Appeal by defendant from judgment entered on or about 6 June
2006 by Judge Zoro J. Guice, Jr. in Superior Court, Haywood County.
Heard in the Court of Appeals 21 March 2007.
Attorney General Roy A. Cooper, III by Special Deputy Attorney
General John J. Aldridge, III for the State-appellee.
William B. Gibson for defendant-appellant.
STROUD, Judge.
Defendant Jerry Dale Smith appeals from judgment entered upon
jury verdicts finding him guilty of assault with a deadly weapon on
a government official, misdemeanor resisting a public officer, and
attaining habitual felon status. These convictions arose out of an
altercation in which defendant submerged a Haywood County Deputy
Sheriff in the Pigeon River. Defendant assigns error to the trial
court's denial of his motion to dismiss the charge of assault with
a deadly weapon on a government official and to the trial court's
refusal to submit the lesser-included offense of misdemeanor
assault on a government official to the jury. In support of these
assignments, defendant argues that, as a matter of law, “hands and
water” are not deadly weapons. Alternatively, defendant argues
that a trial court must submit the lesser-included offense of
misdemeanor assault on a government official to the jury unless the
court determines as a matter of law that the defendant did use a
deadly weapon in carrying out the alleged assault. Finally,
defendant argues that if this Court reverses his conviction for
felony assault with a deadly weapon on a government official, thenthe Court must also vacate the judgment and commitment under which
he was sentenced as a habitual felon.
We hold that “hands and water” together may be deadly weapons.
Accordingly, we conclude that the trial court properly denied
defendant's motion to dismiss. However, we agree with defendant
that the trial court erred by refusing to submit the lesser-
included offense of misdemeanor assault on a government official to
the jury. For this reason, we order a new trial on defendant's
conviction for felony assault with a deadly weapon on a government
official (04CRS003786). We vacate defendant's conviction for
attaining habitual felon status (04CRS003785). Finally, we remand
defendant's conviction for resisting a public officer (04CRS052937)
for resentencing because the trial court consolidated this
conviction with defendant's convictions for assault with a deadly
weapon on a government official and attaining habitual felon status
for sentencing purposes.
I. Background
On 6 June 2006, Defendant Jerry Dale Smith was tried in
Superior Court, Haywood County for two counts of assault with a
deadly weapon on a government official, attempted murder, resisting
a public officer, and attaining habitual felon status. One count
of assault with a deadly weapon on a government official involved
the use of handcuffs as the instrument of assault during a fist-
fight. The other count of assault involved the use of defendant's
hands and water together as the instrument of the assault, during
which defendant submerged the victim in the Pigeon River. Evidence presented at trial tended to show the following: On
3 August 2004, Haywood County Deputy Sheriff Joseph Patrick
Henderson informed the Haywood County Sheriff's Office that he was
traveling on foot to a residence near the Pigeon River. There,
Deputy Henderson intended to serve defendant with arrest warrants
and to question defendant regarding a breaking and entering.
Deputy Henderson had seen defendant coming to and from the
residence and was aware that defendant was dating a woman who lived
near the Pigeon River. Deputy Henderson was dressed in his
official uniform and was wearing his badge, radio, and gun belt.
Upon arriving at the residence, Deputy Henderson saw defendant
exit the back door carrying a suitcase. Deputy Henderson
recognized defendant from previous encounters as the person upon
whom he needed to serve the arrest warrants. When defendant heard
noise from Deputy Henderson's radio, defendant dropped the suitcase
and began to flee.
Deputy Henderson identified himself as a deputy sheriff and
instructed defendant not to run. Defendant ignored Deputy
Henderson's order and the deputy pursued defendant through the
woods to the bank of the Pigeon River, where defendant entered the
water and fell. Deputy Henderson seized and handcuffed defendant
in the river. After handcuffing defendant, Deputy Henderson
informed defendant that he was under arrest and walked defendant
toward the riverbank.
Arriving at the riverbank, defendant exited the water first.
Deputy Henderson followed but slipped forward into defendant,causing them both to fall. Deputy Henderson stood up and tried to
grab defendant by his arm to help him stand as well. Defendant
jerked away, cursing at Deputy Henderson.
Defendant remained on the ground while Deputy Henderson
contacted the dispatch office to request assistance. While Deputy
Henderson waited for back-up officers to arrive, defendant became
increasingly hostile. Deputy Henderson attempted to stand
defendant up again, but defendant continued to pull away. The
third time that Deputy Henderson tried to stand defendant up,
defendant had escaped from the handcuffs. Defendant lunged toward
Deputy Henderson and pushed the deputy hard in the chest, causing
Deputy Henderson to fall backward into the river. Defendant jumped
into the river and straddled Deputy Henderson, whose lower back was
against a large rock, grabbing the deputy by his uniform shirt and
vest straps. At trial, Deputy Henderson testified that defendant
plunged his head and upper body under the water for what “seemed.
. . like forever,” using “his upper body strength and all his
weight on top of me.” Deputy Henderson further testified that
defendant held him under the water for between thirty and forty-
five seconds, that the water in this area of the river had a strong
current, and that the water was a “little higher than the knee.”
During this time, Deputy Henderson's head, chest, and abdomen were
completely submerged in the river.
Deputy Henderson began to panic and attempted to push himself
up out of the water, but the weight of defendant pushing down and
the strong current of the river overcame his initial attempt. Ona second attempt to free himself, Deputy Henderson raised his head
above water enough to breathe in a single breath. Defendant
plunged Deputy Henderson under the water again for approximately
fifteen to twenty seconds. Throughout the entire struggle,
defendant grasped Deputy Henderson's vest straps, applying force to
keep him submerged.
Deputy Henderson then used his right leg and hands to roll
defendant to the middle of the river, where they both stood up.
Defendant punched Deputy Henderson's head twice, using the
handcuffs as “a pair of brass knuckles,” with one cuff around his
right wrist and the other around his forefingers. As the fight
continued, Deputy Henderson used his pepper spray on defendant.
After being hit by the pepper spray, defendant ran and attempted to
flee again.
Deputy Henderson chased defendant, apprehending him on the
riverbank. After seizing defendant, Deputy Henderson engaged
defendant in conversation, which quieted him. Deputy Henderson
then took defendant into custody.
At the close of all the evidence, defendant moved to dismiss
one charge of assault with a deadly weapon on a government official
arguing that “hands and water,” as a matter of law, are not deadly
weapons. The trial court denied defendant's motion. During the
charge conference, defendant asked the trial court to instruct the
jury on misdemeanor assault on a government official, arguing that
the jury could find defendant was guilty of this lesser-included
offense. The trial court denied this request as well. On 6 June 2006, the jury found defendant guilty of assault
with a deadly weapon on a government official, with “hands and
water” being the deadly weapon; resisting a public officer; and
attaining habitual felon status. The jury found defendant not
guilty of attempted murder and assault with a deadly weapon on a
government officer, with the deadly weapon being handcuffs. On 6
June 2006, the trial court consolidated defendant's convictions,
entering a presumptive sentence of 151 months minimum to 191 months
maximum imprisonment. Defendant appeals from this final judgment,
arguing that the trial court erred by denying his motion to dismiss
the charge of assault with a deadly weapon on a government
official, with “hands and water” being the deadly weapon and,
alternatively, by refusing to submit to the jury the lesser-
included offense of misdemeanor assault with a deadly weapon on a
government official.
II. Motion to Dismiss
[1] Defendant assigns error to the trial court's denial of his
motion to dismiss the charge of assault with a deadly weapon on a
government official. Defendant argues that, as a matter of law,
hands and water are not a deadly weapon. We disagree.
When ruling on a defendant's motion to dismiss, the trial
court must determine whether there is substantial evidence (1) of
each essential element of the offense charged, and (2) that the
defendant is the perpetrator of the offense.
State v. Earnhardt,
307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982); N.C. Gen. Stat. §
15A-1227 (2005). “Substantial evidence is such relevant evidenceas a reasonable mind might accept as adequate to support a
conclusion.”
State v. Cummings, 46 N.C. App. 680, 683, 265 S.E.2d
923, 925,
aff'd, 301 N.C. 374, 271 S.E.2d 277 (1980). This Court
reviews the trial court's denial of a motion to dismiss
de novo.
State v. Mckinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982).
The use of a deadly weapon is an essential element of the
offense of assault with a deadly weapon upon a government official.
N.C. Gen. Stat. § 14-34.2 (2005). The North Carolina Supreme Court
has defined a deadly weapon as “any instrument which is likely to
produce death or great bodily harm under the circumstances of its
use.”
State v. Smith, 187 N.C. 469, 470, 121 S.E. 737, 737 (1924).
Sometimes, “the deadly character of [a] weapon depends . . . more
upon the manner of its use, and the condition of the person
assaulted, than upon the intrinsic character of the weapon itself.”
Id. When the deadly character of an instrumentality is dependent
upon the particular circumstances of a case, the question is one of
fact to be determined by a jury.
State v. Beal, 170 N.C. 764, 767,
87 S.E.2d 416, 417 (1915) (“If its character as being deadly or
not, depended upon the facts and circumstances, it became a
question for the jury with proper instructions from the court.”);
State v. Parker, 7 N.C. App. 191, 195-96, 171 S.E.2d 665, 667-68
(1970) (When there is a question about whether the alleged deadly
weapon is “likely to produce fatal results,” that is created by
“the manner of its use, or the part of the body at which the blow
is aimed, its alleged deadly character is one of fact to be
determined by the jury.”). The North Carolina Supreme Court has determined that the
following instruments may present a jury question as to their
deadly nature: a plastic bag placed over the head and face of the
victim and secured tightly with tape around the neck,
State v.
Strickland, 290 N.C. 169, 178, 225 S.E.2d 531, 538 (1976); fire,
when the defendant set fire to a house in which a child was
sleeping,
State v. Riddick, 315 N.C. 749, 760, 340 S.E.2d 55, 61
(1986); and a leather belt with a metal buckle, which the defendant
used to inflict severe bruises on a three-year-old child,
State v.
Cauley, 244 N.C. 701, 94 S.E.2d 915 (1956). In each of the cases
cited above, the defendant used his or her hands to bring the
instrument of the assault to the victim.
We note that although it has not been expressly stated in the
North Carolina cases involving use of “deadly weapons,” the
defendant has invariably used his or her hands in conjunction with
each weapon involved. In every North Carolina case cited in this
opinion, and in every North Carolina case we have found dealing
with an assault with a deadly weapon, the defendant used his or her
hands. In all of the cases involving knives, guns, rocks, bricks,
sticks, and other similar weapons, each defendant has picked up the
weapon with his or her hands in order to use the weapon against the
victim. Thus, in the majority of cases, the defendant has used his
or her hands to bring the instrumentality of the assault to the
victim, but the defendant may also use the hands to bring the
victim to the instrumentality of the assault. In
State v. Brinson, 337 N.C. 764, 448 S.E.2d 822 (1994), the
defendant used his hands to bring the victim to the instruments of
the assault, which were the bars and floor of his jail cell. The
defendant was indicted for assault with a deadly weapon with intent
to kill.
Id. at 765, 448 S.E.2d at 823. In the indictment, the
State alleged that the defendant “slamm[ed]” the victim's head
“against the cell bars and floor,” breaking his neck and causing
paralysis.
Id. at 767, 448 S.E.2d at 824. Considering the
sufficiency of that indictment, the North Carolina Supreme Court
held that “under [this] . . . indictment the State properly may
have asserted at trial that defendant's fists, the cell floor, the
cell bars, or a combination thereof were the deadly weapons which
caused the victim's serious injury.”
Id. at 769, 448 S.E.2d at
825. In so holding, the Court noted that “[w]hether an item is
deadly often depends entirely on its use.”
Id. at 769, 448 S.E.2d
at 825.
State v. Brinson is analogous to the case
sub judice in
which defendant used his hands to submerge Deputy Henderson's head,
chest, and abdomen in the Pigeon River and to hold him there.
The State presented evidence to show that the manner in which
defendant used his hands in conjunction with water was likely to
cause death or serious bodily harm to Deputy Henderson, including
evidence that defendant pushed Deputy Henderson into the river,
forcibly held his head under the water, and pushed him back under
the water after he managed to get a breath.
Based on the circumstances stated above, the State presented
substantial evidence from which a reasonable juror could find thatdefendant's submerging of Deputy Henderson in the river was likely
to produce “death or great bodily harm.” Accordingly, we hold that
“hands and water” may be a deadly weapon and that the trial court
properly submitted this question to the jury.
(See footnote 1)
In so holding, we
emphasize that defendant did not assault Deputy Henderson with his
hands alone; rather, defendant used his hands to bring the deputy
to an instrument of the assault, forcibly submerging the deputy in
the Pigeon River and holding him there. Therefore, the State need
not show that Deputy Henderson was significantly smaller or weaker
than defendant or that the deputy was injured or otherwiseincapacitated when defendant assaulted him.
Cf. State v. Rogers,
153 N.C. App. 203, 211, 569 S.E.2d 657, 663 (2002),
disc. review
denied, 357 N.C. 168, 581 S.E.2d 442 (2003) (explaining that, by
themselves, “hands and fists may be considered deadly weapons,
given the manner in which they were used and the relative size and
condition of the parties involved.”);
see e.g. State v. Shubert,
102 N.C. App. 419, 424, 402 S.E.2d 642, 645 (1991) (concluding that
the defendant's fists and feet were deadly weapons when used to
injure a defenseless eighty-one year old woman).
III. Jury Instructions
[2] Defendant assigns error to the trial court's refusal to
submit to the jury the lesser-included offense of misdemeanor
assault on a government official. In support of this assignment,
defendant argues that a trial court must submit the lesser-included
offense of misdemeanor assault on a government official to the jury
unless the court determines as a matter of law that the defendant
did use a deadly weapon. We agree.
When considering whether to submit to the jury a lesser
included offense, the trial court must determine whether (1) “the
lesser offense is, as a matter of law, an included offense for the
crime for which the defendant is indicted” and (2) “there is
evidence in the case which will support a conviction of the lesser
included offense.”
State v. Drew, 162 N.C. App. 682, 685, 592
S.E.2d 27, 29,
appeal dismissed and disc. review denied, 358 N.C.
735, 601 S.E.2d 867 (2004). N.C. Gen. Stat. § 14-34.2 (2005) provides that “an individual
is guilty of [felony] assault with a deadly weapon on a government
official where the individual: (i) commits 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),
disc.
review denied, 359 N.C. 325, 611 S.E.2d 845 (2005). N.C. Gen.
Stat. § 14-33 (2005) provides that the elements of misdemeanor
assault on a government official are (i) an assault; (ii) on a
government official; (iii) when the official is discharging or
attempting to discharge his official duties. Because “'all of the
essential elements'” of misdemeanor assault on a government
official are “'also . . . essential elements included in'” felony
assault with a deadly weapon on a government official, it is a
lesser included offense of that felony.
See State v. Hinton, 361
N.C. 207, 210, 639 S.E.2d 437, 439 (2007) (quoting
State v. Weaver,
306 N.C. 629, 635, 295 S.E.2d 375, 379 (1982),
overruled in part on
other grounds by State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188,
193 (1993)).
In
State v. Palmer, 293 N.C. 633, 643, 239 S.E.2d 406, 413
(1977), the North Carolina Supreme Court considered whether the
trial court erred by refusing to submit the offense of simple
assault to the jury when there was
a conflict in the evidence regarding either
the nature of the weapon or the manner of its
use, with some of the evidence tending to show
that the weapon used or as used would not
likely produce death or great bodily harm and
other evidence tending to show the contrary.
In that case, the defendant used a “hard wooden club weighing two
pounds and eleven ounces, approximately 43 1/4 inches long, two
inches in diameter at the club end, and one and one-half inches in
diameter at the handle” to assault the victim.
Id. at 635, 239
S.E.2d at 407. At the close of evidence, the trial court
instructed jurors that they may return any of six possible
verdicts: “guilty of assault with a deadly weapon with intent to
kill inflicting serious injury; guilty of assault with a deadly
weapon with intent to kill; guilty of assault with a deadly weapon
inflicting serious injury, guilty of assault with a deadly weapon;
guilty of assault inflicting serious injury; or not guilty.”
Id.
at 641, 239 S.E.2d at 412. Because the facts of
Palmer created a
jury question as to whether the instrument of assault was a deadly
weapon, the Court held that the lesser-included offense of simple
assault should have been submitted to the jury as well.
Id. at
643-44, 239 S.E.2d at 413. The Court concluded that
Palmer
“f[e]ll[] within the principle that a defendant is entitled to have
all lesser degrees of offenses supported by the evidence submitted
to the jury as possible alternate verdicts.”
Id. at 643-44, 239
S.E.2d at 413. The Court further concluded that “[f]ailure to
submit this option was not cured by the verdict finding that the
stick was a deadly weapon” because “it cannot be known whether the
jury would have convicted defendant of the lesser offense if it had
been permitted to do so.”
Id. at 644, 239 S.E.2d at 413.
(See footnote 2)
We determine that
State v. Palmer controls the case
sub
judice. Having held that the trial court properly submitted to the
jury the question of whether defendant's use of “hands and water”
was the use of a “deadly weapon,” we further hold that the trial
court erred by refusing to submit to the jury the lesser-included
offense of misdemeanor assault on a government official. This is
prejudicial error that cannot be cured by defendant's subsequent
conviction for felony assault with a deadly weapon on a government
official.
See id. at 644, 239 S.E.2d at 413;
State v. Thacker, 281
N.C. 447, 456, 189 S.E.2d 145, 151 (1972) (“Error in failing to
submit the question of a defendant's guilt of lesser degrees of the
same crime is not cured by a verdict of guilty of the offense
charged because, in such a case, it cannot be known whether the
jury would have convicted of a lesser degree if the different
permissible degrees arising on the evidence had been correctly
presented in the charge.”) Accordingly, we reverse defendant's
conviction for assault with a deadly weapon on a government
official and remand this matter to Superior Court, Haywood County
for a new trial.
IV. Habitual Felon
[3] Defendant argues that if this Court reverses his
conviction for felony assault with a deadly weapon on a government
official, then the Court must also vacate the judgment andcommitment under which he was sentenced as a habitual felon. We
agree.
North Carolina's Habitual Felons Act, N.C. Gen. Stat. §§ 14-
7.1
et seq. (2005), provides that a defendant who has been
convicted of, or pled guilty, to three felony offenses may be
indicted for attaining habitual felon status.
See also State v.
Allen, 292 N.C. 431, 432-33, 233 S.E.2d 585, 587 (1977). “The
effect of such a proceeding 'is to enhance the punishment of those
found guilty of crime who are also shown to have been convicted of
other crimes in the past.'”
Id. at 435, 233 S.E.2d at 588 (quoting
Spencer v. Texas, 385 U.S. 554, 556, 17 L.Ed. 2d 606, 609 (1967)).
The act does not authorize an independent proceeding to determine
a defendant's status as a habitual felon separate from the
prosecution of a predicate substantive felony, and the habitual
felon indictment is necessarily ancillary to the indictment for the
substantive felony.
Id. at 434, 233 S.E.2d at 587;
see also State
v. Cheek, 339 N.C. 725, 453 S.E.2d 862 (1995).
Here, the State indicted defendant on three felony charges:
assault with a deadly weapon on a government official, with the
deadly weapon being hands and water; assault with a deadly weapon
on a government official, with the deadly weapon being handcuffs;
and attempted first-degree murder. The jury acquitted defendant of
attempted first-degree murder and also acquitted defendant of
assault with a deadly weapon on a government official, with the
deadly weapon being handcuffs. The jury convicted defendant of the
assault with a deadly weapon on a government official, with thedeadly weapon being hands and water. Because we order a new trial
on this charge, we vacate the judgment sentencing defendant as a
habitual felon.
V. Conclusion
For the reasons stated above, we determine that the State
presented substantial evidence from which a reasonable juror could
find that defendant's submerging of Deputy Henderson in the river
was likely to produce “death or great bodily harm.” Accordingly,
we hold that “hands and water” may be a deadly weapon and that the
trial court properly submitted this question to the jury. We
further hold that the trial court erred by refusing to submit to
the jury the lesser-included offense of misdemeanor assault on a
government official. This is a prejudicial error that cannot be
cured by defendant's subsequent conviction for felony assault with
a deadly weapon on a government official.
[4] In summary, we order a new trial on defendant's conviction
for felony assault with a deadly weapon on a government official
(04CRS003786). We vacate defendant's conviction for attaining
habitual felon status (04CRS003785). Finally, we remand
defendant's conviction for resisting a public officer (04CRS052937)
for resentencing because the trial court consolidated this
conviction with defendant's convictions for assault with a deadly
weapon on a government official and attaining habitual felon status
for sentencing purposes. Defendant failed to address the remaining assignments of error
in his brief and they are deemed waived. N.C.R. App. P. 28(b)(6)
(2005).
NEW TRIAL; VACATED IN PART; REMANDED.
Judges McCULLOUGH and CALABRIA concur.
Footnote: 1