Heard in the Court of Appeals April 10, 2014.
Cleveland County. Nos. 12 CRS 54858-60. J. Thomas Davis, Judge.
Attorney General Roy Cooper, by Special Deputy Attorney General Patrick S. Wooten, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Paul M. Green, for defendant-appellant.
Robert N. HUNTER, JR., Judge. Judges STROUD and DILLON concur.
Appeal by defendant from judgments and commitments
entered 12 April 2013 by Judge J. Thomas Davis in Cleveland County Superior
Robert N. HUNTER, JR., Judge.
Garry Jerome Jamison (" Defendant" ) appeals from judgments and commitments adjudging him guilty of first degree burglary, assault inflicting serious bodily injury, and assault on a female. Defendant contends that the trial court erred in denying his
motion to dismiss the charges of assault inflicting serious bodily injury and first degree burglary. Defendant also contends that the trial court erred in allowing him to be convicted of both assault inflicting serious bodily injury and assault on a female based on the same underlying conduct. For the following reasons, we hold that the trial court properly denied Defendant's motion to dismiss, but erred in convicting and sentencing Defendant for both categories of assault.
I. Factual & Procedural History
The facts of Defendant's case are not in dispute. Evidence presented at trial showed the following.
In April or May of 2012, Defendant's nine year relationship with his then-girlfriend, Amber Price, ended. During their relationship, Defendant and Ms. Price had two children together. After their break-up, Defendant moved out and interacted with Ms. Price only to arrange visitation with the children.
On 25 August 2012, however, Defendant telephoned Ms. Price repeatedly in order to see her the following day, Ms. Price's birthday. Ms. Price refused to see Defendant and told him that she was spending time at her parents' house with the children. That evening, while the children were with their grandparents, Ms. Price went to celebrate her birthday at her best friend Brittney Stevens' house. In addition to Ms. Price and Ms. Stevens, Ms. Stevens' two children and the children's father were present at the home.
Around 11:40 p.m., Defendant called Ms. Price demanding that she come get him and spend time with him for her birthday. Ms. Price again refused. Defendant told Ms. Price that if he found out that she was not at home with the children, he would kill her. While Ms. Price believed Defendant's threat to be credible, she remained at the party because she did not think Defendant knew that she was at Ms. Stevens' home. Ms. Price's testimony revealed, however, that she often celebrated her birthday with Ms. Stevens, a fact that was well-known by Defendant.
Sometime around midnight, Ms. Price heard a voice she recognized as Defendant's shouting profanities and making noise outside of Ms. Stevens' home. Upon hearing Defendant's voice, Ms. Price immediately attempted to close the front door to keep Defendant out of the house. Testimony indicated that the screen door was already closed, but not the front door itself. While Ms. Price attempted to close the front door, Defendant forced his way through the door and entered the home. Ms. Price, fearful for her life, attempted to run from Defendant, but could not escape. Defendant grabbed Ms. Price by the hair, knocked her to the ground, and began to beat her.
Meanwhile, Ms. Stevens took her two children and placed them in her car, where they remained with their father during the incident. While outside, Ms. Stevens heard Ms. Price screaming for help. Ms. Stevens went back into the house and attempted to place herself between Defendant and Ms. Price. Defendant continued to kick and beat Ms. Price, but did not harm Ms. Stevens. After the beating, Defendant told Ms. Stevens that it was nothing against her or her family, but that Ms. Price was a " lying bitch." Thereafter, Defendant left the premises and Ms. Stevens called the police. Defendant was subsequently arrested on 6 September 2012.
On 11 and 12 April 2013, Defendant was tried in Cleveland County Superior Court on charges of first degree burglary, assault inflicting serious bodily injury, and assault on a female. Defendant was convicted of all three crimes. The trial court sentenced Defendant to an active sentence of 64-89 months imprisonment for the first degree burglary. With respect to the assault convictions, Defendant received an additional consecutive sentence of 16-29 months imprisonment, which ...