{ "id": 4132311, "name": "STATE OF NORTH CAROLINA v. TIMOTHY C. WILKES", "name_abbreviation": "State v. Wilkes", "decision_date": "2013-01-15", "docket_number": "No. COA12-387", "first_page": "233", "last_page": "246", "citations": [ { "type": "official", "cite": "225 N.C. App. 233" } ], "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": "620 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634253 ], "year": 2005, "pin_cites": [ { "page": "871" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0863-01" ] }, { "cite": "599 S.E.2d 515", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631478 ], "year": 2004, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/se2d/599/0515-01" ] }, { "cite": "462 S.E.2d 485", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "489" } ], "opinion_index": 0 }, { "cite": "341 N.C. 686", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793143 ], "year": 1995, "pin_cites": [ { "page": "693-94" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0686-01" ] }, { "cite": "459 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 12, "year": 1995, "pin_cites": [ { "page": "512" }, { "page": "512" }, { "page": "512-13" }, { "page": "511" }, { "page": "513" }, { "page": "513" } ], "opinion_index": 0 }, { "cite": "341 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793125 ], "year": 1995, "pin_cites": [ { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0173-01" ] }, { "cite": "582 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "307", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "158 N.C. 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Gen. Stat. \u00a7 14-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "pin_cites": [ { "page": "(a)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "628 S.E.2d 8", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635671 ], "year": 2006, "opinion_index": 1, "case_paths": [ "/se2d/628/0008-01" ] }, { "cite": "620 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634253 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "871" }, { "page": "872", "parenthetical": "holding that even though the defendant stabbed, beat, and threw the victim against the wall on one day and struck the victim with his hands and broke the victim's arm by twisting it the next day, the evidence only supported a conviction of one assault per day" } ], "opinion_index": 1, "case_paths": [ "/se2d/620/0863-01" ] }, { "cite": "605 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2004, "pin_cites": [ { "page": "703" }, { "page": "702" }, { "page": "700" }, { "page": "702" } ], "opinion_index": 1 }, { "cite": "167 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411467 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "383" }, { "page": "378" } ], "opinion_index": 1, "case_paths": [ "/nc-app/167/0374-01" ] }, { "cite": "459 S.E.2d 510", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1995, "pin_cites": [ { "page": "512" }, { "page": "512" }, { "page": "513" }, { "page": "513" } ], "opinion_index": 1 }, { "cite": "341 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793125 ], "year": 1995, "pin_cites": [ { "page": "175" } ], "opinion_index": 1, "case_paths": [ "/nc/341/0173-01" ] }, { "cite": "582 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "307", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 1 }, { "cite": "158 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188765 ], "year": 2003, "pin_cites": [ { "page": "635", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/158/0628-01" ] }, { "cite": "582 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "682" } ], "opinion_index": 1 }, { "cite": "159 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954207 ], "year": 2003, "pin_cites": [ { "page": "106" } ], "opinion_index": 1, "case_paths": [ "/nc-app/159/0103-01" ] }, { "cite": "174 N.C. App. 105", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8350588 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "115" }, { "page": "116" } ], "opinion_index": 1, "case_paths": [ "/nc-app/174/0105-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-32", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2011, "pin_cites": [ { "page": "(a)" }, { "page": "(b)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 992, "char_count": 32471, "ocr_confidence": 0.757, "pagerank": { "raw": 4.436057418262789e-08, "percentile": 0.2781328177820406 }, "sha256": "c0c2fdd5388fbee1c745b77a73a685f702baf62a3c77c35f7488e8e6d6b2655a", "simhash": "1:5facc2ee462d2d74", "word_count": 5367 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs.", "Judge HUNTER, Robert C., concurs in part and dissents in part in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. TIMOTHY C. WILKES" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nTimothy C. Wilkes (\u201cDefendant\u201d) appeals from judgment entered against him after a jury found him guilty of assault with a deadly weapon with intent to kill inflicting serious injury, misdemeanor child abuse, and assault with a deadly weapon inflicting serious injury. On appeal, Defendant argues that the trial court erred by: (1) denying Defendant\u2019s motions to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury; (2) denying Defendant\u2019s motions to dismiss one of the two felony assault charges; and (3) imposing a sentence in the aggravated range for Defendant\u2019s assault with a deadly weapon inflicting serious injury conviction. After careful review, we find no error at trial and remand for resentencing.\nI. Factual & Procedural Background\nThe State\u2019s evidence at trial tended to establish the following: In September of 1993 or 1994, Defendant married Ms. Julie Bush (\u201cMs. Bush\u201d). The couple had two sons together, C.W. and E.W., and Ms. Bush also had a son, Andrew, from a previous relationship. At trial, Andrew, C.W., and E.W. were ages twenty-three, fourteen, and twelve, respectively. Ms. Bush and Defendant were married for fifteen years. During that time, the couple separated twice; the first separation occurred after Defendant pushed Ms. Bush against a wall and the second followed an incident where Defendant punched Andrew in the face several times. The second separation lasted from October 2008 through October 2009. In October 2009, Ms. Bush retained an attorney and told Defendant that she wanted a divorce.\nThe incident in question occurred on the evening of 24 October 2009 after Ms. Bush had returned from a birthday party. Defendant later testified that he was upset that Ms. Bush had attended the party because he \u201ccould lose her to a guy over there.\u201d Soon after Ms. Bush returned home, E.W. came running upstairs to inform her that Defendant was at the back door. Ms. Bush unlocked the back door to \u201csee what [Defendant] wanted because . . . [she] didn\u2019t expect him to be there.\u201d Defendant pushed past her into the house and refused to leave. Ms. Bush told C.W. to call 9-1-1, but Defendant pulled the telephone out of the wall. He then dropkicked the television and threw the computer monitor. Defendant then grabbed Ms. Bush and started punching her in the face. He blackened both of her eyes, broke her nose, and loosened all of her teeth. Ms. Bush fell to her knees in front of him.\nThen, C.W., who was twelve years old at the time, came into the room with a baseball bat telling Defendant, \u201c[d]on\u2019t hit my Mama again.\u201d Defendant continued to move towards Ms. Bush, so C.W. hit Defendant in the stomach with the bat. Defendant turned to go after C.W., but Ms. Bush grabbed Defendant around the waist and held on to him for \u201ca while.\u201d Grabbing the bat from C.W., Defendant then began beating Ms. Bush with it \u2014 first on her arms, while she was holding th\u00e9m up, and then on her head \u201cover and over again\u201d after she dropped her arms. Ms. Bush fell to the fetal position, and she looked up only to be struck again with the bat. Ms. Bush lost consciousness. Defendant had crushed two of Ms. Bush\u2019s fingers, broken bones in her forearms and her hands, and cracked h\u00e9r skull.\nSoon after Ms. Bush regained consciousness, EMS and the Moore County Sheriff\u2019s Office arrived at the scene. Detective Sergeant Cathy Williams (\u201cDetective Williams\u201d) described C.W. and E.W. as \u201cbasically hysterical\u201d over what had happened to their mother. Both boys told Deputy Robert Langford (\u201cDeputy Langford\u201d): \u201cMy dad beat my mom.\u201d Along with two firefighters, Deputy Langford discovered Defendant in the backyard and took him into custody. Defendant testified that he could not remember anything after kicking the television and pulling the phone out of the wall. The next thing he recalled was waiting for the police by his truck, stabbing himself on the wrist, and asking the officer to shoot him.\nMeanwhile, Ms. Bush was rushed to the hospital for care, which included multiple surgeries inserting metal plates into her left arm and right hand. From conversations with EMS, Detective Williams \u201cwas uncertain ... if [Ms. Bush] was going to make it through the night.\u201d\nIt took several months for the open wound on Ms. Bush\u2019s head to heal and for Ms. Bush to fully recover her hearing, vision, and writing ability. At the time of the trial, Ms. Bush continued to suffer from non-positional proximal vertigo, and to this day, she has no sense of smell due to severed nerves.\nPrior to and at trial in June 2011, Defendant moved to dismiss one of the two indictments for assault contending that they constituted one continuous transaction. The trial court denied the motions. Both at the close of the State\u2019s evidence and before the case was sent to the jury, Defendant moved to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury for insufficient evidence, but the trial court denied both motions.\nOn 16 June 2011, the jury found Defendant not guilty of felony breaking and entering and attempted murder. However, it found Defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury, a Class C felony, see N.C. Gen. Stat. \u00a7 14-32(a) (2011); misdemeanor child abuse; and assault with a deadly weapon inflicting serious injury, a Class E felony, see N.C. Gen. Stat. \u00a7 14-32(b). Consolidating the convictions of misdemeanor child abuse and assault with a deadly weapon with intent to kill inflicting serious injury (09 CRS 54366), the trial court sentenced Defendant in the presumptive range to a term of 73 to 97 months. Regarding Defendant\u2019s conviction of assault with a deadly weapon inflicting serious injury (10 CRS 1555), Defendant admitted to three aggravating factors, and the trial court sentenced him in the aggravated range to a term of 31 to 47 months. Although defendant asked the trial court to consider mitigating factors, the trial court declined to find mitigating factors. Defendant\u2019s sentences were to run consecutively.\nOn 27 June 2011, Defendant filed written notice of appeal.\nII. Jurisdiction\nThis Court has jurisdiction to hear the instant case pursuant to N.C. Gen. Stat. \u00a7 7A-27(b) (2011).\nIII. Analysis\nDefendant first argues that the trial court erred by denying his motions to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury because there was insufficient evidence to show intent to kill. We disagree.\nOn a motion to dismiss, a trial court must consider: (1) \u201cwhether there is substantial evidence of each element of the offense charged;\u201d and (2) whether there is substantial evidence \u201cthat the defendant is the perpetrator.\u201d State v. Bonney, 329 N.C. 61, 76-77, 405 S.E.2d 145, 154 (1991). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). The evidence must be viewed in the light most favorable to the State, meaning that any inconsistencies are resolved in the State\u2019s favor and the State is entitled to \u201cthe benefit of every reasonable inference to be drawn in its favor from the evidence.\u201d State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987).\nDefendant\u2019s conviction for assault with a deadly weapon with intent to kill inflicting serious injury was based on his use of the bat to assault Ms. Bush. \u201cThe elements of assault with a deadly weapon with intent to kill inflicting serious injury are: (1) an assault, (2) with the use of a deadly weapon, (3) with an intent to kill, and (4) inflicting serious injury, not resulting in death.\u201d State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004).\n\u201cAn intent to kill is a matter for the State to prove . .. and is ordinarily shown by proof of facts from which an intent to kill may be reasonably inferred.\u201d State v. Thacker, 281 N.C. 447, 455, 189 S.E.2d 145, 150 (1972). Such intent may be inferred from \u201cthe nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances.\u201d State v. Barlowe, 337 N.C. 371, 379, 446 S.E.2d 352, 357 (1994) (citations and quotation marks omitted). Although an assault with a deadly weapon that results in serious injury does not establish a presumption of an intent to kill as a matter of law, Thacker, 281 N.C. at 455, 189 S.E.2d at 150, \u201can assailant must be held to intend the natural consequences of his deliberate act.\u201d State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (quotation marks and citation omitted).\nIn the present case, the nature and manner of the attack on Ms. Bush would support a reasonable inference that Defendant intended to kill Ms. Bush. Defendant hit Ms. Bush even after she fell to her knees. Defendant struck Ms. Bush repeatedly over the head with the baseball bat until she lost consciousness. Taking the evidence in the light most favorable to the State, there is no indication that Ms. Bush ever fought back. In contrast, the evidence establishes that Defendant viciously attacked Ms. Bush after she was on the ground and in the fetal position. Ms. Bush\u2019s wounds to her head, caused by the baseball bat, could have been fatal. Thus, both the nature and manner of Defendant\u2019s assault with the bat upon Ms. Bush presented sufficient evidence for a jury to conclude that Defendant had intent to kill.\nFurthermore, the circumstances surrounding the attack, including the conduct of the parties, provide additional evidence of intent to kill. Defendant and Ms. Bush \u25a0 had a volatile relationship that included two separation periods stemming from Defendant\u2019s aggressive behavior. Ms. Bush had also recently filed for divorce, and Defendant acknowledged that on the evening of the assault he was upset that she was attending a party because he \u201ccould lose her to a guy.\u201d Thus, Defendant\u2019s proffered motivation for his actions support an inference that he intended to kill her to prevent her from becoming involved with another man.\nBased on the nature, manner, and circumstances of the assault, we conclude that the trial court did not err in denying Defendant\u2019s motions to dismiss the assault with a deadly weapon with intent to kill inflicting serious injury charge. While Defendant correctly notes that the jury found Defendant not guilty of attempted murder and did not find intent to kill with respect to the assault committed with Defendant\u2019s fists, this is irrelevant to the present inquiry because our review only focuses on whether there was substantial evidence of intent to kill presented at trial. Here, we find there was substantial evidence, and therefore, Defendant\u2019s argument is overruled.\nNext, Defendant argues that the trial court erred by denying his motions to dismiss one of the two felony assault charges as he contends they constituted a single transaction. We disagree.\nPrior to trial, Defendant moved to dismiss one of the two felony assault charges on the grounds that permitting both charges would be a violation of double jeopardy since the assault constituted a single transaction. However, the trial court denied this motion.\n\u201cDouble jeopardy is prohibited both by the Fifth Amendment to the United States Constitution and [North Carolina\u2019s] common law.\u201d State v. McCoy, 174 N.C. App. 105, 115, 620 S.E.2d 863, 871 (2005). \u201cThe double jeopardy clause prohibits ... multiple convictions for the same offense.\u201d State v. Ezell, 159 N.C. App. 103, 106, 582 S.E.2d 679, 682 (2003). Thus, \u201c[i]n order for a criminal defendant to be charged and convicted of two separate counts of assault stemming from one transaction, the evidence must establish a distinct interruption in the original assault followed by a second assault[,] so that the subsequent assault may be deemed separate and distinct from the first.\u201d State v. Littlejohn, 158 N.C. App. 628, 635, 582 S.E.2d 301, 307 (2003) (quotation marks and citation omitted) (second alteration in original). In Littlejohn, this Court found no error where the defendant was convicted of two assaults that were distinct in time, resulted in injuries to separate parts of the victim\u2019s body, and where the second assault occurred only after the first assault had \u201cceased.\u201d Id. at 636-37, 582 S.E.2d at 307.\nSimilarly, in State v. Rambert, 341 N.C. 173, 175, 459 S.E.2d 510, 512 (1995), the defendant was charged with and convicted of three counts of discharging a firearm into occupied property. At trial, the State\u2019s evidence tended to establish that the victim was sitting in his car, parked in a grocery store parking lot. Id. at 176, 459 S.E.2d at 512. The defendant pulled up in another car beside the victim. Id. After they exchanged some words, the defendant produced a gun. Id. The victim ducked down in his car, and the defendant fired his gun at the victim\u2019s car. Id. The bullet entered through the front windshield. Id. The victim drove forward, and another bullet hit the passenger side door. Id. When the parties were approximately ten yards apart, the defendant pursued the victim and fired a final shot. Id. The bullet lodged in the car\u2019s bumper. Id. at 176, 459 S.E.2d at 512-13. The defendant challenged the convictions, arguing that they violated double jeopardy. Id. at 175, 459 S.E.2d at 511. However, our Supreme Court disagreed, noting the following factors in support of its decision: (1) \u201c[e]ach shot, fired from a pistol, as opposed to a machine gun or other automatic weapon, required that [the] defendant employ his thought processes each time he fired the weapon;\u201d (2) \u201c[e]ach act was distinct in time;\u201d and (3) \u201ceach bullet hit the vehicle in a different place.\u201d Id. at 176-77, 459 S.E.2d at 513.\nIn applying the Rambert factors to the present case, the State presented substantial evidence that there was a distinct interruption in the assaults.\nFirst, the assaults were the result of separate thought processes. In Rambert, our Supreme Court found separate thought processes for three gunshots because the shots were from a pistol, not an automatic weapon, and thus the \u201cdefendant employed] his thought processes each time he fired the weapon.\u201d Id. at 177, 459 S.E.2d at 513. If the brief amount of thought required to pull a trigger again constitutes a separate thought process, then surely the amount of thought put into grabbing a bat from a twelve-year-old boy and then turning to use that bat in beating a woman constitutes a separate thought process.\nSecond, the acts were distinct in time. The second assault occurred after Defendant had turned his attention away from Ms. Bush to C.W. Ms. Bush had fallen to her knees after the initial attack. When Defendant moved towards C.W., Ms. Bush grabbed Defendant around the waist, holding him for \u201ca while.\u201d The jury was specifically instructed that \u201cto find the defendant guilty of two separate assaults [,] you must find first that there was a distinct interruption in the original assault followed by a second assault.\u201d There was sufficient evidence from the above facts for a jury to determine that the two assaults were distinct in time.\nFinally, Ms. Bush sustained injuries on different parts of her body. The dissent concludes that the blows were all aim\u00e9d at the victim\u2019s head and were thus not in different places. However, the reason Ms. Bush sustained injuries on different parts of her body was because there was a break in the action during which time Defendant grabbed a bat and Ms. Bush put her arms up in order to protect her face. Because the two assaults were distinct in time and involved separate thought processes, the fact that both assaults were aimed at the head does not merge the offenses. Because there were multiple transactions, we find no error.\nDefendant lastly argues that the trial court erred in sentencing Defendant in the aggravated range for assault with a deadly weapon inflicting serious injury without considering mitigating factors. We agree.\nDefendant requested several mitigating factors, including positive employment history, good character/reputation in the community, provocation, and mental condition. \u201c[W]e will find the sentencing judge in error only when evidence of a statutory mitigating factor is both uncontradicted and manifestly credible.\u201d State v. Butler, 341 N.C. 686, 693-94, 462 S.E.2d 485, 489 (1995).\nThe evidence on provocation and on Defendant\u2019s mental condition was unclear and thus the trial court was not required to find either of those factors. Similarly, the State put on evidence that contradicted Defendant\u2019s evidence on good character/reputation in the community, so there was no requirement that the trial court find that factor.\nThere was, however, uncontradicted and manifestly credible evidence introduced of Defendant\u2019s positive employment history. Defendant introduced his military records, which included commendations and awards. This evidence was uncontradicted, and the credibility of the records was likewise not questioned. We therefore must find that the sentencing judge was in error in failing to find as a mitigating factor that Defendant had a positive employment history, and we therefore remand for resentencing.\nIV. Conclusion\nBecause we find there was substantial evidence that Defendant intended to kill Ms. Bush, we hold that the trial court did not err in denying his motion to dismiss for insufficient evidence the assault with a deadly weapon with intent to kill inflicting serious injury charge. We also hold that the trial court did not err in failing to dismiss one of the assault charges, as there were multiple transactions. Finally, we remand for resentencing as the trial court erred by failing to find as a mitigating factor that Defendant had a positive employment history.\nNO ERROR AT TRIAL; REMANDED FOR RESENTENCING.\nJudge CALABRIA concurs.\nJudge HUNTER, Robert C., concurs in part and dissents in part in a separate opinion.\n. We note that while the jury had the option to convict Defendant of assault with a deadly weapon with intent to kill inflicting serious injury based on his assault of Ms. Bush with his fists, the jury convicted him of the lesser-included offense of assault with a deadly weapon inflicting serious injury (10 CRS 1555).", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." }, { "text": "HUNTER, Robert C., Judge,\nconcurring in part and dissenting in part.\nWhile I agree with the majority that the trial court did not err in denying defendant\u2019s motions to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury because there was sufficient evidence to establish intent to kill, I conclude that defendant\u2019s actions constituted a single assault. Therefore, I must respectfully dissent in regard to defendant\u2019s double jeopardy claim, and I would vacate defendant\u2019s conviction for assault with a deadly weapon inflicting serious injury, the lesser felony, case number 10 CRS 1555. Accordingly, I would not address the merits of defendant\u2019s argument that the trial court erred in sentencing defendant in the aggravated range for this conviction.\nBackground\n. A brief recitation of the evidence presented at trial is as follows: In September of 1993 or 1994, defendant married Ms. Julie Bush (\u201cMs. Bush\u201d). During their marriage, they separated twice. The incident in question occurred on the evening of 24 October 2009 after Ms. Bush had returned home from a party. Soon after Ms. Bush returned home, their youngest son, E.W., ran upstairs and told her that defendant was at the back door. After she unlocked the back door, defendant pushed past her into the house and refused to leave. Ms. Bush told their oldest son, C.W., to call 9-1-1, but defendant pulled the telephone out of the wall. He kicked the television and threw the computer monitor. Defendant began punching Ms. Bush in the face, and she fell to her knees in front of him.\nThen, C.W. came into the room with a baseball bat telling defendant, \u201c[d]on\u2019t hit my Mama again.\u201d C.W. hit defendant in the stomach with the bat after defendant kept moving toward Ms. Bush. Defendant turned to go after C.W., but Ms. Bush grabbed defendant around the waist. Grabbing the bat from C.W., defendant then began beating Ms. Bush with it \u2014 first on her arms, while she was holding them up, and then on her head \u201cover and over again\u201d after she dropped her arms. Ms. Bush fell to the floor in the fetal position and, eventually, lost consciousness.\nSoon after Ms. Bush regained consciousness, EMS and the police from the Moore County Sheriffs Office arrived at the scene. Ms. Bush was rushed to the hospital.\nOn 16 June 2011, the jury found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury, a Class C felony, see N.C. Gen. Stat. \u00a7 14-32(a) (2011); misdemeanor child abuse; and assault with a deadly weapon inflicting serious injury, a Class E felony, see N.C. Gen. Stat. \u00a7 14-32(b). Consolidating the convictions of misdemeanor child abuse and assault with a deadly weapon with intent to kill inflicting serious injury (09 CRS 54366), the trial court sentenced defendant in the presumptive range to a term of 73 to 97 months imprisonment. Regarding defendant\u2019s conviction of assault with a deadly weapon inflicting serious injury (10 CRS 1555), defendant admitted to three aggravating factors, and the trial court sentenced him in the aggravated range to a term of 31 to 47 months imprisonment. Defendant\u2019s sentences were to run consecutively.\nArguments\nDefendant first argues that the trial court erred by denying his motions to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury because there was insufficient evidence to show intent to kill. I concur with the majority that based on the nature, manner, and circumstances of the assault, the trial court did not err in denying defendant\u2019s motion to dismiss this charge.\nNext, defendant argues that the trial court erred by denying his motions to dismiss one of the two felony assault charges as he contends they constituted a single transaction. I agree.\nPrior to trial, defendant moved to dismiss one of the two felony assault charges on the grounds that permitting both charges would be a violation of double jeopardy since the assault constituted a single transaction. However, the trial court denied this motion.\n\u201cDouble jeopardy is prohibited by both the Fifth Amendment to the United States Constitution and [North Carolina\u2019s] common law.\u201d State v. McCoy, 174 N.C. App. 105, 115, 620 S.E.2d 863, 871 (2005), disc. review denied, 628 S.E.2d 8 (2006). \u201cThe double jeopardy clause prohibits . . . multiple convictions for the same offense.\u201d State v. Ezell, 159 N.C. App. 103, 106, 582 S.E.2d 679, 682 (2003). Thus, \u201c[i]n order for a criminal defendant to be charged and convicted of two separate counts of assault stemming from one transaction, the evidence must establish a distinct interruption in the original assault followed by a second assault[,] so that the subsequent assault may be deemed separate and distinct from the first.\u201d State v. Littlejohn, 158 N.C. App. 628, 635, 582 S.E.2d 301, 307 (2003) (internal quotation marks omitted). In Littlejohn, this Court found no error where the defendant was convicted of two assaults that were distinct in time, the injuries occurred in separate parts of the victim\u2019s body, and where the second assault occurred only after the first assault had \u201cceased.\u201d Id. at 636-37, 582 S.E.2d at 307.\nSimilarly, in State v. Rambert, 341 N.C. 173, 175, 459 S.E.2d 510, 512 (1995), the defendant was charged with and convicted of three counts of discharging a firearm into occupied property. At trial, the State\u2019s evidence tended to establish that the victim was sitting in his car, parked in a grocery store parking lot. Id. at 176, 459 S.E.2d at 512. The defendant pulled up in another car beside the victim. Id. After they exchanged some words, the defendant produced a gun. Id. The victim ducked down in his car, and the defendant fired his gun at the victim\u2019s car. Id. The bullet entered through the front windshield. Id. The victim drove forward, and another bullet hit the passenger side door. Id. When the parties were approximately ten yards apart, the defendant pursued the victim and fired a final shot. Id. The bullet lodged in the car\u2019s bumper. Id. at 176, 459 S.E.2d at 513. The defendant challenged the convictions, arguing that they violated double jeopardy. Id. However, our Supreme Court disagreed, noting the following factors in support of its decision: (1) \u201c[e]ach shot, fired from a pistol, as opposed to a machine gun or other automatic weapon, required that [the] defendant employ his thought processes each time he fired the weapon\u201d; (2) \u201c[e]ach act was distinct in time\u201d; and (3) \u201ceach bullet hit the vehicle in a different place.\u201d Id. at 176-77, 459 S.E.2d at 513.\nIn State v. Spellman, 167 N.C. App. 374, 383, 605 S.E.2d 696, 703 (2004), this Court applied the rationale of Rambert to determine whether the defendant\u2019s convictions for assault with a deadly weapon on a government official and assault with a deadly weapon violated his constitutional protection from double jeopardy. In concluding that there was no violation of double jeopardy, this Court held that \u201cas in Rambert, the evidence in the instant case tends to show that defendant employed his thought process prior to committing the second assault, which occurred at a distinct and separate time after the first assault was completed.\u201d Id. at 383, 605 S.E.2d at 702.\nIn applying the Rambert factors to the present case, I conclude that the State did not present substantial evidence that there was a distinct interruption in the assaults. First, there was no evidence that defendant\u2019s actions were the result of separate thought processes. Although defendant did change weapons during the assault, that change was not due to a separate thought process. Defendant only came into possession of the bat when C.W. hit him with it. I find the facts of this case distinguishable from a situation where a defendant ceases an initial assault, obtains a different, weapon, and then renews his assault on a victim. For example, in Spellman, 167 N.C. App. at 378, 605 S.E.2d at 700, the defendant and a police officer got into an altercation. As the defendant was trying to drive away, the officer held onto the door of the defendant\u2019s truck. Id. After the officer was able to pull the defendant from the car, the truck ran over the officer\u2019s leg. Id. The defendant then got up, ran eighty feet, got back into the truck, and drove the truck toward the officer who was still lying on the ground. Id. at 383, 605 S.E.2d at 702. In holding that the facts supported defendant\u2019s convictions for two separate assaults, this Court concluded that \u201cthe evidence in the instant case tends to show that [the] defendant employed his thought process prior to committing the second assault.\u201d Id.\nIn contrast to Spellman, there was no evidence that defendant began his attack on Ms. Bush with the baseball bat based on a separate thought process. Instead, the evidence establishes that his actions were a continuation of his prior plan \u2014 his acquisition of the baseball bat was the result of happenstance, not purposeful intent. Moreover, the use of multiple weapons does not necessarily require a conclusion that the use of each weapon constitutes a separate assault. See McCoy, 174 N.C. App. at 116, 620 S.E.2d at 872 (holding that even though the defendant stabbed, beat, and threw the victim against the wall on one day and struck the victim with his hands and broke the victim\u2019s arm by twisting it the next day, the evidence only supported a conviction of one assault per day).\nIn applying the second Rambert factor, I believe that the evidence does not establish that defendant\u2019s acts were distinct in time. Although defendant turned away briefly to grab the bat from C.W., this momentary distraction is not enough to establish a distinct interruption necessary to sustain two assault charges. While the nature of the assault did escalate, there was no apparent break in the action to support a distinct cessation of defendant\u2019s initial attack so as to consider his use of the bat a separate assault.\nFinally, in applying the third Rambert factor, while Ms. Bush sustained injuries on different parts of her body when defendant was hitting her with the bat, her testimony establishes that the reason her arms were injured with the bat was because she was holding them up, presumably in an effort to protect her face. However, after she dropped them, defendant continued hitting her in the face with the bat. Thus, defendant was aiming for her head the entire time.\nBased on an application of the Rambert factors, while the evidence establishes that defendant\u2019s actions constituted a single continuous transaction that resulted in multiple injuries to Ms. Bush, I conclude that it does not establish two separate and distinct assaults. Accordingly, I would vacate defendant\u2019s conviction for assault with a deadly weapon inflicting serious injury, the lesser felony, case number 10 CRS 1555. I note that while defendant\u2019s use of his fists during the initial part of the attack did not establish an intent to kill, his continuation of the assault with the bat did. However, even if an assault escalates such that a defendant\u2019s later actions may support an inference of an intent to kill, a defendant should not be automatically precluded from asserting a double jeopardy claim simply because the escalation would allow the State to charge a defendant with a higher offense.\nFinally, defendant argues that the trial court erred in imposing a sentence in the aggravated range for assault with a deadly weapon inflicting serious injury without considering mitigating factors. However, since I would vacate defendant\u2019s conviction of assault with a deadly weapon inflicting serious injury, I would not reach the merits of defendant\u2019s argument.\nConclusion\nBecause I concluded that the evidence supported only one assault charge, I would vacate defendant\u2019s conviction for assault with a deadly weapon inflicting serious injury, case number 10 CRS 1555.", "type": "concurring-in-part-and-dissenting-in-part", "author": "HUNTER, Robert C., Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Creecy C. Johnson, for the State.", "Duncan B. McCormick for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TIMOTHY C. WILKES\nNo. COA12-387\nFiled 15 January 2013\n1. Assault \u2014 deadly weapon with intent to kill inflicting serious injury \u2014 intent to kill \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motions to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury because there was insufficient evidence to show intent to kill. Defendant\u2019s conviction was based on his use of a bat to assault his wife; both the nature and manner of the assault presented sufficient evidence for a jury to conclude that defendant had intent to kill.\n2. Assault \u2014 appellate review \u2014 substantial evidence at trial\u2014 jury findings \u2014 irrelevant\nIn an appeal from an assault prosecution arising from defendant\u2019s prolonged assault on his wife, including an assault with a bat, a jury finding that defendant was not guilty of attempted murder and the lack of a finding of intent to kill with respect to an assault with his fists were irrelevant. The inquiry focused only on whether there was substantial evidence of intent to kill presented at trial.\n3. Assault \u2014 two charges \u2014 not a single transaction\nAlthough defendant argued that the trial court erred by denying his motions to dismiss one of two felony assault charges since they constituted a single transaction, the State presented substantial evidence that there was a distinct interruption in the assaults in that the assaults involved a separate thought process, a time distinction, and injuries on different parts of the victim\u2019s body. The fact that both assaults were aimed at the head did not merge the offenses.\n4. Sentencing \u2014 mitigating factor \u2014 evidence of employment history\nThe sentencing judge erred by failing to find as a mitigating factor that defendant had a positive employment history where uncontradicted and manifestly credible evidence of defendant\u2019s positive employment history was introduced.\nJudge HUNTER, Robert C., concurring in part and dissenting in part.\nAppeal by defendant from judgment entered 16 June 2011 by Judge V. Bradford Long in Moore County Superior Court. Heard in the Court of Appeals 24 October 2012.\nAttorney General Roy Cooper, by Assistant Attorney General Creecy C. Johnson, for the State.\nDuncan B. McCormick for defendant-appellant." }, "file_name": "0233-01", "first_page_order": 243, "last_page_order": 256 }