{ "id": 8154614, "name": "STATE OF NORTH CAROLINA, Plaintiff v. JERRY DALE SMITH, Defendant", "name_abbreviation": "State v. Smith", "decision_date": "2007-09-18", "docket_number": "No. COA06-1321", "first_page": "57", "last_page": "68", "citations": [ { "type": "official", "cite": "186 N.C. App. 57" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "629 S.E.2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635720, 12635721 ], "year": 2006, "pin_cites": [ { "parenthetical": "involuntary manslaughter adjudication of juvenile, where victim was thrown into a septic tank and drowned" } ], "opinion_index": 0, "case_paths": [ "/se2d/629/0152-01", "/se2d/629/0152-02" ] }, { "cite": "645 S.E.2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638477, 12638478, 12638479, 12638480, 12638481, 12638482, 12638483, 12638484, 12638485, 12638486, 12638487, 12638488, 12638489, 12638490, 12638491, 12638492, 12638493, 12638494, 12638495, 12638496, 12638497, 12638498 ], "opinion_index": 0, "case_paths": [ "/se2d/645/0230-11", "/se2d/645/0230-01", "/se2d/645/0230-02", "/se2d/645/0230-03", "/se2d/645/0230-04", "/se2d/645/0230-05", "/se2d/645/0230-06", "/se2d/645/0230-07", "/se2d/645/0230-08", "/se2d/645/0230-09", "/se2d/645/0230-10", "/se2d/645/0230-15", "/se2d/645/0230-12", "/se2d/645/0230-13", "/se2d/645/0230-14", "/se2d/645/0230-16", "/se2d/645/0230-17", "/se2d/645/0230-18", "/se2d/645/0230-19", "/se2d/645/0230-20", "/se2d/645/0230-21", "/se2d/645/0230-22" ] }, { "cite": "639 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637517 ], "year": 2007, "pin_cites": [ { "page": "439", "parenthetical": "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)" } ], "opinion_index": 0, "case_paths": [ "/se2d/639/0437-01" ] }, { "cite": "611 S.E.2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632704, 12632705, 12632703 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/611/0845-02", "/se2d/611/0845-03", "/se2d/611/0845-01" ] }, { "cite": "359 N.C. 325", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632704, 12632705, 3798850, 3795458, 12632706, 3800710, 3803057, 3799314, 3804662, 3798683, 12632703 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/611/0845-02", "/se2d/611/0845-03", "/nc/359/0325-04", "/nc/359/0325-03", "/se2d/611/0846-01", "/nc/359/0325-05", "/nc/359/0325-02", "/nc/359/0325-06", "/nc/359/0325-07", "/nc/359/0325-01", "/se2d/611/0845-01" ] }, { "cite": "601 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631757, 12631758, 12631759 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0867-03", "/se2d/601/0867-01", "/se2d/601/0867-02" ] }, { "cite": "358 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631759, 12631760, 12631761, 12631763, 12631764, 12631765 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0867-02", "/se2d/601/0868-02", "/se2d/601/0868-01", "/se2d/601/0870-02", "/se2d/601/0870-01", "/se2d/601/0871-01" ] }, { "cite": "568 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "parenthetical": "second-degree murder conviction of husband for drowning his wife at the beach" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250725 ], "year": 2002, "pin_cites": [ { "parenthetical": "second-degree murder conviction of husband for drowning his wife at the beach" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0479-01" ] }, { "cite": "642 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "177 N.C. App. 365", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301342 ], "year": 2006, "pin_cites": [ { "parenthetical": "involuntary manslaughter adjudication of juvenile, where victim was thrown into a septic tank and drowned" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0365-01" ] }, { "cite": "183 N.C. App. 490", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 }, { "cite": "33 S.E.2d 473", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "parenthetical": "manslaughter conviction for drowning victim in a pond" } ], "opinion_index": 0 }, { "cite": "225 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8599783 ], "year": 1945, "pin_cites": [ { "parenthetical": "manslaughter conviction for drowning victim in a pond" } ], "opinion_index": 0, "case_paths": [ "/nc/225/0071-01" ] }, { "cite": "56 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "parenthetical": "involuntary manslaughter conviction for pulling victim who could not swim into deep water, where she drowned" } ], "opinion_index": 0 }, { "cite": "231 N.C. 214", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629116 ], "year": 1949, "pin_cites": [ { "parenthetical": "involuntary manslaughter conviction for pulling victim who could not swim into deep water, where she drowned" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0214-01" ] }, { "cite": "153 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2002, "opinion_index": 0 }, { "cite": "535 U.S. 1114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 354625, 353731, 354760, 353448, 352172, 354576, 355188, 353749, 351828, 354680, 354745, 352827, 353947, 354297 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/us/535/1114-11", "/us/535/1114-05", "/us/535/1114-06", "/us/535/1114-02", "/us/535/1114-09", "/us/535/1114-03", "/us/535/1114-10", "/us/535/1114-08", "/us/535/1114-07", "/us/535/1114-13", "/us/535/1114-04", "/us/535/1114-14", "/us/535/1114-12", "/us/535/1114-01" ] }, { "cite": "553 S.E.2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "first-degree murder conviction for drowning of eighty-six year old victim in a bathtub" } ], "opinion_index": 0 }, { "cite": "354 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138504 ], "year": 2001, "pin_cites": [ { "parenthetical": "first-degree murder conviction for drowning of eighty-six year old victim in a bathtub" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0268-01" ] }, { "cite": "453 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558634 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0725-01" ] }, { "cite": "385 U.S. 554", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11341302 ], "weight": 2, "year": 1967, "pin_cites": [ { "page": "556" }, { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/us/385/0554-01" ] }, { "cite": "233 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "587" }, { "page": "588" }, { "page": "587" } ], "opinion_index": 0 }, { "cite": "292 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569971 ], "year": 1977, "pin_cites": [ { "page": "432-33" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0431-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 14-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "189 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "151" } ], "opinion_index": 0 }, { "cite": "281 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575301 ], "year": 1972, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0447-01" ] }, { "cite": "239 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1977, "pin_cites": [ { "page": "413" }, { "page": "407" }, { "page": "412" }, { "page": "413" }, { "page": "413" }, { "page": "413" }, { "page": "413" }, { "page": "413" } ], "opinion_index": 0 }, { "cite": "293 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566760 ], "year": 1977, "pin_cites": [ { "page": "643" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0633-01" ] }, { "cite": "431 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "334 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2529763 ], "year": 1993, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0054-01" ] }, { "cite": "295 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "379" } ], "opinion_index": 0 }, { "cite": "306 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573306 ], "year": 1982, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0629-01" ] }, { "cite": "361 N.C. 207", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3740457 ], "year": 2007, "pin_cites": [ { "page": "210", "parenthetical": "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)" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0207-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "605 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "701" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 374", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411467 ], "year": 2004, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0374-01" ] }, { "cite": "592 S.E.2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "29" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 682", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8919732 ], "year": 2004, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0682-01" ] }, { "cite": "402 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "645", "parenthetical": "concluding that the defendant's fists and feet were deadly weapons when used to injure a defenseless eighty-one year old woman" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 419", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524403 ], "year": 1991, "pin_cites": [ { "page": "424", "parenthetical": "concluding that the defendant's fists and feet were deadly weapons when used to injure a defenseless eighty-one year old woman" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0419-01" ] }, { "cite": "581 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "parenthetical": "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.\"" } ], "opinion_index": 0 }, { "cite": "357 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491396, 491752, 491593, 491723, 491412, 491647, 491485, 491839 ], "year": 2003, "pin_cites": [ { "parenthetical": "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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0168-04", "/nc/357/0168-08", "/nc/357/0168-01", "/nc/357/0168-07", "/nc/357/0168-05", "/nc/357/0168-06", "/nc/357/0168-03", "/nc/357/0168-02" ] }, { "cite": "569 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "663" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249135 ], "year": 2002, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0203-01" ] }, { "cite": "448 S.E.2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1994, "pin_cites": [ { "page": "823" }, { "page": "824" }, { "page": "825" }, { "page": "825" } ], "opinion_index": 0 }, { "cite": "337 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2552042 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0764-01" ] }, { "cite": "94 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219506 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0701-01" ] }, { "cite": "340 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "61" } ], "opinion_index": 0 }, { "cite": "315 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718276 ], "year": 1986, "pin_cites": [ { "page": "760" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0749-01" ] }, { "cite": "225 S.E.2d 531", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "538" } ], "opinion_index": 0 }, { "cite": "290 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560744 ], "year": 1976, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0169-01" ] }, { "cite": "171 S.E.2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "667-68", "parenthetical": "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.\"" } ], "opinion_index": 0 }, { "cite": "7 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548840 ], "year": 1970, "pin_cites": [ { "page": "195-96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/7/0191-01" ] }, { "cite": "87 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1915, "pin_cites": [ { "page": "417", "parenthetical": "\"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.\"" } ], "opinion_index": 0 }, { "cite": "170 N.C. 764", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662763 ], "year": 1915, "pin_cites": [ { "page": "767", "parenthetical": "\"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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/170/0764-01" ] }, { "cite": "121 S.E. 737", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1924, "pin_cites": [ { "page": "737" } ], "opinion_index": 0 }, { "cite": "187 N.C. 469", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654088 ], "year": 1924, "pin_cites": [ { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nc/187/0469-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-34.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2005, "opinion_index": 0 }, { "cite": "293 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "125" } ], "opinion_index": 0 }, { "cite": "306 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568285 ], "year": 1982, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0288-01" ] }, { "cite": "271 S.E.2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566386 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0374-01" ] }, { "cite": "265 S.E.2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553034 ], "year": 1980, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0680-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "651" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "65-66" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] } ], "analysis": { "cardinality": 1035, "char_count": 29472, "ocr_confidence": 0.748, "pagerank": { "raw": 2.4405861681589036e-06, "percentile": 0.9964069333771969 }, "sha256": "fa5891e16e2ca829410c8c626f2cc9b61efcced34eee07622e5ab3d2adcde161", "simhash": "1:8e2ec79ec47dbca1", "word_count": 4859 }, "last_updated": "2023-07-14T19:31:40.090074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. JERRY DALE SMITH, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant 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\u2019s denial of his motion to dismiss the charge of assault with a deadly weapon on a government official and to the trial court\u2019s 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, \u201chands and water\u201d 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.\nWe hold that \u201chands and water\u201d together may be deadly weapons. Accordingly, we conclude that the trial court properly denied defendant\u2019s 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\u2019s conviction for felony assault with a deadly weapon on a government official (04CRS003786). We vacate defendant\u2019s conviction for attaining habitual felon status (04CRS003785). Finally, we remand defendant\u2019s conviction for resisting a public officer (04CRS052937) for resentencing because the trial court consolidated this conviction with defendant\u2019s convictions for assault with a deadly weapon on a government official and attaining habitual felon status for sentencing purposes.\nI. Background\nOn 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\u2019s hands and water together as the instrument of the assault, during which defendant submerged the victim in the Pigeon River.\nEvidence presented at trial tended to show the following: On 3 August 2004, Haywood County Deputy Sheriff Joseph Patrick Henderson informed the Haywood County Sheriff\u2019s 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.\nUpon 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\u2019s radio, defendant dropped the suitcase and began to flee.\nDeputy Henderson identified himself as a deputy sheriff and instructed defendant not to run. Defendant ignored Deputy Henderson\u2019s 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.\nArriving 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.\nDefendant 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 \u201cseemed . . . like forever,\u201d using \u201chis upper body strength and all his weight on top of me.\u201d 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 \u201clittle higher than the knee.\u201d During this time, Deputy Henderson\u2019s head, chest, and abdomen were completely submerged in the river.\nDeputy 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\u2019s vest straps, applying force to keep him submerged.\nDeputy 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\u2019s head twice, using the handcuffs as \u201ca pair of brass knuckles,\u201d 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.\nDeputy 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.\nAt the close of all the evidence, defendant moved to dismiss one charge of assault with a deadly weapon on a government official arguing that \u201chands and water,\u201d as a matter of law, are not deadly weapons. The trial court denied defendant\u2019s 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.\nOn 6 June 2006, the jury found defendant guilty of assault with a deadly weapon on a government official, with \u201chands and water\u201d 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\u2019s 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 \u201chands and water\u201d 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.\nII. Motion to Dismiss\nDefendant assigns error to the trial court\u2019s 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 \u00e1 deadly weapon. We disagree.\nWhen ruling on a defendant\u2019s 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. \u00a7 15A-1227 (2005). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d 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\u2019s denial of a motion to dismiss de novo. State v. Mckinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982).\nThe 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. \u00a7 14-34.2 (2005). The North Carolina Supreme Court has defined a deadly weapon as \u201cany instrument which is likely to produce death or great bodily harm under the circumstances of its use.\u201d State v. Smith, 187 N.C. 469, 470,121 S.E. 737, 737 (1924). Sometimes, \u201cthe 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.\u201d 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) (\u201cIf 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.\u201d); 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 \u201clikely to produce fatal results,\u201d that is created by \u201cthe 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.\u201d).\nThe 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.\n\u2022We note that although it has not been expressly stated in the North Carolina cases involving use of \u201cdeadly weapons,\u201d 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.\nIn 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 \u201cslamm[ed]\u201d the victim\u2019s head \u201cagainst the cell bars and floor,\u201d 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 \u201cunder [this] . . . indictment the State properly may have asserted at trial that defendant\u2019s fists, the cell floor, the cell bars, or a combination thereof were the deadly weapons which caused the victim\u2019s serious injury.\u201d Id. at 769, 448 S.E.2d at 825. In so holding, the Court noted that \u201c[w]hether an item is deadly often depends entirely on its use.\u201d 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 D\u00e9puty Henderson\u2019s head, chest, and abdomen in the Pigeon River and to hold him there.\nThe 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.\nBased on the circumstances stated above, the State presented substantial evidence from which a reasonable juror could find that defendant\u2019s submerging of Deputy Henderson in the river was likely to produce \u201cdeath or great bodily harm.\u201d Accordingly, we hold that \u201chands and water\u201d may be a deadly weapon and that the trial court properly submitted this question to the jury. 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 otherwise incapacitated 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, \u201chands 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.\u201d); see e.g. State v. Shubert, 102 N.C. App. 419, 424, 402 S.E.2d 642, 645 (1991) (concluding that the defendant\u2019s fists and feet were deadly weapons when used to injure a defenseless eighty-one year old woman).\nIII. Jury Instructions\nDefendant assigns error to the trial court\u2019s 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.\nWhen considering whether to submit to the jury a lesser included offense, the trial court must determine whether (1) \u201cthe lesser offense is, as a matter of law, an included offense for the crime for which the defendant is indicted\u201d and (2) \u201cthere is evidence in the case which will support a conviction of the lesser included offense.\u201d 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).\nN.C. Gen. Stat. \u00a7 14-34.2 (2005) provides that \u201can 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\u2019s office.\u201d 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. \u00a7 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 \u201c \u2018all of the essential elements\u2019 \u201d of misdemeanor assault on a government official are \u201c \u2018also . . . essential elements included in\u2019 \u201d 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)).\nIn 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\na 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.\nIn that case, the defendant used a \u201chard 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\u201d 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: \u201cguilty 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.\u201d 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 \u201cf[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.\u201d Id. at 643-44, 239 S.E.2d at 413. The Court further concluded that \u201c[f] allure to submit this option was not cured by the verdict finding that the stick was a deadly weapon\u201d because \u201cit cannot be known whether the jury would have convicted defendant of the lesser offense if it had been permitted to do so.\u201d Id. at 644, 239 S.E.2d at 413.\nWe 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\u2019s use of \u201chands and water\u201d was the use of a \u201cdeadly weapon,\u201d 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\u2019s 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) (\u201cError in failing to submit the question of a defendant\u2019s 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.\u201d) Accordingly, we reverse defendant\u2019s conviction for assault with a deadly weapon on a government official and remand this matter to Superior Court, Haywood County for a new trial.\nIV. Habitual Felon\nDefendant 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 agree.\nNorth Carolina\u2019s Habitual Felons Act, N.C. Gen. Stat. \u00a7\u00a7 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). \u201cThe effect of such a proceeding \u2018is to enhance the punishment of those found guilty of crime who are also shown to have been convicted of other crimes in the past.\u2019 \u201d 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\u2019s 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).\nHere, 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 the deadly weapon being hands and water. Because we order a new trial on this charge, we vacate the judgment sentencing defendant as a habitual felon.\nV. Conclusion\nFor the reasons stated above, we determine that the State presented substantial evidence from which a reasonable juror could find that defendant\u2019s submerging of Deputy Henderson in the river was likely to produce \u201cdeath or great bodily harm.\u201d Accordingly, we hold that \u201chands and water\u201d 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\u2019s subsequent conviction for felony assault with a deadly weapon on a government official.\nIn summary, we order a new trial on defendant\u2019s conviction for felony assault with a deadly weapon on a government official (04CRS003786). We vacate defendant\u2019s conviction for attaining habitual felon status (04CRS003785). Finally, we remand defendant\u2019s conviction for resisting a public officer (04CRS052937) for resentencing because the trial court consolidated this conviction with defendant\u2019s convictions for assault with a deadly weapon on a government official and attaining habitual felon status for sentencing purposes.\nDefendant 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).\nNEW TRIAL; VACATED IN PART; REMANDED.\nJudges McCULLOUGH and CALABRIA concur.\n. Although we find no reported case in the United States which specifically addresses the use of water as a deadly weapon, there are many reported cases of death by drowning and, in particular, homicides in which drowning in water is the cause of death. The fact that so many cases involving the immersion of the victim in water result in death by drowning and, therefore, are reported as Qases of murder or manslaughter may be an indication of just how deadly a weapon water can be. See e.g., State v. Parker, 354 N.C. 268, 553 S.E.2d 885 (2001) (first-degree murder conviction for drowning of eighty-six year old victim in a bathtub), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002); State v. Williams, 231 N.C. 214, 56 S.E.2d 574 (1949) (involuntary manslaughter conviction for pulling victim who could not swim into deep water, where she drowned); State v. Scoggins, 225 N.C. 71, 33 S.E.2d 473 (1945) (manslaughter conviction for drowning victim in a pond); State v. Epps, 183 N.C. App. 490, 645 S.E.2d 230 (unpublished) (No. COA06-750) (June 5, 2007) (felony murder conviction in which victim\u2019s cause of death was drowning); In re K.T.L., 177 N.C. App. 365, 629 S.E.2d 152 (2006) (involuntary manslaughter adjudication of juvenile, where victim was thrown into a septic tank and drowned), disc, review denied, 362 N.C.-, 642 S.E.2d 442 (2007); State v. Marecek, 152 N.C. App. 479, 568 S.E.2d 237 (2002) (second-degree murder conviction of husband for drowning his wife at the beach).\nThere has been at least one unreported case in which water was held to be a deadly weapon. Martinez v. State, - S.W.3d - (unpublished) (No. 13-98-400-CR) (August 10, 2000). Martinez also involved a defendant who held a law enforcement officer\u2019s head under water in a struggle that ensued when the officer attempted to arrest the defendant. Id.\n. In so holding, the Court also noted that the defendant would not have been entitled to an instruction on simple assault if the \u201cstick\u201d was a deadly weapon as k matter of law. Id. at 643, 239 S.E.2d at 413.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "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." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. JERRY DALE SMITH, Defendant\nNo. COA06-1321\n(Filed 18 September 2007)\n1. Assault\u2014 deadly weapon on government official \u2014 hands and water \u2014 sufficiency of evidence\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of assault with a deadly weapon on a government official based on defendant using his hands to submerge a deputy\u2019s head, chest, and abdomen in a river and to hold him there, even though defendant contends hands and water are not a deadly weapon as a matter of law, because: (1) the deadly character of a weapon depends more upon the manner of its use and the condition of the person assaulted rather than the intrinsic character of the weapon itself; (2) the State presented substantial evidence from which a reasonable juror could find that the manner in which defendant used his hands in conjunction with water was likely to cause death or serious bodily harm to the deputy, including evidence that defendant pushed the deputy into the water, forcibly held his head under the water, and pushed him back under the water after he managed to get a breath; and (3) the State was not required to show that the deputy was significantly smaller or weaker than defendant, or that the deputy was injured or otherwise incapacitated when defendant assaulted him, since defendant did not assault the deputy with his hands alone but instead used his hands to bring the deputy to an instrument of the assault.\n2. Assault\u2014 deadly weapon on government official \u2014 lesser-included offense \u2014 misdemeanor assault on government official\nThe trial court in a prosecution for felony assault with a deadly weapon on a government official erred by refusing to submit to the jury the lesser-included offense of misdemeanor assault on a government official, because: (1) a defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternative verdicts; (2) it cannot be known whether the jury would have convicted defendant of the lesser offense if it had been permitted to do so; and (3) the prejudicial error cannot be cured by defendant\u2019s subsequent conviction for the felony assault with which he was charged.\n3. Sentencing\u2014 habitual felon \u2014 ancillary to indictment for substantive felony\nDefendant\u2019s conviction for attaining habitual felon status is vacated because: (1) North Carolina\u2019s Habitual Felons Act does not authorize an independent proceeding to determine a defendant\u2019s 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; and (2) a new trial was ordered on defendant\u2019s conviction for felony assault with a deadly weapon on a government official.\n4. Sentencing\u2014 consolidated offenses \u2014 remand for resentencing\nDefendant\u2019s conviction for resisting a public officer is remanded for resentencing, because: (1) the trial court consolidated this conviction with defendant\u2019s convictions for assault with a deadly weapon on a government official and attaining habitual felon status for sentencing purposes; and (2) a new trial was ordered on the assault conviction, and defendant\u2019s conviction for attaining habitual felon status was vacated.\nAppeal 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.\nAttorney General Roy A. Cooper, III by Special Deputy Attorney General John J. Aldridge, III for the State-appellee.\nWilliam B. Gibson for defendant-appellant." }, "file_name": "0057-01", "first_page_order": 87, "last_page_order": 98 }