Assignment 1 (Doesn’t have to be full page, citation is a MUST).docx

Assignment 1 (Doesn’t have to be full page, citation is a
MUST):
Kesha has invited her friend Carrie to go home with her over
the school’s short holiday break. Kesha, like many African
Americans, has a rich spiritual tradition that permeates most
areas of her life. In addition, Kesha is close to her immediate
and extended family. Carrie, on the other hand, comes from a
predominantly Caucasian Presbyterian background, is an only
child, and rarely sees any of her extended family.
During her visit, Carrie is noticeably uncomfortable with the
vastly different dynamics of Kesha’s family. Carrie is
rethinking her friendship with Kesha and wants to withdraw
from her.
How will you help Carrie understand the cultural values
inherent in the African American culture and how these might
be affecting her?
Suggest ways in which Kesha could build a bridge to help
Carrie understand the African American culture.
Assignment 2 (2 pages, CITATION IS A MUST):
Reflections on Racial Discrimination
Franklin hears about people being discriminated against at the
workplace and in society but rarely experiences it first hand.
Cortez, on the other hand, speaks English poorly and is often

subject to derogatory comments from peers and coworkers.
Reflect on your experience with racial discrimination.
Identify examples of racial discrimination and provide examples
you have personally witnessed or heard about firsthand from the
following three realms:
· family
· work place
· community
Write a brief summary that includes the following:
· Describe a racial incident pertaining to each realm in detail.
Explain why you believe this is racial discrimination.
· Explain how this situation could have been handled to avoid
discrimination against those belonging to another race.
Your response should be at least two pages long. All written
assignments and responses should follow APA rules for
attributing sources.
Supreme Court of Tennessee,
at Nashville.
STATE of Tennessee
v.
Eric FLEMMING.
April 3, 2000.
Defendant was convicted in the Criminal
Court, Davidson County, Seth Norman, J., of espe-
cially aggravated robbery, and defendant appealed.
The Court of Criminal Appeals, Tipton, J., re-
versed. Upon granting state's petition for permis-
sion to appeal, the Supreme Court, Barker, J., held

that: (1) defendant's fists and feet were not deadly
weapons, and (2) evidence was sufficient to support
instruction on facilitation as lesser-included offense
of aggravated robbery.
Affirmed and remanded.
West Headnotes
[1] Statutes 361 1072
361 Statutes
361III Construction
361III(A) In General
361k1071 Intent
361k1072 k. In general. Most Cited
Cases
(Formerly 361k181(1))
Supreme Court's role in construing statutes is
to give effect to legislative intent without unduly
restricting or expanding statute's coverage beyond
its intended scope.
[2] Statutes 361 1092
361 Statutes
361III Construction
361III(B) Plain Language; Plain, Ordinary,
or Common Meaning
361k1092 k. Natural, obvious, or accepted

meaning. Most Cited Cases
(Formerly 361k188)
Statutes 361 1153
361 Statutes
361III Construction
361III(E) Statute as a Whole; Relation of
Parts to Whole and to One Another
361k1153 k. Context. Most Cited Cases
(Formerly 361k208)
Court determines legislative intent from natural
and ordinary meaning of statutory language within
context of entire statute without any forced or
subtle construction that would extend or limit stat-
ute's meaning.
[3] Statutes 361 1404
361 Statutes
361IV Operation and Effect
361k1402 Construction in View of Effects,
Consequences, or Results
361k1404 k. Unintended or unreasonable
results; absurdity. Most Cited Cases
(Formerly 361k181(2))
Court will not apply particular interpretation to
statute if that interpretation would yield absurd res-

ult.
[4] Assault and Battery 37 56
37 Assault and Battery
37II Criminal Responsibility
37II(A) Offenses
37k56 k. Assault with dangerous or
deadly weapon. Most Cited Cases
Fists and feet were not “deadly weapons.”
T.C.A. § 39-11-106(5).
[5] Indictment and Information 210 191(.5)
Page 1
19 S.W.3d 195
(Cite as: 19 S.W.3d 195)
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
210 Indictment and Information
210XIII Included Offenses
210k191 Different Offense Included in Of-
fense Charged
210k191(.5) k. In general. Most Cited
Cases
Offense is lesser-included offense if it consists
of facilitation of offense charged.

[6] Criminal Law 110 795(2.1)
110 Criminal Law
110XX Trial
110XX(G) Instructions: Necessity, Requis-
ites, and Sufficiency
110k795 Grade or Degree of Offense; In-
cluded Offenses
110k795(2) Evidence Justifying or Re-
quiring Instructions
110k795(2.1) k. In general. Most
Cited Cases
Defendant is entitled to jury instruction for
lesser-included offense only if evidence justifies
jury instruction on lesser-included offense.
[7] Criminal Law 110 795(2.75)
110 Criminal Law
110XX Trial
110XX(G) Instructions: Necessity, Requis-
ites, and Sufficiency
110k795 Grade or Degree of Offense; In-
cluded Offenses
110k795(2.25) Particular Cases and
Offenses Charged

110k795(2.75) k. Robbery charges.
Most Cited Cases
Evidence was sufficient to support instruction
on facilitation as lesser-included offense of aggrav-
ated robbery; although there was evidence that de-
fendant participated substantially in robbery by
kicking and beating victim, evidence could be con-
strued that he did not intend to promote, assist, or
benefit from offense because he took no property
from victim. T.C.A. §§ 39-11-403(a), 39-13-403.
*195 Paul G. Summers, Attorney General and Re-
porter, Michael E. Moore, Solicitor General, and
Elizabeth B. Marney, Assistant Attorney General,
Nashville, TN, for appellant, State of Tennessee.
Jeffrey A. DeVasher, Assistant Public Defender,
and Wendy S. Tucker, Assistant Public Defender,
Nashville, TN, for appellee, Eric Flemming.
OPINION
BARKER, J., delivered the opinion of the court, in
which ANDERSON, C.J., and DROWOTA,
BIRCH, and HOLDER, JJ. joined.
We granted the appeal in this case to decide (1)
whether fists and feet are deadly weapons under
Tennessee Code Annotated section
39–11–106(a)(5)(B); and (2) whether the trial
court's failure to instruct the jury on criminal re-
sponsibility for facilitation of especially aggravated
robbery and aggravated robbery was reversible er-
ror. We conclude that fists and feet are not deadly
weapons under Tennessee Code Annotated section

39–11–106(a)(5)(B). In *196 addition, we conclude
that the trial court committed reversible error in
failing to instruct the jury on facilitation of aggrav-
ated robbery and especially aggravated robbery.
Accordingly, we affirm the judgment of the Court
of Criminal Appeals and remand this case to the tri-
al court for a new trial.
Eric Flemming, the appellee, was indicted for
the especially aggravated robbery of Derrick La-
mont Smith (the victim) in violation of Tennessee
Code Annotated section 39–13–403 (1997). At trial,
the State's proof of Flemming's participation in the
beating and robbery of the victim rested on the
testimony of two witnesses: Juanita Smith and Ant-
onio Batey.
Juanita Smith testified that on June 1, 1995,
she observed four men chasing and beating the vic-
tim until he fell to the ground. After he fell, the
men continued beating the victim with their fists
Page 2
19 S.W.3d 195
(Cite as: 19 S.W.3d 195)
and kicking him. Smith watched as two of the men,
Terrance Robinson and Antonio Batey, reached into
the victim's pockets, removed items, and put them
in their own pockets. When the victim was later ex-
amined at the hospital, he was not wearing rings
and a watch that witnesses had testified he always

wore. In addition, no money was found on the vic-
tim even though he had cashed his paycheck the
previous day. Smith did not observe Flemming take
any items from the victim.
Antonio Batey, who participated in the robbery
of the victim, agreed to testify against Flemming in
exchange for remaining in the juvenile court sys-
tem. At trial, Batey stated that Flemming kicked the
victim and beat him with his fists. In addition,
Batey testified that he saw Flemming reach into the
victim's pockets, though Batey stated that he did
not see Flemming take any property from the vic-
tim.
FN1
FN1. Batey's testimony at trial appears to
contradict a pre-trial statement made to a
police officer in which Batey asserted that
an individual to whom he alternately re-
ferred as “Eric” or “E” took money from
the pocket of the victim during the rob-
bery. Portions of this statement were read
into evidence by counsel for the State.
The State argued at trial that Flemming was
guilty of especially aggravated robbery because he
used a deadly weapon (his fists and feet) to com-
plete the crime. A jury found Flemming guilty of
especially aggravated robbery and assessed a fine
of $12,500.00. In addition, the court sentenced
Flemming as a Range 1 standard offender to eight-
een years confinement.
Flemming appealed contending that fists and

feet are not deadly weapons and that the jury should
have been instructed on the lesser-included offenses
of facilitation of aggravated robbery and especially
aggravated robbery. The Court of Criminal Appeals
reversed Flemming's conviction concluding that
fists and feet are not within the statutory definition
of “deadly weapon.” In addition, the Court of Crim-
inal Appeals held that the trial court erred in not in-
structing the jury on facilitation of especially ag-
gravated robbery and aggravated robbery.
FN2
We
then granted the State's petition for permission to
appeal on these issues.
FN2. The Court of Criminal Appeals also
found that the prosecutor's closing argu-
ment impermissibly commented on Flem-
ming's Fifth Amendment right to silence
and that the comment was reversible error.
We did not grant review on this issue be-
cause we agreed with the holding of the
Court of Criminal Appeals.
DISCUSSION
A. “Deadly Weapon” under Tennessee Code An-
notated section 39–11–106(a)(5)
Tennessee Code Annotated section
39–11–106(a)(5) (1997) sets forth the definition of
“deadly weapon.”
“Deadly weapon” means:

(A) A firearm or anything manifestly designed,
made or adapted for the purpose of inflicting seri-
ous bodily injury; or
*197 (B) Anything that in the manner of its use
or intended use is capable of causing death or ser-
ious bodily injury....
The Court of Criminal Appeals held that the
scope of the statutory definition is not so broad that
it encompasses fists and feet. The State argues that
this conclusion is contrary to this Court's decision
in Morgan v. State, 220 Tenn. 247, 415 S.W.2d 879
(1967), as well as the plain language of the statute.
In Morgan, two defendants who used hard ob-
jects wrapped in socks to beat the victims of their
armed robbery contended that they had not used
deadly weapons in the course of their crime. In ex-
amining the defendants' contention, we character-
ized deadly weapons as falling into one of two cat-
egories: weapons that are “deadly per se, such as
Page 3
19 S.W.3d 195
(Cite as: 19 S.W.3d 195)
fire arms; and deadly by reason of the manner in
which they are used.” Id. at 882. This characteriza-
tion, however, does not suggest that a defendant's
body parts could be considered deadly weapons.

We reject the State's interpretation of Morgan and
agree with the Court of Criminal Appeals that Mor-
gan merely recognizes that some instruments or ob-
jects, though not traditionally considered deadly
weapons, may become deadly weapons by the man-
ner in which they are used.
The State also contends that fists and feet are
deadly weapons within the plain language of sec-
tion—106 defining “deadly weapon,” in part, as
“[a]nything that in the manner of its use or intended
use is capable of causing death or serious bodily in-
jury.” According to the State, by incorporating the
word “anything” into section—106, the General
Assembly evinced its intent to include fists and feet
within the scope of the definition of “deadly
weapon .”
[1][2][3] We examine this argument in light of
relevant principles of statutory construction. Provi-
sions of the criminal code should be “construed ac-
cording to the fair import of their terms, including
reference to judicial decisions and common law in-
terpretations, to promote justice, and effect the ob-
jectives of the criminal code.” Tenn.Code Ann. §
39–11–104 (1997). This Court's role in construing
statutes is to give effect to the legislative intent
without unduly restricting or expanding a statute's
coverage beyond its intended scope. See State v.
Butler, 980 S.W.2d 359, 362 (Tenn.1998). We de-
termine legislative intent from the natural and or-
dinary meaning of the statutory language within the
context of the entire statute without any forced or
subtle construction that would extend or limit the
statute's meaning. See id. Moreover, we will not ap-
ply a particular interpretation to a statute if that in-

terpretation would yield an absurd result. See, e.g.,
State v. Legg, 9 S.W.3d 111, 116 (Tenn.1999).
[4] Were we to interpret the statute to be writ-
ten broadly enough to include one's fists and feet
within the statutory definition of “deadly weapon,”
it would lead to an absurd result—the merger of
simple and aggravated offenses—which would con-
tradict the expressed intent of the General As-
sembly. Within the criminal code, the General As-
sembly has divided many offenses into two categor-
ies: simple offenses and enhanced offenses which
include aggravated offenses and especially aggrav-
ated offenses. A simple offense is composed of the
crime's most basic elements. An aggravated of-
fense, by contrast, is the simple offense accompan-
ied by some other element, usually use of a deadly
weapon or serious bodily injury sustained by a vic-
tim. See, e.g., Tenn.Code Ann. §
39–13–102(1)(A)–(B), –304(a)(4)–(5) (1997). A
combination of these other elements together with
the simple offense typically comprises an especially
aggravated offense. See, e.g., Tenn.Code Ann. §
39–13–403(A) (1997).
The General Assembly's rationale for grading
offenses in this manner is evident in the corres-
ponding sentences that may be imposed for com-
mission of offenses. For example, a defendant con-
victed of simple assault is guilty of a Class A mis-
demeanor*198 for which a sentence of eleven
months and twenty-nine days and a fine of
$2,500.00 may be imposed. See Tenn.Code Ann. §
39–13–101(a)(1)–(2) (1997), § 40–35–111(e)(1)
(1997). If, however, that defendant used a deadly

weapon in committing the assault, the misdemeanor
assault becomes a Class C felony, see Tenn.Code
Ann. § 39–13–102(a)(1) (1997), and the defendant
is subject to a sentence of between three and fifteen
years and a fine up to $10,000.00. See id. §
40–35–111(b)(3) (1997). Thus, the General As-
sembly has determined that the use of a deadly
weapon in the course of an assault merits a penalty
more severe than that for simple assault. Clearly,
the grading of offenses in the criminal code reflects
the General Assembly's intent to punish more
harshly enhanced offenses.
The State argues that because fists and feet, in
their manner of use or intended use, are capable of
causing serious bodily injury, they are deadly
Page 4
19 S.W.3d 195
(Cite as: 19 S.W.3d 195)
weapons. It logically flows from this proposition
that it is irrelevant whether or not fists or feet actu-
ally cause a serious bodily injury. Because they are
capable of causing serious bodily injury, they are
per se deadly weapons. If this is so, then the Gener-
al Assembly's distinction between simple and en-
hanced offenses is nullified in some circumstances.
For example, to prove aggravated assault, the State
would need only show that, during the commission
of a simple assault, the defendant displayed a
deadly weapon. Under the State's broad definition

of “deadly weapon,” the defendant's fists and feet
would inevitably be displayed. Thus, the defendant
becomes both the perpetrator and the deadly
weapon, the simple assault becomes aggravated as-
sault, and the misdemeanor becomes a felony.
It is difficult, if not impossible, to conceive of
a scenario in which a defendant could assault an-
other individual without displaying fists or feet. As
an example of how simple assault survives under its
theory, the State posits the following hypothetical:
[A] woman who slaps a man would commit the
offense of simple assault ... whether or not the
slap resulted in any bodily injury. If the slap
should cause the man to flinch, fall, and hit his
head with resulting serious bodily injury ... she
would have committed the offense of aggravated
assault based on the serious bodily injury but not
with the use of or intended use of her hand as a
deadly weapon.
However, the State's theory contradicts its own
conclusion. Under the State's theory, the mere for-
tuity that the man did not fall and sustain a serious
bodily injury does not alter the character of the wo-
man's hand as a deadly weapon. Because, in its
manner of use, the hand is capable of causing a ser-
ious bodily injury, the woman commits aggravated
assault by merely displaying the hand, i.e., the
deadly weapon.
We do not believe that the General Assembly
intended this result by its definition of “deadly
weapon.” Had the General Assembly intended the

definition of “deadly weapon” to encompass body
parts, it would have had no reason to also enact a
statute criminalizing simple assault when, by the
very act of assault, an aggravated assault would oc-
cur. Instead, we conclude that the increased penalty
for use of a deadly weapon is appropriate when an
object or instrument other than one's own body is
used in the commission of a criminal offense. Ac-
cordingly, we hold that fists and feet are not deadly
39–11–106(a)(5) (1997), and we affirm the judg-
ment of the Court of Criminal Appeals.
B. Instruction on criminal responsibility for facil-
itation of aggravated robbery and especially ag-
gravated robbery
In State v. Burns, 6 S.W.3d 453, 466–67
(Tenn.1999) we adopted the following test for less-
er-included offenses:
*199 [5] An offense is a lesser-included of-
fense if:
(a) all of its statutory elements are included with-
in the statutory elements of the offense charged;
or
(b) it fails to meet the definition in part (a) only
in the respect that it contains a statutory element
or elements establishing
(1) a different mental state indicating a lesser
kind of culpability; and/or
(2) a less serious harm or risk of harm to the

same person, property or public interest; or
(c) it consists of
(1) facilitation of the offense charged or of an
offense that otherwise meets the definition of
lesser-included offenses in part (a) or (b); or
(2) an attempt to commit the offense charged or
of an offense that otherwise meets the defini-
tion of lesser-included offenses in part (a) or
(b); or
Page 5
19 S.W.3d 195
(Cite as: 19 S.W.3d 195)
(3) solicitation to commit the offense charged
or of an offense that otherwise meets the defin-
ition of lesser-included offenses in part (a) or
(b).
After adopting this test, we set forth a two-part
inquiry in which a trial court must engage when de-
termining whether a jury instruction on a lesser-
included offense is warranted:
First, the trial court must apply the new test to
determine whether a particular lesser offense is
included in the greater charged offense. If a lesser
offense is not included in the offense charged,
then an instruction should not be given, regard-

less of whether evidence supports it. If, however,
the trial court concludes that a lesser offense is
included in the charged offense, the question re-
mains whether the evidence justifies a jury in-
struction on such lesser offense.... Whether or not
a particular lesser-included offense should be
charged to the jury depends on whether proof in
the record would support the lesser charge.
Id. at 467–68. The court makes this determina-
tion viewing the evidence liberally in the light most
favorable to the existence of a lesser-included of-
fense. See id. at 469. “An offense is a lesser-in-
cluded offense if ... it consists of facilitation of the
offense charged....” Id.; see also Tenn.Code Ann.
§§ 39–11–403, –12–107 (1997). Accordingly, facil-
itation of aggravated robbery and especially ag-
gravated robbery are lesser-included offenses of es-
pecially aggravated robbery.
[6] Flemming, however, is entitled to a jury in-
struction only if the evidence justifies a jury in-
struction on the lesser-included offense of facilita-
tion of a felony. See Burns, 6 S.W.3d at 467. “A
person is criminally responsible for the facilitation
of a felony if, knowing that another intends to com-
mit a specific felony, but without the intent re-
quired for criminal responsibility under §
39–11–402(2), the person knowingly furnishes sub-
stantial assistance in the commission of the felony.”
Tenn.Code Ann. § 39–11–403(a) (1997). Thus, the
trial court, viewing the evidence liberally in the
light most favorable to the existence of a lesser-
included offense, should have instructed the jury on
facilitation if the evidence was legally sufficient to

support a conviction for facilitation.
[7] Having reviewed the record, we agree with
the Court of Criminal Appeals that the parties
presented legally sufficient evidence to support a
conviction of criminal responsibility for facilitation
of especially aggravated robbery and aggravated
robbery. The Sentencing Commission Comments to
section –403 state that application of the facilitation
statute is appropriate where an offender participates
substantially in a felony but lacks the intent to pro-
mote, assist or benefit from the offense. Under the
facts of this case, and in the light most favorable to
the existence of the lesser-included offense, a jury
could reasonably have concluded that, while Flem-
ming participated substantially by kicking and beat-
ing the victim, he did not intend to promote, assist
or benefit from the offense, *200 because he took
no property from the victim.
The State concedes that its proof rests on the
testimony of Juanita Smith and Antonio Batey. At
trial, Juanita Smith testified that Batey and Ter-
rance Robinson were the individuals who removed
property from the victim. She did not testify that
she saw Flemming take property from the victim.
Moreover, when Antonio Batey was asked by coun-
sel for the State whether he knew what, if anything,
Flemming took from the victim, Batey responded
that he did not. If the jury accredited that testimony,
it might have concluded that Flemming substan-
tially assisted in the robbery of the victim but did
not intend to benefit from the crime. Under these
circumstances, we conclude that the trial court
should have instructed the jury on the lesser-in-
cluded offenses of facilitation, and its failure to do

so constitutes reversible error. Whether an instruc-
tion on facilitation will be warranted at Flemming's
new trial will depend, of course, on the evidence
developed at that trial.
CONCLUSION
We hold that fists and feet are not deadly
Page 6
19 S.W.3d 195
(Cite as: 19 S.W.3d 195)
39–11–106(a)(5) (1997). We also hold that the trial
court committed reversible error in failing to in-
struct the jury on the lesser-included offenses of fa-
cilitation of aggravated robbery and especially ag-
gravated robbery. Accordingly, we affirm the judg-
ment of the Court of Criminal Appeals and remand
this case to the trial court for a new trial.
Costs of this appeal are taxed to the appellant,
the State of Tennessee.
Tenn.,2000.
State v. Flemming
19 S.W.3d 195
END OF DOCUMENT
Page 7
19 S.W.3d 195

(Cite as: 19 S.W.3d 195)
Supreme Court of Rhode Island.
STATE
v.
Norberto BOLARINHO.
No. 2002–690–C.A.
April 14, 2004.
Background: Defendant was convicted in the Su-
perior Court, Providence County, Krause, J., of as-
sault resulting in serious bodily injury and assault
by means of a dangerous weapon. Defendant ap-
pealed.
Holding: The Supreme Court, Goldberg, J., held
that double jeopardy barred defendant's conviction
for both crimes.
Affirmed in part, vacated in part, and re-
manded.
West Headnotes
[1] Double Jeopardy 135H 141
135H Double Jeopardy
135HV Offenses, Elements, and Issues Fore-

closed
135HV(A) In General
135Hk139 Particular Offenses, Identity of
135Hk141 k. Assault, battery, or
armed violence. Most Cited Cases
Double jeopardy barred defendant's conviction
for both assault resulting in serious bodily injury
and assault by means of a dangerous weapon,
where it was undisputed that each alleged crime
arose from same transaction, an altercation in
which the complainant was repeatedly kicked by
the defendant; because assault resulting in serious
bodily injury necessarily occurred by use of a dan-
gerous weapon if the injury occurred as a result of
being repeatedly kicked, each crime did not contain
a separate and distinct element. U.S.C.A.
Const.Amend. 5; Const. Art. 1, § 7.
closed
135HV(A) In General
135Hk132 Identity of Offenses; Same Of-
fense
135Hk136 k. “Same evidence” test;
sufficiency of evidence of one offense to sustain
conviction for the other. Most Cited Cases

Under “same evidence test” for finding double
jeopardy, if the same evidence suffices to establish
both crimes, a defendant may not be prosecuted a
second time nor be twice punished. U.S.C.A.
37II(A) Offenses
An assault with a dangerous weapon may arise
when the object used in the assault is not per se a
dangerous weapon if it appears that the object was
used in such a way that it had the capability of pro-
ducing serious bodily harm. Gen.Laws 1956, §
11-5-2.
37II(A) Offenses
If an object is employed in such a manner that
serious bodily harm could have resulted, an assault

850 A.2d 907
(Cite as: 850 A.2d 907)
with a dangerous weapon has been committed,
whether or not injury occurs; what is determinative
is not just the object's latent capability, but such
capability coupled with the manner of use.
Gen.Laws 1956, § 11-5-2.
37II(A) Offenses
For purposes of supporting conviction for as-
sault with a dangerous weapon, a person's foot can
qualify as a dangerous weapon, particularly when
employed with karate-like precision. Gen.Laws
1956, § 11-5-2.

closed
135HV(A) In General
135Hk132 Identity of Offenses; Same Of-
fense
135Hk135 k. Proof of fact not required
for other offense. Most Cited Cases
For purposes of double jeopardy analysis, in
making determination of whether each crime
charged requires proof of a fact which the other
does not, it is necessary to focus not only on the
elements of each crime but also the evidence upon
which the state's case is based. U.S.C.A.
*908 Aaron Weisman, Providence, for Plaintiff.
Paula Lynch, for Defendant.
Present: WILLIAMS, C.J., FLANDERS, GOLD-
BERG, FLAHERTY, and SUTTELL, JJ.
O P I N I O N
GOLDBERG, Justice.
This case came before the Supreme Court for
oral argument on March 2, 2004, on the appeal of
the defendant, Norberto Bolarinho (Bolarinho or
defendant), from a Superior Court judgment of con-
viction for assault resulting in serious bodily injury
and assault by means of a dangerous weapon, both
in violation of G.L.1956 § 11–5–2. For the reasons
set forth herein, the judgment of the Superior Court
is affirmed in part and vacated in part.

Facts and Travel
On September 10, 2000, at about 2 a.m., de-
fendant rode his bicycle to the home of Francis
“Cookie” Martin on Vine Street in the city of East
Providence, intending to purchase some cocaine. At
the time, Cookie's brother, Louis Martin (Martin or
complainant), was residing at the Vine Street loca-
tion. While watching television, Martin heard a
knock at the door. Jennifer Correia, another resid-
ent at the home, peered through the window and in-
formed Martin that defendant was at the door. Ac-
cording to Martin, defendant was not a welcome
guest, and he went outside and ordered defendant to
leave the premises. As Martin approached defend-
ant and told him to leave, defendant “[t]hrew a
punch at me, so I threw a punch back at him.” The
defendant began kicking and striking Martin re-
peatedly with “twirl kicks” and “chops.” Although
Martin attempted to strike back, he was unsuccess-
ful, and he quickly fell to the ground.
As Martin lay on the ground, defendant contin-
ued to kick him in the face and chest and on his
back and arms. Martin testified that he covered his
face and head with his arms but that defendant
“kept on hitting me when I was on the ground, step-
ping on my arms [and] kicking them.” His right
wrist was broken as “I was trying to cover my
face;” and “my right arm took the most damage.”
After receiving several blows, complainant man-
aged to grab defendant and push him into some
nearby bushes at which point Bolarinho left the
scene. Martin, who was bleeding from the head,

850 A.2d 907
(Cite as: 850 A.2d 907)
eyes, and mouth, had suffered a black eye, bruises,
abrasions and a broken right wrist. Martin testified
that he had to wear a cast on his wrist for an exten-
ded period, was still experiencing problems with
his wrist, and that since the attack it had never been
“one hundred percent.”
On March 19, 2001, the state filed a criminal
information charging defendant with two counts of
felony assault in violation of § 11–5–2: count 1
charged defendant with assault and battery resulting
in serious bodily injury and count 2 charged de-
fendant with “assault[ing] Louis J. Martin*909 with
a dangerous weapon, to wit, a shod foot[.]”
FN1
In
response to defendant's motion for a bill of particu-
lars, the state clarified that “[a]s to count [1], [the]
serious bodily injury incurred by [Martin], * * *
[was] a broken right wrist” and “[a]s to [c]ount [2],
the dangerous weapon used by the defendant upon
the complainant was the defendant's feet.” On
November 12, 2001, defendant filed a motion to
dismiss count 2, assault with a dangerous weapon,
“on the grounds of double jeopardy as it either
merges with count 1, or is a lesser included of-

fense.” Although the motion to dismiss was not
heard before the trial began, the trial justice did ad-
dress the issue at the close of the evidence; he
denied the motion. The trial justice, sitting without
a jury, found defendant guilty on both counts, and
sentenced him to concurrent terms of twelve years
at the Adult Correctional Institutions, five years to
serve, and seven years suspended, with probation.
FN1. The information also charged defend-
ant with breaking and entering the apart-
ment of Jennifer Correia, without the con-
sent of the tenant, in violation of G.L.1956
§ 11–8–2 on September 2, 2000. This
count was severed before trial and remains
pending.
On appeal, defendant asserts that his conviction
has resulted in multiple punishments for the same
offense. According to Bolarinho, “[t]he felony as-
sault statute provides for enhanced penalties when
an assault is committed with a dangerous weapon
or results in serious bodily injury.” The defendant
argues that when a serious bodily injury results
from the crime of assault with a dangerous weapon,
there is a merger and he cannot, consistent with the
double jeopardy clause, be convicted of two crimes.
The defendant also contends that the state presented
insufficient evidence to prove beyond a reasonable
doubt that Martin suffered a serious bodily injury,
an essential element of felony assault resulting in
serious bodily injury.
Double Jeopardy
[1][2] The Fifth Amendment to the United

States Constitution and article 1, section 7, of the
Rhode Island Constitution protects criminal defend-
ants from being “twice put in jeopardy” for the
same offense. The test that this Court has adopted
for determining whether an accused stands in
danger of being twice tried or punished for the
same offense “is often referred to as the ‘same
evidence’ test,” State v. Davis, 120 R.I. 82, 86, 384
A.2d 1061, 1064 (1978), and comes to us from
Blockburger v. United States, 284 U.S. 299, 52
S.Ct. 180, 76 L.Ed. 306 (1932):
“The applicable rule is that where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to de-
termine whether there are two offenses or only
one, is whether each provision requires proof of
an additional fact which the other does not.” Dav-
is, 120 R.I. at 86, 384 A.2d at 1064 (quoting
Blockburger, 284 U.S. at 304, 52 S.Ct. 180).
Thus, if “the same evidence suffices to estab-
lish both crimes, a defendant may not be prosecuted
a second time nor be twice punished.” Davis, 120
R.I. at 86, 384 A.2d at 1064.
Citing State v. Zangrilli, 440 A.2d 710, 711
(R.I.1982), in which this Court unequivocally held
that although not per se dangerous, a person's hands
can be considered dangerous weapons when used in
a manner likely to produce serious bodily harm, de-
fendant contends that an assault with a dangerous
weapon merges with the crime of assault resulting
Page 3

850 A.2d 907
(Cite as: 850 A.2d 907)
in serious bodily injury because “[t]here is no scen-
ario in which there can be an assault resulting in
serious bodily injury, which does not include all the
elements of assault with a *910 dangerous
weapon.” Although defendant made the same argu-
ment at trial, the trial justice disagreed with defend-
ant's reasoning:
“Well, let me just address the issue as to whether
there is a merger and that somehow [defendant] is
exposed to double jeopardy between the two
charges. He is not. There is no double jeopardy
involved. The Blockburger charges are different
from one another by way of the specific elements
required for the ADW charge. There's no require-
ment, nor is the State obligated to prove, that an
actual battery took place; whereas, the other
charge requires that a battery take place and that
serious bodily injury flow from it. They are dif-
ferent from one another. And, to the extent
[defendant] claim[s] that they should merge, that
motion is denied.”
We deem this finding to be error.
Although the trial justice was correct in apply-
ing the Blockburger test to defendant's double jeop-
ardy argument, he erred in his analysis.

FN2
It is
undisputed that the crimes charged in the criminal
information arose from the same transaction, an al-
tercation outside the complainant's home. Each
count in the information alleged a violation of §
11–5–2, “Felony Assault.” Section 11–5–2,
formerly entitled “Assault or Battery with a Dan-
gerous Weapon or Substance,” provided that “every
person who shall make an assault or battery, or
both, with a dangerous weapon, or with acid or oth-
er dangerous substance, * * * shall be punished * *
*.” In 1981, the statute was amended by the Gener-
al Assembly.
FN3
The offense was renamed
“Felony Assault” and provides:
FN2. Shortly before oral argument in this
case, the state moved to confess error con-
cerning count 1, felony assault resulting in
serious bodily injury. “[T]he
State—recognizing at least the possibility
that one of the acts constituting the felony
assault resulting in serious bodily injury
could also have been an act constituting
the felony assault by means of a dangerous
weapon—[came] to appreciate that the best
legal and equitable disposition * * * might
be to simply acquiesce to defendant's
double jeopardy prayer that one of the two
felony-assault convictions be set aside.”

FN3. P.L. 1981, ch. 76, § 1.
“Felony Assault.—(a) Every person who shall
make an assault or battery, or both, with a dan-
gerous weapon, or with acid or other dangerous
substance, or by fire, or an assault or battery
which results in serious bodily injury, shall be
punished by imprisonment for not more than
twenty (20) years.” (Emphasis added.)
[3][4][5] Although many objects, including
knives and firearms, are inherently dangerous
weapons, an assault with a dangerous weapon may
arise “when the object used in the assault is not per
se a dangerous weapon if it appears that the object
was used in such a way that it had the capability of
producing serious bodily harm.” State v. Mercier,
415 A.2d 465, 467 (R.I.1980). (Emphasis added.) If
the object is employed in such a manner that seri-
ous bodily harm could have resulted, an assault
with a dangerous weapon has been committed,
whether or not injury occurs. “The object's latent
capability alone is not determinative; what is de-
terminative is such capability coupled with the
manner of use.” Id. We have no hesitation in hold-
ing that a person's foot can qualify as a dangerous
weapon, particularly when employed with karate-
like precision.
In subsequent decisions, this Court has made
clear that a dangerous weapon is defined as an ob-
ject used in a manner capable of producing serious
bodily injury.
*911 See State v. Gore, 820 A.2d 978, 980

850 A.2d 907
(Cite as: 850 A.2d 907)
(R.I.2003) (mem.); State v. Froais, 653 A.2d 735,
737 (R.I.1995) (per curiam); State v. Jeremiah, 546
A.2d 183, 186 (R.I.1988); Zangrilli, 440 A.2d at
711–12. Although it is well settled that a defendant
can be convicted of assault with a dangerous
weapon without evidence that the victim suffered
serious bodily injury because, as the trial justice
noted, a battery is not required, we are confronted
with the question of whether an assault and battery
with a dangerous weapon that results in serious
bodily injury committed during a single altercation
is one offense or two separate crimes. It is axiomat-
ic that an assault with a dangerous weapon can (and
often does) result in serious bodily injury.
However, we are not convinced that a conviction
for both assault with a dangerous weapon and as-
sault resulting in serious bodily injury resulting
from the same transaction may stand.
[6] We note that the state has not alleged that
the offenses charged in the information were the
result of two separate and distinct acts. Indeed, by
its answer to the bill of particulars, the state has
conceded that both offenses arise from a single
transaction, an altercation in which the complainant
was repeatedly kicked by the defendant, resulting in
two violations of § 11–5–2(a). There is an eviden-

tiary overlap between the two crimes, and we are
not persuaded that each crime charged “requires
proof of a fact which the other does not.” Blockbur-
ger, 284 U.S. at 304, 52 S.Ct. 180. To make this de-
termination, it is necessary to focus not only on the
elements of each crime but also the evidence upon
which the state's case is based. According to the bill
of particulars, in assaulting Martin with a danger-
ous weapon defendant employed his feet, which are
capable of causing serious bodily injury and did so.
The evidence adduced at trial disclosed that Bolar-
inho committed an assault and battery upon the
complainant with his feet that resulted in serious
bodily injury. Thus, the evidence that established
defendant's guilt on assault with a dangerous
weapon, his feet, is the identical evidence intro-
duced with respect to the remaining count, an as-
sault resulting in serious bodily injury. We deem
these counts merged under a double jeopardy ana-
lysis because the evidence that supported the con-
viction for assault with a dangerous weapon was a
necessary component of the guilty finding for as-
sault resulting in serious bodily injury.
Accordingly, we are of the opinion that if seri-
ous bodily injury has occurred as a result of being
repeatedly kicked, that offense necessarily has oc-
curred by the use of a dangerous weapon. Thus,
each crime does not contain a separate and distinct
element to withstand double jeopardy scrutiny. In
the context of this case, an assault resulting in seri-
ous bodily injury is by definition an assault with a
dangerous weapon, and defendant's conviction on
both counts may not stand. Because the state was
willing to confess error and moved to vacate the

conviction on count 1, assault resulting in serious
bodily injury, we vacate the judgment pertaining to
count 1, assault resulting in serious bodily injury.
FN4
FN4. The state's willingness to confess er-
ror makes it unnecessary for this Court to
decide whether an assault with a dangerous
weapon is a lesser included offense of an
assault resulting in serious bodily injury.
Sufficiency of the Evidence
The defendant also asserts that the state's evid-
ence was insufficient to establish that Martin
suffered a serious bodily injury, and as such, the tri-
al justice erred *912 in denying the defendant's mo-
tion to dismiss count 1. However, because this issue
is now moot, we need not address the defendant's
contentions.
Conclusion
For the reasons stated herein, we vacate the de-
fendant's conviction as to count 1, assault resulting
in serious bodily injury, and affirm the defendant's
conviction as to count 2, assault with a dangerous
weapon. The record shall be remanded to the Su-
perior Court.
R.I.,2004.
Page 5
850 A.2d 907
(Cite as: 850 A.2d 907)

State v. Bolarinho
850 A.2d 907
END OF DOCUMENT
Page 6
850 A.2d 907
(Cite as: 850 A.2d 907)

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