State v. Fields , 265 N.C. App. 69 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-673
Filed: 16 April 2019
Durham County, Nos. 15 CRS 59893, 17 CRS 444
STATE OF NORTH CAROLINA
v.
MELVIN LAMAR FIELDS
Appeal by Defendant from Judgments entered 12 January 2018 by Judge Paul
C. Ridgeway in Durham County Superior Court. Heard in the Court of Appeals 14
February 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Lisa
Bradley, for the State.
Richard Croutharmel for defendant-appellant.
HAMPSON, Judge.
Factual and Procedural Background
Melvin Lamar Fields (Defendant) appeals from Judgments adjudicating him
guilty of (1) Assault Inflicting Serious Bodily Injury and (2) Habitual Misdemeanor
Assault. The Record before us demonstrates the following:
On 15 August 2016, a Grand Jury indicted Defendant for Malicious Maiming
of Privy Member and Assault Inflicting Serious Bodily Injury. On 6 February 2017,
the Grand Jury entered a superseding indictment for Attempted Malicious
Castration or Maiming of a Privy Member and Assault Inflicting Serious Bodily
STATE V. FIELDS
Opinion of the Court
Injury. The Grand Jury additionally indicted Defendant for Assault, and for Habitual
Misdemeanor Assault, a separate substantive offense. These indictments alleged, on
2 November 2015, Defendant attacked and tore the scrotum of A.R.,1 a transgender
woman. In advance of trial, Defendant stipulated to two prior misdemeanor assaults
as elements of Habitual Misdemeanor Assault.
At the close of the State’s evidence, Defendant moved to dismiss the charges
against him on the grounds of insufficiency of the evidence. Specifically, Defendant
alleged the “evidence is insufficient as a matter of law on every element of each charge
to support submission of the charge to the jury,” and “there is a variance between the
crime alleged in the indictment and the crime for which the State’s evidence may
have been sufficient for submission to the jury[.]” Defendant also argued, “as it
relates to the attempted malicious maiming indictment, the [S]tate has failed to show
there was . . . any specific intent . . . with malice to maim, disfigure, or render
impotent” A.R., A.R. was “not permanently injured,” and “the [S]tate has failed to
show that there was serious bodily injury” to A.R. The trial court denied the Motion.
Defendant declined to offer evidence on his own behalf and renewed his Motion to
Dismiss, which the trial court again denied.
The trial court submitted to the jury the two felony charges of Attempted
Castration or Maiming and Assault Inflicting Serious Bodily Injury. Rather than
1 Initials are used to protect the victim.
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Opinion of the Court
submit the charge of Habitual Misdemeanor Assault, the trial court submitted the
underlying predicate misdemeanor offense of Assault Inflicting Serious Injury,
pursuant to N.C. Gen. Stat. § 14-33(c)(1).
The jury returned verdicts finding Defendant not guilty of Attempted
Castration or Maiming, guilty of Assault Inflicting Serious Bodily Injury, and guilty
of Assault Inflicting Serious Injury. The jury further found as an aggravating factor
Defendant took advantage of a position of trust or confidence to commit the offense.
The trial court found Defendant had a prior felony record level of III. The court
sentenced Defendant to a minimum of 19 months and a maximum of 32 months, in
the presumptive range, for Assault Inflicting Serious Bodily Injury; and a minimum
of 9 months and a maximum of 20 months, in the presumptive range, for Habitual
Misdemeanor Assault; to be served consecutively in the custody of the North Carolina
Department of Adult Correction. Defendant appeals.
Issues
The dispositive issues raised by Defendant in this case are: (I) Whether there
was sufficient evidence of a “serious bodily injury” to submit the charge of Assault
Inflicting Serious Bodily Injury to the jury; and (II) Whether the trial court erred in
entering judgment on the Habitual Misdemeanor Assault conviction, predicated on
the Defendant’s conviction for misdemeanor Assault Inflicting Serious Injury, in light
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Opinion of the Court
of Defendant’s conviction for felony Assault Inflicting Serious Bodily Injury arising
from the same conduct.
Analysis
I. Assault Inflicting Serious Bodily Injury
In his first argument, Defendant contends the trial court erred in failing to
dismiss the charge of Assault Inflicting Serious Bodily Injury. We disagree.
A. Standard of Review
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).
“ ‘Upon defendant’s motion for dismissal, the question for the Court is whether
there is substantial evidence (1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of defendant’s being the perpetrator of
such offense. If so, the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373,
378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914,
918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
B. Serious Bodily Injury
Our General Statutes define the offense of Assault Inflicting Serious Bodily
Injury as follows:
Unless the conduct is covered under some other provision
of law providing greater punishment, any person who
assaults another person and inflicts serious bodily injury is
guilty of a Class F felony. “Serious bodily injury” is defined
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Opinion of the Court
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(a) (2017). Thus, the offense requires the State to show (1)
an assault, and (2) the assault inflicted “serious bodily injury,” as defined above. On
appeal, as at trial, Defendant contends the State’s evidence failed to establish this
second element–whether Defendant’s conduct resulted in “serious bodily injury.”
The evidence at trial tended to show after the assault, A.R. had a long rip in
her genitals; A.R. required 15 stitches and pain medication; A.R. remained out of
work for two weeks and upon return to work was placed on modified duties; A.R.
continued to suffer pain for three months, and it was six months before the pain
completely abated. A.R. has a large, jagged scar from the assault. Additionally,
A.R.’s doctor testified an injury like A.R.’s “would be significantly painful[.]”
However, Defendant contends A.R. suffered no serious, permanent disfigurement and
no protracted condition causing her extreme pain.
Our courts have consistently recognized whether a serious bodily injury has
been inflicted depends upon the facts of each case and is generally for the jury to
decide under appropriate instructions. Indeed, this Court has held a trial court
properly denied a defendant’s motion to dismiss under similar facts on numerous
occasions. For example, we have held the State presented evidence of “serious bodily
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Opinion of the Court
injury” sufficient for a jury to decide (1) where the victim testified his injuries were
“very painful[,]” he suffered pain in his mouth for about a month, and a doctor
testified those injuries caused “severe” and “extreme” pain, State v. Brown, 177 N.C.
App. 177, 188, 628 S.E.2d 787, 794 (2006); (2) where the victim suffered a broken jaw
which was wired shut for two months, along with damage to his teeth, broken ribs,
and back spasms requiring emergency room visits, and a doctor testified the victim’s
broken jaw could cause “quite a bit” of pain and discomfort, State v. Williams, 150
N.C. App. 497, 503-04, 563 S.E.2d 616, 620 (2002); and (3) where the victim suffered
broken bones in her face, a broken hand, a cracked knee, and an eye bruised so badly
it was still problematic at trial, as well as pain lasting five to six weeks after the
attack, State v. Jamison, 234 N.C. App. 231, 235-36, 758 S.E.2d 666, 670 (2014).
In the instant case, A.R.’s injury required stitches, pain medication, time off
from work, and modified duties once she resumed work. Her pain lasted for as much
as six months, and her doctor described it as “significantly painful.” This evidence,
taken together and giving the State the benefit of every reasonable inference, tends
to show a “permanent or protracted condition that causes extreme pain.” Moreover,
the assault left A.R. with a significant, jagged scar, which would support a finding of
“serious permanent disfigurement.” Thus there is substantial evidence supporting a
finding of “serious bodily injury” as defined by statute. N.C. Gen. Stat. § 14-32.4(a).
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Opinion of the Court
Accordingly, we hold the trial court did not err in denying Defendant’s motion to
dismiss.
II. Habitual Misdemeanor Assault
In his second argument, Defendant contends there was insufficient evidence to
submit the predicate misdemeanor of Assault Inflicting Serious Injury to the jury.
Alternatively, Defendant contends once the jury returned its verdict, including
finding Defendant guilty of the Class F felony of Assault Inflicting Serious Bodily
Injury, the trial court was required to arrest judgment on misdemeanor Assault
Inflicting Serious Injury and to not enter judgment on Habitual Misdemeanor
Assault. Specifically, Defendant argues N.C. Gen. Stat. § 14-33(c) statutorily
mandates he could not be convicted and sentenced for misdemeanor Assault Inflicting
Serious Injury because he was convicted and sentenced for felony Assault Inflicting
Serious Bodily Injury, which imposes greater punishment, for the same conduct.
We summarily conclude, for the essential reasons stated in Section I, above,
the evidence was sufficient to submit the issue of Assault Inflicting Serious Injury to
the jury. We are, however, constrained to agree that once Defendant was convicted of
a Class F felony assault, the trial court was required to arrest judgment on the
misdemeanor assault conviction and not enter judgment on the charge of Habitual
Misdemeanor Assault arising from the same assault.
A. Preservation and Standard of Review
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Opinion of the Court
Although Defendant did not object at trial to the trial court’s entry of two
separate assault judgments, “[w]hen a trial court acts contrary to a statutory
mandate, the defendant’s right to appeal is preserved despite the defendant’s failure
to object during trial.” State v. Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000).
We apply de novo review to Defendant’s argument. State v. Jones, 237 N.C. App. 526,
532, 767 S.E.2d 341, 345 (2014).
B. Multiple Assaults Arising from the Same Conduct
Our General Statutes codify Habitual Misdemeanor Assault as follows: “A
person commits the offense of habitual misdemeanor assault if that person violates
any of the provisions of G.S. 14-33 and causes physical injury, or G.S. 14-34, and has
two or more prior convictions for either misdemeanor or felony assault, with the
earlier of the two prior convictions occurring no more than 15 years prior to the date
of the current violation.” N.C. Gen. Stat. § 14-33.2 (2017). Habitual Misdemeanor
Assault is a Class H felony. Id.
The indictment charging Defendant with Habitual Misdemeanor Assault
alleged: (I) Defendant assaulted A.R. inflicting serious injury to A.R.’s scrotum
causing physical injury; and (II) Defendant had been convicted of two or more felony
or misdemeanor assault offenses. Based on Defendant’s stipulation to the two prior
assault offenses, the only question for the jury on the Habitual Misdemeanor Assault
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Opinion of the Court
charge was whether Defendant committed Assault Inflicting Serious Injury under
N.C. Gen. Stat. § 14-33(c)(1). N.C. Gen. Stat. § 14-33(c)(1) provides, in relevant part:
Unless the conduct is covered under some other provision
of law providing greater punishment, any person who
commits any assault . . . is guilty of a Class A1
misdemeanor if, in the course of the assault . . ., he or she:
(1) Inflicts serious injury upon another person . . .
N.C. Gen. Stat. § 14-33(c)(1) (2017).
The jury found Defendant guilty of Assault Inflicting Serious Injury. In
addition, however, the jury returned a guilty verdict on Assault Inflicting Serious
Bodily Injury, a Class F felony, for his assault on A.R. resulting in the same injury.
See N.C. Gen. Stat. § 14-32.4(a).
In State v. Jamison, this Court addressed the question of whether a defendant
could be convicted and sentenced for both Assault Inflicting Serious Bodily Injury and
a misdemeanor assault under N.C. Gen. Stat. § 14-33(c). This Court reviewed the
statutory mandate of N.C. Gen. Stat. § 14-33(c) and, in particular, the prefatory
clause: “Unless the conduct is covered under some other provision of law providing
greater punishment . . . .” Jamison, 234 N.C. App. at 238, 758 S.E.2d at 671. This
Court held the prefatory language “unambiguously bars punishment for [a lesser
class of assault] when the conduct at issue is punished by a higher class of assault.”
Id. at 239, 758 S.E.2d at 671. Thus, this Court concluded the statute mandated a
defendant could not be convicted and sentenced for both felony Assault Inflicting
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Opinion of the Court
Serious Bodily Injury under N.C. Gen. Stat. § 14-32.4(a) and misdemeanor Assault
on a Female under N.C. Gen. Stat. § 14-33(c)(2) for the same conduct. Because the
trial court entered judgment on both felony and misdemeanor assault for the same
conduct, this Court arrested judgment on the misdemeanor assault charge.
Applying Jamison to this case, where the jury returned its verdict finding
Defendant guilty of Assault Inflicting Serious Bodily Injury, a higher class of assault
providing for punishment as a Class F felony, under the plain language of N.C. Gen.
Stat. § 14-33(c), the trial court could not impose judgment or sentence for Assault
Inflicting Serious Injury, a lesser class of assault arising from the same conduct.
Thus, the trial court was required to arrest judgment on Assault Inflicting Serious
Injury and instead enter judgment solely on the higher Class F felony. See Jamison,
234 N.C. App. at 239, 758 S.E.2d at 672. As such, it follows, the trial court was then
precluded from entering judgment on the Habitual Misdemeanor Assault charge
expressly predicated on the misdemeanor assault charge. Rather, the statutory
mandate of N.C. Gen. Stat. § 14-33(c), governing the predicate misdemeanor assault,
requires Defendant be sentenced only for the assault conviction imposing greater
punishment for the same conduct, here felony Assault Inflicting Serious Bodily
Injury.
The State contends, however, the jury’s finding on misdemeanor Assault
Inflicting Serious Injury was used only for the purpose of establishing one element of
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Opinion of the Court
the separate offense of Habitual Misdemeanor Assault. The State draws comparisons
to habitual felon status, suggesting Habitual Misdemeanor Assault is simply
intended to enhance punishment and thus may be imposed in addition to another
assault charge arising from the same conduct.
However, “[u]nlike habitual felon status, habitual misdemeanor assault is a
substantive offense and a punishment enhancement (or recidivist, or repeat-offender)
offense.” State v. Sydnor, 246 N.C. App. 353, 356, 782 S.E.2d 910, 913 (2016)
(citations and quotation marks omitted); compare State v. Priddy, 115 N.C. App. 547,
549, 445 S.E.2d 610, 612 (1994) (holding Habitual Impaired Driving, unlike Habitual
Felon status, is “a separate felony offense,” and not “solely a punishment
enhancement status”). In essence, the offense of Habitual Misdemeanor Assault
replaces the underlying predicate misdemeanor, elevating the same conduct to a
felony based on a defendant’s prior assault convictions. Thus, for example, in State
v. Jones, this Court recognized “the trial court could not administer punishment for
both habitual misdemeanor assault, a Class H felony, and assault on a female, a class
A1 misdemeanor” resulting from the same conduct. 237 N.C. App. at 533, 767 S.E.2d
at 345. The rationale in Jones was again premised on “the unambiguous phrase
‘[u]nless the conduct is covered under some other provision of law providing greater
punishment[,]’ in G.S. 14-33(c).” Id. We therefore vacated the conviction for Assault
on a Female and remanded for resentencing on Habitual Misdemeanor Assault.
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Opinion of the Court
This is consistent with longstanding precedent holding a defendant may not be
charged with multiple classes, or multiple charges of the same class, of assault arising
from a single assault. For example, in State v. Dilldine, this Court noted it was
improper for a defendant to be separately charged with Assault with Intent to Kill
and Assault with Intent to Kill Inflicting Serious Injury arising from a single assault.
22 N.C. App. 229, 231, 206 S.E.2d 364, 366 (1974); see also State v. Maddox, 159 N.C.
App. 127, 132, 583 S.E.2d 601, 604 (2003) (“In order for a defendant to be charged
with multiple counts of assault, there must be multiple assaults”).
It follows, therefore, a defendant may not be convicted and sentenced for two
substantive assault charges arising from a single assault. In this case, the
indictments cited only one assault resulting in the same injury. Likewise, the trial
court’s instructions to the jury for both offenses relied upon whether Defendant
“assaulted the victim by intentionally causing a tear in the alleged victim’s
scrotum[.]” Thus, in this case, Defendant could not be convicted and sentenced for
both the substantive assault charge of Habitual Misdemeanor Assault, predicated on
misdemeanor Assault Inflicting Serious Injury, and the higher Class F felony Assault
Inflicting Serious Bodily Injury, both arising from the assault on A.R. leading to the
same injury. See Jones, 237 N.C. App. at 533, 767 S.E.2d at 345; Jamison, 234 N.C.
App. at 239, 758 S.E.2d at 671. Consequently, we must hold, because the jury
returned its verdict finding Defendant guilty of felony Assault Inflicting Serious
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STATE V. FIELDS
Opinion of the Court
Bodily Injury, the trial court erred in entering judgment and sentencing Defendant
for Habitual Misdemeanor Assault predicated on misdemeanor Assault Inflicting
Serious Injury arising from the same conduct. Accordingly, we vacate the trial court’s
judgment as to Habitual Misdemeanor Assault (17 CRS 444).2
Conclusion
We conclude there was no error in the trial court’s judgment on the charge of
Assault Inflicting Serious Bodily Injury (15 CRS 59893) but vacate the trial court’s
judgment on the charge of Habitual Misdemeanor Assault (17 CRS 444).
NO ERROR IN PART, VACATED IN PART.
Judge ZACHARY concurs.
Judge BERGER concurs in part and dissents in part in a separate opinion.
2 We do not remand for resentencing because the trial court imposed the sentence for Habitual
Misdemeanor Assault to run consecutively from the separate judgment and sentence for the higher
Class F felony Assault Inflicting Serious Bodily Injury.
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No. COA18-673 – State v. Fields
BERGER, Judge, concurring in part and dissenting in part.
I concur with the majority that there was substantial evidence to support
submission to the jury of the charge of assault inflicting serious bodily injury. I
respectfully dissent from the remainder of the majority opinion because the trial court
did not err.
Judgment was entered against Defendant for assault inflicting serious bodily
injury and habitual misdemeanor assault. Defendant argues that the trial court
erred by (1) punishing him for assault inflicting serious injury and assault inflicting
serious bodily injury arising out of the same conduct, (2) failing to arrest judgment
on “one of the assault convictions,” and (3) convicting Defendant of a principle offense
and lesser-included offense arising out of the same conduct. Defendant essentially is
attacking his conviction on double jeopardy grounds from three different directions.
“[H]abitual misdemeanor assault is a substantive offense and a punishment
enhancement (or recidivist, or repeat-offender) offense.” State v. Carpenter, 155 N.C.
App. 35, 49, 573 S.E.2d 668, 677 (2002) (citation and quotation marks omitted); see
also State v. Smith, 139 N.C. App. 209, 212-14, 533 S.E.2d 518, 519-20 (2000). In
relevant part, an individual may be found guilty of habitual misdemeanor assault if
that person commits an assault set forth in N.C. Gen. Stat. § 14-33 which causes
physical injury, and that individual “has two or more prior convictions for either
misdemeanor or felony assault, with the earlier of the two prior convictions occurring
STATE V. FIELDS
BERGER, J., concurring in part, dissenting in part
no more than 15 years prior to the date of the current violation.” N.C. Gen. Stat. § 14-
33.2 (2017). Assault inflicting serious injury is an offense set forth in Section 14-
33(c)(1), and thus, an element of habitual misdemeanor assault.
The majority correctly notes that the prefatory clause to Section 14-33 states
“[u]nless the conduct is covered under some other provision of law providing greater
punishment,” N.C. Gen. Stat. § 14-33(c) (2017), and that this language precludes
punishment for lower class assaults when the conduct at issue “is punished by a
higher class of assault.” (Citation omitted.) The majority would be correct if
Defendant here were being punished for assault inflicting serious bodily injury and
the A1 misdemeanor of assault inflicting serious injury pursuant to Section 14-33.
However, Defendant here was convicted and punished pursuant to Section 14-
33.2, which contains no such prefatory language, and thus, does not preclude
punishment for conduct “covered under some other provision of law providing greater
punishment.” N.C. Gen. Stat. § 14-33(c). As the majority correctly points out “the
offense of Habitual Misdemeanor Assault replaces the underlying predicate
misdemeanor.” Thus, the prefatory language which supports the majority’s
reasoning is inapplicable.
Assault inflicting serious bodily injury is a substantive offense defined as an
assault in which an individual inflicts “bodily injury that creates a substantial risk
2
STATE V. FIELDS
BERGER, J., concurring in part, dissenting in part
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(a) (2017).
No person may be “subject for the same offence to be twice put in jeopardy of
life or limb.” U.S. Constitution, Amend. V. In Blockburger v. United States, the
Supreme Court stated that
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. A single act may
be an offense against two statutes; and if each statute
requires proof of an additional fact which the other does
not, an acquittal or conviction under either statute does not
exempt the defendant from prosecution and punishment
under the other.
State v. Artis, 174 N.C. App. 668, 674, 622 S.E.2d 204, 209 (2005) (quoting
Blockburger v. United States, 284 U.S. 299, 304 (1932)).
“North Carolina has adopted and applied the Blockburger test” to determine if
double jeopardy concerns are implicated in the punishment of multiple offenses. Id.
The North Carolina Supreme Court has stated that
even where evidence to support two or more offenses
overlaps, double jeopardy does not occur unless the
evidence required to support the two convictions is
identical. If proof of an additional fact is required for each
3
STATE V. FIELDS
BERGER, J., concurring in part, dissenting in part
conviction which is not required for the other, even though
some of the same acts must be proved in the trial of each,
the offenses are not the same.
Id. (quoting State v. Murray, 310 N.C. 540, 548, 313 S.E.2d 523, 529 (1984)).
In State v. Artis, the defendant was charged with malicious conduct by a
prisoner and habitual misdemeanor assault arising from the same conduct. The
conduct alleged in both indictments read:
the defendant named above unlawfully, willfully, and
feloniously did assault S.E. McKinney, a government
officer at the Pitt County Detention Center, Greenville,
North Carolina ... by throwing bodily fluid on S.E.
McKinney. At the time of the assault S.E. McKinney was
performing a duty of his office by supervising the
dispensing of food to the defendant.
Id. This Court stated that “[c]onvictions arising from the same incident or similar
conduct for both do not violate the double jeopardy clause.” Id. at 676, 622 S.E.2d at
210.
Such is the case here. Defendant was indicted for assault inflicting serious
bodily injury and habitual misdemeanor assault. The allegations in both indictments
were that Defendant assaulted the victim and caused tearing to victim’s scrotum. 3
Even though the allegations in the indictments concerning the assault and resulting
injury were identical, the two substantive offenses required proof of different facts.
3The indictment for assault inflicting serious bodily injury alleged that the tear to the victim’s
scrotum was serious bodily injury, while the indictment for habitual misdemeanor assault alleged that
the Defendant inflicted serious injury and physical injury as a result of the tear in his scrotum.
4
STATE V. FIELDS
BERGER, J., concurring in part, dissenting in part
Assault inflicting serious bodily injury required the State to prove beyond a
reasonable doubt that the Defendant committed an assault upon the victim which
inflicted serious bodily injury. Even though habitual misdemeanor assault has as an
element the lesser included offense of assault inflicting serious injury, it is a
substantive offense which also required proof of physical injury and “two or more
prior convictions for either misdemeanor or felony assault, with the earlier of the two
prior convictions occurring no more than 15 years prior to the date of the current
violation.” N.C. Gen. Stat. § 14-33.2.
Because habitual misdemeanor assault is a substantive offense which required
proof of additional facts and elements beyond that necessary for conviction of assault
inflicting serious bodily injury, I would find that the trial court did not err.
5