Defendant argues on appeal that he received multiple
punishments for the same offense in violation of constitutional
prohibitions against double jeopardy. Specifically, he contends
that he was punished twice for the assault on Taylor, once when he
was convicted and sentenced for assault with a deadly weapon with
intent to kill inflicting serious injury, pursuant to N.C. Gen.
Stat. § 14-32(b), and again when he was convicted and sentenced for
assault inflicting serious bodily injury, under § 14-32.4. We
 Before reaching the merits, we must address the State's
contention that defendant failed to raise the issue of double
jeopardy before the trial court and that, as a result, he is
precluded from raising that issue now. To preserve a question forappellate review, a party must have presented a timely request,
objection, or motion to the trial court and have obtained a ruling
thereon. N.C. R. App. Proc. 10(b)(1). We have carefully reviewed
the transcript in this case. Although defendant did not raise his
double jeopardy argument using those exact words, the substance of
the argument was sufficiently presented and, more importantly,
addressed by the trial court in finalizing its instructions to the
jury. Accordingly, we proceed to the merits of defendant's
 Defendant contends that his conviction violates his right
to be free from double jeopardy, as protected by both the Fifth
Amendment of the United States Constitution and Article I, Section
19 of the North Carolina Constitution.
The Fifth Amendment to the
United States Constitution provides that no person shall be
subject for the same offence to be twice put in jeopardy of life
or limb. Article I, section 19 of the North Carolina Constitution
does not expressly prohibit double jeopardy, but the courts have
included it as one of the fundamental and sacred principle[s] of
the common law, deeply imbedded in criminal jurisprudence as part
of the law of the land. State v. Ballard,
280 N.C. 479, 482, 186
S.E.2d 372, 373 (1972) (internal quotations omitted).
The double jeopardy clause prohibits (1) a second prosecution
for the same offenses after acquittal; (2) a second prosecution for
the same offense after conviction; and (3) multiple convictions for
the same offense. North Carolina v. Pearce
, 395 U.S. 711, 717, 23
L.Ed.2d 656 (1969); State v. Gardner
, 315 N.C. 444, 451, 340 S.E.2d701, 707 (1986). We are concerned here with the third category, as
defendant alleges that he received multiple punishments for the
For decades, the Supreme Court of the United States has
applied what has been called the Blockburger
test in analyzing
multiple offenses for double jeopardy purposes. The Court in
Blockburger v. United States
, 284 U.S. 299, 76 L.Ed. 306 (1932),
held as follows:
The applicable rule is that, where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to
determine whether there are two offenses or only
one is whether each provision requires proof of a
fact which the other does not.
at 304, 76 L.Ed. at 309. If what purports to be two offenses
is actually one under the Blockburger
test, double jeopardy
prohibits prosecution for both. Brown v. Ohio
, 432 U.S. 161, 166,
53 L.Ed.2d 187 (1977).
However, as the Supreme Court made clear in Missouri v.
, double jeopardy does not prohibit multiple punishment for
two offenses--even if one is included within the other under the
test--if both are tried at the same time and the
legislature intended for both offenses to be separately punished.
, 459 U.S. 359, 368-69, 74 L.Ed.2d 535 (1983); see also
, 315 N.C. at 454-55; 340 S.E.2d at 709. In other words,
the Double Jeopardy Clause plays only a limited role in deciding
whether cumulative punishments may be imposed under different
statutes at a single criminal proceeding--that role being only to
prevent the sentencing court from prescribing greater punishments
than the legislature intended. Gardner
, 315 N.C. at 460, 340S.E.2d at 712. Where our legislature 'specifically authorizes
punishment under two statutes, regardless of whether those two
statutes proscribe the 'same' conduct under Blockburger
, a court's
task of statutory construction is at an end and the prosecutor may
seek and the trial court or jury may impose cumulative punishments
under such statutes in a single trial. Id., citing Hunter
U.S. at 368-69, 74 L.Ed.2d at 544. Moreover, as our Supreme Court
explained in Gardner
[T]he presumption raised by the Blockburger
test is only a
federal rule for determining legislative intent as to
violations of federal criminal laws and is neither binding on
state courts nor conclusive.
When utilized, it may be
rebutted by a clear indication of legislative intent; and,
when such intent is found, it must be respected, regardless of
the outcome of the application of the Blockburger
is, even if the elements of the two statutory crimes are
identical and neither requires proof of a fact that the other
does not, the defendant may, in a single trial, be convicted
of and punished for both crimes if it is found that the
legislature so intended.
. at 455, 340 S.E.2d at 709, citing Hunter
, 459 U.S. 359, 74
, the North Carolina Supreme Court examined the
subject, language, and history of the two statutes at issue to
determine legislative intent. In concluding that the legislature
intended that defendants could be punished for both felony larceny
and breaking or entering, the Court noted that the two offenses
each address separate and distinct social norms, the breaking
into or entering the property of another and the stealing and
carrying away of another's property. Id.
at 461, 340 S.E.2d at
712. Moreover, the fact that the two offenses were placed in
different subchapters of the criminal code was further indicationthat the legislature intended that the two crimes be separate. Id.
at 462, 340 S.E.2d at 713. The Court also explained that it had
uniformly and frequently held since the turn of the century that
the two offenses are distinct crimes. In sum, the Court did not
believe that our legislature intended that the crime of breaking
or entering should subsume the co-equal crime of felony larceny
committed pursuant to the breaking or entering. Id.
at 463, 340
S.E.2d at 714.
Similarly in State v. Pipkens
, 337 N.C. 431, 446 S.E.2d 360
(1994), the North Carolina Supreme Court held that the defendant's
convictions and punishments for trafficking in cocaine by
possession and felonious possession of cocaine, based on the same
contraband, did not violate the principles of double jeopardy. The
Court first examined the intent and policy considerations behind
each provision, holding that each was separate and distinct. The
offense of felonious possession of cocaine is prohibited because
the possession by any person of any amount of controlled
substances is against the public's interest, presumably because it
enhances the potential for use of the substance, either by the
possessor or by a person to whom the possessor distributes it.
at 434, 446 S.E.2d at 362. In contrast, the offense of
trafficking in cocaine by possession was responsive to a growing
concern regarding the gravity of illegal drug activity in North
Carolina and the need for effective laws to deter the corrupting
influence of drug dealers and traffickers. Id.
quotation marks omitted). Unlike possession, which combats the
perceived evil of individual possession of controlled substances,the trafficking statute is intended to prevent the large-scale
distribution of controlled substances to the public. Id.
446 S.E.2d at 362-63. Thus, the Court held that [b]ecause the
perceived evils these statutes attempt to combat are distinct, we
conclude that the legislature's intent was to proscribe and punish
separately the offenses of felonious possession of cocaine and of
trafficking in cocaine by possession. Id.
at 434, 446 S.E.2d at
We are aware of the North Carolina Supreme Court's decision in
State v. Fernandez
, 346 N.C. 1, 484 S.E.2d 350 (1997). There, the
Supreme Court addressed, in dicta, whether double jeopardy
precluded punishing the defendant for both first-degree murder and
first-degree kidnapping where the kidnapping charge was elevated to
first degree based on the murders. In reaching the conclusion that
the defendant's sentence for both offenses was constitutional, the
Court followed Blockburger
and looked at whether each of the two
crimes contained an element not required to be proved in the other.
at 19, 484 S.E.2d at 361. An analysis of legislative intent
[was] not necessary, the Court explained, because the offenses at
issue are not the same. Id.
However, this Court recently cited Fernandez, Gardner, and
in State v. Bailey
, 157 N.C. App. 80, 577 S.E.2d
683(2003), and concluded that the presumption raised by the
test can be rebutted by a clear indication of
legislative intent and that such intent must be respected,
regardless of the outcome of the Blockburger
. at 86, 577
S.E.2d at 688. The Court in Bailey
then held, based on thelegislature's intent to create separate offenses of possession of
stolen property under G.S. § 14-71.1 and possession of a stolen
vehicle under G.S. § 20-100, that although the defendant could
have been indicted and tried [for both] based on his possession of
the stolen [vehicle], he could only have been convicted once for
possession of it. Id.
After careful analysis, we conclude that the present case is
analogous to Bailey
and not Fernandez
. Here, N.C. Gen. Stat. § 14-
32.4 contains specific language indicating that the legislature
intended that § 14-32.4 apply only in the absence of other
applicable provisions. Section 14-32.4 indicates
that it applies
the conduct is covered under some other provision of law
providing greater punishment (emphasis added). The murder and
kidnapping statutes at issue in Fernandez
contained no such clear
language limiting how to apply the two provisions in tandem. We
on this basis.
Accordingly, we follow Bailey
and conclude that we are not
required to start and end our inquiry with a Blockburger
of elements. Blockburger
is an aid to determining legislative
intent in that it creates a presumption that, under Missouri v.
, may be rebutted by a clear indication of legislative
r, 315 N.C. at 455, 340 S.E.2d at 709. We now
proceed, therefore, to apply these principles here.
G.S. § 14-32
 The stated purpose of N.C. Gen. Stat. § 14-32 is to
protect life or limb. State v. Cass
, 55 N.C. App. 291, 304, 285S.E.2d 337, 345, disc. review denied
, 305 N.C. 396, 290 S.E.2d 366
(1982). The legislature intended to
create a new offense of
higher degree than the common law crime of assault with intent to
kill. State v. Jones
, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962).
Whereas the common law offense carried a fine or imprisonment, or
both, in the discretion of the court, G.S. § 14-32 carries a
stricter punishment. Id.
Under Section 14-32, an assault with a deadly weapon that
inflicts serious injury is a Class E felony. The courts of this
state have declined to define serious injury for purposes of
assault prosecutions other than stating that the term means
physical or bodily injury resulting from an assault, State v.
, 337 N.C. 182, 188, 446 S.E.2d 83, 87, and that
[f]urther definition seems neither wise nor desirable, Jones
N.C. at 91, 128 S.E.2d at 3. In State v. Hedgepeth
, 330 N.C. 38,
409 S.E.2d 309 (1991), the Supreme Court explained:
Whether a serious injury has been inflicted depends upon the
facts of each case and is generally for the jury to decide
under appropriate instructions. 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.
Evidence that the victim was hospitalized, however, is not
necessary for proof of serious injury.
at 53, 409 S.E.2d at 318 (internal citations omitted).
G.S. § 14-32.4
In 1996, the General Assembly enacted G.S. § 14-32.4, which
makes an assault inflicting serious bodily injury a Class F felony
[u]nless the conduct is covered under some other provision of law
providing greater punishment. N.C. Gen. Stat. § 14-32.4. TheGeneral Assembly also expressly defined what it meant by the term
serious bodily injury as follows: 'Serious bodily injury' is
defined as bodily injury that creates a substantial risk of death,
or that causes serious permanent disfigurement, coma, a permanent
or protracted condition that causes extreme pain, or permanent or
protracted loss or impairment of the function of any bodily member
or organ, or that results in prolonged hospitalization. N.C. Gen.
Stat. § 14-32.4. This Court has described the legislative intent
in enacting § 14-32.4: [W]e conclude that the General Assembly
intended for N.C.G.S. § 14-32.4 to cover those assaults that are
especially violent and result in the infliction of extremely
serious injuries, and are not covered by some other provision of
law providing for greater punishment. State v. Williams, 150 N.C.
App. 497, 503, 563 S.E.2d 616, 619 (2002).
Accordingly, we believe that the legislature intended that
G.S. § 14-32.4 make certain that conduct resulting in serious
bodily injury, as defined, be punished at least at the Class F
level, as the provision's plain language makes abundantly clear.
Defendant was indicted and convicted under G.S. § 14-32, a Class E
felony. A Class E felony carries a more severe punishment than the
Class F felony in G.S. § 14-32.4.
(See footnote 1)
Thus, because defendant's
conduct is covered under some other provision of law providinggreater punishment, we conclude that the court cannot convict and
sentence him for both §§ 14-32 and 14-32.4 for the same conduct
without violating the double jeopardy provisions of the United
States and North Carolina constitutions.