{ "id": 4278527, "name": "STATE OF NORTH CAROLINA v. BONNIE LINDA FLAUGHER", "name_abbreviation": "State v. Flaugher", "decision_date": "2011-08-16", "docket_number": "No. COA10-1044", "first_page": "370", "last_page": "389", "citations": [ { "type": "official", "cite": "214 N.C. App. 370" } ], "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": "357 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491777, 491650, 491563, 491437, 491629, 491600, 491666, 491415 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0254-06", "/nc/357/0254-05", "/nc/357/0254-03", "/nc/357/0254-02", "/nc/357/0254-04", "/nc/357/0254-01", "/nc/357/0254-08", "/nc/357/0254-07" ] }, { "cite": "651 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639565 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "294", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0291-01" ] }, { "cite": "648 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639089 ], "year": 2007, "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0556-01" ] }, { "cite": "541 U.S. 1088", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868964, 3633948, 5922408, 5887338, 5897547, 3632844, 5877035, 5868718, 5909141, 5891352, 3633468, 5893885, 5916862 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/us/541/1088-12", "/us/541/1088-08", "/us/541/1088-02", "/us/541/1088-01", "/us/541/1088-05", "/us/541/1088-09", "/us/541/1088-06", "/us/541/1088-11", "/us/541/1088-04", "/us/541/1088-10", "/us/541/1088-13", "/us/541/1088-03", "/us/541/1088-07" ] }, { "cite": "652 S.E.2d 36", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639700 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "38" }, { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0036-01" ] }, { "cite": "528 U.S. 973", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9560769, 9559617, 9560449, 9560072, 9560362, 9560139, 9560555, 9559696, 9560208, 9559792, 9559889, 9560663, 9559965, 9560287 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/us/528/0973-14", "/us/528/0973-01", "/us/528/0973-11", "/us/528/0973-06", "/us/528/0973-10", "/us/528/0973-07", "/us/528/0973-12", "/us/528/0973-02", "/us/528/0973-08", "/us/528/0973-03", "/us/528/0973-04", "/us/528/0973-13", "/us/528/0973-05", "/us/528/0973-09" ] }, { "cite": "672 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642782 ], "year": 2009, "pin_cites": [ { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0071-01" ] }, { "cite": "400 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "36", "parenthetical": "\"The defendant candidly concedes . . . that he did not raise any double jeopardy issue at trial. Therefore, this issue has been waived.\"" } ], "opinion_index": 0 }, { "cite": "328 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2540300 ], "year": 1991, "pin_cites": [ { "page": "231", "parenthetical": "\"The defendant candidly concedes . . . that he did not raise any double jeopardy issue at trial. Therefore, this issue has been waived.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0223-01" ] }, { "cite": "698 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "67", "parenthetical": "\"To the extent defendant relies on constitutional double jeopardy principles, we agree that his argument is not preserved because [constitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal.\" (internal quotation marks omitted)" } ], "opinion_index": 0 }, { "cite": "364 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152888 ], "year": 2010, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc/364/0297-01" ] }, { "cite": "577 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "157 N.C. App. 90", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185131 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/157/0090-01" ] }, { "cite": "583 S.E.2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "577 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "386" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 523", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191361 ], "pin_cites": [ { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0523-01" ] }, { "cite": "243 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "373" } ], "opinion_index": 0 }, { "cite": "295 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560971 ], "year": 1978, "pin_cites": [ { "page": "64-65" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0055-01" ] }, { "cite": "121 S.E. 737", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1924, "pin_cites": [ { "page": "737" }, { "page": "737" } ], "opinion_index": 0 }, { "cite": "187 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654088 ], "weight": 2, "year": 1924, "pin_cites": [ { "page": "470" }, { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc/187/0469-01" ] }, { "cite": "107 S. Ct. 133", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1986, "opinion_index": 0 }, { "cite": "93 L. Ed. 2d 77", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1986, "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, "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": "340 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1986, "pin_cites": [ { "page": "470" }, { "page": "470", "parenthetical": "emphasis omitted" }, { "page": "470" }, { "page": "471" }, { "page": "471" }, { "page": "471" }, { "page": "470" } ], "opinion_index": 0 }, { "cite": "316 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694881 ], "weight": 5, "year": 1986, "pin_cites": [ { "page": "120" }, { "page": "121" }, { "page": "121" }, { "page": "121-22" }, { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0111-01" ] }, { "cite": "222 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "720" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 17", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553701 ], "year": 1976, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0017-01" ] }, { "cite": "674 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "811" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166163 ], "year": 2009, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0056-01" ] }, { "cite": "94 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "856" } ], "opinion_index": 0 }, { "cite": "244 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219533 ], "year": 1956, "pin_cites": [ { "page": "741" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0737-01" ] }, { "cite": "694 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "494-95", "parenthetical": "internal citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "583 S.E.2d 379", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "385" }, { "page": "385" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 546", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957257 ], "year": 2003, "pin_cites": [ { "page": "553-54" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0546-01" ] }, { "cite": "530 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "819" } ], "opinion_index": 0 }, { "cite": "352 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684912 ], "year": 2000, "pin_cites": [ { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0001-01" ] }, { "cite": "186 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8157729 ], "year": 2007, "pin_cites": [ { "page": "450", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0447-01" ] }, { "cite": "412 S.E.2d 31", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "41" }, { "page": "41" }, { "page": "41", "parenthetical": "in determining defendant did not produce sufficient evidence to support instruction on voluntary intoxication, noting that \"[w]hen questioned concerning his state of intoxication at the time he entered the victim's home, defendant replied, T wasn't high. I was coming down off of it' \"" } ], "opinion_index": 0 }, { "cite": "330 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511838 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "462" }, { "page": "463" }, { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0446-01" ] }, { "cite": "372 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "537" }, { "page": "536" } ], "opinion_index": 0 }, { "cite": "323 N.C. 339", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564377 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "348" }, { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0339-01" ] }, { "cite": "562 S.E.2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "545" }, { "page": "677" }, { "page": "545", "parenthetical": "evidence that defendant was \" 'drunk and high from smoking [cocaine]' and that he was 'coming down' from the night before\" was insufficient" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 390", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9128278 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "395" }, { "page": "395-96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0390-01" ] }, { "cite": "571 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "39", "parenthetical": "quoting State v. Kornegay, 149 N.C. App. 390, 395, 562 S.E.2d 541, 545 (2002)" }, { "page": "39" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 671", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251249 ], "year": 2002, "pin_cites": [ { "page": "676-77", "parenthetical": "quoting State v. Kornegay, 149 N.C. App. 390, 395, 562 S.E.2d 541, 545 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0671-01" ] }, { "cite": "164 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "747" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 323", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554850 ], "year": 1968, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0323-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-29", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "168 S.E.2d 511", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "513" } ], "opinion_index": 0 }, { "cite": "5 N.C. App. 424", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550496 ], "year": 1969, "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0424-01" ] }, { "cite": "471 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "122 N.C. App. 669", "category": "reporters:state", "reporter": "N.C. App.", "year": 1996, "opinion_index": 0 }, { "cite": "2011 WL 2448519", "category": "reporters:specialty_west", "reporter": "WL", "year": 2011, "pin_cites": [ { "page": "*5-6", "parenthetical": "rejecting defendant's reliance on Richardson, Powell and State v. Dalton, 122 N.C. App. 669, 471 S.E.2d 657 (1996) where defendant, after holding victim at knifepoint, cutting her hands and sexually assaulting her, took victim's personal property just before leaving" } ], "opinion_index": 0 }, { "cite": "235 S.E.2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572354, 8572325, 8572301, 8572245, 8572277 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0643-05", "/nc/292/0643-04", "/nc/292/0643-03", "/nc/292/0643-01", "/nc/292/0643-02" ] }, { "cite": "232 S.E.2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "496-97" }, { "page": "497" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 467", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551413 ], "year": 1977, "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0467-01" ] }, { "cite": "345 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "364" } ], "opinion_index": 0 }, { "cite": "317 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4775661 ], "year": 1986, "pin_cites": [ { "page": "307" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0302-01" ] }, { "cite": "302 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1983, "pin_cites": [ { "page": "802" }, { "page": "803" } ], "opinion_index": 0 }, { "cite": "308 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708015 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "474" }, { "page": "477" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0470-01" ] }, { "cite": "109 S. Ct. 247", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1988, "opinion_index": 0 }, { "cite": "102 L. Ed. 2d 235", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1988, "opinion_index": 0 }, { "cite": "488 U.S. 900", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1494036 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/488/0900-01" ] }, { "cite": "365 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "321 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2567442 ], "pin_cites": [ { "page": "605" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0594-01" ] }, { "cite": "337 S.E.2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1985, "pin_cites": [ { "page": "525" }, { "page": "524" }, { "page": "520" }, { "page": "525" } ], "opinion_index": 0 }, { "cite": "315 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719180 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "203" }, { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0191-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "124 S. Ct. 475", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2003, "opinion_index": 0 }, { "cite": "157 L. Ed. 2d 382", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2003, "opinion_index": 0 }, { "cite": "540 U.S. 988", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 8985632, 8985474, 8985763, 8985508, 8985542, 8985736, 8985609, 8985484, 8985582, 8985710, 8985520, 8985683, 8985653, 8985495, 8985561 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/us/540/0988-10", "/us/540/0988-01", "/us/540/0988-15", "/us/540/0988-04", "/us/540/0988-06", "/us/540/0988-14", "/us/540/0988-09", "/us/540/0988-02", "/us/540/0988-08", "/us/540/0988-13", "/us/540/0988-05", "/us/540/0988-12", "/us/540/0988-11", "/us/540/0988-03", "/us/540/0988-07" ] }, { "cite": "577 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "357 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491879 ], "year": 2003, "pin_cites": [ { "page": "17" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0001-01" ] }, { "cite": "185 N.C. 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App.", "case_ids": [ 4169071 ], "year": 2009, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0579-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1980, "pin_cites": [ { "page": "117" }, { "page": "119" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "98" }, { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "689 S.E.2d 859", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "864" } ], "opinion_index": 0 }, { "cite": "363 N.C. 815", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151228 ], "year": 2010, "pin_cites": [ { "page": "823" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0815-01" ] }, { "cite": "698 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "473", "parenthetical": "quoting State v. Jacobs, 363 N.C. 815, 823, 689 S.E.2d 859, 864 (2010)" } ], "opinion_index": 0 }, { "cite": "186 N.C. App. 638", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8159415 ], "year": 2007, "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0638-01" ] }, { "cite": "535 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "72", "parenthetical": "accord" }, { "page": "72-73" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 768", "category": "reporters:state", "reporter": "N.C. 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Ed. 2d", "year": 1982, "opinion_index": 0 }, { "cite": "459 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6468801, 6468547, 6469476, 6468967, 6469608, 6469353, 6468711, 6468624, 6468240, 6468465, 6469044, 6468343, 6469144, 6469246 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1018-07", "/us/459/1018-04", "/us/459/1018-13", "/us/459/1018-08", "/us/459/1018-14", "/us/459/1018-12", "/us/459/1018-06", "/us/459/1018-05", "/us/459/1018-01", "/us/459/1018-03", "/us/459/1018-09", "/us/459/1018-02", "/us/459/1018-10", "/us/459/1018-11" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "121 S. Ct. 1106", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 2001, "opinion_index": 0 }, { "cite": "148 L. Ed. 2d 976", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1155", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9763844, 9763685, 9764166, 9765737, 9764938, 9764011, 9765420, 9763374, 9764624, 9763543, 9765562, 9764315, 9764797, 9765278, 9764479 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1155-04", "/us/531/1155-03", "/us/531/1155-06", "/us/531/1155-15", "/us/531/1155-11", "/us/531/1155-05", "/us/531/1155-13", "/us/531/1155-01", "/us/531/1155-09", "/us/531/1155-02", "/us/531/1155-14", "/us/531/1155-07", "/us/531/1155-10", "/us/531/1155-12", "/us/531/1155-08" ] }, { "cite": "532 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "806" } ], "opinion_index": 0 }, { "cite": "352 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685071 ], "year": 2000, "pin_cites": [ { "page": "581-82" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0570-01" ] }, { "cite": "697 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2010, "pin_cites": [ { "page": "321" }, { "page": "321-22" }, { "page": "322" } ], "opinion_index": 0 }, { "cite": "364 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152715 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0272-01" ] }, { "cite": "363 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "opinion_index": 0 }, { "cite": "195 N.C. App. 181", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165080 ], "year": 2009, "pin_cites": [ { "page": "196-97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0181-01" ] } ], "analysis": { "cardinality": 1643, "char_count": 47372, "ocr_confidence": 0.74, "pagerank": { "raw": 5.624269298839468e-08, "percentile": 0.35165235502147035 }, "sha256": "f38f855d9a0910a1a0ddc05c76e917d61d683b7dd7cfa695b1c347a3f678b77b", "simhash": "1:0bacec2a543f08d6", "word_count": 8095 }, "last_updated": "2023-07-14T17:33:33.584356+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and ELMORE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BONNIE LINDA FLAUGHER" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Bonnie Linda Flaugher appeals from convictions of assault with a deadly weapon with intent to kill inflicting serious injury (\u201cAWDWIKISI\u201d), robbery with a dangerous weapon, maiming without malice, and possession of a stolen motor vehicle. Defendant primarily argues that the trial court committed plain error in admitting evidence that defendant had previously assaulted the victim with a fork, injuring his hand. Defendant contends that because the district attorney voluntarily dismissed the charges when the victim denied that an assault occurred and because the evidence was not properly admitted under Rule 404(b), the trial court should have excluded the evidence.\nThe dismissal did not, however, amount to a judicial acquittal and, therefore, that dismissal did not preclude admission of the evidence. Further, evidence of the assault was relevant on the charge of maiming without malice based on the near severing of the victim\u2019s finger \u2014 it showed that defendant knew that if she continued to strike at defendant after he raised his hands, she could disfigure his hands or fingers. The evidence, therefore, would have permitted the jury to conclude that defendant did not accidentally disfigure the finger. Because we are not persuaded by defendant\u2019s remaining arguments, we hold that defendant received a trial free of prejudicial error.\nFacts\nThe State\u2019s evidence tended to show the following facts. In early 2008, Larry Eugene Perry allowed defendant to live at his house because she was homeless and he felt sorry for her. He also allowed another woman, Melanie Graham, to live at the house \u2014 she had a driver\u2019s license and drove Mr. Perry and his brother to do tree and yard work.\nOn 2 March 2008, when Mr. Perry returned home from work, defendant asked him for a ride into town. Mr. Perry refused, explaining that he was tired, his head hurt, and he was going to bed. According to Mr. Perry, defendant \u201cstarted ranting and raving and cussing.\u201d She went outside, and Mr. Perry locked the front door behind her. After defendant threw a flower pot through a window, Mr. Perry unlocked the door because he did not want defendant to break any more windows. Mr. Perry then went into his bedroom, which he shared with defendant, and went to sleep.\nMr. Perry later awoke when defendant started hitting him over the head with a pickaxe, saying \u201c \u2018I\u2019ll kill you, you son of a bitch.\u2019 \u201d She swung and hit him at least eight times. Instinctively, Mr. Perry put his hands up to cover his head and face. When he did so, defendant slashed his right finger with the pickaxe, leaving the finger hanging on by only a piece of skin.\nAt some point, Mr. Perry may have taken the pickaxe from defendant, but Mr. Perry was not certain because he was, in his words, \u201cin a daze.\u201d Defendant looked at him and said, \u201c \u2018Give me your wallet, give me your money, motherfucker.\u2019 \u201d Mr. Perry gave her a wallet. After defendant said, \u201c \u2018No, the other one too,\u2019 \u201d Mr. Perry gave her a second wallet as well. She took $114.00, leaving one wallet on the floor and one just outside the bedroom door on the washing machine.\nDefendant went down the hall and came back, jingling Mr. Perry\u2019s truck keys in her hand and told Mr. Perry that she was taking his truck. By that point, Ms. Graham had also come in the room. Ms. Graham and defendant left together in Mr. Perry\u2019s truck, with Ms. Graham driving.\nMr. Perry made his way to a neighbor\u2019s house, and the neighbor called 911. Emergency responders transported Mr. Perry to the hospital, where he had 53 staples put in his head to close the lacerations. His finger was also reattached after a seven-and-a-half-hour surgery, but it is now crooked and he can no longer use it. Mr. Perry described his injuries as very painful and testified that he never used to have headaches, but now he has headaches \u201call the time\u201d and suffers from memory loss.\nOn 19 May 2008, defendant was indicted for AWDWHQSI, robbery with a dangerous weapon, larceny of a motor vehicle, maiming without malice, and possession of a stolen motor vehicle. Following the close of the State\u2019s evidence at trial, the trial court granted defendant\u2019s motion to dismiss the charge of larceny of a motor vehicle.\nAt trial, defendant testified on her own behalf. According to defendant, about three days before the attack, when Mr. Perry and Ms. Graham were out of town, she had placed the pickaxe in the bedroom because she heard dogs barking \u201clike something or somebody was out there,\u201d and she was scared. She testified that on the day of the attack, she \u2014 and not Mr. Perry \u2014 went into the bedroom to lie down. She woke up to find her pants unbuttoned and unzipped and Mr. Perry's hand down her pants. Mr. Perry was only wearing underwear, and she thought he was going to rape her. She grabbed what she \u201cthought was a bat, [she didn\u2019t] know what it was,\u201d and began swinging, trying to get Mr. Perry off her, although she testified that she was not trying to kill him. After Ms. Graham came in and pulled Mr. Perry off defendant, the two women ran out and drove away in Mr. Perry\u2019s truck. Defendant testified that she never demanded Mr. Perry\u2019s wallets or keys.\nThe jury found defendant guilty of AWDWIKISI, robbery with a dangerous weapon, maiming without malice, and possession of a stolen motor vehicle. The trial court consolidated the convictions for sentencing and imposed one presumptive-range term of 100 to 129 months imprisonment. Defendant timely appealed to this Court.\nI\nWe first consider defendant\u2019s argument that the trial court erred, in violation of Rule 404(b) of the Rules of Evidence, in admitting testimony by Mr. Perry and Detective David Dombroski regarding a previous assault by defendant on Mr. Perry. Mr. Perry testified that on 4 January 2008, he cooked some steaks for himself and defendant. After he ate his steak, defendant, who had been drinking, \u201cwent into a rage\u201d for no reason and said, \u201c \u2018I\u2019m going to beat you, I\u2019m going to whip you, your brother\u2019s not here to defend you, I\u2019m going to whip you.\u2019 \u201d She jumped on him and tore his shirt off. Mr. Perry grabbed her and said, \u201c \u2018What is wrong with you? What is wrong with you? Settle down, calm down.\u2019 \u201d\nMr. Perry then let defendant go, at which point she grabbed a fork and ran at him to stick him in the chest. He grabbed her arms, and this time, when he did, the fork \u201cgot [him] in the finger,\u201d causing it to bleed. He believed that if he had not grabbed her with his hands, he would have been stuck in the chest with the fork. Mr. Perry then \u201cthrew her on the floor and held her.\u201d\nAfter Mr. Perry let defendant go, defendant went outside and called the police. When the police arrived, they arrested defendant even though Mr. Perry told them he did not want her to be arrested. Defendant was charged with assault with a deadly weapon.\nDetective Dombroski had responded to the 4 January 2008 incident at Mr. Perry\u2019s home. According to Detective Dombroski, Mr. Perry told him that he and defendant had been arguing over Mr. Perry\u2019s asking defendant to leave the house because she was intoxicated. Defendant had picked up a fork and come at Mr. Perry, who put his hand in front of his face, at which point she \u201cpunctured\u201d his hand with the fork. Detective Dombroski was unable to obtain much information from defendant about the incident, other than that she was upset because Mr. Perry had locked her out.\nAt trial, outside the presence of the jury, defendant objected to this evidence before its admission on the ground that its sole purpose was to show propensity toward violence. Following a voir dire examination of Mr. Perry, the trial court allowed the evidence and instructed the jurors that they should consider it only for the purpose of showing absence of accident or mistake.\nDefendant failed to object to the introduction of this evidence when it was actually admitted, but she contends that the issue was nonetheless preserved for review under State v. Herrera, 195 N.C. App. 181, 196-97, 672 S.E.2d 71, 81, disc. review denied, 363 N.C. 377 (2009), in which this Court held the following:\n[W]e do not believe that under the circumstances here, N.C.R. App. P. 10(b)(1) or North Carolina case law mandate that defendant had to re-object to this testimony in the jury\u2019s presence to preserve this issue when the court had already considered and overruled defendant\u2019s discovery violation objection during voir dire.\n... [Defendant's objection was argued at trial, (albeit outside of the presence of the jury), and not pretrial. Because defendant raised his objections ... at trial and obtained a ruling and standing objection on this issue, we believe he sufficiently preserved this issue for appellate review.\nSubsequent to Herrera, however, our Supreme Court decided State v. Ray, 364 N.C. 272, 697 S.E.2d 319 (2010). In Ray, the State had already begun cross-examining the defendant when, outside the presence of the jury, it informed the trial court that it wanted to question the defendant regarding a prior assault for the purpose of proving motive and intent pursuant to Rule 404(b). Id. at 275, 697 S.E.2d at 321. The defendant objected at that time, outside the presence of the jury, but his counsel later failed to object when the evidence was introduced to the jury. Id. at 276, 697 S.E.2d at 321-22.\nThe Supreme Court in Ray held that \u201cto preserve for appellate review a trial court\u2019s decision to admit testimony, \u2018objections to [that] testimony must be contemporaneous with the time such testimony is offered into evidence\u2019 and not made only during a hearing out of the jury\u2019s presence prior to the actual introduction of the testimony.\u201d Id. at 277, 697 S.E.2d at 322 (quoting State v. Thibodeaux, 352 N.C. 570, 581-82, 532 S.E.2d 797, 806 (2000), cert. denied, 531 U.S. 1155, 148 L. Ed. 2d 976, 121 S. Ct. 1106 (2001)). Consequently, the defendant had failed to preserve for appellate review the trial court\u2019s decision to admit evidence regarding the prior assault. Id.\nUnder Ray, therefore, defendant failed to preserve for appellate review her Rule 404(b) objection. Defendant, however, alternatively asks that we review for plain error. The plain error rule\n\u201cis always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is afundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the . . . mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513, 103 S. Ct. 381 (1982)). The first question in this analysis is whether the trial court committed any error at all.\nRule 404(b) provides that \u201c[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or.accident.\u201d This Court has described Rule 404(b) as a \u201cgeneral rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.\u201d State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990).\nHere, the trial court properly admitted the fork evidence for the purpose of showing absence of accident or mistake. Defendant has contended, in connection with the charge of maiming without malice, that she never intended to purposefully strike Mr. Perry\u2019s finger with the pickaxe. Yet, defendant knew from the fork incident that she could end up stabbing Mr. Perry\u2019s hand or fingers if she swung at him with a weapon and he attempted to defend himself. The evidence was thus relevant to the question whether defendant intended to disable Mr. Perry or whether, as defendant argues, she accidentally struck his finger and did not intend to maim it. See State v. Anderson, 350 N.C. 152, 174, 513 S.E.2d 296, 310 (holding evidence that defendant previously punished her children through use of belt and biting was admitted for permissible purpose because it tended to establish, inter alia, absence of accident), cert. denied, 528 U.S. 973, 145 L. Ed. 2d 326, 120 S. Ct. 417 (1999).\nDefendant also argues, however, that this evidence should have been excluded because the assault charge arising out of the fork incident had already been dismissed by the district attorney's office at the request of Mr. Perry. At some point, after the fork incident, Mr. Perry informed the district attorney\u2019s office that he did not want to press charges. Mr. Perry also completed a victim impact statement for the district attorney\u2019s office. On that form,, he wrote: \u201cBonnie did not assault me. I will explain this matter to you if you will call me. Bonnie does have an alcohol problem. I grabbed her wrist and got stuck on my little finger. I will explain.\u201d Mr. Perry testified at trial in this case, however, that defendant in fact did attack him. He explained that he denied the assault on the victim impact statement because he felt sorry for defendant and did not want her to go to jail.\nIn arguing that the dismissal and Mr. Perry\u2019s original denial of the assault required exclusion of evidence of the assault, defendant relies on State v. Scott, 331 N.C. 39, 413 S.E.2d 787 (1992), and State v. Fluker, 139 N.C. App. 768, 535 S.E.2d 68 (2000). In each of these cases, however, this Court held that evidence that a defendant committed a prior offense for which he has been tried and acquitted may not be admitted in a subsequent trial for a different offense when its probative value depends upon the proposition that the defendant in fact committed the prior crime. Scott, 331 N.C. at 42, 413 S.E.2d at 788 (\u201cWe conclude that evidence that defendant committed a prior alleged offense for which he has been tried and acquitted may not be admitted in a subsequent trial for a different offense when its probative value depends, as it did here, upon the proposition that defendant in fact committed the prior crime.\u201d); Fluker, 139 N.C. App. at 774, 535 S.E.2d at 72 (accord).\nHere, defendant was never tried and acquitted of the fork assault. Although defendant argues that the holdings of Scott and Fluker should apply to dismissals by the prosecution as well as to acquittal, a dismissal does not fall within the reasoning of those two cases. The holdings hinged on the fact that the defendant in each case had been judicially acquitted and, therefore, was legally innocent of the prior charges. Scott, 331 N.C. at 43-44, 413 S.E.2d at 789; Fluker, 139 N.C. App. at 774-75, 535 S.E.2d at 72-73. The district attorney\u2019s dismissal, even considering Mr. Perry\u2019s victim impact statement, did not result in defendant's being legally innocent of the prior assault charge.\nIn State v. Goodwin, 186 N.C. App. 638, 641, 652 S.E.2d 36, 38 (2007), the only other case cited by defendant, the trial court admitted testimony about two prior incidents which resulted in criminal charges that the State voluntarily dismissed. This Court held that the testimony was admitted in error because its sole purpose was to show the defendant\u2019s propensity to commit crimes similar to the one charged. Id. at 642, 652 S.E.2d at 39. The Court\u2019s holding was in no way based on the fact that the charges related to the prior incidents had been dismissed.\nWe, therefore, hold that the trial court did not err in admitting the evidence of defendant\u2019s prior assault on Mr. Perry. Defendant, however, further argues that the trial court should have excluded the evidence under Rule 403 of the Rules of Evidence. Under Rule 403, evidence otherwise admissible may nonetheless be excluded \u201cif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d \u201c \u2018The exclusion of evidence under the Rule 403 balancing test lies within the trial court\u2019s sound discretion and will only be disturbed where the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d State v. Register, _ N.C. App. _, _, 698 S.E.2d 464, 473 (2010) (quoting State v. Jacobs, 363 N.C. 815, 823, 689 S.E.2d 859, 864 (2010)).\nDefendant\u2019s theory of the case was that she never intended to strike Mr. Perry's finger. We cannot conclude that the trial court unreasonably determined that the probative value of the evidence of the fork assault to the charge of maiming \u2014 showing that defendant knew that stabbing at Mr. Perry\u2019s face could result in injury to his hand \u2014 outweighed any unfair prejudice that might stem from the jury\u2019s learning that defendant had previously attacked Mr. Perry with a fork.\nII\nDefendant next contends that the trial court erred in denying her motion to dismiss the charge of robbery with a dangerous weapon. We review a trial court\u2019s denial of a motion to dismiss de novo to determine \u201cwhether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense.\u201d State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial evidence is \u201cevidence that a reasonable mind might find adequate to support a conclusion.\u201d State v. Hargrave, 198 N.C. App. 579, 588, 680 S.E.2d 254, 261 (2009).\nThe trial court must review the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence. State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003), cert. denied, 541 U.S. 1088, 159 L. Ed. 2d 252, 124 S. Ct. 2818 (2004). Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. State v. Prush, 185 N.C. App. 472, 478, 648 S.E.2d 556, 560 (2007).\nThe essential elements of robbery with a dangerous weapon are: (1) an unlawful taking or an attempt to take personal property from the person or in the presence of another, (2) by use or threatened use of a firearm or other dangerous weapon, (3) whereby the life of a person is endangered or threatened. State v. Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 605, cert. denied, 540 U.S. 988, 157 L. Ed. 2d 382, 124 S. Ct. 475 (2003). See also N.C. Gen. Stat. \u00a7 14-87(a) (2009). Defendant contends that the evidence in this case showed that \u201cdefendant\u2019s assault on Mr. Perry was not made to induce him to part with his money[;] rather the State\u2019s evidence shows her demand for money to be an afterthought.\u201d We disagree.\nOur Supreme Court has repeatedly explained that \u201cwhen the circumstances of the alleged armed robbery reveal defendant intended to permanently deprive the owner of his property and the taking was effectuated by the use of a dangerous weapon, it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the theft and the use or threat of force can be perceived by the jury as constituting a single transaction.\u201d State v. Fields, 315 N.C. 191, 203, 337 S.E.2d 518, 525 (1985). See also State v. Green, 321 N.C. 594, 605, 365 S.E.2d 587, 594 (\u201c[P]rovided that the theft and the force are aspects of a single transaction, it is immaterial whether the intention to commit the theft was formed before or after force was used upon the victims.\u201d), cert. denied, 488 U.S. 900, 102 L. Ed. 2d 235, 109 S. Ct. 247 (1988).\nIn Fields, the defendant similarly argued that he only took the victim\u2019s shotgun \u201cas an afterthought.\u201d 315 N.C. at 201, 337 S.E.2d at 524. The evidence in that case showed that the victim had gone over to the home of his neighbors, whom he knew to be away, after he observed the defendant and his companions enter the neighbors\u2019 property. Id. at 193, 337 S.E.2d at 520. The victim confronted the men while holding a shotgun and ordered them to get against their truck with their hands up. Id. They complied, but when the victim looked away, the defendant pulled out a pistol and shot the victim five times. Id. The defendant then grabbed the victim\u2019s shotgun and fled. Id.\nIn rejecting the defendant\u2019s \u201cbelated intent argument,\u201d the Supreme Court reasoned that the defendant\u2019s intent to deprive the victim of his gun \u201cappear[ed] to be so joined in time and circumstances with his use of force against [the victim] that these elements appear inseparable.\u201d Id. at 202, 337 S.E.2d at 525. Moreover, the Court emphasized, \u201cmixed motives do not negate actions that point undeniably to a taking inconsistent with the owner\u2019s possessory rights.\u201d Id.\nHere, the evidence viewed in the light most favorable to the State indicates that defendant\u2019s attack on Mr. Perry and the taking of his wallets constituted a single, continuous transaction. Defendant struck Mr. Perry multiple times with the pickaxe, after which she immediately took his wallets and money. As in Fields, defendant\u2019s intent to take the wallets was \u201cso joined in time and circumstances with [her] use of force against [the victim] that these elements appear inseparable.\u201d Id. Thus, even if defendant\u2019s initial motive was to hurt or kill Mr. Perry, the fact that she at some point later developed the motive to rob him is immaterial.\nDefendant\u2019s reliance on State v. Richardson, 308 N.C. 470, 302 S.E.2d 799 (1983), and State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980), is misplaced. As our Supreme Court later explained in State v. Hope, 317 N.C. 302, 307, 345 S.E.2d 361, 364 (1986),\nthe undisputed evidence in [Richardson] showed that as a result of an altercation between the victim and the defendant, the defendant struck the victim with a stick. The victim threw his duffle bag containing his wallet at the defendant solely in an effort to protect himself from further injury during their fight. The evidence conclusively showed that the defendant had no intent at that time to deprive the victim of his property and did not at that time \u201ctake\u201d the property from him. It was only later after the victim had left the scene that the defendant went through the duffle bag and discovered the wallet. At that time, well after his use of a dangerous weapon, he first formed the intent to permanently deprive the owner of his property. We pointed out that a \u201cdefendant must have intended to permanently deprive the owner of his property at the time the taking occurred to be guilty of the offense of robbery.\u201d [Richardson,] 308 N.C. at 474, 302 S.E. 2d at 802.\nThe Court in Hope emphasized that in Richardson, the Court had indicated that the use of the dangerous weapon by the defendant was \u201centirely separate from and unrelated to the taking of the victim\u2019s property by the defendant because the \u2018defendant\u2019s initial threats were not made to induce [the victim] to part with his property.\u2019 \u201d Id. (quoting Richardson, 308 N.C. at 477, 302 S.E.2d at 803).\nIn Powell, 299 N.C. at 102, 261 S.E.2d at 119, the Supreme Court concluded that the evidence failed to show \u201cone continuous chain of events\u201d where the arrangement of the victim\u2019s body and the physical evidence indicated that she was murdered during a rape. Even viewing the evidence in the light most favorable to the State, the Court could only say that the evidence indicated that the defendant took the objects as an afterthought once the victim had died. Id.\nIn contrast to Richardson and Powell, the evidence in this case, viewed in the light most favorable to the State, showed a single, continuous chain of events. This argument is not a basis for reversing the trial court\u2019s denial of defendant\u2019s motion to dismiss.\nDefendant, however, further argues that the State\u2019s evidence \u201cwas not positive\u201d that the pickaxe was in defendant\u2019s possession at the time she demanded Mr. Perry\u2019s money. Mr. Perry, she points out, testified that he might have taken the pickaxe away from defendant, although he was not sure because he was in a daze.\nIn rejecting a similar argument, this Court stressed in State v. Lilly, 32 N.C. App. 467, 469, 232 S.E.2d 495, 496-97, cert. denied, 292 N.C. 643, 235 S.E.2d 64 (1977), that \u201c[n]umerous decisions by this Court have concluded that the exact time relationship, in armed robbery cases, between the violence and the actual taking is unimportant as long as there is one continuing transaction amounting to armed robbery with the elements of violence and of taking so joined in time and circumstances as to be inseparable.\u201d The defendant in Lilly had argued, like defendant here, that he could not be convicted of robbery with a dangerous weapon since the assault with a crowbar was over by the time the defendant had any intent to rob.\nThis Court, in holding that the motion to dismiss was properly denied, relied on the fact that \u201cthe defendant held a dangerous weapon in his hand at the time he assaulted the victim; that he still had the weapon hanging from his arm at the time he went into the kitchen to take food from the refrigerator; and that it was no longer necessary for him to use or threaten to use the weapon at the time of the robbery since he had already injured and subdued the victim.\u201d Id. at 470, 232 S.E.2d at 497. The Court then held that \u201c[viewing this evidence in the light most favorable to the State, as we are required to do, we conclude that there was sufficient evidence to submit the charge of armed robbery to the jury and that the trial court properly denied the defendant\u2019s motion for nonsuit as to that charge.\u201d Id.\nIn light of Lilly, we hold that the trial court properly denied the motion to dismiss in this case since defendant held the pickaxe at the time she assaulted Mr. Perry and that she had already overcome and injured Mr. Perry when she demanded his wallets and took his money. The pickaxe had already served its purpose in subduing Mr. Perry at the time she robbed him. As he testified, he handed defendant his wallets because \u201c[s]he was beating me \u2014 She had beaten me in the head and I was in a daze. I couldn\u2019t do anything but just stand there.\u201d See also State v. Speight, _, N.C. App. _, _, _ S.E.2d _, _, 2011 N.C. App. LEXIS 1224, *14-17, 2011 WL 2448519, *5-6 (21 June 2011) (rejecting defendant\u2019s reliance on Richardson, Powell and State v. Dalton, 122 N.C. App. 669, 471 S.E.2d 657 (1996) where defendant, after holding victim at knifepoint, cutting her hands and sexually assaulting her, took victim\u2019s personal property just before leaving); State v. Reid, 5 N.C. App. 424, 427, 168 S.E.2d 511, 513 (1969) (rejecting defendant\u2019s argument that at moment robbery actually occurred he did not use or threaten to use dangerous weapons because argument ignored evidence that transactions occurred as one continuous course of events, and that at moment robbery occurred weapons were unnecessary since victim had been subdued).\nIll\nDefendant next argues that the trial court erred in denying her motion to dismiss the charge of maiming without malice. N.C. Gen. Stat. \u00a7 14-29 (2009) provides: \u201cIf any person shall, on purpose and unlawfully, but without malice aforethought, cut, or slit the nose, bite or cut off the nose, or a lip or an ear, or disable any limb or member of any other person, or castrate any other person, or cut off, maim or disfigure any of the privy members of any other person, with intent to kill, maim, disfigure, disable or render impotent such person, the person so offending shall be punished as a Class E felon.\u201d Defendant contends that the evidence failed to show that she intended to strike Mr. Perry\u2019s finger with the intent to disable him.\nThis Court has held, and defendant acknowledges, that the intent to maim or disfigure may be inferred from an act which does, in fact, disfigure the victim, unless the presumption is rebutted by evidence to the contrary. State v. Beasley, 3 N.C. App. 323, 330, 164 S.E.2d 742, 747 (1968). The near severing of Mr. Perry\u2019s finger triggered that presumption.\nDefendant insists that the evidence rebutted the presumption, arguing that she was striking at Mr. Perry\u2019s head, not at his fingers, and it was Mr. Perry who, in his words, \u201cput [his] hand up to stop the licks ... to keep her from busting \u2014 killing [him].\u201d The evidence showed, however, that defendant kept swinging even after Mr. Perry put his hands up to defend himself. There is no evidence to rebut the presumption that, while defendant was swinging at Mr. Perry\u2019s head and hands, she did not intend to maim or disfigure him. Moreover, she knew from the time she assaulted Mr. Perry with the fork that if he put his hands up and she kept swinging, she could easily injure his hand or fingers.\nThe evidence viewed in the light most favorable to the State shows that defendant could have stopped swinging, but instead she kept swinging knowing that she could strike his hand and fingers. In those moments, Mr. Perry\u2019s hands and fingers, along with his head, became the object of the assault. We, therefore, hold the trial court did not err in denying the motion to dismiss the maiming without malice charge.\nIV\nDefendant next argues that the trial court erred in refusing to instruct the jury on the issue of voluntary intoxication. \u201c \u2018Before the trial court will be required to instruct on voluntary intoxication, defendant must produce substantial evidence which would support a conclusion by the trial court that at the time of the crime for which he is being tried defendant\u2019s mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming [the requisite intent to commit the crime.] In the absence of some evidence of intoxication to such degree, the court is not required to charge the jury thereon.\u2019 \u201d State v. Keitt, 153 N.C. App. 671, 676-77, 571 S.E.2d 35, 39 (2002) (quoting State v. Kornegay, 149 N.C. App. 390, 395, 562 S.E.2d 541, 545 (2002)). \u201c \u2018When determining whether the evidence is sufficient to entitle a defendant to jury instructions on a defense or mitigating factor, courts must consider the evidence in the light most favorable to the defendant.\u2019 \u201d Id. at 677, 571 S.E.2d at 39 (quoting State v. Mash, 323 N.C. 339, 348, 372 S.E.2d 532, 537 (1988)).\nOur Supreme Court has emphasized that an instruction on voluntary intoxication is not required in every case in which a defendant claims that he committed a crime after consuming intoxicating beverages or controlled substances. State v. Baldwin, 330 N.C. 446, 462, 412 S.E.2d 31, 41 (1992). Evidence of \u201cmere intoxication\u201d. is not enough to meet a defendant\u2019s burden of production. Mash, 323 N.C. at 346, 372 S.E.2d at 536.\nIn Baldwin, the Court held that evidence that the defendant drank \u201c \u2018about five or six\u2019 beers and consumed an indeterminate amount of marijuana and cpcaine at some time earlier in the day\u201d was insufficient to show that the defendant was so intoxicated that he was incapable of forming the necessary intent. 330 N.C. at 463, 412 S.E.2d at 41. See also Kornegay, 149 N.C. App. at 395-96, 562 S.E.2d at 545 (evidence that defendant was \u201c \u2018drunk and high from smoking [cocaine]\u2019 and that he was \u2018coming down\u2019 from the night before\u201d was insufficient).\nHere, Mr. Perry testified that he \u201chad seen [defendant] coming off of crack cocaine before,\u201d and on the day in question, he \u201cbelieve[d] you know .... [a]ll nervous and everything.\u201d He also said that she \u201cseemed intoxicated\u201d when she was upset about his refusing to drive her into town. According to Mr. Perry, defendant and Ms. Graham \u201cclaimed that they were taking a bunch of Xanax that day.\u201d Ms. Graham testified that defendant was drinking in the afternoon prior to the attack. Defendant herself testified that she had drunk \u201c[t]wo big beers\u201d and had taken a Xanax. When asked whether the two beers would make her intoxicated, she answered, \u201cI could feel it, yeah. I wasn\u2019t drunk, falling down drunk or anything.\u201d She also denied having smoked crack.\nThis evidence shows that defendant had drunk two beers and \u201ccould feel it,\u201d had taken Xanax, and may have smoked crack cocaine. However, defendant herself said she was not drunk and had not smoked crack. See Baldwin, 330 N.C. at 463, 412 S.E.2d at 41 (in determining defendant did not produce sufficient evidence to support instruction on voluntary intoxication, noting that \u201c[w]hen questioned concerning his state of intoxication at the time he entered the victim\u2019s home, defendant replied, T wasn\u2019t high. I was coming down off of it\u2019 \u201d). Viewing the evidence in the light most favorable to defendant, we conclude that she did not produce sufficient evidence to show that at the time of the crimes, her mind was so completely intoxicated that she was utterly incapable of forming the necessary intent to commit the crimes.\nV\nDefendant next contends that the trial court erred in refusing to instruct the jury on the lesser included offense of misdemeanor assault with a deadly weapon. The trial court did instruct on the lesser included offense of felony assault inflicting serious injury, but the jury found defendant guilty of the greater offense. Defendant argues that she was also entitled to an instruction on misdemeanor assault with a deadly weapon because a jury could find that Mr. Perry\u2019s injuries were not serious.\n\u201cA defendant is entitled to an instruction on a lesser included offense 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. Tillery, 186 N.C. App. 447, 450, 651 S.E.2d 291, 294 (2007) (internal quotation marks omitted). \u201c \u2018The trial court may refrain from submitting the lesser offense to the jury only where the evidence is clear and positive as to each element of the offense charged and no evidence supports a lesser included offense.\u2019 \u201d Id. (quoting State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d 807, 819 (2000)). The determining factor is the presence of evidence to support a conviction of the lesser included offense. Id.\nThis Court has held that the only difference in what the State must prove for the offense of misdemeanor assault with a deadly weapon and felony assault with a deadly weapon with intent to kill is the element of intent to kill. State v. Riley, 159 N.C. App. 546, 553-54, 583 S.E.2d 379, 385 (2003). Thus, by extension, the difference between misdemeanor assault with a deadly weapon and AWDWIKISI is (1) intent to kill and (2) infliction of serious injury.\nIn Riley, this Court held that \u201c[w]here all the evidence tends to show a shooting with a deadly weapon with the intent to kill, the trial court does not err in refusing to submit the lesser included offense of assault with a deadly weapon.\u201d Id. at 554, 583 S.E.2d at 385. Accordingly, here, if all the evidence tended to show an intent to kill and infliction of serious injury, the trial court did not err in refusing to submit the charge of assault with a deadly weapon.\nDefendant contends that because reasonable minds could disagree as to the seriousness of Mr. Perry\u2019s injuries, the trial court erred in declining to instruct on the lesser offense. As this Court has explained,\n[T]he serious injury element of [N.C. Gen. Stat.] \u00a7 14-32 means a physical or bodily injury. The courts of this [S]tate have declined to define serious injury for purposes of assault prosecutions other than stating that the term means physical or bodily injury resulting from an assault, and that further definition seems neither wise nor desirable. Whether a serious injury has been inflicted is a factual determination within the province of the jury. Among the factors that have been deemed relevant in determining whether serious injury has been inflicted are: (1) pain and suffering; (2) loss of blood; (3) hospitalization; and (4) time lost from work.\nState v. Walker, _ N.C. App. _, _, 694 S.E.2d 484, 494-95 (2010) (internal citations and quotation marks omitted).\nGiven the evidence of Mr. Perry\u2019s severe pain, the blood in the house, the 53 staples used to close the lacerations to his head, the severed finger, the near severing of his finger, and the loss of the use of his finger, we conclude that all of the evidence clearly and positively tended to show a serious injury. Furthermore, defendant makes no argument in her brief regarding whether all the evidence clearly and positively had a tendency to support the element of intent to kill. Because the evidence squarely showed serious injury and defendant does not address the intent to kill element, we hold that the trial court did not err in declining to instruct on misdemeanor assault with a deadly weapon.\nVI\nDefendant also argues that the trial court erred in refusing to charge the jury on common law robbery, a lesser included offense of robbery with a dangerous weapon. Common law robbery is \u201cthe felonious taking of money or goods of any value from the person of another or in his presence against his will, by violence or putting him in fear.\u201d State v. McNeely, 244 N.C. 737, 741, 94 S.E.2d 853, 856 (1956).\nThe difference between common law robbery and robbery with a dangerous weapon is the use of a dangerous weapon in the commission of the robbery. State v. Ryder, 196 N.C. App. 56, 65, 674 S.E.2d 805, 811 (2009). Where all the evidence supports the instruction on robbery with a dangerous weapon, and there is no evidence that the defendant engaged in an offense tantamount to common law robbery, an instruction. on common law robbery is not required. State v. Martin, 29 N.C. App. 17, 19, 222 S.E.2d 718, 720 (1976).\nDefendant contends that a reasonable juror could have found that the pickaxe was not used to commit the robbery. However, as noted above, the evidence clearly and positively showed one continuous transaction, and it showed that the pickaxe was used to accomplish the taking of the property regardless whether the taking was defendant\u2019s original intent. Thus, we hold the trial court did not err in declining to give the common law robbery instruction.\nVII\nDefendant further contends that the trial court committed plain error in instructing the jury that a pickaxe is a deadly weapon. A dangerous or deadly weapon is generally defined as any article, instrument or substance which is likely to produce death or great bodily harm. State v. Torain, 316 N.C. 111, 120, 340 S.E.2d 465, 470, cert. denied, 479 U.S. 836, 93 L. Ed. 2d 77, 107 S. Ct. 133 (1986).\n\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 Id. at 119, 340 S.E.2d at 470 (emphasis omitted) (quoting State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 737 (1924)). \u201cOnly \u2018where 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.\u2019 \u201d Id. at 120, 340 S.E.2d at 470 (quoting State v. Joyner, 295 N.C. 55, 64-65, 243 S.E.2d 367, 373 (1978)).\n\u201cThere is no \u2018mechanical definition\u2019 for \u2018the distinction between a weapon which is deadly or dangerous per se and one which may or may not be deadly or dangerous depending upon the circumstances.\u2019 \u201d State v. Morgan, 156 N.C. App. 523, 530, 577 S.E.2d 380, 386 (quoting Torain, 316 N.C. at 121, 340 S.E.2d at 471), disc. review denied, 357 N.C. 254, 583 S.E.2d 43 (2003). \u201c \u2018[T]he evidence in each case determines whether a certain kind of [weapon] is properly characterized as a lethal device as a matter of law or whether its nature and manner of use merely raises a factual issue about its potential for producing death.\u2019 \u201d Id. (quoting Torain, 316 N.C. at 121, 340 S.E.2d at 471).\nIn Morgan, the defendant approached one of the victims, Marshall, \u201cfrom his \u2018blind side\u2019 \u201d and struck him hard enough on the head with a wine bottle that it broke upon impact. Id. The blows caused cuts to Marshall\u2019s head requiring staples and stitches to close the wounds. Id. The defendant continued to strike both Marshall and another victim, Morgan, with the broken bottle, cutting both in the head and face and Morgan on his arms, legs, and back. Id. Ultimately, the Court held that \u201cthe evidence amply supported the trial court\u2019s instruction that a broken wine bottle is a dangerous and deadly weapon as a matter of law because, \u2018in the circumstances of its use by defendant here, it was likely to produce death or great bodily harm.\u2019 \u201d Id. (quoting Torain, 316 N.C. at 121-22, 340 S.E.2d at 471).\nThe facts of this case are similar to those of Morgan. Here, the evidence showed the pickaxe handle was about three feet long, and the pickaxe weighed nine or 10 pounds. Defendant swung the pickaxe approximately eight times, causing cuts to Mr. Perry\u2019s head that required 53 staples. She also slashed his middle finger, leaving it hanging only by a piece of skin. In view of these facts, we conclude that the pickaxe and the manner of its use were \u201c \u2018of such character as to admit of but one conclusion\u2019 \u201d \u2014 that it was a deadly weapon\u2014 and the trial court did not err in so instructing the jury. Torain, 316 N.C. at 119, 340 S.E.2d at 470 (quoting Smith, 187 N.C. at 470, 121 S.E at 737).\nVIII\nLastly, defendant argues that the trial court violated her right to be free from double jeopardy when it sentenced her for both maiming without malice and AWDWIKISI because, she claims, this amounted to multiple punishments for the same offense. Defendant admits that she did not raise this issue at trial but relies on State v. Hargett, 157 N.C. App. 90, 577 S.E.2d 703 (2003), for the proposition that this issue is nonetheless preserved for review. In Hargett, this Court held that the defendant was not required to have raised the double jeopardy issue below since it was a sentencing error. Id. at 92, 577 S.E.2d at 705.\nHargett, however, is inconsistent with numerous Supreme Court cases holding that a double jeopardy argument cannot be raised for the first time on appeal. See, e.g., State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010) (\u201cTo the extent defendant relies on constitutional double jeopardy principles, we agree that his argument is not preserved because [constitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal.\u201d (internal quotation marks omitted)); State v. Madric, 328 N.C. 223, 231, 400 S.E.2d 31, 36 (1991) (\u201cThe defendant candidly concedes . . . that he did not raise any double jeopardy issue at trial. Therefore, this issue has been waived.\u201d). Because we are bound to follow the Supreme Court, we hold that defendant\u2019s argument is not preserved. Furthermore, although defendant asks us to exercise Rule 2, we decline in our discretion to do so.\nNo error.\nJudges BRYANT and ELMORE concur.\n. In the transcript, the tool is alternately referred to as a pickaxe, grubbing hoe, or mattock.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Daniel D. Addison, for the State.", "William D. Spence for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BONNIE LINDA FLAUGHER\nNo. COA10-1044\n(Filed 16 August 2011)\n1. Evidence \u2014 prior crimes or bad acts assault deadly weapon \u2014 absence of mistake \u2014 not unfairly prejudicial\nThe trial court did not commit plain error in an assault with a deadly weapon with intent to kill inflicting serious injury case by admitting evidence that defendant had previously assaulted the victim with a fork, injuring his hand. The evidence was properly admitted for the purpose of showing absence of accident or mistake and the probative value outweighed the danger of any unfair prejudice.\n2. Robbery \u2014 dangerous weapon \u2014 sufficient evidence \u2014 motion to dismiss properly denied\nThe trial court did not err in a robbery with a dangerous weapon case by denying defendant\u2019s motion to dismiss the charge. There was substantial evidence of each essential element of the offense charged, and of defendant's being the perpetrator of such offense.\n3. Crimes, Other \u2014 maiming without malice \u2014 sufficient evidence \u2014 motion to dismiss properly denied\nThe trial court did not err in a maiming without malice case by denying defendant\u2019s motion to dismiss the charge. There was substantial evidence of each of the elements of the offense, including that defendant intended to strike the victim\u2019s finger with the intent to disable him.\n4. Jury \u2014 instructions\u2014voluntary intoxication \u2014 insufficient evidence\nThe trial court did not err in a robbery with a dangerous weapon and assault with a deadly weapon with intent to kill inflicting serious injury case by refusing to instruct the jury on the issue of voluntary intoxication. Defendant did not produce sufficient evidence to show that at the time of the crimes, her mind was so completely intoxicated that she was utterly incapable of forming the necessary intent to commit the crimes.\n5. Assault \u2014 deadly weapon inflicting serious injury \u2014 lesser-included offense \u2014 misdemeanor assault with deadly weapon \u2014 jury instruction not warranted\nThe trial court did not err in an assault with a deadly weapon inflicting serious injury case by refusing to instruct the jury on the lesser-included offense of misdemeanor assault with a deadly weapon. The evidence squarely showed serious injury and defendant did not address the intent to kill element.\n6. Robbery \u2014 dangerous weapon \u2014 lesser-included offense\u2014 common law robbery \u2014 jury instruction not warranted\nThe trial court did not err in a robbery with a dangerous weapon case by refusing to charge the jury on common law robbery. The pickaxe used by defendant and the manner of its use were of such character as to admit but one conclusion \u2014 that it was a deadly weapon.\n7. Robbery \u2014 dangerous weapon \u2014 pickaxe\u2014jury instruction\u2014 no plain error\nThe trial court did not commit plain error in a robbery with a dangerous weapon case by instructing the jury that a pickaxe used by defendant was a deadly weapon. The pickaxe and the manner of its use were of such character as to admit but one conclusion \u2014 that it was a deadly weapon.\n8. Appeal and Error \u2014 preservation of issues \u2014 issue not raised at trial \u2014 dismissed\nDefendant\u2019s argument that the trial court violated her right to be free from double jeopardy when it sentenced her for both maiming without malice and assault with a deadly weapon inflicting serious injury was not preserved for appellate review where defendant failed to raise the issue at trial.\nAppeal by defendant from judgment entered 22 April 2010 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 23 February 2011.\nAttorney General Roy Cooper, by Special Deputy Attorney General Daniel D. Addison, for the State.\nWilliam D. Spence for defendant-appellant." }, "file_name": "0370-01", "first_page_order": 380, "last_page_order": 399 }