State v. Graves

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1299
NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Guilford County
No. 12CRS078767
SOLOMON LEE-WARREN GRAVES

Appeal by defendant from judgment entered 19 July 2013 by

Judge Lindsay R. Davis, Jr. in Guilford County Superior Court.

Heard in the Court of Appeals 18 March 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General Elizabeth Leonard McKay, for the State.

Richard Croutharmel, for defendant-appellant.

HUNTER, Robert C., Judge.

Solomon Lee-Warren Graves (“defendant”) appeals from

judgment sentencing him to 28 to 43 months imprisonment after

being convicted on one count of assault inflicting serious

bodily injury and one count of assault on a female. On appeal,

defendant argues that: (1) he received per se ineffective

assistance of counsel when his trial attorney admitted to

elements of the charged offenses in his opening statement to the
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jury; (2) the trial court abused its discretion by denying

defendant’s request for a jury instruction on the defense of

automatism; (3) defendant received ineffective assistance of

counsel because his trial attorney failed to recognize or

preserve the defense of automatism; and (4) the trial court

erred by punishing defendant for both assault inflicting serious

bodily injury and assault on a female for the same conduct.

After careful review, we find no error in the trial

proceedings, but we vacate the conviction for assault on a

female and remand for resentencing.

Background

The State’s evidence presented at trial tended to establish

the following: at the time of the incident forming the basis of

this case, defendant and Tonya Michelle Stewart Graves (“Tonya”)

were married and living in Tonya’s mother’s house with Tonya’s

13-year-old son born from a previous marriage. On 26 May 2012,

defendant and Tonya got into a verbal altercation. Defendant

accused Tonya of harboring feelings of affection for her former

husband, the father of her 13-year-old son. Tonya attempted to

diffuse the situation by driving away from the house with her

son, but defendant blocked her way to the car and knocked her

car keys out of her hand. Tonya and her son went on a walk
 -3-
instead; when they returned home, Tonya took a prescribed

sleeping medication and fell asleep in her son’s room.

At around 2:00 a.m., defendant woke Tonya and again accused

her of talking to other men. Tonya went to her bedroom and

started listening to a voicemail that had been left on her

cellphone. Defendant then snatched the phone from Tonya’s ear

and started punching her in the head repeatedly. Tonya fell to

the floor and tried to cover herself; after defendant ended his

attack he paced the floor and said “look what you made me do.”

Tonya testified that she did not strike defendant at any time

during this encounter, not even to defend herself. Tonya went

into the bathroom to assess her injuries. She heard defendant

say “I’m sorry” as she was walking away. Tonya testified that

when she looked in the mirror, she saw part of her eye hanging

out of its socket. Defendant suggested that she go to the

hospital. However, he told Tonya not to tell anyone that he

struck her, apparently because defendant was in law school at

the time and did not want to miss any classes.

Defendant called the police and they arrived at the scene

shortly thereafter. Tonya let the police into the home. After

seeing her injuries, the police arrested defendant. Defendant

told the police that he was a sovereign citizen and that if he
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wanted to beat his wife, he could. He never told the officers

that Tonya struck him first, that she attacked him, or that he

blacked out. Tonya testified that defendant was “very well

aware of what was going on” when the police arrived and that his

primary concern was that he would not be able to take his law

classes if he was arrested. Tonya was taken to the hospital

after the ambulance arrived. Her right eye socket had been

broken and required surgical insertion of a plastic-coated

titanium mesh to support the eyeball.

Defendant took the stand in his own defense at trial and

testified that, contrary to Tonya’s recitation of the facts, it

was actually she who initiated the altercation. According to

defendant, Tonya was talking on the phone in an “almost sexy”

and “seductive” manner to a man. When defendant grabbed the

phone to ask who the man was, she swung her arms at his face

“like a wildcat.” Defendant tried to block her attack, but she

connected with defendant’s face, causing him to black out. The

next thing defendant recalled was being on opposite sides of the

bed from Tonya and seeing her bent down and bleeding. Defendant

called 911 to get an ambulance. When the police arrived, he did

not want to let them in, but Tonya allowed them to enter the

house. As he was being arrested, defendant informed the
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officers that he was a sovereign national and that he was

“reserving his rights” as a free citizen.

A month before trial began in July 2013, defendant’s trial

counsel filed a notice of self-defense. At trial, defense

counsel’s opening statement included the following:

We believe the evidence will show that
Solomon Lee-Warren Graves is a father, a
husband, and a minister, and most
importantly, a victim, a victim of adultery,
a victim of betrayal, a victim of a breach
of love. And most importantly, because of
that, he had to defend himself on Sunday,
May 27, 2012. He had to defend himself
against who? That woman right there.
[Indicating Tonya.] And we believe the
facts will show that his defense of himself
was reasonable on that night, and that’s why
he’s here today.

Now, we will admit that the evidence
will show Mr. Graves was responsible for the
injury to Ms. Stewart Graves. We will
admit, and the evidence will show, that
because of those injuries, she had to go to
the hospital. But, we will also show you,
ladies and gentlemen of the jury, that –

The trial court interrupted defense counsel at this point of the

statement and ordered the jury out of the courtroom so that the

judge could conduct a hearing pursuant to State v. Harbison, 315

N.C. 175, 337 S.E.2d 504 (1985), cert. denied., 476 U.S. 1123,

90 L. Ed. 2d 672 (1986). Defendant told the trial judge that he

had not authorized his attorney to admit to any wrongdoing;
 -6-
rather, he reiterated that he was blacked out when the injuries

to Tonya were inflicted. Defendant’s trial counsel told the

judge that he was under the impression that such an admission

was authorized because defendant elected to assert self-defense.

The trial court found that counsel did not admit guilt but

“quite to the contrary” stated that defendant was not guilty of

any crimes and was only admitting to causing injury to Tonya.

At the charge conference, defense counsel requested

instructions on both self-defense and automatism, but the trial

court denied the request and instructed on neither defense. The

jury convicted defendant for one count of assault inflicting

serious bodily injury and one count of assault on a female.

Defendant gave notice of appeal in open court.

Discussion

I. Defense Counsel’s Opening Statement

Defendant first argues that his attorney admitted guilt to

elements of the charged offenses in his opening statement

without defendant’s consent, constituting per se ineffective

assistance of counsel under Harbison, 315 N.C. at 180, 337

S.E.2d at 507-08. We disagree.

A Harbison error occurs where defense counsel makes the

decision to concede guilt to a crime without the defendant’s
 -7-
knowing and voluntary consent. See Harbison, 315 N.C. at 180,

337 S.E.2d at 507-08. Harbison errors amount to per se

ineffective assistance of counsel under the Sixth Amendment and

require a new trial. State v. Matthews, 358 N.C. 102, 109, 591

S.E.2d 535, 539 (2004). However, our Supreme Court has declined

to find a Harbison violation where defense counsel did not

expressly concede defendant’s guilt or where counsel admitted

only certain elements of the charged offense. See State v.

Gainey, 355 N.C. 73, 93, 558 S.E.2d 463, 476 (holding that there

was no Harbison error where defense counsel stated, “if he’s

guilty of anything, he’s guilty of accessory after the fact,”

because the statement did not amount to an admission of guilt to

murder), cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002);

State v. Fisher, 318 N.C. 512, 532–33, 350 S.E.2d 334, 346

(1986) (no Harbison error where defense counsel conceded malice

but did not clearly admit guilt and told the jury it could find

defendant not guilty).

Here, defense counsel’s statements that defendant was

“responsible” for Tonya’s injuries and that she had to go to the

hospital because of those injuries are not express concessions

of guilt of either of the crimes charged. Each of the charged

offenses contains elements not admitted to during defense
 -8-
counsel’s opening statement. See N.C. Gen. Stat. § 14-32.4

(2013) (requiring medical conditions that constitute “serious

bodily injury” for the crime of assault inflicting serious

bodily injury); N.C. Gen. Stat. § 14-33(c)(2) (2013) (requiring

the defendant to be a male at least 18 years of age to convict

for assault on a female). Thus, because defense counsel

admitted only certain elements of the charged offenses, he did

not concede defendant’s guilt in violation of Harbison. See

Fisher, 318 N.C. at 532–33, 350 S.E.2d at 346. Further, these

comments were made after defense counsel explicitly told the

jury that defendant was relying on the affirmative defense of

self-defense to establish that he was not guilty of these

crimes. An affirmative defense is “[a] defendant’s assertion of

facts and arguments that, if true, will defeat the plaintiff’s

or prosecution’s claim, even if all the allegations in the

complaint are true.” Black’s Law Dictionary 9th ed. 482

(emphasis added). Thus, defendant could still have presented an

effective defense even after admitting to causing Tonya’s

injuries.

Because defense counsel did not concede guilt to the crimes

charged without defendant’s consent, we conclude that he did not
 -9-
commit a Harbison error and was therefore not per se ineffective

under the Sixth Amendment. Defendant’s argument is overruled.

II. Defense of Automatism

Defendant next argues that the trial court abused its

discretion by denying defense counsel’s request for an

instruction on automatism and that defendant was denied

effective assistance of counsel by defense counsel’s failure to

preserve this defense. We disagree with both contentions.

“[I]f a specifically requested jury instruction is proper

and is supported by the evidence, the trial court must give the

instruction, at least in substance.” State v. Jenkins, 35 N.C.

App. 758, 760, 242 S.E.2d 505, 506 (1978). However, the

question of whether a requested instruction is proper under the

evidence is within the discretion of the trial judge “since he

can more accurately determine those instances when the

instruction would be appropriate.” Id. (citation and quotation

marks omitted). Thus, we review the trial court’s refusal to

give a requested jury instruction for abuse of discretion.

State v. Harris, 306 N.C. 724, 728, 295 S.E.2d 391, 393 (1982).

An abuse of discretion only arises “where the court’s ruling is

manifestly unsupported by reason or is so arbitrary that it

could not have been the result of a reasoned decision.” State
 -10-
v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005)

(quotation marks omitted). We review allegations of ineffective

assistance of counsel using a two-part test: whether defense

counsel’s performance was deficient, and whether this deficiency

prejudiced the defendant. State v. Fletcher, 354 N.C. 455, 481,

555 S.E.2d 534, 550 (2001) (citing Strickland v. Washington, 466

U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984)).

The defense of automatism has been defined by our Supreme

Court as:

the state of a person who, though capable of
action, is not conscious of what he is
doing. It is to be equated with
unconsciousness, involuntary action [and]
implies that there must be some attendant
disturbance of conscious awareness.
Undoubtedly automatic states exist and
medically they may be defined as conditions
in which the patient may perform simple or
complex actions in a more or less skilled or
uncoordinated fashion without having full
awareness of what he is doing.

State v. Fields, 324 N.C. 204, 208, 376 S.E.2d 740, 742 (1989)

(citation and quotation omitted). Thus, “the absence of

consciousness not only precludes the existence of any specific

mental state, but also excludes the possibility of a voluntary

act without which there can be no criminal liability.” Id.

(citations omitted).
 -11-
In determining whether an instruction on automatism is

warranted, “[t]he test . . . is whether the evidence of

defendant’s mental condition is sufficient to cause a reasonable

doubt in the mind of a rational trier of fact as to whether the

defendant has the ability to form the necessary specific

intent.” State v. Connell, 127 N.C. App. 685, 692, 493 S.E.2d

292, 296 (1997). A trial court may only give instructions that

are supported by a reasonable view of the evidence. State v.

Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 699 (1973).

The holding in State v. Morganherring, 350 N.C. 701, 517

S.E.2d 622 (1999), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d

322 (2000), is instructive here. In Morganherring, the Supreme

Court analyzed the defendant’s argument that the trial court

erred by failing to instruct on automatism as follows:

Even though defendant claims not to remember
all of his actions during the murders, there
is no evidence in the record which indicates
that defendant was either unconscious or not
conscious of his actions. For example,
immediately after killing Ms. Pena,
defendant gathered up several items of Ms.
Pena’s property with the intent to sell
them. Defendant was also able to describe in
detail his activities on the days between
the murders and the immediate events
surrounding Ms. Lee’s murder. . . .
[B]ecause defendant failed to present
evidence which would support an instruction
on automatism, the trial court did not err
in refusing to instruct the jury as to that
 -12-
defense. This assignment of error is
overruled.

Morganherring, 350 N.C. at 733-34, 517 S.E.2d at 641 (emphasis

added). Furthermore, in State v. Boyd, 343 N.C. 699, 714-15,

473 S.E.2d 327, 335 (1996), the Supreme Court held that where

the only evidence that the defendant blacked out stemmed from

his own testimony at trial and that testimony was contradicted

by the State’s evidence that the defendant admitted to his

actions to the police on the day of the crime, the trial court

did not err by declining a request to instruct on automatism.

Here, the only evidence presented that tended to indicate

defendant lost consciousness during the altercation with Tonya

was defendant’s own testimony. This testimony was directly

refuted by the State’s evidence that defendant admitted to

assaulting Tonya and told one of the arresting officers that “he

had struck [Tonya] because she was on the phone with another

man.” Tonya also testified that defendant told the officers

“I’m a sovereign citizen. I don’t have to go by the rules of

the United States. And if I want to beat my wife, I can.” The

officers testified that at no time during this conversation did

defendant deny having assaulted Tonya or claim to have been

struck by Tonya, black out, or lose consciousness. Tonya

testified that defendant struck her repeatedly in a fit of
 -13-
anger, apologized immediately after doing so, pleaded that she

not tell anyone that he struck her, and was wiping blood from

his knuckles when the police arrived.

Because defendant’s testimony supporting an instruction on

the defense of automatism was directly refuted by evidence

presented by the State, we find no abuse of discretion in the

trial court’s decision not to instruct on that defense. See

Morganherring, 350 N.C. at 733-34, 517 S.E.2d at 641; Boyd, 343

N.C. at 714-15, 473 S.E.2d at 335.

We also hold that defense counsel’s presentation and

attempt to assert the defense of automatism did not amount to

ineffective assistance of counsel. The trial court noted in its

Harbison hearing that defense counsel was not precluded from

asserting the defense of automatism under N.C. Gen. Stat. § 15A-

905(c)(1) (2013) because the time limit for notifying the State

of defendant’s intention to assert that defense had not yet run.

At trial, defense counsel elicited testimony from defendant in

an effort to establish that defendant blacked out during the

altercation and therefore could not form the mental state to

commit the charged crimes. At the close of the evidence,

defense counsel specifically requested that the trial court

instruct on the defense of automatism based on this testimony.
 -14-
In sum, we believe defense counsel’s performance was not

deficient because he preserved the defense of automatism and

proceeded to elicit testimony in support of that defense, a

course of action we deem to be objectively reasonable in this

case. See State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271,

286 (2006). Defendant was not deprived of effective assistance

of counsel solely because that evidence was insufficient to

support the requested instruction.

IV. Sentencing

Defendant’s final argument is that the trial court

reversibly erred by sentencing defendant for both assault

inflicting serious bodily injury and assault on a female. We

agree.

The State contends that defendant’s argument amounts to a

constitutional Double Jeopardy issue, and because defendant did

not present this argument to the trial court, he has failed to

preserve it for appellate review. See State v. Tirado, 358 N.C.

551, 571, 599 S.E.2d 515, 529 (2004). However, defendant

claims, and we agree, that he is alleging failure of the trial

court to abide by the statutory mandates contained in N.C. Gen.

Stat. §§ 14-32.4(a) and 14-33(c). Such arguments are preserved

notwithstanding defendant’s failure to object on this specific
 -15-
ground at trial. See State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d

652, 659 (1985) (“[W]hen a trial court acts contrary to a

statutory mandate and a defendant is prejudiced thereby, the

right to appeal the court’s action is preserved, notwithstanding

defendant’s failure to object at trial.”). Thus, we will

address the merits of defendant’s argument.

Defendant was convicted for one count of assault inflicting

serious bodily injury under section 14-32.4 and one count of

assault on a female under section 14-33(c)(2). Assault on a

female carries the punishment of a Class A1 misdemeanor; assault

inflicting serious bodily injury carries punishment of a Class F

felony. N.C. Gen. Stat. § 14-32.4(a); N.C. Gen. Stat. § 14-

33(c). Both statutes allow for sentencing under their

respective provisions “[u]nless the conduct is covered under

some other provision of law providing greater punishment[.]”

Id. Thus, defendant argues that the General Assembly intended

the trial court to sentence a defendant under the more punitive

statute if more than one crime is implicated by the same

conduct. We agree.

In State v. Ezell, 159 N.C. App. 103, 109, 582 S.E.2d 679,

684 (2003), this Court held that legislative intent could rebut

the presumption created by Blockburger v. United States, 284
 -16-
U.S. 299, 76 L. Ed. 306 (1932), that conviction for two offenses

based on the same conduct is not unlawful if each offense

requires proof of an element that the other does not. The Court

went on to hold that the language “[u]nless the conduct is

covered under some other provision of law providing greater

punishment” indicated legislative intent to punish certain

offenses at a certain level, but that if the same conduct was

punishable under a different statute carrying a higher penalty,

a defendant could only be sentenced for the more punitive

offense. Id. at 111, 582 S.E.2d at 685.

Applying the Ezell holding in the context of two assault

statutes, this Court held in State v. Williams, 201 N.C. App.

161, 174, 689 S.E.2d 412, 419 (2009), that even though two

assaults may require proof of different elements, so as to be

distinct crimes under Blockburger, the inclusion of the language

“[u]nless the conduct is covered under some other provision of

law providing greater punishment” indicated legislative intent

to punish a defendant only for the more punitive of the two

crimes. The defendant in Williams was convicted of both assault

by strangulation and assault inflicting serious bodily injury

for the same conduct. Thus, because assault by strangulation

carried a lesser penalty than assault inflicting serious bodily
 -17-
injury, the Williams Court vacated judgment entered upon the

defendant’s conviction for assault by strangulation. Id.

Because the convictions were consolidated at trial, it also

remanded for resentencing. Id.

Here, like in Williams, defendant was convicted for both

assault inflicting serious bodily injury and an assault that

carried a lesser punishment, specifically here, assault on a

female. Based on the Williams holding, we conclude that

convictions for both crimes violated the statutory mandate that

the trial court only sentence a defendant for the more punitive

crime implicated by the same conduct. See In re Civil Penalty,

324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“[A] panel of the

Court of Appeals is bound by a prior decision of another panel

of the same court addressing the same question[.]”). Thus, we

vacate defendant’s conviction for assault on a female, as it is

less punitive than assault inflicting serious bodily injury.

Furthermore, because the convictions were consolidated, we

remand for resentencing. See Williams, 201 N.C. App. at 174,

689 S.E.2d at 419.

Conclusion

We find no error in defense counsel’s opening statement and

no abuse of discretion in the trial court’s decision to reject
 -18-
defendant’s requested instruction on the defense of automatism.

However, because the trial court failed to follow the statutory

mandate that it only punish defendant under the more punitive

assault statute where more than one crime was implicated by the

same conduct, we vacate defendant’s conviction for assault on a

female and remand for resentencing.

NO ERROR IN PART; VACATED IN PART; REMANDED FOR

RESENTENCING.

Judges BRYANT and STEELMAN concur.

Report per Rule 30(e).