An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-20
NORTH CAROLINA COURT OF APPEALS
Filed: 19 August 2014
STATE OF NORTH CAROLINA
Cabarrus County
v.
No. 08 CRS 7351
HUNTER JAY LEWIS
Appeal by defendant from judgment entered 3 July 2013 by
Judge Tanya T. Wallace in Cabarrus County Superior Court. Heard
in the Court of Appeals 4 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General M. A. Kelly Chambers, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance E. Widenhouse, for defendant-appellant.
ERVIN, Judge.
Defendant Hunter Jay Lewis appeals from a judgment
sentencing him to an active term of imprisonment based upon his
conviction for discharging a firearm into an occupied vehicle.
On appeal, Defendant contends that the trial court erred by
refusing to instruct the jury that a vehicle may be a deadly
weapon. After careful consideration of Defendant’s challenge to
the trial court’s judgment in light of the record and the
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applicable law, we conclude that the trial court’s judgment
should remain undisturbed.
I. Factual Background
A. Substantive Facts
On the night of 9 August 2008, Defendant fired a .40
caliber handgun into a vehicle driven by Asad Rana while their
vehicles were stopped side-by-side at a traffic signal governing
the flow of traffic at the intersection of Bruton Smith
Boulevard and Weddington Road in Concord. Prior to the
shooting, Defendant and Mr. Rana had been involved in a
confrontation on Interstate 85, during which one or both drivers
followed closely behind each other and flashed their lights at
each other, with the evidence as to which of the two men
initiated or escalated this aggressive conduct being in
substantial conflict.
Mr. Rana and two of Defendant’s passengers testified that
Defendant followed Mr. Rana off of Interstate 85 at Exit 49
immediately prior to the shooting while Defendant averred that
Mr. Rana was “right on me” when Defendant decided to leave
Interstate 85 at that location. However, the undisputed
evidence indicates that, after exiting Interstate 85, the
vehicles driven by Defendant and Mr. Rana wound up beside each
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other at the intersection at which the shooting actually
occurred.
According to his trial testimony, Defendant claimed that he
felt threatened by Mr. Rana’s driving and “just wanted him to
stop chasing us.” When Mr. Rana rolled down his car window at
the intersection, Defendant displayed his gun and “yelled, I
have a gun,” at which point Mr. Rana “said something to the
effect that he didn’t care, that he was going to either kill
[Defendant] or kill us.” At that point, given that he feared
for his own safety and that of his passengers, a group that
included his teenage son, Defendant “reached out and . . . shot
at [Mr. Rana’s] tire.” After this shot had been fired,
Defendant asserted that Mr. Rana “lunged his car at [Defendant’s
vehicle].”1
In spite of the fact that Defendant “heard a crunch” after
Mr. Rana “lunged” at his vehicle, Defendant “wasn’t really sure
if it was me hitting something or him hitting me” despite the
fact that the two vehicles “were touching.” Although he did not
“believe [Mr. Rana had] rammed” him with his car, Defendant
1
The extent to which Mr. Rana did, in fact, “lunge” his
vehicle at Defendant’s vehicle was, like virtually everything
else in this case, an issue about which the evidence was in
sharp dispute. However, for purposes of evaluating the validity
of Defendant’s challenge to the trial court’s refusal to deliver
Defendant’s requested instruction, we must take the evidence in
the light most favorable to Defendant.
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thought that Mr. Rana’s “car came into contact with
[Defendant’s] car[.]” As a result, Defendant testified that he
fired a second shot at Mr. Rana’s vehicle in the hope that he
would be able to hit and force the deployment of Mr. Rana’s
airbag, explaining that, “I was scared. I just – because he
came at me with his car. I was just – I was scared. There had
to be a stop.” After firing this second shot, Defendant drove
through the intersection, performed an unlawful U-turn, returned
to Interstate 85, and traveled to his home.
B. Procedural History
On 19 August 2008, a warrant for arrest charging Defendant
with discharging a firearm into an occupied vehicle was issued.
On 8 September 2008, the Cabarrus County grand jury returned a
bill of indictment charging Defendant with three counts of
discharging a firearm into an occupied vehicle. The charges
against Defendant came on for trial before the trial court and a
jury at the 25 June 2013 criminal session of the Cabarrus County
Superior Court. On 3 July 2013, the jury returned a verdict
convicting Defendant of one count of discharging a firearm into
an occupied vehicle and acquitting him of a second count of
discharging a firearm into an occupied vehicle.2 At the
2
The State voluntarily dismissed the third count of shooting
into an occupied vehicle contained in the indictment that had
been returned against Defendant in this case.
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conclusion of the ensuing sentencing hearing, the trial court
entered a judgment sentencing Defendant to a term of 48 to 67
months imprisonment. Defendant noted an appeal to this Court
from the trial court’s judgment.
II. Substantive Legal Analysis
In his sole challenge to the trial court’s judgment,
Defendant contends that the trial court erred by refusing to
deliver that portion of his proposed instruction concerning the
law of self-defense, defense of a family member, and defense of
a third person to the effect that a vehicle could be a deadly
weapon. We do not find Defendant’s argument persuasive.
After the presentation of the evidence and the arguments of
counsel at Defendant’s trial, the trial court instructed the
jury concerning the issue of whether Defendant acted in self-
defense and for the purpose of defending a family member or a
third person in accordance with N.C.P.J.I. 308.45 and N.C.P.J.I.
308.47, stating that:
The State has the burden of proving
from the evidence, beyond a reasonable
doubt, that the defendant’s action was not
in defense of self, or a family member, or a
third person. If the circumstances would
have created a reasonable belief in the mind
of a person of ordinary firmness that the
assault was necessary or appeared to be
necessary to protect self, a family member,
or a third person from imminent death or
great bodily harm, and the circumstances did
create such belief in the defendant's mind
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at the time the defendant acted, such
assault would be justified by a defense of
self, a family member, or a third person.
In such case, self-defense need only be
apparently not actually necessary. You, the
jury, determine the reasonableness of the
defendant’s belief from the circumstances
appearing to the defendant at the time.
. . . .
The defendant had the right to use only such
force as reasonably appeared necessary to
the defendant under the circumstances to
protect self, a family member, or a third
person from death or great bodily harm. In
making this determination, you should
consider the circumstances as you find them
to have existed from the evidence, including
the size, age and strength of the defendant
and the family member or third person as
compared to the victim; the fierceness of
the assault, if any, upon self, family
member or third person; or whether the
victim had a weapon in the victim’s
possession. You, the jury, determine the
reasonableness of the defendant’s belief
from the circumstances appearing to the
defendant at the time.
At the jury instruction conference, Defendant had requested the
trial court to supplement its instruction concerning self-
defense, defense of a family member, and defense of a third
person by stating that:
A motor vehicle may or may not be a deadly
weapon, dependent on its manner [of] use.
You, the jury, will decide whether you
believe Mr. Rana used the motor vehicle in a
manner which constituted the use of a deadly
weapon, and whether this fact would be
relevant in your consideration of any
defenses.
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Although the trial court declined to instruct the jury in
accordance with Defendant’s request, it advised Defendant’s
trial counsel that he was free “to argue that to the jury.”
“When instructing the jury, the trial court has the duty to
declare and explain the law arising on the evidence.” State v.
Mathis, 349 N.C. 503, 514, 509 S.E.2d 155, 162 (1998). “[A]
trial judge is not required to give requested instructions
verbatim, [but] is required to give the requested instruction at
least in substance if it is a correct statement of the law and
supported by the evidence.” State v. Corn, 307 N.C. 79, 86, 296
S.E.2d 261, 266 (1982) (citation omitted). As long as the jury
hears the substance of the requested instruction, “the trial
court is not required to use the same language as requested by
counsel, even when the language used could have included more
details.” State v. Carson, 80 N.C. App. 620, 626, 343 S.E.2d
275, 279 (1986). We review challenges to the substance of a
trial court’s jury instructions using a de novo standard of
review, State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144,
149 (2009), under which we “consider[] the matter anew and
freely substitute[ our] own judgment for that of the trial
court.” State v. Sanders, 208 N.C. App. 142, 144, 701 S.E.2d
380,382 (2010).
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A deadly weapon can be “‘any instrument which is likely to
produce death or great bodily harm, under the circumstances of
its use,’” with this determination depending, in many instances,
“‘more upon the manner of its use, and the condition of the
person assaulted, than upon the intrinsic character of the
weapon itself.’” State v. Palmer, 293 N.C. 633, 642-43, 239
S.E.2d 406, 412-13 (1977) (quoting State v. Smith, 187 N.C. 469,
470, 121 S.E. 737, 737 (1924)). As Defendant suggests, an
automobile may be a deadly weapon depending upon the manner in
which it is used. State v. Clark, 201 N.C. App. 319, 324-25,
689 S.E.2d 553, 557-58 (2009). As a result, while “[a] car
sitting idle may not be deadly,” an automobile that is driven
“at a high rate of speed directly at [another’s] vehicle[] in
their lane of travel” is being used as a deadly weapon. State
v. Batchelor, 167 N.C. App. 797, 800, 606 S.E.2d 422, 424
(2005); see also State v. Jones, 353 N.C. 159, 164, 538 S.E.2d
917, 922 (2000) (stating that “an automobile can be a deadly
weapon if it is driven in a reckless or dangerous manner”). As
a result, given that the extent to which Mr. Rana used a deadly
weapon is clearly relevant to an evaluation of the steps that
Defendant was entitled to take in his own defense or the defense
of a family member or a third person, the ultimate issue raised
by Defendant’s argument is the extent, if any, to which the
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record supported an inference that Mr. Rana’s vehicle was used
as a deadly weapon.
Although Defendant testified that Mr. Rana “lunged” his
vehicle at Defendant’s vehicle and that there was contact
between the two vehicles, the only damage that might have been
inflicted to Defendant’s vehicle during this incident were
scratches to the driver’s side mirror. In addition, the record
is totally devoid of any indication that Mr. Rana moved his
vehicle toward Defendant’s vehicle at a high rate of speed or
that the vehicle in which Defendant and his passengers were
situated would not have provided adequate protection from any
injury to which the occupants of Defendant’s vehicle were
reasonably exposed given the nature and extent of Mr. Rana’s
actions. On the contrary, Defendant testified that Mr. Rana did
not “ram” his vehicle and that the two vehicles merely made
contact. The fact that the record contains evidence that Mr.
Rana’s driving posed a substantial risk to Defendant and his
passengers while the two vehicles were traveling on Interstate
85 at a much higher rate of speed has no bearing on the extent
to which the manner in which Mr. Rana used his vehicle at the
intersection at which Defendant shot at Mr. Rana’s vehicle posed
a risk of death or great bodily harm to Defendant and the
occupants of his vehicle. Similarly, the fact that the record
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contains evidence to the effect that Mr. Rana threatened to kill
Defendant at the intersection at which the shots were fired does
nothing to establish that Mr. Rana used his vehicle in such a
manner as to create risk of death or great bodily injury to the
Defendant and the occupants of his vehicle. As a result, we
conclude that the trial court did not err by refusing to
instruct the jury that it could find that Mr. Rana’s vehicle was
a deadly weapon.
III. Conclusion
Thus, for the reasons set forth above, Defendant’s sole
challenge to the trial court’s judgment lacks merit. As a
result, the trial court’s judgment should, and hereby does,
remain undisturbed.
NO ERROR.
Judges ROBERT C. HUNTER and STEPHENS concur.
Report per Rule 30(e).