Assault charges can take many different forms from relatively minor allegations of simple assault, to more serious accusations of assault on a female, and assault with deadly weapon inflicting serious injury.
The State carries the burden of proof for criminal charges. When involving allegations of an “assault,” one of the essential aspects of the evidence must center on whether the District Attorney can prove a criminal assault.
Interestingly the North Carolina General Statutes do not specifically define what is assault in North Carolina – Bill Powers, Charlotte Criminal Defense Attorney
That means the General Assembly has not defined, by statute, the prima facie, essential elements of the offense.
The criminal laws define things like assault on a female and what criminal acts constitute felony and misdemeanor assault charges; but, the underlying (and necessary) predicate offense of criminal assault is guided by the Common Law of North Carolina not statutory authority.
What is Common Law Assault and why is it important in NC?
In a recent opinion, the NC Supreme Court (NCSC) acknowledges the traditional common law aspects of assault.
That ordinarily necessitates delving into the specifics of the offense regarding attempts, or overt acts, to cause imminent bodily harm. In preparing a defense to charges, counsel consider whether there is an unequivocal appearance of attempting to use violence and force to cause some form of imminent (immediate) bodily harm or injury to the alleged victim.
That show of “menace of violence” or show of force, must be sufficient to put a victim of reasonable firmness in fear of some type of bodily harm and further that the bodily harm is immediately forthcoming or “imminent.”
The use of force on another, an “assault,” can be a threat of force involving bodily harm. Black’s Law Dictionary defines assault, in relevant part, as, “Popularly, any attack.”
What is an attack or show of force in North Carolina?
The NCSC acknowledges assault is a “broad concept,” and may in appropriate circumstances include more than one injury or physical contact with the victim.
Interestingly, such attack may involve a single punch, or pushing, or some other form of physical act or overt threat. At the same time, a single count of assault may be appropriate despite more than one punch or physical contact or attack on that same alleged victim.
Legal scholars generally agree that the NC criminal laws do not appear to empower the alleged victim to charge the defendant with multiple counts of assault for each-and-every punch thrown during a fight or affray.
The State, at the appellate level in North Carolina v. Jeremy Wade Dew, 2021 NCSC 124, in the published October 29 2021 opinion, concedes repeated physical contact does not necessarily indicate or merit prosecution for multiple charges.
The Supreme Court in Dew writes: The question of how to delineate between assaults — to know where one assault ends and another begins — in order to determine whether to state may charge defendant with multiple salts is an issue of first impression in our court.
The North Carolina Supreme Court, despite a longstanding, substantial historical presence and plethora of written precedents, has never opined on what is assault in North Carolina. That is interesting, if not an anomaly, in-and-of-itself.
Finding ourselves at the tail end of 2021, we are once again reminded North Carolina occasionally relies on British Common Law in defining criminal offenses – Bill Powers, Criminal Defense Lawyers in Charlotte
The North Carolina Court of Appeals has addressed the definition and meaning of assault on multiple occasions.
In a 2000 opinion, the Court of Appeals in North Carolina v. Brooks, 138 NC App 185, found the defendant could only be charged with one count of assault with a deadly weapon inflicting serious injury when the evidence failed to show a “distinct interruption” between three separate gun shots.
In another 2005 opinion, North Carolina v. Littlejohn, 158 NC App 105, the Court of Appeals found that a defendant accused of two counts of assault was appropriate when the criminal behavior took place at distinct/different times, and that each such assault resulted in separate and distinct injuries two different parts of the body of the victim.
Evidence presented by the State in its prosecution of assault must therefore prove a distinct interruption from the first assault, followed by an additional, secondary assault, such that the secondary assault may be deemed distinct from and separate from the first criminal act.
It can be somewhat difficult to determine whether the fact pattern indicates a ‘distinct interruption’ between each of the respective assaults – Bill Powers, Charlotte Defense Lawyer
What is a “Distinct Interruption” relative to multiple counts of Assault?
A “distinct interruption” is a term of art and may apply to an intervening event or unique factual pattern such as the opportunity to calm down and/or lapse of time (passage of time).
In its legal analysis, a Court may determine that a change in the locus of the assault or affray, some change in the momentum of the attack or interruption of the attack, or the existence of some other clean break between assaultive behaviors may indicate or otherwise delineate the termination of the first assault and advancement of a secondary and/or an additional assault.
Evidence of multiple injuries, which may be the result of repetitive blows or attacks, does not necessarily indicate or prove sufficient distinct interruptions.
As such, the Court may properly consider the nature and extent of the assaultive behavior, how it took place, when it took place, and whether there are distinctions in an event or a singular assault.
Substantial injuries or body bodily harm are not necessarily indicative of multiple assaults.
In fact, the Supreme Court advises “stacking charges” against the accused, without evidence of a distinct interruption or multiple, unrelated, or distinctly separate attacks, would be inappropriate.
Charlotte Criminal Defense Lawyer – Bill Powers
Our law firm helps people accused of assault in Charlotte.
If you stand accused of misdemeanor or felony assault, it is advisable to retain legal counsel immediately.
Politely decline to give a statement or answer questions. Advise law enforcement you wish to speak with an attorney.
Exercise your Constitutional Right to “Take the Fifth.”
Our law firm keeps the details of your inquiry private.
Call Bill Powers now to schedule a confidential consultation.