State v. Huckabee, ___ N.C. App. ___, 2021-NCCOA-353 (Jul. 20, 2021)

The defendant was charged with assault with a deadly weapon inflicting serious injury for his role in an assault that occurred inside a jail. The defendant and two other inmates assaulted the victim by punching, kicking, and hitting him with a broom. As a result of the assault, the victim suffered a bloody nose, bruises and red marks, and multiple fractures around his nose and eye. During the charge conference at the defendant’s trial, the court agreed to submit the lesser-included offenses of assault inflicting serious injury and simple assault, but did not submit the lesser-included offense of assault with a deadly weapon, despite the defendant’s request. The jury convicted the defendant of the charged offense, and the defendant appealed.

The appellate court agreed with the defendant that it was error not to submit the lesser-included offense of assault with a deadly weapon, and reversed his conviction and remanded for a new trial. The decision to submit a lesser-included offense is reviewed de novo, and the offense should be submitted to the jury if there is evidence in the record, when viewed in the light most favorable to the defendant, from which a rational juror could convict of the lesser charge. In this case, there was evidence from which a rational juror could have concluded that the victim did not suffer serious injury. The victim’s medical treatment was relatively brief, and the trial testimony indicated that the victim’s facial fractures were less serious and less painful than a broken arm, an injury which past cases have held warranted submitting the lesser offense to the jury.

 The defendant also challenged the imposition of a civil judgment for attorney fees without providing notice and an opportunity to be heard. Since the underlying conviction was reversed and remanded, the appellate court vacated the civil judgment as well.