Imagine a case of domestic violence in which the perpetrator physically and violently assaults a victim. The perpetrator punches the victim with his fist, grabs the victim by the throat and strangles her, and grabs the nearest object and hits her over the head. The victim suffers a broken jaw, black eye, and a concussion and sustains bruising to the neck.
Assuming each of these acts occurred within a short and continuous time frame, could the perpetrator be charged with multiple counts of assault or only one?
As is the answer to many other legal questions, it depends. Our state courts have been presented with this question for decades: when do multiple physical acts constitute one continuing assault offense and when do they constitute more than one assault offense?
Two Tests
The basic test is that 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.
Courts also have used a three-factor test. This test was identified in State v. Rambert, 341 N.C. 173 (1995), a case involving discharging a firearm into occupied property. 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. Id. Courts in assault cases have utilized these factors in determining whether the defendant committed a single assault or multiple assaults.
Sometimes the courts use the simpler “distinct interruption” test; sometimes they use the Rambert three-factor test. Both share a common requirement that the acts be distinct in time to constitute separate assaults. What is separate and distinct requires a close analysis of the evidence in each case. The cases are not always easy to reconcile. The discussion below includes examples of decisions going each way.
Examples of Single Offenses
In State v. Prince, ___ N.C. App. ___, 843 S.E.2d 700 (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 defendant’s wife was rendered unconscious during the assault and suffered bruises around her neck, a brain bleed, multiple contusions, and burst blood vessels in her eyes. Id. at 702.
The statute on assault by strangulation applies “unless the conduct is covered under some other provision of law providing greater punishment.” Id. The defendant argued on appeal that because his conduct was covered under the statutory definition of assault with a deadly weapon with intent to kill inflicting serious injury – a Class C felony, and thus a greater punishment – it was error in violation of statutory mandate for the trial judge to sentence the defendant on assault by strangulation. Id. The State responded 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. Id. Therefore, according to the State, the statutory prohibition on double punishment for the same conduct did not apply.
The Court of Appeals rejected the State’s argument because there was no evidence of a distinct interruption during the assaultive conduct. Id. at 703. Instead, the evidence showed that the victim’s injuries resulted from a single, prolonged, assault. Id. 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. Id.
In another recent case, State v. Robinson, ___ N.C. App. ___, (Dec. 15, 2020), the defendant pled guilty to assault on a female, violation of a domestic violence protective order, assault inflicting serious bodily injury, and assault by strangulation after an incident in which he held the victim captive and broke her jaw.
According to the State’s factual basis for the plea, when officers arrived on the scene, the victim was present and said that the defendant had grabbed her around the neck and choked her. Slip op. at 3. During the assault that occurred over that night, 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. Id. She also had small cuts on her hands that were consistent with the altercation as well as bruising around her neck. Id.
Under the terms of the proposed plea arrangement, the State agreed to consolidate the offenses into one Class F felony judgment. Slip op. at 2. However, after learning of the defendant’s history of domestic violence and hearing the victim’s account of the events underlying the plea, the trial judge rejected the proposed plea arrangement. Id. Under the terms of the modified plea arrangement, which the trial judge accepted, the defendant would serve time in prison for the Class F felony of assault inflicting serious bodily injury, followed by a term of imprisonment for the Class H felony of assault by strangulation. Id. As for the Class A1 misdemeanor offenses of assault on a female and violation of a domestic violence protective order, the defendant would serve two consecutive suspended sentences with supervised probation. Id.
The defendant filed a certiorari petition with the Court of Appeals, and the Court agreed to review the issue of whether the trial judge erred by entering judgment on three assault charges rather than one. The defendant argued that the State’s factual summary before the trial judge did not establish more than one assault. Id. A majority of the Court of Appeals agreed, concluding that the factual basis for the defendant’s guilty plea, as delivered by the prosecutor, supported just one assault conviction. Slip op. at 5. The Court held that because the convictions for assault on a female and assault by strangulation were based on the same underlying conduct as his conviction for assault inflicting serious bodily injury, it was error for the trial judge to enter a judgment and sentence the defendant on those two additional charges. Id.
Note: Judge Berger dissented in both of these cases, reaching a different result using the Rambert factors described below. These dissents give the State the right to appeal the decisions to the North Carolina Supreme Court.
Examples of Multiple Offenses
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. Id at 176. The man then drove forward, and the defendant fired again and struck the passenger door of the man’s car. Id. The defendant pursued the man and fired a third shot, which lodged in the rear bumper of the man’s car. Id. The defendant was charged with and convicted of three counts of discharging a firearm into occupied property. Id. at 174.
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.
Using the three factors discussed in Rambert, the Court in State v. Harding, 258 N.C. App. 306 (2018), upheld the defendant’s convictions of assault on a female and assault by strangulation. In Harding, the defendant grabbed the victim’s hair and tossed her over an embankment. Id. at 309. When the victim got up and tried to run away, the defendant grabbed her and started beating her face. Id. The victim again fell to the ground, and the defendant pinned her body down, grabbed her throat, and choked and hit her until she stopped trying to fight him. Id. The defendant agreed to stop his physical assault if the victim quit screaming and resisting. Id. The victim calmed down briefly and begged the defendant not to hurt her. Id. at 310. Shortly thereafter, the victim started screaming again, and the defendant hit her in the head and covered her mouth. Id. When the victim bit the defendant’s hand, he hit her again in the head multiple times. Id. Eventually, the victim stopped resisting and the defendant let her up. Id. The victim suffered two black eyes, injuries to her head, and bruises to her body, as well as pain in her neck and hoarseness in her voice from the strangulation. Id. at 318.
The Court of Appeals held that the convictions of assault on a female and assault by strangulation were based on different conduct. Id. at 317. The Court reasoned that the two assaults were sufficiently separate and distinct to sustain both convictions. Id. First, the defendant’s assaults required different thought processes. Id. The defendant’s decisions to grab the victim’s hair, throw her down the embankment, and repeatedly punch her face and head required a separate thought process than his decision to pin her down while she was on the ground and strangle her throat to quiet her screaming. Id. Second, the assaults were distinct in time. Id. at 318. After the defendant’s initial physical assault and strangulation, he briefly ceased his physical assault after the victim stopped screaming and resisting. Id. After the victim screamed again, the defendant hit her again in the head multiple times. Id. Third, the victim sustained injuries to different parts of her body. Id.
As the law stands, there is no one test that is used uniformly in assault cases. Each of the above cases shows the need to do close analysis to determine whether there is a single offense or multiple offenses. The answer will not always be clear. I welcome your thoughts and invite your comments. Please feel free to email me with any questions at bwilliams@sog.unc.edu.