              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-737

                                Filed: 17 March 2020

Carteret County, Nos. 16 CRS 53232-33, 16 CRS 53235-36

STATE OF NORTH CAROLINA

             v.

JEREMY WADE DEW, Defendant.


      Appeal by defendant from judgments entered 7 February 2018 by Judge John

Nobles in Carteret County Superior Court.       Heard in the Court of Appeals 19

February 2020.


      Attorney General Joshua H. Stein, by Assistant Attorney Generals Wes
      Saunders and Daniel P. O’Brien, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel K.
      Shatz, for defendant-appellant.


      BERGER, Judge.


      Jeremy Wade Dew (“Defendant”) was found guilty of kidnapping, two counts

of assault with a deadly weapon inflicting serious injury (“AWDWISI”), one count of

assault on a female, and one count of communicating threats.          Defendant was

sentenced to 75 to 102 months in prison. Defendant appeals, contending that the

trial court erred when it (1) denied Defendant’s motion to dismiss because the

evidence before the trial court established only one assault that resulted in multiple

injuries, not multiple assaults; (2) instructed the jury that Defendant’s hands, feet,
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and teeth could be deadly weapons; and (3) failed to conduct a charge conference. We

find no error.

                         Factual and Procedural Background

       On the weekend of July 29-31, 2016, Defendant and the victim traveled to

Atlantic Beach, North Carolina for a vacation with the victim’s parents. At the time,

the victim and Defendant were in a relationship and lived together.

       On July 30, 2016, Defendant took some form of pain medication, went to the

liquor store, and began drinking. Later in the evening, Defendant obtained the

victim’s car keys, and stated that he was leaving to “get some cocaine and [expletive

deleted].” Defendant drove off, and the victim went to a neighbor for help. By the

time she got help, Defendant returned to the vacation home and locked the victim

out.

       When Defendant eventually allowed the victim inside, she went into the

bedroom. Defendant hit the victim in the head while she was seated on the bed.

Defendant continued to hit the victim with both his hands and fists while calling her

a “slut.” The victim did not defend herself because she had “never been through a

situation like this before” and “was too scared to” hit Defendant. For about two hours,

Defendant “punched [her] in the nose,” “bit [her] ear and bit [her] nose,” “kicked [her]

in the chest,” “head-butted [her] twice,” and “strangled [her] until vomiting.” The

victim was unable to scream for help “[b]ecause at one point in time he had [her] face



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down with [her] arms behind [her] back.” The sheets to the bed were covered in the

victim’s blood, and the victim believed Defendant was going to kill her.

      Defendant later forced the victim to get into her car. Defendant drove away

from the vacation home. While driving, Defendant threw the victim’s cell phone out

the window and continued to strike her in the head, ultimately rupturing her

eardrum. At various times throughout the drive, Defendant pulled off the road,

strangled the victim, and threatened to push her out of the car.

      Around 3:00 a.m. on July 31, 2016, they arrived at the victim’s house in Sims,

North Carolina. Defendant continued to threaten the victim and threatened to harm

himself. At this time, the victim was in extreme pain as her head and body hurt, her

ears were ringing, and her throat was sore.

      Around 6:00 a.m. on July 31, 2016, the victim’s mother called Defendant’s

phone. The victim answered and told her mother that she needed help. Her mother

then discovered the blood-stained sheets in the vacation home.        Soon after, the

victim’s sister came to the house in Sims, and the victim told her sister about what

Defendant had done the night before.

      The victim’s sister called 911. When EMS arrived, they determined that the

victim’s nose was broken. She was transported to the emergency room where it was

determined that the victim needed surgery to prevent further hearing loss.




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      The victim’s parents arrived at the emergency room and later took her back to

Atlantic Beach where she gave a statement to the Atlantic Beach Police Department.

As of September 15, 2016, the victim was still “receiving medical care for [her]

headaches and dizziness” and was suffering from anxiety and continued ear pain.

      On August 1, 2016, Defendant was arrested. On February 5, 2018, Defendant

was tried on the following offenses: (1) first degree kidnapping; (2) assault by

strangulation; (3) AWDWISI;1 (4) AWDWISI;2 (5) assault on a female for kicking the

victim in the chest; (6) assault on a female for head-butting the victim in the forehead;

and (7) communicating threats. On February 7, 2018, a Carteret County jury found

Defendant guilty of kidnapping, two counts of AWDWISI, one count of assault on a

female for head-butting the victim in the forehead, and one count of communicating

threats.

      On February 8, 2018, Defendant entered written notice of appeal. Defendant

argues on appeal that the trial court erred when it (1) denied Defendant’s motion to

dismiss because the evidence before the trial court established only one assault that

resulted in multiple injuries, not multiple assaults; (2) instructed the jury that

Defendant’s hands, feet, and teeth could be deadly weapons; and (3) failed to conduct

a charge conference. We disagree.




      1   The alleged deadly weapons for this assault were Defendant’s hands and fists.
      2   The alleged deadly weapons for this assault were Defendant’s hands, fists, and teeth.

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                                      Analysis

   I. Motion to Dismiss

      “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). A motion to dismiss

is properly denied if there is substantial evidence of (1) each element of the charged

offense, and (2) defendant being the perpetrator of the charged offense. See State v.

Earnhardt, 307 N.C. 62, 65, 296 S.E.2d 649, 651 (1982). “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citation

omitted). “In making its determination, the trial court must consider all evidence

admitted, whether competent or incompetent, in the light most favorable to the State,

giving the State the benefit of every reasonable inference and resolving any

contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223

(1994) (citation omitted).

                    In order to preserve an issue for appellate review, a
             party must have presented to the trial court a timely
             request, objection, or motion, stating the specific grounds
             for the ruling the party desired the court to make if the
             specific grounds were not apparent from the context.

N.C. R. App. P. 10(a)(1). Further, “[t]his Court will not consider arguments based

upon matters not presented to or adjudicated by the trial court. Even alleged errors

arising under the Constitution of the United States are waived if defendant does not



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raise them in the trial court.” State v. Haselden, 357 N.C. 1, 10, 577 S.E.2d 594, 600

(2003) (citations and quotation marks omitted).

      Here, Defendant argued at the close of the State’s evidence:

             And then on the assault with a deadly weapon inflicting
             serious injury. Again, deadly weapon being the hands. We
             would argue that the case law seems to look at the size
             difference between the defendant and the victim, the
             brutality of the attack, what actually – the injuries that
             occurred.

                   The State’s evidence was that this was an ongoing
             assault that lasted for two hours within the trailer and
             then most of the ride home. And we would contend if those
             hands were deadly weapons as bad as those pictures are
             and as bad as her injuries are, that they would be a lot
             worse based on what the State’s evidence has been and we
             would ask that that be – that the deadly weapon part of
             those be dismissed at this point.

Defendant then renewed his objection at the close of all of the evidence. Defendant

also argued at the close of all of the evidence that “the charging documents all put

the date of these incidents as July 31st,” but did not include July 30th in the dates of

offense.

      Defendant’s arguments on his motion to dismiss for sufficiency of the evidence

were directed only to whether his hands could be considered deadly weapons given

what his attorney contended was insignificant evidence of injury, and that the bills

of information did not include the correct dates of offense. Defendant did not argue,

as he does in this appeal, that the evidence before the trial court established only one



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assault that resulted in multiple injuries, not multiple assaults. Thus, Defendant

has failed to preserve this argument for appellate review. See State v. Harris, 253

N.C. App. 322, 327, 800 S.E.2d 676, 680 (2017) (“[T]he law does not permit parties to

swap horses between courts in order to get a better mount in the [appellate court].”

(citation and quotation marks omitted)).

         Even if we assume Defendant preserved his new argument, the State

presented sufficient evidence of each assault for which Defendant was convicted. “In

order for a defendant to be charged with multiple counts of assault, there must be

multiple assaults.’’ State v. McCoy, 174 N.C. App. 105, 115, 620 S.E.2d 863, 871 (2005)

(citation and quotation marks omitted). To establish that multiple assaults occurred,

there must be “a distinct interruption in the original assault followed by a second

assault[,] so that the subsequent assault may be deemed separate and distinct from

the first.” State v. Littlejohn, 158 N.C. App. 628, 635, 582 S.E.2d 301, 307 (2003)

(purgandum). To determine whether Defendant’s conduct was distinct, we are to

consider: (1) whether each action required defendant to employ a separate thought

process; (2) whether each act was distinct in time; and (3) whether each act resulted

in a different outcome. State v. Rambert, 341 N.C. 173, 176-77, 459 S.E.2d 510, 513

(1995)

         In State v. Wilkes, 225 N.C. App. 233, 736 S.E.2d 582 (2013), the defendant

initially punched the victim in the face, breaking her nose, causing bruising to her



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face, and damaging her teeth. The victim’s son entered the room where the incident

occurred with a baseball bat and hit the defendant. Id. at 235, 736 S.E.2d at 585.

The defendant was able to secure the baseball bat from the child, and he began

striking the victim with it. Id. at 235, 736 S.E.2d at 585. The defendant’s actions in

the subsequent assault “crushed two of [the victim]’s fingers, broke[] bones in her

forearms and her hands, and cracked her skull.” Id. at 235, 736 S.E.2d at 585.

      This Court, citing our Supreme Court in Rambert, determined that there was

not a single transaction, but rather “multiple transactions,” stating, “[i]f the brief

amount of thought required to pull a trigger again constitutes a separate thought

process, then surely the amount of thought put into grabbing a bat from a twelve-

year-old boy and then turning to use that bat in beating a woman constitutes a

separate thought process.” Wilkes, 225 N.C. App. at 239-40, 736 S.E.2d at 587.

      In State v. Harding, 258 N.C. App. 306, 813 S.E.2d 254, 263, writ denied, review

denied, 371 N.C. 450, 817 S.E.2d 205 (2018), this Court again applied the “separate-

and-distinct-act analysis” from Rambert, and found multiple assaults “based on

different conduct.” Id. at 317, 813 S.E.2d at 263. There, the defendant “grabb[ed the

victim] by her hair, toss[ed] her down the rocky embankment, and punch[ed] her face

and head multiple times.” Id. at 317, 813 S.E.2d at 263. The defendant also pinned

down the victim and strangled her with his hands. This Court determined that

multiple assaults had occurred because the “assaults required different thought



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processes. Defendant’s decisions to grab [the victim]’s hair, throw her down the

embankment, and repeatedly punch her face and head required a separate thought

process than his decision to pin down [the victim] while she was on the ground and

strangle her throat to quiet her screaming.” Id. at 317-18, 813 S.E.2d at 263. This

Court also concluded that the assaults were distinct in time, and that the victim

sustained injuries to different parts of her body because “[t]he evidence showed that

[the victim] suffered two black eyes, injuries to her head, and bruises to her body, as

well as pain in her neck and hoarseness in her voice from the strangulation.” Id. at

318, 813 S.E.2d at 263.

      In the present case, Defendant had to employ separate thought processes in

his decisions to punch, slap, kick, bite, and head-butt the victim. In addition, the

assaults which caused the victim’s injuries did not occur simultaneously, with one

strike, or in rapid succession. Rather, Defendant’s actions were at separate and

distinct points in time. Each assault also resulted in different injuries to the victim.

The victim suffered a ruptured eardrum from Defendant’s strikes on her ear, she

suffered a concussion from the Defendant’s conduct in head-butting her, she suffered

a fractured nose from Defendant striking her nose, and she suffered permanent

scarring from Defendant biting her nose and ear.

      Even if Defendant preserved his argument, which he did not, the trial court

did not err when it denied Defendant’s motion to dismiss.



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   II. Motion to Dismiss AWDWISI

      Defendant next argues that the trial court erred in denying Defendant’s motion

to dismiss AWDWISI because there was insufficient evidence that he used his hands,

feet, and teeth as deadly weapons. We disagree.

      “The elements of AWDWISI are: (1) an assault, (2) with a deadly weapon, (3)

inflicting serious injury, (4) not resulting in death.” State v. Jones, 353 N.C. 159,164,

538 S.E.2d 917, 922 (2000) (citation omitted). “A deadly weapon is generally defined

as any article, instrument or substance which is likely to produce death or great

bodily harm.” State v. Sturdivant, 304 N.C. 293, 301, 283 S.E.2d 719, 725 (1981)

(citation omitted).

      “An assailant’s hands may be considered deadly weapons for the purpose of the

crime of assault with a deadly weapon inflicting serious injury depending upon the

manner in which they were used and the relative size and condition of the parties.”

State v. Allen, 193 N.C. App. 375, 378, 667 S.E.2d 295, 298 (2008). “Only where the

instrument, according to the manner of its use or the part of the body at which the

blow is aimed, may or may not be likely to produce such results, its allegedly deadly

character is one of fact to be determined by the jury.” McCoy, 174 N.C. App. at 112,

620 S.E.2d at 869 (citation and quotation marks omitted); see also United States v.

Sturgis, 48 F.3d 784, 788 (4th Cir. 1995) (“The test of whether a particular object was

used as a dangerous weapon is not so mechanical that it can be readily reduced to a



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question of law. Rather, it must be left to the jury to determine whether, under the

circumstances of each case, the defendant used some instrumentality, object, or (in

some instances) a part of his body to cause death or serious injury. This test clearly

invites a functional inquiry into the use of the instrument rather than a metaphysical

reflection on its nature.”).

       In the present case, substantial evidence was presented at trial of Defendant’s

physical advantages over the victim. Defendant is approximately 5 feet 9 inches tall,

while the victim is 5 feet 4 inches tall and weighs 140 pounds. Although there is no

evidence in the record of Defendant’s weight, Defendant was present at trial and the

jury observed Defendant in person, along with photographs of Defendant from the

incident that were admitted into evidence. Thus, the jury had the opportunity to

observe the relative size differences of Defendant and the victim.

       Moreover, on the night of the incident, the victim testified that Defendant had

been drinking throughout the evening, that he was drunk, and that he was acting

“crazed and possessed.” For over two hours, Defendant struck the victim repeatedly

with his hands and fists in her ear, nose, and head, which resulted in the victim

sustaining two black eyes, a fractured nose, and swelling in her face. The victim

believed that she was “going to die” and could not defend herself against Defendant

because “he was stronger than her.” According to the victim’s sister, the victim “was

unrecognizable . . . [and] she was a zombie” the next morning. It appeared to the



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victim’s sister that “[h]er eyes were swollen. Her nose was very swollen and it looked

like blood had come down to the tip. She had a big old gash up here on her head.

Blood was in her hair. I could tell her ears -- there was some blood on her ears.”

      Furthermore, Defendant bit the victim’s nose and ear. The victim testified that

the bite to her ear was the most painful part of the attack. The victim’s doctors were

more concerned about the bite marks on her ear than her ruptured eardrum. At the

time of trial, the victim had a visible scar from where Defendant bit her on the nose.

      Moreover, the trial court provided the following instruction to the jury that

“[i]n determining whether fists, hands, and teeth were a deadly weapon, you should

consider the nature of the fists, hands and teeth, the manner in which they were used,

and the size and strength of the defendant as compared to the victim.” (Emphasis

added).

      Thus, when viewed in a light most favorable to the State, we conclude that the

State presented substantial evidence of each element of AWDWISI, and that

Defendant’s hands, feet, and teeth were deadly weapons for the purposes of

AWDWISI. Furthermore, we are reminded that the jury is the best determinant of

whether, under the circumstances, Defendant’s use of his hands, fists, and teeth were

likely to cause death or serious bodily injury. See State v. Fritsch, 351 N.C. 373, 379,

526 S.E.2d 451, 455-56 (2000) (“When ruling on a motion to dismiss, the trial court

should be concerned only about whether the evidence is sufficient for jury



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consideration, not about the weight of the evidence.”). Therefore, the trial court did

not err when it denied Defendant’s motion to dismiss.

   III. Charge Conference

      Defendant next argues that the trial court violated N.C. Gen. Stat. § 15A-

1231(b) by failing to conduct a charge conference. We disagree.

      A charge conference is a recorded conference between the judge and the parties

outside the presence of the jury where the judge “must inform the parties of the

offenses, lesser included offenses, and affirmative defenses on which he will charge

the jury” and the judge must also inform the parties of what parts of the parties’

tendered instructions will be given to the jury. N.C. Gen. Stat. § 15A-1231(b) (2019).

“The purpose of a charge conference is to allow the parties to discuss the proposed

jury instructions to insure that the legal issues are appropriately clarified in a

manner that assists the jury in understanding the case and reaching the correct

verdict.”   State v. Houser, 239 N.C. App. 410, 423, 768 S.E.2d 626, 635 (2015)

(purgandum).

      Mere noncompliance with Section 15A-1231(b) does not automatically entitle

Defendant to relief. State v. Corey, ___ N.C. ___, ___, 835 S.E.2d 830, 838 (2019)

(overruling State v. Hill, 235 N.C. App. 166, 760 S.E.2d 85 (2014)).       Rather, a

defendant must show that he or she was materially prejudiced by the judge’s failure

to fully comply with the provisions of Section 15A-1231(b). N.C. Gen. Stat. § 15A-



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1231(b). A defendant is “materially prejudiced” for purposes of Section 15A-1231(b)

“when there is a reasonable possibility that, had the error in question not been

committed, a different result would have been reached at the trial out of which the

appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2019); Corey, ___ N.C. at ___, 835

S.E.2d at 834; State v. Coburn, ___ N.C. App. ___, ___, 834 S.E.2d 691, 695 (2019)

(concluding that the defendant was not materially prejudiced when portions of the

charge conference were not recorded, as required by Section 15A-1231, because the

trial court summarized, on the record, discussions that were not recorded; the

defendant did not object to the trial court’s summary of the jury instructions on the

record; and the trial court was cognizant of the dangers of discussions held off the

record).

      The State correctly argues that Defendant could not have been materially

prejudiced because a charge conference did occur as shown in the record. At the

charge conference, the Court asked whether the parties were satisfied with the

proposed jury instructions.     Defendant stated that he was satisfied with the

instructions to be given to the jury and had the opportunity to draft the proposed jury

instructions, as evidence by the following colloquy which occurred outside the

presence of the jury:

             THE COURT:           All right. Thank you, sir. Give me one
             minute. I’ve got to look up an instruction before I bring the
             jury back in here. Not one you all did. It’s one I’ve got to
             give before you all get started. (Pause.)


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              ...

              [THE STATE]:        Is Your Honor satisfied with the jury
              instructions?

              THE COURT:           I’m satisfied with the jury instructions.
              I just kind of breezed through them, but I’m satisfied with
              them if you all are.

              [DEFENSE COUNSEL]: We are, Your Honor.

              THE COURT: All right. Now, listen, if I happen to
              misstate something or misread something, I want you to
              stop me right then, but I don’t want you to -- just stand up
              and say may I approach the bench and then both of you all
              step up here and we’ll address it.

(Emphasis added). Furthermore, after the trial court instructed the jury, Defendant

had a second opportunity to object to the instructions, as evidence by the following

discussion:

              THE COURT:        All right. For purposes of the record,
              Madam Court Reporter, both the defendant and the State
              agreed with the jury charge word-for-word. There’s no
              objection to it.

              [DEFENSE COUNSEL]: No objection to any of it.

(Emphasis added).

      Thus, it is apparent from the record that Defendant participated in a charge

conference, and he had multiple opportunities to object. Because the trial court

conducted a charge conference, the trial court did not err. Therefore, Defendant

cannot show material prejudice, and his argument is without merit.


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                               Conclusion

Defendant received a fair trial, free from error.

NO ERROR.

Judges DILLON and ARROWOOD concur.




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