An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1299 NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Guilford County No. 12CRS078767 SOLOMON LEE-WARREN GRAVES
Appeal by defendant from judgment entered 19 July 2013 by
Judge Lindsay R. Davis, Jr. in Guilford County Superior Court.
Heard in the Court of Appeals 18 March 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Elizabeth Leonard McKay, for the State.
Richard Croutharmel, for defendant-appellant.
HUNTER, Robert C., Judge.
Solomon Lee-Warren Graves (“defendant”) appeals from
judgment sentencing him to 28 to 43 months imprisonment after
being convicted on one count of assault inflicting serious
bodily injury and one count of assault on a female. On appeal,
defendant argues that: (1) he received per se ineffective
assistance of counsel when his trial attorney admitted to
elements of the charged offenses in his opening statement to the -2- jury; (2) the trial court abused its discretion by denying
defendant’s request for a jury instruction on the defense of
automatism; (3) defendant received ineffective assistance of
counsel because his trial attorney failed to recognize or
preserve the defense of automatism; and (4) the trial court
erred by punishing defendant for both assault inflicting serious
bodily injury and assault on a female for the same conduct.
After careful review, we find no error in the trial
proceedings, but we vacate the conviction for assault on a
female and remand for resentencing.
Background
The State’s evidence presented at trial tended to establish
the following: at the time of the incident forming the basis of
this case, defendant and Tonya Michelle Stewart Graves (“Tonya”)
were married and living in Tonya’s mother’s house with Tonya’s
13-year-old son born from a previous marriage. On 26 May 2012,
defendant and Tonya got into a verbal altercation. Defendant
accused Tonya of harboring feelings of affection for her former
husband, the father of her 13-year-old son. Tonya attempted to
diffuse the situation by driving away from the house with her
son, but defendant blocked her way to the car and knocked her
car keys out of her hand. Tonya and her son went on a walk -3- instead; when they returned home, Tonya took a prescribed
sleeping medication and fell asleep in her son’s room.
At around 2:00 a.m., defendant woke Tonya and again accused
her of talking to other men. Tonya went to her bedroom and
started listening to a voicemail that had been left on her
cellphone. Defendant then snatched the phone from Tonya’s ear
and started punching her in the head repeatedly. Tonya fell to
the floor and tried to cover herself; after defendant ended his
attack he paced the floor and said “look what you made me do.”
Tonya testified that she did not strike defendant at any time
during this encounter, not even to defend herself. Tonya went
into the bathroom to assess her injuries. She heard defendant
say “I’m sorry” as she was walking away. Tonya testified that
when she looked in the mirror, she saw part of her eye hanging
out of its socket. Defendant suggested that she go to the
hospital. However, he told Tonya not to tell anyone that he
struck her, apparently because defendant was in law school at
the time and did not want to miss any classes.
Defendant called the police and they arrived at the scene
shortly thereafter. Tonya let the police into the home. After
seeing her injuries, the police arrested defendant. Defendant
told the police that he was a sovereign citizen and that if he -4- wanted to beat his wife, he could. He never told the officers
that Tonya struck him first, that she attacked him, or that he
blacked out. Tonya testified that defendant was “very well
aware of what was going on” when the police arrived and that his
primary concern was that he would not be able to take his law
classes if he was arrested. Tonya was taken to the hospital
after the ambulance arrived. Her right eye socket had been
broken and required surgical insertion of a plastic-coated
titanium mesh to support the eyeball.
Defendant took the stand in his own defense at trial and
testified that, contrary to Tonya’s recitation of the facts, it
was actually she who initiated the altercation. According to
defendant, Tonya was talking on the phone in an “almost sexy”
and “seductive” manner to a man. When defendant grabbed the
phone to ask who the man was, she swung her arms at his face
“like a wildcat.” Defendant tried to block her attack, but she
connected with defendant’s face, causing him to black out. The
next thing defendant recalled was being on opposite sides of the
bed from Tonya and seeing her bent down and bleeding. Defendant
called 911 to get an ambulance. When the police arrived, he did
not want to let them in, but Tonya allowed them to enter the
house. As he was being arrested, defendant informed the -5- officers that he was a sovereign national and that he was
“reserving his rights” as a free citizen.
A month before trial began in July 2013, defendant’s trial
counsel filed a notice of self-defense. At trial, defense
counsel’s opening statement included the following:
We believe the evidence will show that Solomon Lee-Warren Graves is a father, a husband, and a minister, and most importantly, a victim, a victim of adultery, a victim of betrayal, a victim of a breach of love. And most importantly, because of that, he had to defend himself on Sunday, May 27, 2012. He had to defend himself against who? That woman right there. [Indicating Tonya.] And we believe the facts will show that his defense of himself was reasonable on that night, and that’s why he’s here today.
Now, we will admit that the evidence will show Mr. Graves was responsible for the injury to Ms. Stewart Graves. We will admit, and the evidence will show, that because of those injuries, she had to go to the hospital. But, we will also show you, ladies and gentlemen of the jury, that –
The trial court interrupted defense counsel at this point of the
statement and ordered the jury out of the courtroom so that the
judge could conduct a hearing pursuant to State v. Harbison, 315
N.C. 175, 337 S.E.2d 504 (1985), cert. denied., 476 U.S. 1123,
90 L. Ed. 2d 672 (1986). Defendant told the trial judge that he
had not authorized his attorney to admit to any wrongdoing; -6- rather, he reiterated that he was blacked out when the injuries
to Tonya were inflicted. Defendant’s trial counsel told the
judge that he was under the impression that such an admission
was authorized because defendant elected to assert self-defense.
The trial court found that counsel did not admit guilt but
“quite to the contrary” stated that defendant was not guilty of
any crimes and was only admitting to causing injury to Tonya.
At the charge conference, defense counsel requested
instructions on both self-defense and automatism, but the trial
court denied the request and instructed on neither defense. The
jury convicted defendant for one count of assault inflicting
serious bodily injury and one count of assault on a female.
Defendant gave notice of appeal in open court.
Discussion
I. Defense Counsel’s Opening Statement
Defendant first argues that his attorney admitted guilt to
elements of the charged offenses in his opening statement
without defendant’s consent, constituting per se ineffective
assistance of counsel under Harbison, 315 N.C. at 180, 337
S.E.2d at 507-08. We disagree.
A Harbison error occurs where defense counsel makes the
decision to concede guilt to a crime without the defendant’s -7- knowing and voluntary consent. See Harbison, 315 N.C. at 180,
337 S.E.2d at 507-08. Harbison errors amount to per se
ineffective assistance of counsel under the Sixth Amendment and
require a new trial. State v. Matthews, 358 N.C. 102, 109, 591
S.E.2d 535, 539 (2004). However, our Supreme Court has declined
to find a Harbison violation where defense counsel did not
expressly concede defendant’s guilt or where counsel admitted
only certain elements of the charged offense. See State v.
Gainey, 355 N.C. 73, 93, 558 S.E.2d 463, 476 (holding that there
was no Harbison error where defense counsel stated, “if he’s
guilty of anything, he’s guilty of accessory after the fact,”
because the statement did not amount to an admission of guilt to
murder), cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002);
State v. Fisher, 318 N.C. 512, 532–33, 350 S.E.2d 334, 346
(1986) (no Harbison error where defense counsel conceded malice
but did not clearly admit guilt and told the jury it could find
defendant not guilty).
Here, defense counsel’s statements that defendant was
“responsible” for Tonya’s injuries and that she had to go to the
hospital because of those injuries are not express concessions
of guilt of either of the crimes charged. Each of the charged
offenses contains elements not admitted to during defense -8- counsel’s opening statement. See N.C. Gen. Stat. § 14-32.4
(2013) (requiring medical conditions that constitute “serious
bodily injury” for the crime of assault inflicting serious
bodily injury); N.C. Gen. Stat. § 14-33(c)(2) (2013) (requiring
the defendant to be a male at least 18 years of age to convict
for assault on a female). Thus, because defense counsel
admitted only certain elements of the charged offenses, he did
not concede defendant’s guilt in violation of Harbison. See
Fisher, 318 N.C. at 532–33, 350 S.E.2d at 346. Further, these
comments were made after defense counsel explicitly told the
jury that defendant was relying on the affirmative defense of
self-defense to establish that he was not guilty of these
crimes. An affirmative defense is “[a] defendant’s assertion of
facts and arguments that, if true, will defeat the plaintiff’s
or prosecution’s claim, even if all the allegations in the
complaint are true.” Black’s Law Dictionary 9th ed. 482
(emphasis added). Thus, defendant could still have presented an
effective defense even after admitting to causing Tonya’s
injuries.
Because defense counsel did not concede guilt to the crimes
charged without defendant’s consent, we conclude that he did not -9- commit a Harbison error and was therefore not per se ineffective
under the Sixth Amendment. Defendant’s argument is overruled.
II. Defense of Automatism
Defendant next argues that the trial court abused its
discretion by denying defense counsel’s request for an
instruction on automatism and that defendant was denied
effective assistance of counsel by defense counsel’s failure to
preserve this defense. We disagree with both contentions.
“[I]f a specifically requested jury instruction is proper
and is supported by the evidence, the trial court must give the
instruction, at least in substance.” State v. Jenkins, 35 N.C.
App. 758, 760, 242 S.E.2d 505, 506 (1978). However, the
question of whether a requested instruction is proper under the
evidence is within the discretion of the trial judge “since he
can more accurately determine those instances when the
instruction would be appropriate.” Id. (citation and quotation
marks omitted). Thus, we review the trial court’s refusal to
give a requested jury instruction for abuse of discretion.
State v. Harris, 306 N.C. 724, 728, 295 S.E.2d 391, 393 (1982).
An abuse of discretion only arises “where the court’s ruling is
manifestly unsupported by reason or is so arbitrary that it
could not have been the result of a reasoned decision.” State -10- v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005)
(quotation marks omitted). We review allegations of ineffective
assistance of counsel using a two-part test: whether defense
counsel’s performance was deficient, and whether this deficiency
prejudiced the defendant. State v. Fletcher, 354 N.C. 455, 481,
555 S.E.2d 534, 550 (2001) (citing Strickland v. Washington, 466
U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984)).
The defense of automatism has been defined by our Supreme
Court as:
the state of a person who, though capable of action, is not conscious of what he is doing. It is to be equated with unconsciousness, involuntary action [and] implies that there must be some attendant disturbance of conscious awareness. Undoubtedly automatic states exist and medically they may be defined as conditions in which the patient may perform simple or complex actions in a more or less skilled or uncoordinated fashion without having full awareness of what he is doing.
State v. Fields, 324 N.C. 204, 208, 376 S.E.2d 740, 742 (1989)
(citation and quotation omitted). Thus, “the absence of
consciousness not only precludes the existence of any specific
mental state, but also excludes the possibility of a voluntary
act without which there can be no criminal liability.” Id.
(citations omitted). -11- In determining whether an instruction on automatism is
warranted, “[t]he test . . . is whether the evidence of
defendant’s mental condition is sufficient to cause a reasonable
doubt in the mind of a rational trier of fact as to whether the
defendant has the ability to form the necessary specific
intent.” State v. Connell, 127 N.C. App. 685, 692, 493 S.E.2d
292, 296 (1997). A trial court may only give instructions that
are supported by a reasonable view of the evidence. State v.
Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 699 (1973).
The holding in State v. Morganherring, 350 N.C. 701, 517
S.E.2d 622 (1999), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d
322 (2000), is instructive here. In Morganherring, the Supreme
Court analyzed the defendant’s argument that the trial court
erred by failing to instruct on automatism as follows:
Even though defendant claims not to remember all of his actions during the murders, there is no evidence in the record which indicates that defendant was either unconscious or not conscious of his actions. For example, immediately after killing Ms. Pena, defendant gathered up several items of Ms. Pena’s property with the intent to sell them. Defendant was also able to describe in detail his activities on the days between the murders and the immediate events surrounding Ms. Lee’s murder. . . . [B]ecause defendant failed to present evidence which would support an instruction on automatism, the trial court did not err in refusing to instruct the jury as to that -12- defense. This assignment of error is overruled.
Morganherring, 350 N.C. at 733-34, 517 S.E.2d at 641 (emphasis
added). Furthermore, in State v. Boyd, 343 N.C. 699, 714-15,
473 S.E.2d 327, 335 (1996), the Supreme Court held that where
the only evidence that the defendant blacked out stemmed from
his own testimony at trial and that testimony was contradicted
by the State’s evidence that the defendant admitted to his
actions to the police on the day of the crime, the trial court
did not err by declining a request to instruct on automatism.
Here, the only evidence presented that tended to indicate
defendant lost consciousness during the altercation with Tonya
was defendant’s own testimony. This testimony was directly
refuted by the State’s evidence that defendant admitted to
assaulting Tonya and told one of the arresting officers that “he
had struck [Tonya] because she was on the phone with another
man.” Tonya also testified that defendant told the officers
“I’m a sovereign citizen. I don’t have to go by the rules of
the United States. And if I want to beat my wife, I can.” The
officers testified that at no time during this conversation did
defendant deny having assaulted Tonya or claim to have been
struck by Tonya, black out, or lose consciousness. Tonya
testified that defendant struck her repeatedly in a fit of -13- anger, apologized immediately after doing so, pleaded that she
not tell anyone that he struck her, and was wiping blood from
his knuckles when the police arrived.
Because defendant’s testimony supporting an instruction on
the defense of automatism was directly refuted by evidence
presented by the State, we find no abuse of discretion in the
trial court’s decision not to instruct on that defense. See
Morganherring, 350 N.C. at 733-34, 517 S.E.2d at 641; Boyd, 343
N.C. at 714-15, 473 S.E.2d at 335.
We also hold that defense counsel’s presentation and
attempt to assert the defense of automatism did not amount to
ineffective assistance of counsel. The trial court noted in its
Harbison hearing that defense counsel was not precluded from
asserting the defense of automatism under N.C. Gen. Stat. § 15A-
905(c)(1) (2013) because the time limit for notifying the State
of defendant’s intention to assert that defense had not yet run.
At trial, defense counsel elicited testimony from defendant in
an effort to establish that defendant blacked out during the
altercation and therefore could not form the mental state to
commit the charged crimes. At the close of the evidence,
defense counsel specifically requested that the trial court
instruct on the defense of automatism based on this testimony. -14- In sum, we believe defense counsel’s performance was not
deficient because he preserved the defense of automatism and
proceeded to elicit testimony in support of that defense, a
course of action we deem to be objectively reasonable in this
case. See State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271,
286 (2006). Defendant was not deprived of effective assistance
of counsel solely because that evidence was insufficient to
support the requested instruction.
IV. Sentencing
Defendant’s final argument is that the trial court
reversibly erred by sentencing defendant for both assault
inflicting serious bodily injury and assault on a female. We
agree.
The State contends that defendant’s argument amounts to a
constitutional Double Jeopardy issue, and because defendant did
not present this argument to the trial court, he has failed to
preserve it for appellate review. See State v. Tirado, 358 N.C.
551, 571, 599 S.E.2d 515, 529 (2004). However, defendant
claims, and we agree, that he is alleging failure of the trial
court to abide by the statutory mandates contained in N.C. Gen.
Stat. §§ 14-32.4(a) and 14-33(c). Such arguments are preserved
notwithstanding defendant’s failure to object on this specific -15- ground at trial. See State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d
652, 659 (1985) (“[W]hen a trial court acts contrary to a
statutory mandate and a defendant is prejudiced thereby, the
right to appeal the court’s action is preserved, notwithstanding
defendant’s failure to object at trial.”). Thus, we will
address the merits of defendant’s argument.
Defendant was convicted for one count of assault inflicting
serious bodily injury under section 14-32.4 and one count of
assault on a female under section 14-33(c)(2). Assault on a
female carries the punishment of a Class A1 misdemeanor; assault
inflicting serious bodily injury carries punishment of a Class F
felony. N.C. Gen. Stat. § 14-32.4(a); N.C. Gen. Stat. § 14-
33(c). Both statutes allow for sentencing under their
respective provisions “[u]nless the conduct is covered under
some other provision of law providing greater punishment[.]”
Id. Thus, defendant argues that the General Assembly intended
the trial court to sentence a defendant under the more punitive
statute if more than one crime is implicated by the same
conduct. We agree.
In State v. Ezell, 159 N.C. App. 103, 109, 582 S.E.2d 679,
684 (2003), this Court held that legislative intent could rebut
the presumption created by Blockburger v. United States, 284 -16- U.S. 299, 76 L. Ed. 306 (1932), that conviction for two offenses
based on the same conduct is not unlawful if each offense
requires proof of an element that the other does not. The Court
went on to hold that the language “[u]nless the conduct is
covered under some other provision of law providing greater
punishment” indicated legislative intent to punish certain
offenses at a certain level, but that if the same conduct was
punishable under a different statute carrying a higher penalty,
a defendant could only be sentenced for the more punitive
offense. Id. at 111, 582 S.E.2d at 685.
Applying the Ezell holding in the context of two assault
statutes, this Court held in State v. Williams, 201 N.C. App.
161, 174, 689 S.E.2d 412, 419 (2009), that even though two
assaults may require proof of different elements, so as to be
distinct crimes under Blockburger, the inclusion of the language
“[u]nless the conduct is covered under some other provision of
law providing greater punishment” indicated legislative intent
to punish a defendant only for the more punitive of the two
crimes. The defendant in Williams was convicted of both assault
by strangulation and assault inflicting serious bodily injury
for the same conduct. Thus, because assault by strangulation
carried a lesser penalty than assault inflicting serious bodily -17- injury, the Williams Court vacated judgment entered upon the
defendant’s conviction for assault by strangulation. Id.
Because the convictions were consolidated at trial, it also
remanded for resentencing. Id.
Here, like in Williams, defendant was convicted for both
assault inflicting serious bodily injury and an assault that
carried a lesser punishment, specifically here, assault on a
female. Based on the Williams holding, we conclude that
convictions for both crimes violated the statutory mandate that
the trial court only sentence a defendant for the more punitive
crime implicated by the same conduct. See In re Civil Penalty,
324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“[A] panel of the
Court of Appeals is bound by a prior decision of another panel
of the same court addressing the same question[.]”). Thus, we
vacate defendant’s conviction for assault on a female, as it is
less punitive than assault inflicting serious bodily injury.
Furthermore, because the convictions were consolidated, we
remand for resentencing. See Williams, 201 N.C. App. at 174,
689 S.E.2d at 419.
Conclusion
We find no error in defense counsel’s opening statement and
no abuse of discretion in the trial court’s decision to reject -18- defendant’s requested instruction on the defense of automatism.
However, because the trial court failed to follow the statutory
mandate that it only punish defendant under the more punitive
assault statute where more than one crime was implicated by the
same conduct, we vacate defendant’s conviction for assault on a
NO ERROR IN PART; VACATED IN PART; REMANDED FOR
RESENTENCING.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).