N.C.P.I.—Crim. 208.45A

NOTE WELL: This offense is activated by a violation of N.C. Gen.

Stat. § 14-33 or N.C. Gen. Stat. § 14-34. Here, as an example,

N.C. Gen. Stat. § 14-33(c)(2), Assault on a Female, is used as

the activating offense.

N.C. Gen. Stat. § 14-33.2 was amended effective

December 1, 2004. This instruction should be used for offenses

committed on or after that date. For offenses committed on or

before December 1, 2004, N.C.P.I.—Crim. 208.45 should be

used.

Use N.C.P.I. 208.45A.1 if the defendant admits prior

convictions for either misdemeanor or felony assault

within 15 years of the current offense.

If the defendant denies two or more prior convictions for

either misdemeanor or felony assaulst within 15 years of the

current offense or remains silent, the State must prove these

prior convictions in the first and second elements of the offense

below. See N.C. Gen. Stat. § 15A-928; State v. Burch, 585

S.E.2d 461 (N.C. App. 2003).

The defendant has been charged with felonious1 assault.2

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

prove [five] [six] things beyond a reasonable doubt:

First, that the defendant has two or more prior convictions for assault,

that is:

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

of] [pled guilty to] [misdemeanor] [felony] assault, 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] [pled guilty to] [misdemeanor] [felony] assault, that was

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

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

Second, that both of these prior convictions occurred within 15 years

of (insert date of current offense), the date of this alleged offense.

NOTE WELL: This offense is activated by a violation of N.C. Gen.

Stat. § 14-33 or N.C. Gen. Stat. § 14-34. Here, as an example,

N.C. Gen. Stat. § 14-33(c)(2), Assault on a Female, is used as

the activating offense. The appropriate offense from N.C. Gen.

Stat. §§ 14-33 or 14-34 should be inserted in the elements

below. If the activating offense is a violation of N.C. Gen. Stat. §

14-33, then the offense must cause the alleged victim physical

injury and an instruction on that element must be given.

Third, that the defendant on (name date) was at least 18 years of age.

Fourth, that the defendant was a male.

(And) Fifth, that the defendant did intentionally (that is, without

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

(describe assault).

((And) Sixth, that the defendant thereby caused physical injury to the

alleged victim.)4

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

about the alleged date the defendant intentionally assaulted the alleged

victim, a female person, by (describe assault) (and thereby caused physical

injury to the alleged victim), that the defendant had two or more prior

convictions for (either) [misdemeanor] (or) [felony] assault and that both of

these prior convictions occurred no more than 15 years prior to (insert date

of current offense), the date of this alleged offense, and the defendant was a

male person, at least 18 years of age, (nothing else appearing)5 it would be

your duty to return a verdict of guilty. 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.