State v. Dew ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-737
Filed: 17 March 2020
Carteret County, Nos. 16 CRS 53232-33, 16 CRS 53235-36
STATE OF NORTH CAROLINA
v.
JEREMY WADE DEW, Defendant.
Appeal by defendant from judgments entered 7 February 2018 by Judge John
Nobles in Carteret County Superior Court. Heard in the Court of Appeals 19
February 2020.
Attorney General Joshua H. Stein, by Assistant Attorney Generals Wes
Saunders and Daniel P. O’Brien, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel K.
Shatz, for defendant-appellant.
BERGER, Judge.
Jeremy Wade Dew (“Defendant”) was found guilty of kidnapping, two counts
of assault with a deadly weapon inflicting serious injury (“AWDWISI”), one count of
assault on a female, and one count of communicating threats. Defendant was
sentenced to 75 to 102 months in prison. Defendant appeals, contending that the
trial court erred when it (1) denied Defendant’s motion to dismiss because the
evidence before the trial court established only one assault that resulted in multiple
injuries, not multiple assaults; (2) instructed the jury that Defendant’s hands, feet,
STATE V. DEW
Opinion of the Court
and teeth could be deadly weapons; and (3) failed to conduct a charge conference. We
find no error.
Factual and Procedural Background
On the weekend of July 29-31, 2016, Defendant and the victim traveled to
Atlantic Beach, North Carolina for a vacation with the victim’s parents. At the time,
the victim and Defendant were in a relationship and lived together.
On July 30, 2016, Defendant took some form of pain medication, went to the
liquor store, and began drinking. Later in the evening, Defendant obtained the
victim’s car keys, and stated that he was leaving to “get some cocaine and [expletive
deleted].” Defendant drove off, and the victim went to a neighbor for help. By the
time she got help, Defendant returned to the vacation home and locked the victim
out.
When Defendant eventually allowed the victim inside, she went into the
bedroom. Defendant hit the victim in the head while she was seated on the bed.
Defendant continued to hit the victim with both his hands and fists while calling her
a “slut.” The victim did not defend herself because she had “never been through a
situation like this before” and “was too scared to” hit Defendant. For about two hours,
Defendant “punched [her] in the nose,” “bit [her] ear and bit [her] nose,” “kicked [her]
in the chest,” “head-butted [her] twice,” and “strangled [her] until vomiting.” The
victim was unable to scream for help “[b]ecause at one point in time he had [her] face
-2-
STATE V. DEW
Opinion of the Court
down with [her] arms behind [her] back.” The sheets to the bed were covered in the
victim’s blood, and the victim believed Defendant was going to kill her.
Defendant later forced the victim to get into her car. Defendant drove away
from the vacation home. While driving, Defendant threw the victim’s cell phone out
the window and continued to strike her in the head, ultimately rupturing her
eardrum. At various times throughout the drive, Defendant pulled off the road,
strangled the victim, and threatened to push her out of the car.
Around 3:00 a.m. on July 31, 2016, they arrived at the victim’s house in Sims,
North Carolina. Defendant continued to threaten the victim and threatened to harm
himself. At this time, the victim was in extreme pain as her head and body hurt, her
ears were ringing, and her throat was sore.
Around 6:00 a.m. on July 31, 2016, the victim’s mother called Defendant’s
phone. The victim answered and told her mother that she needed help. Her mother
then discovered the blood-stained sheets in the vacation home. Soon after, the
victim’s sister came to the house in Sims, and the victim told her sister about what
Defendant had done the night before.
The victim’s sister called 911. When EMS arrived, they determined that the
victim’s nose was broken. She was transported to the emergency room where it was
determined that the victim needed surgery to prevent further hearing loss.
-3-
STATE V. DEW
Opinion of the Court
The victim’s parents arrived at the emergency room and later took her back to
Atlantic Beach where she gave a statement to the Atlantic Beach Police Department.
As of September 15, 2016, the victim was still “receiving medical care for [her]
headaches and dizziness” and was suffering from anxiety and continued ear pain.
On August 1, 2016, Defendant was arrested. On February 5, 2018, Defendant
was tried on the following offenses: (1) first degree kidnapping; (2) assault by
strangulation; (3) AWDWISI;1 (4) AWDWISI;2 (5) assault on a female for kicking the
victim in the chest; (6) assault on a female for head-butting the victim in the forehead;
and (7) communicating threats. On February 7, 2018, a Carteret County jury found
Defendant guilty of kidnapping, two counts of AWDWISI, one count of assault on a
female for head-butting the victim in the forehead, and one count of communicating
threats.
On February 8, 2018, Defendant entered written notice of appeal. Defendant
argues on appeal that the trial court erred when it (1) denied Defendant’s motion to
dismiss because the evidence before the trial court established only one assault that
resulted in multiple injuries, not multiple assaults; (2) instructed the jury that
Defendant’s hands, feet, and teeth could be deadly weapons; and (3) failed to conduct
a charge conference. We disagree.
1 The alleged deadly weapons for this assault were Defendant’s hands and fists.
2 The alleged deadly weapons for this assault were Defendant’s hands, fists, and teeth.
-4-
STATE V. DEW
Opinion of the Court
Analysis
I. Motion to Dismiss
“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). A motion to dismiss
is properly denied if there is substantial evidence of (1) each element of the charged
offense, and (2) defendant being the perpetrator of the charged offense. See State v.
Earnhardt, 307 N.C. 62, 65, 296 S.E.2d 649, 651 (1982). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citation
omitted). “In making its determination, the trial court must consider all evidence
admitted, whether competent or incompetent, in the light most favorable to the State,
giving the State the benefit of every reasonable inference and resolving any
contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223
(1994) (citation omitted).
In order to preserve an issue for appellate review, a
party must have presented to the trial court a timely
request, objection, or motion, stating the specific grounds
for the ruling the party desired the court to make if the
specific grounds were not apparent from the context.
N.C. R. App. P. 10(a)(1). Further, “[t]his Court will not consider arguments based
upon matters not presented to or adjudicated by the trial court. Even alleged errors
arising under the Constitution of the United States are waived if defendant does not
-5-
STATE V. DEW
Opinion of the Court
raise them in the trial court.” State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600
(2003) (citations and quotation marks omitted).
Here, Defendant argued at the close of the State’s evidence:
And then on the assault with a deadly weapon inflicting
serious injury. Again, deadly weapon being the hands. We
would argue that the case law seems to look at the size
difference between the defendant and the victim, the
brutality of the attack, what actually – the injuries that
occurred.
The State’s evidence was that this was an ongoing
assault that lasted for two hours within the trailer and
then most of the ride home. And we would contend if those
hands were deadly weapons as bad as those pictures are
and as bad as her injuries are, that they would be a lot
worse based on what the State’s evidence has been and we
would ask that that be – that the deadly weapon part of
those be dismissed at this point.
Defendant then renewed his objection at the close of all of the evidence. Defendant
also argued at the close of all of the evidence that “the charging documents all put
the date of these incidents as July 31st,” but did not include July 30th in the dates of
offense.
Defendant’s arguments on his motion to dismiss for sufficiency of the evidence
were directed only to whether his hands could be considered deadly weapons given
what his attorney contended was insignificant evidence of injury, and that the bills
of information did not include the correct dates of offense. Defendant did not argue,
as he does in this appeal, that the evidence before the trial court established only one
-6-
STATE V. DEW
Opinion of the Court
assault that resulted in multiple injuries, not multiple assaults. Thus, Defendant
has failed to preserve this argument for appellate review. See State v. Harris, 253
N.C. App. 322, 327, 800 S.E.2d 676, 680 (2017) (“[T]he law does not permit parties to
swap horses between courts in order to get a better mount in the [appellate court].”
(citation and quotation marks omitted)).
Even if we assume Defendant preserved his new argument, the State
presented sufficient evidence of each assault for which Defendant was convicted. “In
order for a defendant to be charged with multiple counts of assault, there must be
multiple assaults.’’ State v. McCoy, 174 N.C. App. 105, 115, 620 S.E.2d 863, 871 (2005)
(citation and quotation marks omitted). To establish that multiple assaults occurred,
there must be “a distinct interruption in the original assault followed by a second
assault[,] so that the subsequent assault may be deemed separate and distinct from
the first.” State v. Littlejohn, 158 N.C. App. 628, 635, 582 S.E.2d 301, 307 (2003)
(purgandum). To determine whether Defendant’s conduct was distinct, we are to
consider: (1) whether each action required defendant to employ a separate thought
process; (2) whether each act was distinct in time; and (3) whether each act resulted
in a different outcome. State v. Rambert, 341 N.C. 173, 176-77, 459 S.E.2d 510, 513
(1995)
In State v. Wilkes, 225 N.C. App. 233, 736 S.E.2d 582 (2013), the defendant
initially punched the victim in the face, breaking her nose, causing bruising to her
-7-
STATE V. DEW
Opinion of the Court
face, and damaging her teeth. The victim’s son entered the room where the incident
occurred with a baseball bat and hit the defendant. Id. at 235, 736 S.E.2d at 585.
The defendant was able to secure the baseball bat from the child, and he began
striking the victim with it. Id. at 235, 736 S.E.2d at 585. The defendant’s actions in
the subsequent assault “crushed two of [the victim]’s fingers, broke[] bones in her
forearms and her hands, and cracked her skull.” Id. at 235, 736 S.E.2d at 585.
This Court, citing our Supreme Court in Rambert, determined that there was
not a single transaction, but rather “multiple transactions,” stating, “[i]f the brief
amount of thought required to pull a trigger again constitutes a separate thought
process, then surely the amount of thought put into grabbing a bat from a twelve-
year-old boy and then turning to use that bat in beating a woman constitutes a
separate thought process.” Wilkes, 225 N.C. App. at 239-40, 736 S.E.2d at 587.
In State v. Harding, 258 N.C. App. 306, 813 S.E.2d 254, 263, writ denied, review
denied, 371 N.C. 450, 817 S.E.2d 205 (2018), this Court again applied the “separate-
and-distinct-act analysis” from Rambert, and found multiple assaults “based on
different conduct.” Id. at 317, 813 S.E.2d at 263. There, the defendant “grabb[ed the
victim] by her hair, toss[ed] her down the rocky embankment, and punch[ed] her face
and head multiple times.” Id. at 317, 813 S.E.2d at 263. The defendant also pinned
down the victim and strangled her with his hands. This Court determined that
multiple assaults had occurred because the “assaults required different thought
-8-
STATE V. DEW
Opinion of the Court
processes. Defendant’s decisions to grab [the victim]’s hair, throw her down the
embankment, and repeatedly punch her face and head required a separate thought
process than his decision to pin down [the victim] while she was on the ground and
strangle her throat to quiet her screaming.” Id. at 317-18, 813 S.E.2d at 263. This
Court also concluded that the assaults were distinct in time, and that the victim
sustained injuries to different parts of her body because “[t]he evidence showed that
[the victim] suffered two black eyes, injuries to her head, and bruises to her body, as
well as pain in her neck and hoarseness in her voice from the strangulation.” Id. at
318, 813 S.E.2d at 263.
In the present case, Defendant had to employ separate thought processes in
his decisions to punch, slap, kick, bite, and head-butt the victim. In addition, the
assaults which caused the victim’s injuries did not occur simultaneously, with one
strike, or in rapid succession. Rather, Defendant’s actions were at separate and
distinct points in time. Each assault also resulted in different injuries to the victim.
The victim suffered a ruptured eardrum from Defendant’s strikes on her ear, she
suffered a concussion from the Defendant’s conduct in head-butting her, she suffered
a fractured nose from Defendant striking her nose, and she suffered permanent
scarring from Defendant biting her nose and ear.
Even if Defendant preserved his argument, which he did not, the trial court
did not err when it denied Defendant’s motion to dismiss.
-9-
STATE V. DEW
Opinion of the Court
II. Motion to Dismiss AWDWISI
Defendant next argues that the trial court erred in denying Defendant’s motion
to dismiss AWDWISI because there was insufficient evidence that he used his hands,
feet, and teeth as deadly weapons. We disagree.
“The elements of AWDWISI are: (1) an assault, (2) with a deadly weapon, (3)
inflicting serious injury, (4) not resulting in death.” State v. Jones, 353 N.C. 159,164,
538 S.E.2d 917, 922 (2000) (citation omitted). “A deadly weapon is generally defined
as any article, instrument or substance which is likely to produce death or great
bodily harm.” State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981)
(citation omitted).
“An assailant’s hands may be considered deadly weapons for the purpose of the
crime of assault with a deadly weapon inflicting serious injury depending upon the
manner in which they were used and the relative size and condition of the parties.”
State v. Allen, 193 N.C. App. 375, 378, 667 S.E.2d 295, 298 (2008). “Only where the
instrument, according to the manner of its use or the part of the body at which the
blow is aimed, may or may not be likely to produce such results, its allegedly deadly
character is one of fact to be determined by the jury.” McCoy, 174 N.C. App. at 112,
620 S.E.2d at 869 (citation and quotation marks omitted); see also United States v.
Sturgis, 48 F.3d 784, 788 (4th Cir. 1995) (“The test of whether a particular object was
used as a dangerous weapon is not so mechanical that it can be readily reduced to a
- 10 -
STATE V. DEW
Opinion of the Court
question of law. Rather, it must be left to the jury to determine whether, under the
circumstances of each case, the defendant used some instrumentality, object, or (in
some instances) a part of his body to cause death or serious injury. This test clearly
invites a functional inquiry into the use of the instrument rather than a metaphysical
reflection on its nature.”).
In the present case, substantial evidence was presented at trial of Defendant’s
physical advantages over the victim. Defendant is approximately 5 feet 9 inches tall,
while the victim is 5 feet 4 inches tall and weighs 140 pounds. Although there is no
evidence in the record of Defendant’s weight, Defendant was present at trial and the
jury observed Defendant in person, along with photographs of Defendant from the
incident that were admitted into evidence. Thus, the jury had the opportunity to
observe the relative size differences of Defendant and the victim.
Moreover, on the night of the incident, the victim testified that Defendant had
been drinking throughout the evening, that he was drunk, and that he was acting
“crazed and possessed.” For over two hours, Defendant struck the victim repeatedly
with his hands and fists in her ear, nose, and head, which resulted in the victim
sustaining two black eyes, a fractured nose, and swelling in her face. The victim
believed that she was “going to die” and could not defend herself against Defendant
because “he was stronger than her.” According to the victim’s sister, the victim “was
unrecognizable . . . [and] she was a zombie” the next morning. It appeared to the
- 11 -
STATE V. DEW
Opinion of the Court
victim’s sister that “[h]er eyes were swollen. Her nose was very swollen and it looked
like blood had come down to the tip. She had a big old gash up here on her head.
Blood was in her hair. I could tell her ears -- there was some blood on her ears.”
Furthermore, Defendant bit the victim’s nose and ear. The victim testified that
the bite to her ear was the most painful part of the attack. The victim’s doctors were
more concerned about the bite marks on her ear than her ruptured eardrum. At the
time of trial, the victim had a visible scar from where Defendant bit her on the nose.
Moreover, the trial court provided the following instruction to the jury that
“[i]n determining whether fists, hands, and teeth were a deadly weapon, you should
consider the nature of the fists, hands and teeth, the manner in which they were used,
and the size and strength of the defendant as compared to the victim.” (Emphasis
added).
Thus, when viewed in a light most favorable to the State, we conclude that the
State presented substantial evidence of each element of AWDWISI, and that
Defendant’s hands, feet, and teeth were deadly weapons for the purposes of
AWDWISI. Furthermore, we are reminded that the jury is the best determinant of
whether, under the circumstances, Defendant’s use of his hands, fists, and teeth were
likely to cause death or serious bodily injury. See State v. Fritsch, 351 N.C. 373, 379,
526 S.E.2d 451, 455-56 (2000) (“When ruling on a motion to dismiss, the trial court
should be concerned only about whether the evidence is sufficient for jury
- 12 -
STATE V. DEW
Opinion of the Court
consideration, not about the weight of the evidence.”). Therefore, the trial court did
not err when it denied Defendant’s motion to dismiss.
III. Charge Conference
Defendant next argues that the trial court violated N.C. Gen. Stat. § 15A-
1231(b) by failing to conduct a charge conference. We disagree.
A charge conference is a recorded conference between the judge and the parties
outside the presence of the jury where the judge “must inform the parties of the
offenses, lesser included offenses, and affirmative defenses on which he will charge
the jury” and the judge must also inform the parties of what parts of the parties’
tendered instructions will be given to the jury. N.C. Gen. Stat. § 15A-1231(b) (2019).
“The purpose of a charge conference is to allow the parties to discuss the proposed
jury instructions to insure that the legal issues are appropriately clarified in a
manner that assists the jury in understanding the case and reaching the correct
verdict.” State v. Houser, 239 N.C. App. 410, 423, 768 S.E.2d 626, 635 (2015)
(purgandum).
Mere noncompliance with Section 15A-1231(b) does not automatically entitle
Defendant to relief. State v. Corey, ___ N.C. ___, ___, 835 S.E.2d 830, 838 (2019)
(overruling State v. Hill, 235 N.C. App. 166, 760 S.E.2d 85 (2014)). Rather, a
defendant must show that he or she was materially prejudiced by the judge’s failure
to fully comply with the provisions of Section 15A-1231(b). N.C. Gen. Stat. § 15A-
- 13 -
STATE V. DEW
Opinion of the Court
1231(b). A defendant is “materially prejudiced” for purposes of Section 15A-1231(b)
“when there is a reasonable possibility that, had the error in question not been
committed, a different result would have been reached at the trial out of which the
appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2019); Corey, ___ N.C. at ___, 835
S.E.2d at 834; State v. Coburn, ___ N.C. App. ___, ___, 834 S.E.2d 691, 695 (2019)
(concluding that the defendant was not materially prejudiced when portions of the
charge conference were not recorded, as required by Section 15A-1231, because the
trial court summarized, on the record, discussions that were not recorded; the
defendant did not object to the trial court’s summary of the jury instructions on the
record; and the trial court was cognizant of the dangers of discussions held off the
record).
The State correctly argues that Defendant could not have been materially
prejudiced because a charge conference did occur as shown in the record. At the
charge conference, the Court asked whether the parties were satisfied with the
proposed jury instructions. Defendant stated that he was satisfied with the
instructions to be given to the jury and had the opportunity to draft the proposed jury
instructions, as evidence by the following colloquy which occurred outside the
presence of the jury:
THE COURT: All right. Thank you, sir. Give me one
minute. I’ve got to look up an instruction before I bring the
jury back in here. Not one you all did. It’s one I’ve got to
give before you all get started. (Pause.)
- 14 -
STATE V. DEW
Opinion of the Court
...
[THE STATE]: Is Your Honor satisfied with the jury
instructions?
THE COURT: I’m satisfied with the jury instructions.
I just kind of breezed through them, but I’m satisfied with
them if you all are.
[DEFENSE COUNSEL]: We are, Your Honor.
THE COURT: All right. Now, listen, if I happen to
misstate something or misread something, I want you to
stop me right then, but I don’t want you to -- just stand up
and say may I approach the bench and then both of you all
step up here and we’ll address it.
(Emphasis added). Furthermore, after the trial court instructed the jury, Defendant
had a second opportunity to object to the instructions, as evidence by the following
discussion:
THE COURT: All right. For purposes of the record,
Madam Court Reporter, both the defendant and the State
agreed with the jury charge word-for-word. There’s no
objection to it.
[DEFENSE COUNSEL]: No objection to any of it.
(Emphasis added).
Thus, it is apparent from the record that Defendant participated in a charge
conference, and he had multiple opportunities to object. Because the trial court
conducted a charge conference, the trial court did not err. Therefore, Defendant
cannot show material prejudice, and his argument is without merit.
- 15 -
STATE V. DEW
Opinion of the Court
Conclusion
Defendant received a fair trial, free from error.
NO ERROR.
Judges DILLON and ARROWOOD concur.
- 16 -