Happy New Year, everyone.
Around this time last year, I blogged about the decades-long question surrounding assault in our state: when do multiple physical acts constitute one continuing assault offense and when do they constitute more than one assault offense?
At the time the blog was written, the Court of Appeals had analyzed this issue several times, but the question had never reached our state Supreme Court. The Court has since decided State v. Dew, ___ N.C. ___, 2021-NCSC-124 (Oct. 29, 2021), building on the Court of Appeals’ jurisprudence and offering clarification on the “distinct interruption” approach used in deciding these cases. This post reviews the Court’s decision in Dew and the implications it has on physical assault cases moving forward.
Facts
State v. Dew presents an issue of first impression for our Supreme Court: how do courts delineate between assaults in order to determine whether the State may charge a defendant with multiple assaults?
In Dew, the defendant beat the victim for hours inside a family member’s trailer home. The defendant hit the victim’s head and ears, kicked her in the chest, bit her nose and ear, punched her in the nose, head-butted her, and strangled her until she vomited. When the beating was over, the defendant told the victim that they were leaving to go home. He made her take the sheets off the bed, which were stained with her blood, and clean the mattress cover. They then packed the car and drove home. The defendant beat the victim during the two-hour car ride home, and she ultimately ended up with a ruptured eardrum.
The defendant was charged with seven offenses, five of which were assault offenses. The jury convicted the defendant on three assault charges: assault with a deadly weapon inflicting serious injury resulting in the ruptured eardrum, assault on a female in connection with the headbutt to the forehead, and assault with a deadly weapon inflicting serious injury resulting in a fractured nose.
The Court of Appeals found no error. The Supreme Court concluded that there was sufficient evidence of multiple assaults to submit the issue to the jury and thus held that the trial court did not err by denying the defendant’s motion to dismiss all but one assault charge. The Court also concluded that the evidence was not sufficient to show two assaults in the trailer, as there was no showing of a distinct interruption in attack that occurred in the trailer.
Distinct interruption
For multiple acts to constitute separate assaults, there must be a “distinct interruption” in the original assault followed by a second or subsequent assault. State v. Williams, 201 N.C. App. 161, 182 (2009); State v. Littlejohn, 158 N.C. App. 628, 635 (2003). Even when a victim sustains various injuries through several acts of violence, the perpetrator may still be convicted of only one count of assault if there is no distinct interruption in the perpetrator’s actions.
In State v. Prince, 271 N.C. App. 321 (2020), the defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury (a Class C felony) and assault by strangulation (a Class H felony) based on his assault of his wife. 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, and the other assault was by strangulation. The Court of Appeals rejected the State’s argument because there was no evidence of a distinct interruption during the assaultive conduct. Instead, the evidence showed that the victim’s injuries resulted from a single, prolonged assault. The court held that because the two alleged offenses arose from the same conduct, the trial court erred in entering judgment and sentencing the defendant for assault by strangulation.
In another case, State v. Robinson, 275 N.C. App. 330 (2020), the defendant punched the victim a number of times, causing a dislodged breast implant and a broken jaw, rendering her unable to eat food properly for about six weeks after the assault. The victim also had small cuts on her hands and bruising around her neck. The Court of Appeals held that because the convictions for assault on a female (a Class A1 misdemeanor) and assault by strangulation (a Class H felony) were based on the same underlying conduct as the conviction for assault inflicting serious bodily injury (a Class F felony), the trial court was only authorized to enter judgment for one assault—that which provided for the greatest punishment of the three assault offenses.
While the distinct interruption test is used frequently in physical assault cases, the cases are not always easy to reconcile. Thus, the Supreme Court used State v. Dew as an opportunity to provide examples to further explain what can qualify as a distinct interruption. This non-exclusive list of examples includes: (1) an intervening event, (2) a lapse of time in which a reasonable person could calm down, (3) an interruption in the momentum of the attack, (4) a change in location, or (5) some other clear break delineating the end of one assault and the beginning of another.
In providing these examples, the Court further clarified:
the fact that a victim has multiple, distinct injuries alone is not sufficient evidence of a distinct interruption such that a defendant can be charged with multiple counts of assault. The magnitude of the harm done to the victim can be taken into account during sentencing but does not automatically permit the State to stack charges against a defendant without evidence of a distinct interruption.
Slip op. at ¶ 28. The distinct interruption approach looks beyond the number of physical contacts with the victim to determine whether more than one assault has occurred such that the State can appropriately charge a defendant with multiple assaults. As the Court notes, to allow otherwise would open the door for the State to be able to charge someone with a separate assault for every punch thrown in a fight.
In Dew, the defendant beat the victim for hours inside the trailer and subsequently beat the victim in a car while driving home. The assaults were separated by an intervening event interrupting the momentum of the attack – cleaning the mattress and packing the car. The assaults also were distinct in time and location. The Court thus concluded that the jury could find that the beating in the trailer and the beating in the car were distinct assaults.
Additionally, the defendant was charged with at least two assaults for conduct occurring only inside the trailer: assault on a female involving the headbutt to the forehead and assault with a deadly weapon inflicting serious injury resulting in the fractured nose. Because the State presented no evidence indicating that a distinct interruption occurred in 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. The Court remanded the case, instructing the trial court to vacate the judgment for the assault on a female.
Rambert no longer applicable
North Carolina’s appellate courts have also used the three-factor Rambert test in determining whether the defendant committed a single assault or multiple assaults. Those factors are 1) whether the acts were the result of separate thought processes, 2) whether the acts were distinct in time, and 3) whether the acts resulted in different injuries.
In State v. Rambert, 341 N.C. 173 (1995), the defendant, riding in a car, pulled into a parking space next to a man. The defendant and the man got into an argument, after which the defendant produced a gun and fired a bullet through the front windshield of the man’s car. The man then drove forward, and the defendant fired again and struck the passenger door of the man’s car. The defendant pursued the man and fired a third shot, which lodged in the rear bumper of the man’s car. The defendant was charged with and convicted of three counts of discharging a firearm into occupied property.
The Supreme Court upheld the convictions, noting that the defendant committed three separate and distinct acts. The Court reasoned that each 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; each act was distinct in time; and each bullet hit the vehicle in a different place.
Some courts have applied the Rambert factors in physical assault cases rather than the distinct interruption test, which has resulted in defendants being charged with and convicted of multiple assault offenses for multiple physical acts. See State v. Harding, 258 N.C. App. 306 (2018).
The Supreme Court concluded in Dew that the Rambert factors are not the ideal analogy for an assault analysis and thus declined to extend Rambert to assault cases generally. The Court distinguished the discharge of a firearm from physical assault, reasoning that:
Discharging a firearm means firing a shot; each distinctly fired shot is a separate discharge of a firearm. The same is not true of assault which […] might refer to a single harmful contact or several harmful contacts within a single incident. Multiple contacts can still be considered a single assault, even though each punch or kick would require a different thought process, would not occur simultaneously, and would land in different places on the victim’s body. These two distinct crimes require two distinct analyses.
Slip op. at ¶ 26.
Though we now have a clearer understanding and examples of events that may signify a distinct interruption, how these examples present themselves in practice will vary from case to case. The Dew Court did not provide any further explanation as to how long an intervening event must last to constitute a distinct interruption, nor did it indicate how far a distance must be traveled to constitute a change in location. The answers to these questions would likely turn on the particular facts of each case. Nevertheless, courts now have one test to be used uniformly, as the Rambert factors will no longer be considered in deciding physical assault cases.
I welcome your thoughts and invite your comments. Please feel free to email me with any questions at bwilliams@sog.unc.edu.