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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. STEVEN LEE BATCHELOR, Defendant
Filed: 4 January 2005
1. Assault_on government official--car used as deadly weapon--lesser charge not
The trial court did not err by refusing to submit the charge of assault on a government
official (a misdemeanor) as a lesser offense to assault on a government official with a deadly
weapon (a felony). The only additional element required for the felony is use of a deadly
weapon, and the evidence showed that defendant drove his car directly toward a deputy standing
in defendant's driveway, and then drove at high speed directly at two officers' vehicles in their
lane of travel, finally crashing into a third officer's car. The key element in determining whether
a weapon is deadly per se is how it is used; here the evidence leads to but one conclusion.
2. Assault_on government official_sufficiency of evidence_knowledge that officer was
The trial court did not err by denying a motion to dismiss charges of assault on a
government official with a deadly weapon where defendant contended that there was insufficient
evidence that he knew that the officers were government officials. It was daylight, the officers
were wearing uniforms or identifying clothes, their cars had police lights on top, two were
marked Sheriff, and two of the cars had their blue lights on as they chased defendant.
Appeal by defendant from judgment entered 22 May 2003 by Judge
W. Russell Duke, Jr. in Gates County Superior Court. Heard in the
Court of Appeals 15 November 2004.
Attorney General Roy Cooper, by Assistant Attorney General
Ashby T. Ray, for the State.
Winifred H. Dillon, Attorney for Defendant-Appellant.
MARTIN, Chief Judge.
Defendant was convicted by a jury of multiple felony and
misdemeanor charges, including four counts of assault with a deadly
weapon on a government official. He appeals from judgments entered
upon the four convictions of assault with a deadly weapon on a
government official. Evidence at defendant's trial tended to show, inter alia, that
on 29 August 2002, Gates County Sheriff Ed Webb, along with
Deputies Wiggins, Noble and Bunch, and Hertford County Deputy
Liverman of the Roanoke/Chowan Narcotics Task Force, went to
defendant's home around 6:30 p.m. to execute a search warrant.
Defendant was not home at the time, and the search warrant was
served on defendant's wife. While the officers were in the yard of
the home, defendant drove into the yard. His wife identified him
to the officers. Deputy Liverman approached the vehicle with his
hands in the air, yelling for defendant to stop. Instead, however,
defendant drove around the U-shaped driveway, increased his speed,
and headed back towards the road.
Deputy Wiggins was standing in or near the driveway as
defendant drove away. Defendant made no attempt to avoid hitting
Deputy Wiggins, and as he passed, the side mirror of defendant's
vehicle struck the deputy, knocking him off [his] balance, though
he did not fall. Sheriff Webb observed: [Deputy Wiggins] was
right directly in his path. He had to jump behind his patrol car
. . . I saw him stumble.
When defendant left the driveway, four of the officers got in
three vehicles to pursue him, leaving Deputy Liverman behind to
complete the search. They reached speeds in excess of 100 miles
per hour while trying to keep defendant in sight. Sheriff Webb,
accompanied by Deputy Noble, was driving the vehicle in front. As
they rounded a curve, Sheriff Webb realized that defendant had
turned around and was driving back towards the three patrol
vehicles in their lane of travel. Sheriff Webb was forced to brakeand pull off the road onto the shoulder. Deputy Wiggins, driving
the vehicle directly behind Sheriff Webb, was forced to pull into
the opposite lane to avoid a head-on collision. Deputy Bunch,
driving the third vehicle slightly farther behind, stopped his car
and pulled it sideways across one lane of travel hoping to stop the
defendant. The other lane of travel was still open. Defendant
collided with Deputy Bunch's vehicle and came to a stop on the side
of the road in a ditch. The defendant was then taken into custody.
Defendant testified that it was after dark when he drove into
his yard and that he saw something jump out at him. He tried to
brake, but his brakes did not work so he drove around the yard and
back onto the road. He denied that he was speeding or that anyone
yelled at him to stop. He testified that he could not avoid
hitting Deputy Bunch's vehicle because the deputy backed the
vehicle into his path.
The defendant makes two arguments on appeal: (1) the trial
court committed plain error by not instructing the jury on the
lesser offense of misdemeanor assault on a government official, and
(2) the trial court erred in denying his motion to dismiss the four
charges of assault with a deadly weapon on a government official
because there was insufficient evidence that defendant knew or had
reason to know the officers were government officials. Defendant's
remaining assignments of error are not argued on appeal and are
deemed abandoned pursuant to N.C. R. App. P. 28(b)(6).  Defendant first argues the misdemeanor lesser offense of
assault on a government official in violation of N.C. Gen. Stat. §
14-33(c)(4) should have been submitted to the jury in addition to
the felony of assault with a deadly weapon on a government official
in violation of N.C. Gen. Stat. § 14-34.2. The only additional
element required for conviction of the felony charge is the use of
a deadly weapon.
In State v. Palmer
, 293 N.C. 633, 239 S.E.2d 406 (1977), our
Supreme Court held that the question of whether simple assault
should have been submitted as an alternative verdict depends upon
whether the [instrument] was a deadly weapon . . . as a matter of
law. If it was, simple assault need not have been submitted. Id
at 642, 239 S.E.2d at 412. The question in the current case, then,
is whether or not an automobile driven at a high speed is a deadly
weapon as a matter of law. We hold that it is.
In State v. Smith
, 187 N.C. 469, 121 S.E. 737 (1924), the
Court defined a deadly weapon as [a]ny instrument which is likely
to produce death or great bodily harm, under the circumstances of
its use. Id
. at 470, 121 S.E. at 737. The key element in
determining whether or not a weapon is deadly per se is the manner
of its use:
The deadly character of the weapon depends
sometimes more upon the manner of its use, and
the condition of the person assaulted, than
upon the intrinsic character of the weapon
itself. Where the alleged deadly weapon and
the manner of its use are of such character as
to admit of but one conclusion, the question
as to whether or not it is deadly . . . is one
of law, and the Court must take the
responsibility of so declaring. But where it
may or may not be likely to produce fatal
results, according to the manner of its use .. . its alleged deadly character is one of
fact to be determined by the jury.
. at 470, 121 S.E. at 737. A car sitting idle may not be deadly,
but the manner of its use by defendant clearly put the officers
in danger of death or great bodily harm. The evidence showed that
defendant drove his car directly towards Deputy Wiggins who was
standing in the driveway, and defendant drove at a high rate of
speed directly at the officers' vehicles in their lane of travel.
Two cars had to take evasive action to avoid a head-on collision
with defendant, and defendant crashed into the third car with the
officer in it. The evidence, therefore, leads to but one
conclusion, which is the deadly nature of defendant's use of the
car, and we find no error in the trial court's failure to submit
the lesser charge of assault on a government official to the jury.
 Defendant's second argument is that the trial court erred
in denying defendant's motion to dismiss the four charges of
assault with a deadly weapon on a government official because there
was insufficient evidence that defendant knew or had reason to know
the officers were government officials. To withstand a defendant's
motion to dismiss criminal charges, the State must offer
substantial evidence to show that the defendant committed each
element necessary for conviction of the offense charged. State v.
, 154 N.C. App. 176, 178, 571 S.E.2d 619, 620 (2002).
Substantial evidence is evidence which a reasonable mind could
conclude to be adequate to support a conclusion. State v. Carrilo
149 N.C. App. 543, 548, 562 S.E.2d 47, 50 (2002).
Deputy Liverman testified to the following: when defendant
pulled into the driveway of his home, (1) Deputy Liverman wenttowards defendant wearing a vest labeled Sheriff; (2) his patrol
car and at least one other car in the driveway were also marked
Sheriff; (3) all the cars had police lights on top; (4) the other
deputies in the yard were wearing uniforms or identifying clothing;
and (5) it was daylight outside. In addition, Sheriff Webb
testified that the blue lights on his car and the car behind him
were operating while they were in pursuit of defendant.
Considering the evidence in the light most favorable to the State
as we must, State v. Carrilo, supra
, we conclude there was
substantial evidence to show that defendant knew or had reason to
know the officers were law enforcement officers and, therefore,
were government officials.
Judges McCullough and Steelman concur.
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