State v. Wilkes

736 S.E.2d 582

STATE of North Carolina

v.Timothy C. WILKES.

No. COA12–387.

Court of Appeals of North Carolina.

Jan. 15, 2013.

Appeal by defendant from judgment entered 16 June 2011 by Judge V. Bradford Long in Moore County Superior Court. Heard in the Court of Appeals 24 October 2012.

Attorney General Roy Cooper, by Assistant Attorney General Creecy C. Johnson, for the State.

Duncan B. McCormick, Lillington, for defendant-appellant.

HUNTER, JR., ROBERT N., Judge.

Timothy C. Wilkes (“Defendant”) appeals from judgment entered against him after a jury found him guilty of assault with a deadly weapon with intent to kill inflicting serious injury, misdemeanor child abuse, and assault with a deadly weapon inflicting serious injury. On appeal, Defendant argues that the trial court erred by: (1) denying Defendant's motions to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury; (2) denying Defendant's motions to dismiss one of the two felony assault charges; and (3) imposing a sentence in the aggravated range for Defendant's assault with a deadly weapon inflicting serious injury conviction. After careful review, we find no error at trial and remand for resentencing.

I. Factual & Procedural Background

The State's evidence at trial tended to establish the following: In September of 1993 or 1994, Defendant married Ms. Julie Bush (“Ms. Bush”). The couple had two sons together, C.W. and E.W., and Ms. Bush also had a son, Andrew, from a previous relationship. At trial, Andrew, C.W., and E.W. were ages twenty-three, fourteen, and twelve, respectively. Ms. Bush and Defendant were married for fifteen years. During that time, the couple separated twice; the first separation occurred after Defendant pushed Ms. Bush against a wall and the second followed an incident where Defendant punched Andrew in the face several times. The second separation lasted from October 2008 through October 2009. In October 2009, Ms. Bush retained an attorney and told Defendant that she wanted a divorce.

The incident in question occurred on the evening of 24 October 2009 after Ms. Bush had returned from a birthday party. Defendant later testified that he was upset that Ms. Bush had attended the party because he “could lose her to a guy over there.” Soon after Ms. Bush returned home, E.W. came running upstairs to inform her that Defendant was at the back door. Ms. Bush unlocked the back door to “see what [Defendant] wanted because ... [she] didn't expect him to be there.” Defendant pushed past her into the house and refused to leave. Ms. Bush told C.W. to call 9–1–1, but Defendant pulled the telephone out of the wall. He then dropkicked the television and threw the computer monitor. Defendant then grabbed Ms. Bush and started punching her in the face. He blackened both of her eyes, broke her nose, and loosened all of her teeth. Ms. Bush fell to her knees in front of him.

Then, C.W., who was twelve years old at the time, came into the room with a baseball bat telling Defendant, “[d]on't hit my Mama again.” Defendant continued to move towards Ms. Bush, so C.W. hit Defendant in the stomach with the bat. Defendant turned to go after C.W., but Ms. Bush grabbed Defendant around the waist and held on to him for “a while.” Grabbing the bat from C.W., Defendant then began beating Ms. Bush with it—first on her arms, while she was holding them up, and then on her head “over and over again” after she dropped her arms. Ms. Bush fell to the fetal position, and she looked up only to be struck again with the bat. Ms. Bush lost consciousness. Defendant had crushed two of Ms. Bush's fingers. broken bones in her forearms and her hands, and cracked her skull.

Soon after Ms. Bush regained consciousness, EMS and the Moore County Sheriff's Office arrived at the scene. Detective Sergeant Cathy Williams (“Detective Williams”) described C.W. and E.W. as “basically hysterical” over what had happened to their mother. Both boys told Deputy Robert Langford (“Deputy Langford”): “My dad beat my mom.” Along with two firefighters, Deputy Langford discovered Defendant in the backyard and took him into custody. Defendant testified that he could not remember anything after kicking the television and pulling the phone out of the wall. The next thing he recalled was waiting for the police by his truck, stabbing himself on the wrist, and asking the officer to shoot him.

Meanwhile, Ms. Bush was rushed to the hospital for care, which included multiple surgeries inserting metal plates into her left arm and right hand. From conversations with EMS, Detective Williams “was uncertain ... if [Ms. Bush] was going to make it through the night.”

It took several months for the open wound on Ms. Bush's head to heal and for Ms. Bush to fully recover her hearing, vision, and writing ability. At the time of the trial, Ms. Bush continued to suffer from non-positional proximal vertigo, and to this day, she has no sense of smell due to severed nerves.

Prior to and at trial in June 2011, Defendant moved to dismiss one of the two indictments for assault contending that they constituted one continuous transaction. The trial court denied the motions. Both at the close of the State's evidence and before the case was sent to the jury, Defendant moved to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury for insufficient evidence, but the trial court denied both motions.

On 16 June 2011, the jury found Defendant not guilty of felony breaking and entering and attempted murder. However, it found Defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury, a Class C felony, seeN.C. Gen.Stat. § 14–32(a) (2011); misdemeanor child abuse; and assault with a deadly weapon inflicting serious injury, a Class E felony, seeN.C. Gen.Stat. § 14–32(b). Consolidating the convictions of misdemeanor child abuse and assault with a deadly weapon with intent to kill inflicting serious injury (09 CRS 54366), the trial court sentenced Defendant in the presumptive range to a term of 73 to 97 months. Regarding Defendant's conviction of assault with a deadly weapon inflicting serious injury (10 CRS 1555), Defendant admitted to three aggravating factors, and the trial court sentenced him in the aggravated range to a term of 31 to 47 months. Although defendant asked the trial court to consider mitigating factors, the trial court declined to find mitigating factors. Defendant's sentences were to run consecutively.

On 27 June 2011, Defendant filed written notice of appeal.

II. Jurisdiction

This Court has jurisdiction to hear the instant case pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).

III. Analysis

Defendant first argues that the trial court erred by denying his motions to dismiss the charge of assault with a deadly weapon with intent to kill inflicting serious injury because there was insufficient evidence to show intent to kill. We disagree.

On a motion to dismiss, a trial court must consider: (1) “whether there is substantial evidence of each element of the offense charged;” and (2) whether there is substantial evidence “that the defendant is the perpetrator.” State v. Bonney, 329 N.C. 61, 76–77, 405 S.E.2d 145, 154 (1991). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). The evidence must be viewed in the light most favorable to the State, meaning that any inconsistencies are resolved in the State's favor and the State is entitled to “the benefit of every reasonable inference to be drawn in its favor from the evidence.” State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987).

Defendant's conviction for assault with a deadly weapon with intent to kill inflicting serious injury was based on his use of the bat to assault Ms. Bush.¹ “The elements of assault with a deadly weapon with intent to kill inflicting serious injury are: (1) an assault, (2) with the use of a deadly weapon, (3) with an intent to kill, and (4) inflicting serious injury, not resulting in death.” State v. Tirado, 358 N.C. 551, 579, 599 S.E.2d 515, 534 (2004).

“An intent to kill is a matter for the State to prove ... and is ordinarily shown by proof of facts from which an intent to kill may be reasonably inferred.” State v. Thacker, 281 N.C. 447, 455, 189 S.E.2d 145, 150 (1972). Such intent may be inferred from “the nature of the assault, the manner in which it was made, the conduct of the parties, and other relevant circumstances.” State v. Barlowe, 337 N.C. 371, 379, 446 S.E.2d 352, 357 (1994) (citations and quotation marks omitted). Although an assault with a deadly weapon that results in serious injury does not establish a presumption of an intent to kill as a matter of law, Thacker, 281 N.C. at 455, 189 S.E.2d at 150, “an assailant must be held to intend the natural consequences of his deliberate act.” State v. Grigsby, 351 N.C. 454, 457, 526 S.E.2d 460, 462 (2000) (quotation marks and citation omitted).

In the present case, the nature and manner of the attack on Ms. Bush would support a reasonable inference that Defendant intended to kill Ms. Bush. Defendant hit Ms. Bush even after she fell to her knees. Defendant struck Ms. Bush repeatedly over the head with the baseball bat until she lost consciousness. Taking the evidence in the light most favorable to the State, there is no indication that Ms. Bush ever fought back. In contrast, the evidence establishes that Defendant viciously attacked Ms. Bush after she was on the ground and in the fetal position. Ms. Bush's wounds to her head, caused by the baseball bat, could have been fatal. Thus, both the nature and manner of Defendant's assault with the bat upon Ms. Bush presented sufficient evidence for a jury to conclude that Defendant had intent to kill.

Furthermore, the circumstances surrounding the attack, including the conduct of the...