North Carolina has a number of different assault crimes, like simple assault, assault on a female, assault with a deadly weapon, and so on. We also have a confusing body of case law regarding the propriety of multiple assault convictions based on a single course of conduct. For example, can a defendant who assaults his wife with a knife be convicted of both assault on a female and assault with a deadly weapon?
The critical case in this area is State v. Ezell, 159 N.C. App. 103 (2003). In Ezell, the court considered whether a defendant could be convicted of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) and assault inflicting serious bodily injury (AISBI) based on the same conduct. The defendant argued no, claiming that double jeopardy precluded the multiple convictions.
The court started off in the right direction, noting that double jeopardy prohibits multiple punishments for the same offense, and that the test for whether two crimes are the “same offense” is the same-elements test established in Blockburger v. United States, 284 U.S. 299 (1932). Essentially, the questions is whether each offense contains at least one element that the other does not. If so, they are separate offenses and the defendant may be convicted of both. If not, the offenses are either the same offense, or one is a lesser-included offense of the other, in which case double jeopardy normally precludes conviction of both.
Plainly, AWDWIKISI and AISBI each have distinct elements and so pass the Blockburger test: the former requires proof that a deadly weapon was used and that the defendant had the intent to kill, while the latter requires proof of serious bodily injury, which is more grave than the plain old “serious injury” required by the former. The Ezell court nonetheless held that the defendant could not be convicted of both, because G.S. 14-32.4, which defines AISBI and makes it a Class F felony, states that it applies “[u]nless the conduct is covered under some other provision of law providing greater punishment.” The court concluded that in Ezell, the conduct was covered by some other provision of law providing greater punishment, namely, G.S. 14-32, which made AWDWIKISI a Class E felony.
As a matter of statutory interpretation, the court’s reasoning works. The problem is that the court characterized its ruling as a matter of double jeopardy, which it isn’t. (The court’s discussion of Missouri v. Hunter, 459 U.S. 359 (1983), is a red herring, because that case concerns when multiple convictions are allowed even when the crimes are the same under Blockburger; it does not stand for the proposition that multiple convictions may be prohibited even when the crimes are not the same under Blockburger.) The upshot has been that lots of people, including judges, lawyers, and litigants, think that there is a general double jeopardy prohibition against convicting a defendant of both a more serious offense and a “lesser related” offense — a less-serious offense that shares some elements with the more-serious offense but that also has some distinct elements, so that it is not a lesser-included offense. There is no such general prohibition. Conviction of both offenses is permitted under the Blockburger test. There is a prohibition in the assault context only because of the “[u]nless the conduct is covered . . .” language, which appears in many of the assault statutes.
Ezell has been applied in several later cases, see, e.g., State v. McCoy, 174 N.C. App. 105 (2005) (holding that a defendant can’t be convicted of AWDWISI and AISBI based on the same conduct), but has been held not to apply when the greater offense is not an assault offense, see State v. Hines, 166 N.C. App. 202 (2005) (upholding convictions of RWDW and assault on a handicapped person). One issue left open by Ezell and not, as far as I can tell, answered in any subsequent case, is whether a defendant may be convicted of two assault offenses that are the same degree of seriousness based on the same conduct, such as AOF and AISI, which are both A1 misdemeanors. I suppose so, since there’s no (true) double jeopardy problem, and since the statutory language that forms the basis for Ezell applies only when there is another provision of law providing “greater,” not equal, punishment.
Update: The Court of Appeals, in State v. Williams, __ N.C. App. __ (2009), recently applied Ezell to bar convictions of (1) AISBI and assault by strangulation based on the same conduct, and (2) AISBI and AWDWISI based on the same conduct. It used some of the “double jeopardy” language I criticized above, but reached the right result, as a matter of statutory interpretation, both times. The latter ruling, though, is couched in very broad language that might be read to imply that it would never be proper for a defendant to be convicted of two assault offenses based on the same conduct, regardless of the offenses’ elements and whether the statues in question explicitly prohibit multiple convictions.