Defendant is arrested for Assault by Occlusion. He has a prior family violence conviction and several trips to pen, so he is staring at 25-99 or life if convicted.
During same episode he was also banging victims head against the floor.
Would you do a two count indictment with one for occlusion and the second for slamming victims head against floor?
Wouldn't it be paragraphs if it was same transaction?
If you can make them distinct and separate offenses, rather than one continuous criminal episode, then do a two count indictment. The cases can get dicey on whether you have distinct offenses. It's not like sexual assault. There are advantages to alleging alternate manner and means, as opposed to different counts. The jury can return a general verdict on a one count indictment alleging different manner and means, and you won't have to elect. Jury unanimity is not required on manner and means.
I think you have to charge them as seperate counts. One, the occlusion with a prior f/v, is a second degree felony. The other offense, assault f/v with prior f/v, is a third. They both may be 25 to life with the enhancements - but those come later and what happens if they only find one or neither a valid enhancement. The question of what the jury decided to find him guilty of becomes important. So, I would indict as two seperate counts.
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