               IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 474PA14

                               Filed 21 December 2016

STATE OF NORTH CAROLINA

              v.
 COREY DEON FLOYD


      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 238 N.C. App. 110, 766 S.E.2d 361 (2014), vacating in part

judgments entered on 30 October 2013 by Judge Jack W. Jenkins in Superior Court,

Lenoir County, finding error in defendant’s conviction for possession of a weapon of

mass destruction, and remanding for a new trial on that charge.          Heard in the

Supreme Court on 31 August 2015.


      Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General,
      for the State-appellant.

      Marilyn G. Ozer for defendant-appellee.


      JACKSON, Justice.


      In this case we consider whether a prior conviction for “attempted assault with

a deadly weapon inflicting serious injury” can support later charges for possession of

a firearm by a convicted felon and attaining habitual felon status. We also consider

whether defendant is entitled to a new trial on the basis that the trial court failed to

act appropriately to address an impasse between defendant and his attorney
                                    STATE V. FLOYD

                                   Opinion of the Court



concerning the questioning of a prosecution witness on cross-examination.           We

answer the first inquiry in the affirmative. As to the second, we vacate the Court of

Appeals’ opinion and remand for entry of an order dismissing defendant’s appeal

without prejudice to his right to file a motion for appropriate relief.


      On 16 October 2008, Kinston police received information that a man was

“hanging” in a specific area of town while “carrying around” a “sawed-off

shotgun . . . in his pants.” Upon reaching the scene and seeing the man—whom one

of the officers recognized as defendant—officers began chasing him. Detective Robbie

Braswell, who was directly behind defendant, observed defendant pull a shotgun from

the waistband of his pants and throw it over a fence into a yard. Detective Braswell

stopped chasing defendant and secured the weapon.


      Defendant was arrested approximately two years later. On 31 January 2011,

defendant was indicted for possession of a firearm by a convicted felon, possession of

a weapon of mass destruction, and attaining habitual felon status. The indictment

for possession of a firearm by a convicted felon listed the underlying felony as

“N.C.G.S. 14[-]32(a) Attempted Assault With a Deadly Weapon Inflicting Serious

Injury,” with defendant having “pled guilty on December 5, 2005,” for which he was

“sentenced to 25-30 months in the North Carolina Department of Corrections.”1 This


      1 Section 14-32 describes three different types of felonious assault with a deadly
weapon and assigns varying punishment levels to each as follows:


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                                      Opinion of the Court



conviction also was listed in the habitual felon indictment as one of the three prior

felony offenses required to support a finding of habitual felon status. Defendant

pleaded not guilty to all charges.


       The case proceeded to trial in October 2013. The State submitted a copy of the

5 December 2005 judgment showing the prior conviction for attempted assault with

a deadly weapon inflicting serious injury.          At the close of the State’s evidence,

defendant moved to dismiss the possession of a firearm by a convicted felon charge

for insufficiency of the evidence on grounds that the underlying felony conviction

listed in the indictment as the basis for this charge, attempted assault with a deadly

weapon, is not a recognized crime in North Carolina. In addition to the 5 December

2005 judgment, the State submitted copies of two other prior felony conviction

judgments in support of the habitual felon charge. Defendant moved to dismiss the




                 (a) Any person who assaults another person with a deadly
              weapon with intent to kill and inflicts serious injury shall be
              punished as a Class C felon.
                  (b) Any person who assaults another person with a deadly
              weapon and inflicts serious injury shall be punished as a Class
              E felon.
                 (c) Any person who assaults another person with a deadly
              weapon with intent to kill shall be punished as a Class E felon.

N.C.G.S. § 14-32 (2015). Defendant was charged with assault with a deadly weapon with
intent to kill inflicting serious injury pursuant to section 14-32(a), but ultimately pleaded no
contest to “attempted assault with a deadly weapon inflicting serious injury.” He was
punished as a Class F felon.


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                                  Opinion of the Court



habitual felon charge on the same grounds, asserting that the 5 December 2005 felony

conviction is invalid. The trial court denied both motions. The jury found defendant

guilty of possession of a weapon of mass destruction, possession of a firearm by a

convicted felon, and attaining habitual felon status.       The trial court sentenced

defendant to two concurrent terms of 151 to 191 months of imprisonment.


      Defendant appealed. In a unanimous decision, the Court of Appeals concluded

that “attempted assault is not a recognized criminal offense in North Carolina” and

therefore that defendant’s 2005 conviction for attempted assault with a deadly

weapon inflicting serious injury could not support the convictions for possession of a

firearm by a convicted felon and attaining habitual felon status.      Floyd, 238 N.C.

App. at 115, 766 S.E.2d at 366. In pertinent part, the court reasoned:

             In State v. Currence, 14 N.C. App. 263, 188 S.E.2d 10, cert.
             denied, 281 N.C. 315, 188 S.E.2d 898-99, we . . . not[ed] that
             an assault consists of “an overt act or attempt, or the
             unequivocal appearance of an attempt, with force and
             violence, to do some immediate physical injury to the
             person of another.” Id. at 265, 188 S.E.2d at 12 (quoting
             State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305
             (1967)). As a result, since the effect of an attempted assault
             verdict was to find the defendant guilty of an “attempt to
             attempt” and since “[o]ne cannot be indicted for an attempt
             to commit a crime where the crime attempted is in its very
             nature an attempt,” id., we held that an attempted assault
             is simply not a recognized criminal offense in this
             jurisdiction.

Floyd, 238 N.C. App. at 114, 766 S.E.2d at 366 (second alteration in original).

Accordingly, the court held that the trial court erred by denying defendant’s motions


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                                  Opinion of the Court



to dismiss the charges of possession of a firearm by a convicted felon and attaining

habitual felon status. Id. at 127, 766 S.E.2d at 374.


      Turning to the remaining charge of possession of a weapon of mass destruction,

the Court of Appeals concluded that the trial court failed to identify and properly

address an impasse that arose between defendant and his trial counsel. The Court

of Appeals determined that this failure violated defendant’s constitutional right to

control the nature of his defense and therefore granted defendant a new trial on this

charge. Id. at 127-28, 766 S.E.2d at 374. The State filed a petition for discretionary

review, which we allowed on 9 April 2015.


      In its appeal the State argues that the Court of Appeals’ conclusion that

attempted assault is not a recognized criminal offense in North Carolina was based

upon an overly narrow definition of assault. As a result, the State contends that the

Court of Appeals incorrectly held that defendant’s 2005 conviction for attempted

assault with a deadly weapon inflicting serious injury could not support the

convictions for possession of a firearm by a convicted felon and attaining habitual

felon status. We agree.


      The offense of possession of a firearm by a convicted felon has two essential

elements: (1) the defendant has been convicted of a felony, and (2) the defendant

subsequently possessed a firearm. N.C.G.S. § 14-415.1(a) (2015). A person may be

charged with attaining habitual felon status when he or she “has been convicted or

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                                  Opinion of the Court



pled guilty to three felony offenses in any federal court or state court in the United

States or combination thereof.” Id. § 14-7.1 (2015). In this case the State relied upon

defendant’s 2005 conviction for attempted assault with a deadly weapon inflicting

serious injury to support charges against him pursuant to these statutes.

Accordingly, the validity of defendant’s convictions depends upon whether attempted

assault with a deadly weapon inflicting serious injury is recognized as a criminal

offense pursuant to our current law.


      “The two elements of an attempt to commit a crime are: (1) An intent to commit

it, and (2) an overt act done for that purpose, going beyond mere preparation, but

falling short of the completed offense.” State v. Powell, 277 N.C. 672, 678, 178 S.E.2d

417, 421 (1971) (citations omitted). An attempt crime “is punishable under the next

lower classification as the offense which the offender attempted to commit.” N.C.G.S.

§ 14-2.5 (2015). As a logical matter, these principles may be applied to the offense of

assault with a deadly weapon inflicting serious injury in a straightforward fashion.

A person who intends to “assault[ ] another person with a deadly weapon and inflict[ ]

serious injury,” and who does an overt act for that purpose going beyond mere

preparation, but who ultimately fails to complete all the elements of this offense—for

example, by failing to inflict a serious injury—would be guilty of the attempt rather

than the completed offense. N.C.G.S. § 14-32(b).




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                                  Opinion of the Court



      In Currence our Court of Appeals highlighted a different consideration: this

Court has indicated that a person “cannot be indicted for an attempt to commit a

crime where the crime attempted is in its very nature an attempt.” 14 N.C. App. at

265, 188 S.E.2d at 12 (quoting State v. Hewett, 158 N.C. 627, 629, 74 S.E. 356, 357

(1912)). The court stated that

             assault is generally defined as “an overt act or an attempt,
             or the unequivocal appearance of an attempt, with force
             and violence, to do some immediate physical injury to the
             person of another, which show of force or menace of
             violence must be sufficient to put a person of reasonable
             firmness in fear of immediate bodily harm.”

Id. at 265, 188 S.E.2d at 12 (quoting Roberts, 270 N.C. at 658, 155 S.E.2d at 305).

The court then reasoned that attempted assault amounted to “an attempt to attempt.”

Id. at 265, 188 S.E.2d at 12 (quotation marks omitted).


      Initially, we note that reliance upon Hewett may be questionable in this context

because Hewett involved a substantially different legal issue. The defendant in

Hewett was charged in an indictment that failed to allege his criminal intent. 158

N.C. at 628, 74 S.E. at 357. Nevertheless, this Court concluded that by alleging that

the defendant attempted to commit rape, the indictment necessarily included the

intent element. Id. at 629, 74 S.E. at 357. As support for this conclusion, the Court

stated:

             practically all definitions of an attempt to commit a crime,
             when applied to the particular crime of rape, necessarily
             imply and include “an intent” to commit it.


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                                      Opinion of the Court



                    There may be offenses when in their application to
              them there is a distinction between “attempt” and “intent,”
              but that cannot be true as applied to the crime of rape.
              There is no such criminal offense as an “attempt to commit
              rape.” It is embraced and covered by the offense of “an
              assault with intent to commit rape,” and punished as such.

                     As held by the Supreme Court of California, one
              cannot be indicted for an attempt to commit a crime where
              the crime attempted is in its very nature an attempt.

Id. at 629, 74 S.E. at 357 (citing, inter alia, People v. Thomas, 63 Cal. 482, 482 (1883)

(per curiam)).2 Since Hewett did not involve a defendant who was “indicted for an

attempt to commit a crime where the crime attempted is in its very nature an

attempt,” id. at 629, 74 S.E. at 357, this statement is apparently dictum. In any

event, because we conclude that attempted assault is not an attempt of an attempt,

and thus does not implicate the dicta in Hewett, we do not address the extent to which

Hewett may apply to other criminal offenses not at issue in the case sub judice.


       Specifically, we observe that by stating that attempted assault amounts to “an

attempt to attempt,” 14 N.C. App. at 265, 188 S.E.2d at 12, the court in Currence

overlooked an important aspect of the law of assault in North Carolina. Although our

statutes criminalize the act of assault, see, e.g., N.C.G.S. § 14-32.4(a) (2015), “[t]here




       2   Although the 1912 decision in Hewett stated that “[t]here is no such criminal offense
as an ‘attempt to commit rape,’ ” the offense of attempted rape is recognized in our law today.
See, e.g., State v. Wortham, 318 N.C. 669, 671, 351 S.E.2d 294, 296 (1987) (“[T]he elements of
attempted rape are (1) ‘the intent to commit the rape and [2] an overt act done for that
purpose. . . .’ ”) (alterations in original) (quoting State v. Freeman, 307 N.C. 445, 449, 298
S.E.2d 376, 379 (1983))).

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                                   STATE V. FLOYD

                                   Opinion of the Court



is no statutory definition of assault in North Carolina, and the crime of assault is

governed by common law rules,” Roberts, 270 N.C. at 658, 155 S.E.2d at 305. In

Roberts we explained that our common law encompasses “two rules under which a

person may be prosecuted for assault in North Carolina.” Id. at 658, 155 S.E.2d at

305 (citation omitted).


      First, as Currence recognized, we noted that assault may be defined as “an

overt act or attempt, or the unequivocal appearance of an attempt, with force and

violence, to do some immediate physical injury to the person of another, which show

of force or menace of violence must be sufficient to put a person of reasonable firmness

in fear of immediate bodily harm.” Roberts, id. at 658, 155 S.E.2d at 305 (citations

omitted) (quoting 1 Strong’s North Carolina Index: Assault and Battery § 4 (1957)).

We stated that this definition of assault “places emphasis on the intent or state of

mind of the person accused.” Id. at 658, 155 S.E.2d at 305.


      Second, we described another definition of assault, which the Court of Appeals

did not acknowledge in Currence. Compare id. at 658, 155 S.E.2d at 305, with

Currence, 14 N.C. App. at 265, 188 S.E.2d at 12. We explained:

             The decisions of the Court have, in effect, brought forth
             another rule known as the “show of violence rule,” which
             places the emphasis on the reasonable apprehension of the
             person assailed. The “show of violence rule” consists of a
             show of violence accompanied by reasonable apprehension
             of immediate bodily harm or injury on the part of the
             person assailed which causes him to engage in a course of
             conduct which he would not otherwise have followed.

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                                  Opinion of the Court




Roberts, 270 N.C. at 658, 155 S.E.2d at 305. Our jurisprudence regarding the show-

of-violence rule appears to have evolved from early cases in which a person caused

another to flee, leave a place sooner than desired, or otherwise alter course through

the threatened use of a weapon. See State v. Rawles, 65 N.C. 334 (1871); State v.

Church, 63 N.C. 15 (1868); State v. Hampton, 63 N.C. 13 (1868). In State v. Shipman,

81 N.C. 513 (1879), one of the earliest cases in which this Court articulated the show-

of-violence rule, the evidence showed that the defendant had used threatening

language against another man and walked with a knife in his hand to within six feet

of where the other man was standing. Id. at 514. Upon seeing this threatening

display, the other man became “alarmed” and “left immediately.” Id. at 516. In

concluding that the defendant’s behavior constituted assault, this Court explained

that the definition of assault encompasses a situation in which “persons having in

their possession dangerous weapons, by following and threatening [the victim], put

him in fear and induce him to go home sooner than he would have done, or by a

different road from that he was wont to go.” Id. at 515 (citing Rawles, 65 N.C. 334).


      As defined in Roberts, and as illustrated by Shipman, the show-of-violence rule

does not involve an attempt to cause injury to another person, but is based upon a

violent act or threat that causes fear in another person. Accordingly, although North

Carolina law provides one definition of assault that describes the offense in terms of

“an overt act or an attempt, or the unequivocal appearance of an attempt,” our


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                                  Opinion of the Court



common law also provides a second definition that does not include any reference to

attempt. Roberts, 270 N.C. at 658, 155 S.E.2d at 305. Attempted assault is not an

attempt of an attempt because assault may be defined by the show-of-violence rule.

Cf. State v. May, 137 Ariz. 183, 186, 669 P.2d 616, 619 (Ct. App. 1983) (explaining

that because the defendant was charged pursuant to an Arizona statute that defines

assault in terms of “an act complete in itself and not an attempt to commit a different

crime,” “the academic arguments of whether criminal sanctions should attach to an

attempt to commit an attempt are inapplicable”); State v. Music, 40 Wash. App. 423,

432, 698 P.2d 1087, 1093 (1985) (“ ‘Attempt to attempt’ problems may arise with

respect to the first type of assault because the attempt to commit a battery is an

element of that type of assault. . . . However, since there is no attempt element in

the second type of assault, a charge of attempted assault within that definition is not

an ‘attempt to attempt.’ ” (internal citation omitted)).      We note that there is

substantial overlap between the two definitions of assault because an overt act or

attempt to do immediate physical injury to another person is likely to constitute a

show of violence that causes fear and a change of behavior. As a result, relying upon

the show-of-violence rule to define attempted assault does not create a significant

limitation on the conduct covered by this offense.


      For these reasons, we hold that the offense of attempted assault with a deadly

weapon inflicting serious injury is recognized in North Carolina.        We therefore

reverse the portion of the Court of Appeals’ opinion concluding that attempted assault

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                                     Opinion of the Court



is not recognized in this state, that defendant’s 2005 conviction is a nullity, and that

as a result, the trial court erred by denying defendant’s motion to dismiss the charges

of possession of a firearm by a felon and attaining habitual felon status.3


       Next, the State argues that the Court of Appeals incorrectly determined that

defendant was entitled to a new trial based upon the trial court’s alleged failure to

recognize and address an impasse between defendant and his attorney during the

trial. At the conclusion of defense counsel’s cross-examination of Detective Braswell,

defendant became agitated because he did not believe defense counsel was asking the

right questions. Defendant stated, “I need to say something to the witness,” began

interrupting the trial judge, and then attempted to speak again, at which point the

judge directed the jury to step out of the courtroom. After the jury had left the

courtroom, this exchange took place:


                     [Defendant]: You won’t ask him what I need to ask
              him.

                     The Court: Thank you. All right, let the record
              reflect that the twelve members of the jury and the
              alternate juror have left the courtroom. Let the record
              reflect that while the jurors were in here, [defendant]
              started asking questions. I called [defense] counsel to the
              bench, asked counsel . . . to go back and talk to [defendant],
              privately, to determine what [defendant’s] questions were

       3  The State alternatively argues that even if attempted assault with a deadly weapon
inflicting serious injury is not a recognized offense, defendant cannot raise that challenge at
this stage in this proceeding because doing so would constitute an impermissible collateral
attack. Because we conclude that this offense is recognized in this state, we do not reach the
State’s alternative argument.

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                                Opinion of the Court



           or what [defendant] wanted to present to the jury. [Defense
           counsel] attempted to do so. In the meantime, [defendant]
           began speaking out on his own volition in the presence of
           the jury, and so the Court immediately sent the jury out of
           the courtroom.
                  And, [defendant], I can’t let you disrupt this trial,
           and I’ve already warned you --

                 [Defendant]: I mean, I can -- I can question the
           witness.

                  The Court: Your lawyer questions the witness. You
           don’t --

                 [Defendant]: Then I’ll represent myself. I’m firing
           my lawyer.

                 The Court: No. No, you can’t do that, I’m sorry.

                 [Defendant]: See, I can represent myself.

                 The Court: No, I’m sorry. In my discretion, I’m not
           allowing you to do that.

                  [Defendant]: I can represent myself. I can represent
           myself. It ain’t -- ain’t no kind of mess like that, because
           he ain’t questioned him what I’m going to question him.

                 The Court: Well, you ask [defense counsel] what you
           want him to ask the --

                  [Defendant]: I done told him, and ain’t none of that
           stuff been done, and I’m going for the --

                  The Court:    You ask [defense counsel] what
           questions you want to present to the witnesses in front of
           the jury.

The State then requested a determination regarding whether defendant should be

held in contempt and removed from the courtroom for making repeated statements


                                       -13-
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                                 Opinion of the Court



in front of the jury. The trial court instructed defendant to wait his turn before

speaking and admonished him to cease engaging in disruptive behavior. Defendant

made additional comments regarding the questions he desired to pose to Detective

Braswell:

                  [Defendant]: . . . I waited till it was our turn to
            question this witness, and now I ain’t even questioned him.

                   The Court: Well, but the way the process works, you
            don’t ask the questions, your attorney asks the questions.

                    [Defendant]: He didn’t ask -- I told him to ask him.
            Things wasn’t stated. It was things I needed -- I needed to
            [sic] them to hear.

                   The Court: He is a professional. He is --

                   [Defendant]: The truth be told about --

                   The Court: -- very experienced. He knows what he’s
            doing. The manner in which he asks questions is part of the
            expertise provided by counsel. It’s part of the assistance of
            counsel that’s provided. And you are not an attorney, and
            you are relying on his assistan[ce].

                   [Defendant]: I know the law. I know the law.

                  The Court: -- and you can talk to him and confer
            with him and let him know what questions you think
            should be asked, but he asks the questions, not you.

                   [Defendant]: He got -- he got to ask them, then, and
            put things out. That’s the thing, I’ll represent myself. I
            don’t even need a counsel.

The trial court again denied defendant’s request to represent himself and ordered

that he be removed from the courtroom in light of his disruptive behavior throughout


                                        -14-
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                                  Opinion of the Court



the trial, but stated that defense counsel would be given frequent opportunities to

consult with his client. Nonetheless, before his removal, defendant continued to

challenge his counsel’s questioning of Detective Braswell:

                   [Defendant]: Well, see, I’ll tell him the question, to
             ask him something, and he don’t do it. Come on, man.

                    The Court: Sir, you’re doing it now, and I have not
             held you in contempt. In my discretion, I have not done
             that. The State has not brought any obstruction charges --

                   [Defendant]: Well, I’m -- I’m gonna give him -- I’m
             gonna have -- I’m gonna talk to him so he can say what I
             would say?

                   The Court: That’s how it works, sir.

                   [Defendant]: Exactly. And he didn’t do it. That’s
             what I’m talking about.

                   The Court: Well, that’s between you and [your trial
             counsel] --

                   [Defendant]: I’m gonna get another attorney.

                   The Court: -- that’s not for me to interject.

                   ....

                   The Court: I’ve given you ample opportunity to not
             be disruptive, to assist in your defense while in the
             courtroom. It’s readily apparent to the Court that you’re
             not willing to do that.

The record does not disclose the nature of the questions defendant wanted his attorney

to ask Detective Braswell.




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                                    Opinion of the Court



       Defendant argues that the trial court’s failure to adequately address the

impasse between defendant and his counsel regarding the questions to be asked of

Detective Braswell, and the court’s failure to instruct counsel to comply with

defendant’s wishes at that time, amounted to a denial of his constitutional rights to

control his defense and confront witnesses. Defendant argues, and the Court of

Appeals held, that the trial court’s actions violated this Court’s opinion in State v. Ali,

329 N.C. 394, 407 S.E.2d 183 (1991).


       In Ali we recognized that tactical decisions, including how to conduct cross-

examination, which jurors to strike, and the motions to be made at trial are within

the province of the attorney. Id. at 404, 407 S.E.2d at 189 (citation omitted). The

defendant in Ali argued that “the trial court denied him his right to assistance of

counsel by allowing him, rather than his lawyers, to make the final decision regarding

whether [a particular individual] would be seated as a juror.” Id. at 402, 407 S.E.2d

at 189. We stated that

              when counsel and a fully informed criminal defendant
              client reach an absolute impasse as to such tactical
              decisions, the client’s wishes must control; this rule is in
              accord with the principal-agent nature of the attorney-
              client relationship. In such situations, however, defense
              counsel should make a record of the circumstances, her
              advice to the defendant, the reasons for the advice, the
              defendant’s decision and the conclusion reached.




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                                   Opinion of the Court



Id. at 404, 407 S.E.2d at 189. Because defense counsel in Ali made such a record, we

concluded that the defendant was not denied effective assistance of counsel. Id. at

404, 407 S.E.2d at 189-90.


      We have stated that

             [ineffective assistance of counsel (IAC)] claims brought on
             direct review will be decided on the merits when the cold
             record reveals that no further investigation is required, i.e.,
             claims that may be developed and argued without such
             ancillary procedures as the appointment of investigators or
             an evidentiary hearing. . . .

                    ....

                    Accordingly, should the reviewing court determine
             that IAC claims have been prematurely asserted on direct
             appeal, it shall dismiss those claims without prejudice to
             the defendant’s right to reassert them during a subsequent
             [motion for appropriate relief (MAR)] proceeding.

State v. Fair, 354 N.C. 131, 166-67, 557 S.E.2d 500, 524-25 (2001) (citations omitted),

cert. denied, 535 U.S. 1114 (2002). Here, defendant told the trial court that his

attorney was not asking the questions defendant told him to ask Detective Braswell;

however, the record does not shed any light on the nature or the substance of those

desired questions. We note that defendant was generally disruptive throughout trial,

was forced to leave the courtroom when this behavior escalated while Detective

Braswell was on the witness stand, and had to consult with his attorney outside of

court thereafter. In light of defendant’s disruptive behavior, we cannot ascertain,

without engaging in conjecture, whether defendant had a serious disagreement with


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                                  Opinion of the Court



his attorney regarding trial strategy or whether he simply sought to hinder the

proceedings. As a result, it cannot be determined from the cold record whether an

absolute impasse existed as described in Ali. Accordingly, we vacate this portion of

the Court of Appeals’ opinion and remand this case to that court for entry of an order

dismissing defendant’s IAC claim without prejudice to his right to assert it in a

motion for appropriate relief.


      REVERSED IN PART; VACATED IN PART AND REMANDED.


      Justice ERVIN did not participate in the consideration or decision of this case.




      Justice NEWBY concurring.


      I fully agree with the majority opinion. I write separately simply to emphasize

another way to understand the validity of the attempt crime at issue. It seems

confusion has arisen because the term “assault” sometimes refers to an attempted

battery, but often in our criminal code “assault” refers to a completed battery. Here

the disputed crime is attempted felonious assault with a deadly weapon inflicting

serious injury under N.C.G.S. § 14-32. In this context, the term “assault” does not

mean an attempted battery but requires a completed battery.




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                                  STATE V. FLOYD

                              NEWBY, J., concurring


      Section 14-32 describes three different types of felonious assault with a deadly

weapon and assigns varying punishment levels to each:

            (a)     Any person who assaults another person with a
                    deadly weapon with intent to kill and inflicts
                    serious injury shall be punished as a Class C felon.

            (b)     Any person who assaults another person with a
                    deadly weapon and inflicts serious injury shall be
                    punished as a Class E felon.

            (c)     Any person who assaults another person with a
                    deadly weapon with intent to kill shall be punished
                    as a Class E felon.

N.C.G.S. § 14-32 (2015).

      In State v. Birchfield we recognized that the statutory definition of “assault”

under N.C.G.S. § 14-32 requires a completed battery:

                    To warrant the conviction of an accused of a
            felonious assault and battery under G.S. 14-32 . . . the State
            must produce evidence sufficient to establish beyond a
            reasonable doubt that he did these four things: (1) That he
            committed an assault and battery upon another; (2) that he
            committed the assault and battery with a deadly weapon;
            (3) that he committed the assault and battery with intent
            to kill the victim of his violence; and (4) that he thus
            inflicted on the person of his victim serious injury not
            resulting in death.

235 N.C. 410, 413, 70 S.E.2d 5, 7 (1952) (emphases added) (citations omitted)

(upholding conviction for assault with a deadly weapon inflicting serious bodily

injury). Thus, while the statute uses the term “assault,” it means “assault and

battery” or a completed battery. See Williams v. United States, No. 1:11CR408-1,



                                        -19-
                                   STATE V. FLOYD

                               NEWBY, J., concurring


2014 WL 1608268, at *1 (M.D.N.C. Apr. 22, 2014) (unpublished) (noting that “while

other . . . cases suggest a definition of misdemeanor assault under N.C. Gen. Stat.

§ 14-33 . . . the Birchfield definition of felony assault highlights the presence of a

battery element”).

      Assault and battery is commonly defined as “the act of threatening to attack

someone physically and then actually doing it.” Assault and Battery, Black’s Law

Dictionary (10th ed. 2014). One who intends to commit felonious assault and battery

with a deadly weapon, and who does an overt act for that purpose going beyond mere

preparation, but who ultimately fails to complete all the elements of this offense,

would be guilty of attempted felonious assault and battery under N.C.G.S. § 14-32

rather than the completed offense. See State v. Powell, 277 N.C. 672, 678, 178 S.E.2d

417, 421 (1971) (Proving “attempt” requires the State to show that a defendant

intended to commit the underlying crime and committed “an overt act done for that

purpose, going beyond mere preparation, but falling short of the completed offense.”).

      The record reflects that defendant, represented by counsel, pled guilty to the

offense of attempted assault with a deadly weapon inflicting serious injury in

violation of N.C.G.S. § 14-32. Nevertheless, defendant suggests that he should not

be held accountable for a conviction based upon his own admissions and plea

agreement and further asks us to speculate as to which of the elements under

N.C.G.S. § 14-32 were satisfied. Since we are dealing with a theoretical issue, the

question is simply whether under any scenario a defendant could be convicted of

                                         -20-
                                    STATE V. FLOYD

                               NEWBY, J., concurring


attempted assault with a deadly weapon inflicting serious injury in violation of

N.C.G.S. § 14-32. Because the statutory definition of “assault” as used in N.C.G.S.

§ 14-32 requires a completed battery, one can be convicted of attempting to commit

the offense.




      Justice BEASLEY concurring in part and dissenting in part.

      I concur with the judgment of the Court as to defendant’s challenge to the right

to control his defense in the cross-examination of Detective Braswell. But, because I

would conclude that attempted assault with a deadly weapon inflicting serious injury

is not a cognizable offense in North Carolina, I would affirm the judgment of the Court

of Appeals on this issue, and therefore, I respectfully dissent.

      The issue before this Court is whether “attempted assault with a deadly

weapon inflicting serious injury” describes a cognizable felony offense that can serve

as an underlying felony conviction in a charge for possession of a firearm by a

convicted felon and for attaining habitual felon status. I would hold that it is not for

several reasons. First, the statutory framework laid out by our General Assembly in

Chapter 14, Article 8 of the North Carolina General Statutes evidences the

legislature’s determination that one cannot be convicted of attempting an “assault

with a deadly weapon inflicting serious injury.” Second, I would hold that the show-


                                          -21-
                                    STATE V. FLOYD

                Beasley, J., concurring in part and dissenting in part


of-violence definition of assault is not applicable to the term “assault” in “assault with

a deadly weapon inflicting serious injury.” Finally, I would conclude that the show-

of-violence theory of assault cannot be logically extended to include an inchoate

crime—namely, an attempt.

      First, the statutory framework laid out in Chapter 14, Article 8 demonstrates

a legislative decision that attempted “assault with a deadly weapon inflicting serious

injury” is not a crime for which a defendant may be convicted. Chapter 14, Article 8

was enacted to provide different punishments for varying degrees of the common law

crime of assault and not as an endeavor to “create separate and distinct criminal

offenses.”   State v. Lefler, 202 N.C. 700, 701, 163 S.E. 873, 874 (1932) (“The

Legislature did not mean to create separate and distinct criminal offenses, such as

assault with [a] deadly weapon, assault with serious damage, assault upon a woman

when the man is over eighteen years of age, or any other kind of assault which is

aggravated in its circumstances or [of] serious and lasting damage in its

consequences.” (quoting State v. Smith, 157 N.C. 578, 584, 72 S.E. 853, 855 (1911))).

“There is but one offense, the crime of assault, and the varying degrees of aggravation

were mentioned only for the purpose of graduating the punishment.” Id. at 701, 163

S.E. at 874 (quoting Smith, 157 N.C. at 584, 72 S.E. at 855 (1911)).

      For example, sbsection 14-32(b) states that “[a]ny person who assaults another

person with a deadly weapon and inflicts serious injury shall be punished as a Class

E felon,” N.C.G.S. § 14-32(b) (2015) (emphasis added), and subdivision 14-33(c)(1)

                                          -22-
                                      STATE V. FLOYD

                 Beasley, J., concurring in part and dissenting in part


states that any person who commits an assault and “[i]nflicts serious injury upon

another person or uses a deadly weapon” is “guilty of a Class A1 misdemeanor,” id. §

14-33(c)(1) (2015) (emphasis added). Under either statute a defendant would be

guilty of assault but, based on how the assault was carried out, would be punished

differently.

       Here defendant was convicted in 2005 of attempted assault with a deadly

weapon inflicting serious injury.4      See id. § 14-32(b) (“Any person who assaults

another person with a deadly weapon and inflicts serious injury shall be punished as

a Class E felon.”). According to section 14-2.5, “[u]nless a different classification is

expressly stated, an attempt to commit a misdemeanor or a felony is punishable

under the next lower classification as the offense which the offender attempted to

commit.” Id. § 14-2.5 (2015). As such, defendant was punished as a Class F felon.

The conduct that would constitute an “attempt” to “assault with a deadly weapon

inflicting serious injury” is, however, subject to a different classification covered by




       4 Defendant was charged with assault with a deadly weapon with intent to kill
inflicting serious injury pursuant to subsection 14-32(a), but ultimately pleaded no contest
to “attempted assault with a deadly weapon inflicting serious injury” and was punished as
a Class F felon. Though the indictment against defendant in the present action states that
his previous felony conviction was under subsection 14-32(a), it appears defendant’s 2005
conviction was actually under subsection 14-32(b), as indicated by the language of what he
pleaded to as well as how he was punished. Thus, I use subsection 14-32(b), as does the
majority, as an illustration. However, the same rationale that follows can be applied to
subsection 14-32(a), namely that any uncompleted element of that assault puts the offense
under another enumerated statute, and is not properly classified as an attempt to violate
that particular statute.

                                            -23-
                                       STATE V. FLOYD

                  Beasley, J., concurring in part and dissenting in part


another assault statute, namely subdivision 14-33(c)(1). Therefore, defendant should

not have been punished under the provisions of N.C.G.S. §§ 14-32(b) and 14-2.5.

       As the majority reiterates, an attempt is (1) an intent to commit an act, and (2)

“an overt act done for that purpose, going beyond mere preparation, but falling short

of the completed offense.” State v. Powell, 277 N.C. 672, 678, 178 S.E.2d 417, 421

(1971) (citations omitted). Because an attempt occurs when the defendant’s actions

“fall[ ] short of the completed offense,” it follows that attempt necessitates that some

element of the crime is not complete. As applied to the crime of “assault with a deadly

weapon inflicting serious injury,”5 the majority states:

              As a logical matter, these principles may be applied to the
              offense of assault with a deadly weapon inflicting serious
              injury in a straightforward fashion. A person who intends
              to “assault[ ] another person with a deadly weapon and
              inflict[ ] serious injury,” and who does an overt act for that
              purpose going beyond mere preparation, but who
              ultimately fails to complete all the elements of this
              offense—for example, by failing to inflict a serious injury—
              would be guilty of the attempt rather than the complete
              offense.


       Contrary to the majority’s assertion, if a person “fails to complete all of the

elements of the offense—for example, by failing to inflict a serious injury” or failing




       5 The elements of assault with a deadly weapon inflicting serious injury are “(1) an
assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death.” State
v. Wilson, 203 N.C. App. 110, 114, 689 S.E.2d 917, 920 (2010) (quoting State v. Woods, 126
N.C. App. 581, 592, 486 S.E.2d 255, 261 (1997)).


                                              -24-
                                      STATE V. FLOYD

                 Beasley, J., concurring in part and dissenting in part


to use a deadly weapon—that person is guilty of the type of assault described in

N.C.G.S. § 14-33(c)(1),6 which is an assault inflicting serious injury upon another

person or by use of a deadly weapon, and not an attempt to violate subsection 14-

32(b).

              The primary distinction between felonious assault under
              G.S. § 14-32 and misdemeanor assault under G.S. § 14-33
              is that a conviction of felonious assault requires a showing
              that a deadly weapon was used and serious injury resulted,
              while if the evidence shows that only one of the two
              elements was present, i.e., that either a deadly weapon was
              used or serious injury resulted, the offense is punishable
              only as a misdemeanor.


State v. Lowe, 150 N.C. App. 682, 685, 564 S.E.2d 313, 316 (2002) (quoting State v.

Owens, 65 N.C. App. 107, 110-11, 308 S.E.2d 494, 498 (1983)) (holding that it was

plain error for the trial court not to instruct on misdemeanor assault inflicting serious

injury under N.C.G.S. § 14-33 when it was questionable whether fists and a toilet

seat or lid were used as deadly weapons).7 Any “attempt” to “assault[ ] another person

with a deadly weapon and inflict[ ] serious injury” that “fall[s] short of the completed

offense” is, per the legislature’s determination, an assault as described in another


         6“Unless the conduct is covered under some other provision of law providing greater
punishment, any person who commits any assault, assault and battery, or affray is guilty of
a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he or
she: (1) Inflicts serious injury upon another person or uses a deadly weapon[.]” N.C.G.S. §
14-33(c)(1).
        7 In Owens the Court of Appeals held that the trial judge should have submitted a jury

instruction on misdemeanor assault with a deadly weapon under N.C.G.S. § 14-33 as well as
on felonious assault under section 14-32 when there was evidence that the victim’s injury
was not serious. 65 N.C. App. at 111, 308 S.E.2d at 498.

                                            -25-
                                    STATE V. FLOYD

                 Beasley, J., concurring in part and dissenting in part


statute, such as misdemeanor assault. Thus, in such a situation, a defendant should

be convicted under the appropriate assault statute and not under a theory of

“attempt” of a different statute.

       That a defendant should be convicted under the appropriate assault statute is

especially important given the legislature’s classifications of various types of assault

and their corresponding punishments.        As stated above, a person who violates

subsection 14-32(b) is guilty of a Class E felony and a person who violates subdivision

14-33(c)(1) is guilty of a Class A1 misdemeanor. If a person commits a subdivision

14-33(c)(1) misdemeanor assault by either inflicting serious injury on another person

or by use of a deadly weapon, but is convicted for an attempted assault under section

14-32(b) instead, then that person would be punished for a Class F felony instead of

a misdemeanor. See N.C.G.S. § 14-2.5.

       The majority’s holding here undermines the legislature’s determination of how

to differentiate and punish different types of assault by sanctioning charging and

convicting defendants of a felony when these defendants would otherwise be facing a

misdemeanor charge or conviction under the statutes as written.

       Therefore, given the statutory scheme for assaults laid out by the General

Assembly in Chapter 14, Article 8 of the North Carolina General Statutes, I would

conclude that one cannot be convicted of attempting an “assault with a deadly weapon

inflicting serious injury.”



                                          -26-
                                     STATE V. FLOYD

                 Beasley, J., concurring in part and dissenting in part


       Second, attempted assault with a deadly weapon inflicting serious injury is not

cognizable under the show-of-violence theory of assault.          “There is no statutory

definition of assault in North Carolina, and the crime of assault is governed by

common law rules.” State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967).

Citing Roberts, the majority notes that this Court has defined two theories of assault.

A person commits assault by

              an overt act or an attempt, or the unequivocal appearance
              of an attempt, with force and violence, to do some
              immediate physical injury to the person of another, which
              show of force or menace of violence must be sufficient to put
              a person of reasonable firmness in fear of immediate bodily
              harm.


Id. at 658, 155 S.E.2d at 305 (quoting 1 Strong’s North Carolina Index: Assault and

Battery § 4 (1957)). A person also commits assault by “a show of violence accompanied

by reasonable apprehension of immediate bodily harm or injury on the part of the

person assailed which causes him to engage in a course of conduct which he would

not otherwise have followed.” Id. at 658, 155 S.E.2d at 305.

       In determining that attempted assault with a deadly weapon inflicting serious

injury is a recognized offense in North Carolina, the majority holds that this

attempted assault is possible under this Court’s “show-of-violence” theory of assault.8


       8 The majority seems to acknowledge without explicitly stating that there is no such
crime as an attempted “attempted battery” type of assault. I agree. Though the majority
calls into question this Court’s statement to that effect in State v. Hewett, 158 N.C. 627,


                                           -27-
                                      STATE V. FLOYD

                 Beasley, J., concurring in part and dissenting in part


Nonetheless, at the end of its analysis, the majority does not explain how an assault

under the show-of-violence theory would apply in the context of an attempted assault

with a deadly weapon inflicting serious injury.

       The majority states that

              [T]here is a substantial overlap between the two definitions
              of assault because an overt act or attempt to do immediate
              physical injury to another person is likely to constitute a
              show of violence that causes fear and change of behavior.
              As a result, relying upon the show-of-violence rule to define
              attempted assault does not create a significant limitation
              on the conduct covered by this offense.


I disagree. The majority’s combination or “substantial overlap” of the two definitions

of assault is essentially a reiteration of one definition of assault, specifically the

“attempted battery” definition of assault: “[A]n overt act or an attempt, or the

unequivocal appearance of an attempt, with force and violence, to do some immediate

physical injury to the person of another, which show of force or menace of violence

must be sufficient to put a person of reasonable firmness in fear of immediate bodily

harm.” Roberts, 270 N.C. at 658, 155 S.E.2d at 305 (emphasis added) (citations

omitted) (quoting 1 Strong’s North Carolina Index: Assault and Battery § 4 (1957)).

This definition of assault already takes into account that an overt act of violence or



629, 74 S.E. 356, 357 (1912) by labeling it dicta, “[i]t is universally agreed that there is no
such crime as an attempt to commit an assault of the attempted battery variety.” Dabney v.
State, 159 Md. App. 225, 246, 858 A.2d 1084, 1096 (2004) (noting other states’ stances on
attempt of “attempted battery” assault as discussed in Marjorie A. Shields, Annotation,
Attempt to Commit Assault as Criminal Offenses, 93 A.L.R. 5th 683 (2004)).

                                             -28-
                                  STATE V. FLOYD

               Beasley, J., concurring in part and dissenting in part


attempt to do immediate physical injury to another person is likely to cause fear and

probably a change of behavior in another person. The show-of-violence theory then

must be something different.

      As noted by the majority in this case and this Court in Roberts, the show-of-

violence rule developed from early decisions by this Court in which a person “offered

to strike” another person, without yet “attempting to strike,” but still the offer to

strike—or show of violence—was such that it caused the other person to reasonably

fear that immediate bodily harm would ensue if he or she did not take a different

course of conduct.   See State v. Shipman, 81 N.C. 513 (1879) (holding that the

defendant committed assault when he used threatening language and walked within

six feet of the victim with a knife in hand, which alarmed the victim and caused him

to immediately leave in order to avoid imminent danger); State v. Rawles, 65 N.C.

334, 336-37 (1871) (holding that the defendants committed assault—an offer to

strike—when they approached the victim with weapons while using threatening

language, which caused the victim to fear imminent bodily injury and take a different

path home, though none of the weapons were “taken from the [bearer’s] shoulder”

and they did not get nearer to the victim than about seventy-five yards); State v.

Church, 63 N.C. 15 (1868) (holding that the defendant committed assault—an offer

of violence—when he drew a pistol from its sheath but did not cock or point it and

walked within ten steps of the victim using threatening language causing the victim

to fear bodily harm and leave); State v. Hampton, 63 N.C. 13 (1868) (holding that the

                                        -29-
                                   STATE V. FLOYD

                Beasley, J., concurring in part and dissenting in part


defendant committed assault—an offer of violence—when he threatened to hit the

victim and made a fist, but did not draw his arm back to hit him, causing the victim

to fear bodily harm and take another course). As these early cases demonstrate, a

show of violence—or an offer of violence as it was previously termed—is something

less than an attempted violent act. Hampton, 63 N.C. 14 (“An assault is usually

defined to be an offer, or attempt to strike another. An attempt means something

more than an offer.”). As such, one cannot attempt to “show violence” because by its

nature a “show of violence” is something less than an attempt of violence.

      Based on the observation that a show of violence is less than an attempt, I

would conclude that the show-of-violence definition is not applicable to the statutory

offense of “assault with a deadly weapon inflicting serious injury,” much less an

attempt of such action. As the majority notes in its opinion, “the show-of-violence

rule does not involve an attempt to cause injury to another person, but is based upon

a violent act or threat that causes fear in another person.” And, as just described

above, this show of violence is something less than or precedes an attempt to

physically harm another.      Thus, the show-of-violence definition of assault is

inapposite to the type of assault described in subsection 14-32(b), in which infliction

of a serious injury is an element. As such, only the common law definition that defines

assault as “an overt act or an attempt, or the unequivocal appearance of an attempt,

with force and violence, to do some immediate physical injury to the person of




                                         -30-
                                        STATE V. FLOYD

                  Beasley, J., concurring in part and dissenting in part


another” is applicable to this assault statute.9 For this reason as well, I disagree with

the majority’s conclusion that one can attempt an assault with a deadly weapon

inflicting serious injury under a show-of-violence theory of assault.

       Lastly, I disagree with the majority that North Carolina law recognizes any

type of attempted assault. As this Court noted in Roberts, the difference between the

two theories of assault is where the emphasis is placed. The common law rule “places

emphasis on the intent or state of mind of the person accused,” whereas the show-of-

violence rule “places the emphasis on the reasonable apprehension of the person

assailed.” Roberts, 270 N.C. at 658, 155 S.E.2d at 305. Thus, assault is either an

attempt to cause injury or a show of violence that would put a reasonable person in




       9  Admittedly, it would be helpful if the legislature included a definition of assault in
the felony assault statute as the statute does seem to envision a battery as the concurrence
asserts. While State v. Birchfield describes the elements of section 14-32 to include a battery,
235 N.C. 410, 413, 70 S.E.2d 5, 7 (1952), this Court has recognized on numerous other
occasions that the elements of the offense do not require a completed battery. See, e.g., State
v. King, 343 N.C. 29, 35-36, 468 S.E.2d 232, 237 (1996) (“The essential elements of assault
with a deadly weapon with intent to kill inflicting serious injury are: ‘(1) an assault, (2) with
a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5) not resulting in
death.’ ” (quoting State v. Reid, 335 N.C. 647, 654, 440 S.E.2d 776, 780 (1994))), State v. Reid,
335 N.C. 647, 654, 440 S.E.2d 776, 780 (1994) (“The essential elements of the crime are (1)
an assault, (2) with a deadly weapon, (3) with intent to kill, (4) inflicting serious injury, (5)
not resulting in death.”), State v. Meadows, 272 N.C. 327, 331, 158 S.E.2d 638, 640 (1968)
(“The crime of felonious assault, created and defined by G.S. s 14-32, consists of these
essential elements: (1) An assault, (2) with a deadly weapon, (3) with intent to kill, (4)
inflicting serious injury, (5) Not resulting in death.”); State v. Jones, 258 N.C. 89, 91, 128
S.E.2d 1, 3 (1962) (“The statutory offense embodies (1) assault, (2) with a deadly weapon, (3)
the use of the weapon must be with intent to kill, (4) the result of the use must be the infliction
of serious injury, and (5) which falls short of causing death.”).


                                               -31-
                                      STATE V. FLOYD

                 Beasley, J., concurring in part and dissenting in part


fear imminent injury. The majority concludes that attempted assault is a cognizable

offense in North Carolina under the show-of-violence theory of assault but does not

explain how one may attempt to show violence, except to say that the definition of a

show-of-violence assault “does not include any reference to attempt,” and thus by

definition, because it is not an attempt to attempt, it may be attempted. As explained

above, relying upon the show-of-violence rule to describe attempted assault is not

logical because a show of violence causing someone to reasonably fear an injury is

something less than even attempting to injure.

       Therefore, I would conclude that attempted assault with a deadly weapon

inflicting serious injury is not a crime in North Carolina.10 Because I would hold that

attempted assault with a deadly weapon is not a cognizable offense in North Carolina

and therefore cannot serve as an underlying conviction for possession of a firearm by

a felon or for attaining habitual felon status, these judgments should be vacated. For

the reasons stated above, I would affirm the Court of Appeals on this issue and

conclude that attempted assault is not a crime in North Carolina under our common

law definition of assault. Thus, I respectfully dissent from the majority’s holding on




       10 The State argued in its brief that the defendant could not challenge his conviction
of attempted assault with a deadly weapon inflicting serious injury because such a
challenge would be an impermissible collateral attack. At oral arguments, however, the
State conceded that an indictment that alleges an offense that does not exist would not
create jurisdiction in the trial court. The trial court does not have jurisdiction to enter
judgment on a nonexistent crime and thus defendant’s attempted assault conviction would
be a nullity.

                                            -32-
                                 STATE V. FLOYD

              Beasley, J., concurring in part and dissenting in part


this issue.




                                       -33-
