If you have assault charges in Raleigh, the allegations may involve simple assault or assault on a female or even assault with deadly weapon inflicting serious injury. Each of those types of criminal matters are comprised of “essential elements.”
In order to prove someone guilty, the prosecutor must present evidence indicating the accused, the Defendant charged with criminal wrongdoing, is guilty of the underlying crime of criminal assault.
While that may seem straightforward enough, if not obvious, the criminal laws as established by the General Assembly do not specifically define what is an assault in the State of North Carolina.
The crime of assault, whether it is a misdemeanor or felony allegation, is subject to the common law of North Carolina – John Fanney, Raleigh Criminal defense Attorney
What is Assault?
The Supreme Court of North Carolina generally defines assault, following the common law, as an attempt, or the unequivocal appearance of attempting, or an overt act, through the use of violence and force, sufficient to cause some form of harm or injury to the person of another, that is both intentional and imminent (immediate).
Defense lawyers may refer to the show of force, which may be an overt threat of violence, or “menace of violence.” That show of force must be such that a person of reasonable mental firmness would fear imminent bodily harm.
The use of force, or assault, is a threat that causes the alleged victim to be reasonably apprehensive of offensive contact or some other immediate (imminent) harmful act. Black’s Law Dictionary in defining an assault sets forth in very general terms that it is, “Popularly, any attack.”
What is a Show of Force or Attack?
The North Carolina Supreme Court (NCSC) defines assault as a “broad concept” that can in appropriate circumstances include repetitive (more than one physical contact or attack) against the victim.
For example, an attack or show of force may involve a single thrown punch. Assaults may also involve allegations of multiple punches or blows or attacks that take place during a single affray (fight) and may still be prosecuted as a single count of assault.
There should not be multiple counts of ‘assault’ resulting from every thrown punch that takes place during a scuffle, affray, or fight – John Fanney, Raleigh Lawyer
In a recent Supreme Court opinion entitled State of North Carolina vs Jeremy Wade Dew, (2021-NCSC-124 – October 29 2021), the State concedes (at the appellate level) prosecution for multiple punches should result in a singular charge of assault, obviously subject to some exceptions.
As such, our courts review things such as the repeated nature of physical contact with the person bringing charges, the alleged victim, and deciding whether multiple assaults have occurred and/or whether the affray is, in fact, a singular assault.
Fortunately, the North Carolina Court of Appeals has reviewed the issue on multiple prior occasions. In North Carolina vs. Brooks, a 2000 opinion, the Court found the accused could only be charged with a singular count of assault with a deadly weapon inflicting serious injury when the evidence failed to show a “distinct interruption” between three separate gunshots.
Similarly, the Court of Appeals also ruled in North Carolina vs. Littlejohn, a 2005 opinion, the defendant could be convicted of two counts of assault when the criminal acts took place at distinct times and resulted in distinct injuries to different parts of the body of the same victim. In such matter, the defendant could be in fact convicted of two separate counts of assault in North Carolina due to the distinct interruption between two separate and distinct instances of assaultive conduct.
It is a relatively complicated area of law. Each case is unique in its fact pattern and therefore deserves the attention of an experienced criminal defense lawyer in Raleigh.
We are interested in determining whether there is in fact a distinct interruption between the assaults alleged – John Fanney, Criminal Lawyer in Raleigh NC
What is a distinct interruption?
A distinct interruption may involve an intervening event such as the lapsing of time sufficient to show a “cooling off” period.
Distinct interruptions may also involve a change in location, a change in the attack momentum or interruption of the affray, or some other form of break in the allege assault that is clear and delineates the end of a first or primary assault and the beginning of a secondary or other additional assault or assaults.
To be clear, evidence presented by the State indicating multiple injuries, without more, likely would not serve as sufficient evidence of a distinct interruption. In that instance, the Defendant should be charged with a singular count of assault in North Carolina.
The magnitude of the injury or harm to the victim is very much considered by the Court, if the defendant is convicted. That is a part of sentencing and the sentencing hearing as mandated by the NC Criminal Laws.
Raleigh Criminal Defense Lawyer John Fanney
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