State v. Smith

• Decision Date: 18 September 2007
• Docket Number: No. COA06-1321.,COA06-1321.
• Parties: STATE of North Carolina, Plaintiff, v. Jerry Dale SMITH, Defendant.
• Court: North Carolina Court of Appeals

650 S.E.2d 29

STATE of North Carolina, Plaintiff, v. Jerry Dale SMITH, Defendant.

No. COA06-1321.

Court of Appeals of North Carolina.

September 18, 2007.

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, Winston-Salem, 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, then the 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. On a 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

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 evidence as 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 ...