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Assault--board as deadly weapon--lesser included offense
The trial judge in a felony assault prosecution correctly concluded that the issue of
whether a 2X4 board was a deadly weapon was for the jury, but should then have instructed on
the lesser included misdemeanor of assault inflicting serious injury.
Attorney General Roy Cooper, by Assistant Attorney General
Barbara A. Shaw, for the State.
Haral E. Carlin, for defendant-appellant.
Having correctly determined that the jury must decide whether a 2x4 board was a deadly weapon for purposes of a felony assault, the trial court erred in not submitting the lesser included offense of assault inflicting serious injury to the jury.
The State's evidence at trial tended to show that, on the evening of 1 May 2005, Scott Lewis suffered a fractured skull, a broken jaw, and other injuries as the result of a severe beating that took place at defendant's home at the hands of two men. Lewis and others had been working at the defendant's home throughout the afternoon, and the defendant was present. There was no trouble during the daylight hours. Crack cocaine and marijuana were available, and the victim acknowledged using drugs that day. Laterin the evening, a friend of the defendant, known to Lewis only by his nickname of B, arrived. The beating occurred after B's arrival. Lewis' skull was cracked in two places, he suffered a brain hemorrhage, his jaw was broken, and four of his teeth were knocked loose. He spent several days in intensive care and was out of work for six months.
Defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury. The indictment identified the deadly weapon as a 2x4 board, a deadly weapon[.]
At trial, Lewis identified the defendant as one of two men who had stomped and kicked and beat [him] repeatedly. When asked to start from the beginning, Lewis responded that [I]t was late evening before his friend got there. And all I remember is the first flash of when the two by four hit me in my face. Lewis could not identify which of the men wielded the two by four, but was certain that there were two men. He testified that he had known the defendant for three or four months, but knew him only as Weasel. He had only seen B once or twice.
Lewis was interviewed on the evening of the assault. Deputy Owens testified that Lewis told him that some guys . . . had hit him with a two by four and stomped him and beat him and identified his attacker as B. Owens denied that the victim had identified Weasel as one of his attackers. The victim's father and Corporal Sewell both testified that the victim identified both B and Weasel as his attackers. The officers never determined the identity of B and never found a bloodstained two by four board orany other bloodstained lumber or implement at defendant's house or yard.
The defendant presented no evidence but moved the Court to dismiss the charges. This motion was denied. The trial court instructed the jury on assault with a deadly weapon with intent to kill inflicting serious injury and assault with a deadly weapon inflicting serious injury but denied the defendant's request to instruct the jury on the lesser-included charge of misdemeanor assault inflicting serious injury. The trial court gave a peremptory instruction on the element of serious injury, but gave the following instruction concerning the deadly weapon element of the charge:
[T]hat the defendant used a deadly weapon. A deadly weapon is a weapon which is likely to cause death or serious bodily injury. In determining whether a two by four board was a deadly weapon, you should consider the nature of a two by four board, the manner in which i[t] was used, and the size and strength of the defendant as compared to the victim.
The jury returned a verdict of guilty of assault with a deadly weapon inflicting serious injury. Defendant was sentenced to a term of thirty-four to fifty months' imprisonment. Defendant appeals.
In his first argument, defendant contends that the trial court erred in refusing to instruct the jury on the lesser-included offense of misdemeanor assault inflicting serious injury. We agree.
Misdemeanor assault inflicting serious injury is a lesser included offense of assault with a deadly weapon inflicting seriousinjury. State v. Lowe, 150 N.C. App. 682, 685, 564 S.E.2d 313, 315 (2002).
The primary distinction between felonious assault under G.S. § 14-32 and misdemeanor assault under G.S. § 14-33 is that a conviction of felonious assault requires a showing that a deadly weapon was used and serious injury resulted, while if the evidence shows that only one of the two elements was present, i.e., that either a deadly weapon was used or serious injury resulted, the offense is punishable only as a misdemeanor.
Id., 564 S.E.2d at 316 (quoting State v. Owens, 65 N.C. App. 107, 110-11, 308 S.E.2d 494, 498) (1983). In Lowe, the victim was severely beaten and testified at trial that he was hit and 'stomped' and probably beaten with the lid of the commode[.] Id. at 684, 564 S.E.2d at 315. The trial court did not instruct the jury on misdemeanor assault inflicting serious injury. Id. Since the defendant failed to preserve the issue at trial, this Court reviewed the issue on a plain error standard. Id. at 685, 564 S.E.2d at 315. Finding that there was no conclusive evidence that a deadly weapon was used, this Court reversed the conviction. Id. at 685, 687, 564 S.E.2d at 316-17.
In order for the State to prove assault with a deadly weapon inflicting serious injury, it had to prove that a deadly weapon was used. In State v. Whitaker, 316 N.C. 515, 342 S.E.2d 514 (1986), our Supreme Court stated:
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