This brief was written for my Appellate Advocacy class. It is based on a real case with names altered. The documents utilized for this assignment can be found here.
| No. COA | DISTRICT 27B |
| NORTH CAROLINA COURT OF APPEALS |
| STATE OF NORTH CAROLINA v. MR. FRANKIE THOMASON | From Lincoln County Nos. 20 CRS 657, 52458 |
Defendant-Appellant’s Principal Brief
Index
Table of Contents
Statement of Grounds for Appellate Review.. 2
2. Interruption in the Momentum of the Attack. 11
5. Mr. Hendricks’s Injuries. 16
Certificate of Filing and Service. 20
| No. COA | DISTRICT 27B |
| NORTH CAROLINA COURT OF APPEALS |
| STATE OF NORTH CAROLINA v. MR. THOMASON THOMASON | From Lincoln County Nos. 20 CRS 657, 52458 |
Defendant-Appellant’s Principal Brief
Issue Presented
- The trial court erred by denying Mr. Thomason’s motion to dismiss all but one of the assault charges when there was no evidence of a distinct interruption during the attack, and consequently no evidence of multiple assaults.
Statement of the Case
On 14 December 2020, a grand jury in Lincoln County returned bills of indictment against Mr. Thomason for felony aggravated assault on an individual with a disability, misdemeanor aggravated assault with a deadly weapon inflicting serious injury, and being a habitual felon. (ROA. 6-7.)[1] The jury trial for the two assault charges began on 16 February 2022, before Superior Court Judge George Bell. (Tp. 1.)
On 17 February 2022, the jury convicted Mr. Thomason in absentia of felony assault on an individual with a disability and misdemeanor assault with a deadly weapon. (Tp. 35; ROA. 25-26.) Proceedings regarding Mr. Thomason’s habitual felon status were suspended until he could be located. On 13 June 2022, Mr. Thomason appeared before the court and pled guilty to being a habitual felon. (ROA. 28-31.)
The Court sentenced Mr. Thomason to 58 to 82 months of prison. (ROA. 32-37.) Mr. Thomason gave notice of his appeal in open court. (ROA. 38.)
Statement of Grounds for Appellate Review
Mr. Thomason appeals pursuant to N.C. Gen. Stat. § 7A-27(b) from a final judgment of Lincoln County Superior Court.
Statement of Facts
At around 10:00 pm 29 August 2020, Deputy James Allen of the Lincoln County Sheriff’s Office was dispatched to respond to a 911 call made by a third-party. (Tp. 38). The call was to report an assault at the home of Carroll David Hendricks (“Mr. Hendricks”. (Tp. 50.)
When Deputy Allen arrived, he found Mr. Hendricks in a calm demeanor. (Tp. 54.) Despite the pain he was in, Mr. Hendricks explained what happened to Deputy Allen, but did not seek to press charges on the night of the incident. (Tp. 55.)
Mr. Hendricks is a 68-year-old wheelchair-bound man; he had his legs amputated seven years ago. (Tp. 19.) He lives in a trailer park in Lincoln County with his dog, a yorkie, named Pressley. (Tp. 19-20.) At the time of the incident, Pressley was in heat. (Tp. 20.) To protect his dog, Mr. Hendricks carried a CO2 powered BB gun with him while he let Pressley out to use the bathroom. (Tp. 20, 29.) On the night of the incident, Mr. Hendricks rolled his wheelchair out onto his porch to let Pressley out, but noticed there were dogs in his yard. (Tp. 21.) Before Pressley descended the wheelchair ramp or reached the yard, Mr. Hendricks began firing his BB gun at the dogs in his yard. (Tp. 21.) Though the dogs in his yard “yell[ed]” and ran away, Pressley ran back inside scared as well. (Tp. 22.)
After Mr. Hendricks fired his BB gun and the dogs ran away, the defendant, Frankie Thomason (“Mr. Thomason”) came around from a nearby building. (Tp. 22.) Mr. Hendricks and Mr. Thomason knew each other. (Tp. 22.) Mr. Thomason was well known in the trailer park. (Tp. 53.) Mr. Hendricks knew Mr. Thomason’s girlfriend. (Tp. 28.) Mr. Hendricks granted Mr. Thomason and his girlfriend extensive access to his property. This included allowing Mr. Thomason to charge his phone using an electrical outlet outside of his trailer, invited him over for meals, and even allowed Mr. Thomason’s girlfriend, and possibly Mr. Thomason as well, to use the shower in his trailer. (Tp. 23-24, 28-29, 32, 53.)
After Mr. Hendricks fired at the dogs in his yard, Mr. Thomason came around a nearby building and expressed his displeasure that Mr. Hendricks had shot at the dogs. (Tp. 32.) Mr. Thomason began cussing towards Mr. Hendricks, who still had the BB gun in his hands. (Tp. 23, 30.)
As Mr. Hendricks turned his wheelchair to head inside his trailer, Mr. Thomason threw a two-by-six board from the yard, hitting Mr. Hendricks in the back and knocking him out of his wheelchair before he could reach the threshold. (Tp. 23, 30, 31; Ex. A-10,11.) Mr. Hendricks was able to get back into his wheelchair. (Tp. 24-25). Still on the porch outside Mr. Hendricks’s trailer, Mr. Thomason approached Mr. Hendricks and hit him three times with a metal flagpole piece. (Tp. 24-25, 31, 40, 49; Ex. A-6.)
After being struck by the metal flagpole, Mr. Hendricks was able to reenter his trailer. (Tp. 24.) Mr. Thomason continued cussing toward Mr. Hendricks but did not strike him again. (Tp. 25.)
On the night of the incident, Mr. Hendricks was bruised, and his arm was hurting, but he did not go to the hospital. (Tp. 26; Exhibit A-1, 2, 3, 4, 9, 12, 13.) The following day, Mr. Hendricks did go to the hospital where he learned his arm was broken and was placed in a temporary cast. (Tp. 26; Ex. A-8.)
Despite the incident, Mr. Hendricks initially did not seek to press charges. (Tp. 55.)
Argument
- The trial court erred by denying Mr. Thomason’s motion to dismiss all but one of the assault charges when there was no evidence of a distinct interruption during the attack, and consequently no evidence of multiple assaults.
Standard of Review:
This Court reviews the trial court’s denial of a motion to dismiss de novo. State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (internal quotation marks omitted).
Preservation:
At the close of the State’s evidence, defense counsel made a general motion to dismiss, stating, “At the close of State’s evidence, we would make a motion to dismiss.” (Tp. 56.) The court denied this motion. (Tp. 57.) Defense counsel’s general motion to dismiss preserved the lack of evidence issue. See State v. Glisson, 251 N.C. App. 844, 847, 796 S.E.2d 124, 127 (2017) (“[A] general motion to dismiss for insufficiency of the evidence preserves all issues regarding the insufficiency of the evidence, even those issues not specifically argued before the court.”); State v. Pender, 243 N.C. App. 142, 151, 776 S.E.2d 352, 360 (2015) (holding that the defendant’s general motion to dismiss “preserved his insufficient evidence arguments with respect to all of his convictions”). Therefore, the issue is preserved for appellate review.
Argument:
“Upon defendant’s motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant’s being the perpetrator of such offense. If so, the motion is properly denied.”
State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000). The evidence must be viewed in the light most favorable to the State, resolving any contradictions in the State’s favor. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). “Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.'” State v. Scott, 356 N.C. 591, 592, 573 S.E.2d 866, 867 (2002)(citation omitted). “When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence.” Id. at 596-97, 573 S.E.2d at 869 (citation omitted).
Mr. Thomason was charged with assault on an individual with a disability and assault with a deadly weapon. (Tp. 7.) The elements for felony assault on an individual with a disability are that the defendant either:
(1) Uses a deadly weapon or other means of force likely to inflict serious injury or serious damage to an individual with a disability[;] (2) [i]nflicts serious injury or serious damage to an individual with a disability[; or,] (3) [i]ntends to kill an individual with a disability.
N.C. Gen. Stat. § 14-32.1(e). The elements for assault with a deadly weapon are: (1) an assault, (2) with a deadly weapon, (3) inflicting serious injury. N.C. Gen. Stat. § 14-32(b).
Though, Mr. Thomason was charged with both of these offenses despite the fact that they stemmed from the same transaction. As our Supreme Court has held,
In order for a criminal defendant to be charged and convicted of two separate counts of assault stemming from one transaction, the evidence must establish 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. Dew, 379 N.C. 64, 64, 864 S.E.2d 268, 270 (2021). “The State may charge a defendant with multiple counts of assault only when there is substantial evidence that a distinct interruption occurred between assaults.” Id., 864 S.E.2d at 270. “Substantial evidence is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion” and must be viewed in a light most favorable to the prosecution.” Id., 864 S.E.2d at 270. Evidence of a distinct interruption includes, but is not limited to:
an intervening event, a lapse of time in which a reasonable person could calm down, an interruption in the momentum of the attack, a change in location, or some other clear break delineating the end of one assault and the beginning of another.
Id., 864 S.E.2d at 270.
In Dew, Defendant Jeremy Dew was charged with multiple counts of assault stemming from one incident. Id., at 67, 864 S.E.2d at 272. Defendant Dew first assaulted victim Mindy Davis for two hours inside the trailer they were staying in. Id., at 65-66, 864 S.E.2d at 270-71. Defendant Dew then made Davis clean up the bed the assault occurred on and get in the car to leave. Id., at 66, 864 S.E.2d at 271. During the car ride home, Defendant Dew resumed assaulting Davis. Id., 864 S.E.2d at 271.
Ultimately, our Supreme Court held that the assault in the trailer and car were two distinct assaults. Id., at 74, 864 S.E.2d 276.Our Supreme Court found that Davis having to clean up the bed was an intervening event and interruption in the momentum of the attack, and that “the beating in the trailer was distinct in time and location from the beating in the car.” Id.
1. Lapse of Time
Turning to the first evidentiary consideration from Dew, there was not a lapse of time between Mr. Thomason throwing the board at Mr. Hendricks and him striking Mr. Hendricks with the flagpole. See, (Tp. 23-25, 30-31, 40, 49.) As Mr. Hendricks stated at trial, Mr. Thomason threw the board at Mr. Hendricks and then began hitting Mr. Hendricks with the pipe. (Tp. 23.) Although not stated by either party, it can be inferred that the time between Mr. Thomason throwing the board at Mr. Hendricks to him hitting Mr. Hendricks with the flagpole was seconds apart. See, (Tp. 23-25, 30-31, 40, 49.)
Supporting a finding that there was not a lapse of time is our Supreme Court’s holding is State v. Robinson, 381 N.C. 207, 872 S.E.2d 28 (2022). In Robinson, the victim, Leslie Wilson was held captive and assaulted by her boyfriend, Defendant Lewie Robinson. Robinson, 381 N.C. at 208, 872 S.E.2d at 30.In 2018, Defendant Robinson was at the house of Ms. Wilson, where they were drinking together. At some point, Robinson turned violent and began assaulting her. State v. Robinson, 275 N.C. App. 330, 331, 852 S.E.2d 915, 916 (2020). Ms. Wilson then fled into the bathroom and locked the doors. Id., 852 S.E.2d at 916. Despite locking herself in the bathroom, Robinson broke down the bathroom door and attacked Ms. Wilson. Id., 852 S.E.2d at 916. Defendant Robinson strangled Ms. Wilson on her bed and caused her black out twice. Id., 852 S.E.2d at 916.
Robinson was subsequently charged and sentenced to three types of assault. On appeal, the state argued that there was sufficient basis for the three assault sentences because, “there had to be lapses of time to calm down, to eat, to go to the bathroom.” Robinson, 381 N.C. at 215, 872 S.E.2d at 34. Despite Wilson locking herself in the bathroom and blacking out twice, our Supreme Court held that the incident was one “confined and continuous attack in which defendant choked and punched Wilson in rapid succession and without pause or interruption.” Id. at 219, 872 S.E.2d at 37.
Similar to our Supreme Court’s ruling in Robinson, there was no lapse of time when Mr. Thomason closed the distance between himself and Mr. Hendricks after throwing the board. See, (Tp. 23-25, 30-31, 40, 49.) Even if the state argues that this constitutes a distinct interruption between assaults, Robinson makes it clear that such an argument would fail. See, Robinson, 381 N.C. at 219, 872 S.E.2d at 36. If the time it takes to break down a door, bring a victim to a bedroom, or wait for the victim to regain consciousness twice does not constitute a lapse of time then the time it takes to cross a trailer’s yard to reach the victim also cannot be considered a lapse of time. Compare Robinson, 381 N.C. at 219, 872 S.E.2d at 36; to (Tp. 23-25, 30-31, 40, 49.)
2. Interruption in the Momentum of the Attack
Under the second evidentiary consideration from Dew, there was no interruption in the momentum of Mr. Thomason’s attack from when he threw the board to the time he hit Mr. Hendricks with the pole.
Though, the state is likely to argue that Mr. Thomason changing weapons by picking up the pole is sufficient to constitute an interruption in the momentum of the attack. See (Tp. 23.) While our Supreme Court held in Dew that “[e]vidence that a defendant used different methods of attack can show a distinct interruption depending on the totality of the circumstances”, Dew, 379 N.C. at 72, 864 S.E.2d at 275, our Supreme Court in Robinson also held that “a defendant’s different methods of attack standing alone are insufficient evidence of a distinct interruption.” Robinson, 381 N.C. at 208, 872 S.E.2d at 30. To better understand what our Supreme Courts means with these two cases, the case State v. Clark, 2022 N.C. App. LEXIS 212, 2022 WL 1014894 (2022) (unpublished), provides an illustration.
In Clark, Defendant Christopher Clark was charged and convicted of two types of assault. Id. at *1. In late 2018, Defendant Clark first assaulted victim Debbie Wade by throwing her onto her bed and choking her. Id. After some time, Defendant Clark stopped choking Wade, allowing her stand up and ask why he was attacking her. Id. “Defendant [Clark] then threw Wade into a closet, pulled her into a hallway, and threw her into a piece of furniture. Defendant proceeded to drag Wade into the kitchen and . . . strangl[ed] her again.” Id. at *4.
Like Mr. Thomason, Defendant Clark appealed his conviction to the Court of Appeals arguing that he should not have been charged for multiple assaults stemming from the same transaction. Id. However, this Court held that the assaults had an interruption in the momentum of the attack and thus constituted multiple assaults. Id. According to this Court, Defendant Clark’s first act of strangulation on Ms. Wade constituted one assault. His cessation of the attack, allowing Ms. Wade to rise and speak, and then resuming his assault with a different method, created a “sufficient [interruption in the momentum of the attack] to delineate between the end and beginning of each assault.” Id.
In contrast, Mr. Thomason did not provide a “sufficient [interruption in the momentum of the attack] to delineate between the end and beginning of each assault.” Id. The only potential interruption the state could argue is when Mr. Hendricks got back into wheelchair. See (Tp. 23-24, 30-31, 40, 49.) However, unlike in Clark, Mr. Hendrick getting back into his wheelchair was not enabled by Mr. Thomason as was the case when Defendant Clark stopped his strangulation of Ms. Wade and allowed her to get up. (Tp. 23-24, 30-31, 40, 49.) Although neither the distance between Mr. Thomason threw the board and Mr. Hendricks’s porch nor how long it took Mr. Thomason to close the distance was stated at trial, it can be inferred that, given Mr. Hendricks being in a wheel chair for almost a decade and his likely proficiency with it, Mr. Hendricks getting back in his wheelchair was the product of Mr. Thomason closing the distance, not enablement as was the case in Clark. Compare (Tp. 23-24, 30-31, 40, 49); to Clark, at *4.
3. Change In Location
Under the third evidentiary consideration from Dew, there was not a change in location. It is undisputed that the assault itself generally took place outside of Mr. Hendrick’s trailer. See (Tp. 23-24, 30-31, 40, 49.) The only argument that the State could make that would suggest a change in location would be when Mr. Thomason moved from Mr. Hendrick’s yard to his porch.
While this Court’s holding in State v. Johnson, 2022 N.C. App. LEXIS 40, 2022 WL 151934 (2022) (unpublished), found that there was a change in location, it is distinguishable from the present case. In Johnson, Defendant Johnson was convicted of two assault charges stemming from the same transaction. Id. at *1. Defendant Johnson first assaulted his girlfriend from the passenger seat inside her car Id. at *3. When Defendant Johnson’s girlfriend attempted to flee the car, he then exited the vehicle and assaulted her on the driver’s side outside the car. Id. Ultimately, this Court held that the change in location from inside the car on the passenger side to outside the car on the driver’s side constituted two distinct assaults. Id.
However, this Court did not conclude that there were two separate assaults based on the change in location alone. Id. This court found that Defendant Clark’s girlfriend attempting to escape constituted an interruption in the momentum of the attack, and that combined with the change in location supported a finding of two separate assaults. Id.
Returning to Mr. Thomason, other case law distinguishes Johnson from the present facts and diminishes the importance of a change in location absent other Dew factors. In Robinson, our Supreme Court held the while the assault occurred in multiple rooms of the house, absent other Dew factors, such minor changes in location did not support a finding of multiple assaults. Robinson, 381 N.C. at 219, 872 S.E.2d at 37. In Dew, our Supreme Court reached a similar conclusion by holding that an assault occurring in multiple rooms of a trailer, for several hours, and varying in methods of attack constituted one assault absent an interruption in the momentum of the attack or lapse of time. Dew, 379 N.C. at 74, 864 S.E.2d at 276. As such, this Court should find that there was not a change in location, or, in the alternative, that it alone does not support a finding of multiple distinct assaults.
4. Intervening Event
Under the fourth evidentiary consideration from Dew, there was not an intervening event. At no point during the assault was Mr. Thomason interrupted or stopped. See (Tp. 23-24, 30-31, 40, 49.)
The case law supports a finding that there was not an intervening event. In Robinson, our Supreme Court found that the victim locking herself in the bathroom to escape the Defendant did not constitute an intervening event. Robinson, 381 N.C. at 219, 872 S.E.2d at 37. In contrast, our Supreme Court in Dew found that the victim being forced to clean the bed was an intervening event. Dew, 379 N.C. at 73, 864 S.E.2d at 276.
The crucial difference between Dew and Robinson lies in the conduct of the defendants during the events. In Dew, the defendant stopped his assault while the victim cleaned the bed; during that time, he put his daughter in the car. See, Id., 864 S.E.2d at 276. In Robinson, on the other hand, the defendant broke down the door with the intention of continuing his assault on the victim. See, Robinson, 381 N.C. at 219, 872 S.E.2d at 37.
The present case closely resembles Robinson. Even if the state argues that Mr. Thomason’s actions of crossing the yard or picking up the flagpole piece constitute intervening events, both arguments fail under Robinson. See, Id., 872 S.E.2d at 37; (Tp. 24-25, 31, 40, 49.) These actions were taken to further Mr. Thomason’s assault, much like the defendant in Robinson who broke down a door to continue his assault. See, Robinson, 381 N.C. at 219, 872 S.E.2d at 37. If Mr. Thomason had not intended to continue his assault during these events, the facts would have been similar to Dew. However, since Mr. Thomason did intend to continue his assault, the facts align with Robinson, and this Court should rule similarly, finding that there was no intervening event.
5. Mr. Hendricks’s Injuries
It is undisputed that Mr. Hendrick’s injuries were the result of Mr. Thomason’s assault. See (Tp. 23, 24, 40, 42-4); (Ex. A-1,2,3,4,8,9,12,13) However, injuries alone are insufficient evidence to charge a defendant with multiple counts of assault. Dew, 379 N.C. at 64, 864 S.E.2d at 270. Although Mr. Hendricks suffered injuries to two separate areas of his body, multiple areas of contact do not inherently constitute multiple distinct assaults. Id., 379 N.C. at 72, 864 S.E.2d at 275; see, (Tp. 23, 24, 26, 40, 42.) “The magnitude of the harm done to the victim can be taken into account during sentencing but does not automatically permit the State to stack charges against a defendant without evidence of a distinct interruption.” Dew, 379 N.C. at 72, 864 S.E.2d at 275.
6. Remedy
Because the State failed to present evidence of a distinct interruption during the attack, Dew, 379 N.C. at 72, 864 S.E.2d at 275, the appropriate remedy is to arrest judgement of the assault with a deadly weapon charge. State v. Robinson, 275 N.C. App. 330, 338, 852 S.E.2d 915, 920 (2020) (arresting judgement of the lesser offense). Further, because a guilty plea must be accepted or rejected as a whole, this Court should vacate the habitual felon plea arrangement. Robinson, 381 N.C. at 220, 872 S.E.2d at 37. This court should also remand to the trial court for resentencing on the habitual felon and assault on an individual with a disability charges. Id.
Conclusion
As set out above, the trial court erred by denying Mr. Thomason’s motion to dismiss all but one of the assault charges because the state could not show that there was evidence of a distinct interruption during the attack. Mr. Thomason requests that the Court arrest judgement of the assault with a deadly weapon charge, vacate the habitual felon plea arrangement, and remand to the trial court for resentencing on the habitual felon and assault on an individual with a disability charges.
This the 18th day of April, 2023.
Respectfully submitted,
By Electronic Submission:
Jackson A. Lanier
Attorney for Defendant-Appellant
Frankie Thomason
Certificate of Compliance
Pursuant to Rule 28(j) of the Rules of Appellate Procedure, counsel certifies this principal brief, prepared using a proportional font, is less than 8,750 words (excluding cover, indexes, tables of authorities, certificates of service, this certificate of compliance, and appendixes) as reported by the word-processing software.
/s/ Jackson A. Lanier
Jackson A. Lanier
Certificate of Filing and Service
Counsel hereby certifies Thomason’s principal brief was filed by uploading it to the appellate division’s electronic filing website in accordance with Rule 26(a)(2).
Counsel further certifies a copy of this brief was duly served on Katy Dickinson-Schultz, Adjunct Professor, at [email protected], in accordance with Rule 26(c).
This the 18th day of April, 2023.
/s/ Jackson A. Lanier
Jackson A. Lanier
[1] The Record on Appeal shall be referred to as “ROA.” The 16-17 February 2022 transcript shall be referred to as “Tp.”