Heard in the Court of Appeals November 19, 2014.
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Karen A. Blum, for the State.
Kevin P. Bradley, for Defendant-appellant.
DILLON, Judge. Judges BRYANT and DIETZ concur.
Appeal by Defendant from judgments entered 24 January
2014 by Judge Robert F. Floyd, Jr. in Robeson County Superior Court No.
Samuel Aaron Jacobs (" Defendant" ) appeals from convictions for assault with a deadly weapon with intent to kill inflicting serious injury, attempted second-degree kidnapping, and violation of a domestic violence protective order with a deadly weapon. For the following reasons, we reverse and remand for resentencing.
On 14 March 2011, Defendant was indicted for attempted first-degree murder; first-degree kidnapping, enhanced by knowingly violating a domestic violence protective order pursuant to G.S. 50B-4.1(d); assault with a deadly weapon with intent to kill inflicting serious injury (" AWDWIKISI" ), enhanced by knowingly violating a domestic violence protective order pursuant to G.S. 50B-4.1(d); and violation of a domestic violence protective order with the use of a deadly weapon.
Defendant was tried on all charges at the 13 January 2014 Criminal Session of Robeson County Superior Court. The State's evidence tended to show that in September 2010, Christy Smith received a domestic violence protective order (" DVPO" ), valid for one year against Defendant to prevent him from contacting her. Five months later, Ms. Smith was confronted by Defendant at a gas pump outside a convenience store. During the encounter, Defendant stabbed Ms. Smith multiple times before she was able to escape into the store.
The jury acquitted Defendant of the attempted first-degree murder charge. The jury, however, found Defendant guilty of three crimes: (1) attempted second-degree kidnapping, a Class F felony, enhanced to a Class D felony pursuant to N.C. Gen. Stat. § 50B-4.1(d) because Defendant knew the behavior was in violation of a DVPO; (2) AWDWIKISI, a Class C felony, enhanced to a Class B2 felony also pursuant to G.S. 50B-4.1(d); and (3) violation of a DVPO with a deadly weapon pursuant to G.S. 50B-4.1(g), a Class H felony.
The trial court sentenced Defendant to a term of 180 to 225 months of imprisonment for the AWDWIKISI conviction; a consecutive term of 73 to 97 months of imprisonment for the attempted second-degree kidnapping conviction; and a consecutive term of 8 to 10 months of imprisonment for the violation of a DVPO ...