When can the State bring Assault Charges?
Whether it’s a charge for assault with deadly weapon inflicting serious injury, simple assault, or even misdemeanor assault on a female, an “assault” is an essential element to such criminal
That means, for the State to prove someone guilty beyond a reasonable doubt, the prosecutor bears the burden of proof to show the person accused of criminal wrongdoing is guilty of the underlying crime of criminal assault.
The NC criminal laws (defense lawyers may refer to that as the “General Statutes”) do not provide a statutory definition of what is assault in North Carolina. North Carolina vs. Floyd, 369 NC 329 (2016).
The crime of ‘assault’ is governed by and subject to the common law rules – Danny Glover, OBX Criminal Defense Lawyer
The North Carolina Supreme Court defines, generally, the common law offense of simple assault as an attempt or overt act or the unequivocal appearance of attempting, with violence and force, to do some form of immediate harm or injury to the person of another.
That requires a show of force or menace of violence (overt threat of violence) sufficient to put a victim of reasonable mental firmness in fear of a bodily harm that is imminent or immediately forthcoming.
Assault is a threat or use of force on another that causes that person to have a reasonable apprehension of immediate harmful or offensive contact. Black’s Law Dictionary also refers to an assault as, “popularly, any attack.”
Attack or Show of Force
The North Carolina Supreme Court opines assault is necessarily a “broad concept” that may include more than one contact with the victim.
As an example, a show of force or attack can refer to a single punch; but, it also can cover allegations involving multiple thrown punches in a single fight and still be properly prosecuted as a single assault.
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Further, the North Carolina General Assembly does not appear to enable a victim to charge someone with multiple counts of simple assault for every punch thrown during a fight. The State concedes such at the appellate level in North Carolina vs. Jeremy Wade Dew, No. 285PA20 / 2021-NCSC-124 – October 29, 2021).
As a result, the Supreme Court looks beyond the total number of punches or the repeated nature of physical contact with the alleged victim in determining whether more than one assault has occurred, such that the prosecutor may seek convictions for multiple counts of assault.
The NCSC writes in North Carolina v. Dew (2021):
The question of how to delineate between assaults — to know where one assault ends and another begins — in order to determine whether the State may charge a defendant with multiple assaults is an issue of first impression in our court.
The NC Court of Appeals has addressed the issue on more than one occasion. See: North Carolina v. Brooks, 138 NC App 185 (2000), wherein the Defendant could only be charged with one count of assault with a deadly weapon inflicting serious injury where the evidence shows no “distinct interruption” between each of three gunshots.
What does Assault with a Deadly Weapon mean?
In North Carolina v. Littlejohn, 158 NC App 105 (2005), the Defendant accused of two counts of assault that took place at distinct times, resulting in distinct injuries to different parts of the body of the victim, could be convicted of two counts of assault.
The evidence presented by the State must prove or show 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.
It can be difficult to determine whether there is a “distinct interruption” between alleged assaults.
What constitutes a Distinct Interruption?
An intervening event may qualify as a Distinct Interruption, such as the opportunity to calm down, thus resulting in a lapse of time.
Other Distinct Interruptions may include a change in location, an interruption resulting in a change in the attack momentum, or some other clear break that delineates the end of the first assault and the beginning of a second or other additional assault.
Evidence of distinct, multiple injuries and nothing more does not serve as sufficient evidence of an interruption, to the level of a “distinct interruption” allowing for the accused to be charged with more than one count of assault.
The nature, extent, and magnitude of harm and injury may be considered by the sentencing Court, in the event of a conviction.
Substantial bodily harm does not, in-and-of-itself, permit “stacking” of charges against the accused without sufficient evidence of a distinct interruption.
OBX Criminal Lawyer – Danny Glover, Jr.
If you face assault charges on the Outer Banks of North Carolina, Danny Glover, Jr., is available for consultation.
We provide a free consultation for OBX criminal charges. Call Danny now to schedule your appointment.