Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 10/13/2024
E.g., 10/13/2024

In this Craven County case, defendant was convicted of possession of a firearm by a felon, resisting a public officer, injury to personal property, and going armed to the terror of the public for defendant’s actions in an apartment complex parking lot. On appeal, the Court of Appeals determined that the trial court lacked jurisdiction for the charge of going armed to the terror of the public because the indictment did not allege the acts supporting the conviction occurred on a public highway.

The court first established the four essential elements of going armed to the terror of the public, which are “(1) armed with unusual and dangerous weapons, (2) for the unlawful purpose of terrorizing the people of the named county, (3) by going about the public highways of the county, (4) in a manner to cause terror to the people.” Slip Op. at ¶ 7 (quoting State v. Staten, 32 N.C. App. 495, 497 (1977)). The court then examined the common law history of going armed to the terror of the public, explaining that historically “a defendant could commit the crime of ‘going armed to the terror of the public’ in any location that the public is likely to be exposed to his acts, even if committed on privately-owned property.” Slip Op at ¶ 8.

Despite the common law interpretation of the crime, the court determined that the Staten requirement of an act on a “public highway” represented controlling precedent, and no North Carolina Supreme Court case had examined the public highway issue since Staten. After confirming that an act on a public highway was an essential element of the crime, the court found that the parking lot of a private apartment complex was not a “public highway” for purposes of going armed to the terror of the public.

Judge Griffin concurred in part and dissented in part with a separate opinion.

In this case involving convictions for first-degree kidnapping and misdemeanor assault with a deadly weapon, among other offenses, the State presented sufficient evidence of the offenses and the trial court did not err by denying the defendant’s motion to dismiss on that basis.  With regard to the kidnapping conviction, the defendant argued that the State failed to present substantial evidence the defendant’s purpose was to terrorize the victim.  Recounting evidence that the defendant hid in the backseat of the victim’s car holding a knife while he waited for her to get off work, forced her to remain in the car and drive by choking her and threatening her with the knife, and forcefully struck her on the head when she attempted to scream for help, the court rejected this argument and bolstered its position by describing her frantic efforts to escape. 

The court also found sufficient evidence of misdemeanor assault with a deadly weapon under both the show of violence theory of assault and the act or attempt to do injury to another theory of assault.  The State’s evidence tended to show that after two men scuffled with the defendant in an attempt to aid the victim, the defendant jumped into the driver’s seat of the victim’s car and attempted to run the men over and nearly did so.  This was sufficient evidence of assault under either theory.

State v. Starr, 209 N.C. App. 106 2011-01-04 aff'd on other grounds, 364 N.C. 314 (Dec 9 2011)

In a case involving assault on a firefighter with a firearm, there was sufficient evidence that the defendant committed an assault. To constitute an assault, it is not necessary that the victim be placed in fear; it is enough if the act was sufficientto put a person of reasonable firmness in apprehension of immediate bodily harm. “It is an assault, without regard to the aggressor's intention, to fire a gun at another or in the direction in which he is standing.” Here, the defendant shot twice at his door while firefighters were attempting to force it open and fired again in the direction of the firefighters after they forced entry. The defendant knew that people were outside the door and shot the door to send a warning.

Assault is not a lesser-included offense of sexual battery.

The Court of Appeals improperly found that attempted assault is not a recognized criminal offense in North Carolina. The court rejected the notion that attempted assault is an “attempt of an attempt.” Thus, a prior conviction for attempted assault with a deadly weapon inflicting serious injury can support a later charge of possession of a firearm by a felon and serve as a prior conviction for purposes of habitual felon status.

A defendant may not be convicted of assault with a deadly weapon under G.S. 14-32 and assault on a child under G.S. 14-33 based on the same incident. G.S. 14-33 states that a defendant shall be guilty of assault on a child unless another statue provides harsher punishment for the same conduct. Here, because the defendant was convicted and sentenced for assault with a deadly weapon for his assault on the same victim and since this conviction carries a harsher punishment than assault on a child, the conviction and sentence for assault on a child must be vacated.

Assault on a female is not a lesser-included of first-degree sexual offense.

In a case with multiple victims, the court rejected the defendant’s argument that the State’s evidence was too vague for the jury to infer that he pointed the gun at any particular individual. One witness testified that upon defendant’s orders, “everybody ran in the room with us … and he was waiving [sic] the gun at us[.]” Another testified that “[w]hen [defendant] came down the hall, when he told everyone to get into one room, all of them came in there … [e]ven the two little ones ….” She further testified, “I was nervous for the kids was down there hollering and carrying on, and he hollered – he point [sic] the gun toward everybody in one room. One room. And told them come on in here with me.” A third testified that once everybody was in the same bedroom, defendant pointed the shotgun outward from his shoulder.

The evidence was insufficient to support an adjudication of delinquency based on assault by pointing a gun where the weapon was an airsoft gun from which plastic pellets were fired using a “pump action” mechanism. For purposes of the assault by pointing a gun statute, the term “gun” “encompasses devices ordinarily understood to be ‘firearms’ and not other devices that fall outside that category.” Slip op. at 12. Thus, imitation firearms are not covered. The court noted that its conclusion had no bearing on whether the juvenile might be found delinquent for assault with a deadly weapon inflicting serious injury, assault with a deadly weapon, assault inflicting serious injury, or assault on a child under twelve.

The evidence was sufficient to establish assault by strangulation. The victim testified that the defendant strangled her twice; the State’s medical expert testified that the victim’s injuries were consistent with strangulation; and photographic evidence showed bruising, abrasions, and a bite mark on and around the victim’s neck. The court rejected the defendant’s arguments that the statute required “proof of physical injury beyond what is inherently caused by every act of strangulation” or extensive physical injury.

The trial court did not err by denying the defendant’s motion to dismiss a charge of assault by strangulation on the same victim. The defendant argued that because his obstruction of the victim’s airway was caused by the defendant’s hand over the victim’s nose and mouth, rather than “external pressure” applied to the neck, it was “smothering” not “strangling”. Rejecting this argument, the court concluded:

We do not believe that the statute requires a particular method of restricting the airways in the throat. Here, defendant constricted [the victim’s] airways by grabbing him under the chin, pulling his head back, covering his nose and mouth, and hyperextending his neck. Although there was no evidence that defendant restricted [the victim’s] breathing by direct application of force to the trachea, he managed to accomplish the same effect by hyperextending [the victim’s] neck and throat. The fact that defendant restricted [the victim’s] airway through the application of force to the top of his neck and to his head rather than the trachea itself is immaterial.

(1) The evidence was sufficient to establish assault by strangulation; the victim told an officer that she felt that the defendant was trying to crush her throat, that he pushed down on her neck with his foot, that she thought he was trying to “chok[e] her out” or make her go unconscious, and that she thought she was going to die. (2) Even if the offenses are not the same under the Blockburger test, the statutory language, “[u]nless the conduct is covered under some other provision of law providing greater punishment,” prohibits sentencing a defendant for this offense and a more serious offense based on the same conduct.

State v. Davis, 197 N.C. App. 738 2009-07-07 aff’d in part, rev’d in part, 364 N.C. 297 (Aug 27 2010)

Committing a violation of G.S. 20-138.1 (impaired driving) constitutes culpable negligence as a matter of law sufficient to establish the requisite intent for assault with a deadly weapon inflicting serious injury.

In this Forsyth County case, defendant appealed her conviction for assault with a deadly weapon inflicting serious injury, arguing error in (1) instructing the jury that the knife was a deadly weapon per se, and (2) declining to instruct the jury on the lesser-included offense of misdemeanor assault inflicting serious injury. The Court of Appeals found no error. 

At a Father’s Day cookout in 2021, defendant and the victim, a woman who was serving macaroni and cheese, began to argue. Over the course of the day, the two had several confrontations about whether defendant was entitled to be served any of the macaroni and cheese. The confrontations led to a fight, where defendant slashed the victim several times with a small pocketknife, causing injuries to her face, arms, and torso. At trial, defense counsel requested that the jury be instructed on lesser included offenses and that the knife did not constitute a per se deadly weapon, but the trial court overruled this request and did not instruct on lesser included offenses. 

Reviewing (1), the Court of Appeals noted that the knife in question was not admitted into evidence at trial. Defendant argued that without the knife in evidence and without testimony of its character and appearance, it was improper to instruct the jury that it was a deadly weapon. The court disagreed, explaining “although the State bears the burden of proving, inter alia, the use of a deadly weapon, the State is not required to producethe alleged weapon to obtain a conviction for an assault involving a deadly weapon.” Slip Op. at 12. The court also disagreed with defendant about the evidence of the knife, as body-cam footage of defendant describing the knife was in the record, as well as evidence of the injuries sustained by the victim. After determining the trial court properly instructed the jury that the knife was a deadly weapon, the court concluded that (2) was also properly decided, explaining that the State’s evidence supported every element of the crime charged and “there was no conflicting evidence relating to any element of the charged crime.” Id. at 15 (cleaned up). 

A defendant may not be convicted of assault with a deadly weapon under G.S. 14-32 and assault on a child under G.S. 14-33 based on the same incident. G.S. 14-33 states that a defendant shall be guilty of assault on a child unless another statue provides harsher punishment for the same conduct. Here, because the defendant was convicted and sentenced for assault with a deadly weapon for his assault on the same victim and since this conviction carries a harsher punishment than assault on a child, the conviction and sentence for assault on a child must be vacated.

Given the manner of its use, there was sufficient evidence that a kitchen table chair was a deadly weapon.

There was sufficient evidence that a lawn chair was a deadly weapon for purposes of assault. The victim was knocked unconscious and suffered multiple facial fractures and injuries which required surgery; after surgery his jaw was wired shut for weeks and he missed 2-3 weeks of work; and at trial the victim testified that he still suffered from vision problems. Because the State presented evidence that the defendant assaulted the victim with the lawn chair and not his fists alone, it was not required to present evidence as to the parties’ size or condition.

Based on the manner of its use, a car was a deadly weapon as a matter of law. The court based its conclusion on the vehicle’s high rate of speed and the fact that the officer had to engage in affirmative action to avoid harm.

The trial court did not err by instructing the jury that a pickaxe was a deadly weapon. The pickaxe handle was about 3 feet long, and the pickaxe weighed 9-10 pounds. The defendant swung the pickaxe approximately 8 times, causing cuts to the victim’s head that required 53 staples. She also slashed his middle finger, leaving it hanging only by a piece of skin.

The trial judge committed prejudicial error with respect to its instruction on the intent element for the charges of assault with a deadly weapon, in a case in which a vehicle was the deadly weapon. In order for a jury to convict of assault with a deadly weapon, it must find that it was the defendant's actual intent to strike the victim with his vehicle, or that the defendant acted with culpable negligence from which intent may be implied. Because the trial court’s instruction erroneously could have allowed the jury to convict without a finding of either actual intent or culpable negligence, reversible error occurred.

The evidence was sufficient to establish that the knife used in the assault was a deadly weapon where a witness testified that the knife was three inches long and the victim sustained significant injuries.

The vehicle at issue was not a deadly weapon as a matter of law where there was no evidence that the vehicle was moving at a high speed and given the victim’s lack of significant injury and the lack of damage to the other vehicle involved, a jury could conclude that the vehicle was not aimed directly at the victim and that the impact was more of a glancing contact.

There was sufficient evidence that the defendant’s hands were a deadly weapon as to one victim when the evidence showed that the defendant was a big, stocky man, probably larger than the victim, who was a female and a likely user of crack cocaine, and the victim sustained serious injuries. There was sufficient evidence that the defendant’s hands were a deadly weapon as to another victim when the evidence showed that the victim was a small-framed, pregnant woman with a cocaine addiction and the defendant used his hands to throw her onto the concrete floor, cracking her head open, and put his hands around her neck.

The defendant and an accomplice, both female, assaulted a male with fists and tree limbs. The two females individually, but not collectively, weighed less than the male victim, and both were shorter than him. They both were convicted of assault with a deadly weapon inflicting serious injury. The court ruled that the evidence was sufficient to prove that the fists and the tree limbs were deadly weapons.

The defendant and his accomplice discussed intentionally forcing drivers off the road in order to rob them and one of them then deliberately threw a very large rock or concrete chunk through the driver’s side windshield of the victim’s automobile as it was approaching at approximately 55 or 60 miles per hour. The size of the rock and the manner in which it was used establishes that it was a deadly weapon.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of assault with a deadly weapon with intent to kill inflicting serious injury on victim Stokes. The court rejected the defendant’s argument that the State was required to prove that the defendant specifically intended to kill Stokes when he fired into a trailer when Stokes and others were present. The court reasoned that “It is not determinative to this issue of whether or not Defendant knew Stokes was in the trailer.” It concluded: “there was sufficient evidence for the jury to infer Defendant intended to kill whoever was inside the trailer.” The court noted that, among other things, the defendant fired numerous shots into the trailer knowing it was occupied.

(2) The court rejected the defendant’s argument that the assault conviction should be reversed because the trial court did not instruct the jury on the doctrine of transferred intent, noting that the State did not argue transferred intent and neither party requested a transferred intent instruction. Rather, the State’s evidence showed that the defendant knew a trailer was occupied by at least two people when he fired into it numerous times. Based on the nature of the assault, the evidence was sufficient for the jury to find that the defendant intended to kill whoever was in the trailer.

The evidence was sufficient to show an assault with intent to kill an officer when, after having fatally shot eight people, the defendant ignored the officer’s instructions to drop his shotgun and continued to reload it. The defendant then turned toward the officer, lowered the shotgun, and fired one shot at the officer at the same time that the officer fired at the defendant.

There was sufficient evidence of an intent to kill when during a robbery the defendant fired a gun beside the store clerk’s head and the clerk testified that he thought the defendant was going to kill him.

State v. Wilkes, 225 N.C. App. 233 2013-01-15 aff’d per curiam, 367 N.C. 116 (Oct 4 2013)

The trial court did not err by denying the defendant’s motion to dismiss a charge of assault with deadly weapon with intent to kill, over the defendant’s argument that there was insufficient evidence of an intent to kill. This charge was based on the defendant’s use of a bat to assault his wife. The court determined that the nature and manner of the attack supported a reasonable inference that the defendant intended to kill, including that he hit her even after she fell to her knees, he repeatedly struck her head with the bat until she lost consciousness, she never fought back, and the wounds could have been fatal. Also, the circumstances of the attack, including the parties’ conduct, provided additional evidence of intent to kill, including that the two had a volatile relationship and the victim had recently filed for divorce.

The trial court did not err by failing to instruct the jury on the lesser-included offense of assault with a deadly weapon inflicting serious injury to the charge of assault with a deadly weapon with intent to kill inflicting serious injury. The defendant broke into a trailer in the middle of the night and used an iron pipe to repeatedly beat in the head an unarmed, naked victim, who had just woken up.

There was sufficient evidence of an intent to kill and the weapon used was deadly as a matter of law. The defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury and other offenses. There was sufficient evidence of an intent to kill where the defendant and his accomplice discussed intentionally forcing drivers off the road in order to rob them and one of them then deliberately threw a very large rock or concrete chunk through the driver’s side windshield of the victim’s automobile as it was approaching at approximately 55 or 60 miles per hour. The court concluded that it is easily foreseeable that such deliberate action could result in death, either from the impact of the rock on or a resulting automobile accident.

In this Rowan County case, defendant appealed his conviction for assault inflicting physical injury on an employee of a state detention facility, arguing the jury should have been instructed on the lesser included offense of assault on an officer or employee of the State. The Court of Appeals disagreed, finding no error. 

In March of 2021, defendant was confined at Piedmont Correctional Center. He became agitated because he did not receive the personal hygiene items he needed and began discussing the matter with correctional officers. Eventually, a sergeant asked him to leave his cell and walk to a private area to discuss. During the walk, defendant turned around and struck the sergeant in the face with his fist, leading to a tussle before defendant was subdued. At trial, a video recording of the incident was played for the jury, and the sergeant testified that he was struck “multiple times in the face, around six to ten times.” Slip Op. at 3. During the charge conference, defense counsel requested the lesser included offense, but the trial court denied the request. 

Before taking up the substance of defendant’s appeal, the Court of Appeals discussed the appellate jurisdiction for the case. Defendant gave notice of appeal in open court but gave this notice the day after the trial court sentenced him for the offense. The court considered what “at the time of trial” meant for purposes of the appeal. Id. at 5. After reviewing relevant precedent and appellate rules, the court concluded that defendant’s appeal was timely because he “provided notice of appeal in open court while the judgment was in fieri and the trial court possessed the authority to modify, amend, or set aside judgments entered during that session.” Id. at 8. 

Moving to the jury instruction, the court noted the distinction between the two offenses was the “physical injury” element not present in the lesser offense. The court found the physical injury element was sufficiently satisfied by the evidence showing defendant struck the sergeant in the face. Because the State supplied sufficient evidence of each element of the offense, there was no error in omitting the instruction on the lesser included offense. 

In this Wake County case, defendant appealed his convictions for forcible rape, sex offense, kidnapping, various assault charges, and interfering with emergency communication, arguing (1) he was deprived of his right to autonomy in the presentation of his defense, (2) he was deprived of effective assistance of counsel when his attorney admitted guilt during closing argument, and (3) the trial court lacked jurisdiction to sentence him for habitual misdemeanor assault due to a facially invalid indictment. The Court of Appeals majority disagreed, finding no error. 

In April of 2020, defendant came to trial for assaulting and raping a woman he was dating at the time. During the trial, defense counsel informed the court that defendant would not testify or present evidence, and the trial court conducted a colloquy to ensure defendant was knowingly waiving this right. During the colloquy, defendant mentioned documentary evidence he wanted to admit, but that his attorney had not admitted. The trial court did not instruct defense counsel to introduce the evidence. During closing argument, defense counsel mentioned that defendant was not guilty of kidnapping, sexual offense, or rape, but did not mention assault. Defendant was subsequently convicted, and appealed.  

In (1), defendant contended that he and defense counsel had reached an absolute impasse about the documentary evidence, and the trial court committed a structural error by failing to instruct defense counsel to comply with defendant’s wishes to admit the evidence. The Court of Appeals first noted the rule that “where the defendant and his defense counsel reach an absolute impasse and are unable come to an agreement on such tactical decisions, the defendant’s wishes must control.” Slip Op. at 5. However, here the court was “unable to determine from the cold record whether there was a true disagreement, which would amount to an absolute impasse.” Id. at 7-8. Additionally, the court explained that even if there was an error, it was not a type recognized as structural by the Supreme Court, referencing the list identified in State v. Minyard, 289 N.C. App. 436 (2023). 

Moving to (2), defendant argued his defense counsel committed an error under State v. Harbison, 315 N.C. 175 (1985), which would represent ineffective assistance of counsel. However, the court did not see a Harbison error, noting “defense counsel here never implied or mentioned any misconduct [by defendant]” while giving closing argument. Slip Op. at 15. Instead, the court held that “[defense counsel’s] statements cannot logically be interpreted as an implied concession of Defendant’s guilt.” Id.  

Finally, in (3) defendant argued that the indictment was flawed as it failed to state the assault caused “physical injury.” Id. at 17. The court explained that here, count VIII of the indictment alleged that defendant caused “serious injury” for the assault inflicting serious injury charge. Id. at 18. The court determined that the broader term was sufficient, as “it logically follows Defendant was noticed of his need to defend against an allegation that he caused physical injury as ‘serious injury’ is defined to include physical injury.” Id. at 21. 

Judge Murphy concurred in part and dissented in part by separate opinion, and would have held that the indictment for habitual misdemeanor assault in (3) was insufficient as physical injury and serious injury were not synonymous.  

In an assault with a deadly weapon inflicting serious injury case, the trial court did not err by instructing the jury that three gunshot wounds to the leg constituted serious injury. The victim was shot three times, was hospitalized for two days, had surgery to remove a bone fragment from his leg, and experienced pain from the injuries up through the time of trial. From this evidence, the court concluded, it is unlikely that reasonable minds could differ as to whether the victim’s injuries were serious.

(1) There was sufficient evidence that the victim suffered serious injury. The defendant shot the victim with a shotgun, causing injuries to the victim’s calf and 18-20 pellets to lodge in his leg, which did not fully work themselves out for six months. One witness testified that the victim had holes in his leg from the ankle up and another observed blood on his leg and noted that the wounds looked like little holes from birdshot from a shotgun. (2) When the trial judge used N.C.P.J.I.—Crim. 208.15 to instruct the jury on the offense of assault with a deadly weapon with intent to kill inflicting serious injury, it did not err by failing to also give instruction 120.12, defining serious injury.

The trial court did not commit plain error by peremptorily instructing the jury that multiple gunshot wounds to the upper body would constitute serious injury. The victim required emergency surgery, was left with scars on his chest, shoulder, back and neck, and a bullet remained in his neck, causing him continuing pain.

The trial court did not err by failing to instruct on the lesser-included offense of assault with a deadly weapon to the charge on assault with a deadly weapon inflicting serious injury. After a beating by the defendant, the victim received hospital treatment, had contusions and bruises on her knee, could not walk for about a week and a half, and her knee still hurt at the time of trial.

The evidence was sufficient to establish serious injury where the defendant had a three-inch knife during the assault; the victim bled “a lot” from his wounds, dripping blood throughout the bedroom, bathroom, and kitchen; the victim was on the floor in pain and spitting up blood when the officer arrived; the victim was stabbed or cut 8 or 9 times and had wounds on his lip, back, and arm; the victim was removed by stretcher to the emergency room, where he remained for 12 hours, receiving a chest tube to drain blood, stitches in his back and arm, and was placed on a ventilator because of a lung puncture; the victim received pain medication for approximately one week; and at trial the victim still had visible scars on his lip, arm, and back.

The defendant was convicted by a jury of assault inflicting serious bodily injury and assault on a female based on an argument and fight with the mother of his child. He pushed her down, threw her head into the concrete, punched her, dragged her, and flung her onto the hood of a car. Among other injuries she had two concussions and a fractured eye socket that rendered her temporarily blind in one eye for two weeks. (1) The defendant argued on appeal that the indictment failed to allege the crime of assault inflicting serious bodily injury in that it alleged injuries that would be no more than misdemeanor assault inflicting serious injury, namely, “several lacerations to the face resulting in stitches and a hematoma to the back of the head.” The court of appeals disagreed, holding that the additional description of the victim’s injuries in the indictment was irrelevant as to its validity, and may be regarded as incidental to the salient statutory language, which was present. (2) The injury to the victim’s eye met the statutory definition of “serious bodily injury” in G.S. 14-32.4(a) in that the defendant was completely blind in her left eye for one week and her vision was not fully restored for two full weeks after the assault. She could not drive for one week and was not able to return to work until her vision was completely restored. A reasonable juror thus could have concluded that the injury resulted in a “protracted loss or impairment of the function of a bodily member or organ,” and that it therefore qualified as a serious bodily injury. (3) Finally, the court declined to consider the defendant’s argument on appeal that the trial court should have instructed the jury on misdemeanor assault inflicting serious injury. The defendant never objected to the instructions at trial and failed to argue plain error on appeal. Therefore, he waived the issue on appeal. A judge dissenting in part would have found the evidence here insufficient to qualify as a “protracted loss or impairment” when the victim fully recovered in in two weeks.

State v. Fields, ___ N.C. App. ___, 827 S.E.2d 120 2019-04-16 aff'd on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Jun 5 2020)

In an assault inflicting serious bodily injury case involving the defendant’s assault on a transgender woman, A.R., the evidence was sufficient to establish that serious bodily injury occurred. A.R.’s injury required stitches, pain medication, time off from work, and modified duties once she resumed work. Her pain lasted for as much as six months, and her doctor described it as “significantly painful.” This evidence tends to show a “permanent or protracted condition that causes extreme pain.” Moreover, the assault left A.R. with a significant, jagged scar, which would support a finding of “serious permanent disfigurement.”

The evidence was sufficient to support a conviction for felony assault inflicting serious bodily injury. On appeal the defendant challenged only the element of serious bodily injury. As a result of the assault, the victim suffered from difficulty swallowing, numerous lacerations, a concussion, and severe headaches. The headaches continued at least through the time of trial, four years after the attack. The headaches thus constitute a permanent or protracted condition that causes extreme pain.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of assault on a law enforcement officer inflicting serious bodily injury. The defendant asserted that he only used the amount of force reasonably necessary to resist an unlawful arrest. In the case, the officer responded to a 911 call reporting a suspicious person who refused to leave a public housing complex. The person was described as a male in his 30s wearing all black and near or around an older model, a black truck. The police department had an agency agreement with the complex giving officers the authority to remove trespassers from the property. Upon arrival the officer saw the male defendant wearing all black clothing and standing in front of an older model, black truck with a beer can in his hand. When the two spoke, the officer could smell a strong odor of alcohol emitting from the defendant. After further interaction, the officer explained to the defendant that he was trespassing. In part because of his impairment, the officer asked the defendant how he was going to get home. The defendant gave no clear answer. The officer informed the defendant that he was being “trespassed” and although not under arrest he would be taken for a “detox.” The officer attempted to handcuff the defendant in accordance with department policy to handcuff people transported by the police. When the officer reached for his handcuff pouch, the defendant became aggressive and used foul language, tensed up and tried to pull away from the officer. Trying to get control of the defendant, the officer pushed the defendant towards his vehicle. The officer informed the defendant that he was under arrest for resisting delaying and obstructing an officer. The defendant tried to turn around, raising his fist as if to “throw a punch.” The officer pointed his Taser at the defendant giving commands and advising him that he was under arrest. The defendant fled and the officer pursued. When the defendant fell to the ground on his back, the officer commanded him to roll over and put his hands behind his back. The defendant refused to comply and raised his feet and hands towards the officer “taking a combat stance.” The officer fired his Taser. However, the defendant was able to remove one of the Taser leads and took flight again. After the officer tackled the defendant, a struggle ensued. Backup arrived and assisted in securing the defendant. The officer sustained injuries from the struggle. There was sufficient evidence of the first element of the offense, an assault on the officer. Specifically, the officer testified that the defendant hit and bit him. There also was sufficient evidence with respect to serious bodily injury. Specifically, the officer testified that the bites caused extreme pain, skin removal, permanent scarring, and hospitalization. Photographs of the injuries were shown to the jury, as were the officer’s scars. The evidence also was sufficient to establish the third element, that the victim was a law enforcement officer performing his official duties at the time of the assault. The evidence showed that the officer was attempting to discharge his official duties as a routine patrol officer by responding to a report about a trespasser, conducting investigative work and acting on the results of his investigation. Finally, the evidence was sufficient to establish that the defendant knew or had reasonable grounds to know that the victim was a law enforcement officer. Here, the officer arrived in a marked patrol vehicle, was in uniform and told the defendant that he was a law enforcement officer.

(2) The trial court did not err by failing to instruct the jury on the right to resist an unlawful arrest. Here, an arrest occurred when under G.S. 122C-303, the officer attempted, against the defendant’s will, to take the publicly intoxicated defendant to jail to assist him. However, probable cause to arrest the defendant for second-degree trespass existed at this time. It does not matter that the officer did not arrest the defendant for that offense. The arrest was lawful because there was probable cause that the defendant had committed the trespass offense in the officer’s presence. Throughout the officer’s investigation, the defendant remained at the complex without authorization, even after he had been notified not to enter or remain there by the officer, a person authorized to so notify him. The court rejected the defendant’s argument that second-degree trespass does not create probable cause to arrest because that offense is a misdemeanor.

(3) The trial court did not err by failing to instruct the jury on the right to defend oneself from excessive force by a law enforcement officer where the evidence did not show that the officer’s use of force was excessive.

The trial court erred by denying the defendant’s motion to dismiss charges of assault inflicting serious bodily injury where there was insufficient evidence that the officer sustained serious bodily injury from the defendant’s bites. There was insufficient evidence of a permanent or protracted condition that causes extreme pain. Although there was evidence that the bite caused swelling and bruising that resolved in about one month, there was no evidence that the injury continued to cause the officer significant pain subsequent to his initial hospital treatment. Furthermore there was insufficient evidence of serious, permanent disfigurement, notwithstanding discoloration at the site of the bite.

(1) The evidence was sufficient to establish that the defendant inflicted serious bodily injury on the victim. The beating left the victim with broken bones in her face, a broken hand, a cracked knee, and an eye so beat up and swollen that she could not see properly out of it at the time of trial. The victim testified that her hand and eye “hurt all of the time.” (2) The defendant could not be convicted and sentenced for both assault inflicting serious bodily injury and assault on a female when the convictions were based on the same conduct. The court concluded that language in the assault on a female statute (“[u]nless the conduct is covered under some other provision of law providing greater punishment . . . .”) reflects a legislative intent to limit a trial court’s authority to impose punishment for assault on a female when punishment is also imposed for higher class offenses that apply to the same conduct (here, assault inflicting serious bodily injury).

(1) There was sufficient evidence of serious bodily injury with respect to one victim where the victim suffered a cracked pelvic bone, a broken rib, torn ligaments in her back, a deep cut over her left eye, and was unable to have sex for seven months; the eye injury developed an infection that lasted months and was never completely cured; the incident left a scar above the victim’s eye, amounting to permanent disfigurement; there was sufficient evidence of serious bodily injury as to another victim where the victim sustained a puncture wound to the back of her scalp and a parietal scalp hematoma and she went into premature labor as a result of the attack. (2) There was insufficient evidence of serious bodily injury as to another victim where the evidence showed that the victim received a vicious beating but did not show that her injuries placed her at substantial risk of death; although her ribs were “sore” five months later, there was no evidence that she experienced “extreme pain” in addition to the “protracted condition.” (4) Based on the language in G.S. 14-32.4(b) providing that “[u]nless the conduct is covered under some other provision of law providing greater punishment,” the court held that a defendant may not be sentenced to assault by strangulation and a more serious offense based on the same conduct. Because the statutory language in G.S. 14-32.4(a) proscribing assault inflicting serious bodily injury contains the same language, the same analysis likely would apply to that offense.

There was sufficient evidence that a 70-year-old victim suffered from a protracted condition causing extreme pain supporting a charge of assault inflicting serious bodily injury when the facts showed: the victim had dried blood on her lips and in her nostrils and abdominal pain; she had a bruise and swelling over her left collarbone limiting movement of her shoulder, and a broken collarbone, requiring a sling; she had cuts in her hand requiring stitches; she received morphine immediately and was prescribed additional pain medicine; she had to return to the emergency room 2 days later due to an infection in the sutured hand, requiring re-stitching and antibiotics; a nurse was unable to use a speculum while gathering a rape kit because the victim was in too much pain.

In this McDowell County case, defendant appealed his conviction for discharging a firearm into an occupied vehicle in operation and possessing a firearm as a felon, arguing error in (1) not instructing the jury on the lesser included offense of discharging a firearm into an occupied vehicle; (2) not defining “in operation” during the jury instructions; and (3) denying defendant’s motion to dismiss. The Court of Appeals disagreed, finding no error.

In June of 2022, defendant’s ex-girlfriend and two accomplices drove a vehicle onto his property to take a puppy from his home. Testimony from the parties differed, but a firearm was discharged into the rear passenger side window of the vehicle as the ex-girlfriend and her accomplices attempted to drive away with the puppy. The engine of the vehicle was running, but it was stopped when the shot was fired through the window. Defendant did not object to the jury instructions during the trial. 

Reviewing  (1) for plain error, the Court of Appeals noted that “in operation” is undefined in G.S. 14-34.1, but looking to the plain meaning of the words and consideration from a previous unpublished case, the court arrived at the following: “A vehicle is ‘in operation’ if it is ‘in the state of being functional,’ i.e., if it can be driven under its own power. For a vehicle to be driven, there must be a person in the driver’s seat, and its engine must be running.” Slip Op. at 6. Because all the evidence indicated someone was in the driver’s seat of the vehicle and the engine was running, the trial court did not err by not instructing on the lesser included offense. Likewise, this dispensed with (2), as the trial court did not need to provide instruction on the meaning of “in operation” due to the phrase carrying its common meaning. Resolving (3), the court noted that testimony in the record would allow a reasonable juror to conclude defendant fired a shot into the vehicle, representing substantial evidence to survive a motion to dismiss.

 

 

In this discharging a firearm into an occupied vehicle while in operation case, the trial court did not err by denying the defendant’s motion to dismiss for insufficient evidence.  Evidence at trial tended to show that the defendant fired a pistol at the victim’s truck and struck a toolbox fastened into the truck’s bed.  The court rejected the defendant’s argument that G.S. 14-34.1(b) requires at a minimum that the bullet strike the exterior wall of the vehicle.  Analogizing to State v. Miles, 223 N.C. App. 160 (2012), where it had determined that there was sufficient evidence of the version of the offense involving an occupied dwelling where a bullet struck a porch attached to a house, the court determined that striking the toolbox of the vehicle was sufficient to meet the firing “into [property]” element of the offense.

The defendant was convicted of possession of a firearm by a felon, three counts of assault with a deadly weapon and seven counts of discharging a firearm into an occupied vehicle based on an incident in which he chased two women from his house and fired at the car of a Good Samaritan who stopped to assist the women on the highway.  

(1) Though the defendant did not object to the testimony at trial, he argued on appeal that the Good Samaritan should not have been permitted to testify as a lay witness that the shots were not fired from an automatic weapon. The court of appeals found no error in the admission of the testimony, which was based on the witness’s first-hand knowledge of the incident and his familiarity with the distinction between automatic and semi-automatic rifle fire, gained through decades of military service.

(2) Defendant argued on appeal that the State failed to prove the six additional shots fired into the truck after the first shot were discharged willfully or wantonly within the meaning of G.S. 14-34.1(b). The court of appeals rejected the defendant’s argument. The court noted that the Good Samaritan’s testimony provided evidence that the defendant did not use an automatic weapon but instead used a weapon that required him to pull and release the trigger (and thus employ his thought process) each time he decided to shoot into the occupied truck. In addition, testimony from the Good Samaritan and one of the women established that the shooting continued over an identifiable period of time, as opposed to occurring in a rapid burst of gunfire.

Finally, the court of appeals dismissed the defendant’s argument that he had been sentenced in violation of his right to be free from double jeopardy on the basis that the defendant failed to preserve the argument by objecting a trial.

After getting into an argument at a holiday party, the defendant fired a warning shot from a rifle into the air and then fired a single shot into a moving vehicle occupied by two people, striking one of them in the neck and seriously injuring him. Defendant was subsequently convicted and sentenced for four felonies related to the shooting, including charges for both: (1) discharging a weapon into an occupied vehicle in operation inflicting serious bodily injury, a Class C felony under G.S. 14-34.1(c) (for the injured victim); and (2) discharging a weapon into an occupied vehicle in operation, a Class D felony under G.S. 14-34.1(b) (for the second occupant). On appeal, the defendant argued that the trial court should have arrested judgment on the lesser of the two charges for firing into an occupied vehicle, because he could not be sentenced twice for the single act of firing one shot. The Court of Appeals agreed and held that although the defendant could be indicted and tried for both charges, upon conviction the trial court should have arrested judgment for the lesser offense. This case was distinguishable from other cases in which multiple judgments were supported because the defendant fired multiple shots or fired into multiple vehicles. In this case, where there was only one shot fired into one vehicle, the relevant inquiry under the statute is only whether the vehicle was occupied; the number of occupants is immaterial. To the extent that the presence of additional occupants in the vehicle increases the risk of injury or enhances the culpability of the act, that factor is accounted for by the ascending levels of punishment prescribed under the statute.

The evidence was sufficient to support a conviction of discharging a weapon into occupied property. The defendant argued that the evidence was insufficient to show that the defendant knew that the property was occupied when he shot into the house. Here, an eyewitness testified that before discharging his firearm, the defendant loudly “called out” individuals inside the home, challenging them to come outside, and an individual was standing in the doorway just minutes earlier when the defendant slowly drove past, looking at the dwelling.

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of discharging a firearm into occupied property. The trial court improperly instructed the jury that it had to find that the defendant knew or had reasonable grounds to believe that the dwelling was occupied; this instruction raised the evidentiary bar for the State, as this offense only requires proof that the defendant had reasonable grounds to believe that the building might be occupied. The court rejected the defendant’s argument that the State was bound by the higher standard stated in the jury instruction. Evidence that the shooting occurred in a residential neighborhood in the evening and resident’s car was parked outside of her home sufficiently established that the defendant knew or had reasonable grounds to believe that the dwelling might be occupied. (2) The court rejected the defendant’s argument that the trial court’s jury instruction on discharging a firearm into occupied property was an improper disjunctive instruction. The defendant was indicted for firing into the home of Ms. Knox. At trial, all the evidence pertains to Knox’s home. The trial court’s jury instruction referred to discharging a firearm “into a dwelling,” without specifying Knox’s home. The jury instruction was not phrased in the disjunctive nor did it have “the practical effect of disjunctive instruction,” as argued by the defendant.

In a discharging a barreled weapon into occupied property case, the trial court did not err by instructing the jury that because the crime was a general intent crime, the State need not prove that the defendant intentionally discharged the fireadisrm into occupied property, and that it needed only prove that he intentionally discharged the firearm.

The evidence was sufficient to support a conviction for discharging a firearm into occupied property (a vehicle), an offense used to support a felony-murder conviction. The defendant argued that the evidence was conflicting as to whether he fired the shots from inside or outside the vehicle. Citing prior case law, the court noted that an individual discharges a firearm “into” an occupied vehicle even if the firearm is inside the vehicle, as long as the individual is outside the vehicle when discharging the weapon. The court continued, noting that mere contradictions in the evidence do not warrant dismissal and that here the evidence was sufficient to go to the jury.

The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property is a general intent crime, diminished capacity offers no defense.

With regard to a felony-murder charge, the evidence was sufficient to show the underlying felony of discharging a firearm into occupied property (here, a vehicle). The court rejected the defendant’s argument that the evidence failed to establish that he was outside of the vehicle when he shot the victim.

No violation of double jeopardy occurred when the trial court sentenced the defendant for three counts of discharging a firearm into occupied property. Although the three gunshots were fired in quick succession, the bullet holes were in different locations around the house’s front door area. The evidence also showed that at least one shot was fired from a revolver, which, in single action mode, must be manually cocked between firings and, in double action mode, can still only fire a single bullet at a time. The other gun that may have been used was semiautomatic but it did not always function properly and many times, when the trigger was pulled, would not fire. Neither gun was a fully automatic weapon such as a machine gun. There was sufficient evidence to show that each shot was "distinct in time, and each bullet hit the [house] in a different place.” In reaching this holding, the court declined to apply assault cases that require a distinct interruption in the original assault for the evidence to support a second conviction.

In a discharging a firearm into occupied property case, a residence was occupied when the family was on the front porch when the weapon was discharged.

(1) This crime is a general intent crime; it does not require the State to prove any specific intent to shoot into the vehicle but only that the defendant intentionally fire a weapon under such circumstances where he or she had reason to believe the conveyance that ended up being shot was occupied. (2) N.C.P.J.I.—Crim. 208.90D, which was used in this case, properly charged the jury as to the required mental state.

Only a barreled weapon must meet the velocity requirements of G.S. 14-34.1(a) (capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second); a firearm does not.

In this Rowan County case, defendant appealed his conviction for assault inflicting physical injury on an employee of a state detention facility, arguing the jury should have been instructed on the lesser included offense of assault on an officer or employee of the State. The Court of Appeals disagreed, finding no error. 

In March of 2021, defendant was confined at Piedmont Correctional Center. He became agitated because he did not receive the personal hygiene items he needed and began discussing the matter with correctional officers. Eventually, a sergeant asked him to leave his cell and walk to a private area to discuss. During the walk, defendant turned around and struck the sergeant in the face with his fist, leading to a tussle before defendant was subdued. At trial, a video recording of the incident was played for the jury, and the sergeant testified that he was struck “multiple times in the face, around six to ten times.” Slip Op. at 3. During the charge conference, defense counsel requested the lesser included offense, but the trial court denied the request. 

Before taking up the substance of defendant’s appeal, the Court of Appeals discussed the appellate jurisdiction for the case. Defendant gave notice of appeal in open court but gave this notice the day after the trial court sentenced him for the offense. The court considered what “at the time of trial” meant for purposes of the appeal. Id. at 5. After reviewing relevant precedent and appellate rules, the court concluded that defendant’s appeal was timely because he “provided notice of appeal in open court while the judgment was in fieri and the trial court possessed the authority to modify, amend, or set aside judgments entered during that session.” Id. at 8. 

Moving to the jury instruction, the court noted the distinction between the two offenses was the “physical injury” element not present in the lesser offense. The court found the physical injury element was sufficiently satisfied by the evidence showing defendant struck the sergeant in the face. Because the State supplied sufficient evidence of each element of the offense, there was no error in omitting the instruction on the lesser included offense. 

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of assault on a law enforcement officer inflicting serious bodily injury. The defendant asserted that he only used the amount of force reasonably necessary to resist an unlawful arrest. In the case, the officer responded to a 911 call reporting a suspicious person who refused to leave a public housing complex. The person was described as a male in his 30s wearing all black and near or around an older model, a black truck. The police department had an agency agreement with the complex giving officers the authority to remove trespassers from the property. Upon arrival the officer saw the male defendant wearing all black clothing and standing in front of an older model, black truck with a beer can in his hand. When the two spoke, the officer could smell a strong odor of alcohol emitting from the defendant. After further interaction, the officer explained to the defendant that he was trespassing. In part because of his impairment, the officer asked the defendant how he was going to get home. The defendant gave no clear answer. The officer informed the defendant that he was being “trespassed” and although not under arrest he would be taken for a “detox.” The officer attempted to handcuff the defendant in accordance with department policy to handcuff people transported by the police. When the officer reached for his handcuff pouch, the defendant became aggressive and used foul language, tensed up and tried to pull away from the officer. Trying to get control of the defendant, the officer pushed the defendant towards his vehicle. The officer informed the defendant that he was under arrest for resisting delaying and obstructing an officer. The defendant tried to turn around, raising his fist as if to “throw a punch.” The officer pointed his Taser at the defendant giving commands and advising him that he was under arrest. The defendant fled and the officer pursued. When the defendant fell to the ground on his back, the officer commanded him to roll over and put his hands behind his back. The defendant refused to comply and raised his feet and hands towards the officer “taking a combat stance.” The officer fired his Taser. However, the defendant was able to remove one of the Taser leads and took flight again. After the officer tackled the defendant, a struggle ensued. Backup arrived and assisted in securing the defendant. The officer sustained injuries from the struggle. There was sufficient evidence of the first element of the offense, an assault on the officer. Specifically, the officer testified that the defendant hit and bit him. There also was sufficient evidence with respect to serious bodily injury. Specifically, the officer testified that the bites caused extreme pain, skin removal, permanent scarring, and hospitalization. Photographs of the injuries were shown to the jury, as were the officer’s scars. The evidence also was sufficient to establish the third element, that the victim was a law enforcement officer performing his official duties at the time of the assault. The evidence showed that the officer was attempting to discharge his official duties as a routine patrol officer by responding to a report about a trespasser, conducting investigative work and acting on the results of his investigation. Finally, the evidence was sufficient to establish that the defendant knew or had reasonable grounds to know that the victim was a law enforcement officer. Here, the officer arrived in a marked patrol vehicle, was in uniform and told the defendant that he was a law enforcement officer.

(2) The trial court did not err by failing to instruct the jury on the right to resist an unlawful arrest. Here, an arrest occurred when under G.S. 122C-303, the officer attempted, against the defendant’s will, to take the publicly intoxicated defendant to jail to assist him. However, probable cause to arrest the defendant for second-degree trespass existed at this time. It does not matter that the officer did not arrest the defendant for that offense. The arrest was lawful because there was probable cause that the defendant had committed the trespass offense in the officer’s presence. Throughout the officer’s investigation, the defendant remained at the complex without authorization, even after he had been notified not to enter or remain there by the officer, a person authorized to so notify him. The court rejected the defendant’s argument that second-degree trespass does not create probable cause to arrest because that offense is a misdemeanor.

(3) The trial court did not err by failing to instruct the jury on the right to defend oneself from excessive force by a law enforcement officer where the evidence did not show that the officer’s use of force was excessive.

The evidence was sufficient to support a conviction for assault on a government officer under G.S. 14-33(c)(4). While attempting to separate the defendant from other individuals, the defendant spit at people walking behind the officer, hitting the officer with his spit. The defendant argued that because he intended to assault individuals standing behind the officer, the State failed to establish that he intended to assault the officer. The court rejected this argument, holding that the offense was a general intent crime. Here, the defendant conceded that he knew the victim was a law enforcement officer and that he intended to commit an assault. The court concluded: “we are satisfied that when Defendant spat at members of the crowd and [the] Officer . . . was struck by Defendant’s spit, the requirements of [the statute] were satisfied.” It continued: “the knowledge element of assault on a government officer in violation of [G.S. 14-33(c)(4)] is satisfied whenever a defendant while in the course of assaulting another individual instead assaults an individual he knows, or reasonably should know, is a government officer.”

The court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the charge of assault causing physical injury on a law enforcement officer, which occurred at the local jail. After arresting the defendant, Captain Sumner transported the defendant to jail, escorted him to a holding cell, removed his handcuffs, and closed the door to the holding cell, believing it would lock behind him automatically. However, the door remained unlocked. When Sumner noticed the defendant standing in the holding cell doorway with the door open, he told the defendant to get back inside the cell. Instead, the defendant tackled Sumner. The defendant argued that there was insufficient evidence that the officer was discharging a duty of his office at the time. The court rejected this argument, concluding that “[b]y remaining at the jail to ensure the safety of other officers,” Sumner was discharging the duties of his office. In the course of its holding, the court noted that “unlike the offense of resisting, delaying, or obstructing an officer, . . . criminal liability for the offense of assaulting an officer is not limited to situations where an officer is engaging in lawful conduct in the performance or attempted performance of his or her official duties.”

The defendant was properly convicted of two counts of malicious conduct by a prisoner when he twice spit on an officer while officers were attempting to secure him. The defendant had argued that only conviction was proper because his conduct occurred in a continuous transaction. The court found that each act was distinct in time and location: first the defendant spit on the officer’s forehead while the defendant was still in the house; five minutes later he spit on the officer’s arm after being taken out of the house.

The evidence was sufficient to establish that the defendant emitted bodily fluids where it showed that he spit on an officer. The evidence was sufficient to show that the defendant acted knowingly and willfully where the defendant was uncooperative with the officers, was belligerent towards them, and immediately before the spitting, said to an approaching officer: “F--k you, n----r. I ain’t got nothing. You ain’t got nothing on me.” The evidence was sufficient to show that the defendant was in custody when he was handcuffed and seated on a curb, numerous officers were present, and the defendant was told that he was not free to leave.

There was a sufficient factual basis to support a plea to assault on a handicapped person where the prosecutor’s summary of the facts indicated that the victim was 80 years old, crippled in her knees with arthritis, and required a crutch to walk; the defendant told the victim that he would kill her and cut her heart out, grabbed her, twice slung her across the room, and hit her with her crutch.

The defendant was convicted after a jury trial of habitual misdemeanor assault and felony assault inflicting serious bodily injury for the same assaultive act. The trial court imposed consecutive sentences. The defendant appealed, arguing that the trial court erred by sentencing him for both habitual misdemeanor assault and the felony assault. The Court of Appeals vacated the habitual misdemeanor assault conviction, holding over a dissent that the defendant could not be sentenced for both crimes when the offenses arose from the same act. State v. Fields, ___ N.C. App. ___, 827 S.E.2d 120 (2019). The State appealed to the Supreme Court of North Carolina based on the dissent, and also sought discretionary review on the issue of whether, even if it was impermissible for the trial judge to sentence the defendant for both convictions, the Court of Appeals erred by vacating one of the convictions instead of arresting judgment on it. (1) On the first issue, the Supreme Court affirmed the Court of Appeals, concluding that the defendant could not be sentenced for both convictions that arose out of the same assaultive act. The misdemeanor assault statute, G.S. 14-33, includes prefatory language saying the law applies “[u]nless the conduct is covered under some other provision of law providing greater punishment”—language the appellate courts have generally interpreted to bar simultaneous punishments for the same act. Though the habitual misdemeanor assault statute, G.S. 14-33.2, does not include that language, the Supreme Court concluded that the principle still applies, as the misdemeanor assault is necessarily a part of the “upgraded” habitual misdemeanor assault conviction. The felony assault conviction based on the same assaultive act was a “provision of law providing greater punishment” that invoked the prefatory language of the misdemeanor assault statute, which in turn meant that the defendant could not be punished for habitual misdemeanor assault. (2) On the second issue, the Court concluded that the proper remedy when such prefatory language bars double punishment for the same act is to arrest judgment on one of the judgments, not to vacate it.

In a habitual misdemeanor assault case, the trial court erred by failing to instruct the jury that the defendant’s assault under G.S. 14-33 must have inflicted physical injury. However, given the uncontroverted evidence regarding the victim’s injuries, the error did not rise to the level of plain error.

The trial court did not err by denying the defendant’s motion to dismiss a charge of attempted malicious castration of a privy member. The victim was the son of the woman with whom the defendant lived; a doctor found 33 injuries on the victim’s body, including a 2.5 inch laceration on his penis. The defendant argued that there was insufficient evidence that he committed an assault with malice aforethought and specific intent to maim the victim’s privy member. Although the victim gave conflicting evidence as to how the defendant cut his penis, the defendant’s malice and specific intent to maim could be reasonably inferred from the numerous acts of humiliation and violence experienced by the victim prior to the defendant’s assault on his penis.

In this Buncombe County case, the North Carolina Supreme Court affirmed the Court of Appeals’ determination that the trial court lacked a factual basis to accept the defendant’s guilty plea, but modified the holding of the Court of Appeals by vacating the plea arrangement and remanding for further proceedings.

Defendant pled guilty to four charges resulting from his assault and strangulation of his then-girlfriend over the course of a single evening after reportedly holding the victim captive in her home for three days. As provided by the plea agreement between the defendant and the State, the trial judge sentenced the defendant to four consecutive sentences for the four offenses charged: assault on a female, violation of a domestic violence protective order, assault inflicting serious bodily injury, and assault by strangulation. The defendant subsequently petitioned for a writ of certiorari, which was granted by the Court of Appeals. The Court of Appeals filed a divided opinion reversing the trial court’s judgment and sentence, and the State appealed.

Applying its ruling in State v. Dew, 379 N.C. 64 (2021), that a single assaultive episode will support multiple assault charges only when there is a clear break delineating the end of one assault and the beginning of another, such as an intervening event, significant lapse of time, or change in location, the Supreme Court concluded that the facts presented at the defendant’s plea hearing did not establish such a distinct interruption. Instead, the factual statements provided at that hearing described a confined and continuous attack in which the defendant choked and punched the victim in rapid succession and without interruption. Thus, the Supreme Court affirmed the Court of Appeals’ ruling that the trial court erred when it accepted the plea and entered judgment on the three different assault charges (assault on a female, assault inflicting serious bodily injury, and assault by strangulation).

The Supreme Court disagreed, however, with the Court of Appeals’ prescribed remedy of arresting judgment on the lesser assault charges (assault on a female and assault by strangulation) and remanding for resentencing on assault inflicting serious bodily injury and violation of a DVPO. Noting that it is not the role of an appellate court to accept certain portions of a plea arrangement while rejecting others, the Supreme Court modified the holding of the Court of Appeals by vacating the entire plea arrangement.

Chief Justice Newby, joined by Justice Barringer, dissented on the basis that the prosecutor’s factual summary and testimony from the victim tended to show there was a distinct interruption between each assault.

There was sufficient evidence that the defendant committed multiple assaults against his girlfriend and the Court was equally divided as to whether there was sufficient evidence to establish that the defendant used his hands, feet, or teeth as deadly weapons.  The Court characterized “the question of how to delineate between assaults—to know where one assault ends and another begins—in order to determine whether the State may charge a defendant with multiple assaults” as an issue of first impression.  Reviewing case law, the Court explained that a single assault “might refer to a single harmful contact or several harmful contacts within a single incident,” depending on the facts.  The Court declined to extend the three-factor analysis of State v. Rambert, 341 N.C. 173 (1995), applicable to discharging a firearm into occupied property, to assault cases generally, saying that the Rambert factors were “not the ideal analogy” because of differences in the nature of the acts of discharging a firearm and throwing a punch or kick.  The Court determined that a defendant may be charged with more than one assault only when there is substantial evidence that a “distinct interruption” occurred between assaults.  Building on Court of Appeals jurisprudence, the Court said: 

[W]e now take the opportunity to provide examples but not an exclusive list to further explain what can qualify as a distinct interruption: a distinct interruption may take the form of an intervening event, a lapse of time in which a reasonable person could calm down, an interruption in the momentum of the attack, a change in location, or some other clear break delineating the end of one assault and the beginning of another.

The Court went on to explain that neither evidence of a victim’s multiple, distinct injuries nor evidence of different methods of attack alone are sufficient to show a “distinct interruption” between assaults. 

Turning to the facts at hand, the Court concluded that evidence showing that the defendant beat the victim for hours inside a trailer and subsequently beat the victim in a car while driving home was sufficient to support multiple charges of assault.  The assaults were separated by an intervening event interrupting the momentum of the attack – cleaning the trailer and packing the car.  The assaults also were distinct in time and location.  Though the defendant was charged with at least two assaults for conduct occurring inside the trailer, the Court concluded that the evidence indicated that there was only a single assault inside the trailer as the attack was continuous and ongoing.

With one justice not participating in the case and the remaining six justices divided equally, the decision of the Court of Appeals was left undisturbed and stands without precedential value. The decision of the Court of Appeals, ___ N.C. App. ___, 843 S.E.2d 700 (2020), was previously summarized as follows:

The defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury (Class C felony) and assault by strangulation (Class H felony) based on his assault of his wife. The defendant’s wife was rendered unconscious during the assault and was hospitalized for three days as a result of her injuries, which include bruises around her neck, brain bleed, multiple contusions, and burst blood vessels in her eyes.

The trial court consolidated the offense for judgment and sentenced the defendant to a minimum of 73 and a maximum of 100 months imprisonment.

The assault by strangulation statute, G.S. 14-32.4(b), provides that “[u]nless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts physical injury by strangulation is guilty of a Class H felony.” Id. (emphasis added).

The defendant argued that on appeal that because his assaultive conduct was covered by a statute providing greater punishment—namely, the offense of assault with a deadly weapon with intent to kill inflicting serious injury, for which he was convicted—the trial court violated the statutory mandate in G.S. 14-32.4(b) when it sentenced him for assault by strangulation.

The State argued that there were two separate assaults supporting each of the charges. The assault leading to the more serious offense was with fists. The other assault was by strangulation.

Over a dissent, the Court of Appeals agreed with the defendant. It rejected the State’s argument on the basis that there was no evidence of a distinct interruption between the assaultive conduct. Instead, the evidence showed that the victim’s injuries resulted from a single, if prolonged, assaultive act. The appellate court held that because the two offenses arose from the same conduct, the trial court erred in sentencing the defendant for assault by strangulation. The court vacated the defendant’s conviction for assault by strangulation and remanded the case to the trial court for resentencing.

A dissenting judge would have found no error on the basis that an assault by intentionally strangling the victim is not the same conduct as intentionally striking the victim with fists or hands.

The defendant was convicted after a jury trial of habitual misdemeanor assault and felony assault inflicting serious bodily injury for the same assaultive act. The trial court imposed consecutive sentences. The defendant appealed, arguing that the trial court erred by sentencing him for both habitual misdemeanor assault and the felony assault. The Court of Appeals vacated the habitual misdemeanor assault conviction, holding over a dissent that the defendant could not be sentenced for both crimes when the offenses arose from the same act. State v. Fields, ___ N.C. App. ___, 827 S.E.2d 120 (2019). The State appealed to the Supreme Court of North Carolina based on the dissent, and also sought discretionary review on the issue of whether, even if it was impermissible for the trial judge to sentence the defendant for both convictions, the Court of Appeals erred by vacating one of the convictions instead of arresting judgment on it. (1) On the first issue, the Supreme Court affirmed the Court of Appeals, concluding that the defendant could not be sentenced for both convictions that arose out of the same assaultive act. The misdemeanor assault statute, G.S. 14-33, includes prefatory language saying the law applies “[u]nless the conduct is covered under some other provision of law providing greater punishment”—language the appellate courts have generally interpreted to bar simultaneous punishments for the same act. Though the habitual misdemeanor assault statute, G.S. 14-33.2, does not include that language, the Supreme Court concluded that the principle still applies, as the misdemeanor assault is necessarily a part of the “upgraded” habitual misdemeanor assault conviction. The felony assault conviction based on the same assaultive act was a “provision of law providing greater punishment” that invoked the prefatory language of the misdemeanor assault statute, which in turn meant that the defendant could not be punished for habitual misdemeanor assault. (2) On the second issue, the Court concluded that the proper remedy when such prefatory language bars double punishment for the same act is to arrest judgment on one of the judgments, not to vacate it.

The court per curiam affirmed the decision below, State v. Wilkes, 225 N.C. App. 233 (Jan. 15, 2013), in which the court of appeals had held, over a dissent, that the State presented substantial evidence supporting two separate assaults. The defendant attacked his wife with his hands. When his child intervened with a baseball bat to protect his mother, the defendant turned to the child, grabbed the bat and then began beating his wife with the bat. The court concluded that the assaults were the result of separate thought processes, were distinct in time, and the victim sustained injuries on different parts of her body as a result of each assault.

In this New Hanover County case, defendant appealed his convictions for assault with a deadly weapon with the intent to kill inflicting serious injury (AWDWIKISI), felony hit-and-run with serious injury, and robbery with a dangerous weapon, making several arguments centered around the definition of “crash” under G.S. 20-166, the mutually exclusive nature of the AWDWIKISI and hit-and-run charges, and a clerical error in the judgment. The Court of Appeals found no merit with defendant’s arguments regarding his convictions, but did find that the trial court made a clerical error in the hit-and-run judgment and remanded for correction of that error. 

In January of 2021, defendant met the victim to sell him marijuana; instead of paying defendant for the marijuana, the victim grabbed the drugs and ran. Defendant hit the victim with his car, got out of the vehicle and went through the victim’s pockets, then drove away without calling for assistance. 

Defendant argued that “crash” as used in the section defining a hit-and-run (G.S. 20-166) could not refer to an intentional action because it was the same as an “accident.” To support this argument, defendant pointed to the definition section G.S. 20-4.01(4c), defining “crash” and including the following language: “[t]he terms collision, accident, and crash and their cognates are synonymous.” Rejecting defendant’s interpretation, the Court of Appeals explained “[t]he General Assembly chose not to discriminate between intended events and unintended events; therefore, so long as there is injury caused by a motor vehicle— intent is irrelevant.” Slip Op. at 6-7. After the court established that defendant could be charged with hit-and-run for an intentional action, it dispensed with defendant’s argument regarding his AWDWIKISI charge, explaining “[c]onvictions of AWDWIKISI and felony hit and run with serious injury are not mutually exclusive because assault is intentional, and a ‘crash’ can also be intentional.” Id. at 10. Based on this reasoning, the court rejected defendant’s various challenges to his convictions.  

Moving to the clerical error, the court acknowledged that the judgment finding defendant guilty of hit-and-run referenced G.S. 20-166 subsection “(E)” instead of the appropriate “(a)” for his conviction. The court remanded to allow correction of the clerical error. 

In this Rutherford County case, defendant appealed his convictions for various assault charges, first-degree kidnapping, obstructing justice, and violations of a domestic violence order, arguing (1) error in denying his motion to dismiss for insufficient evidence, (2) ineffective assistance of counsel, (3) failure to intervene ex mero motu during the State’s opening statement and closing argument, and (4) error in admitting Rule 404(b) evidence. The Court of Appeals found no error and dismissed defendant’s ineffective assistance of counsel claim without prejudice.  

In January of 2021, defendant and his girlfriend smoked methamphetamine together, and defendant became paranoid that his girlfriend was wearing a wire. He began ripping off her clothes, and eventually used a Sawzall to cut off her hoodie. Defendant also struck her in the head with a flashlight, causing bleeding. Defendant eventually dragged her into the bathroom and put her in the shower, but also struck her again with the showerhead and punched her. Defendant then dragged her into the living room and choked her until she passed out. After coming to trial, defendant was convicted of the charges and admitted to attaining habitual felon status. 

Taking up (1), the Court of Appeals noted that defendant presented the evidence in the light most favorable to him, not to the State, but the court conducted a review of the evidence under the proper standard regardless. The court walked through each charge on pages 6-12 of the Slip Opinion, including a discussion of the specific elements of each charge. The court spent significant time distinguishing between each assault charge with a distinct interruption between the assaults. Ultimately, the court concluded that there was no error in denying defendant’s motion to dismiss. 

Moving to (2), defendant’s argument was predicated defense counsel conceding his guilt during closing argument. The court found the record was not developed adequately to address this claim, dismissing it without prejudice. Reaching (3), defendant argued the State “deliberately appeal[ed] to the jurors’ sense of passion and prejudice” in its opening statement and closing argument. Slip Op. at 14. The court did not share this interpretation, noting “[w]hile the State argued passionately, it was within the bounds of decorum and propriety.” Id.

Finally, in (4) the court considered the admission of evidence under Rule of Evidence 404(b), specifically testimony about defendant’s previous abusive behavior towards his girlfriend during 2020. The court explained “[b]ecause Defendant’s conduct was admissible as proof of motive, intent, manner, and common scheme, [the witness’s] testimony was relevant for a purpose other than showing Defendant’s propensity for violence.” Id. at 18. The trial court also “carefully deliberated and made a well-reasoned decision” when admitting the evidence, showing no issue with admission under Rule of Evidence 403. Id.

In this Forsyth County case, defendant appealed her conviction for assault with a deadly weapon inflicting serious injury, arguing error in (1) instructing the jury that the knife was a deadly weapon per se, and (2) declining to instruct the jury on the lesser-included offense of misdemeanor assault inflicting serious injury. The Court of Appeals found no error. 

At a Father’s Day cookout in 2021, defendant and the victim, a woman who was serving macaroni and cheese, began to argue. Over the course of the day, the two had several confrontations about whether defendant was entitled to be served any of the macaroni and cheese. The confrontations led to a fight, where defendant slashed the victim several times with a small pocketknife, causing injuries to her face, arms, and torso. At trial, defense counsel requested that the jury be instructed on lesser included offenses and that the knife did not constitute a per se deadly weapon, but the trial court overruled this request and did not instruct on lesser included offenses. 

Reviewing (1), the Court of Appeals noted that the knife in question was not admitted into evidence at trial. Defendant argued that without the knife in evidence and without testimony of its character and appearance, it was improper to instruct the jury that it was a deadly weapon. The court disagreed, explaining “although the State bears the burden of proving, inter alia, the use of a deadly weapon, the State is not required to producethe alleged weapon to obtain a conviction for an assault involving a deadly weapon.” Slip Op. at 12. The court also disagreed with defendant about the evidence of the knife, as body-cam footage of defendant describing the knife was in the record, as well as evidence of the injuries sustained by the victim. After determining the trial court properly instructed the jury that the knife was a deadly weapon, the court concluded that (2) was also properly decided, explaining that the State’s evidence supported every element of the crime charged and “there was no conflicting evidence relating to any element of the charged crime.” Id. at 15 (cleaned up). 

In this Durham County case, defendant appealed his convictions for first-degree kidnapping, three counts of assault, and interfering with emergency communications, arguing (1) he was prejudiced by not receiving a pretrial release hearing under G.S. 15A-534.1, (2) double jeopardy for his multiple assault convictions, (3) his conviction for assault by strangulation was improper, and (4) insufficient evidence to support his kidnapping conviction. The Court of Appeals found no prejudicial error.

In January of 2020, defendant and a woman he was living with began arguing, culminating in defendant headbutting the woman several times. Eventually defendant began beating the woman and dragged her by her hair, then throwing her and choking her in the bedroom. The woman eventually hid her child in a closet and jumped out of a window on the third-floor to escape defendant. The woman’s mother attempted to intervene but defendant struck her in the mouth, busting the mother’s lip. Defendant also took the mother’s phone and threw it away, but she retrieved it to call police. After defendant was arrested, the magistrate did not set bond on his kidnapping charge, determining it to be a domestic violence act, and ordered the State to produce defendant for a hearing on conditions of pretrial release. The State did not comply with this order, and defendant remained in custody, not posing bond on any of the charges. After remaining in custody from March to September of 2020, defendant filed a motion to dismiss his kidnapping charge, arguing G.S. 15A-534.1 required dismissal. Defendant’s charges were consolidated the next day with pretrial release conditions and a bond of $250,000; defendant did not post bond and remained in custody. The trial court also denied defendant’s motion to dismiss. Defendant reached trial in November 2021, and was convicted after a bench trial, receiving credit for time served. 

Considering (1), the Court of Appeals noted that the State admitted it did not hold the pretrial release hearing but explained the failure as inadvertent due to the onset of COVID-19. Analyzing the impact, the court explained “[t]he inadvertence does not excuse the State; rather, it is relevant to show the absence of a flagrant constitutional violation.” Slip Op. at 11. The court also noted defendant did not post bond after his initial arrest, and “even if the State had held a timely pretrial release hearing on the kidnapping charge, Defendant would not have been released.” Id. at 11. As a result, defendant could not show irreparable prejudice to the preparation of his case. 

Next the court considered (2), as defendant argued the events constituted one long assault. The court disagreed, explaining there was an “interruption in the momentum” and “a change in location” between the events of the three assaults. Id. at 14-15. The court held each offense was separate and distinct, and found no merit in defendant’s argument. The court applied the same analysis for (3), pointing to “a distinct interruption in the assaults” to justify defendant’s convictions for assault inflicting serious bodily injury as well as assault by strangulation. Id. at 16. 

Finally, the court took up (4), noting that defendant’s acts of confining and removing the victim represented separate and distinct acts from the underlying assaults, justifying the kidnapping charge. The court explained that “Defendant’s confinement of [the victim] by pulling her by the hair back into the bedroom, confining her in there by kicking at the locked door, and forcing her to escape by jumping from the third floor window, were separate, complete acts apart from Defendant’s other assaults upon her.” Id. at 19. 

A defendant cannot be convicted of two assault offenses (here, assault by pointing a gun and assault with a deadly weapon) based on a single assault. For a defendant to be charged with multiple counts of assault, there must be multiple assaults; this requires evidence of a distinct interruption in the original assault followed by a second assault. Here, the charges arose from actions that occurred in rapid succession without interruption.

The trial court did not err by sentencing the defendant for both of assault on a female and assault by strangulation. Prefatory language in G.S. 14-33(c) provides that “Unless the conduct is covered under some other provision of law providing greater punishment,” assault on a female is punished as a Class A1 misdemeanor. Here, the defendant was also punished for the higher class offense of assault by strangulation. The prefatory clause of G.S. 14-33(c) only applies when both assaults are based on the same conduct. Here, the assaults were based on different conduct. The defendant’s act of pinning down the victim and choking her to stop her from screaming supported the assault by strangulation conviction. His acts of grabbing her hair, tossing her down a rocky embankment, and punching her face and head multiple times supported the assault on a female conviction. The two assaults were sufficiently separate and distinct. First, they required different thought processes. The defendant’s decision to grab the victim’s hair, throw her down the embankment and repeatedly punch her required a separate thought process from his decision to pin her down and strangle her to quiet her screaming. Second the assaults were distinct in time. After the defendant’s initial physical assault and then the strangulation, he briefly ceased his assault when she stopped screaming and resisting. But when she resumed screaming and he again hit her in the head multiple times. Third, the victim sustained injuries to different parts of her body.

 

Because misdemeanor larceny and simple assault are lesser included offenses of common law robbery, the trial court erred by sentencing the defendant for all three offenses. The court rejected the State’s argument that the defendant was not prejudiced by this error because all three convictions were consolidated for judgment and the defendant received the lowest possible sentence in the mitigated range. The court noted that the State’s argument ignores the collateral consequences of the judgment. The court thus arrested judgment on the convictions for misdemeanor larceny and simple assault.

The trial court erred by imposing sentences for assault with a deadly weapon with intent to kill inflicting serious injury and assault inflicting serious bodily injury based on the same incident. The statute proscribing the lesser of the two offenses, a Class F felony, includes the following prefatory language: “Unless the conduct is covered under some provision of law providing greater punishment.” Here, the defendant was also convicted of the more serious assault, a Class C felony. Thus multiple punishment is precluded.

(1) Under State v. Tirado, 358 N.C. 551, 579 (2004) (trial court did not subject the defendants to double jeopardy by convicting them of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) arising from the same conduct), no violation of double jeopardy occurred when the trial court denied the defendant’s motion to require the State to elect between charges of attempted first-degree murder and AWDWIKISI. (2) Because the assault inflicting serious bodily injury statute begins with the language “Unless the conduct is covered under some other provision of law providing greater punishment,” the trial court erred by sentencing the defendant to this Class F felony when it also sentenced the defendant for AWDWIKISI, a Class C felony. [Author’s note: Although the court characterized this as a double jeopardy issue, it is best understood as one of legislative intent. Because each of the offenses requires proof of an element not required for the other the offenses are not the “same” for purposes of double jeopardy. Thus, double jeopardy is not implicated. However, even if offenses are not the “same offense,” legislative intent expressed in statutory provisions may bar multiple convictions, as it does here with the “unless covered” language. For a more complete discussion of double jeopardy, see the chapter in my judges’ Benchbook here]

The trial court did not err by convicting the defendant of both robbery with a dangerous weapon and assault with a deadly weapon where each conviction arose from discrete conduct.

The trial court erred by sentencing the defendant for both assault inflicting serious bodily injury under G.S. 14-32.4(a) and assault with a deadly weapon inflicting serious injury under G.S. 14-32(b), when both charges arose from the same assault. The court reasoned that G.S. 14-32(b) prohibits punishment of any person convicted under its provisions if “the conduct is covered under some other provision of law providing greater punishment.” Here, the defendant’s conduct pertaining to his charge for and conviction of assault with a deadly weapon inflicting serious injury was covered by the provisions of G.S. 14-32(b), which permits a greater punishment than that provided for in G.S. 14-32.4(a).

The trial court erred by sentencing the defendant for both habitual misdemeanor assault and assault on a female where both convictions arose out of the same assault. The statute provides that “unless the conduct is covered under some other provision of law providing greater punishment,” an assault on a female is a Class A1 misdemeanor. Here, the conduct was covered under another provision of law providing greater punishment, habitual misdemeanor assault, a Class H felony.

The defendant could not be convicted and sentenced for both assault inflicting serious bodily injury and assault on a female when the convictions were based on the same conduct. The court concluded that language in the assault on a female statute (“[u]nless the conduct is covered under some other provision of law providing greater punishment . . . .”) reflects a legislative intent to limit a trial court’s authority to impose punishment for assault on a female when punishment is also imposed for higher class offenses that apply to the same conduct (here, assault inflicting serious bodily injury).

(1) A defendant may be convicted of assault by strangulation and assault with a deadly weapon inflicting serious injury where two incidents occurred. The fact that these assaults were part of a pattern of chronic child abuse does not mean that they are considered one assault. (2) The State sufficiently proved two distinct incidents of assault with a deadly weapon inflicting serious injury supporting two convictions and three instances of felony child abuse supporting three such convictions. The fact that the assaults form part of chronic and continual abuse did not alter its conclusion.

In an assault with a deadly weapon inflicting serious injury case, the defendant is not entitled to a simple assault instruction where the deadly weapon element is left to the jury but there is uncontroverted evidence of serious injury.

No double jeopardy violation occurred when the defendant was convicted of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious bodily injury based on the same events. Each offense includes an element not included in the other.

Citing State v. Washington, 141 N.C. App. 354 (2000), the court held that the defendant was properly charged and convicted of attempted murder and assault as to each victim, even though the offenses arose out of a single course of conduct involving multiple shots from a gun.

A defendant may not be convicted of assault with a deadly weapon inflicting serious injury and assault inflicting serious bodily injury arising out of the same conduct.

Assault is not a lesser-included offense of sexual battery.

The evidence was insufficient to establish that a secret assault occurred. In the middle of the night, the victim heard a noise and looked up to see someone standing in the bedroom doorway. The victim jumped on the person and hit him with a chair. The victim was aware of the defendant’s presence and purpose before the assault began. In fact, he started defending himself before the defendant’s assault was initiated. 

The evidence was insufficient to support a conviction where the state failed to produce evidence that the assault was done in a secret manner. To satisfy this element, the state must offer evidence showing that the victim is caught unaware.

In this malicious maiming case, the court rejected the defendant’s argument that the trial court erred by disjunctively instructing the jury that it could convict him if it found that he had “disabled or put out” the victim’s eye. Relying on cases from other jurisdictions, the court held that the total loss of eyesight, without actual physical removal, is sufficient to support a finding that an eye was “put out” and, therefore, is sufficient to support a conviction for malicious maiming under G.S. 14-30. It went on to reject the defendant’s argument that because the term disabled could have been interpreted as something less than complete blindness, the trial court’s instructions were erroneous. The court reasoned that based on the evidence in the case—it was uncontroverted that the victim completely lost his eyesight because of the defendant’s actions—the jury could not have concluded that the term disabled meant something other than complete blindness. Thus, the court concluded that it need not decide whether partial or temporary blindness constitutes malicious maiming under the statute.

In a maiming without malice case, the evidence was sufficient to show that the defendant intended to strike the victim’s finger with the intent to disable him. The intent to maim or disfigure may be inferred from an act which does in fact disfigure the victim, unless the presumption is rebutted by evidence to the contrary. Here, the near severing of the victim’s finger triggered that presumption, which was not rebutted.

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