N.C.P.I.—Crim. 208.45

NOTE WELL: N.C. Gen. Stat. § 14-33.2 was amended

effective December 1, 2004. This instruction should be

used for offenses committed before that date. For

offenses committed on or after December 1, 2004,

N.C.P.I.- Crim. 208.45A should be used. If the

defendant admits to five or more prior misdemeanor

convictions, two of which were assaults, that element

of the offense is established and no evidence in

support thereof may be adduced by the State. If the

defendant denies five or more prior misdemeanor

convictions or remains silent, the State must prove the

first element of the offense charged before the jury as

part of its case. (See N.C. Gen. Stat. § 15A-928).

State v. Burch, 160 N.C. App. 394, 585 S.E.2d 461

(2003)

The defendant has been charged with habitual misdemeanor

assault.1

For you to find the defendant guilty of this offense the State must

prove three things beyond a reasonable doubt:

First, that the defendant has been convicted of five (or more) prior

misdemeanors, at least two of which were assaults; that is:

a) On (name date) in (name court) the defendant [was convicted

of] [plead guilty to] the misdemeanor of (name misdemeanor), that was

committed on (name date) in violation of the law of the [state of North

Carolina] [state of (name other state)] [United States].

b) On (name date) in (name court) the defendant [was convicted

of] [plead guilty to] the misdemeanor of (name misdemeanor), that was

committed on (name date) in violation of the law of the [state of North

Carolina] [state of (name other state)] [United States].

c) On (name date) in (name court) the defendant [was convicted

of] [plead guilty to] the misdemeanor of (name misdemeanor), that was

committed on (name date) in violation of the law of the [state of North

Carolina] [state of (name other state)] [United States].

d) On (name date) in (name court) the defendant [was convicted

of] [plead guilty to] the misdemeanor of (name misdemeanor), that was

committed on (name date) in violation of the law of the [state of North

Carolina] [state of (name other state)] [United States].

e) And on (name date) in (name court) the defendant [was

convicted of] [plead guilty to] the misdemeanor of (name misdemeanor),

that was committed on (name date) in violation of the law of the [state

of North Carolina] [state of (name other state)] [United States].

NOTE WELL: This offense is activated by a violation of

N.C. Gen. Stat. § 14-33(c) or N.C. Gen. Stat. § 14-34.

Here, N.C. Gen. Stat. § 14-33(c)(2), Assault on a

Female, is used as the activating offense.

Second, that the defendant did intentionally2 (that is, without

justification or excuse)3 assault the victim, a female person, by (describe

assault).

And Third, that the defendant on (name date) was at least 18 years

of age.

If you find from the evidence beyond a reasonable doubt that the

defendant has been convicted of these five (or more) prior misdemeanors,

at least two of which were assaults, and that on (name date) the

defendant intentionally (describe assault), and that the victim was a

female person and the defendant a male person, at least 18 years of age,

(nothing else appearing)4 it would be your duty to return a verdict of

guilty of habitual

misdemeanor assault. If you do not so find or have a reasonable doubt

as to one or more of these things, it would be your duty to return a

verdict of not guilty.