State v. Wilkes, 225 N.C. App. 233

Defendant Timothy C. Wilkes married Julie Bush; they had two sons and Bush had a son from a prior relationship.
The couple separated twice during their 15-year marriage, including a separation in 2008–2009.
On October 24, 2009, after Bush returned from a party, Defendant forced entry, pulled the phone from the wall, and rained blows on Bush with a baseball bat while she protected herself.
C.W., Bush’s son then intervened with a bat; Defendant continued beating Bush, causing severe head injuries and fractures; Bush lost consciousness.
EMS and police responded; Bush required surgeries and ongoing recovery; trial occurred in June 2011 with convictions for assault with a deadly weapon with intent to kill inflicting serious injury, misdemeanor child abuse, and assault with a deadly weapon inflicting serious injury; Defendant appealed the rulings and sentences.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the trial court err in denying dismissal for insufficient evidence of intent to kill?	Wilkes argues lack of substantial evidence of intent to kill.	Wilkes contends the evidence does not show intent to kill.	No error; substantial evidence supported intent to kill.
May the two felony assault convictions constitute multiple offenses from one transaction (double jeopardy)?	State contends distinct interruptions justified two assaults.	Littlejohn/Rambert factors show no distinct interruptions; should be one assault.	No error per majority; multiple transactions supported separate assaults.
Was the aggravated-range sentence for assault with a deadly weapon inflicting serious injury proper without considering mitigating factors?	State argued aggravation justified.	Sought mitigating factors; positive employment history supported.	Remanded for resentencing to consider mitigating factor of positive employment history.

State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (N.C. 1972) (intent to kill shown by inferences from conduct and circumstances)
State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (N.C. 2004) (elements of assault with a deadly weapon with intent to kill inflicting serious injury)
State v. Grigsby, 351 N.C. 454, 526 S.E.2d 460 (N.C. 2000) (natural consequences and intent to kill in serious-injury assaults )
State v. Littlejohn, 158 N.C. App. 628, 582 S.E.2d 301 (N.C. App. 2003) (two assaults from one transaction require distinct interruptions in time or thought process)
State v. Rambert, 341 N.C. 173, 459 S.E.2d 510 (N.C. 1995) (separate assaults may be justified by distinct acts, time, and injuries to different places)
Spellman, 167 N.C. App. 374, 605 S.E.2d 696 (N.C. App. 2004) (Rambert rationale applied to multiple assaults against government official)
State v. Ezell, 159 N.C. App. 103, 582 S.E.2d 679 (N.C. App. 2003) (double jeopardy principles for multiple convictions)
State v. McCoy, 174 N.C. App. 105, 620 S.E.2d 863 (N.C. App. 2005) (double jeopardy analysis for multiple assault counts)