State v. Dew

• Decision Date: 17 March 2020
• Docket Number: No. COA19-737,COA19-737
• Citation: 270 N.C.App. 458,840 S.E.2d 301
• Parties: STATE of North Carolina v. Jeremy Wade DEW, Defendant.
• Court: North Carolina Court of Appeals

270 N.C.App. 458

840 S.E.2d 301

STATE of North Carolina

v.Jeremy Wade DEW, Defendant.

No. COA19-737

Court of Appeals of North Carolina.

Filed: March 17, 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, 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 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.

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.

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 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 31^st," 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 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 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...