             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA18-673

                               Filed: 16 April 2019

Durham County, Nos. 15 CRS 59893, 17 CRS 444

STATE OF NORTH CAROLINA

            v.

MELVIN LAMAR FIELDS


      Appeal by Defendant from Judgments entered 12 January 2018 by Judge Paul

C. Ridgeway in Durham County Superior Court. Heard in the Court of Appeals 14

February 2019.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Lisa
      Bradley, for the State.

      Richard Croutharmel for defendant-appellant.


      HAMPSON, Judge.


                     Factual and Procedural Background

      Melvin Lamar Fields (Defendant) appeals from Judgments adjudicating him

guilty of (1) Assault Inflicting Serious Bodily Injury and (2) Habitual Misdemeanor

Assault. The Record before us demonstrates the following:

      On 15 August 2016, a Grand Jury indicted Defendant for Malicious Maiming

of Privy Member and Assault Inflicting Serious Bodily Injury. On 6 February 2017,

the Grand Jury entered a superseding indictment for Attempted Malicious

Castration or Maiming of a Privy Member and Assault Inflicting Serious Bodily
                                           STATE V. FIELDS

                                          Opinion of the Court



Injury. The Grand Jury additionally indicted Defendant for Assault, and for Habitual

Misdemeanor Assault, a separate substantive offense. These indictments alleged, on

2 November 2015, Defendant attacked and tore the scrotum of A.R.,1 a transgender

woman. In advance of trial, Defendant stipulated to two prior misdemeanor assaults

as elements of Habitual Misdemeanor Assault.

      At the close of the State’s evidence, Defendant moved to dismiss the charges

against him on the grounds of insufficiency of the evidence. Specifically, Defendant

alleged the “evidence is insufficient as a matter of law on every element of each charge

to support submission of the charge to the jury,” and “there is a variance between the

crime alleged in the indictment and the crime for which the State’s evidence may

have been sufficient for submission to the jury[.]” Defendant also argued, “as it

relates to the attempted malicious maiming indictment, the [S]tate has failed to show

there was . . . any specific intent . . . with malice to maim, disfigure, or render

impotent” A.R., A.R. was “not permanently injured,” and “the [S]tate has failed to

show that there was serious bodily injury” to A.R. The trial court denied the Motion.

Defendant declined to offer evidence on his own behalf and renewed his Motion to

Dismiss, which the trial court again denied.

      The trial court submitted to the jury the two felony charges of Attempted

Castration or Maiming and Assault Inflicting Serious Bodily Injury. Rather than



      1   Initials are used to protect the victim.

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                                  Opinion of the Court



submit the charge of Habitual Misdemeanor Assault, the trial court submitted the

underlying predicate misdemeanor offense of Assault Inflicting Serious Injury,

pursuant to N.C. Gen. Stat. § 14-33(c)(1).

      The jury returned verdicts finding Defendant not guilty of Attempted

Castration or Maiming, guilty of Assault Inflicting Serious Bodily Injury, and guilty

of Assault Inflicting Serious Injury. The jury further found as an aggravating factor

Defendant took advantage of a position of trust or confidence to commit the offense.

      The trial court found Defendant had a prior felony record level of III. The court

sentenced Defendant to a minimum of 19 months and a maximum of 32 months, in

the presumptive range, for Assault Inflicting Serious Bodily Injury; and a minimum

of 9 months and a maximum of 20 months, in the presumptive range, for Habitual

Misdemeanor Assault; to be served consecutively in the custody of the North Carolina

Department of Adult Correction. Defendant appeals.

                                       Issues

      The dispositive issues raised by Defendant in this case are: (I) Whether there

was sufficient evidence of a “serious bodily injury” to submit the charge of Assault

Inflicting Serious Bodily Injury to the jury; and (II) Whether the trial court erred in

entering judgment on the Habitual Misdemeanor Assault conviction, predicated on

the Defendant’s conviction for misdemeanor Assault Inflicting Serious Injury, in light




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                                   STATE V. FIELDS

                                  Opinion of the Court



of Defendant’s conviction for felony Assault Inflicting Serious Bodily Injury arising

from the same conduct.

                                      Analysis

I. Assault Inflicting Serious Bodily Injury

      In his first argument, Defendant contends the trial court erred in failing to

dismiss the charge of Assault Inflicting Serious Bodily Injury. We disagree.

      A. Standard of Review

      “This Court reviews the trial court’s denial of a motion to dismiss de novo.”

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007).

      “ ‘Upon defendant’s motion for dismissal, the question for the Court is whether

there is substantial evidence (1) of each essential element of the offense charged, or

of a lesser offense included therein, and (2) of defendant’s being the perpetrator of

such offense. If so, the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373,

378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914,

918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).

      B. Serious Bodily Injury

      Our General Statutes define the offense of Assault Inflicting Serious Bodily

Injury as follows:

             Unless the conduct is covered under some other provision
             of law providing greater punishment, any person who
             assaults another person and inflicts serious bodily injury is
             guilty of a Class F felony. “Serious bodily injury” is defined


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                                  Opinion of the Court



             as bodily injury that creates a substantial risk of death, or
             that causes serious permanent disfigurement, coma, a
             permanent or protracted condition that causes extreme
             pain, or permanent or protracted loss or impairment of the
             function of any bodily member or organ, or that results in
             prolonged hospitalization.

N.C. Gen. Stat. § 14-32.4(a) (2017). Thus, the offense requires the State to show (1)

an assault, and (2) the assault inflicted “serious bodily injury,” as defined above. On

appeal, as at trial, Defendant contends the State’s evidence failed to establish this

second element–whether Defendant’s conduct resulted in “serious bodily injury.”

      The evidence at trial tended to show after the assault, A.R. had a long rip in

her genitals; A.R. required 15 stitches and pain medication; A.R. remained out of

work for two weeks and upon return to work was placed on modified duties; A.R.

continued to suffer pain for three months, and it was six months before the pain

completely abated. A.R. has a large, jagged scar from the assault. Additionally,

A.R.’s doctor testified an injury like A.R.’s “would be significantly painful[.]”

However, Defendant contends A.R. suffered no serious, permanent disfigurement and

no protracted condition causing her extreme pain.

      Our courts have consistently recognized whether a serious bodily injury has

been inflicted depends upon the facts of each case and is generally for the jury to

decide under appropriate instructions. Indeed, this Court has held a trial court

properly denied a defendant’s motion to dismiss under similar facts on numerous

occasions. For example, we have held the State presented evidence of “serious bodily


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                                   Opinion of the Court



injury” sufficient for a jury to decide (1) where the victim testified his injuries were

“very painful[,]” he suffered pain in his mouth for about a month, and a doctor

testified those injuries caused “severe” and “extreme” pain, State v. Brown, 177 N.C.

App. 177, 188, 628 S.E.2d 787, 794 (2006); (2) where the victim suffered a broken jaw

which was wired shut for two months, along with damage to his teeth, broken ribs,

and back spasms requiring emergency room visits, and a doctor testified the victim’s

broken jaw could cause “quite a bit” of pain and discomfort, State v. Williams, 150

N.C. App. 497, 503-04, 563 S.E.2d 616, 620 (2002); and (3) where the victim suffered

broken bones in her face, a broken hand, a cracked knee, and an eye bruised so badly

it was still problematic at trial, as well as pain lasting five to six weeks after the

attack, State v. Jamison, 234 N.C. App. 231, 235-36, 758 S.E.2d 666, 670 (2014).

      In the instant case, A.R.’s injury required stitches, pain medication, time off

from work, and modified duties once she resumed work. Her pain lasted for as much

as six months, and her doctor described it as “significantly painful.” This evidence,

taken together and giving the State the benefit of every reasonable inference, tends

to show a “permanent or protracted condition that causes extreme pain.” Moreover,

the assault left A.R. with a significant, jagged scar, which would support a finding of

“serious permanent disfigurement.” Thus there is substantial evidence supporting a

finding of “serious bodily injury” as defined by statute. N.C. Gen. Stat. § 14-32.4(a).




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                                  Opinion of the Court



Accordingly, we hold the trial court did not err in denying Defendant’s motion to

dismiss.

II. Habitual Misdemeanor Assault

      In his second argument, Defendant contends there was insufficient evidence to

submit the predicate misdemeanor of Assault Inflicting Serious Injury to the jury.

Alternatively, Defendant contends once the jury returned its verdict, including

finding Defendant guilty of the Class F felony of Assault Inflicting Serious Bodily

Injury, the trial court was required to arrest judgment on misdemeanor Assault

Inflicting Serious Injury and to not enter judgment on Habitual Misdemeanor

Assault. Specifically, Defendant argues N.C. Gen. Stat. § 14-33(c) statutorily

mandates he could not be convicted and sentenced for misdemeanor Assault Inflicting

Serious Injury because he was convicted and sentenced for felony Assault Inflicting

Serious Bodily Injury, which imposes greater punishment, for the same conduct.

      We summarily conclude, for the essential reasons stated in Section I, above,

the evidence was sufficient to submit the issue of Assault Inflicting Serious Injury to

the jury. We are, however, constrained to agree that once Defendant was convicted of

a Class F felony assault, the trial court was required to arrest judgment on the

misdemeanor assault conviction and not enter judgment on the charge of Habitual

Misdemeanor Assault arising from the same assault.

      A. Preservation and Standard of Review



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                                   Opinion of the Court



      Although Defendant did not object at trial to the trial court’s entry of two

separate assault judgments, “[w]hen a trial court acts contrary to a statutory

mandate, the defendant’s right to appeal is preserved despite the defendant’s failure

to object during trial.” State v. Lawrence, 352 N.C. 1, 13, 530 S.E.2d 807, 815 (2000).

We apply de novo review to Defendant’s argument. State v. Jones, 237 N.C. App. 526,

532, 767 S.E.2d 341, 345 (2014).

      B. Multiple Assaults Arising from the Same Conduct

      Our General Statutes codify Habitual Misdemeanor Assault as follows: “A

person commits the offense of habitual misdemeanor assault if that person violates

any of the provisions of G.S. 14-33 and causes physical injury, or G.S. 14-34, and has

two or more prior convictions for either misdemeanor or felony assault, with the

earlier of the two prior convictions occurring no more than 15 years prior to the date

of the current violation.” N.C. Gen. Stat. § 14-33.2 (2017). Habitual Misdemeanor

Assault is a Class H felony. Id.

      The indictment charging Defendant with Habitual Misdemeanor Assault

alleged: (I) Defendant assaulted A.R. inflicting serious injury to A.R.’s scrotum

causing physical injury; and (II) Defendant had been convicted of two or more felony

or misdemeanor assault offenses. Based on Defendant’s stipulation to the two prior

assault offenses, the only question for the jury on the Habitual Misdemeanor Assault




                                          -8-
                                    STATE V. FIELDS

                                    Opinion of the Court



charge was whether Defendant committed Assault Inflicting Serious Injury under

N.C. Gen. Stat. § 14-33(c)(1). N.C. Gen. Stat. § 14-33(c)(1) provides, in relevant part:

             Unless the conduct is covered under some other provision
             of law providing greater punishment, any person who
             commits any assault . . . is guilty of a Class A1
             misdemeanor if, in the course of the assault . . ., he or she:

             (1) Inflicts serious injury upon another person . . .

N.C. Gen. Stat. § 14-33(c)(1) (2017).

      The jury found Defendant guilty of Assault Inflicting Serious Injury. In

addition, however, the jury returned a guilty verdict on Assault Inflicting Serious

Bodily Injury, a Class F felony, for his assault on A.R. resulting in the same injury.

See N.C. Gen. Stat. § 14-32.4(a).

      In State v. Jamison, this Court addressed the question of whether a defendant

could be convicted and sentenced for both Assault Inflicting Serious Bodily Injury and

a misdemeanor assault under N.C. Gen. Stat. § 14-33(c). This Court reviewed the

statutory mandate of N.C. Gen. Stat. § 14-33(c) and, in particular, the prefatory

clause: “Unless the conduct is covered under some other provision of law providing

greater punishment . . . .” Jamison, 234 N.C. App. at 238, 758 S.E.2d at 671. This

Court held the prefatory language “unambiguously bars punishment for [a lesser

class of assault] when the conduct at issue is punished by a higher class of assault.”

Id. at 239, 758 S.E.2d at 671. Thus, this Court concluded the statute mandated a

defendant could not be convicted and sentenced for both felony Assault Inflicting


                                           -9-
                                   STATE V. FIELDS

                                  Opinion of the Court



Serious Bodily Injury under N.C. Gen. Stat. § 14-32.4(a) and misdemeanor Assault

on a Female under N.C. Gen. Stat. § 14-33(c)(2) for the same conduct. Because the

trial court entered judgment on both felony and misdemeanor assault for the same

conduct, this Court arrested judgment on the misdemeanor assault charge.

      Applying Jamison to this case, where the jury returned its verdict finding

Defendant guilty of Assault Inflicting Serious Bodily Injury, a higher class of assault

providing for punishment as a Class F felony, under the plain language of N.C. Gen.

Stat. § 14-33(c), the trial court could not impose judgment or sentence for Assault

Inflicting Serious Injury, a lesser class of assault arising from the same conduct.

Thus, the trial court was required to arrest judgment on Assault Inflicting Serious

Injury and instead enter judgment solely on the higher Class F felony. See Jamison,

234 N.C. App. at 239, 758 S.E.2d at 672. As such, it follows, the trial court was then

precluded from entering judgment on the Habitual Misdemeanor Assault charge

expressly predicated on the misdemeanor assault charge. Rather, the statutory

mandate of N.C. Gen. Stat. § 14-33(c), governing the predicate misdemeanor assault,

requires Defendant be sentenced only for the assault conviction imposing greater

punishment for the same conduct, here felony Assault Inflicting Serious Bodily

Injury.

      The State contends, however, the jury’s finding on misdemeanor Assault

Inflicting Serious Injury was used only for the purpose of establishing one element of



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                                 Opinion of the Court



the separate offense of Habitual Misdemeanor Assault. The State draws comparisons

to habitual felon status, suggesting Habitual Misdemeanor Assault is simply

intended to enhance punishment and thus may be imposed in addition to another

assault charge arising from the same conduct.

      However, “[u]nlike habitual felon status, habitual misdemeanor assault is a

substantive offense and a punishment enhancement (or recidivist, or repeat-offender)

offense.”   State v. Sydnor, 246 N.C. App. 353, 356, 782 S.E.2d 910, 913 (2016)

(citations and quotation marks omitted); compare State v. Priddy, 115 N.C. App. 547,

549, 445 S.E.2d 610, 612 (1994) (holding Habitual Impaired Driving, unlike Habitual

Felon status, is “a separate felony offense,” and not “solely a punishment

enhancement status”). In essence, the offense of Habitual Misdemeanor Assault

replaces the underlying predicate misdemeanor, elevating the same conduct to a

felony based on a defendant’s prior assault convictions. Thus, for example, in State

v. Jones, this Court recognized “the trial court could not administer punishment for

both habitual misdemeanor assault, a Class H felony, and assault on a female, a class

A1 misdemeanor” resulting from the same conduct. 237 N.C. App. at 533, 767 S.E.2d

at 345. The rationale in Jones was again premised on “the unambiguous phrase

‘[u]nless the conduct is covered under some other provision of law providing greater

punishment[,]’ in G.S. 14-33(c).” Id. We therefore vacated the conviction for Assault

on a Female and remanded for resentencing on Habitual Misdemeanor Assault.



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                                   STATE V. FIELDS

                                   Opinion of the Court



      This is consistent with longstanding precedent holding a defendant may not be

charged with multiple classes, or multiple charges of the same class, of assault arising

from a single assault. For example, in State v. Dilldine, this Court noted it was

improper for a defendant to be separately charged with Assault with Intent to Kill

and Assault with Intent to Kill Inflicting Serious Injury arising from a single assault.

22 N.C. App. 229, 231, 206 S.E.2d 364, 366 (1974); see also State v. Maddox, 159 N.C.

App. 127, 132, 583 S.E.2d 601, 604 (2003) (“In order for a defendant to be charged

with multiple counts of assault, there must be multiple assaults”).

      It follows, therefore, a defendant may not be convicted and sentenced for two

substantive assault charges arising from a single assault. In this case, the

indictments cited only one assault resulting in the same injury. Likewise, the trial

court’s instructions to the jury for both offenses relied upon whether Defendant

“assaulted the victim by intentionally causing a tear in the alleged victim’s

scrotum[.]” Thus, in this case, Defendant could not be convicted and sentenced for

both the substantive assault charge of Habitual Misdemeanor Assault, predicated on

misdemeanor Assault Inflicting Serious Injury, and the higher Class F felony Assault

Inflicting Serious Bodily Injury, both arising from the assault on A.R. leading to the

same injury. See Jones, 237 N.C. App. at 533, 767 S.E.2d at 345; Jamison, 234 N.C.

App. at 239, 758 S.E.2d at 671. Consequently, we must hold, because the jury

returned its verdict finding Defendant guilty of felony Assault Inflicting Serious



                                          - 12 -
                                        STATE V. FIELDS

                                       Opinion of the Court



Bodily Injury, the trial court erred in entering judgment and sentencing Defendant

for Habitual Misdemeanor Assault predicated on misdemeanor Assault Inflicting

Serious Injury arising from the same conduct. Accordingly, we vacate the trial court’s

judgment as to Habitual Misdemeanor Assault (17 CRS 444).2

                                          Conclusion

       We conclude there was no error in the trial court’s judgment on the charge of

Assault Inflicting Serious Bodily Injury (15 CRS 59893) but vacate the trial court’s

judgment on the charge of Habitual Misdemeanor Assault (17 CRS 444).

       NO ERROR IN PART, VACATED IN PART.

       Judge ZACHARY concurs.

       Judge BERGER concurs in part and dissents in part in a separate opinion.




       2 We do not remand for resentencing because the trial court imposed the sentence for Habitual
Misdemeanor Assault to run consecutively from the separate judgment and sentence for the higher
Class F felony Assault Inflicting Serious Bodily Injury.

                                              - 13 -
 No. COA18-673 – State v. Fields


      BERGER, Judge, concurring in part and dissenting in part.


      I concur with the majority that there was substantial evidence to support

submission to the jury of the charge of assault inflicting serious bodily injury. I

respectfully dissent from the remainder of the majority opinion because the trial court

did not err.


      Judgment was entered against Defendant for assault inflicting serious bodily

injury and habitual misdemeanor assault. Defendant argues that the trial court

erred by (1) punishing him for assault inflicting serious injury and assault inflicting

serious bodily injury arising out of the same conduct, (2) failing to arrest judgment

on “one of the assault convictions,” and (3) convicting Defendant of a principle offense

and lesser-included offense arising out of the same conduct. Defendant essentially is

attacking his conviction on double jeopardy grounds from three different directions.


      “[H]abitual misdemeanor assault is a substantive offense and a punishment

enhancement (or recidivist, or repeat-offender) offense.” State v. Carpenter, 155 N.C.

App. 35, 49, 573 S.E.2d 668, 677 (2002) (citation and quotation marks omitted); see

also State v. Smith, 139 N.C. App. 209, 212-14, 533 S.E.2d 518, 519-20 (2000). In

relevant part, an individual may be found guilty of habitual misdemeanor assault if

that person commits an assault set forth in N.C. Gen. Stat. § 14-33 which causes

physical injury, and that individual “has two or more prior convictions for either

misdemeanor or felony assault, with the earlier of the two prior convictions occurring
                                    STATE V. FIELDS

                     BERGER, J., concurring in part, dissenting in part



no more than 15 years prior to the date of the current violation.” N.C. Gen. Stat. § 14-

33.2 (2017). Assault inflicting serious injury is an offense set forth in Section 14-

33(c)(1), and thus, an element of habitual misdemeanor assault.


      The majority correctly notes that the prefatory clause to Section 14-33 states

“[u]nless the conduct is covered under some other provision of law providing greater

punishment,” N.C. Gen. Stat. § 14-33(c) (2017), and that this language precludes

punishment for lower class assaults when the conduct at issue “is punished by a

higher class of assault.” (Citation omitted.)        The majority would be correct if

Defendant here were being punished for assault inflicting serious bodily injury and

the A1 misdemeanor of assault inflicting serious injury pursuant to Section 14-33.


      However, Defendant here was convicted and punished pursuant to Section 14-

33.2, which contains no such prefatory language, and thus, does not preclude

punishment for conduct “covered under some other provision of law providing greater

punishment.” N.C. Gen. Stat. § 14-33(c). As the majority correctly points out “the

offense of Habitual Misdemeanor Assault replaces the underlying predicate

misdemeanor.”     Thus, the prefatory language which supports the majority’s

reasoning is inapplicable.


      Assault inflicting serious bodily injury is a substantive offense defined as an

assault in which an individual inflicts “bodily injury that creates a substantial risk


                                             2
                                    STATE V. FIELDS

                     BERGER, J., concurring in part, dissenting in part



of death, or that causes serious permanent disfigurement, coma, a permanent or

protracted condition that causes extreme pain, or permanent or protracted loss or

impairment of the function of any bodily member or organ, or that results in

prolonged hospitalization.” N.C. Gen. Stat. § 14-32.4(a) (2017).


      No person may be “subject for the same offence to be twice put in jeopardy of

life or limb.” U.S. Constitution, Amend. V. In Blockburger v. United States, the

Supreme Court stated that


             the test to be applied to determine whether there are two
             offenses or only one, is whether each provision requires
             proof of a fact which the other does not. A single act may
             be an offense against two statutes; and if each statute
             requires proof of an additional fact which the other does
             not, an acquittal or conviction under either statute does not
             exempt the defendant from prosecution and punishment
             under the other.

State v. Artis, 174 N.C. App. 668, 674, 622 S.E.2d 204, 209 (2005) (quoting

Blockburger v. United States, 284 U.S. 299, 304 (1932)).


      “North Carolina has adopted and applied the Blockburger test” to determine if

double jeopardy concerns are implicated in the punishment of multiple offenses. Id.

The North Carolina Supreme Court has stated that


             even where evidence to support two or more offenses
             overlaps, double jeopardy does not occur unless the
             evidence required to support the two convictions is
             identical. If proof of an additional fact is required for each


                                             3
                                           STATE V. FIELDS

                          BERGER, J., concurring in part, dissenting in part



                conviction which is not required for the other, even though
                some of the same acts must be proved in the trial of each,
                the offenses are not the same.

Id. (quoting State v. Murray, 310 N.C. 540, 548, 313 S.E.2d 523, 529 (1984)).


        In State v. Artis, the defendant was charged with malicious conduct by a

prisoner and habitual misdemeanor assault arising from the same conduct. The

conduct alleged in both indictments read:

                the defendant named above unlawfully, willfully, and
                feloniously did assault S.E. McKinney, a government
                officer at the Pitt County Detention Center, Greenville,
                North Carolina ... by throwing bodily fluid on S.E.
                McKinney. At the time of the assault S.E. McKinney was
                performing a duty of his office by supervising the
                dispensing of food to the defendant.

Id. This Court stated that “[c]onvictions arising from the same incident or similar

conduct for both do not violate the double jeopardy clause.” Id. at 676, 622 S.E.2d at

210.

        Such is the case here. Defendant was indicted for assault inflicting serious

bodily injury and habitual misdemeanor assault. The allegations in both indictments

were that Defendant assaulted the victim and caused tearing to victim’s scrotum. 3

Even though the allegations in the indictments concerning the assault and resulting

injury were identical, the two substantive offenses required proof of different facts.



        3The indictment for assault inflicting serious bodily injury alleged that the tear to the victim’s
scrotum was serious bodily injury, while the indictment for habitual misdemeanor assault alleged that
the Defendant inflicted serious injury and physical injury as a result of the tear in his scrotum.

                                                    4
                                     STATE V. FIELDS

                      BERGER, J., concurring in part, dissenting in part



Assault inflicting serious bodily injury required the State to prove beyond a

reasonable doubt that the Defendant committed an assault upon the victim which

inflicted serious bodily injury. Even though habitual misdemeanor assault has as an

element the lesser included offense of assault inflicting serious injury, it is a

substantive offense which also required proof of physical injury and “two or more

prior convictions for either misdemeanor or felony assault, with the earlier of the two

prior convictions occurring no more than 15 years prior to the date of the current

violation.” N.C. Gen. Stat. § 14-33.2.

      Because habitual misdemeanor assault is a substantive offense which required

proof of additional facts and elements beyond that necessary for conviction of assault

inflicting serious bodily injury, I would find that the trial court did not err.




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