State v. Wilkes

HUNTER, Robert C., Judge,

concurring in part and dissenting in part.

While I agree with the majority that the trial court did not err in denying defendant’s motions to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury because there was sufficient evidence to establish intent to kill, I conclude that defendant’s actions constituted a single assault. Therefore, I must respectfully dissent in regard to defendant’s double jeopardy claim, and I would vacate defendant’s conviction for assault with a deadly weapon inflicting serious injury, the lesser felony, case number 10 CRS 1555. Accordingly, I would not address the merits of defendant’s argument that the trial court erred in sentencing defendant in the aggravated range for this conviction.

*242Background

. A brief recitation of the evidence presented at trial is as follows: In September of 1993 or 1994, defendant married Ms. Julie Bush (“Ms. Bush”). During their marriage, they separated twice. The incident in question occurred on the evening of 24 October 2009 after Ms. Bush had returned home from a party. Soon after Ms. Bush returned home, their youngest son, E.W., ran upstairs and told her that defendant was at the back door. After she unlocked the back door, defendant pushed past her into the house and refused to leave. Ms. Bush told their oldest son, C.W., to call 9-1-1, but defendant pulled the telephone out of the wall. He kicked the television and threw the computer monitor. Defendant began punching Ms. Bush in the face, and she fell to her knees in front of him.

Then, C.W. came into the room with a baseball bat telling defendant, “[d]on’t hit my Mama again.” C.W. hit defendant in the stomach with the bat after defendant kept moving toward Ms. Bush. Defendant turned to go after C.W., but Ms. Bush grabbed defendant around the waist. Grabbing the bat from C.W., defendant then began beating Ms. Bush with it — first on her arms, while she was holding them up, and then on her head “over and over again” after she dropped her arms. Ms. Bush fell to the floor in the fetal position and, eventually, lost consciousness.

Soon after Ms. Bush regained consciousness, EMS and the police from the Moore County Sheriffs Office arrived at the scene. Ms. Bush was rushed to the hospital.

On 16 June 2011, the jury found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury, a Class C felony, see N.C. Gen. Stat. § 14-32(a) (2011); misdemeanor child abuse; and assault with a deadly weapon inflicting serious injury, a Class E felony, see N.C. Gen. Stat. § 14-32(b). Consolidating the convictions of misdemeanor child abuse and assault with a deadly weapon with intent to kill inflicting serious injury (09 CRS 54366), the trial court sentenced defendant in the presumptive range to a term of 73 to 97 months imprisonment. Regarding defendant’s conviction of assault with a deadly weapon inflicting serious injury (10 CRS 1555), defendant admitted to three aggravating factors, and the trial court sentenced him in the aggravated range to a term of 31 to 47 months imprisonment. Defendant’s sentences were to run consecutively.

*243Arguments

Defendant first argues that the trial court erred by denying his motions to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury because there was insufficient evidence to show intent to kill. I concur with the majority that based on the nature, manner, and circumstances of the assault, the trial court did not err in denying defendant’s motion to dismiss this charge.

Next, defendant argues that the trial court erred by denying his motions to dismiss one of the two felony assault charges as he contends they constituted a single transaction. I agree.

Prior to trial, defendant moved to dismiss one of the two felony assault charges on the grounds that permitting both charges would be a violation of double jeopardy since the assault constituted a single transaction. However, the trial court denied this motion.

“Double jeopardy is prohibited by both the Fifth Amendment to the United States Constitution and [North Carolina’s] common law.” State v. McCoy, 174 N.C. App. 105, 115, 620 S.E.2d 863, 871 (2005), disc. review denied, 628 S.E.2d 8 (2006). “The double jeopardy clause prohibits . . . multiple convictions for the same offense.” State v. Ezell, 159 N.C. App. 103, 106, 582 S.E.2d 679, 682 (2003). Thus, “[i]n order for a criminal defendant to be charged and convicted of two separate counts of assault stemming from one transaction, the evidence must establish a distinct interruption in the original assault followed by a second assault[,] so that the subsequent assault may be deemed separate and distinct from the first.” State v. Littlejohn, 158 N.C. App. 628, 635, 582 S.E.2d 301, 307 (2003) (internal quotation marks omitted). In Littlejohn, this Court found no error where the defendant was convicted of two assaults that were distinct in time, the injuries occurred in separate parts of the victim’s body, and where the second assault occurred only after the first assault had “ceased.” Id. at 636-37, 582 S.E.2d at 307.

Similarly, in State v. Rambert, 341 N.C. 173, 175, 459 S.E.2d 510, 512 (1995), the defendant was charged with and convicted of three counts of discharging a firearm into occupied property. At trial, the State’s evidence tended to establish that the victim was sitting in his car, parked in a grocery store parking lot. Id. at 176, 459 S.E.2d at 512. The defendant pulled up in another car beside the victim. Id. After they exchanged some words, the defendant produced a gun. Id. The victim ducked down in his car, and the defendant fired his gun at the *244victim’s car. Id. The bullet entered through the front windshield. Id. The victim drove forward, and another bullet hit the passenger side door. Id. When the parties were approximately ten yards apart, the defendant pursued the victim and fired a final shot. Id. The bullet lodged in the car’s bumper. Id. at 176, 459 S.E.2d at 513. The defendant challenged the convictions, arguing that they violated double jeopardy. Id. However, our Supreme Court disagreed, noting the following factors in support of its decision: (1) “[e]ach shot, fired from a pistol, as opposed to a machine gun or other automatic weapon, required that [the] defendant employ his thought processes each time he fired the weapon”; (2) “[e]ach act was distinct in time”; and (3) “each bullet hit the vehicle in a different place.” Id. at 176-77, 459 S.E.2d at 513.

In State v. Spellman, 167 N.C. App. 374, 383, 605 S.E.2d 696, 703 (2004), this Court applied the rationale of Rambert to determine whether the defendant’s convictions for assault with a deadly weapon on a government official and assault with a deadly weapon violated his constitutional protection from double jeopardy. In concluding that there was no violation of double jeopardy, this Court held that “as in Rambert, the evidence in the instant case tends to show that defendant employed his thought process prior to committing the second assault, which occurred at a distinct and separate time after the first assault was completed.” Id. at 383, 605 S.E.2d at 702.

In applying the Rambert factors to the present case, I conclude that the State did not present substantial evidence that there was a distinct interruption in the assaults. First, there was no evidence that defendant’s actions were the result of separate thought processes. Although defendant did change weapons during the assault, that change was not due to a separate thought process. Defendant only came into possession of the bat when C.W. hit him with it. I find the facts of this case distinguishable from a situation where a defendant ceases an initial assault, obtains a different, weapon, and then renews his assault on a victim. For example, in Spellman, 167 N.C. App. at 378, 605 S.E.2d at 700, the defendant and a police officer got into an altercation. As the defendant was trying to drive away, the officer held onto the door of the defendant’s truck. Id. After the officer was able to pull the defendant from the car, the truck ran over the officer’s leg. Id. The defendant then got up, ran eighty feet, got back into the truck, and drove the truck toward the officer who was still lying on the ground. Id. at 383, 605 S.E.2d at 702. In holding that the facts supported defendant’s convictions for two separate assaults, this Court *245concluded that “the evidence in the instant case tends to show that [the] defendant employed his thought process prior to committing the second assault.” Id.

In contrast to Spellman, there was no evidence that defendant began his attack on Ms. Bush with the baseball bat based on a separate thought process. Instead, the evidence establishes that his actions were a continuation of his prior plan — his acquisition of the baseball bat was the result of happenstance, not purposeful intent. Moreover, the use of multiple weapons does not necessarily require a conclusion that the use of each weapon constitutes a separate assault. See McCoy, 174 N.C. App. at 116, 620 S.E.2d at 872 (holding that even though the defendant stabbed, beat, and threw the victim against the wall on one day and struck the victim with his hands and broke the victim’s arm by twisting it the next day, the evidence only supported a conviction of one assault per day).

In applying the second Rambert factor, I believe that the evidence does not establish that defendant’s acts were distinct in time. Although defendant turned away briefly to grab the bat from C.W., this momentary distraction is not enough to establish a distinct interruption necessary to sustain two assault charges. While the nature of the assault did escalate, there was no apparent break in the action to support a distinct cessation of defendant’s initial attack so as to consider his use of the bat a separate assault.

Finally, in applying the third Rambert factor, while Ms. Bush sustained injuries on different parts of her body when defendant was hitting her with the bat, her testimony establishes that the reason her arms were injured with the bat was because she was holding them up, presumably in an effort to protect her face. However, after she dropped them, defendant continued hitting her in the face with the bat. Thus, defendant was aiming for her head the entire time.

Based on an application of the Rambert factors, while the evidence establishes that defendant’s actions constituted a single continuous transaction that resulted in multiple injuries to Ms. Bush, I conclude that it does not establish two separate and distinct assaults. Accordingly, I would vacate defendant’s conviction for assault with a deadly weapon inflicting serious injury, the lesser felony, case number 10 CRS 1555. I note that while defendant’s use of his fists during the initial part of the attack did not establish an intent to kill, his continuation of the assault with the bat did. However, even if an assault escalates such that a defendant’s later actions may support an infer*246ence of an intent to kill, a defendant should not be automatically precluded from asserting a double jeopardy claim simply because the escalation would allow the State to charge a defendant with a higher offense.

Finally, defendant argues that the trial court erred in imposing a sentence in the aggravated range for assault with a deadly weapon inflicting serious injury without considering mitigating factors. However, since I would vacate defendant’s conviction of assault with a deadly weapon inflicting serious injury, I would not reach the merits of defendant’s argument.

Conclusion

Because I concluded that the evidence supported only one assault charge, I would vacate defendant’s conviction for assault with a deadly weapon inflicting serious injury, case number 10 CRS 1555.