Smith Jerry Dale

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					No. COA06-1321                                    District 30

                   NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA  )
                         )
          vs.            )      From Haywood County
                         )       No. 04 CRS 3785, 3786, 52937
JERRY DALE SMITH,        )
               Defendant )


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                   DEFENDANT-APPELLANT'S BRIEF


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                          QUESTIONS PRESENTED

    No. 1A. WHETHER THE TRIAL COURT’S DENIALS OF DEFENDANT’S

MOTIONS TO DISMISS THE CHARGE IN 04 CRS 3786 AT THE CLOSE OF THE

STATE’S EVIDENCE AND ALL THE EVIDENCE WERE ERRONEOUS, ON THE

GROUND THAT THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO THE

JURY THAT DEFENDANT USED A DEADLY WEAPON AGAINST DEPUTY

HENDERSON, BECAUSE    HANDS AND WATER, AS A MATTER OF LAW, CANNOT
BE CONSIDERED TO BE A “DEADLY WEAPON.”

    No. 1B. WHETHER THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE

JURY IN 04 CRS 3786, OVER DEFENDANT’S OBJECTION, THAT THEY WERE

TO DETERMINE WHETHER DEFENDANT USED A DEADLY WEAPON AGAINST

DEPUTY HENDERSON, BECAUSE    HANDS AND WATER, AS A MATTER OF LAW,

CANNOT BE CONSIDERED TO BE A “DEADLY WEAPON.”

    No. 1C.   WHETHER THE TRIAL COURT ERRONEOUSLY REFUSED TO
INSTRUCT THE JURY AND INCLUDE ON THE VERDICT SHEET IN 04 CRS

3786, OVER DEFENDANT’S OBJECTION, THAT THE JURY COULD DETERMINE

WHETHER DEFENDANT WAS GUILTY OF A LESSER INCLUDED OFFENSE,

SPECIFICALLY MISDEMEANOR “ASSAULT ON A GOVERNMENT OFFICIAL.”



                    STATEMENT OF THE CASE

    On August 3, 2004, the Defendant Jerry Dale Smith was

charged in case number 04 CR 52937 with violating N.C.G.S. 14-

223 for resisting a public officer. (R.p. 2.)   Shortly

thereafter, on August 23, 2004, he was indicted on this

misdemeanor charge, as well as for three felony charges arising

out of the same events. Specifically, Defendant was charged in

04 CRS 3786 with assault with a deadly weapon on a government

official, the “deadly weapon” allegedly being his hands and

water. In 04 CRS 3787 he was charged again with assault with a

deadly weapon on a government official, the “deadly weapon”

being handcuffs. These two charges were brought as Class F

felonies under N.C.G.S. 14-34.2. He was charged in 04 CRS 3788
with attempted first degree murder. (R.pp. 3-4, 7; T.p. 15.)

Also on August 23rd, he was indicted in 04 CRS 3785 for being an

Habitual Felon under N.C.G.S. 14-7.1; a second bill of

indictment was later returned in that case on December 13,

2004.(R.pp. 5-6.)

    These cases came on for trial during the May 30, 2006

Criminal Session of the Haywood County Superior Court, the Hon.
Zoro J. Guice, Jr., Presiding. (R.p.1.) After submitting

questions to the Trial Court during their lengthy deliberations

(R.pp. 8-9, T.pp. 507, 533), on June 5, 2006, the jury returned

not-guilty verdicts on the attempted murder charge and the

felony assault (handcuffs) charge. (T.pp. 534-535.) However. the

jury returned guilty verdicts on the resisting misdemeanor and

felony assault (hands and water) charges.(R.pp. 10-11; T.pp.

535-536.) The Court then tried the Defendant’s alleged status as

an habitual felon, and the jury returned a guilty verdict. (R.p.

12, T.p. 569.)

    After a contested review of the Defendant’s record of past

convictions, Judge Guice determined that Defendant had reached

Level V for habitual felony sentencing purposes. (R.pp. 13-14;

T.p. 582.) Judge Guice then consolidated the convictions and

imposed an active sentence of 151 months minimum, 191 months

maximum, stating that “by operation of law that sentence will

begin at the expiration of any and all other sentences which the

defendant is now serving.” The Court gave Defendant credit for
161 days spent in pre-trial confinement. (R.pp. 15-16; T.p.

582.) The Defendant-Appellant promptly gave oral notice of

appeal (T.p. 583) and followed up with a written notice as well.

(R.p. 17.)

    The undersigned was later appointed as Appellate Counsel

(R.p. 20). The Record on Appeal was settled on September 29,

2006 (R.p.22), timely filed on October 2, 2006, and docketed on
October 11, 2006.(R.p.1.)

                Basis of Appellate Jurisdiction:

    This appeal is from a final order in the Superior Court.

Pursuant to Rule 28(b)(4) of the Rules of Appellate Procedure,

jurisdiction for this appeal is granted from N.C.G.S. 7A-27(b),

15A-1442, 15A-1444 and/or 15A-1446.

                     STATEMENT OF THE FACTS

    On August 3, 2004, Joseph Henderson was a 23-year-old

deputy employed by   the Haywood County Sheriff’s Office. (T.pp.

38, 120.) On that day, he bought lunch at a Subway and took it

to a house of a friend in the Lake Logan area. Henderson wanted

to serve a warrant for arrest on Jerry Smith, who was dating a

woman, Brenda Lovelace, who lived nearby. (T.pp. 39-40, 108-109,

259, 388.) (Ironically, the warrant was for allegedly communica-

ting a threat to Ms. Lovelace a few days earlier.) (T.pp. 390-

391, 402-405.) Deputy Henderson was dressed in full uniform,

with his badge, radio and gun belt. After finishing lunch, he

walked over to the Lovelace residence. As he entered the
property, he saw Smith come out of the back door of the house.

As Henderson tried to sneak up on Smith, a noise crackled from

his radio. Smith heard it, turned, looked at the deputy and

started to run.(T.pp. 41-43, 115-117, 389, 413, 421, 432.)

Henderson identified himself, hollered “Jerry, don’t run,” and

took off after him. (T.pp. 45, 122.)

    Henderson pursued Smith through some woods, to the nearby
Pigeon River, and along the river bank until they reached a

place where a large hemlock tree blocked their way. They entered

the water, Smith tripped, got up and fell again, where Henderson

caught up with him, held him down and handcuffed him. (T.pp. 46-

47, 125-126, 421, 435.) Henderson then helped Smith get up, and

they walked along until they found a spot where they could climb

up the river bank. Smith stepped up first, but as Henderson

followed, Henderson slipped and started to fall. As he fell, he

forcibly pushed Smith down. At this point, Henderson tried to

contact the dispatcher, both by radio and cell phone. The deputy

then stood back up and rolled Smith over on his side to get him

back on his feet. At that moment, Smith angrily jerked away, and

the two exchanged words. (T.pp. 50, 53-56, 127-128, 133, 135.)

Smith described the push on the embankment as “just all of a

sudden bam, I’m really hit hard.” He also testified that Hender-

son started kicking him in the feet ordering him to get up.

(T.pp. 422-423, 438.)

    Smith is double-jointed. When Henderson tried to pick Smith
up again, the latter’s left hand had gotten free of the hand-

cuffs. Smith pushed Henderson, who fell over a rock in the

water. (T.pp. 56-57, 131-132, 143, 276, 423.) According to

Henderson, Smith got on top of him, grasped his shirt and the

straps on his body armor vest, pushed him under the knee-high

water and held him there for about 30 seconds. (T.pp. 59-63,

148.) Henderson was able to get his head out of the water to
catch a breath of air, but was pushed under water again. After

about 15 more seconds, he was able to roll Smith off of him

toward the middle of the river. (T.pp. 64-66, 134, 148.) The two

stood in the river and resumed fighting. According to the

deputy, during this altercation Smith struck Henderson twice in

the head with the handcuffs; however Smith denied that he ever

struck the deputy with the cuffs. Hen- derson was able to get

his pepper spray out of his belt and spray Smith, at which point

Smith backed away and started to run again. Henderson pursued

Smith, catching up with him as he was climbing out of the river

up an embankment (T.pp. 66-71, 83-84, 137, 150, 424.)

    At that point, things calmed down. The two men sat down and

had a long conversation about Smith’s life and his attitude

about death. (T.pp. 74, 80, 84, 444.) The two calmly and

cooperatively walked back toward the Lovelace residence, where

they encountered Deputy Williams, Lieutenant Henline, and Deputy

Boyce. (T.pp. 86-87, 166, 209, 244, 395.) Henderson took Smith

to town in his patrol car, followed by the other officers,
stopping along the way at a grocery store to get a drink. (T.pp.

89-90, 170, 226- 227, 247, 269.)

    Back at the Sheriff’s office, Henderson told Dep. Williams

what had happened out on the river. (T.pp. 90, 174, 185, 211-

212.) Henderson later provided a more detailed description to

Lt. Henline and Jeremie Crowder, an SBI agent. (T.pp. 249-251,

303- 315, 317-320.) Photographs taken at the time showed some
red marks on Henderson’s back and shins, which he testified had

shortly disappeared, as well as a bruise on his knee which

“stayed around for three or four days after.” (T.pp. 94-96.) He

also had some scratches and a still-visible mark on the side of

his face where he was struck with the handcuffs, as well as a

scratch on the back of his arm. (T.pp. 98-101.)

    During the habitual felony phase of the trial, Martha

Messer, an Assistant Clerk of Court, presented documents which

were offered into evidence as State’s Exhibits 1, 2 and 3. The

prosecutor characterized these documents as “certified true

copies of Mr. Smith’s three felony conviction judgments.” (T.pp.

540-541.) The documents were admitted into evidence over

Defendant’s objection. (T.p. 544.) Exhibit 1 indicated that

Defendant was convicted in Buncombe County, North Carolina, on

5/22/86 of incest, for an offense occurring on 2/12/86. Exhibit

2 indicates that he was convicted in Anderson County, South

Carolina, on 12/15/98 of “grand larceny of a vehicle” for an

offense which occurred on 9/30/98. Exhibit 3 indicates that he
was convicted on 1/13/2000 of “forgery in the first degree” in

Clark County, Georgia; this offense occurred on 9/13/2000.

(T.pp. 545-546.)

                            ARGUMENTS

    Note: Upon further inspection by the undersigned appellate

counsel of the relevant documentary and testimonial evidence

made available to him after the settlement of the Record on
Appeal, the Defendant-Appellant shall not pursue Assignments of

Error No. 2A and No. 2B concerning documentary proof of his

status an habitual felon. (R.p. 21.) However, please note the

contention in the Conclusion of this Brief that if Defendant

cannot be convic- ted of any felony in this case, then he cannot

be sentenced as an habitual felon.

Preface to All Three Arguments:

    Judge Guice correctly considered this to be a case of first

impression for North Carolina appellate courts.(T.p. 458.)

“Hands and water” has never been considered to be a “deadly

weapon” under North Carolina criminal law. That hands and water
should not be so considered is the common thread binding

together the three parts of Argument No. 1. In addition,

Argument 1.C., part 2, goes further to contend that reversible

error was committed during this trial, even if the Court of

Appeals finds that hands and water could be a deadly weapon

under the circumstances.


    ARGUMENT No. 1.A. THE TRIAL COURT’S DENIALS OF DEFENDANT’S

MOTIONS TO DISMISS THE CHARGE IN 04 CRS 3786 AT THE CLOSE OF THE

STATE’S EVIDENCE AND ALL THE EVIDENCE WERE ERRONEOUS, ON THE

GROUND THAT THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO THE

JURY THAT DEFENDANT USED A DEADLY WEAPON AGAINST DEPUTY

HENDERSON, BECAUSE   HANDS AND WATER, AS A MATTER OF LAW, CANNOT

BE CONSIDERED TO BE A “DEADLY WEAPON.”
    Assignment of Error No. 1A. (Transcript pages 384, 458.)

Standard of Review:

    The Court of Appeals must analyze de novo this matter of

law. The specific Standard of Review applicable to the portion

denoted as Argument 1.A. is well-established: In considering a

motion to dismiss based upon insufficiency of the evidence, “the

trial court is to determine whether as a matter of law there is

substantial evidence (a) of each essential element of the

offense charged, or of a lesser offense included therein, and

(b) of defendant’s being the perpetrator of the offense.” State

v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982).

Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” State v.

Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The

evidence must be considered in the light most favorable to the

State, and the State must be given the benefit of every

reasonable inference from that evidence. State v. Lucas, 353

N.C. 568, 581, 548 S.E.2d 712, 721 (2001). If the trial court
finds substantial evidence exists, it may submit the charges to

the jury for its consideration; the weight and credibility of

such evidence is a question for the jury. State v. Vause, 328

N.C. 231, 236-37, 400 S.E.2d 57, 61 (1991).

The Evidence Is Insufficient to Sustain the Conviction.

    The evidence of particular relevance to this Argument comes

at the point when Jerry Smith pushed Deputy Henderson, who fell
over a rock in the water. (T.pp. 56-57, 131-132, 143, 276, 423.)

According to Henderson, Smith got on top of him, grasped his

shirt and the straps on his body armor vest, pushed him under

the knee-high water and held him there for about 30 seconds.

(T.pp. 59-63, 148.) Henderson was able to get his head out of

the water to catch a breath of air, but was pushed under water

again. After about 15 more seconds, he was able to roll Smith

off of him toward the middle of the river. (T.pp. 64-66, 134,

148.) At that point, the two stood in the river and resumed

fighting. Even under the prosecution-friendly standard of review

applicable to the case now on appeal, this evidence is

insufficient to prove that Jerry Smith used a deadly weapon

against Deputy Henderson, because “hands and water,” at least

under these circumstances, as a matter of law cannot be

considered to be a “deadly weapon.”

    Although this appeal does present a specific question of

first impression, there does exist an established decisional

context. A deadly weapon is any instrument that under the
circumstances of its use is likely to cause death or serious

bodily injury. State v. Lane, 1 N.C. App. 539, 539, 541, 162

S.E.2d 149, 151 (1968). A “variety of instrumentalities,” such

as guns and knives, have been considered by our courts to be

deadly by their very nature. State v. Torain, 316 N.C. 111, 120-

121, 340 S.E.2d 465, 470-471, cert. denied, 479 U.S. 836, 93

L.Ed.2d 77, 107 S.Ct. 133 (1986). Whether a weapon is deadly may
depend on its nature and size, how it is used, and the strength

of the defendant as compared with the victim.

    There are several more North Carolina cases in which hands

or feet have been considered to be a deadly weapon, but -- in

sharp contrast to the instant appeal -- these cases involved use

of these body parts to inflict serious injuries against an

infant or a feeble person. For example, in State v. Shubert, 102

N.C. App. 419, 424, 402 S.E.2d 642, 645 (1991), the defendant

used his fists and feet to cause very serious injuries to a

defenseless 81-year-old female victim. Other similar cases

include State v. Lang, 309 N.C. 512, 525-526, 308 S.E.2d 317,

324 (1983) and State v. Sallie, 13 N.C. App. 499, 510, 186

S.E.2d 667, 674, cert. denied, 281 N.C. 316, 188 S.E.2d 900

(1972).

    The Annotation entitled “Parts of Human Body As Dangerous

Weapons,” 8 A.L.R. 4th 1268, presents a number of decisions

across America which have ruled on either side of the issue, but

none dealt specifically with “hands and water.” The Annotation
cites the recent decision in State v. Yarrell, 172 N.C.App. 135,

139-140, 616 S.E.2d 258, 262 (2005), review improvidently al-

lowed, 628 S.E.2d 380, 2006 N.C. LEXIS 40 (May 5, 2006), to

reinforce the principle that hands and fists may be considered

deadly weapons depending on the manner in which they were used

and the relative size and condition of the parties involved. In

that case, both kicking and a rubber mallet were also involved,
and some of the victims were seriously injured.

    Yarrell and the Annotation each cited two other decisions

from our state. In State v. Jacobs, 61 N.C. App. 610, 611, 301

S.E.2d 429, 430 (1983), fists were deemed by this Court to be a

deadly weapon where the defendant, a 39-year-old male who

weighed 210 pounds, hit the victim, a 60-year-old woman, in her

head and stomach, causing brain hemorrhages and other injuries.

And in State v. Grumbles, 104 N.C. App. 766, 769-770, 411 S.E.2d

407, 409-410 (1991), this Court again considered hands and fists

to be a deadly weapon where the defendant, a 175-pound man, beat

a 107-pound woman about the head, breaking her jaw and requiring

extensive hospitalization. The attacker also choked the victim

three times, leaving marks around her neck that appeared to be

just like fingerprints. In addition, the perpetrator admitted

that he was strong enough to wrestle a gun away from a fellow

construction worker, even after he had been shot in the stomach.

    In the case now on appeal, Deputy Henderson was a 23-year-

old, armed law enforcement officer in good physical condition.
Although Smith was slightly larger than the deputy, this dispar-

ity was insignificant under the circumstances, in that at age

40, Smith was much older and not in as good shape as Henderson.

For- tunately, the deputy did not suffer death or serious bodily

injury as a result of the “hands and water” altercation with the

Defendant, but merely a few red marks and bruises which soon

disappeared. (T.pp. 94-96.) In addition, after the altercation,
the two men sat down and had a long conversation about life and

death. (T.pp. 74, 80, 84, 444.) Then the two walked back toward

the residence where Smith was staying (T.pp. 86-87, 166, 209,

244, 395). Henderson then took Smith to town in his patrol car,

followed by the other officers, even stopping along the way at a

grocery store to get a drink. (T.pp. 89-90, 170, 226-227, 247,

269.) This relatively happy ending stands in sharp contrast to

the tales of misery seen in the most of the cases just cited.

    However, lest the reader begin to think that appellants

lose every one of these challenges, the Court of Appeals

recently issued a thoughtful decision arresting judgment and

remanding the case for entry of judgment on a lesser included

offense in State v. Lawson, 173 N.C.App. 270, 280, 619 S.E.2d

410, 416 (2005), review and stay denied, 629 S.E.2d 276, 2006

N.C. LEXIS 545 (2006). Citing numerous relatively recent

decisions, including Jacobs, supra, and Grumbles, supra, as well

as State v. Archbell, 139 N.C. 537, 51 S.E.2d 801 (1905), this

Court held that although the State submitted sufficient evidence
as to the manner of the defendant’s use of his hands, the

evidence was insufficient to determine the perpetrator’s size

and condition compared to that of the victim. In the case on

appeal, the evidence as to comparative size actually favors the

Appellant’s position.

    Just as this appeal presents a distinguishable factual

situation from most of the “deadly weapon” cases in which the
defendant was charged under other criminal statutes, it also

features facts distinguishable from those few cases specifically

treating prosecutions under G.S. 14-34.2 in which the “deadly

weapon” issue was addressed. In State v. Batchelor, 167 N.C.

App. 797, 800-801, 606 S.E.2d 422, 424-425 (2005), the defendant

used his car to drive at a high rate of speed into a deputy’s

car. And in State v. Doisey, 162 N.C. App. 447, 456, 590 S.E.2d

886, 893 (2004), the defendant not only lunged at officers with

a box- cutter but also kept charging at the officers in an

attempt to cut them.

    The “rule of lenity” forbids a court to interpret a statute

so as to increase the penalty that it places on an individual

when the legislature has not clearly stated such an intention.

State v. Boykin, 78 N.C.App. 572, 577, 337 S.E.2d 678, 681

(1985). N.C.G.S. 14-34.2 simply refers to “a firearm or any

other deadly weapon.” To the extent that this criminal statute

gives rise to ambiguity as to the deadly character of

instrumentalities other than firearms, in what is admittedly a
close case, the rule of lenity requires this Court to interpret

the statute in favor of this Defendant-Appellant.

    In the case now on appeal, had Smith been the younger,

stronger, and significantly larger individual than his opponent,

and had Henderson been seriously injured, then Smith’s hands --

when combined with the waters of the Pidgeon River -- might

reasonably be considered to be a deadly weapon. However, those
are not the facts of this case, and the Trial Court should not

have allowed the jury to determine whether Jerry Smith used a

deadly weapon against Deputy Henderson. Therefore, the evidence

was insufficient to support a felony conviction under G.S. 14-

34.2. The trial court should have granted Defendant’s motions to

dismiss this charge.



ARGUMENT No. 1B: THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY

IN 04 CRS 3786, OVER DEFENDANT’S OBJECTION, THAT THEY WERE TO

DETERMINE WHETHER DEFENDANT USED A DEADLY WEAPON AGAINST DEPUTY

HENDERSON, BECAUSE   HANDS AND WATER, AS A MATTER OF LAW, CANNOT

BE CONSIDERED TO BE A “DEADLY WEAPON.”

    Assignment of Error No. 1B.(Transcript pages 460-461,      498-

499.)

Standard of Review

    Because Defendant made a motion to dismiss the felony in 04

CRS 3876, he impliedly objected to the Trial Court’s instructing

the jurors that they could find Defendant guilty of the charged
felony; the issue raised in this Argument 1.B. would then be

matter of law which should be considered de novo by the Court of

Appeals.

    In the alternative, it appears that the Defendant did not

expressly object to the felony instruction during the charge

conference or after the jury was instructed (T.pp. 481, 506).

Lack of an express objection ordinarily gives rise to plain
error review. State v. Tirado, 358 N.C. 551,574, 599 S.E.2d 515,

531- 532 (2004); N.C.R.App.P.10(b)(2). To prevail on plain error

review, a defendant must show that (i) a different result

probably would have been reached but for the error or (ii) the

error was so fundamental as to result in a miscarriage of

justice or denial of a fair trial. State v. Bishop, 346 N.C.

365, 385, 488 S.E.2d 769, 779 (1997). The undersigned counsel

for Appellant acknowledges that he did not expressly allege

“plain error” in articulating Assignment of Error 1.B. While it

should not be necessary, to the extent that it is prudent,

Defendant requests the Court of Appeals act pursuant to

N.C.R.App. P.2 to rule that, if this Court rules favorably to

Defendant in Argument 1.A., then it follows that the Trial

Court’s instruction addressed in this Argument 1.B. would

constitute plain error.

    Moreover, and I respectfully contend to be a more appropri-

ate approach, should Defendant prevail in 1.A., then this Court

ought to rule that the felony instruction constituted error per
se, in which prejudice to the Appellant would be presumed to

occur.

The Jury Was Given an Erroneous Instruction.

    Generally consistent with the contents of N.C.P.I. -- Crim.

208.95 and the cases cited hereinabove, the Trial Court instruc-

ted the jurors that, in order for them to find Jerry Smith

guilty of assault with a deadly weapon on a law enforcement
officer in violation of N.C.G.S. 14-34.2, the State had prove

the following elements:

    “First, that the defendant assaulted the victim by inten-

tionally and without justification or excuse by attempting to

drown him with his hands in the water of the Pigeon River or by

hitting him in the head with handcuffs.

    “Second, that the defendant used a deadly weapon. A deadly

weapon is a weapon which is likely to cause death or serious

bodily injury. In determining whether hands and water and hand-

cuffs are deadly weapons, you should consider the nature of the

hands and water and handcuffs, the manner in which they were

used, and the size and strength of the defendant as compared to

the victim.

    “Third, that the victim was an officer of the Haywood

County Sheriff’s Department” (i.e., a law enforcement officer).

[Note: The Court did not instruct the jury at this point that

Defendant knew or had reasonable grounds to know that the victim

was a law enforcement officer, as set forth in the pattern
instruction. However, this omission was not objected to at

trial, and, under the circumstances, the undersigned readily

admits that this omission would not constitute plain error,

since it was obvious that Smith knew Henderson was a lawman.

(T.pp. 43, 45.)]

    “And fourth, that the victim was performing a duty of his

office. The arrest of the defendant on a warrant is a duty of a
Haywood County Deputy Sheriff.” (T.pp. 498-499.)

    Because the prosecution failed to present sufficient

evidence in case no. 04 CRS 3786 that Defendant assaulted the

deputy with what might be considered a deadly weapon under North

Carolina law, it necessarily follows that the Trial Court erro-

neously instructed the jury, to Defendant’s obvious prejudice,

that they were to determine whether Jerry Smith used a deadly

weapon to assault Deputy Henderson.



ARGUMENT No. 1C.     THE TRIAL COURT ERRONEOUSLY REFUSED TO

INSTRUCT THE JURY AND INCLUDE ON THE VERDICT SHEET IN 04 CRS

3786, OVER DEFENDANT’S OBJECTION, THAT THE JURY COULD DETERMINE

WHETHER DEFENDANT WAS GUILTY OF A LESSER INCLUDED OFFENSE,

SPECIFICALLY MISDEMEANOR “ASSAULT ON A GOVERNMENT OFFICIAL.”

    Assignment of Error No. 1C.(Transcript pages 460-461,      498-

504.)

Standard of Review

    Because the Defendant expressly requested the Trial Court
to instruct the jury on the lesser included offense addressed in

this Argument 1.C., the Court of Appeals should review this

issue de novo.

(Part 1) The Trial Court Should Have Allowed the Jury to

Consider the Lesser Included Offense.

    The definitional test of what constitutes a lesser included

offense was set forth in State v. Bell, 284 N.C. 416, 419, 200
S.E.2d 601, 603 (1973): “When a defendant is indicted for a

criminal offense, he may be convicted of the charged offense or

a lesser included offense when the greater offense charged in

the bill of indictment contains all of the essential elements of

the lesser, all of which could be proved by proof of the

allegations in the indictment. Further, when there is some

evidence suppor- ting a lesser included offense, the defendant

is entitled to a charge thereon even when there is no specific

prayer for such instruction, and error in failing to do so will

not be cured by a verdict finding a defendant guilty of a higher

degree of the same crime.”

    Assault on a Government Official (or Officer) is a Class A1

misdemeanor under N.C.G.S. 14-33(c)(4). The elements of this

offense are the same as those for the felonious assault of which

Jerry Smith has been convicted, except that conviction of the

lesser included misdemeanor offense does not require that the

State present sufficient evidence to prove that the perpetrator

used a deadly weapon. Cf. N.C.P.I. --Crim 208.81. Therefore, an
assault under G.S. 14-33(c)(4) is a lesser included offense of

an assault under G.S. 14-34.2 under the test stated in Bell,

supra.

    At the trial, Defendant requested the Court to instruct the

jury that they could determine whether he was guilty of this

lesser included offense, but the Court refused to do so, stating

instead, “The court will give the jury the following
alternatives as to the two assault charges, guilty of assault

with a deadly weapon on a government official or not guilty.”

(T. pp. 459-461.) As we have shown, in the particular

circumstances of this case, “hands and water” cannot be

considered under our law to be a deadly weapon. However, we

readily concede that there was sufficient evidence to prove each

of the elements of the lesser included misdemeanor offense.

(Part 2) Even if “Hands and Water” Might Be a Deadly Weapon, the

Trial Court Nonetheless Committed Reversible Error.

    Even if it were proper for the Trial Court to allow the

jury to determine whether hands and water could be a deadly

weapon in case no. 04 CRS 3786, the Court committed error by not

including as an additional “alternative” the lesser included

misdemeanor offense requested by the Defendant.

    In addition to the points made in Part 1 of this Argument

1.C., it is also pertinent that, after hearing all the evidence

and arguments of counsel, the jurors returned not-guilty

verdicts on the felony assault (handcuffs) charge in 04 CRS 3787
and the attempted murder charge in 04 CRS 3788. (T.pp. 534-535.)

These acquittals demonstrate that the jurors were not totally

convinced by the State’s various arguments at trial. In

particular, even though the deputy was understandably panicked

by being held under water (T.pp. 64, 105), the jurors rejected

the State’s formal contention that Smith attempted to cause

Henderson’s death. And there was no formal charge by the
prosecution that Smith even tried to cause serious bodily injury

to the deputy.

    Had the jurors been given the opportunity in determining

guilt in 04 CRS 3786 to find beyond a reasonable doubt that

Smith did not use a “deadly weapon” (hands and water) against

Hender- son, but did assault the deputy by holding him under

water for a few seconds, they probably have found Smith guilty

of the misde- meanor. For these reasons, the Trial Court should

have instructed the jury that they could determine whether or

not Defendant was guilty of misdemeanor assault on a law

enforcement officer and should have included that alternative on

the verdict sheet.



                         CONCLUSION

    Although the Defendant-Appellant did not expressly assign

error to the entry of Judgment and Commitment of his conviction

and sentencing as an habitual felon, if he cannot be convicted

of any felony in these cases, it would be either structural
error or error per se (or both) for him to be sentenced as an

habitual felon. Therefore, for the reasons stated in the three

parts of Argument No. 1, the Court of Appeals should:

    (i) arrest the Judgment and Commitment under which

Defendant was sentenced in case no. 04 CRS 3786;

    (ii) arrest the Judgment and Commitment under which Defen-

dant was sentenced as an Habitual Felon in case no. 04 CRS 3475;
and

      (iii) remand the cases to the Trial Court for the

determina- tion of Defendant’s guilt of the lesser included

misdemeanor offense of Assault on a Government Official in 04

CRS 3786.

      Respectfully submitted on this the ____ day of November,

2006.


                               ________________________________
                               WILLIAM B. GIBSON
                               Attorney for Defendant-Appellant
                               8 West Third St., Suite 610
                               Winston-Salem, NC 27101
                               (336) 722-6851
                               State Bar # 8284
                               billgibson@earthlink.net



                     CERTIFICATE OF SERVICE

     This is to certify that the undersigned has this date
served this Defendant-Appellant's BRIEF in the above-entitled
action upon the State of North Carolina by depositing a copy
hereof in a postpaid wrapper in a post office or official
repository under the exclusive care and custody of the United
States Postal Service properly addressed to the attorney or
attorneys for said parties, to wit:

Mr. John J. Aldridge, III
Special Deputy Attorney General
N.C. Department of Justice
Law Enforcement Liaison Section
9001 Mail Service Center
Raleigh, NC 27699-9001

      This the ___ day of November, 2006.
___________________________
         ATTACHMENT TO APPEAL INFORMATION STATEMENT

                    QUESTIONS PRESENTED

     No. 1A. WHETHER THE TRIAL COURT’S DENIALS OF DEFENDANT’S
MOTIONS TO DISMISS THE CHARGE IN 04 CRS 3786 AT THE CLOSE OF THE
STATE’S EVIDENCE AND ALL THE EVIDENCE WERE ERRONEOUS, ON THE
GROUND THAT THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO THE
JURY THAT DEFENDANT USED A DEADLY WEAPON AGAINST DEPUTY
HENDERSON, BECAUSE HANDS AND WATER, AS A MATTER OF LAW, CANNOT
BE CONSIDERED TO BE A “DEADLY WEAPON.”
     No. 1B. WHETHER THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE
JURY IN 04 CRS 3786, OVER DEFENDANT’S OBJECTION, THAT THEY WERE
TO DETERMINE WHETHER DEFENDANT USED A DEADLY WEAPON AGAINST
DEPUTY HENDERSON, BECAUSE HANDS AND WATER, AS A MATTER OF LAW,
CANNOT BE CONSIDERED TO BE A “DEADLY WEAPON.”
     No. 1C. WHETHER THE TRIAL COURT ERRONEOUSLY REFUSED TO
INSTRUCT THE JURY AND INCLUDE ON THE VERDICT SHEET IN 04 CRS
3786, OVER DEFENDANT’S OBJECTION, THAT THE JURY COULD DETERMINE
WHETHER DEFENDANT WAS GUILTY OF A LESSER INCLUDED OFFENSE,
SPECIFICALLY MISDEMEANOR “ASSAULT ON A GOVERNMENT OFFICIAL.”


                    CERTIFICATE OF SERVICE

     This is to certify that the undersigned has this date
served this APPEAL INFORMATION STATEMENT in the above-entitled
action upon the State of North Carolina by depositing a copy
hereof in a postpaid wrapper in a post office or official
repository under the exclusive care and custody of the United
States Postal Service properly addressed to the attorney or
attorneys for said parties, to wit:

Mr. John J. Aldridge, III
Special Deputy Attorney General
N.C. Department of Justice
Law Enforcement Liaison Section
9001 Mail Service Center
Raleigh, NC 27699-9001

    This the _______ day of November, 2006.


                                   ___________________________
No. COA06-1321                                    District 30

                   NORTH CAROLINA COURT OF APPEALS

                   *******************************

STATE OF NORTH CAROLINA  )
                         )
          vs.            )     From Haywood County
                         )      No. 04 CRS 3785, 3786, 52937
JERRY DALE SMITH,        )
               Defendant )



                 ******************************

                   DEFENDANT-APPELLANT'S BRIEF


                 ******************************
                              INDEX

TABLE OF CASES AND AUTHORITIES ............................. ii

QUESTIONS PRESENTED ........................................   1

STATEMENT OF THE CASE ......................................   2

STATEMENT OF THE FACTS .....................................   4

ARGUMENTS: .................................................   7

     No. 1A. THE TRIAL COURT’S DENIALS OF DEFENDANT’S MOTIONS
TO DISMISS THE CHARGE IN 04 CRS 3786 AT THE CLOSE OF THE
STATE’S EVIDENCE AND ALL THE EVIDENCE WERE ERRONEOUS, ON THE
GROUND THAT THERE WAS INSUFFICIENT EVIDENCE PRESENTED TO THE
JURY THAT DEFENDANT USED A DEADLY WEAPON AGAINST DEPUTY
HENDERSON, BECAUSE HANDS AND WATER, AS A MATTER OF LAW,
CANNOT BE CONSIDERED TO BE A “DEADLY WEAPON” ............... 8

     No. 1B. THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY
IN 04 CRS 3786, OVER DEFENDANT’S OBJECTION, THAT THEY WERE
TO DETERMINE WHETHER DEFENDANT USED A DEADLY WEAPON AGAINST
DEPUTY HENDERSON, BECAUSE HANDS AND WATER, AS A MATTER OF
LAW, CANNOT BE CONSIDERED TO BE A “DEADLY WEAPON” .......... 14

     No. 1C. THE TRIAL COURT ERRONEOUSLY REFUSED TO INSTRUCT
THE JURY AND INCLUDE ON THE VERDICT SHEET IN 04 CRS 3786,
OVER DEFENDANT’S OBJECTION, THAT THE JURY COULD DETERMINE
WHETHER DEFENDANT WAS GUILTY OF A LESSER INCLUDED OFFENSE,
SPECIFICALLY MISDEMEANOR “ASSAULT ON A GOVERNMENT OFFICIAL”. 17

CONCLUSION ................................................. 20

CERTIFICATE OF SERVICE ..................................... 21
i
                 TABLE OF CASES AND AUTHORITIES

Constitutions -- none cited

Federal Cases -- none cited

State Cases

State v. Archbell, 139 N.C. 537, 51 S.E.2d 801 (1905)....... 13

State v. Batchelor, 167 N.C. App. 797, 606 S.E.2d 422 (2005).13

State v. Bell, 284 N.C. 416, 200 S.E.2d 601 (1973) ......... 18

State v. Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997)........ 15

State v. Boykin, 78 N.C.App. 572, 337 S.E.2d 678 (1985)......13

State v. Doisey, 162 N.C. App. 447, 590 S.E.2d 886 (2004)... 13

State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982) ....    8

State v. Grumbles, 104 N.C. App. 766, 411 S.E.2d 407 (1991). 11

State v. Jacobs, 61 N.C. App. 610, 301 S.E.2d 429 (1983).... 11

State v. Lane, 1 N.C. App. 539, 539, 162 S.E.2d 149 (1968).. 10

State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983).......... 10

State v. Lawson, 173 N.C.App. 270, 619 S.E.2d 410 (2005),
     review and stay denied, 629 S.E.2d 276, 2006 N.C. LEXIS
     545 (2006)............................................. 12

State v. Sallie, 13 N.C. App. 499, 186 S.E.2d 667 cert.
     denied, 281 N.C. 316, 188 S.E.2d 900 (1972)............ 10

State v. Lucas, 353 N.C. 568, 548 S.E.2d 712 (2001)........   9

State v. Shubert, 102 N.C. App. 419, 402 S.E.2d 642 (1991).. 10

State v. Smith, 300 N.C. 71, 265 S.E.2d 164 (1980) ........   9

State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (2004).......   15
State v. Torain, 316 N.C. 111, 340 S.E.2d 465, cert. denied,
     479 U.S. 836, 93 L.Ed.2d 77, 107 S.Ct. 133 (1986)...... 10


                              ii
State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991).........    9

State v. Yarrell, 172 N.C.App. 135, 616 S.E.2d 258 (2005),
     review improvidently allowed, 628 S.E.2d 380, 2006
     N.C. LEXIS 40 (May 5, 2006) ..........................   11

Statutes

N.C.G.S. 7A-27 ............................................    3

N.C.G.S. 14-7.1 ...........................................    2

N.C.G.S. 14-33(c)(4)........................................ 18

N.C.G.S. 14-34.2 ..........................................    2

N.C.G.S. 14-223 ...........................................    2

N.C.G.S.15A-1442 ..........................................    3

N.C.G.S.15A-1444 ..........................................    3

N.C.G.S.15A-1446 ..........................................    3

Other Authorities

N.C. Rules App. Pro., Rule 2 ..............................   15

N.C. Rules App. Pro., Rule 10(b)(2)........................   15

N.C. Rules App. Pro., Rule 28(b)(4)........................    3


N.C.P.I.--Crim. 208.81 ....................................   18

N.C.P.I.--Crim. 208.95 ....................................   16

Annot., “Parts of Human Body as Dangerous Weapons,” 8 A.L.R.
     4th 1268 .............................................. 11
iii

				
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