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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1606


Filed: 3 July 2007


         v.                        Jackson County
                                Nos. 04 CRS 53086, 53281,
JERRY MACK BROWN                     05 CRS 928

    Appeal by defendant from judgments entered 29 August 2006 by Judge Laura J. Bridges in Jackson County Superior Court. Heard in the Court of Appeals 11 June 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Brian C. Wilks, for the State.

    Carol Ann Bauer for defendant-appellant.

    MARTIN, Chief Judge.

     Defendant Jerry Mack Brown was convicted by a jury of malicious conduct by a prisoner and misdemeanor assault on a government official. He then pled no contest to having attained habitual felon status. The trial court sentenced defendant to a term of 133 to 169 months imprisonment on the felony convictions, and a consecutive term of 150 days imprisonment for the misdemeanor assault conviction. Defendant appeals.     
     Defendant first argues that the trial court erred by failing to indicate whether the felony sentences were in the mitigated, presumptive or aggravated range. Defendant asserts that the judgment and commitment form requires the trial court to indicatethat either a sentence is in the presumptive range (Block 1), or that the court has made findings of aggravating and mitigating factors (Block 2). Here, defendant argues that the trial court failed to mark either block. Further, defendant contends the trial court did not indicate at the sentencing hearing whether the sentence fell within the mitigated, presumptive or aggravated range. Defendant notes his sentence as a Class C, Level IV felon straddles both the aggravated and presumptive ranges. Therefore, defendant argues his sentence could be in the presumptive or aggravated range. We are not persuaded.
     The charts contained in N.C.G.S. § 15A-1340.17(c) and (e) show the trial court properly sentenced defendant within the presumptive range of sentences for a Class C, Level IV felony. The minimum sentence with the presumptive range for a Class C, Level IV felony is from 107 to 133 months; defendant's minimum sentence was within that range. N.C. Gen. Stat. 15A-1340.17(c) (2005). The corresponding maximum sentence of 169 months is that specified in N.C.G.S. 15A-1340.17(e). The failure of the trial court to mark the appropriate box on the judgment and commitment form was mere clerical error.
    Defendant next argues the trial court erred by denying his motion for an expert witness. Defendant explains that his defense at trial was that he was in a “blackout state” and not in control of his actions. Defendant claims that appointment of an expert was necessary to explain to the jury “what occurs when an alcoholic goes into a blackout and is not in control of or even aware of hisactions.” Accordingly, defendant contends that he made a particularized showing of need for an expert witness, and the trial court abused its discretion by denying his request. We do not agree.
    “In order to receive state-funded expert assistance, an indigent defendant must make 'a particularized showing that: (1) he will be deprived of a fair trial without the expert assistance, or (2) there is a reasonable likelihood that it would materially assist him in the preparation of his case.'” State v. McNeill, 349 N.C. 634, 650, 509 S.E.2d 415, 424 (1998)(citation omitted), cert. denied, 528 U.S. 838, 145 L. Ed. 2d 87 (1999). In the instant case, defendant failed to meet this burden.
    Defendant sought appointment of an expert in order to support his claim that “intoxication made him incapable of forming any intent to commit this crime[.]” However, “[i]ntoxication is not a defense unless the crime charged requires a specific intent, such as first-degree murder.” State v. Coffey, 43 N.C. App. 541, 544, 259 S.E.2d 356, 358 (1979)(citations omitted); see also State v. Howie, 116 N.C. App. 609, 613, 448 S.E.2d 867, 869 (1994) (“ Voluntary intoxication may negate the existence of specific intent as an essential element of a crime.”) (citing State v. Harvell, 334 N.C. 356, 367, 432 S.E.2d 125, 131 (1993)). Here, defendant was charged with malicious conduct by a prisoner, a general intent crime. See State v. Robertson, 161 N.C. App. 288, 293, 587 S.E.2d 902, 905 (2003). Thus, diminished capacity had no applicability in this case. Id. Therefore, because intoxicationwas not a defense to the crime charged, defendant has failed to demonstrate that appointment of an expert would have aided in his defense. Accordingly, we find no error.
    No error.
    Judges CALABRIA and JACKSON concur.
    Report per Rule 30(e).

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