An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-254

NORTH CAROLINA COURT OF APPEALS

Filed: 21 March 2006

STATE OF NORTH CAROLINA

v .                         Macon County
                            No. 03CRS52282, 84, 86, 87
DONALD RORIE CHAPMAN             04CRS652

    Appeal by defendant from judgments dated 15 July 2004 by Judge Zoro J. Guice, Jr., in Superior Court, Macon County. Heard in the Court of Appeals 14 November 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.

    Melrose, Seago & Lay, P.A., by Nathan J. Earwood, for defendant-appellant.

    McGEE, Judge.

    Donald Rorie Chapman (defendant) was convicted by a jury on 15 July 2004 of: (1) felony larceny, (2) first degree burglary, (3) possession of property stolen pursuant to a breaking or entering, (4) assault inflicting serious bodily injury, (5) first degree kidnapping, (6) felonious breaking or entering, (7) injuring wires or other fixtures of a telephone, and (8) robbery with a dangerous weapon. The trial court also found two aggravating factors and sentenced defendant in the aggravated range. Defendant appeals.
    The State's evidence at trial tended to show that defendant had violated his probation and wanted to leave town in order to avoid going to jail, but that he lacked transportation. Defendant decided to steal his eighty-three-year-old grandmother's car on 25December 2003. Defendant tried to lure his grandmother out of her house so that he could sneak into the house and take her car keys, but he was unsuccessful. Defendant made a second attempt to take his grandmother's car keys on the morning of 27 December 2003. Defendant broke a window near the back deck, kicked open the back door, and entered his grandmother's house. Defendant ripped the telephone off the wall, and took seven dollars and his grandmother's car keys from her purse. Defendant drove his grandmother's car to Statesville, where he played pool with several people. Defendant told an acquaintance he thought he had killed his grandmother, and the acquaintance called police. That evening, after a high speed chase, defendant was apprehended by police.
    Defendant's grandmother was found locked in her bathroom on 27 December 2003. She had been badly beaten and had severe bruising and a punctured lung. She also had a ruptured airway which resulted in permanent damage to her voice, and a liver laceration. She was hospitalized for more than five months because of her extensive injuries.
    At trial, defendant testified he never entered his grandmother's room, and never touched her after breaking into her house. Defendant claimed an acquaintance named "Chris" was responsible for his grandmother's injuries. Defendant also claimed that he and Chris were heavily under the influence of methamphetamine during much of the time in question. However, at least four witnesses testified at trial that, at some point after the robbery, defendant confessed to either killing or injuring afamily member. None of the four witnesses recalled defendant's mentioning anyone named Chris. In addition, police were never able to locate anyone matching defendant's description of Chris.
    The State contended there were three aggravating factors: (1) defendant induced others to participate in the offense, (2) the victim was very old, and (3) the offense was especially heinous, atrocious or cruel. Defense counsel asked the trial court to consider that defendant had lived on his own since age fourteen and had fallen into a "rut" because of his hard life. The trial court found two aggravating factors: (1) the victim was very old, and (2) the victim suffered serious injury that was permanent and debilitating. The trial court found no mitigating factors. Finding that the aggravating factors outweighed the mitigating factors, the trial court sentenced defendant in the aggravated range. On appeal, defendant argues six assignments of error.

I.

    Defendant's first assignment of error is that the trial court committed plain error by failing to instruct the jury on diminished capacity based on defendant's drug use. Under Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure, a party may not assign as error any jury instruction, or lack thereof, unless the party objected at trial. Defendant failed to request an instruction on diminished capacity at trial and failed to object to the lack of such an instruction. When a defendant does not object at trial, our review of the issue is limited to plain error. N.C.R. App. P. 10(c)(4). To find plain error, an appellate court must examine theentire record and determine that the instruction, or lack thereof, "had a probable impact on the jury's finding of guilt." State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983).
    In this case, defendant has failed to show that the jury probably would have reached a different result had the diminished capacity instruction been given. An instruction on diminished capacity is warranted when "the evidence of [a] defendant's mental condition is sufficient to cause a reasonable doubt in the mind of a rational trier of fact as to whether the defendant has the ability to form the necessary specific intent." State v. Connell, 127 N.C. App. 685, 692, 493 S.E.2d 292, 296 (1997), disc. review denied, 347 N.C. 579, 502 S.E.2d 602 (1998). Defendant argues that because he was under the influence of methamphetamine and other illegal substances for much of the time, he lacked the specific intent necessary to commit the offenses charged. We disagree.
    Diminished capacity can only serve as a defense to specific intent crimes. See, e.g., State v. Page, 346 N.C. 689, 698, 488 S.E.2d 225, 231 (1997) (stating that diminished capacity cannot serve as a defense to second-degree murder because no specific intent is required for a second-degree murder conviction). In the present case, two of the eight crimes of which defendant was convicted are not specific intent crimes: assault inflicting serious bodily injury and injuring wires or other fixtures of a telephone. We therefore only consider defendant's argument in terms of the specific intent crimes of which he was convicted.     We note that later in this opinion we reverse defendant'sconviction for robbery with a dangerous weapon and remand to the trial court with the instruction to enter judgment on the offense of common law robbery. Common law robbery is also a specific intent crime. State v. Lunsford, 229 N.C. 229, 231, 49 S.E.2d 410, 412 (1948). The specific intent required for both common law robbery and robbery with a dangerous weapon is that the defendant must intend to steal the property. See, e.g., State v. Harmon, 21 N.C. App. 508, 510, 204 S.E.2d 883, 885 (1974) (quoting State v. Mundy, 265 N.C. 528, 530, 144 S.E.2d 572, 574 (1965)) (stating that to be convicted of armed robbery, a defendant must have possessed the specific intent "'to deprive the owner of his property permanently and to convert it to the use of the [defendant].'"); State v. Bailey, 4 N.C. App. 407, 411, 167 S.E.2d 24, 26 (1969) (defining the elements of common law robbery as, inter alia, a taking with the intent to steal). Because the specific intent required is the same, the reversal of defendant's conviction does not affect our analysis.
    Defendant's own testimony tends to show that at the time of commission, defendant possessed the specific intent necessary for each offense. He rationalized his actions and recounted his plan to steal his grandmother's car at trial. Defendant testified that while he was "getting high and tweaked out," he formulated a specific plan:
        DEFENDANT: I was like, "Look dude, this is what we're going to do. I'm going to bust the window out the back door. . . . I'm going to grab the keys. When I grab the keys I'm going to run outside and I'm going to get in the car. When I honk the horn that means the carstarted, I'll be back up the driveway and let's go."
    Defendant took a tool from a backyard shed which he used to break a window in his grandmother's house. Once inside the house, defendant had the presence of mind to rip a telephone off the wall, presumably to prevent his grandmother from calling police. Defendant testified that after he took the car keys and the seven dollars, he left his grandmother's house because he "wasn't trying to rob [his] grandmother for money, credit cards or anything. [He] was in there to get the car and leave."
    Defendant did not demonstrate that his intoxication rendered him incapable of forming the necessary intent. Rather, defendant's own testimony shows that he possessed the specific intent necessary to commit the offenses, even if he was voluntarily under the influence of drugs. In light of defendant's testimony and other overwhelming evidence of defendant's intent, defendant has failed to show that the jury would have reached a different result had the diminished capacity instruction been given. Accordingly, we hold that the trial court did not commit plain error.
II.

    Defendant's second assignment of error is that the trial court committed plain error by instructing the jury as to the charge of robbery with a dangerous weapon. The trial court instructed the jury that it could consider defendant's hands as dangerous weapons for the charge of robbery with a dangerous weapon, based on "the nature of . . . defendant's hands, the manner in which they were used, and the size and strength of . . . defendant as compared tothe victim." Defendant contends the instruction constituted plain error because, without being able to consider defendant's hands as dangerous weapons, the jury could consider only the lesser charge of common law robbery, and therefore would have reached a different verdict.
    Under N.C. Gen. Stat. § 14-87 (2005), possessing, using, or threatening to use any firearms or other dangerous weapon during the course of a robbery, whereby the life of a person is endangered or threatened, constitutes the offense of robbery with a dangerous weapon. Although hands, feet and fists may be considered deadly weapons in the context of some assault cases, see, e.g., State v. Grumbles, 104 N.C. App. 766, 771, 411 S.E.2d 407, 410 (1991), as this Court recently pointed out, we have not held that hands, feet and fists can be considered dangerous weapons under N.C. Gen. Stat. § 14-87. State v. Duff, ___ N.C. App. , , 615 S.E.2d 373, 380, disc. review denied, N.C. , 619 S.E.2d 853 (2005). In Duff, holding that an individual's bare hands, fists and feet are not considered dangerous weapons for the purposes of N.C. Gen. Stat. § 14-87, we reasoned that
        [c]ommon sense and the clear intent of N.C. Gen. Stat. § 14-87 lead us to conclude that an individual cannot possess, use, or threaten to use a dangerous weapon during a robbery where that individual is not possessing, using, or threatening to use some external weapon or instrument during the robbery. The "critical difference" between armed and common law robbery "is that the former is accomplished by the use or threatened use of a dangerous weapon whereby the life of a person is endangered or threatened." State v. Peacock, 313 N.C. 554, 562, 330 S.E.2d 190, 195 (1985). Were an individual's bare hands, fists, andfeet considered dangerous weapons for the purposes of N.C. Gen. Stat. § 14-87, that "critical difference" would be erased, and the crime of common law robbery would in effect merge with the crime of robbery with a dangerous weapon.

Duff, N.C. App. at , 615 S.E.2d at 381. Accordingly, in the present case, the trial court erred in instructing the jury on robbery with a dangerous weapon. Without the instruction, the jury's verdict necessarily would have been different. Thus, the instruction constitutes plain error, and we reverse defendant's armed robbery conviction. Because the evidence supports all of the elements of the lesser included offense of common law robbery, we remand this matter to the trial court with instructions to enter judgment on the offense of common law robbery. See Id. at , 615 S.E.2d at 381 (reversing the defendant's conviction for armed robbery and remanding the matter to the trial court with instructions to enter judgment for common law robbery because hands, feet and fists cannot be considered dangerous weapons for the offense of robbery with a dangerous weapon).
III.

    Defendant's third assignment of error is that the trial court's denial of defendant's motion to remove his attorney was a violation of defendant's constitutional right to effective counsel. Whether to allow a defendant's motion to remove counsel is a matter committed to the discretion of the trial court. State v. Skipper, 146 N.C. App. 532, 537, 553 S.E.2d 690, 693-94 (2001). Absent a showing that a defendant's Sixth Amendment right to effective assistance of counsel was violated, the trial court's ruling willstand. Id.
    The trial court, in determining a request to withdraw counsel, "is to make sufficient inquiry into [a] defendant's reasons to the extent necessary to determine whether [the] defendant will receive effective assistance of counsel." State v. Poole, 305 N.C. 308, 312, 289 S.E.2d 335, 338 (1982). This Court has found "sufficient inquiry" when a trial court simply asked a defendant a few questions concerning his reasons for requesting new counsel. State v. Hammonds, 105 N.C. App. 594, 597, 414 S.E.2d 55, 57 (1992).
    In the present case, the trial court's inquiry consisted of the following:
        DEFENDANT: I'd like to fire my lawyer.

        THE COURT: Motion denied. You do not have the right to pick and choose lawyers. You asked for a court-appointed lawyer and you got one.

    While we do not condone the trial court's inquiry, we find the trial court did not abuse its discretion in denying defendant's motion to remove counsel. To disturb such a ruling, a defendant must show that his Sixth Amendment right to effective assistance of counsel was violated. In order to meet this burden, a defendant must satisfy the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984). Quoting Strickland, our Supreme Court has explained:
        "First the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant mustshow that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."

State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (emphasis added) (quoting Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693).
    Defendant offers no evidence that defense counsel's performance was deficient or that the deficient performance prejudiced defendant. Defendant merely states that "[d]efendant's trial counsel made blatant errors throughout the course of the trial, errors that when viewed in totality are highly persuasive of incompetent counsel." There is not evidence of any deficiency in the record. A general accusation of "blatant errors," without more, is not sufficient to meet the two-prong test from Strickland. Accordingly, we find that the trial court did not abuse its discretion in denying defendant's motion to remove counsel.
IV.

    Defendant's fourth assignment of error is that the trial court's finding of two aggravating factors, which caused defendant to be sentenced in the aggravated range, violated his right to a trial by jury. During the sentencing phase of defendant's trial, the trial court found two aggravating factors pursuant to N.C. Gen. Stat. § 15A-1340.16: (1) that the victim was very old, and (2) that the victim suffered a permanent and debilitating injury.
    In Blakely v. Washington, the United States Supreme Court held that without a plea of guilt or a jury finding on additionalaggravating factors, only a sentence within the standard range is authorized by law. Blakely, 542 U.S. 296, 303-05, 159 L. Ed. 2d 403, 413-15 (2004). The North Carolina Supreme Court has held that harmless error analysis does not apply to Blakely violations. State v. Allen, 359 N.C. 425, 449, 615 S.E.2d 256, 272 (2005). Such violations are structural and therefore reversible per se. Id. In the present case, the trial court found two aggravating factors without submitting those factors to the jury for proof beyond a reasonable doubt. Pursuant to Allen, the trial court committed reversible error. We therefore remand defendant's case to the trial court for re-sentencing.
V.

    Defendant's fifth assignment of error is that the trial court erred in sentencing defendant as a Level IV offender rather than a Level III. Under North Carolina's structured sentencing guidelines, a defendant is subject to enhanced sentencing based on his prior convictions. N.C. Gen. Stat. §§ 15A-1340.14, 15A-1340.21 (2005).
    In the case before us, it is clear from the record that defense counsel, the State, and the trial court overlooked a mathematical miscalculation when completing the Prior Record Level Worksheet. The total was mistakenly recorded as thirteen points (Prior Record Level IV) when it should have been seven points (Level III). We therefore remand to recalculate defendant's prior record level pursuant to N.C. Gen. Stat. §§ 15A-1340.14 and 15A- 1340.21, and to re-sentence defendant accordingly.
VI.

    Defendant's final assignment of error is that defendant's trial and sentencing were unfair and prejudicial based on an aggregate of the aforementioned errors. As discussed above, any errors in sentencing will be remedied when (1) defendant's case is remanded for re-sentencing pursuant to Blakely; and (2) defendant is re-sentenced at the correct prior record level under N.C. Gen. Stat. §§ 15A-1340.14 and 15A-1340.21.
    The sole non-sentencing error occurred at the end of the trial, when the trial court instructed the jury on robbery with a dangerous weapon. This error will be remedied when defendant's judgment for armed robbery is reversed, and the trial court enters judgment for the offense of common law robbery.
    No error in part; remanded in part.
    Chief Judge MARTIN and Judge ELMORE concur.
    Report per Rule 30(e).

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