Criminal Practice – Felony Assault & Assault in the Presence of a Minor – Habitual Misdemeanor Assault

For the same conduct, defendant was convicted of (1) assault with a deadly weapon with intent to kill inflicting serious injury, a felony; (2) assault inflicting serious injury in the presence of a minor, a misdemeanor; and (3) habitual misdemeanor assault. Under State v. Fields, 374 N.C. 629, 843 S.E.2d 186 (2020), the trial court should not have sentenced defendant for the latter two convictions.

Remanded for resentencing.

G.S. § 14-33(c)(1) states, “(c) Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or she: (1) Inflicts serious injury upon another person or uses a deadly weapon . . . .”

The offense of assault with a deadly weapon with intent to kill inflicting serious injury (AWDWIKISI) is a Class C felony, G.S. § 14-32(a), thereby providing greater punishment than the misdemeanor offense of assault inflicting serious injury in the presence of a minor. Consequently, defendant’s assaultive conduct against victim Shaneekqua David was “covered under some other provision of law providing greater punishment.” And just as in Fields, “[o]nce defendant was found guilty of both misdemeanor assault and felony assault, this invoked the prefatory language of the misdemeanor assault statute, which served to invalidate the misdemeanor assault [inflicting serious injury in the presence of a minor] conviction.” Accordingly, the trial court erred by sentencing defendant for assault inflicting serious injury in the presence of a minor where the offense arose out of the same assaultive act as the AWDWIKISI.

Furthermore, defendant’s AWDWIKISI conviction triggered § 14-33(c)’s prefatory language, which served to invalidate the misdemeanor assault inflicting serious injury in the presence of a minor conviction. Consequently, defendant’s conduct was not deemed to constitute a violation of that statute. Thus, absent a violation of the misdemeanor assault statute, defendant could not be guilty of habitual misdemeanor assault, and as a result, the trial court also erred in sentencing him for that offense.

Remanded.

State v. Teal (Lawyers Weekly No. 012-048-23, 11 pp.) (Valerie Zachary, J.) Appealed from Scotland County Superior Court (Richard Kent Harrell, J.) Christine Wright for the state; Narendra Ghosh for defendant. N.C. App. Unpub.