Opinion
No. COA12–1148.
2013-05-7
STATE of North Carolina v. Mynor Fuentes FUENTES.
Attorney General Roy Cooper, by Assistant Attorney General Jason R. Rosser, for the State. Hunt Law Group, P.C., by James A. Hunt, for defendant-appellant.
Appeal by defendant from judgment entered 12 April 2012 by Judge Elaine M. Bushfan in Durham County Superior Court. Heard in the Court of Appeals 15 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Jason R. Rosser, for the State. Hunt Law Group, P.C., by James A. Hunt, for defendant-appellant.
McCULLOUGH, Judge.
Defendant Mynor Fuentes Fuentes appeals from the judgment entered after a jury found him guilty of assault on a female. Defendant argues the trial court committed plain error by failing to instruct the jury on the offense of simple assault, and his trial counsel provided ineffective assistance by failing to request such an instruction. We find no error.
On 20 May 2006, defendant assaulted Mildri Orozco Velasquez by kicking her, punching her in the face, and pulling her hair. The district court found defendant guilty of assault on a female, and defendant appealed to superior court. In superior court, the jury found defendant guilty of assault on a female. The trial court sentenced defendant to seventy-five days' imprisonment, and awarded him credit for seventy-five days' pretrial confinement. Defendant appeals.
On appeal, defendant first argues the trial court committed plain error by failing to submit simple assault to the jury as a lesser included offense of assault on a female. We disagree.
“There is no statutory definition of assault in North Carolina, and the crime of assault is governed by common law rules. G.S. 14–33 does not create a new offense as to assaults on a female, but only provides for different punishments for various types of assault .” State v. Roberts, 270 N.C. 655, 658, 155 S.E.2d 303, 305 (1967); see also State v. Barnhill, 37 N.C.App. 612, 246 S.E.2d 579 (1978) (holding simple assault is not a lesser included offense of assault on a female).
Defendant's argument fails because simple assault is not a lesser-included offense of assault on a female. Id. Thus, defendant cannot demonstrate error, much less plain error, in the trial court's failure to submit simple assault to the jury as a lesser-included offense.
Defendant's ineffective assistance of counsel claim similarly lacks merit.
To establish a claim of ineffective assistance of counsel, a defendant must first show that counsel rendered deficient performance. “This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed.2d 674, 693 (1984).
Given that simple assault is not a lesser included offense of assault on a female, defendant cannot establish that counsel rendered deficient performance by failing to request an instruction on simple assault. Further, there is no dispute in the evidence that the victim was female, and the trial court properly instructed the jury on assault on a female. See State v. Craig, 35 N.C.App. 547, 549, 241 S.E.2d 704, 705 (1978) (defining the essential elements of assault on a female). Accordingly, we find no error.
No error. Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).