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Assaults: One Conviction or Two?

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Jeff previously blogged about multiple assault convictions based on the same conduct, distinguishing double jeopardy issues from statutory interpretation issues. In this post, I will hone in on the statutory interpretation aspect of the analysis.

G.S. 14-32.4(b) provides: “Unless the conduct is covered under some other provision of law providing greater punishment, any person who assaults another person and inflicts physical injury by strangulation is guilty of a Class H felony.” (emphasis added). The italicized language appears in a number of assault statutes. A plain reading suggest that it means, in the case of G.S. 14-32.4(b), for example, that the defendant may not be punished for assault by strangulation when the conduct is covered by another crime that carries a more severe punishment. Consistent with that reading is State v. Williams, ___ N.C. App. ___, 689 S.E.2d 412 (2009), holding that even though assault by strangulation (Class H felony) and assault inflicting serious bodily injury (Class F felony) require proof of different elements so as to be distinct crimes for purposes of double jeopardy, the statutory language reflects a legislative intent that a defendant only be sentenced for the higher of the two offenses. Williams relied on State v. Ezell, 159 N.C. App. 103 (2003), in which the defendant was convicted of assault inflicting serious bodily injury under G.S. 14-32.4(a) (a Class F felony) and assault with a deadly weapon inflicting serious injury under G.S. 14-32(b) (Class E felony). Like the assault by strangulation statute, G.S. 14-32.4(a) includes the “unless covered” language. Interpreting this language, the court held that the defendant could not be convicted of assault inflicting serious bodily injury and the more serious offense under G.S. 14-32(b). Other cases are in line with Williams and Ezell. See State v. McCoy, 174 N.C. App. 105 (2005) (following Ezell with respect to convictions for (1) assault inflicting serious bodily injury and assault with a deadly weapon inflicting serious injury; (2) assault with a deadly weapon inflicting serious injury and assault inflicting serious injury under G.S. 14-33(c)(1)). However, other cases create confusion on the issue.

In State v. Coria, 131 N.C. App. 449 (1998), the defendant was convicted of assault with a deadly weapon on a law enforcement officer under G.S. 14-34.2 (Class F felony) and assault with a deadly weapon with intent to kill under G.S. 14-32(c) (Class E felony). G.S. 14-34.2 contains the statutory “unless covered” language. Coria upheld both convictions, concluding that because each had an element not in the other, there was no double jeopardy violation. However, it is not clear that the defendant brought the operative statutory language to the court’s attention, as there is no mention of it in the opinion. Thus, Coria might be explained as an outlier on this basis. The problem with that explanation is that a later unpublished decision followed Coria in the face of an argument citing that language. In State v. Chambers, 152 N.C. App. 478 (2002) (unpublished), the defendant was convicted of assault with a deadly weapon on a law enforcement officer under G.S. 14-34.2 (Class F felony) and assault with a deadly weapon with intent to kill inflicting serious injury under G.S. 14-32(a) (Class C felony). The defendant asserted that the Class F felony conviction could not stand, based on the “unless covered” language in G.S. 14-34.2. Citing Coria, the court disagreed, concluding the legislative purpose of G.S. 14-34.2 is to impose greater punishment on those who knowingly assault a law enforcement officer whereas the legislative purpose of G.S. 14-32(a) is to protect life and limb. It stated:

Although the language of [G.S. 14-34.2] does limit its application in certain circumstances, those circumstances are not before us. Rather, if assault with a firearm or any other deadly weapon upon a law enforcement officer in the performance of the officer’s duties imposes a greater punishment under some other provision of law, that greater punishment applies. However, if there is no greater punishment provided under some other provision of law, such as [G.S. 14-34.5] which imposes Class E felony punishment for assault with a firearm on a law enforcement officer in the performance of the officer’s duties, the defendant shall be sentenced as a Class F felon. In this case, defendant was not convicted under any other provision of the law that would punish him for his conduct of assaulting a law enforcement officer as proscribed by [G.S. 14-34.2]. Therefore, separate punishments were properly imposed on defendant who, by a single act, violated both [provisions].

Adding to the complexity is State v. Hines, 166 N.C. App. 202 (2004), in which the defendant was convicted of aggravated assault on a handicapped person under G.S. 14-32.1 (Class F felony) and armed robbery (Class D felony). Citing the “unless covered” language in G.S. 14-32.1, the defendant argued that the trial court erred by sentencing her for the assault and the more serious robbery offense. The court rejected this argument, distinguishing Ezell on grounds that it dealt with two assault convictions. It concluded that the statutory language barred punishment for aggravated assault on a handicapped person and another assault offense, not armed robbery. It is unclear whether this distinction would hold up, if presented to the North Carolina Supreme Court. See State v. Davis, 364 N.C. 297 (2010) (holding, based on identical statutory language, that a defendant may not be convicted of (1) felony death by vehicle under G.S. 20-141.4 (Class E felony) and second-degree murder (Class B2 felony) or (2) felony serious injury by vehicle under G.S. 20-141.4 (Class F felony) and assault with a deadly weapon inflicting serious injury (Class E felony).

The only thing clear about this discussion is that the law is unclear. Perhaps the North Carolina Supreme Court will take the issue up and provide direction. Finally, in all of the cases above, the multiple convictions stemmed from the same conduct. When the convictions are supported by separate acts multiple convictions may be proper. But I’ll leave that issue for another post.

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