Appeal by defendant from judgments dated 28 February 2001 by
Judge W. Russell Duke, Jr. in Superior Court, Pasquotank County.
Heard in the Court of Appeals 20 May 2001.
Attorney General Roy Cooper, by Assistant Attorney General J.
Philip Allen, for the State.
Paul Pooley for defendant-appellant.
McGEE, Judge.
Donald Eugene Chambers (defendant) was indicted on charges of
(1) assault with a deadly weapon with intent to kill inflicting
serious injury on Gwenette Renea Askew (Officer Askew) in violation
of N.C. Gen. Stat. § 14-32(a), (2) assault with a deadly weapon on
Officer Askew, a law enforcement officer, in violation of N.C. Gen.
Stat. § 14-34.2 and (3) assault on Kimberly Paul (Officer Paul), a
law enforcement officer, in violation of N.C. Gen. Stat. § 14-33.
Evidence for the State at trial tended to show the following.
Officer Askew, a correctional officer at Pasquotank Correctional
Center (the prison), testified that on the night of 20 December
1999 she was on duty at the prison. She saw defendant and another
inmate playing cards and told them to take off their "wave cap," orhead rag, because the caps were not supposed to be worn while
inmates were outside their cells. Officer Askew stated that
defendant responded, "I don't want to hit at s[---]" and that
defendant was "getting hostile." Officer Askew went to a control
room at the prison to complete her paperwork before her shift
ended. While doing her paperwork, Officer Askew was notified by a
fellow officer that an inmate wanted to speak with her. Officer
Askew went to the inmate dormitory area, and she then followed
defendant into the staff break room. Officer Askew stopped in the
doorway and defendant told her not to tell him what to do and put
his finger in her face. Officer Askew reached for her handcuffs
and defendant hit her on the left side of her face. She turned to
run to a nearby gate, but it was closed. When Officer Askew turned
around, defendant was "standing directly in [her] face." Defendant
grabbed Officer Askew and threw her up against a shower made of
solid glass and "kept . . . hitting [her] in [her] face." Officer
Askew stated that after about four hits she "stopped counting and
didn't feel anything else." She tried to spray defendant with
pepper spray but her spray did not work.
Officer Paul, another correctional officer at the prison,
entered the room and grabbed defendant. Defendant picked her up
and threw her down on the concrete floor. Officer Paul got up and
again grabbed defendant. Officer Askew hit defendant one time, and
then he grabbed something out of the front of his pants and started
hitting Officer Askew on her chest, back and neck.
Officer Askew testified that Sergeant Victor Mason (SergeantMason), a correctional officer at the prison, entered the room and
he, Officer Paul, and Officer Askew sprayed defendant with pepper
spray. Officer Jennings, a correctional officer at the prison,
came in, grabbed defendant, and hit him with a baton. Officer
Askew was taken into the sergeant's office. She stated she was
bleeding but she did not know where the blood was coming from. She
testified that she "[j]ust laid there and was gasping for breath.
My whole left side-- I didn't have any feeling on the left side so
I knew I was hurt on the left side."
Officer Askew was taken to the emergency room of Albemarle
Hospital where it was determined that she had been stabbed twice in
the back, with one wound close to her lungs. She also had a wound
in her chest, was nicked on her neck, and her jaw was "knocked out
of place." She remained in the emergency room until the next day.
She was prescribed painkillers for two weeks and she was "real
sore" for three or four days. She stated that it was very painful
for her to wash her wounds as she was required to do three times a
day. Officer Askew testified that she will have scars from the
wounds for the rest of her life. At the time of trial she had not
returned to work. She stated she was currently under the care of
a psychiatrist, took sleeping pills, and had flashbacks and
nightmares about the incident.
Officer Paul testified that she saw defendant pin Officer
Askew up against a wall and hit her. Officer Paul saw that
defendant had a homemade shank -- a homemade knife -- in his hand
and that defendant was "thrusting it" at Officer Askew. OfficerPaul tried to knock the shank out of defendant's hand but he hit
her and knocked her to the floor.
Officer Christy Jordan, a control booth officer at the prison,
testified she saw defendant hit and stab Officer Askew around her
chest and neck area, and saw blood on Officer Askew's back.
Sergeant Mason testified that he saw Officer Askew "against
the wall holding her throat" and he "observed blood on her shirt
and blood coming from between her fingers." Sergeant Mason got
between defendant and Officer Askew and sprayed defendant with
pepper spray. He yelled at defendant to drop the shank. Defendant
dropped the shank and other officers arrived and handcuffed
defendant.
At the close of the State's evidence, defendant moved to
dismiss the charges against him, which the trial court denied.
Defendant did not present any evidence. At the close of all the
evidence, defendant renewed his motion to dismiss, which the trial
court denied.
The jury found defendant guilty of: (1) assault with a deadly
weapon with intent to kill inflicting serious injury on Officer
Askew, (2) assault with a deadly weapon on Officer Askew, a
correctional officer, and (3) assault on Officer Paul, a
correctional officer. The trial court sentenced defendant to a
term of 168 to 211 months in prison for assault with a deadly
weapon with intent to kill inflicting serious injury; thirty-nine
to forty-seven months for assault with a deadly weapon on a law
enforcement officer, and 150 days for assault on a law enforcementofficer. All sentences were to run consecutively and consecutive
to all other sentences which defendant was previously serving.
Defendant appeals.
In the record on appeal, defendant raises five assignments of
error; however, in his brief to our Court he argues only
assignments of error numbers four and five. The assignments of
error not argued in defendant's brief are deemed abandoned. N.C.R.
App. P. 28(a). ("Questions raised by assignments of error in
appeals from trial tribunals but not then presented and discussed
in a party's brief, are deemed abandoned.").
I.
Defendant first argues the trial court erred in imposing
punishment upon him for both assault with a deadly weapon with
intent to kill inflicting serious injury in violation of N.C. Gen.
Stat. § 14-32(a) and assault with a deadly weapon on a law
enforcement officer in violation of N.C. Gen. Stat. § 14-34.2.
N.C. Gen. Stat. § 14-32(a) (1999) provides that "[a]ny person
who assaults another person with a deadly weapon with intent to
kill and inflicts serious injury shall be punished as a Class C
felon." N.C. Gen. Stat. § 14-34.2 (1999) states that
[u]nless a person's conduct is covered under
some other provision of law providing greater
punishment, any person who commits an assault
with a firearm or any other deadly weapon upon
an officer or employee of the State . . . , in
the performance of his duties shall be guilty
of a Class F felony.
Defendant concedes in his brief that the two offenses are
separate and distinct offenses for which a defendant may bepunished without offending double jeopardy principles, with each
crime containing an element not required to be proven in the other
crime. Defendant argues, however, that "the language of G.S. § 14-
34.2 prohibits punishment for the same conduct under that statute
when a defendant, as in the case here, is prosecuted, convicted,
and punished for the same conduct under a statute providing for
greater punishment." Defendant states that his argument "turns on
whether the same conduct is covered under another provision of law
providing greater punishment, and the legislative enactment that in
such a case a defendant may not be punished under G.S. § 14-34.2."
The State contends the "conduct" referred to in N.C.G.S. § 14-
34.2 is the conduct of assaulting a law enforcement officer with a
deadly weapon, and such "conduct" is not "covered" by N.C.G.S. §
14-32, which does not mention law enforcement officers.
Our Court in
State v. Coria held that the General Assembly
clearly intended "to authorize cumulative punishments for those
who, by a single act, violate both G.S. § 14-32(c) and G.S. § 14-
34.2."
State v. Coria, 131 N.C. App. 449, 457, 508 S.E.2d 1, 6
(1998). In
Coria, the defendant was sentenced based upon
convictions for both assault with a deadly weapon upon a law
enforcement officer in violation of N.C.G.S. § 14-34.2, and assault
with a deadly weapon with intent to kill in violation of N.C.G.S.
§ 14-32(c). Both offenses arose from the same act of shooting at
a law enforcement officer.
Our Court first
determined in
Coria that N.C.G.S. § 14-32(c)
and N.C.G.S. § 14-34.2 are separate offenses for which a defendantmay
be punished. We next considered the distinct legislative
purposes underlying each statute and concluded that the General
Assembly in fact intended that a defendant could properly be
separately punished for each violation. We
stated that "[t]he
essence of G.S. § 14-34.2 'is the legislative intent to give
greater protection to the law enforcement officer by proscribing a
greater punishment for one who knowingly assaults such an
officer.'"
Coria, 131 N.C. App. at 456, 508 S.E.2d at 6 (quoting
State v. Avery, 315 N.C. 1, 31, 337 S.E.2d 786, 803 (1985),
disc.
review denied, 326 N.C. 51, 389 S.E.2d 96 (1990)). "On the other
hand, the stated purpose of G.S. § 14-32(c) is to protect life or
limb."
Id. (citing
State v. Cass, 55 N.C. App. 291, 285 S.E.2d
337,
disc. review denied, 305 N.C. 396, 290 S.E.2d 366 (1982)).
"Thus there is a clear indication that the legislature intended to
authorize cumulative punishments for those, who, by a single act,
violate both G.S. § 14-32(c) and G.S. § 14-34.2" and the trial
court did not err in so punishing the defendant.
Coria, 131 N.C.
App. at 457, 508 S.E.2d at 6.
Defendant in the case before us was convicted of two offenses
arising out of the same act. Defendant contends that because a
violation of N.C.G.S. § 14-32(a) imposes a greater punishment than
a violation of N.C.G.S. § 14-34.2, the General Assembly intended
that defendant not be additionally punished for the same conduct
under N.C.G.S. § 14-34.2.
The legislative purpose of N.C.G.S. § 14-34.2 is to impose
greater punishment upon those who knowingly assault a lawenforcement officer, thus giving law enforcement officers greater
protection.
Coria, 131 N.C. App. at 456, 508 S.E.2d at 6. The
stated legislative purpose of N.C.G.S. § 14-32(a), like N.C.G.S. §
14-32(c), is to protect life and limb.
Id. Thus, the General
Assembly did intend, in cases like the one before us, to authorize
cumulative punishments for those who, by a single act, violate both
N.C.G.S. § 14-32(a) and N.C.G.S. § 14-34.2.
Although the language of N.C.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 N.C. Gen. Stat. § 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 N.C.G.S. § 14-34.2. Therefore, separate
punishments were properly imposed on defendant who, by a single
act, violated both N.C.G.S. § 14-32(a) and N.C.G.S. § 14-34.2.
Defendant's fifth assignment of error is overruled.
II.
Defendant next contends the trial court erred in itsperemptory instruction to the jury on the "serious injury" element
of the charge of assault with a deadly weapon with intent to kill
inflicting serious injury on Officer Askew. Specifically,
defendant argues that the trial court erred in instructing the jury
that "[p]hysical stab wounds to the upper body or upper part of the
body would be a serious injury."
According to defendant, whether a serious injury has occurred
is a question for the jury and in this case, reasonable minds could
differ as to the seriousness of Officer Askew's injuries. By
giving the jury the peremptory instruction, defendant argues that
the trial court "relieved the state of its obligation to prove each
element to a unanimous jury beyond a reasonable doubt" and "had a
probable impact on the jury's finding that the defendant was guilty
of the greater offense because they did not need to prove this
critical element to the satisfaction of a unanimous jury."
Defendant is correct that "[w]hether a serious injury has been
inflicted depends upon the facts of each case and is
generally for
the jury to decide under appropriate circumstances."
State v.
Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991) (emphasis
added),
cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000)
(citing
State v. James, 321 N.C. 676, 365 S.E.2d 579 (1988)). When
determining whether a serious injury was inflicted, "[a] jury may
consider such pertinent factors as hospitalization, pain, loss of
blood, and time lost at work in determining whether an injury is
serious."
Hedgepeth, 330 N.C. at 53, 409 S.E.2d at 318 (citing
State v. Owens, 65 N.C. App. 107, 308 S.E.2d 494 (1983)). "Evidence that the victim was hospitalized, however, is not
necessary for proof of serious injury."
Id. (citing
State v.
Joyner, 295 N.C. 55, 243 S.E.2d 367 (1978)). Our Court has held
that "[i]n the absence of conflicting evidence, a trial judge may
instruct the jury that injuries to a victim are serious as a matter
of law if reasonable minds could not differ as to their serious
nature."
Hedgepeth, 330 N.C. at 54, 409 S.E.2d at 318-19.
Defendant did not present any evidence. Therefore, we
determine only whether reasonable minds could differ as to the
seriousness of Officer Askew's injuries from the State's evidence,
since there is no conflicting evidence as to the officer's
injuries.
The evidence in the case before us shows that Officer Askew
suffered stab wounds to her chest and back, with one wound close to
her lungs, as well as a "nick" to her neck. These injuries were
inflicted by defendant with a homemade shank. Officer Askew
testified that after she was stabbed, she was bleeding, she was
gasping for breath, and she could not feel the left side of her
body. Officer Askew was taken to the hospital where she stayed in
the emergency room until the next day. She testified that she was
on pain killers for two weeks and was "real sore" for three or four
days. She stated that it was very painful for her to wash her
wounds as she was required to do three times a day. Officer Askew
testified that she still had scars at the time of trial and would
have them "for . . . life." Further, she stated that she had not
returned to work at the time of trial. From the evidence presented at trial by the State, we do not
find that reasonable minds could differ as to the seriousness of
Officer Askew's injuries. The trial court did not err in its
instruction to the jury. Defendant's fourth assignment of error is
overruled.
No error.
Chief Judge EAGLES and Judge TYSON concur.
Report per Rule 30(e).
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