An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-1407


Filed: 05 July 2006


         v.                        Cherokee County
                                Nos. 03 CRS 051800
                                 03 CRS 051802
EDWIN MAURICE CLARK                

    Appeal by defendant from judgments entered 4 January 2005 by Judge James L. Baker in Cherokee County Superior Court. Heard in the Court of Appeals 19 June 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General Kathy M. Waylett, for the State.

    David Childers for defendant-appellant.

    STEELMAN, Judge.

    On 6 July 2004, defendant, Edwin Maurice Clark, was indicted for two counts of assault on a law enforcement officer with a firearm and two counts of resisting a public officer. Specifically, defendant was charged with assaulting two officers with the Cherokee County Sheriff's Department by firing a .22 caliber semi-automatic rifle at them. The case was tried at the 3 January 2005 Criminal Session of Cherokee County Superior Court.
    At trial, the officers testified defendant was intoxicated. During deliberations, the jury sent the trial judge a note asking “Does diminished capacity have merit?” After conferring with theprosecutor and defense counsel, the trial court instructed the jury that “[t]here is no issue of diminished capacity in this case.”
    The jury found defendant guilty of two counts of assault on a law enforcement officer with a firearm. The trial court sentenced defendant to consecutive terms of twenty-nine to forty-four months imprisonment. Defendant appeals.
    Defendant contends the trial court committed plain error by failing to instruct the jury on voluntary intoxication . Defendant further contends the trial court erred in telling the jury, in response to its question regarding diminished capacity, that diminished capacity had no merit as a defense in this case. After careful review of the record, briefs and contentions of the parties, we find no error.
    Diminished capacity by reason of intoxication can only serve as a defense to specific intent crimes. See State v. Howie, 116 N.C. App. 609, 613, 448 S.E.2d 867, 869-70 (1994) . Here, defendant was charged with assault on a law enforcement officer with a firearm, a general intent crime. State v. Childers, 154 N.C. App. 375, 382, 572 S.E.2d 207, 212 (2002). The crime is referred to as a “general intent crime” because in order to find the defendant guilty, the jury “'is not required to find the defendant possessed any intent beyond the intent to commit the unlawful act, and this will be inferred or presumed from the act itself.'” State v. Page, 346 N.C. 689, 700, 488 S.E.2d 225, 232 (1997) (citations omitted). Accordingly, the trial court did not commit plain error in failing to instruct the jury on voluntary intoxication as that was not adefense to the crime charged. Nor did the trial court err in informing the jury that diminished capacity had no applicability in this case since it is not a defense to a general intent crime. Id. Accordingly, we find no error.
     We also note the record includes additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C. R. App. P. 28(b)(6), they are deemed abandoned.
    NO ERROR .
    Judges MCCULLOUGH and HUDSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***