{ "id": 8350588, "name": "STATE OF NORTH CAROLINA v. JEROME CANNON McCOY, Defendant", "name_abbreviation": "State v. McCoy", "decision_date": "2005-10-18", "docket_number": "No. COA04-1336", "first_page": "105", "last_page": "118", "citations": [ { "type": "official", "cite": "174 N.C. App. 105" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "687" }, { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "608 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "764", "parenthetical": "citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)" } ], "opinion_index": 0 }, { "cite": "359 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3800818 ], "year": 2005, "pin_cites": [ { "page": "290-91", "parenthetical": "citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. 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Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(c)(l)" }, { "page": "(c)(l)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-32.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "pin_cites": [ { "page": "111" } ], "opinion_index": 0 }, { "cite": "530 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "852" }, { "page": "852" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 185", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079078 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "189" }, { "page": "189" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0185-01" ] }, { "cite": "583 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "604" }, { "page": "604-05" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954377 ], "year": 2003, "pin_cites": [ { "page": "132" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0127-01" ] }, { "cite": "186 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "280 N.C. 479", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572596 ], "year": 1972, "pin_cites": [ { "page": "482" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0479-01" ] }, { "cite": "582 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2003, "pin_cites": [ { "page": "682", "parenthetical": "citing State v. Ballard, 280 N.C. 479, 482, 186 S.E.2d 372, 373 (1972)" }, { "page": "684" }, { "page": "685" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954207 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "106", "parenthetical": "citing State v. Ballard, 280 N.C. 479, 482, 186 S.E.2d 372, 373 (1972)" }, { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0103-01" ] }, { "cite": "584 S.E.2d 830", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "838", "parenthetical": "\"The offense of kidnaping is established upon proof of an unlawful, nonconsensual restraint, confinement or removal of a person from one place to another, for the purpose of: (1) holding the person for ransom, as a hostage or using them as a shield; (2" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954514 ], "year": 2003, "pin_cites": [ { "page": "119", "parenthetical": "\"The offense of kidnaping is established upon proof of an unlawful, nonconsensual restraint, confinement or removal of a person from one place to another, for the purpose of: (1) holding the person for ransom, as a hostage or using them as a shield; (2" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0107-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "year": 2003, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "159 L. Ed. 2d 819", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 3, "year": 2004, "pin_cites": [ { "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "124 U.S. 2915", "category": "reporters:federal", "reporter": "U.S.", "year": 2004, "pin_cites": [ { "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "588 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "357 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491509 ], "year": 2003, "pin_cites": [ { "page": "615-16" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0604-01" ] }, { "cite": "486 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "261" } ], "opinion_index": 0 }, { "cite": "126 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11712162 ], "year": 1997, "pin_cites": [ { "page": "592" } ], "opinion_index": 0, "case_paths": [ "/nc-app/126/0581-01" ] }, { "cite": "146 L. Ed. 2d 223", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "529 U.S. 1006", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9511302, 9511370, 9511339, 9511050, 9511184, 9511155, 9511412, 9511220, 9511127, 9511032, 9511482, 9511259, 9511454, 9511096 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/529/1006-09", "/us/529/1006-11", "/us/529/1006-10", "/us/529/1006-02", "/us/529/1006-06", "/us/529/1006-05", "/us/529/1006-12", "/us/529/1006-07", "/us/529/1006-04", "/us/529/1006-01", "/us/529/1006-14", "/us/529/1006-08", "/us/529/1006-13", "/us/529/1006-03" ] }, { "cite": "409 S.E.2d 309", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "318" } ], "opinion_index": 0 }, { "cite": "330 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510833 ], "year": 1991, "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0038-01" ] }, { "cite": "539 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "353 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135796 ], "year": 2000, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0234-01" ] }, { "cite": "93 L. Ed. 2d. 77", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "pin_cites": [ { "parenthetical": "emphasis in original omitted" } ], "opinion_index": 0 }, { "cite": "479 U.S. 836", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6340738, 6341187, 6339651, 6340166, 6341416, 6339181, 6341774, 6340368, 6339954, 6340948, 6338904, 6339482, 6339803, 6341597, 6338527 ], "year": 1986, "pin_cites": [ { "parenthetical": "emphasis in original omitted" } ], "opinion_index": 0, "case_paths": [ "/us/479/0836-10", "/us/479/0836-12", "/us/479/0836-05", "/us/479/0836-08", "/us/479/0836-13", "/us/479/0836-03", "/us/479/0836-15", "/us/479/0836-09", "/us/479/0836-07", "/us/479/0836-11", "/us/479/0836-02", "/us/479/0836-04", "/us/479/0836-06", "/us/479/0836-14", "/us/479/0836-01" ] }, { "cite": "121 S.E. 737", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1924, "pin_cites": [ { "page": "737" } ], "opinion_index": 0 }, { "cite": "187 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654088 ], "year": 1924, "pin_cites": [ { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc/187/0469-01" ] }, { "cite": "340 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "470", "parenthetical": "quoting State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 737 (1924)" } ], "opinion_index": 0 }, { "cite": "316 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694881 ], "year": 1986, "pin_cites": [ { "page": "119", "parenthetical": "quoting State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 737 (1924)" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0111-01" ] }, { "cite": "243 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "373-74", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "295 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560971 ], "year": 1978, "pin_cites": [ { "page": "64-65", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0055-01" ] }, { "cite": "249 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "871" } ], "opinion_index": 0 }, { "cite": "39 N.C. App. 256", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551579 ], "year": 1978, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc-app/39/0256-01" ] }, { "cite": "283 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "725-26" } ], "opinion_index": 0 }, { "cite": "304 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567490 ], "year": 1981, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0293-01" ] }, { "cite": "538 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "922" } ], "opinion_index": 0 }, { "cite": "353 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135783 ], "year": 2000, "pin_cites": [ { "page": "164" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0159-01" ] }, { "cite": "362 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "293" }, { "page": "293", "parenthetical": "holding that the failure to instruct on the lesser included offense of misdemeanor assault inflicting serious injury constituted plain error" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 626", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358965 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "634-35" }, { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0626-01" ] }, { "cite": "564 S.E.2d 313", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "315" }, { "page": "316" }, { "page": "316" } ], "opinion_index": 0 }, { "cite": "150 N.C. App. 682", "category": "reporters:state", "reporter": "N.C. 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JEROME CANNON McCOY, Defendant" ], "opinions": [ { "text": "HUDSON, Judge.\nOn 7 July 2003, a grand jury in Guilford County indicted defendant, Jerome Cannon McCoy, for three counts each of assault inflicting serious injury, assault with a deadly weapon inflicting serious injury, and second-degree kidnaping. At the 23 February 2004 criminal session of the Superior Court in Guilford County, the court dismissed one count each of assault with a deadly weapon inflicting serious injury and second-degree kidnaping. A jury found defendant guilty of one count of assault inflicting serious bodily injury, two counts of assault inflicting serious injury, two counts of assault with a deadly weapon, and two counts of second-degree kidnaping. Based on its findings of aggravating factors, the court sentenced defendant to consecutive terms of imprisonment totaling more than sixteen years with credit for time served. Defendant appeals. For the reasons discussed below, we conclude that defendant is entitled to a new trial on all charges.\nThe State\u2019s evidence tended to show that sometime after Christmas 2002, Melanie Hope Hunt gave a written statement to Greensboro police stating that defendant had severely beaten her and restrained her against her will over the course of the past month and half. Hunt reported that between 9 through 13 November 2002, the defendant stabbed her five times with such force that the knife became stuck in one of her arms. She further stated that the defendant punched her so hard that she struck a wall, leaving an imprint and forcing the pair to move to a different motel.\nHunt told police that on 17 or 18 November 2002, the defendant beat her in the face, and twisted her arm until it fractured. After initially refusing to take her to get medical treatment, defendant ultimately agreed to take Hunt to a hospital in High Point. Defendant instructed her to tell hospital staff that she had fallen out of the attic and broken her arm and that the stab wounds were puncture wounds she received trying to climb over a fence. Hunt further stated that on 24 and 25 December 2002, defendant beat her, threw her to floor on her broken arm, hit her in the stomach and back, and whipped her legs with a belt. She stated that on 25 December 2002 defendant would not allow her to see her family, and threatened to beat her each time she requested to go.\nAt trial, Hunt admitted writing these statements, but insisted that they were not true. She testified that she had written them only because she had caught the defendant in bed with another woman, and that she had written affidavits three different times asking the State to dismiss all the charges.\nThe State introduced expert medical testimony, from the physician who treated Hunt at High Point Regional Hospital on 19 November 2002. Dr. Kevin Largen testified that Hunt\u2019s fractured arm was inconsistent with a fall from an attic, and more likely was caused by a twisting of the bone. He also noted that Hunt had bruises of different ages and a large abrasion on the upper part of her right arm. Based on Hunt\u2019s inconsistent statements and her delay in seeking treatment, Dr. Largen concluded that Hunt was a victim of domestic violence and contacted hospital social worker Karen Chance. Mrs. Chance testified that Hunt told her that defendant had been beating her regularly for the past twelve years and that he refused to get her treatment in Greensboro because she was a known victim of abuse at the hospitals there.\nOfficer S.V. Petteway of the Greensboro Police Department testified that on 26 December 2002 Hunt approached him at the Dollar General Store on High Point Road. He testified that as soon as Hunt began talking to him the defendant fled the store. Hunt told the officer that the defendant had been holding her for days, would not let her contact her family, had beaten her constantly and broken her arm. Officer Petteway took Hunt to her grandmother\u2019s house in Randolph County where she was admitted into a domestic violence shelter. Shelter manager Dolly Weeks testified that Hunt had told her that defendant had beaten her, broken her arm, and stabbed her five times.\nDefendant argues that the trial court committed reversible error when it admitted and published to the jury evidence of a prior conviction for assault inflicting serious injury. He contends that the admission of such evidence was improper under N.C.R. Evid. 404(b) and was inherently prejudicial under the holding in State v. Wilkerson, 356 N.C. 418, 418, 571 S.E.2d 583, 583, adopting per curiam, 148 N.C. App. 310, 319, 559 S.E.2d 5, 10-11 (2002) (Wynn, J., dissenting). We agree.\nUnder Rule 404(b), evidence of a defendant\u2019s other \u2022 crimes, wrongs or acts is inadmissible to show that the defendant acted in conformity therewith, but may be admissible \u201cfor other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 404(b) (2002). In contrast to Rule 404(b), Rule 609 allows for the admission of a prior conviction for the limited purpose of impeaching a defendant\u2019s credibility as a witness if the evidence of the convictions is \u201celicited from the witness or established by public record during cross-examination or thereafter.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 609(a) (2002).\nOur courts have held that the distinction between Rule 404(b) and Rule 609 may not be blurred. Wilkerson, 148 N.C. App at 319, 559 S.E.2d 5, 11. This distinction is crucial because \u201cthe bare fact of a defendant\u2019s prior conviction would rarely, if ever, be probative of any legitimate Rule 404(b) purpose; instead, it is the facts and circumstances underlying such a conviction which hold probative value.\u201d Id. Further, \u201ceven if a conviction, in and of itself, held a scintilla of probative value for Rule 404(b) purposes, the inherent prejudicial effect of such a conviction would substantially outweigh its probativity, mandating its exclusion under Rule 403.\u201d Id. at 319-20, 559 S.E.2d at 11.\nIn Wilkerson, \u201ctestimony [from two law enforcement officers] concerning defendant\u2019s prior crimes . . . was admitted under Rule 404(b) to show defendant\u2019s intent and knowledge with respect to the charged drug offenses.\u201d Id. at 323, 559 S.E.2d at 13. A deputy clerk of court then testified that defendant had prior convictions on several drug charges. Id. at 311, 559 S.E.2d at 6. The trial court admitted both the officers\u2019 and the clerk\u2019s testimony under Rule 404(b). The defendant did not testify or present evidence. Id. at 312, 559 S.E.2d at 6. In his dissent, adopted by our Supreme Court, Judge Wynn noted that the defendant must be granted a new trial because:\nadmitting the bare fact of a defendant\u2019s prior conviction, except in cases where our courts have recognized a categorical exception to the general rule ..., violates Rule 404(b) ... as well as Rule 403, as the bare fact of a prior conviction is inherently prejudicial such that any probative value of the conviction is substantially outweighed by the danger of unfair prejudice.\nId. at 327-28, 559 S.E.2d 5, 16 (emphasis supplied).\nHere, the State elicited the testimony of Greensboro Police Officer Wall, who described the underlying facts of an assault committed by the defendant upon Hunt in 1995. However, he did not testify that this assault resulted in a criminal conviction. Following Officer Wall\u2019s testimony, the State introduced a certified copy of defendant\u2019s criminal conviction for assault inflicting serious injury resulting from the events described by Officer Wall. The trial court admitted both the testimony and the exhibit under Rule 404(b). Defendant did not testify.\nWhile the trial court properly admitted Officer Wall\u2019s testimony under Rule 404(b), it erred in admitting the evidence of defendant\u2019s prior conviction pursuant to Rule 404(b). As in Wilkerson, the bare fact of a non-testifying defendant\u2019s prior conviction was admitted and published to the jury under Rule 404(b) after testimony had been elicited to establish the factual basis underlying that conviction. Because we are unable to distinguish this case from Wilkerson, we conclude that the trial court committed prejudicial error entitling defendant to a new trial.\nAlthough we grant defendant a new trial as discussed above, we also address defendant\u2019s other assignments of error which could arise in a new trial.\nDefendant next contends that the trial court erred when it instructed the jury, in case No. 03 CRS 51797 (\u201cCount Two\u201d), that a knife is a deadly weapon as a matter of law for the charge of assault with a deadly weapon inflicting serious injury arising out of the events of 6 November 2002. Defendant did not to object to these instructions, but he did assign plain error to them. Accordingly, we review this assignment of error under the plain error standard. State v. Lowe, 150 N.C. App. 682, 685, 564 S.E.2d 313, 315 (2002).\nThe plain error review requires this Court to review \u201cfundamental errors or defects in jury instructions affecting substantial rights, which were not brought to the attention of the trial court.\u201d To obtain relief under this rule, the defendant \u201cmust show that the omission was error, and that, in light of the record as a whole, the error had a probable impact on the verdict.\u201d State v. Bell, 87 N.C. App. 626, 634-35, 362 S.E.2d 288, 293 (1987).\nThe defendant contends that it was improper to instruct the jury that a knife was a deadly weapon as a matter of law. A deadly weapon is not one that must kill, but rather one that is likely to cause death or great bodily harm. State v. Jones, 353 N.C. 159, 164, 538 S.E.2d 917, 922 (2000). The definition of \u201cdeadly weapon\u201d can encompass most knives, but evidence in each case determines whether a specific knife is properly characterized as lethal. State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725-26 (1981).\n\u201cWhether a weapon is deadly is generally a decision for the court_\u201d State v. Roper, 39 N.C. App. 256, 257, 249 S.E.2d 870, 871 (1978). Only \u201cwhere 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.\u201d State v. Joyner, 295 N.C. 55, 64-65, 243 S.E.2d 367, 373-74 (1978) (internal citations omitted) (discussing a Pepsi-Cola bottle). \u201cIt has long been the law of this state that \u2018[w]here the alleged deadly weapon and the manner of its use are of such character as to admit of but one conclusion, the question as to whether or not it is deadly ... is one of law, and the Court must take the responsibility of so declaring.\u2019 \u201d State v. Torain, 316 N.C. 111, 119, 340 S.E.2d 465, 470 (1986) (quoting State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 737 (1924)), cert. denied 479 U.S. 836, 93 L. Ed. 2d. 77 (1986) (emphasis in original omitted).\nAt trial, the State introduced statements made by Hunt during the restraining order proceedings, in which she stated that on or about 2 November through 5 November 2002, \u201cJerome McCoy stabbed me twice on my right upper arm, twice on my right leg . . . and once on my left (upper arm) [and] the knife got stuck in that arm.\u201d Shelter manager Dolly Weeks testified that these wounds were still visible on 26 December 2002. Defendant presented no conflicting evidence as to the nature of the knife or its manner of use. Taking the evidence of the knife\u2019s use and the injuries produced, we cannot conclude the trial court committed error, let alone plain error, when it instructed the jury that the knife used by defendant was a deadly weapon as a matter of law.\nDefendant also argues that the court erred when it failed to instruct the jury in 03 CRS 51798 on the lesser included offenses of assault with a deadly weapon and assault inflicting serious injury for the charge of assault with a deadly weapon inflicting serious injury for the events of 18 November 2002. We agree.\nA trial judge is required to \u201csubmit lesser included offenses as possible verdicts, even in the absence of a request by the defendant, where sufficient evidence of the lesser offense was presented at trial.\u201d Lowe, 150 N.C. App. at 686, 564 S.E.2d at 316. In Lowe, on facts similar to those here, this Court held that it was plain error for the trial judge not to submit misdemeanor assault as a lesser included offense of assault with a deadly weapon inflicting serious injury. Id. at 687, 564 S.E.2d at 316. The court in Lowe held that where the weapon used by the defendant could not properly be considered deadly as a matter of the law, the trial court should have given the jury the option to convict of an offense that did not require a deadly weapon. Id.\nHere, the State presented evidence that tended to show that on or around 18 November 2002 defendant used his hands to twist Hunt\u2019s arm until it broke. The jurors were not instructed that defendant\u2019s hands were deadly weapons per se, but rather they were asked to determine whether defendant\u2019s hands became deadly weapons as used in the alleged assault on Hunt. Consequently, \u201c[t]here is simply no way to ascertain what verdict the jury might have reached had they been given an alternative which did not include the use of a deadly weapon.\u201d State v. Bell, 87 N.C. App. at 635, 362 S.E.2d at 293 (holding that the failure to instruct on the lesser included offense of misdemeanor assault inflicting serious injury constituted plain error).\nThe court also erred by omitting from the instructions on the events of 18 November 2002, the lesser included offense of assault with a deadly weapon, which does not require that the victim suffer serious injury. A defendant \u201cis entitled to an instruction on lesser included offenses if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.\u201d State v. Leaser, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000). \u201c[W]hether a serious injury has been inflicted depends upon the facts of each case and is generally for the jury to decide under appropriate instructions.\u201d State v. Hedgepeth, 330 N.C. 38, 53, 409 S.E.2d 309, 318 (1991), cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000). \u201cPertinent factors for jury consideration include hospitalization, pain, blood loss, and time lost at work.\u201d State v. Woods, 126 N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997). Here, Hunt did not seek medical treatment (allegedly because defendant would not allow her to do so), and the record does not contain any evidence of pain, blood loss or time lost from work as a result of her injuries. Because the jury could rationally have found defendant guilty of assault with a deadly weapon, the court erred by not instructing on that offense.\nDefendant also argues that the trial court erred when it denied his motion to dismiss the charge of assault with a deadly weapon inflicting serious injury for the events of 6 November 2002. We disagree.\nThe standard of review on a motion to dismiss is well established. When ruling on a motion to dismiss the trial court must determine whether the State has introduced substantial evidence of each essential element of the crime and of the defendant being the perpetrator. State v. Smith, 357 N.C. 604, 615-16, 588 S.E.2d 453, 461 (2003), cert. denied, 124 U.S. 2915, 159 L. Ed. 2d 819 (2004) (internal citations and quotation marks omitted). Substantial evidence is such relevant evidence that a reasonable mind would find adequate to support a conclusion. Id. In reaching its decision, the trial court must consider the evidence in the light most favorable to the State giving the State the benefit of every reasonable inference. Id.\nDefendant argues that the State presented no substantive evidence that the knife was a dangerous or deadly weapon, which is an essential element of assault with a deadly weapon inflicting serious injury. See N.C. Gen. Stat. \u00a7 14-32(b) (2003). Instead, defendant maintains that the only evidence of the nature of the knife and its manner of use was in the prior inconsistent statements of Hunt which were not offered as substantive evidence. The State\u2019s evidence, including the documents from the domestic violence hearing which were admitted as substantive evidence, tended to show that the defendant stabbed Hunt five times with a knife causing wounds still visible some eight weeks after the assault. This evidence could adequately support an inference by the jury that the defendant assaulted Hunt with a deadly weapon. Thus, the court did not err in denying the defendants motion to dismiss the charge of assault with a deadly weapon inflicting serious injury.\nDefendant also argues that the trial court erred in denying his motion to dismiss the second-degree kidnaping charges arising from the events of 18 November (03 CRS 071958) and 25 December 2002 (03 CRS 071959). We disagree.\nThe defendant\u2019s contention based on insufficiency of the evidence of restraint also fails. See State v. Smith, 160 N.C. App. 107, 119, 584 S.E.2d 830, 838 (2003) (\u201cThe offense of kidnaping is established upon proof of an unlawful, nonconsensual restraint, confinement or removal of a person from one place to another, for the purpose of: (1) holding the person for ransom, as a hostage or using them as a shield; (2) facilitating flight from or the commission of any felony; or (3) terrorizing or doing serious bodily harm to the person. See G.S. \u00a7 14-39(a).\u201d) Again defendant argues that the only evidence on this point was in the prior inconsistent statements of Hunt, which were not substantive evidence. However, staff from High Point Regional Hospital testified that defendant restrained Hunt by refusing to allow her to seek medical treatment for a broken arm on or around 18 November 2002. Officer Petteway also testified that on 26 December 2002 Hunt told him that the defendant had been holding her against her will for days and would not let her contact her family. In the light most favorable to the State, this and other evidence was sufficient to support the trial court\u2019s denial of defendant\u2019s motion to dismiss the charges of second-degree kidnaping.\nDefendant next argues that the court violated his right to be free of double jeopardy when it sentenced him in 03 CRS 79519 for both assault with a deadly weapon inflicting serious injury and assault inflicting serious injury, and in 03 CRS 71958 for both assault inflicting serious bodily injury and assault with a deadly weapon inflicting serious injury. Again, we agree.\nDouble jeopardy is prohibited both by the Fifth Amendment to the United States Constitution and by our State\u2019s common law. State v. Ezell, 159 N.C. App. 103, 106, 582 S.E.2d 679, 682 (2003) (citing State v. Ballard, 280 N.C. 479, 482, 186 S.E.2d 372, 373 (1972)). \u201cThe double jeopardy clause prohibits (1) a second prosecution for the same offenses after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple convictions for the same offense.\u201d Id. Defendant contends that he has been made subject to multiple convictions of assault for the same offense. \u201cIn order for a defendant to be charged with multiple counts of assault, there must be multiple assaults.\u201d State v. Maddox, 159 N.C. App. 127, 132, 583 S.E.2d 601, 604 (2003) citing State v. Brooks, 138 N.C. App. 185, 189, 530 S.E.2d 849, 852 (2000)). \u201cThis requires evidence of \u2018a distinct interruption in the original assault followed by a second assault.\u2019 \u201d Id. at 132, 583 S.E.2d at 604-05 (quoting Brooks, 138 N.C. App. at 189, 530 S.E.2d at 852).\nThe charges which defendant contends subjected him to double jeopardy are assault inflicting serious injury (pursuant to N.C. Gen. Stat. \u00a7 14-32.4) and assault with a deadly weapon inflicting serious injury (pursuant to N.C. Gen. Stat. \u00a7 14-32) for offenses on 6 November 2002, and assault inflicting serious injury and assault with a deadly weapon inflicting serious injury for offenses on 19 November 2002. The evidence tended to show that on 6 November defendant stabbed and beat the victim and threw her into a wall, while on 19 November, defendant struck the victim with his hands causing multiple bruises and abrasions and twisted her arm until it broke. In Ezell, the defendant was, as a result of a single incident, sentenced for assault with a deadly weapon with intent to kill inflicting serious injury under N.C. Gen. Stat. \u00a7 14-32(b) and assault inflicting serious bodily injury under N.C. Gen. Stat. \u00a7 14-32.4. This Court first observed that N.C. Gen. Stat. \u00a7 14-32.4 \u201cmakes an assault inflicting serious bodily injury a Class F felony \u2018unless the conduct is covered under some other provision of law providing greater punishment.\u2019 \u201d Ezell, 159 N.C. App. at 110, 582 S.E.2d at 684 (quoting N.C. Gen. Stat. \u00a7 14-32.4). Because defendant\u2019s conviction under N.C. Gen. Stat. \u00a7 14-32(b) provided for greater punishment than N.C. Gen. Stat. \u00a7 14-32.4, this Court held that the trial court \u201ccannot convict and sentence [a defendant] for both \u00a7\u00a7 14-32 and 14-32.4 for the same conduct without violating the double jeopardy provisions of the United States and North Carolina constitutions.\u201d Id. at 111, 582 S.E.2d at 685.\nIn this case, with respect to 18 November 2002, defendant was convicted of assault with a deadly weapon inflicting serious injury under N.C. Gen. Stat. \u00a7 14-32(b) and assault inflicting serious bodily injury under N.C. Gen. Stat. \u00a7 14-32.4. This is precisely the same scenario found in Ezell. As for 6 November 2002, defendant was convicted of assault with a deadly weapon inflicting serious injury under N.C. Gen. Stat. \u00a7 14-32(b) and misdemeanor assault inflicting serious injury under N.C. Gen. Stat. \u00a7 14-33(c)(l). Because N.C. Gen. Stat. \u00a7 14-33(c)(l) provides \u2014 just as \u00a7 14-32.4 does \u2014 that the section should not apply if the \u201cconduct is covered under some other provision of law providing greater punishment,\u201d the 6 November 2002 charges come under Ezell as well. Thus, we conclude we are bound by Ezell.\nHere, we conclude that the evidence does establish assaults on two different days. However, it does not establish that two separate and distinct assaults occurred on each of the dates in question, as opposed to multiple injuries arising from a single continuous transaction. Thus, the evidence supported one assault conviction per day.\nDefendant also argues that the court erred in imposing an aggravated sentence when no aggravating factor was alleged in the indictment, admitted by defendant, or found by the jury. In light of our Supreme Court\u2019s decision on this issue in State v. Allen, 359 N.C. 425, - S.E.2d -(2005) overruling State v. Lucas, 353 N.C. 568, 598, 548 S.E.2d 712, 732 (2001), we agree.\nIn Allen, our North Carolina Supreme Court considered the application of Blakely v. Washington, 542 U.S. 296, -, 159 L. Ed. 2d 403, 412 (2004) to our State\u2019s Structured Sentencing Act. N.C. Gen. Stat. \u00a7 15A-1340 el seq. (2001). The Court held that:\nThe United States Supreme Court has made clear that the Sixth Amendment requires aggravating sentencing factors, like elements, to be found by a jury beyond a reasonable doubt. Blakely, - U.S. at -, -, 159 L. Ed. 2d at 413-14, 420. (See footnote 5) However, under North Carolina\u2019s current structured sentencing scheme, aggravating factors are completely withheld from jury review and are determined by a judge by a preponderance of the evidence. N.C.G.S. \u00a7 15A-1340.16. No impartial jury considers a defendant\u2019s evidence, arguments, and defenses during sentencing, id., even when the aggravating factors advanced by the State are highly subjective in nature or disputed by the defendant. Moreover, aggravating factors are found to exist by a low standard of proof: a preponderance of the evidence. Id.\nAllen, 359 N.C. at 444, - S.E.2d at -. The Court also concluded that \u201cthe harmless-error rule does not apply to sentencing errors which violate a defendant\u2019s Sixth Amendment right to jury trial pursuant to Blakely. Such errors are structural and, therefore, reversible per se.\u201d Id. at 444, S.E.2d at \u2014.\nHere, the court sentenced defendant to the maximum aggravated range terms of imprisonment based on its finding of two aggravating factors: \u201cthe defendant committed the offense while on pretrial release for another charge\u201d and \u201clong and severe history of domestic violence perpetrated by Defendant on victim Melanie Hunt (12 years).\u201d Even if we were not awarding defendant a new trial, he would be entitled to a new sentencing hearing on this basis.\nDefendant also argues that he received ineffective assistance of counsel in connection with his sentencing. We disagree.\n\u201cTo establish ineffective assistance of counsel a defendant must first show that his defense counsel\u2019s performance was deficient.\u2019 \u201d State v. Poindexter, 359 N.C. 287, 290-91, 608 S.E.2d 761, 764 (2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). Defendant contends that his trial counsel requested that the court impose consecutive sentences on defendant, an action for which defendant asserts his counsel could not have had a valid reason. The record indicates that defense counsel did not, in fact, request consecutive sentences. Instead, he asked that defendant\u2019s four convictions for Class F felonies be consolidated into a single mitigated sentence, to be. followed by one consolidated \u201cintermediate sentence\u201d pursuant to N.C. Gen. Stat. \u00a7 7A-771 (3a) which would include anger management treatment, but no active jail time. Because defendant does not demonstrate how his defense counsel\u2019s performance was deficient, we conclude that this assignment of error has no merit.\nDefendant also assigns error to the court\u2019s use of the disjunctive in instructing the jury on the charge of assault with a deadly weapon inflicting serious injury in 03 CRS 71957. Because we have awarded defendant a new trial on other grounds, we do not address this assignment of error.\nNew trial.\nJudges HUNTER and GEER concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Karen S. Long, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JEROME CANNON McCOY, Defendant\nNo. COA04-1336\n(Filed 18 October 2005)\n1. Evidence\u2014 prior crimes or bad acts \u2014 assault inflicting serious injury\nThe trial court erred in an assault case by admitting and publishing to the jury evidence of a prior conviction for assault inflicting serious injury, and the case is remanded for a new trial, because: (1) the bare fact of a defendant\u2019s prior conviction would rarely, if ever, be probative of any legitimate Rule 404(b) purpose and the facts, and it is the circumstances underlying such a conviction that hold probative value; and (2) the bare fact of the nontestifying defendant\u2019s prior conviction was admitted and published to the jury in the instant case after testimony had been elicited to establish the factual basis underlying the conviction.\n2. Assault\u2014 instruction \u2014 deadly weapon as a matter of law\u2014 knife\nThe trial court did not err or commit plain error by instructing the jury that a knife is a deadly weapon as a matter of law for the charge of assault with a deadly weapon inflicting serious injury given the evidence of the knife\u2019s use and the injuries produced.\n3. Assault\u2014 deadly weapon inflicting serious injury \u2014 failure to instruct on lesser-included offenses\nThe trial court erred by failing to instruct the jury on the lesser-included offenses of assault with a deadly weapon and assault inflicting serious injury for the charge of assault with a deadly weapon inflicting serious injury, because: (1) the jurors were not instructed that defendant\u2019s hands were deadly weapons per se, but rather they were asked to determine whether defendant\u2019s hands became deadly weapons as used in the alleged assault; (2) there was no way to ascertain what verdict the jury might have reached had it been given an alternative which did not. include the use of a deadly weapon; and (3) assault with a deadly weapon does not require the victim to suffer serious injury, and the victim in the instant case did not seek medical treatment nor does the record contain any evidence of pain, blood loss, or time lost from work as a result of the injuries.\n4. Assault\u2014 deadly weapon inflicting serious injury \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of assault with a deadly weapon inflicting serious injury because the State\u2019s evidence, including documents from the domestic violence hearing that were admitted as substantive evidence, tended to show that defendant stabbed the victim five times with a knife causing wounds still visible some eight weeks after the assault, which adequately supported an inference that defendant assaulted the victim with a deadly weapon.\n5. Kidnapping\u2014 second-degree \u2014 motion to dismiss \u2014 sufficiency of evidence \u2014 restraint\nThe trial court did not err by denying defendant\u2019s motion to dismiss the second-degree kidnapping charges arising from the events of 18 November and 25 December 2002 even though defendant contends there was insufficient evidence of restraint, because: (1) hospital staff testified that defendant restrained the victim by refusing to allow her to seek medical treatment for a broken arm on or around 18 November 2002; and (2) an officer also testified that on 26 December 2002 the victim told him that defendant had been holding her against her will for days and would not let her contact her family.\n6. Constitutional Law\u2014 double jeopardy \u2014 assault\nThe trial court violated defendant\u2019s right to be free of double jeopardy when it sentenced him in 03 CRS 79519 for both assault with a deadly weapon inflicting serious injury and assault inflicting serious injury, and in 03 CRS 71958 for both assault inflicting serious bodily injury and assault with a deadly weapon inflicting serious injury, because: (1) N.C.G.S. \u00a7 14-33(c)(l) provides, just as N.C.G.S. \u00a7 14-32.4 does, that the section does not apply if the conduct is covered under some other provision of law providing greater punishment; and (2) although the evidence establishes assaults on two different days, it does not establish that two separate and distinct assaults occurred on each of the dates in question as opposed to multiple injuries arising from a single continuous transaction.\n7. Sentencing\u2014 aggravating factors \u2014 failure to submit to jury\nThe trial court erred in an assault inflicting serious bodily injury, double assault inflicting serious injury, double assault with a deadly weapon, and double second-degree kidnapping case by imposing an aggravated sentence when no aggravating factor was admitted by defendant or found by the jury. Defendant would be entitled to a new sentencing hearing if defendant were not already awarded a new trial on other grounds.\n8. Constitutional Law\u2014 effective assistance of counsel \u2014 failure to show deficiency\nDefendant did not receive ineffective assistance of counsel in an assault inflicting serious bodily injury, double assault inflicting serious injury, double assault with a deadly weapon, and double second-degree kidnapping case by allegedly requesting the court to impose consecutive sentences on defendant, because: (1) the record indicates that defense counsel did not, in fact, request consecutive sentences; and (2) defendant failed to demonstrate how his counsel\u2019s performance was deficient.\nAppeal by defendant from judgments entered 4 March 2004 by Judge Ripley E. Rand in the Superior Court in Guilford County. Heard in the Court of Appeals 18 May 2005.\nAttorney General Roy Cooper, by Special Deputy Attorney General Karen S. Long, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliott Walker, for defendant." }, "file_name": "0105-01", "first_page_order": 135, "last_page_order": 148 }