Tag Archives: assault
Several years ago, the Sixth Circuit noted the “timeless question whether “spitting a ‘lugie’ towards someone, by itself, constitutes an ‘assault.’” United States v. Gagnon, 553 F.3d 1021 (6th Cir. 2009). I’ve been asked this question several times, and in today’s post, I set out to answer it. Continue reading →
On the first day of elementary school each year, our teacher displayed her paddle, which was wooden with a short, solid handle. The paddle portion had holes drilled through its core. Most school years, someone (always a boy, in my recollection), wound up being paddled. Times have changed for most students. But because a handful of schools in North Carolina still employ corporal punishment, questions continue to arise regarding when such punishment crosses the line between permissible school discipline and unlawful assault. Continue reading →
The murder rate in North Carolina is falling. The same is true nationally. A recent article suggests that shootings are actually up, but deaths are down due to medical advances. At least the first part of that claim is almost certainly wrong.
The chart below illustrates the decline in murders.
The article in question is this one, from the Wall Street Journal. It is entitled In Medical Triumph, Homicides Fall Despite Soaring Gun Violence. It argues that the fall in homicides cannot be due to falling overall crime rates because “[t]he reported number of people treated for gunshot attacks from 2001 to 2011 has grown by nearly half.”
Instead, the article concludes, the decline is due to improved medical care for gunshot victims, including “the spread of hospital trauma centers—which specialize in treating severe injuries—the increased use of helicopters to ferry patients, better training of first-responders and lessons gleaned from the battlefields of Iraq and Afghanistan.”
I seriously doubt the suggestion that there’s been a 50% increase in shootings since 2001. Aggravated assaults are way down, according to FBI data. The FBI’s Uniform Crime Reporting system defines an aggravated assault as an assault “for the purpose of inflicting severe or aggravated bodily injury . . . usually accompanied by the use of a weapon or by other means likely to produce death or great bodily harm.” Here’s what FBI data show about aggravated assaults.
The decline in aggravated assaults pretty closely tracks the decline in murders. It suggests that the reduction in violent conflicts explains the fall in homicides, and casts severe doubt on the idea that more people are getting shot.
Of course, it is theoretically possible that while there are fewer aggravated assaults overall, more of them involve gunplay. But the data that claim to show a rise in shootings don’t look very solid. The data come from the National Electronic Injury Surveillance System, run by the U.S. Consumer Product Safety Commission. That data is based on a “probability sample of hospitals in the U.S.,” so it is not comprehensive. And, the data are really intended to measure “injur[ies] associated with consumer products,” not criminal activity. This adds to my skepticism that shootings are up by 50%, or that medical care has advanced so rapidly that it can more than offset a 50% rise in shootings.
None of this is to say that medical care is not improving or that it has not contributed at all to falling murder rates. In fact, the most intriguing data cited by the article suggest a modest effect. The article cites data to the effect that “[i]n 2010, 13.96% of U.S. shooting victims died, almost two percentage points lower than in 2007.” Based on my back of the envelope calculations, a fall in fatality rate from 16% to 14% would almost exactly explain the observed decline in murders from 2007 to 2010 assuming a constant number of shootings. (It would be nowhere near enough to offset the supposed 50% increase in shootings.) For the reasons given above, I doubt that the number of shootings has been constant, so I suspect that even this modest effect is probably overstated.
Medical progress, probably. Medical triumph, I doubt.
I don’t follow professional basketball very closely, but I was absolutely stunned by a play late in a recent playoff game between the Los Angeles Lakers and the Dallas Mavericks. The Mavericks, already leading the series 3-0, were ahead by 30 points in the final quarter of the fourth game. Dallas guard Jose Barea drove to the basket, and as he rose to the rim for a layup, Lakers center Andrew Bynum came across the lane and drove his elbow into Barea’s ribcage. Cheap shot doesn’t begin to describe it. Bynum did not attempt to make a play on the ball, Barea was completely stretched out and exposed, and after Bynum’s vicious blow, Barea collapsed in a heap on the floor. You can see the video here. (For a local comparison, it was much worse than the forearm strike by Gerald Henderson that bloodied Tyler Hansbrough’s nose in 2007.)
Bynum was ejected, and I assume that the NBA will fine and suspend him. But could and should he be prosecuted criminally?
There have been a number of criminal prosecutions arising out of violent conduct during the course of sporting events. At the professional level, Todd Bertuzzi of the Vancouver Canucks was charged criminally for an in-game assault of another hockey player that left the latter with a broken neck. At the amateur level, sexual assault charges were brought last year against a high school wrestler as a result of his use of the “butt drag” against a teammate – a move in which, apparently, “you kind of penetrate the anus for just a brief period of time to prod the wrestler along to wrestle.” For a general discussion of this issue, see Jeffrey Standen, The Manly Sports: The Problematic Use of Criminal Law to Regulate Sports Violence, 99 J. Crim. L. & Criminology 619 (2009).
There’s a sense that players assume the risk of, and consent to, quite a bit of behavior that would otherwise be assaultive when they choose to participate in contact sports. The question is where to draw the line between rough play and criminal conduct. The only North Carolina case on point of which I’m aware is In re Johnson, 2002 WL 417012 (N.C. Ct. App. Mar. 19, 2002) (unpublished). In that case, a 13-year-old was adjudicated delinquent for assaulting a 7-year-old by pushing him to the ground during a basketball game. The court of appeals stated that “intentionally shoving a player on the ground outside the context of the game is not an accepted part of the game” and so could constitute an assault. However, it reversed the adjudication because no evidence was adduced regarding whether the push was in the course of the game or outside it, stating that “[m]inor incidents of pushing and shoving that occur during physical games are not normally subjects that should become matters of concern for our juvenile courts.”
In the end, Barea got up and seems not to have been seriously injured. That, and the fact that Bynum is likely to be punished by the NBA, persuades me that a criminal prosecution isn’t a good use of resources. But whether it would be legally justifiable is a separate question, and I’m not so sure of the answer. If you have a minute, watch the video, and then vote in the poll below.
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.
I’ve had a couple of questions lately about whether attempted assault is a crime. Nationally, there appears to be a split of authority on this issue. 6 Am. Jur. 2d Assault and Battery § 11 (noting that “[t]he authorities are in conflict whether an attempt to commit an assault is a criminal offense”); Marjorie A. Shields, Attempt to Commit Assault as Criminal Offense, 93 A.L.R.5th 683 (2001) (collecting cases).
In North Carolina, the court of appeals has twice held that the answer is no, because the crime of assault itself includes an attempt to injure. State v. Barksdale, 181 N.C. App. 302 (2007) (reversing conviction for attempted assault with a deadly weapon on a government officer because that offense would be an “attempt to attempt” and so does not exist); State v. Currence, 14 N.C. App. 263 (1972) (trial judge properly refused to accept a verdict of attempted assault with a deadly weapon). Cf. State v. Hewett, 158 N.C. 627 (1912) (noting, in a slightly different context, that “one cannot be indicted for an attempt to commit a crime where the crime attempted is in its very nature an attempt”).
As an interesting aside, many, many appellate cases, published and unpublished, involve convictions for attempted assaults, and treat those convictions without comment. In some instances, this may simply be a matter of the courts declining to pass on issues not raised by the parties. The apparent prevalence of such convictions, however, suggests that the rule of Barksdale and Currence is not widely known. See, e.g., State v. Edwards, 150 N.C. App. 544 (2002) (finding that a mistrial was properly declared when jury deadlocked on attempted assault with a deadly weapon charges and authorizing retrial on those charges); State v. Parks, 2010 WL 1292460 (N.C. Ct. App. April 6, 2010) (unpublished) (affirming habitual felon conviction where one of the defendant’s previous felonies was attempted assault with a deadly weapon and stating that “it is immaterial whether defendant was previously convicted of attempted assault with a deadly weapon inflicting serious injury or assault with a deadly weapon inflicting serious injury as both of these offenses are felonies under our General Statutes”); State v. Franklin, 2009 WL 368382 (N.C. Ct. App. Feb. 17, 2009) (unpublished) (affirming probation revocation; underlying conviction was “attempted assault with a deadly weapon with intent to kill”); State v. Vaughan, 2008 WL 850353 (N.C. Ct. App. April 1, 2008) (unpublished) (affirming habitual felon conviction where one of the defendant’s previous convictions was for “attempted assault with a deadly weapon with intent to kill”); State v. Platt, 2008 WL 711648 (N.C. Ct. App. Mar. 18, 2008) (unpublished) (holding, in the context of reviewing a trial court’s ruling regarding a defendant’s prior record level, that “the trial court properly concluded that the Kansas offense of attempted aggravated assault is substantially similar to the North Carolina offense of attempted assault with a deadly weapon”); State v. Carpenter, 2007 WL 2473126 (N.C. Ct. App. Sept. 4, 2007) (unpublished) (affirming probation revocation; underlying conviction was for “attempted assault with a deadly weapon on a government official”).
I’ve had several questions recently about the merger doctrine as it applies to felony murder. It’s a complicated area, made even more confusing because there are two different doctrines that share the name “merger.” I’m not going to address the merger doctrine that requires the court to arrest judgment on the underlying felony when a defendant is convicted of first-degree murder only on the basis of felony murder. See, e.g., State v. Millsaps, 356 N.C. 556, 560 (2002) (“When a defendant is convicted of felony murder only, the underlying felony constitutes an element of first-degree murder and merges into the murder conviction.”). The law in that area is clear. Instead, I’m going to discuss the merger doctrine that prevents certain assaults from serving as the underlying felony for felony murder. In order to give this rule a unique name, and because the rule applies when an assault is an integral part of a homicide, I’ll sometimes refer to it as the “part-and-parcel assault rule.”
The basic rule was expressed in State v. Jones, 353 N.C. 159, 170 n.3 (2000): In “cases involving a single assault victim who dies of his injuries . . . the assault on the victim cannot be used as an underlying felony for purposes of the felony murder rule. Otherwise, virtually all felonious assaults . . . that result in . . . death would be first-degree murders via felony murder, thereby negating lesser homicide charges such as second-degree murder and manslaughter.” So it is clear that when A fatally shoots B, A cannot properly be charged with felony murder using, for example, AWDWIK as the predicate felony. As an aside, while this appears to be the majority rule nationally, some states have rejected it. In Georgia, for example, part-and-parcel assaults may form the basis of felony murder charges. State v. Huntley, 518 S.E.2d 890 (Ga. 1999). See generally Robert L. Simpson, Application of felony-murder doctrine where the felony relied upon is an includible offense with the homicide, 40 A.L.R.3d 1341 (comparing approaches).
Just how closely related must the assault and the homicide be in order for the part-and-parcel assault rule to apply? Very closely, under State v. Carroll, 356 N.C. 526 (2002). In Carroll, the defendant struck the victim with a machete, then strangled her. He was convicted of felony murder, with AWDWISI — based on the blow with the machete — as the underlying felony. The reviewing court affirmed, holding that “[t]he victim . . . did not die as a result of the assault with the machete. The blow to her head was not fatal. Rather, the cause of death was strangulation. As such, the assault was a separate offense from the murder. Accordingly, the trial court did not err in submitting a felony murder instruction to the jury because the felonious assault did not merge into the homicide.” Carroll appeared to involve a slight time gap between the blow with the machete and the strangulation, and perhaps the result would be different if the non-fatal assault were followed immediately by the fatal one — for example, if A stabbed B during a fight, then immediately shot him. Or, to take the example a step further, if A shot B in the arm, then immediately and fatally in the chest.
Does the merger rule as expressed in Jones apply to felonies that are not denominated as assaults but involve similar conduct? For example, is felony child abuse subject to the merger rule? We have very little law in this important area. Several pre-Jones cases affirmed felony murder convictions based on felonies that are similar to assaults. See, e.g., State v. Wall, 304 N.C. 609 (1982) (discharging a firearm into an occupied vehicle); State v. Pierce, 346 N.C. 471 (1997) (felony child abuse). And while the court of appeals has continued to follow these precedents for the specific offenses involved, see, e.g., State v. Jackson, 189 N.C.App. 747 (2008) (discharging a firearm into an occupied vehicle), the holding of Jones calls the reasoning of these cases into question. For example, the Wall court acknowledged that, under the facts of that case, discharging a firearm into an occupied vehicle was in “integral part of the homicide,” and affirmed the conviction only because it rejected the merger doctrine that Jones, at least to some extent, endorsed. Perhaps the part-and-parcel assault rule can be limited to offenses denominated as assaults, but I’m inclined to think that the rationale for the rule applies with equal force to assault-like offenses with different names. If you disagree, please post a comment! In any event, I’m told that a case raising this issue is on appeal now, so perhaps we’ll have a definitive answer soon.
The Court of Appeals released several opinions yesterday. The most significant may be State v. Wallace, an assault case involving remarkable and disturbing facts and difficult legal questions.
The victim, a 79-year-old man, and one of the defendants, a 66-year-old woman, became neighbors when the victim sold the defendant some of his land. A boundary dispute ensued, and feelings ran high. Compressing the facts a bit, the victim was in his yard one day when his neighbor and her 40-year-old daughter attacked him. They pulled him to the ground, bound his hands and feet, and placed a plastic bag over his head. He was able to make a hole in the bag, so the women tried, unsuccessfully, to cram it into his mouth. They proceeded to beat the victim with their hands and with tree limbs for over an hour, until they became exhausted.
During the respite, the victim begged for his life, and passed out. When he awoke, the defendants asked him to sign a statement saying that the land in question was theirs. He did so, and the defendants then became “extremely gentle,” washed his wounds, and helped him to his truck. He called the police. The defendants were charged with first-degree kidnapping, attempted first-degree murder, and AWDWIKISI. A jury convicted each of them of AWDWISI.
On appeal, the daughter argued that the evidence was insufficient to show that she employed a deadly weapon. The indictment alleged that she had used a “Large Limb, Fist and Plastic Bag over [the victim’s] head.” The Court of Appeals focused mainly on the daughter’s use of her fists, first observing that “an acting in concert instruction was not requested by the State nor given to the jury . . . Therefore, we must determine whether [the daughter], individually, employed a deadly weapon during the assault.” It then noted that a defendant’s fists may be a deadly weapon “depending on the manner in which they were used and the relative size and condition of the parties.” The court concluded that although the daughter was female and the victim was male, and although he was both taller and heavier than she, the jury could reasonably have concluded that her fists were deadly weapons given the victim’s age and the fact that the daughter was assisted by her mother. The court stated that “together [the two women] outweighed [the victim] by approximately 72 pounds. . . . [W]hile we are here deciding whether sufficient evidence was presented tending to show [the daughter], individually, employed a deadly weapon . . . that does not preclude us from considering the fact that [her mother] assisted [her] in knocking [the victim] to the ground and rendering him completely incapacitated during the assault.” This part of the court’s analysis suggests that the mother’s assistance counts as part of the “manner in which [the daughter’s fists] were used,” a very expansive interpretation of the law. It seems more accurate to describe the mother’s assistance as a circumstance under which the daughter’s fists were used, but the outcome is probably right regardless, based on the victim’s advanced age and health problems alone.
The mother raised a different argument, contending that there was insufficient evidence that she, as opposed to her daughter, had inflicted serious injuries upon the victim. The court rejected this argument, too, based on the victim’s testimony that both defendants participated in the beating and on expert testimony regarding the seriousness of the victim’s injuries. To be fair to the mother’s argument, none of the evidence relied on by the court showed that the specific blows she struck resulted in the victim’s injuries, but the court appeared to view this as hypertechnical. In any event, it appears to be an issue that the state can prevent in future cases by requesting an acting in concert instruction.
I’d be curious to hear readers’ takes on this case. Which defendant had the stronger argument? Anyone excited about, or troubled by, the court’s disposition of the deadly weapon issue?
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.