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Attempted Assault Is a Crime

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Reversing the Court of Appeals, the NC Supreme Court recently held, in State v. Floyd, that attempted assault is a crime in North Carolina.

At issue in Floyd was whether the defendant’s prior conviction for attempted assault with a deadly weapon inflicting serious injury could support a later charge of possession of a firearm by a felon and habitual felon status. At trial the defendant moved to dismiss, arguing that because attempted assault was not a recognized crime under North Carolina law, his prior conviction couldn’t support the new charge or habitual felon status. The trial court denied both motions and the defendant was convicted and sentenced as a habitual felon. The Court of Appeals reversed, concluding that attempted assault is not a crime in North Carolina. That court noted that assault is an overt act or attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to another person. As a result, an attempted assault verdict finds the defendant guilty of an “attempt to attempt.” Since one cannot be convicted of an attempt to commit a crime that itself is an attempt, the Court of Appeals held that attempted assault is not a recognized criminal offense in North Carolina. The State appealed and the Supreme Court reversed.

The Floyd court noted that North Carolina law recognizes two forms of assault. First—and as recognized by the Court of Appeals—assault may be defined as an overt act or attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to another person. The court explained that this definition (which also requires that the defendant’s actions be sufficient to put a person of reasonable firmness in fear of immediate bodily harm) places emphasis on the intent or state of mind of the accused.

The court went on to explain that the second form of assault recognized in North Carolina is an assault by show of violence. This form of assault, which places the emphasis on the reasonable apprehension of the victim, consists of a show of violence accompanied by reasonable apprehension of immediate bodily harm or injury on the part of the victim which causes him to engage in a course of conduct which he would not otherwise have followed. Rather than involving an attempt to cause injury to another person, it is based on “a violent act or threat that causes fear in another person.” Slip op. at 10. The court explained that this form of assault comes “from early cases in which a person caused another to flee, leave a place sooner than desired, or otherwise alter course through the threatened use of a weapon.” Id. The court cited State v. Shipman, 81 N.C. 513 (1879), as one of the earliest show of violence cases. It noted that in that case, the defendant used threatening language and walked, holding a knife, to within six feet of where the victim was standing. Upon seeing this threatening display, the victim became alarmed and left immediately. Concluding that the defendant’s behavior constituted an assault, the Shipman court explained that the definition of assault encompasses a situation in which “persons having in their possession dangerous weapons, by following and threatening [the victim], put him in fear and induce him to go home sooner than he would have done, or by a different road from that he was wont to go.” Id. (quoting Shipman, 81 N.C. at 515).

Having set out these two forms of assault, the court clarified that “although North Carolina law provides one definition of assault that describes the offense in terms of ‘an overt act or an attempt, or the unequivocal appearance of an attempt,’ our common law also provides a second definition that does not include any reference to attempt.” Id. at 10-11. It went on to conclude: “Attempted assault is not an attempt of an attempt because assault may be defined by the show-of-violence rule.” Id. at 11. From here it was a short step to the court’s ultimate holding: That the offense of attempted assault with a deadly weapon inflicting serious injury is recognized in North Carolina.

In addition to reversing the lower court, Floyd also effectively overrules State v. Barksdale, 181 N.C. App. 302, 308 (2007), and any similar cases that had held that attempted assault is not a crime.

Want to know more about these forms of assault? Both are discussed in my book, NC Crimes in the notes to the crime of Simple Assault. And yes, Floyd will be in the 2016 Supplement, due out next month.

4 comments on “Attempted Assault Is a Crime

  1. Below is taken from the Court Record of State v. Floyd,

    “N.C.G.S. § 14-32 (2015). Defendant was charged with assault with a deadly weapon with
    intent to kill inflicting serious injury pursuant to section 14-32(a), but ultimately pleaded no
    contest to “attempted assault with a deadly weapon inflicting serious injury.” He was
    punished as a Class F felon.”

    How in the world could the NC Appeals Court reverse the conviction, when Floyd took a plea to the charge as part of a plea bargain? This is an example of a Court making stuff up as they go, and not holding a defendant accountable of their actions or decisions. The NC Supreme Court made a sound decision in this case.

    • You cannot plead guilty to something that is not a crime. If ‘attempted assault’ were not a crime, then there could be no judgment from a guilty plea to it (even if that was what the Defendant wanted to do). Therefore, the Defendants conviction could have been undone and the State would have been required to retry the Defendant for that old case. (With all the attendant problems associated with doing so: e.g. old or lost witnesses, lost evidence, etc.)

      I actually had to use State v. Floyd to defend a person charged as a habitual felon a couple of years ago, when one of my client’s prior convictions was based on a plea of guilty to “Attempted Assault with a Deadly Weapon Inflicting Serious Injury.”

      I’m glad the Supreme Court ruled the way it did, because a guilty plea should not be overturned. But as an attorney (a VERY pro-state attorney on criminal matters, I might add) I have a problem with the crime of Attempted Assault with a Deadly Weapon Inflicting Injury. Assault with a Deadly Weapon is a misdemeanor. Even accepting the Supreme Court’s definition of a show of force to create an attempted assault, a show of force attempted assault by definition could not result in serious injury because the victim was never touched.

      Given that Assault with a Deadly Weapon is a class A1 misdemeanor, Attempted Assault with a Deadly Weapon should be a class 2 misdemeanor. The crime of attempting to assault someone with a deadly weapon by show of force is factually no different than attempting to assault someone with a deadly weapon to inflict a serious injury and missing. Therefore the “crime” that Floyd pleaded no contest to was in fact a class 2 misdemeanor.

  2. He tried and he tried but he just couldn’t pull it off.
    Is this crap coming from the 30th?

  3. So, this morning, a gentleman got upset with me as I tried to counter bid for a used tool box at my neighbor’s garage sale. He threatened, then displayed that he was carrying a weapon. According to the sheriff’s deputies he is a CCW holder as am I. I did not have a weapon, I did nothing more than offer 10 dollars more for a tool box. Then the person got angry, ensured that I knew he was carrying a weapon, then told me to back off several times though I never moved towards him, raised my voice or even assumed a defensive posture. I called 911 they took a report, nothing more. According to this particular blog entry, it would appear that I should have him charged with at the very least attempted assault with a deadly weapon. Or would he have to fully display the weapon, not just lift his shirt to show a holstered weapon?

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