STATE OF NORTH CAROLINA v. DAVID LEE BARKSDALE, JR., Defendant
Filed: 2 January 2007
1. Firearms and Other Weapons--possession of firearm--motion to dismiss--sufficiency
The trial court did not err by denying defendant's motion to dismiss the charge of possession
of a firearm even though defendant contends the State failed to present substantial evidence showing
he had possession of the handgun that was resting in the grass about six inches from his outstretched
hand, because there was ample circumstantial evidence suggesting that defendant had possession of
the gun before he was tackled to the ground by the police officers.
2. Assault--deadly weapon on government officer--motion to dismiss--sufficiency of
evidence--unequivocal appearance of attempt
The trial court did not err by denying defendant's motion to dismiss the charge of assault with
a deadly weapon on a government officer, because: (1) in North Carolina an assault is not simply an
overt act or an attempt, but also the unequivocal appearance of an attempt; (2) even if defendant's
conduct of reaching for the gun was not in itself an overt act or an attempt to do some immediate
physical injury, his conduct qualified at least as the unequivocal appearance of an attempt to harm
the officers with the gun; (3) defendant committed this unequivocal appearance of an attempt with
force and violence when in addition to the presence of the gun, defendant struggled intensely with
three officers and was not subdued until he received several blows to the head; and (4) the officers'
testimony under the circumstances was sufficient evidence to establish that a person of reasonable
firmness would have feared immediate bodily harm.
3. Assault--instruction--attempted assault--plain error
The trial court committed plain error by instructing the jury on attempted assault with a
deadly weapon upon a government officer because that offense does not exist in this state.
Appeal by defendant from judgments entered 21 October 2005 by
Judge Judson D. Deramus, Jr. in Forsyth County Superior Court.
Heard in the Court of Appeals 12 October 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Diane Martin Pomper, for the State.
Crumpler Freedman Parker & Witt, by Jones P. Byrd, Jr., for
Defendant David Lee Barksdale, Jr. appeals from his
convictions for two counts of attempted assault with a deadly
weapon on a government officer, possession of a firearm by a
convicted felon, and resisting a public officer. On appeal,
defendant argues that the trial court erred in denying his motion
to dismiss and, in any event, erred in instructing the jury on
attempted assault since attempted assault is "an offense that does
While we hold that defendant's motion to dismiss was properly
denied and the case submitted to the jury, we agree with defendant
that the court erred in submitting the charge of attempted assault
with a deadly weapon on a government officer to the jury. Under
State v. Currence, 14 N.C. App. 263, 188 S.E.2d 10, appeal
dismissed and cert. denied, 281 N.C. 315, 188 S.E.2d 898-99 (1972),
we are bound to conclude that "attempted assault" is not a triable
offense in North Carolina. Accordingly, we must vacate defendant's
convictions on the two counts of attempted assault with a deadly
weapon on a government officer and remand the matter for further
The State's evidence at trial tended to show the following
facts. On 6 January 2005, defendant was outside of the Maryland
Avenue Apartments in Winston-Salem, North Carolina. As an unmarked
car carrying four police officers entered the parking lot of the
apartment complex, defendant ducked behind a vehicle. When theofficers exited their car and identified themselves to defendant as
the police, defendant ran away.
The officers chased defendant for a distance of three to four-
tenths of a mile. Officer Hege was the first to catch up with
defendant, and he tackled defendant to the ground. Two other
officers _ Officers McKaughon and Mulgrew _ arrived a few seconds
later. While on the ground, defendant struggled vigorously with
the officers as they tried to restrain and handcuff him.
The officers had managed to handcuff defendant's right wrist
when Officer Hege noticed a chrome-plated handgun in the grass
approximately six inches from defendant's left hand. Although none
of the officers saw defendant touch the gun, they testified that
defendant was reaching for the gun with his outstretched hand.
Officer Hege alerted the other officers to the gun, and they
proceeded to apply even greater force to subdue defendant. After
defendant received several blows to the head, the officers
succeeded in subduing defendant. The officers then retrieved the
gun that was lying in the grass. The gun was dry and warm to the
touch even though the ground was wet from rain earlier in the
evening and the weather was cool.
Defendant was indicted on two counts of assault with a deadly
weapon on a government official, one count of possession of a
firearm by a felon, one count of possession of a stolen firearm,
one count of resisting a public officer, and as having attained the
status of habitual felon. The case proceeded to trial and, at the
close of the State's evidence, the trial court denied defendant'smotion to dismiss. The trial court, however, decided to instruct
the jury only as to "attempted assault," with the instructions
derived from a combination of the pattern jury instructions for a
general attempt charge, N.C.P.I.-Crim. 201.10, and for assault with
a firearm upon a government officer, N.C.P.I.-Crim. 208.95B.
The jury convicted defendant of the two counts of attempted
assault with a deadly weapon on a government officer, as well as
the single counts of resisting a public officer, and possession of
a firearm by a felon. After defendant pled guilty to being a
habitual felon, the trial court sentenced defendant to consecutive
terms of imprisonment of 130 to 165 months for firearm possession
and 133 to 169 months for the attempted assault offenses and
resisting a public officer. Defendant timely appealed.
 We first address defendant's arguments relating to the
denial of his motion to dismiss. In ruling on a criminal
defendant's motion to dismiss, the trial court must determine
whether the State has presented substantial evidence (1) of each
essential element of the offense and (2) of the defendant's being
the perpetrator. State v. Robinson
, 355 N.C. 320, 336, 561 S.E.2d
245, 255, cert. denied
, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S.
Ct. 488 (2002). "'Evidence is substantial if it is relevant and
adequate to convince a reasonable mind to accept a conclusion.'"
(quoting State v. Parker
, 354 N.C. 268, 278, 553 S.E.2d 885,
894 (2001), cert. denied
, 535 U.S. 114, 153 L. Ed. 2d 162, 122 S.
Ct. 2332 (2002)). When considering the issue of substantialevidence, the trial court must view all of the evidence presented
"in the light most favorable to the State, giving the State the
benefit of every reasonable inference and resolving any
contradictions in its favor." State v. Rose
, 339 N.C. 172, 192,
451 S.E.2d 211, 223 (1994), cert. denied
, 515 U.S. 1135, 132 L. Ed.
2d 818, 115 S. Ct. 2565 (1995).
With respect to the charge of possession of a firearm by a
felon, defendant argues that the State failed to present
substantial evidence showing he had "possession" of the handgun
that was resting in the grass about six inches from his
outstretched hand. Possession of a weapon may be either actual or
constructive. "Actual possession requires that a party have
physical or personal custody of the item. A person has
constructive possession of an item when the item is not in his
physical custody, but he nonetheless has the power and intent to
control its disposition." State v. Alston
, 131 N.C. App. 514, 519,
508 S.E.2d 315, 318 (1998) (internal citation omitted).
Based upon our review of the record, we conclude that there
was ample circumstantial evidence suggesting that defendant had
possession of the gun before he was tackled to the ground by the
police officers. The officers testified that a warm, dry chrome-
plated handgun was located in the wet grass only six inches from
defendant's hand. A jury could reasonably conclude that, since the
grass was wet and the weather cool, the gun, found at the precise
spot where the police tackled defendant, likely fell from
defendant's hand or elsewhere from his person. Moreover, theofficers testified defendant was reaching for the gun _ an
indication that defendant was aware of the gun's presence. Such
evidence goes well beyond mere conjecture that defendant had
possession of the gun. See State v. Glasco
, 160 N.C. App. 150,
157, 585 S.E.2d 257, 262 (holding that circumstantial evidence was
sufficient to withstand a motion to dismiss charge of firearm
possession because defendant was found carrying a bag containing
firearm residue and a gun was found concealed in a pile of tires
near where defendant had been recently spotted), disc. review
, 357 N.C. 580, 589 S.E.2d 356 (2003). The trial court thus
properly denied defendant's motion to dismiss the firearm
 With respect to the charge of assault with a deadly weapon
on a government officer, the State was required to present
substantial evidence that defendant had: "(I) commit[ted] an
assault; (II) with a firearm or other deadly weapon; (III) on a
government official; (IV) who is performing a duty of the
official's office." State v. Spellman
, 167 N.C. App. 374, 380, 605
S.E.2d 696, 701 (2004), appeal dismissed and disc. review denied
359 N.C. 325, 611 S.E.2d 845 (2005). The "assault" element, based
on the common law of North Carolina, is defined as "'an overt act
or an attempt, or the unequivocal appearance of an attempt, with
force and violence, to do some immediate physical injury to the
person of another, which show of force or menace of violence must
be sufficient to put a person of reasonable firmness in fear of
immediate bodily harm.'" State v. Roberts
, 270 N.C. 655, 658, 155S.E.2d 303, 305 (1967) (quoting 1 Strong's N.C. Index, Assault and
§ 4 (1957)); see also Spellman
, 167 N.C. App. at 384, 605
S.E.2d at 703 (articulating same definition of assault).
(See footnote 1)
The essential disagreement of the parties is whether an
assault with a firearm can be accomplished where the perpetrator
reaches for, but does not succeed in touching, the weapon. The
parties did not submit any case law to the trial court or to this
Court that would dispositively resolve this disagreement.
Likewise, in our own research, we have not discovered any directly
analogous North Carolina case.
Nonetheless, after carefully considering the applicable
definition of assault, we must conclude that the elements of the
offense were supported by the evidence produced at trial. In North
Carolina, an assault is not simply "an overt act or an attempt" but
also "the unequivocal appearance of an attempt." Even if
defendant's conduct _ his reaching for the gun _ was not in itself
"an overt act or an attempt . . . to do some immediate physical
injury," his conduct qualifies at least as "the unequivocal
appearance of an attempt" to harm the officers with the gun.
Moreover, as demonstrated by the evidence introduced at trial,
defendant committed this unequivocal appearance of an attempt withforce and violence. Indeed, in addition to the presence of the
gun, the evidence also showed that defendant struggled intensely
with three officers and was not subdued until he received several
blows to the head. We also find, under the circumstances, that the
officers' testimony was sufficient evidence to establish that a
person of reasonable firmness would have feared immediate bodily
In short, we are not persuaded by defendant's contention that
an assault did not take place because he never "made physical
contact with the weapon." In light of the evidence showing that
the gun was only inches from defendant's outstretched hand and that
defendant was actively, forcefully, and to some degree successfully
resisting the officers' attempt to arrest him, we do not believe,
in light of our State's definition of assault, that defendant's
failure to physically touch the weapon precludes the commission of
an assault with the firearm. See State v. Dickens
, 162 N.C. App.
632, 636-37, 592 S.E.2d 567, 571-72 (2004) (with respect to charge
of assault with a firearm on a government officer, noting that
"[i]n proving the element of assault, the State does not have to
show the defendant pointed a firearm at a law enforcement
officer"). As there is no serious dispute that defendant's actions
satisfied the remaining elements of the offense (i.e., he directed
his conduct toward a government officer who was attempting to
perform his official duties), we hold that the State presented
sufficient evidence to survive defendant's motion to dismiss.
 Defendant next argues that the trial court committed plain
error in instructing the jury regarding a charge of "attempted
assault" because "it amounts to plain error for a trial court to
instruct a jury on an offense that does not exist." Based on
controlling precedent, we agree with defendant.
The trial court's decision to instruct the jury as to
attempted assault is irreconcilable with State v. Currence
, 14 N.C.
App. 263, 188 S.E.2d 10, appeal dismissed and cert. denied
N.C. 315, 188 S.E.2d 898-99 (1972). In Currence
, the jury returned
an initial "verdict purporting to find defendant guilty of
'attempted assault with a deadly weapon' . . . ." Id.
at 265, 188
S.E.2d at 12. The trial judge refused to accept that verdict and
ordered the jurors to resume deliberations, after which they
returned a different verdict. On appeal, the defendant argued that
the initial verdict of guilty of "attempted assault with a deadly
weapon" should have been accepted by the trial court. This Court
disagreed, holding that "[i]t constituted an incomplete verdict in
that it would not support a judgment . . . ." Id.
that an assault in North Carolina means "'an overt act or attempt,
or the unequivocal appearance of an attempt,'" id.
, 270 N.C. at 658, 155 S.E.2d at 305), this Court reasoned:
"The effect of the first verdict returned by the jury was to find
defendant guilty of an 'attempt to attempt.' '[O]ne cannot be
indicted for an attempt to commit a crime where the crime attempted
is in its very nature an attempt.'" Id.
(alteration original)(quoting State v. Hewett
, 158 N.C. 627, 629, 74 S.E. 356, 357
If, in Currence
, we found it impermissible for a jury on its
own initiative to render a verdict of guilty of attempted assault
with a deadly weapon, we cannot then uphold a guilty verdict, based
on the trial judge's instructions, of attempted assault with a
deadly weapon on a government officer. We are bound by Currence
See In re Civil Penalty
, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989) ("Where a panel of the Court of Appeals has decided the same
issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned by
a higher court."). Accordingly, we hold that the trial court's
decision to instruct on the offense of attempted assault with a
deadly weapon on a government officer was in error.
We further hold that these instructions resulted in plain
error. To establish plain error, a defendant must demonstrate "(i)
that a different result probably would have been reached but for
the error or (ii) that the error was so fundamental as to result in
a miscarriage of justice or denial of a fair trial." State v.
, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997). In our
view, instructing a jury in such a way that the jury convicts the
defendant of a nonexistent offense is an unmistakable example of a
miscarriage of justice. See State v. Parker
, 143 N.C. App. 680,
683-84, 550 S.E.2d 174, 176 (2001) (holding that "defendant's
conviction . . . must be vacated" where defendant argued that trial
court committed plain error in instructing jury on nonexistentcrime of attempted second degree murder); People v. Martinez
N.Y.2d 810, 812, 611 N.E.2d 277, 277, 595 N.Y.S.2d 376, 376 (1993)
(in case where trial judge instructed jury on nonexistent crime of
attempted first degree manslaughter, and jury found defendant
guilty of that crime, holding that "such a conviction presents
error fundamental to the organization of the court or the mode of
proceedings proscribed by law" and therefore "must be reversed"
(internal quotation marks omitted)). We therefore vacate
defendant's convictions for attempted assault with a deadly weapon
on a government officer.
The parties have not specifically discussed, in their briefs,
the consequences of a decision vacating the attempted assault
convictions, such as whether defendant may be retried on the charge
of assault with a deadly weapon on a government officer, as alleged
in the indictment. We, therefore, leave that question to be
addressed in the first instance by the trial court on remand.
No error in part; vacated and remanded in part.
Judges STEELMAN and STEPHENS concur.
Judge STEPHENS concurred prior to 31 December 2006.