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NO. COA98-24
NORTH CAROLINA COURT OF APPEALS
Filed:                                                                                               1 December 1998
STATE OF NORTH CAROLINA
v.
SEBERIANO CORIA
Appeal by defendant from judgments entered 31 July 1997 by Judge Catherine C. Eagles
in Forsyth County Superior Court.  Heard in the Court of Appeals 7 October 1998.
Attorney General Michael F. Easley, by Special Deputy Attorney General Robin P.
Pendergraft, for the State.
Jeffrey S. Lisson for defendant-appellant.
MARTIN, John C., Judge.
Defendant appeals from judgments entered upon his conviction of assault with a deadly
weapon on a law-enforcement officer, assault with a deadly weapon with intent to kill, and
assault on a female.  The evidence presented at trial tended to show that after dark on 14 October
1996, Scott Emerson was sitting on the back deck of his Winston-Salem home which looked out
over a wooded ravine.  Mr. Emerson heard a noise from out in his yard,
and eventually a young Hispanic woman, seventeen-year-old Eneida
Coria, approached his house.    Ms. Coria appeared visibly upset,
scared, and out of breath.    Her jeans were wet from traversing
the ravine, her hair was full of twigs, and her face was swollen
and bruised.    Ms. Coria, who at times lapsed into her native
language of Spanish, told Mr. Emerson that she needed help and to
call the police.    Mr. Emerson helped Ms. Coria inside where he
cleaned the fresh blood from her lip and nose and applied ice to




her face.
Ms. Coria told Mr. Emerson that she and her father, the
defendant, had argued over a boyfriend that she was seeing and
that defendant began to hit her.    Ms. Coria became fearful of
defendant and fled the Coria household shortly before she
encountered Mr. Emerson.    When Deputy Chris Hill arrived at the
Emerson residence, Ms. Coria stated that defendant was
intoxicated during their argument, that she had attempted to
leave and defendant dragged her back to the house and beat her,
and that it was only when defendant began to beat her mother that
Ms. Coria was able to escape.
Shortly thereafter, four law enforcement officers, including
Deputy R.D. Longworth of the Forsyth County Sheriff’s Office,
arrived at the Coria residence.    Defendant was not at the
residence.    Deputy Longworth and another officer returned to the
Coria residence later that night along with Ms. Coria to retrieve
some clothing for Ms. Coria.    Deputy Longworth returned for a
third time that night to the Coria residence upon a report of
gunshots in the area.    Deputy Longworth testified that he heard
what he believed to be yelling and gunshots from within the Coria
residence.    Deputy Longworth was approaching the house when the
garage door opened and defendant stepped outside.    Deputy
Longworth identified himself as a law enforcement officer, at
which time defendant pulled a gun from his belt, pulled the slide
back, and pointed it at Deputy Longworth.    Deputy Longworth
immediately drew his own weapon and repeatedly yelled at
defendant to drop the gun.    Defendant fired at Deputy Longworth




approximately four to six times, and Deputy Longworth returned
fire, striking defendant.
After she graduated from high school in June,  1997, Ms.
Coria left the Winston-Salem area due to her fear of defendant.
The State was unable to locate her to testify at defendant’s
trial and notified defendant that her whereabouts were unknown
and that the State intended to offer into evidence the statements
which she had made to Mr. Emerson and Deputy Hill.    Over
defendant’s objection, the trial court allowed Ms. Coria’s
statements into evidence under the excited utterance exception to
the hearsay rule.
Defendant brings forward in his brief three assignments of
error.    The assignments of error are directed to the admission
into evidence of Ms. Coria’s hearsay statements to Mr. Emerson
and Deputy Hill, to the trial court’s denial of his motion to
dismiss the charge of assault on a female, and to the trial
court’s failure to arrest judgment on one of the assault charges
involving Deputy Longworth.    His remaining assignments of error
are deemed abandoned.    N.C.R. App. P.  28(a).    We find no error in
the trial or judgments.
A.
Defendant first argues that the trial court erred by
admitting into evidence statements made by Ms. Coria to Mr.
Emerson and Deputy Hill under the excited utterance exception to
the hearsay rule.    Specifically, defendant contends there was no
evidence that Ms. Coria was still under the stress of an exciting




event, and no evidence as to the duration of time that passed
between the exciting event and Ms. Coria’s statements, giving
rise to the possibility that Ms. Coria had time to fabricate her
statements.    We disagree.
G.S.  §  8C-1, Rule  803(2) provides that statements  “relating
to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition”
are not excluded by the rule against hearsay.    N.C. Gen. Stat.  §
8C-1, Rule  803(2).                                                        “It is well established that in order for an
assertion to come within the parameters of this particular
exception,  ‘there must be  (1) a sufficiently startling experience
suspending reflective thought and  (2) a spontaneous reaction, not
one resulting from reflection or fabrication.’”    State v. Thomas,
119 N.C. App.  708,  712-13,  460 S.E.2d  349,  352, disc. review
denied,  342 N.C.  196,  463 S.E.2d  248  (1995)  (citing State v.
Smith,  315 N.C.  76,  86,  337 S.E.2d  833,  841  (1985)).    Moreover,
“[w]hile the period of time between the event and the statement
is without a doubt a relevant factor, the element of time is not
always material,” and the  “modern trend is to consider whether
the delay in making the statement provided an opportunity to
manufacture or fabricate the statement.”    Id.  (citations
omitted).
In the present case, the trial court conducted voir dire
examinations of both Mr. Emerson and Deputy Hill prior to
admitting Ms. Coria’s statements.    The court made findings that a
startling event had occurred, that Ms. Coria thereafter ran
through dark woods alone and bleeding, and that she approached a




stranger, Mr. Emerson, for help.    The trial court further found
that Ms. Coria was very excited and upset, had obviously been hit
about the face, and at times lapsed into her native tongue while
speaking to Mr. Emerson and Deputy Hill.    In fact, Deputy Hill
testified that when he spoke with Ms. Coria at the Emerson house
she was very excited, upset, and almost to the point of hysteria.
The trial court’s findings are supported by the evidence and, in
turn, support the    court’s ruling that Ms. Coria’s statements
were made while she was still under the stress of a startling
event and that she therefore had no opportunity to reflect on her
statements.    See State v. Kerley,  87 N.C. App.  240,  360 S.E.2d
464  (1987), disc. review denied,  321 N.C.  476,  364 S.E.2d  661
(1988)  (placing emphasis on declarant’s state of excitement while
speaking rather than exact amount of time since startling event).
This assignment of error is overruled.
Defendant also argues that Ms. Coria’s statements provided
the only evidence of an assault upon her, so that the trial court
should have dismissed the charge of assault on a female.    We have
determined her statements were properly admitted; they provide
plenary evidence of each essential element of the offense.
Defendant’s motion to dismiss the charge of assault on a female
was properly denied.
B.
Defendant next argues that the imposition of separate
sentences for the offenses of assault with a deadly weapon upon a
law enforcement officer and assault with a deadly weapon with
intent to kill, both of which arose from the same act of shooting




at Deputy Longworth, violated defendant’s constitutional rights
against twice being placed in jeopardy for the same offense.    A
defendant’s right to be free from double jeopardy is protected by
both the Fifth Amendment of the United States Constitution and
Article I, Section  19 of the North Carolina Constitution,
prohibiting the imposition of multiple punishments for the same
offense.    State v. Elliot,  344 N.C.  242,  475 S.E.2d  202  (1996),
cert. denied,  137 L.Ed.2d  312  (1997).
In State v. Gardner,  315 N.C.  444,  340 S.E.2d  701  (1986),
the defendant argued that his conviction and punishment for both
felonious breaking or entering and felonious larceny violated the
prohibition against multiple punishments for the same offense,
where the felony of breaking or entering was used to elevate the
larceny to a felony pursuant to G.S.  §  14-72(b)(2).    Rejecting
his argument, the Supreme Court explained that the question of
whether a defendant may receive cumulative punishments for the
same conduct which violates two separate statutes is primarily a
question of legislative intent, i.e., whether the legislature
intended the offenses to be separate and distinct offenses.
[D]ouble jeopardy does not prohibit multiple
punishment for offenses when one is included
within the other  .  .  . if both are tried at
the same time and if the legislature intended
for both offenses to be separately punished.
Id. at  454,  340 S.E.2d at  709  (citing Missouri v. Hunter,  459
U.S.  359,  74 L.Ed.2d  535  (1983)).                                    “[E]ven if the elements of two
statutory crimes are identical and neither requires proof of a
fact that the other does not, the defendant may, in a single
trial, be convicted of and punished for both crimes if it is




found that the legislature so intended.”    Id. at  455,  340 S.E.2d
709.
Pointing out that felony breaking or entering and felony
larceny have historically been considered to be separate and
distinct crimes, the Court determined that the legislature
intended that a defendant may be separately punished for the
crime of felonious breaking or entering and the crime of
felonious larceny following that breaking or entering.
In State v. Pipkins,  337 N.C.  431,  446 S.E.2d  360  (1994),
the Court concluded, upon a similar analysis, that the
legislature intended to authorize separate punishments for the
offenses, based upon the same contraband, of trafficking in
cocaine by possession and possession of cocaine.    Similarly, in
State v. Elliott,  344 N.C.  242,  475 S.E.2d  202  (1996), the Court
held that separate punishments were intended for felony child
abuse and first degree murder, even when both offenses arose out
of the same conduct by the defendant.    The Court noted:
The legislature’s intent to provide for
cumulative punishment may also be inferred
from the fact that first degree murder and
felony child abuse each  “‘requires proof of a
fact which the other does not’”  (citations
omitted).
Id. at  278,  475 S.E.2d at  218.
In State v. Fernandez,  346 N.C.  1,  484 S.E.2d  350  (1997),
the Supreme Court decided that double jeopardy did not preclude
separate punishment for first degree murder and first degree
kidnaping which was elevated to first-degree based upon the
victims having been murdered rather than released in a safe
place.    The Court held that an examination of legislative intent




under Gardner was unnecessary because the factual elements
necessary to prove the offenses were not the same; each crime
contained an element not required to be proved in the other.
Applying the Blockburger Test, referring to the decision of the
United States Supreme Court in Blockburger v. U.S.,  284 U.S.  299,
76 L.Ed.  306  (1932), the Court said:
If proof of an additional fact is required
for each conviction which is not required for
the other, even though some of the same acts
must be proved in the trial of each, the
offenses are not the same.
Id. at  19,  484 S.E.2d at  361  (quoting State v. Murray,  310 N.C.
541,  548,  313 S.E.2d  523,  529  (1984)).
In State v. Woodberry,  126 N.C. App.  78,  485 S.E.2d  59
(1997), this Court held that the prohibition against double
jeopardy was not violated by the imposition of consecutive
sentences for one act which violated both G.S.  §  14-31, malicious
assault and battery in a secret manner, and G.S.  §  14-32(a),
assault with a deadly weapon with intent to kill inflicting
serious injury.    We relied upon State v. Hill,  287 N.C.  207,  214
S.E.2d  67  (1975), in which our Supreme Court pointed out that
although the two offenses shared three common elements, each
offense required proof of an element which the other did not.
We are, of course, advertent to the prior decisions of this
Court in State v. Partin,  48 N.C. App.  274,  269 S.E.2d  250, disc.
review denied,  301 N.C.  404,  273 S.E.2d  449  (1980); State v.
Byrd,  50 N.C. App.  736,  275 S.E.2d  522, disc. review denied,  303
N.C.  316,  281 S.E.2d  654  (1981); and State v. Locklear,  121 N.C.
App.  355,  465 S.E.2d  61, cert. denied,  342 N.C.  662,  467 S.E.2d




701  (1996).    We conclude these cases do not require that either
of defendant’s sentences in the present case be vacated.
In State v. Partin, supra, this Court held that where two
offenses each contain separate and distinct elements, double
jeopardy does not prohibit charging a defendant with both crimes
even where the facts underlying both charges are the same.    In
Partin, as in the case before us, the defendants were charged
with assault with a deadly weapon on a law enforcement officer,
and assault with a deadly weapon with the intent to kill.    We
stated,
Each offense required proof of an element
which does not exist in the other charge.
Under G.S.  14-34.2, the jury must find that
the victim was a law enforcement officer
acting in the exercise of his official duty
at the time of the assault, which is not an
element of G.S.  14-32, while under G.S.  14-
32(a) and  (c) there must be a finding that
the assault was made with an intent to kill,
which is not an element of G.S.  14-34.2.
Id. at  279-80,  269 S.E.2d at  254.    In Partin, however, the
defendants were not actually convicted of assault with a deadly
weapon with intent to kill, but were convicted of the lesser
included offense of assault with a deadly weapon, all of the
elements of which are necessarily included within the offense of
assault with a deadly weapon on a law enforcement officer.
Therefore, the Court held that punishment for both crimes
violated principles of double jeopardy.    Id. at  282,  269 S.E.2d
at  255.
In State v. Byrd, supra, decided a year after Partin,
defendant was convicted of both assault with a deadly weapon upon
a law enforcement officer while in the performance of his duties,




in violation of G.S.  §  14-34.2, and assault with a deadly weapon
inflicting serious injury, in violation of G.S.  §  14-32(c),
arising out of the defendant’s single act of shooting a police
officer.    Citing Partin, the Court held defendant could not be
punished separately for the offenses, reasoning that the elements
of the assault upon the officer while in the performance of his
duties were all included in the offense of assaulting him with a
deadly weapon inflicting serious injury.    In Locklear, this Court
followed Byrd and arrested judgment upon defendant’s conviction
for assault with a deadly weapon upon a law enforcement officer
“since the elements of  [that offense] are included in the offense
of assault with a deadly weapon inflicting serious injury.”
Locklear at  357-58,  465 S.E.2d at  63.
A closer examination, however, of both Byrd and Locklear
reveals that, as in Woodberry, though the offenses share two
common elements, i.e.,  (1) assault, and  (2) with a deadly weapon,
each offense required proof of elements not required for the
other.    For conviction under G.S.  §  14-34.2, proof was required
that the victim was a law enforcement officer engaged in the
performance of his official duties, proof of which was not
required for conviction under G.S.  §  14-32(c).    Likewise, for
conviction under G.S.  §  14-32(c), proof was required that the
victim was seriously injured, which was not required for
conviction under G.S.  §  14-34.2.
While decisions of one panel of this Court are binding upon
subsequent panels unless overturned by a higher court, In the
Matter of Appeal from Civil Penalty,  324 N.C.  373,  379 S.E.2d  30




(1989), we also have a responsibility to follow the decisions of
our Supreme Court.    Dunn v. Pate,  334 N.C.  115,  431 S.E.2d  178
(1993); Heatherly v. Industrial Health Council,  ___ N.C. App.
___,  504 S.E.2d  102  (1998).    We believe, therefore, that we are
bound to follow the reasoning of the Supreme Court in Gardner,
Pipkins, Elliott, and Fernandez, and of this Court in Woodberry,
rather than the opinions in Byrd and Locklear, which appear
inconsistent therewith.
Applying such reasoning to the present case, the elements of
assault with a deadly weapon with intent to kill include:  (1) an
assault;  (2) with a deadly weapon;  (3) with the intent to kill,
N.C. Gen. Stat.  §  14-32(c), while the elements of assault with a
deadly weapon on a law enforcement officer include:  (1) an
assault;  (2) with a deadly weapon;  (3) on a law enforcement
officer;  (4) in performance of his official duties.    N.C. Gen.
Stat.  §  14-34.2.    Each offense requires proof of specific
elements that the other does not.    Following Fernandez, and
applying the Blockburger Test, an analysis of legislative intent
is not required because the offenses are not the same, and
cumulative punishment would not offend double jeopardy
principles.
Moreover, even an examination of legislative intent under
Gardner clearly discloses an intent by the General Assembly that
violations of G.S.  §  14-32(c) and G.S.  §  14-34.2 be punished
separately.                                                            “In determining the intent of the legislature, the
fact that each crime for which a defendant is convicted in one
trial requires proof of an element the other does not




demonstrates the legislature’s intent that the defendant may be
punished for both crimes.”    State v. Swann,  322 N.C.  666,  677,
370 S.E.2d  533,  539  (1988).    We believe the legislative purposes
underlying each statute were distinct.    Our Supreme Court has
held that the essence of G.S.  §  14-32.4  “is the legislative
intent to give greater protection to the law enforcement officer
by proscribing a greater punishment for one who knowingly
assaults such an officer.”    State v. Avery,  315 N.C.  1,  31,  337
S.E.2d  786,  803  (1985), disc. review denied,  326 N.C.  51,  389
S.E.2d  96  (1990); See also State v. Kirby,  15 N.C. App.  480,  488,
190 S.E.2d  320,  325, appeal dismissed,  281 N.C.  761,  191 S.E.2d
363  (1972)  (intent of legislature was  “to provide greater
punishment for those who place themselves in open defiance of
duly constituted authority by assaulting public officers who are
on duty”).    On the other hand, the stated purpose of G.S.  §  14-
32(c) is to protect life or limb.    State v. Cass,  55 N.C. App.
291,  285 S.E.2d  337, disc. review denied,  305 N.C.  396,  290
S.E.2d  366  (1982).    Thus, there is a clear indication that the
legislature intended to authorize cumulative punishments for
those who, by a single act, violate both G.S.  §  14-32(c) and G.S.
§  14-34.2.
No error.
Judges TIMMONS-GOODSON and HORTON concur.

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