An unpublished opinion of the North Carolina Court of Appeals does not constitute 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.

NO. COA13-1299

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Guilford County

No. 12CRS078767

SOLOMON LEE-WARREN GRAVES

Appeal by defendant from judgment entered 19 July 2013 by 

Judge Lindsay R. Davis, Jr. in Guilford County Superior Court. 

Heard in the Court of Appeals 18 March 2014.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Elizabeth Leonard McKay, for the State. 

Richard Croutharmel, for defendant-appellant. 

HUNTER, Robert C., Judge.

Solomon Lee-Warren Graves (“defendant”) appeals from 

judgment sentencing him to 28 to 43 months imprisonment after 

being convicted on one count of assault inflicting serious 

bodily injury and one count of assault on a female. On appeal, 

defendant argues that: (1) he received per se ineffective 

assistance of counsel when his trial attorney admitted to 

elements of the charged offenses in his opening statement to the 
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jury; (2) the trial court abused its discretion by denying 

defendant’s request for a jury instruction on the defense of 

automatism; (3) defendant received ineffective assistance of 

counsel because his trial attorney failed to recognize or 

preserve the defense of automatism; and (4) the trial court 

erred by punishing defendant for both assault inflicting serious 

bodily injury and assault on a female for the same conduct. 

After careful review, we find no error in the trial 

proceedings, but we vacate the conviction for assault on a 

female and remand for resentencing. 

Background

The State’s evidence presented at trial tended to establish 

the following: at the time of the incident forming the basis of 

this case, defendant and Tonya Michelle Stewart Graves (“Tonya”) 

were married and living in Tonya’s mother’s house with Tonya’s 

13-year-old son born from a previous marriage. On 26 May 2012, 

defendant and Tonya got into a verbal altercation. Defendant 

accused Tonya of harboring feelings of affection for her former 

husband, the father of her 13-year-old son. Tonya attempted to 

diffuse the situation by driving away from the house with her 

son, but defendant blocked her way to the car and knocked her 

car keys out of her hand. Tonya and her son went on a walk 
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instead; when they returned home, Tonya took a prescribed 

sleeping medication and fell asleep in her son’s room. 

At around 2:00 a.m., defendant woke Tonya and again accused 

her of talking to other men. Tonya went to her bedroom and 

started listening to a voicemail that had been left on her 

cellphone. Defendant then snatched the phone from Tonya’s ear 

and started punching her in the head repeatedly. Tonya fell to 

the floor and tried to cover herself; after defendant ended his 

attack he paced the floor and said “look what you made me do.” 

Tonya testified that she did not strike defendant at any time 

during this encounter, not even to defend herself. Tonya went 

into the bathroom to assess her injuries. She heard defendant 

say “I’m sorry” as she was walking away. Tonya testified that 

when she looked in the mirror, she saw part of her eye hanging 

out of its socket. Defendant suggested that she go to the 

hospital. However, he told Tonya not to tell anyone that he 

struck her, apparently because defendant was in law school at 

the time and did not want to miss any classes. 

Defendant called the police and they arrived at the scene 

shortly thereafter. Tonya let the police into the home. After 

seeing her injuries, the police arrested defendant. Defendant 

told the police that he was a sovereign citizen and that if he
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wanted to beat his wife, he could. He never told the officers 

that Tonya struck him first, that she attacked him, or that he 

blacked out. Tonya testified that defendant was “very well 

aware of what was going on” when the police arrived and that his 

primary concern was that he would not be able to take his law 

classes if he was arrested. Tonya was taken to the hospital 

after the ambulance arrived. Her right eye socket had been 

broken and required surgical insertion of a plastic-coated 

titanium mesh to support the eyeball. 

Defendant took the stand in his own defense at trial and 

testified that, contrary to Tonya’s recitation of the facts, it 

was actually she who initiated the altercation. According to 

defendant, Tonya was talking on the phone in an “almost sexy”

and “seductive” manner to a man. When defendant grabbed the 

phone to ask who the man was, she swung her arms at his face 

“like a wildcat.” Defendant tried to block her attack, but she 

connected with defendant’s face, causing him to black out. The 

next thing defendant recalled was being on opposite sides of the 

bed from Tonya and seeing her bent down and bleeding. Defendant 

called 911 to get an ambulance. When the police arrived, he did 

not want to let them in, but Tonya allowed them to enter the 

house. As he was being arrested, defendant informed the 
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officers that he was a sovereign national and that he was 

“reserving his rights” as a free citizen. 

A month before trial began in July 2013, defendant’s trial 

counsel filed a notice of self-defense. At trial, defense 

counsel’s opening statement included the following: 

We believe the evidence will show that 

Solomon Lee-Warren Graves is a father, a 

husband, and a minister, and most 

importantly, a victim, a victim of adultery, 

a victim of betrayal, a victim of a breach 

of love. And most importantly, because of 

that, he had to defend himself on Sunday, 

May 27, 2012. He had to defend himself 

against who? That woman right there. 

[Indicating Tonya.] And we believe the 

facts will show that his defense of himself 

was reasonable on that night, and that’s why 

he’s here today.

Now, we will admit that the evidence 

will show Mr. Graves was responsible for the 

injury to Ms. Stewart Graves. We will 

admit, and the evidence will show, that 

because of those injuries, she had to go to 

the hospital. But, we will also show you, 

ladies and gentlemen of the jury, that –

The trial court interrupted defense counsel at this point of the 

statement and ordered the jury out of the courtroom so that the 

judge could conduct a hearing pursuant to State v. Harbison, 315 

N.C. 175, 337 S.E.2d 504 (1985), cert. denied., 476 U.S. 1123, 

90 L. Ed. 2d 672 (1986). Defendant told the trial judge that he 

had not authorized his attorney to admit to any wrongdoing; 
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rather, he reiterated that he was blacked out when the injuries 

to Tonya were inflicted. Defendant’s trial counsel told the 

judge that he was under the impression that such an admission 

was authorized because defendant elected to assert self-defense. 

The trial court found that counsel did not admit guilt but 

“quite to the contrary” stated that defendant was not guilty of 

any crimes and was only admitting to causing injury to Tonya. 

At the charge conference, defense counsel requested 

instructions on both self-defense and automatism, but the trial 

court denied the request and instructed on neither defense. The 

jury convicted defendant for one count of assault inflicting 

serious bodily injury and one count of assault on a female. 

Defendant gave notice of appeal in open court. 

Discussion

I. Defense Counsel’s Opening Statement

Defendant first argues that his attorney admitted guilt to 

elements of the charged offenses in his opening statement 

without defendant’s consent, constituting per se ineffective 

assistance of counsel under Harbison, 315 N.C. at 180, 337 

S.E.2d at 507-08. We disagree. 

A Harbison error occurs where defense counsel makes the 

decision to concede guilt to a crime without the defendant’s 
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knowing and voluntary consent. See Harbison, 315 N.C. at 180, 

337 S.E.2d at 507-08. Harbison errors amount to per se

ineffective assistance of counsel under the Sixth Amendment and 

require a new trial. State v. Matthews, 358 N.C. 102, 109, 591 

S.E.2d 535, 539 (2004). However, our Supreme Court has declined 

to find a Harbison violation where defense counsel did not 

expressly concede defendant’s guilt or where counsel admitted 

only certain elements of the charged offense. See State v. 

Gainey, 355 N.C. 73, 93, 558 S.E.2d 463, 476 (holding that there 

was no Harbison error where defense counsel stated, “if he’s 

guilty of anything, he’s guilty of accessory after the fact,”

because the statement did not amount to an admission of guilt to 

murder), cert. denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002); 

State v. Fisher, 318 N.C. 512, 532–33, 350 S.E.2d 334, 346 

(1986) (no Harbison error where defense counsel conceded malice 

but did not clearly admit guilt and told the jury it could find 

defendant not guilty). 

Here, defense counsel’s statements that defendant was 

“responsible” for Tonya’s injuries and that she had to go to the 

hospital because of those injuries are not express concessions

of guilt of either of the crimes charged. Each of the charged 

offenses contains elements not admitted to during defense 
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counsel’s opening statement. See N.C. Gen. Stat. § 14-32.4 

(2013) (requiring medical conditions that constitute “serious 

bodily injury” for the crime of assault inflicting serious 

bodily injury); N.C. Gen. Stat. § 14-33(c)(2) (2013) (requiring 

the defendant to be a male at least 18 years of age to convict 

for assault on a female). Thus, because defense counsel 

admitted only certain elements of the charged offenses, he did 

not concede defendant’s guilt in violation of Harbison. See 

Fisher, 318 N.C. at 532–33, 350 S.E.2d at 346. Further, these 

comments were made after defense counsel explicitly told the 

jury that defendant was relying on the affirmative defense of 

self-defense to establish that he was not guilty of these 

crimes. An affirmative defense is “[a] defendant’s assertion of 

facts and arguments that, if true, will defeat the plaintiff’s 

or prosecution’s claim, even if all the allegations in the 

complaint are true.” Black’s Law Dictionary 9th ed. 482 

(emphasis added). Thus, defendant could still have presented an 

effective defense even after admitting to causing Tonya’s 

injuries.

Because defense counsel did not concede guilt to the crimes 

charged without defendant’s consent, we conclude that he did not 
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commit a Harbison error and was therefore not per se ineffective

under the Sixth Amendment. Defendant’s argument is overruled. 

II. Defense of Automatism

Defendant next argues that the trial court abused its 

discretion by denying defense counsel’s request for an 

instruction on automatism and that defendant was denied 

effective assistance of counsel by defense counsel’s failure to 

preserve this defense. We disagree with both contentions. 

“[I]f a specifically requested jury instruction is proper 

and is supported by the evidence, the trial court must give the 

instruction, at least in substance.” State v. Jenkins, 35 N.C. 

App. 758, 760, 242 S.E.2d 505, 506 (1978). However, the 

question of whether a requested instruction is proper under the 

evidence is within the discretion of the trial judge “since he 

can more accurately determine those instances when the 

instruction would be appropriate.” Id. (citation and quotation 

marks omitted). Thus, we review the trial court’s refusal to 

give a requested jury instruction for abuse of discretion. 

State v. Harris, 306 N.C. 724, 728, 295 S.E.2d 391, 393 (1982). 

An abuse of discretion only arises “where the court’s ruling is 

manifestly unsupported by reason or is so arbitrary that it 

could not have been the result of a reasoned decision.” State 
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v. Campbell, 359 N.C. 644, 673, 617 S.E.2d 1, 19 (2005)

(quotation marks omitted). We review allegations of ineffective 

assistance of counsel using a two-part test: whether defense 

counsel’s performance was deficient, and whether this deficiency 

prejudiced the defendant. State v. Fletcher, 354 N.C. 455, 481, 

555 S.E.2d 534, 550 (2001) (citing Strickland v. Washington, 466 

U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984)).

The defense of automatism has been defined by our Supreme 

Court as:

the state of a person who, though capable of 

action, is not conscious of what he is 

doing. It is to be equated with 

unconsciousness, involuntary action [and] 

implies that there must be some attendant 

disturbance of conscious awareness. 

Undoubtedly automatic states exist and 

medically they may be defined as conditions 

in which the patient may perform simple or 

complex actions in a more or less skilled or 

uncoordinated fashion without having full 

awareness of what he is doing.

State v. Fields, 324 N.C. 204, 208, 376 S.E.2d 740, 742 (1989) 

(citation and quotation omitted). Thus, “the absence of 

consciousness not only precludes the existence of any specific 

mental state, but also excludes the possibility of a voluntary 

act without which there can be no criminal liability.” Id. 

(citations omitted). 
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In determining whether an instruction on automatism is 

warranted, “[t]he test . . . is whether the evidence of 

defendant’s mental condition is sufficient to cause a reasonable 

doubt in the mind of a rational trier of fact as to whether the 

defendant has the ability to form the necessary specific 

intent.” State v. Connell, 127 N.C. App. 685, 692, 493 S.E.2d 

292, 296 (1997). A trial court may only give instructions that 

are supported by a reasonable view of the evidence. State v. 

Lampkins, 283 N.C. 520, 523, 196 S.E.2d 697, 699 (1973). 

The holding in State v. Morganherring, 350 N.C. 701, 517 

S.E.2d 622 (1999), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d 

322 (2000), is instructive here. In Morganherring, the Supreme 

Court analyzed the defendant’s argument that the trial court 

erred by failing to instruct on automatism as follows:

Even though defendant claims not to remember 

all of his actions during the murders, there 

is no evidence in the record which indicates 

that defendant was either unconscious or not 

conscious of his actions. For example, 

immediately after killing Ms. Pena, 

defendant gathered up several items of Ms. 

Pena’s property with the intent to sell 

them. Defendant was also able to describe in 

detail his activities on the days between 

the murders and the immediate events 

surrounding Ms. Lee’s murder. . . . 

[B]ecause defendant failed to present 

evidence which would support an instruction 

on automatism, the trial court did not err 

in refusing to instruct the jury as to that 
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defense. This assignment of error is 

overruled.

Morganherring, 350 N.C. at 733-34, 517 S.E.2d at 641 (emphasis 

added). Furthermore, in State v. Boyd, 343 N.C. 699, 714-15, 

473 S.E.2d 327, 335 (1996), the Supreme Court held that where 

the only evidence that the defendant blacked out stemmed from 

his own testimony at trial and that testimony was contradicted 

by the State’s evidence that the defendant admitted to his 

actions to the police on the day of the crime, the trial court 

did not err by declining a request to instruct on automatism. 

Here, the only evidence presented that tended to indicate 

defendant lost consciousness during the altercation with Tonya 

was defendant’s own testimony. This testimony was directly 

refuted by the State’s evidence that defendant admitted to 

assaulting Tonya and told one of the arresting officers that “he 

had struck [Tonya] because she was on the phone with another 

man.” Tonya also testified that defendant told the officers

“I’m a sovereign citizen. I don’t have to go by the rules of 

the United States. And if I want to beat my wife, I can.” The 

officers testified that at no time during this conversation did 

defendant deny having assaulted Tonya or claim to have been 

struck by Tonya, black out, or lose consciousness. Tonya 

testified that defendant struck her repeatedly in a fit of 
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anger, apologized immediately after doing so, pleaded that she 

not tell anyone that he struck her, and was wiping blood from 

his knuckles when the police arrived. 

Because defendant’s testimony supporting an instruction on 

the defense of automatism was directly refuted by evidence 

presented by the State, we find no abuse of discretion in the 

trial court’s decision not to instruct on that defense. See 

Morganherring, 350 N.C. at 733-34, 517 S.E.2d at 641; Boyd, 343 

N.C. at 714-15, 473 S.E.2d at 335.

We also hold that defense counsel’s presentation and 

attempt to assert the defense of automatism did not amount to 

ineffective assistance of counsel. The trial court noted in its 

Harbison hearing that defense counsel was not precluded from 

asserting the defense of automatism under N.C. Gen. Stat. § 15A905(c)(1) (2013) because the time limit for notifying the State 

of defendant’s intention to assert that defense had not yet run. 

At trial, defense counsel elicited testimony from defendant in 

an effort to establish that defendant blacked out during the 

altercation and therefore could not form the mental state to 

commit the charged crimes. At the close of the evidence, 

defense counsel specifically requested that the trial court 

instruct on the defense of automatism based on this testimony. 
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In sum, we believe defense counsel’s performance was not 

deficient because he preserved the defense of automatism and 

proceeded to elicit testimony in support of that defense, a 

course of action we deem to be objectively reasonable in this 

case. See State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 

286 (2006). Defendant was not deprived of effective assistance 

of counsel solely because that evidence was insufficient to 

support the requested instruction. 

IV. Sentencing

Defendant’s final argument is that the trial court 

reversibly erred by sentencing defendant for both assault 

inflicting serious bodily injury and assault on a female. We 

agree.

The State contends that defendant’s argument amounts to a 

constitutional Double Jeopardy issue, and because defendant did 

not present this argument to the trial court, he has failed to 

preserve it for appellate review. See State v. Tirado, 358 N.C. 

551, 571, 599 S.E.2d 515, 529 (2004). However, defendant 

claims, and we agree, that he is alleging failure of the trial 

court to abide by the statutory mandates contained in N.C. Gen. 

Stat. §§ 14-32.4(a) and 14-33(c). Such arguments are preserved 

notwithstanding defendant’s failure to object on this specific 
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ground at trial. See State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 

652, 659 (1985) (“[W]hen a trial court acts contrary to a 

statutory mandate and a defendant is prejudiced thereby, the 

right to appeal the court’s action is preserved, notwithstanding 

defendant’s failure to object at trial.”). Thus, we will 

address the merits of defendant’s argument. 

Defendant was convicted for one count of assault inflicting 

serious bodily injury under section 14-32.4 and one count of 

assault on a female under section 14-33(c)(2). Assault on a 

female carries the punishment of a Class A1 misdemeanor; assault 

inflicting serious bodily injury carries punishment of a Class F 

felony. N.C. Gen. Stat. § 14-32.4(a); N.C. Gen. Stat. § 14-

33(c). Both statutes allow for sentencing under their 

respective provisions “[u]nless the conduct is covered under 

some other provision of law providing greater punishment[.]” 

Id. Thus, defendant argues that the General Assembly intended 

the trial court to sentence a defendant under the more punitive 

statute if more than one crime is implicated by the same 

conduct. We agree. 

In State v. Ezell, 159 N.C. App. 103, 109, 582 S.E.2d 679, 

684 (2003), this Court held that legislative intent could rebut 

the presumption created by Blockburger v. United States, 284 
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U.S. 299, 76 L. Ed. 306 (1932), that conviction for two offenses 

based on the same conduct is not unlawful if each offense 

requires proof of an element that the other does not. The Court 

went on to hold that the language “[u]nless the conduct is 

covered under some other provision of law providing greater 

punishment” indicated legislative intent to punish certain 

offenses at a certain level, but that if the same conduct was 

punishable under a different statute carrying a higher penalty, 

a defendant could only be sentenced for the more punitive 

offense. Id. at 111, 582 S.E.2d at 685. 

Applying the Ezell holding in the context of two assault 

statutes, this Court held in State v. Williams, 201 N.C. App. 

161, 174, 689 S.E.2d 412, 419 (2009), that even though two 

assaults may require proof of different elements, so as to be 

distinct crimes under Blockburger, the inclusion of the language 

“[u]nless the conduct is covered under some other provision of 

law providing greater punishment” indicated legislative intent 

to punish a defendant only for the more punitive of the two 

crimes. The defendant in Williams was convicted of both assault 

by strangulation and assault inflicting serious bodily injury 

for the same conduct. Thus, because assault by strangulation 

carried a lesser penalty than assault inflicting serious bodily 
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injury, the Williams Court vacated judgment entered upon the 

defendant’s conviction for assault by strangulation. Id. 

Because the convictions were consolidated at trial, it also

remanded for resentencing. Id. 

Here, like in Williams, defendant was convicted for both 

assault inflicting serious bodily injury and an assault that 

carried a lesser punishment, specifically here, assault on a 

female. Based on the Williams holding, we conclude that 

convictions for both crimes violated the statutory mandate that 

the trial court only sentence a defendant for the more punitive 

crime implicated by the same conduct. See In re Civil Penalty, 

324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“[A] panel of the 

Court of Appeals is bound by a prior decision of another panel 

of the same court addressing the same question[.]”). Thus, we 

vacate defendant’s conviction for assault on a female, as it is 

less punitive than assault inflicting serious bodily injury. 

Furthermore, because the convictions were consolidated, we

remand for resentencing. See Williams, 201 N.C. App. at 174, 

689 S.E.2d at 419. 

Conclusion

We find no error in defense counsel’s opening statement and 

no abuse of discretion in the trial court’s decision to reject 
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defendant’s requested instruction on the defense of automatism. 

However, because the trial court failed to follow the statutory 

mandate that it only punish defendant under the more punitive 

assault statute where more than one crime was implicated by the 

same conduct, we vacate defendant’s conviction for assault on a 

female and remand for resentencing. 

NO ERROR IN PART; VACATED IN PART; REMANDED FOR 

RESENTENCING. 

Judges BRYANT and STEELMAN concur.

Report per Rule 30(e).