State v. Dew, 379 N.C. 64, 2021-NCSC-124 (Oct. 29, 2021)

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.