrial, Singh stated he had recognized defendant in the line-up, but did not identify him because he was afraid defendant would retaliate against him. Singh identified defendant as his attacker at trial.
    After arriving at the Citgo, the police collected a beer bottle from the counter and sent it to the SBI for fingerprint analysis. The SBI determined that the finger and palm prints found on the bottle matched those of the defendant.
    On 30 October 2003, a jury found defendant guilty of attempted first degree murder, robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill. The trial court arrested judgment on the assault charge and sentenced defendant to an active sentence of 282 to 348 months imprisonment for attempted first degree murder and to an active sentence of 107 to 138 months for robbery with a dangerous weapon, with the sentences to run consecutively. Defendant appeals.
    In defendant's first argument he contends the trial court erred when it denied his motion to dismiss the charges of attempted first degree murder and assault with a deadly weapon with intent to kill because there was insufficient evidence presented at trial from which a reasonable juror might infer an “intent to kill,” an element common to both charges. We disagree.
    In order to survive a motion to dismiss based on the insufficiency of the evidence, the State must present substantial evidence of (1) each essential element of the charged offense and (2) that the defendant is the perpetrator. State v. Fritsch, 351N.C. 373, 378, 526 S.E.2d 451, 455 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Lucas, 353 N.C. 568, 580-81, 548 S.E.2d 712, 721 (2001). When considering such a motion, the court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference that may be drawn therefrom. Fritsch, 351 N.C. at 378-79, 526 S.E.2d at 455. The State's evidence may be direct, circumstantial, or both. Id. at 379, 526 S.E.2d at 455. If the State's evidence is circumstantial, the court must determine whether “'a reasonable inference of defendant's guilt may be drawn from the circumstances.'” Id. (citations omitted). Once the court decides that such an inference may be drawn, it must deny the motion to dismiss, and submit the matter to the jury. Id. This is so because “it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.” Id. (citations and internal quotation marks omitted).
    “'An intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be reasonably inferred.'” State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (citations omitted). An intent to kill may be inferred from the nature of the assault, the manner in which it was made, the weapon used, and other relevant circumstances. Id.      When viewed in the light most favorable to the State, the facts and circumstances surrounding defendant's assault of Singh reasonably support the inference that defendant's intent was not just to rob or to injure, but to kill. First, defendant used a gun during the robbery and assault. Although the use of a deadly weapon does not create an evidentiary presumption of an intent to kill, nevertheless, the deadly character of the weapon used constitutes some evidence from which an intent to kill may be inferred. See State v. James, 321 N.C. 676, 688, 365 S.E.2d 579, 586 (1988); State v. Reives, 29 N.C. App. 11, 12-13, 222 S.E.2d 727, 728 (1976) (holding where the defendant pointed a gun at the victim and pulled the trigger constituted circumstances from which intent to kill could be inferred). Second, defendant shot the victim in the head at point-blank range. This Court has recognized this as a circumstance tending to establish an intent to kill. In State v. Jones, this Court held there was sufficient evidence of defendant's intent to kill where the defendant deliberately fired a gun into the victim's face at point-blank range, reasoning that “[a] person who deliberately fires a pistol into the face of his victim at point-blank range must be held to intend the normal and natural results of his deliberate act.” 18 N.C. App. 531, 534, 197 S.E.2d 268, 270 (l973). In the instant case, defendant's shooting of the victim in the head at point-blank range gives rise to a reasonable inference that defendant intended to kill the victim. It is irrelevant that the victim did not die as a result of his wounds. See State v. Ransom, 41 N.C. App. 583, 584-85, 255 S.E.2d237, 239 (1979); State v. Revels, 227 N.C. 34, 36, 40 S.E.2d 474, 475 (1946).
     We hold that the evidence viewed in the light most favorable to the State is sufficient to demonstrate an intent to kill and supports the charge of attempted first degree murder, as well as assault with a deadly weapon with intent to kill. The trial court did not err in submitting these charges to the jury. This argument is without merit.
    In defendant's second argument he contends the trial court erred in ordering defense counsel to defer to defendant's wishes when questioning the investigating officer regarding an individual he had interviewed in relation to the robbery. We disagree.
    During the direct examination of Detective Norris, one of the investigating officers, the trial court excused the jury to address an objection by defense counsel concerning an evidentiary matter. Following the trial court's resolution of this issue, defendant requested permission to address the court. In response, the trial court addressed defense counsel, stating:
        Now, counsel, I don't know what the issue is, and I'll give you a chance to be heard. But in the final analysis, the defendant is entitled to have his wishes concerning the defense carried out even if they may not be what you think is in his best interest as long as they're within the parameters of what's proper conduct for you as an officer of the Court.

It appears defendant's request resulted from his confusion as to whether Maurice Mills or Calvin Mitchell identified defendant as the robber. The police questioned Mitchell, but later determinedhe was not involved. Apparently defendant's confusion as to who made the statement identifying him as the robber arose when some of the papers produced during discovery got out of order. Although it later became clear that it was Mills who had identified defendant in a photographic line-up as the man he dropped off at the Citgo on the night of the robbery, defendant still wanted defense counsel to question the investigating officers regarding their communications with Calvin Mitchell. Defense counsel explained to the trial court that he was “more than glad, if [defendant] wants me to, to ask Detective Norris about what Calvin Mitchell said,” but felt it was irrelevant. In addition, counsel agreed to discuss with his client any further concerns which defendant might wish to raise.
    Normally, the responsibility for tactical decisions, such as the type of defense to present and the questioning of a witness, is vested with defense counsel. State v. Ali, 329 N.C. 394, 404, 407 S.E.2d 183, 189 (1991). See also State v. Wilkinson, 344 N.C. 198, 211-12, 474 S.E.2d 375, 382 (1996). Even so, “when counsel and a fully informed criminal defendant client reach an absolute impasse as to such tactical decisions, the client's wishes must control; this rule is in accord with the principal-agent nature of the attorney-client relationship.” Ali, 329 N.C. at 404, 407 S.E.2d at 189.
    Here, the trial court did not instruct counsel to do anything or even determine defendant and his counsel were at an impasse. Rather, he advised defense counsel that if he and his clientreached an impasse, he had to defer to his clients wishes. This is consistent with the law as stated in Ali and Wilkinson.
    Defendant also argues he was deprived of the effective assistance of counsel as a result of the trial court's ruling advising defense counsel that he must defer to defendant's wishes where an impasse is reached. In order to establish a claim for ineffective assistance of counsel, defendant must establish “'that counsel's performance was deficient' and 'that the deficient performance prejudiced the defense.'” State v. Grooms, 353 N.C. 50, 86, 540 S.E.2d 713, 735 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984)). Defendant cannot meet this two-part test. First and most importantly, defense counsel did what defendant requested. Second, defendant never alleges defense counsel's performance was deficient. Instead, he argues the trial court's directive “stripped away the role of trial advocate for the defendant[.]” In addition, defendant has failed to point to any instance in which defense counsel's representation of him was compromised or rendered ineffective by the trial court's statement. This argument is without merit.
    Defendant has failed to argue his remaining assignments of error contained in the record on appeal, thus they are deemed abandoned. N.C. R. App. P. 28(b)(6) (2004).
    For the reasons discussed herein, we hold that defendant received a fair trial, free of error.
    Report per Rule 30(e).

*** Converted from WordPerfect ***