Criminal Practice — Assault – Lesser-Included Offenses – Jury Instructions

After a jailhouse fight, defendant was charged with assault with a deadly weapon inflicting serious injury. During the charge conference, the trial court agreed to instruct the jury on the lesser included offense of simple assault: “I think I’ll put [the instruction] in. I think there is some evidence … that these [injuries] are not that serious.” This statement and the jury instruction on the charge of simple assault indicate the trial court must have concluded that a rational juror could have found that the victim’s injuries were

not serious. The trial court thus erred by failing to grant defendant’s request to instruct the jury on the lesser included offense of assault with a deadly weapon.

Defendant is entitled to a new trial. Because we vacate the judgment entered upon defendant’s convictions (for assault with a deadly weapon inflicting serious injury and attaining habitual felon status) and remand for a new trial, defendant is not required to pay attorney’s fees associated with the vacated convictions. Therefore, we vacate the trial court’s civil judgment as to attorney’s fees.

State v. Huckabee (Lawyers Weekly No. 011-135-21, 9 pp.) (Jefferson Griffin, J.) Appealed from Richmond County Superior Court (Stephan Futrell, J.) Ann Cosper for the state; Daniel Dolan for defendant. 2021-NCCOA-353