An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-516

NORTH CAROLINA COURT OF APPEALS

Filed: 6 December 2005

STATE OF NORTH CAROLINA

    v.                        Onslow County
                            Nos. 03 CRS 057656
FREDDY ORTIZ, III                     03 CRS 057739

     Appeal by defendant from judgments entered 7 June 2004 by Judge Gary E. Trawick in Onslow County Superior Court. Heard in the Court of Appeals 2 December 2005.

     Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State.

    Glover & Petersen, P.A., by Ann B. Petersen, for defendant- appellant.

    TYSON, Judge.

    Freddy Ortiz, III (“defendant”) appeals from judgments entered after a jury found him to be guilty of attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and malicious assault and battery in a secret manner with a deadly weapon with intent to kill. We find no error.

I. Background
    The State's evidence tended to show that in September 2003 defendant was living with his girlfriend, Hendrika Orozco (“Orozco”), at the home of the victim, Rose Yilmaz (“Yilmaz”). On 14 September 2003, Yilmaz learned defendant had hit Orozco and warned him that if it happened again she would kick him out of her house. On 15 September 2003, around 6:00 a.m., Yilmaz heard Orozcocalling for Yilmaz's daughter. When she went to investigate, she saw Orozco sitting on the floor. Defendant was “holding the back of her neck pushing her face into the floor, and he had [] his hand over her like he was going to punch her in the back of the head.” Yilmaz started screaming for defendant to get off of Orozco. Yilmaz made Orozco go upstairs. Yilmaz told defendant to leave the house that day.
    Yilmaz left her home to run errands and returned around 1:30 p.m. Defendant was packing his stuff into a bag on the floor. Defendant and Yilmaz did not speak to each other. Yilmaz went to the sink in her kitchen and felt a sharp blow to her head. Yilmaz turned around, saw defendant, and a struggle ensued. Defendant began stabbing Yilmaz in her head with a steak knife while holding her by her hair, neck, or the back of her shirt. Yilmaz told Orozco to call the police, but defendant had disconnected the phones. Orozco and Yilmaz's grandson ran next door to call the police.
    Yilmaz tried to run away from defendant as he continued to stab her. Yilmaz and defendant went into the living room. Defendant pushed Yilmaz and she fell to the floor, with her head hitting the edge of a coffee table. Defendant held Yilmaz down to the floor and continued to stab her in the head. Yilmaz asked defendant why he was doing this to her. Defendant told her, “I'm sorry, Ms. Rose, you just have to die. I'm sorry, Ms. Rose, you just have to die.” Yilmaz begged defendant to stop, reminding him that her children had already lost a brother. Defendant responded,“I know. I know they have, Ms. Rose . . . But you're making this more difficult for me. Just die already.” Yilmaz tried to pretend she was dead, but defendant kept stabbing her. Yilmaz tried to crawl underneath a coffee table and screamed for help. Defendant stabbed her in the neck. Yilmaz heard somebody yell, “police.” Defendant got off and stopped stabbing her. Yilmaz was taken to the hospital and treated for multiple stab wounds to her head, neck, hands, and arm and was given a blood transfusion.
     On 13 January 2004, defendant was indicted on charges of attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and malicious assault and battery in a secret manner with a deadly weapon with intent to kill .
    On 3 June 2004, a jury found defendant guilty of all counts. The trial court sentenced defendant to a term of 220 to 273 months imprisonment for attempted murder and a consecutive term of ninety- six to 125 months imprisonment for the remaining charges. Defendant appeals.
II. Issue
    The sole issue on appeal is whether the trial court erred by sentencing defendant to consecutive terms for both attempted first- degree murder and assault with a deadly weapon with intent to kill inflicting serious injury where the charges were a part of the same act, in violation of his state and federal constitutional prohibition against double jeopardy.
III. Double Jeopardy
     Defendant argues the trial court erred by convicting and sentencing him for both attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant asserts the offenses were both a part of the same act(s) and his conviction of both crimes violates his state and federal constitutional rights to be free from double jeopardy. We disagree.
     In State v. Tirado, our Supreme Court analyzed whether convictions for both attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury arising from the same incident violated double jeopardy. 358 N.C. 551, 599 S.E.2d 515 (2004). The Court explained:
        The elements of attempted first-degree murder are: (1) a specific intent to kill another; (2) an overt act calculated to carry out that intent, which goes beyond mere preparation; (3) malice, premeditation, and deliberation accompanying the act; and (4) failure to complete the intended killing. The elements of assault with a deadly weapon with intent to kill inflicting serious injury are: (1) an assault, (2) with the use of a deadly weapon, (3) with an intent to kill, and (4) inflicting serious injury, not resulting in death. Therefore, assault with a deadly weapon with intent to kill inflicting serious injury requires proof of the use of a deadly weapon, as well as proof of serious injury, neither of which are elements of attempted first-degree murder. Similarly, attempted first-degree murder includes premeditation and deliberation, which are not elements of assault with a deadly weapon with intent to kill inflicting serious injury. Because each offense contains at least one element not included in the other, defendants have not been subjected to double jeopardy.

Id. at 579, 599 S.E.2d at 534 (citations omitted); see also Statev. Peoples, 141 N.C. App. 115, 117, 539 S.E.2d 25, 28 (2000) . Defendant's assignment of error and argument are indistinguishable from Tirado and Peoples. This assignment of error is overruled.
IV. Conclusion
    The trial court did not violate defendant's state and federal constitutional rights against double jeopardy by sentencing him for both attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. Defendant received a fair trial free from the error he assigned and argued .
    No error.
    Judges MCCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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