An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                                  -2-
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
                                       -3-
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.
                                         -4-
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.
                                   -5-
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
                                   -6-
           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.
                                            -7-


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).
                                         -8-
       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
                                          -9-
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
                                       -10-
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).
