An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-1299
                       NORTH CAROLINA COURT OF APPEALS

                                  Filed: 20 May 2014


STATE OF NORTH CAROLINA

      v.                                           Guilford County
                                                   No. 12CRS078767
SOLOMON LEE-WARREN GRAVES



      Appeal by defendant from judgment entered 19 July 2013 by

Judge Lindsay R. Davis, Jr. in Guilford County Superior Court.

Heard in the Court of Appeals 18 March 2014.


      Attorney General Roy Cooper, by Special Deputy                         Attorney
      General Elizabeth Leonard McKay, for the State.

      Richard Croutharmel, for defendant-appellant.


      HUNTER, Robert C., Judge.


      Solomon       Lee-Warren      Graves         (“defendant”)      appeals       from

judgment sentencing him to 28 to 43 months imprisonment after

being   convicted      on   one    count      of    assault    inflicting    serious

bodily injury and one count of assault on a female.                       On appeal,

defendant     argues    that:      (1)   he    received       per   se    ineffective

assistance     of    counsel      when   his       trial   attorney      admitted    to

elements of the charged offenses in his opening statement to the
                                        -2-
jury;   (2)   the    trial    court    abused    its      discretion     by   denying

defendant’s request for a jury instruction on the defense of

automatism;    (3)    defendant       received      ineffective     assistance       of

counsel   because     his    trial     attorney      failed    to    recognize       or

preserve the defense of automatism; and (4) the trial court

erred by punishing defendant for both assault inflicting serious

bodily injury and assault on a female for the same conduct.

    After     careful       review,    we    find    no    error    in   the    trial

proceedings,    but    we    vacate    the    conviction      for   assault     on    a

female and remand for resentencing.

                                  Background

    The State’s evidence presented at trial tended to establish

the following: at the time of the incident forming the basis of

this case, defendant and Tonya Michelle Stewart Graves (“Tonya”)

were married and living in Tonya’s mother’s house with Tonya’s

13-year-old son born from a previous marriage.                     On 26 May 2012,

defendant and Tonya got into a verbal altercation.                        Defendant

accused Tonya of harboring feelings of affection for her former

husband, the father of her 13-year-old son.                   Tonya attempted to

diffuse the situation by driving away from the house with her

son, but defendant blocked her way to the car and knocked her

car keys out of her hand.              Tonya and her son went on a walk
                                       -3-
instead;    when   they     returned   home,   Tonya      took    a   prescribed

sleeping medication and fell asleep in her son’s room.

    At around 2:00 a.m., defendant woke Tonya and again accused

her of talking to other men.             Tonya went to her bedroom and

started    listening   to    a   voicemail   that   had    been   left   on   her

cellphone.    Defendant then snatched the phone from Tonya’s ear

and started punching her in the head repeatedly.                  Tonya fell to

the floor and tried to cover herself; after defendant ended his

attack he paced the floor and said “look what you made me do.”

Tonya testified that she did not strike defendant at any time

during this encounter, not even to defend herself.                    Tonya went

into the bathroom to assess her injuries.                 She heard defendant

say “I’m sorry” as she was walking away.               Tonya testified that

when she looked in the mirror, she saw part of her eye hanging

out of its socket.           Defendant suggested that she go to the

hospital.     However, he told Tonya not to tell anyone that he

struck her, apparently because defendant was in law school at

the time and did not want to miss any classes.

    Defendant called the police and they arrived at the scene

shortly thereafter.         Tonya let the police into the home.            After

seeing her injuries, the police arrested defendant.                    Defendant

told the police that he was a sovereign citizen and that if he
                                      -4-
wanted to beat his wife, he could.          He never told the officers

that Tonya struck him first, that she attacked him, or that he

blacked out.        Tonya testified that defendant was         “very well

aware of what was going on” when the police arrived and that his

primary concern was that he would not be able to take his law

classes if he was arrested.           Tonya was taken to the hospital

after the ambulance arrived.           Her right eye socket had been

broken   and   required    surgical    insertion   of   a   plastic-coated

titanium mesh to support the eyeball.

    Defendant took the stand in his own defense at trial and

testified that, contrary to Tonya’s recitation of the facts, it

was actually she who initiated the altercation.              According to

defendant, Tonya was talking on the phone in an “almost sexy”

and “seductive” manner to a man.            When defendant grabbed the

phone to ask who the man was, she swung her arms at his face

“like a wildcat.”      Defendant tried to block her attack, but she

connected with defendant’s face, causing him to black out.             The

next thing defendant recalled was being on opposite sides of the

bed from Tonya and seeing her bent down and bleeding.           Defendant

called 911 to get an ambulance.         When the police arrived, he did

not want to let them in, but Tonya allowed them to enter the

house.    As   he    was   being   arrested,   defendant    informed   the
                                         -5-
officers    that   he    was   a   sovereign   national    and   that   he   was

“reserving his rights” as a free citizen.

    A month before trial began in July 2013, defendant’s trial

counsel    filed   a    notice     of   self-defense.     At   trial,   defense

counsel’s opening statement included the following:

                 We believe the evidence will show that
            Solomon Lee-Warren Graves is a father, a
            husband,    and   a   minister,   and   most
            importantly, a victim, a victim of adultery,
            a victim of betrayal, a victim of a breach
            of love.   And most importantly, because of
            that, he had to defend himself on Sunday,
            May 27, 2012.     He had to defend himself
            against   who?   That  woman   right  there.
            [Indicating Tonya.]     And we believe the
            facts will show that his defense of himself
            was reasonable on that night, and that’s why
            he’s here today.

                 Now, we will admit that the evidence
            will show Mr. Graves was responsible for the
            injury to Ms. Stewart Graves.        We will
            admit, and the evidence will show, that
            because of those injuries, she had to go to
            the hospital.   But, we will also show you,
            ladies and gentlemen of the jury, that –

The trial court interrupted defense counsel at this point of the

statement and ordered the jury out of the courtroom so that the

judge could conduct a hearing pursuant to State v. Harbison, 315

N.C. 175, 337 S.E.2d 504 (1985), cert. denied., 476 U.S. 1123,

90 L. Ed. 2d 672 (1986).           Defendant told the trial judge that he

had not authorized his attorney to admit to                    any wrongdoing;
                                          -6-
rather, he reiterated that he was blacked out when the injuries

to Tonya were inflicted.               Defendant’s trial counsel told the

judge that he was under the impression that such an admission

was authorized because defendant elected to assert self-defense.

The   trial    court      found    that   counsel    did   not       admit      guilt   but

“quite to the contrary” stated that defendant was not guilty of

any crimes and was only admitting to causing injury to Tonya.

      At   the      charge        conference,    defense        counsel         requested

instructions on both self-defense and automatism, but the trial

court denied the request and instructed on neither defense.                             The

jury convicted defendant for one count of assault inflicting

serious bodily injury and one count of assault on a female.

Defendant gave notice of appeal in open court.

                                      Discussion

                   I. Defense Counsel’s Opening Statement

      Defendant first argues that his attorney admitted guilt to

elements      of    the   charged     offenses      in   his     opening        statement

without    defendant’s       consent,      constituting        per    se     ineffective

assistance     of    counsel      under   Harbison,      315    N.C.       at   180,    337

S.E.2d at 507-08.         We disagree.

      A Harbison error occurs where defense counsel makes the

decision to concede guilt to a crime without the defendant’s
                                          -7-
knowing and voluntary consent.                  See Harbison, 315 N.C. at 180,

337    S.E.2d    at   507-08.           Harbison    errors    amount    to    per    se

ineffective assistance of counsel under the Sixth Amendment and

require a new trial.            State v. Matthews, 358 N.C. 102, 109, 591

S.E.2d 535, 539 (2004).            However, our Supreme Court has declined

to    find   a   Harbison       violation   where    defense       counsel   did    not

expressly concede defendant’s guilt or where counsel admitted

only certain elements of the charged offense.                         See State v.

Gainey, 355 N.C. 73, 93, 558 S.E.2d 463, 476 (holding that there

was no Harbison error where defense counsel stated, “if he’s

guilty of anything, he’s guilty of accessory after the fact,”

because the statement did not amount to an admission of guilt to

murder), cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002);

State   v.     Fisher,    318    N.C.    512,    532–33,    350    S.E.2d    334,   346

(1986) (no Harbison error where defense counsel conceded malice

but did not clearly admit guilt and told the jury it could find

defendant not guilty).

       Here,     defense    counsel’s       statements       that    defendant      was

“responsible” for Tonya’s injuries and that she had to go to the

hospital because of those injuries are not express concessions

of guilt of either of the crimes charged.                    Each of the charged

offenses       contains    elements       not    admitted     to    during    defense
                                          -8-
counsel’s opening statement.                See      N.C. Gen. Stat. § 14-32.4

(2013) (requiring          medical conditions that constitute                 “serious

bodily    injury”     for    the   crime     of      assault    inflicting     serious

bodily injury); N.C. Gen. Stat. § 14-33(c)(2) (2013) (requiring

the defendant to be a male at least 18 years of age to convict

for    assault   on    a    female).        Thus,       because     defense    counsel

admitted only certain elements of the charged offenses, he did

not concede defendant’s guilt in violation of Harbison.                                 See

Fisher, 318 N.C. at 532–33, 350 S.E.2d at 346.                        Further, these

comments were made after defense counsel explicitly told the

jury that defendant was relying on the affirmative defense of

self-defense     to    establish     that       he    was   not     guilty    of    these

crimes.     An affirmative defense is “[a] defendant’s assertion of

facts and arguments that, if true, will defeat the plaintiff’s

or    prosecution’s     claim,     even    if     all   the    allegations         in   the

complaint    are      true.”       Black’s      Law     Dictionary     9th    ed.       482

(emphasis added).          Thus, defendant could still have presented an

effective    defense        even   after     admitting         to   causing    Tonya’s

injuries.

       Because defense counsel did not concede guilt to the crimes

charged without defendant’s consent, we conclude that he did not
                                        -9-
commit a Harbison error and was therefore not per se ineffective

under the Sixth Amendment.            Defendant’s argument is overruled.

                            II. Defense of Automatism

       Defendant     next    argues    that    the    trial   court   abused      its

discretion    by      denying     defense      counsel’s      request       for    an

instruction    on      automatism       and    that    defendant      was    denied

effective assistance of counsel by defense counsel’s failure to

preserve this defense.         We disagree with both contentions.

       “[I]f a specifically requested jury instruction is proper

and is supported by the evidence, the trial court must give the

instruction, at least in substance.”                 State v. Jenkins, 35 N.C.

App.   758,   760,    242     S.E.2d    505,   506     (1978).     However,       the

question of whether a requested instruction is proper under the

evidence is within the discretion of the trial judge “since he

can    more   accurately        determine      those     instances      when      the

instruction would be appropriate.”              Id. (citation and quotation

marks omitted).        Thus, we review the trial court’s refusal to

give   a   requested    jury     instruction     for    abuse    of   discretion.

State v. Harris, 306 N.C. 724, 728, 295 S.E.2d 391, 393 (1982).

An abuse of discretion only arises “where the court’s ruling is

manifestly unsupported by reason or is so arbitrary that it

could not have been the result of a reasoned decision.”                        State
                                       -10-
v.   Campbell,     359   N.C.   644,    673,   617   S.E.2d   1,    19   (2005)

(quotation marks omitted).        We review allegations of ineffective

assistance of counsel using a two-part test: whether defense

counsel’s performance was deficient, and whether this deficiency

prejudiced the defendant.        State v. Fletcher, 354 N.C. 455, 481,

555 S.E.2d 534, 550 (2001) (citing Strickland v. Washington, 466

U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984)).

      The defense of automatism has been defined by our Supreme

Court as:

            the state of a person who, though capable of
            action, is not conscious of what he is
            doing.   It    is   to    be   equated    with
            unconsciousness, involuntary action [and]
            implies that there must be some attendant
            disturbance     of    conscious     awareness.
            Undoubtedly   automatic   states   exist   and
            medically they may be defined as conditions
            in which the patient may perform simple or
            complex actions in a more or less skilled or
            uncoordinated fashion without having full
            awareness of what he is doing.

State v. Fields, 324 N.C. 204, 208, 376 S.E.2d 740, 742 (1989)

(citation    and    quotation    omitted).       Thus,   “the      absence   of

consciousness not only precludes the existence of any specific

mental state, but also excludes the possibility of a voluntary

act without which there can be no criminal liability.”                       Id.

(citations omitted).
                                        -11-
    In     determining    whether       an   instruction        on    automatism   is

warranted,    “[t]he     test   .   .    .     is     whether   the    evidence    of

defendant’s mental condition is sufficient to cause a reasonable

doubt in the mind of a rational trier of fact as to whether the

defendant    has   the    ability       to     form    the   necessary     specific

intent.”     State v. Connell, 127 N.C. App. 685, 692, 493 S.E.2d

292, 296 (1997).       A trial court may only give instructions that

are supported by a reasonable view of the evidence.                        State v.

Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 699 (1973).

    The holding in State v. Morganherring, 350 N.C. 701, 517

S.E.2d 622 (1999), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d

322 (2000), is instructive here.               In Morganherring, the Supreme

Court analyzed the defendant’s argument that the trial court

erred by failing to instruct on automatism as follows:

            Even though defendant claims not to remember
            all of his actions during the murders, there
            is no evidence in the record which indicates
            that defendant was either unconscious or not
            conscious of his actions. For example,
            immediately    after    killing   Ms.     Pena,
            defendant gathered up several items of Ms.
            Pena’s property with the intent to sell
            them. Defendant was also able to describe in
            detail his activities on the days between
            the   murders   and   the   immediate    events
            surrounding   Ms.   Lee’s   murder.   .   .   .
            [B]ecause   defendant    failed   to    present
            evidence which would support an instruction
            on automatism, the trial court did not err
            in refusing to instruct the jury as to that
                                         -12-
                 defense.   This      assignment          of   error    is
                 overruled.

Morganherring, 350 N.C. at 733-34, 517 S.E.2d at 641 (emphasis

added).      Furthermore, in State v. Boyd, 343 N.C. 699, 714-15,

473 S.E.2d 327, 335 (1996), the Supreme Court held that where

the only evidence that the defendant blacked out stemmed from

his own testimony at trial and that testimony was contradicted

by    the   State’s      evidence    that    the    defendant     admitted        to    his

actions to the police on the day of the crime, the trial court

did not err by declining a request to instruct on automatism.

       Here, the only evidence presented that tended to indicate

defendant lost consciousness during the altercation with Tonya

was   defendant’s        own    testimony.        This     testimony   was       directly

refuted     by     the    State’s    evidence      that    defendant    admitted        to

assaulting Tonya and told one of the arresting officers that “he

had struck [Tonya] because she was on the phone with another

man.”       Tonya also testified that defendant told the officers

“I’m a sovereign citizen.              I don’t have to go by the rules of

the United States.             And if I want to beat my wife, I can.”                   The

officers testified that at no time during this conversation did

defendant deny having assaulted                   Tonya or     claim to have been

struck      by    Tonya,    black    out,    or    lose    consciousness.          Tonya

testified        that    defendant   struck       her    repeatedly    in    a    fit    of
                                       -13-
anger, apologized immediately after doing so, pleaded that she

not tell anyone that he struck her, and was wiping blood from

his knuckles when the police arrived.

      Because defendant’s testimony supporting an instruction on

the   defense      of   automatism   was     directly    refuted     by   evidence

presented by the State, we find no abuse of discretion in the

trial court’s decision not to instruct on that defense.                         See

Morganherring, 350 N.C. at 733-34, 517 S.E.2d at 641; Boyd, 343

N.C. at 714-15, 473 S.E.2d at 335.

      We    also    hold   that   defense      counsel’s       presentation     and

attempt to assert the defense of automatism did not amount to

ineffective assistance of counsel.             The trial court noted in its

Harbison hearing that defense counsel was not precluded from

asserting the defense of automatism under N.C. Gen. Stat. § 15A-

905(c)(1) (2013) because the time limit for notifying the State

of defendant’s intention to assert that defense had not yet run.

At trial, defense counsel elicited testimony from defendant in

an effort to establish that defendant blacked out during the

altercation and therefore could not form the mental state to

commit     the   charged   crimes.      At    the   close      of   the   evidence,

defense     counsel     specifically    requested       that   the   trial    court

instruct on the defense of automatism based on this testimony.
                                            -14-
In     sum,    we    believe      defense     counsel’s       performance     was    not

deficient because he preserved the defense of automatism and

proceeded to elicit testimony in support of that defense, a

course of action we deem to be objectively reasonable in this

case.     See State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271,

286 (2006).          Defendant was not deprived of effective assistance

of   counsel        solely   because      that     evidence   was   insufficient      to

support the requested instruction.

                                    IV. Sentencing

       Defendant’s       final      argument        is   that    the   trial        court

reversibly      erred        by   sentencing       defendant    for    both    assault

inflicting serious bodily injury and assault on a female.                             We

agree.

       The State contends that defendant’s argument amounts to a

constitutional Double Jeopardy issue, and because defendant did

not present this argument to the trial court, he has failed to

preserve it for appellate review.                  See State v. Tirado, 358 N.C.

551,    571,    599     S.E.2d     515,    529     (2004).      However,      defendant

claims, and we agree, that he is alleging failure of the trial

court to abide by the statutory mandates contained in N.C. Gen.

Stat. §§ 14-32.4(a) and 14-33(c).                   Such arguments are preserved

notwithstanding defendant’s failure to object on this specific
                                              -15-
ground at trial.           See State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d

652,   659    (1985)       (“[W]hen       a    trial    court    acts      contrary      to   a

statutory mandate and a defendant is prejudiced thereby, the

right to appeal the court’s action is preserved, notwithstanding

defendant’s        failure     to      object     at    trial.”).          Thus,    we    will

address the merits of defendant’s argument.

       Defendant was convicted for one count of assault inflicting

serious bodily injury under section 14-32.4 and one count of

assault on a female under section 14-33(c)(2).                              Assault on a

female carries the punishment of a Class A1 misdemeanor; assault

inflicting serious bodily injury carries punishment of a Class F

felony.       N.C. Gen. Stat. § 14-32.4(a); N.C. Gen. Stat. § 14-

33(c).         Both       statutes      allow         for    sentencing      under       their

respective        provisions      “[u]nless       the       conduct   is    covered      under

some   other      provision       of    law     providing      greater     punishment[.]”

Id.    Thus, defendant argues that the General Assembly intended

the trial court to sentence a defendant under the more punitive

statute      if    more    than     one       crime    is    implicated     by     the    same

conduct.      We agree.

       In State v. Ezell, 159 N.C. App. 103, 109, 582 S.E.2d 679,

684 (2003), this Court held that legislative intent could rebut

the presumption created by Blockburger v. United States, 284
                                             -16-
U.S. 299, 76 L. Ed. 306 (1932), that conviction for two offenses

based    on    the    same     conduct      is    not    unlawful         if    each    offense

requires proof of an element that the other does not.                                 The Court

went    on    to   hold      that   the     language     “[u]nless         the    conduct    is

covered      under    some     other       provision     of    law    providing         greater

punishment”        indicated        legislative         intent       to    punish       certain

offenses at a certain level, but that if the same conduct was

punishable under a different statute carrying a higher penalty,

a   defendant        could    only     be    sentenced        for    the       more    punitive

offense.       Id. at 111, 582 S.E.2d at 685.

       Applying the Ezell holding in the context of two assault

statutes, this Court held in State v. Williams, 201 N.C. App.

161,    174,    689    S.E.2d       412,    419   (2009),      that       even    though    two

assaults may require proof of different elements, so as to be

distinct crimes under Blockburger, the inclusion of the language

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

law providing greater punishment” indicated legislative intent

to punish a defendant only for the more punitive of the two

crimes.       The defendant in Williams was convicted of both assault

by strangulation and assault inflicting serious bodily injury

for the same conduct.                Thus, because assault by strangulation

carried a lesser penalty than assault inflicting serious bodily
                                          -17-
injury, the Williams Court vacated judgment entered upon the

defendant’s     conviction        for    assault      by     strangulation.             Id.

Because   the   convictions       were     consolidated           at    trial,    it   also

remanded for resentencing.          Id.

       Here, like in Williams, defendant was convicted for both

assault inflicting serious bodily injury and an assault that

carried a lesser punishment, specifically here, assault on a

female.     Based    on     the    Williams      holding,          we     conclude     that

convictions for both crimes violated the statutory mandate that

the trial court only sentence a defendant for the more punitive

crime implicated by the same conduct.                 See In re Civil Penalty,

324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“[A] panel of the

Court of Appeals is bound by a prior decision of another panel

of the same court addressing the same question[.]”).                              Thus, we

vacate defendant’s conviction for assault on a female, as it is

less   punitive    than   assault        inflicting    serious           bodily    injury.

Furthermore,      because    the        convictions        were        consolidated,     we

remand for resentencing.            See Williams, 201 N.C. App. at 174,

689 S.E.2d at 419.

                                    Conclusion

       We find no error in defense counsel’s opening statement and

no abuse of discretion in the trial court’s decision to reject
                              -18-
defendant’s requested instruction on the defense of automatism.

However, because the trial court failed to follow the statutory

mandate that it only punish defendant under the more punitive

assault statute where more than one crime was implicated by the

same conduct, we vacate defendant’s conviction for assault on a

female and remand for resentencing.



    NO   ERROR   IN   PART;   VACATED    IN   PART;   REMANDED   FOR

    RESENTENCING.

    Judges BRYANT and STEELMAN concur.

    Report per Rule 30(e).
