An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
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-
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.
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
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
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.
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.
In State v. Tirado,
our Supreme Court analyzed whether
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.
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
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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