Opinion
No. COA18-326
11-20-2018
STATE OF NORTH CAROLINA v. LUCIANO LEDEZMA FLORES, Defendant.
Attorney General Joshua H. Stein, by Assistant Attorney General Kacy L. Hunt, for the State. James R. Parish, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Cleveland County, No. 16 CRS 55447 Appeal by Defendant from judgment entered 27 October 2017 by Judge Mark E. Klass in Cleveland County Superior Court. Heard in the Court of Appeals 9 November 2018. Attorney General Joshua H. Stein, by Assistant Attorney General Kacy L. Hunt, for the State. James R. Parish, for defendant-appellant. MURPHY, Judge.
Defendant, Luciano Ledezma Flores, appeals from the trial court's judgment entered upon the jury verdict finding him guilty of assault on a female. Defendant argues the trial court erred in ordering him to pay restitution for damage done to the victim's vehicle window because the damage did not arise out of the charge for which he was convicted. We agree and vacate the restitution award.
On 6 December 2016, Defendant was arrested on charges of assault on a female and assault by pointing a gun. On 27 March 2017, Defendant was found guilty as charged in Cleveland County District Court. Defendant appealed to superior court for a trial de novo.
In December 2016, Defendant and Deanna Toney ("Toney") had been involved in a romantic relationship for approximately three years and had one child together. The couple lived together with their son in Shelby. During the course of the relationship, Toney also became romantically involved with Defendant's cousin, Daniel Ledezma ("Ledezma"). Toney and Ledezma had called off their relationship when Toney found out she was pregnant with Defendant's child, but began seeing each other again in 2016, a few months after the child's birth.
On 6 December 2016, Toney dropped the baby off at the grandmother's home and invited Ledezma over to the house while Defendant was out of town for work. Defendant returned home late in the evening and found Toney and Ledezma sleeping in the couple's bed. Defendant grabbed a handgun from a bedroom drawer and attempted to point the gun at Ledezma and Toney. Ledezma jumped out of the bed and began fighting with Defendant. At some point, the fight moved to the kitchen and Ledezma knocked the gun out of Defendant's hand. While Defendant and Ledezma were fighting in the kitchen, Toney collected her clothes for work the next day so she could leave and go to her mother's house.
After a brief fight, Ledezma left Defendant's home. Defendant came back into the bedroom and started to argue with Toney. Toney attempted to leave the home through the front door but Defendant pushed her down on the couch. Defendant then straddled her on the couch and began choking her with his right hand while holding the gun in his left hand. Defendant choked Toney for approximately fifteen seconds, during which time she could "[b]arely" breathe, and then "[h]e just let go." Toney attempted to leave the home again, but Defendant grabbed her pocketbook and demanded his money back. Toney gave him his debit card and "ran back out to [her] car." While Toney was starting her car, Defendant left the home and ran toward the neighbor's house. As Toney drove out of the driveway, Defendant threw a rock at her vehicle breaking the rear passenger window. Toney testified that the window cost $165.00 to fix.
Defendant did not present any evidence. The jury found Defendant guilty of assault on a female but not guilty of assault by pointing a gun. The State submitted a restitution worksheet to the court for $155.00 for the broken car window. The trial court sentenced Defendant to 75 days in the custody of the Department of Corrections and ordered Defendant to pay $155.00 in restitution for the broken window. Defendant filed timely written notice of appeal.
In his sole issue on appeal, Defendant contends the trial court erred in ordering him to pay $155.00 in restitution for the damage done to the vehicle window because the damage did not arise out of the assault on a female charge for which he was convicted. We agree.
Pursuant to N.C.G.S. § 15A-1340.34, the trial court is authorized to order restitution "for any injuries or damages arising directly and proximately out of the offense committed by the defendant." N.C.G.S. § 15A-1340.34(c) (2017). In order for an award of restitution to be valid, "it must be related to the criminal act for which Defendant was convicted, else the provision may run afoul of the constitutional provision prohibiting imprisonment for debt." State v. Valladares, 182 N.C. App. 525, 526, 642 S.E.2d 489, 491 (2007) (citation and internal quotation marks omitted). We review a trial court's award of restitution de novo. State v. Hunt, ___ N.C. App. ___, ___, 792 S.E.2d 552, 563 (2016).
The warrant in this case charged Defendant with assault on a female for "unlawfully and willfully . . . assault[ing] and strik[ing] DEANNA TONEY, a female person, by JERKING THE VICTIM UPWARDS AND PLACING HANDS AROUND THE VICTIM'S NECK." In instructing the jury on the charged offense of assault on a female, the trial court specifically instructed that in order to find Defendant guilty, the jury must find that "defendant intentionally and without justification or excuse assaulted the alleged victim by choking and grabbing her." Thus, Defendant's assault on a female conviction was related to his act of pushing Toney down on the couch inside the home and choking her.
The State argues Defendant's acts were one continuous assault on Toney and that the breaking of the vehicle window was Defendant's "last act of his continuing assault." Therefore, the State argues the restitution award is related to Defendant's assault on a female conviction. The State cites to State v. McGill, 177 N.C. App. 813, 630 S.E.2d 255, 2006 WL 1529028 (2006) (unpublished), in support of its argument. However, McGill is an unpublished case and therefore not controlling legal authority. See N.C.R. App. 30(e)(3) ("An unpublished decision of the North Carolina Court of Appeals does not constitute controlling legal authority.").
"An assault is an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another . . . sufficient to put a [reasonable person] in fear of immediate bodily harm." State v. Davis, 68 N.C. App. 238, 244, 314 S.E.2d 828, 832 (1984) (internal quotation marks omitted). Here, there was a distinct interruption in Defendant's charged assault when he "just let go" of Toney and got off of her from the couch. See c.f., State v. Lanford, 225 N.C. App. 189, 197-98, 736 S.E.2d 619, 626 (2013) (stating that in order to be charged with multiple assaults there must be "evidence of a distinct interruption in the original assault followed by a second assault"). Defendant's subsequent actions of grabbing Toney's purse to get his money back and throwing the rock at the back passenger side of her vehicle do not constitute assault, as these actions do not demonstrate an overt act or attempt "to do some immediate physical injury" to Toney's person. Thus, contrary to the State's assertion, Defendant's actions were not one continuous assault on Toney.
There were independent intervening acts between the commission of the assault and Defendant's actions in causing the property damage, so we hold the damage to Toney's window was not directly or proximately related to the assault for which Defendant was convicted. Accordingly, we vacate the trial court's restitution award.
NO ERROR IN PART; VACATED IN PART.
Judges STROUD and DIETZ concur.
Report per Rule 30(e).