United States v. Rodney Vinson

attorneys Elderberry by appellants’ understanding. exactly that

reflects (“Notwithstanding proposed this

J.A. Continium], it

assignment FMSC [from Care, the Mariner Health intended that conjunc- Guaranty executed

Inc. Lease to the the First Amendment

tion with Agreement dated June

Lease in full force and effect

shall remain assignee

guaranty obligations Conti- ].”).

nium[ Georgia Supreme Court’s

Given on that state’s pronouncement

most recent frauds, Georgia’s

statute of combined rule, guar- that the

parol evidence we hold

anty Georgia statute of satisfies

frauds.-

V. reasons, foregoing judgment

For the

of the district court is PART,

AFFIRMED IN IN VACATED

PART, IN- AND REMANDED WITH

STRUCTIONS. America,

UNITED STATES of

Plaintiff-Appellant,

Rodney VINSON, Marshall

Defendant-Appellee.

No. 14-4078. Appeals, Court of

United States

Fourth Circuit.

Argued: Jan. 2015. July

Decided: indictment, motion to dismiss the

Vinson’s prohibit- was not a concluding Vinson state statute at because the ed matter, not, categorical qual- issue did crime of domestic ify as a misdemeanor argu- government appeals, violence. analytical referred ing approach that the categorical approach” to as the “modified to this case and establishes applies qualifying convicted of a mis- was Vinson of domestic violence. We demeanor crime there- agree government, with the and we court’s order dis- fore vacate the district Kocher, Barbara Dickerson ARGUED: missing the indictment and remand with Attorney, Ra- of the United States Office the district court rein- instructions NC, Earl Appellant. for Robert leigh, against the indictment Vinson. state Waters, of the Federal Public De- Office fender, NC, Raleigh, Appellee. for ON Walker, I.

BRIEF: Thomas G. Attorney, May-Parker, P. Jennifer States 922(g) prohibits possession Section Attorney, Office of Assistant United States by persons, of firearms various classes of NC, Attorney, Raleigh, the United States a including those convicted of “misdemean- McNamara, Appellant. Thomas P. for or crime of domestic violence.” 18 U.S.C. Defender, Federal Public Office Subject exceptions § to certain 922(g)(9). Defender, Raleigh, North Federal Public here, qualifies a crime as a not relevant Carolina, Appellee. “misdemeanor crime of domestic violence” if it: TRAXLER, Judge, Before Chief (i) Federal, is a misdemeanor under AGEE, Judges. Circuit GREGORY State, law; ... or Tribal by published Vacated and remanded (ii) element, has, as an the use or at- Judge TRAXLER wrote opinion. Chief force, tempted physical use of or the joined. Judge AGEE opinion deadly weapon, a com- threatened use of Judge separate wrote a GREGORY by spouse, a former mitted current or dissenting opinion. victim, by a parent, guardian or shares a person with whom the victim TRAXLER, Judge: Chief common, by child in a who is dispatched Police officers to the resi- cohabiting with or has cohabited with Rodney Marshall Vinson found a dence guard- or spouse, parent,' the victim as a a during rifle and ammunition consensual ian, by person similarly or situated to determining After that Vinson search. spouse, parent, guardian or conviction prior had a North Carolina victim. to a “misdemeanor crime of amounting 921(a)(33)(A). § 18 U.S.C. violence,” U.S.C. domestic 921(a)(33)(A), The existence of the domestic re government charged § lationship between the victim and defen possession Vinson with firearm an specified dant the statute is element prohibited person, see 18 U.S.C. 922(g)(9) charge § that must be 922(g)(9). granted § The district court discharging volunteer is beyond attempting a reasonable doubt or proven need not relationship discharge his or her government, but duties as underlying state stat- volunteer, an element of the or employee or assaults a Hayes, 555 U.S. ute. See United States employee school or school volunteer as a 415, 426, 129 172 L.Ed.2d 816 S.Ct. discharge result of the or attempt the terms of the As is clear from discharge that individual’s duties as a statute, attempted physi- use of the use employee school or school volunteer.... force, deadly or threatened use of a cal 14-33(c). § N.C. Gen.Stat. Because there be an element of the under- weapon, must statutory is no definition of bat- force” lying “physical offense. The state tery, affray, gov- common-law rules (a)(33)(A) “by § element of is satisfied erning apply prosecutions these crimes supports a com- degree of force under N.C. Gen.Stat. 14-33. See State conviction,” battery United States mon-law Roberts, v. — Castleman, -, U.S. 134 S.Ct. The record that establishes (2014), 1405, 1413, “name- 188 L.Ed.2d 426 violating Vinson was convicted of subsec- at ly, touching,” offensive id. (c)(2) tion of the statute. was convicted under N.C. Gen. Vinson 14-33, § a statute that classifies sim- Stat. II. ple aggravated forms of misdemeanor determine a prior To whether con assault, affray. battery, assault and prohibited viction renders the defendant a (a) “[a]ny that provides person Subsection § person 922(g), apply under we famil the simple or a simple who commits Castleman, “categorical approach.” iar in battery participates assault and or categorical 134 S.Ct. at 1413. Under the simple affray guilty of a 2 misde- is Class “ approach, ‘only we look to the fact of 14-33(a). § meanor.” N.C. GemStat. statutory conviction and the definition of (c) aggravated forms Subsection addresses offense’...., prior focus[ing] on the crimes, providing that: prior elements of the offense rather than (c) [A]ny person ... who commits underlying conduct the conviction.” assault, battery, affray assault and or is Cabrera-Umanzor, United States if, A1 guilty of a Class misdemeanor (4th Cir.2013) (internal quo F.3d the course of the assault and omitted). tation marks battery, affray, or he or she: (1) injury upon Inflicts serious anoth- categorical A modification to the person deadly weapon; er or uses a approach may be used cases where (2) female, being he a male Assaults multi underlying state crime “consists of years age; least 18 of creating several ple, alternative (3) age Assaults a child under the of crimes, some of would different which years; generic match federal offense and oth (4) employee Assaults an officer or Omargharib ers that not.” v. Hold would any political or subdivision of (4th Cir.2014) (inter er, State, employee when the officer or omitted). nal marks When such or dis- discharging attempting issue, may are at we “divisible” crimes duties; charge his official categorical approach,” apply the “modified ...; Repealed or us “to examine a limited permits which of a employee Assaults a school class of documents to determine alternative elements formed the employee school volunteer [crime’s] when (internal person.” quota- injury conviction.” another prior the defendant’s basis of — omitted)). States, U.S.-, tion marks Descamps v. United 2276, 2284, 186 L.Ed.2d 438 133 S.Ct. granted court After the district Vinson’s however, (2013).1 divisibility, “General dismiss, however, motion is divisible for enough; crime] a [state issued its decision Castleman and categor- the modified purposes applying held, directly contrary holding to our only if at least one approach ical White, necessary that violent force was not may categories [crime] into which satisfy “physical requirement force” elements, constitutes, by [a its divided 921(a)(33)(A)(ii). Castleman, §of Cabrera- qualifying predicate offense].” Instead, S.Ct. at 1413. the Court held Umanzor, 352; Descamps, see F.3d at “incorporated the statute the common-law 133 S.Ct. at 2285. namely, meaning of offensive ‘force’— touching,” id. at and that “the re- § 14- court concluded The district satisfied, ‘physical force’ is quirement 33(c)(2) that the mod- was not divisible and 922(g)(9), by degree purposes approach was therefore categorical ified a common-law bat- supports of force categorical ap- inapplicable. Applying conviction,” tery id. at 1413. court concluded that a proach, the district 14-33(c)(2) did not amount to a violation of III. violence misdemeanor crime of domestic phys- use of because the use or threatened on appeal The sole issue is whether not an element of assault ical force is Vinson’s conviction under N.C. Gen.Stat. 14-33(c)(2) reaching § under North Carolina law. qualifies as a conviction for a conclusion, applied this the district court misdemeanor crime domestic violence (“MCDV”) by court’s decision in States v. as this United defined 18 U.S.C. (4th 921(a)(33)(A). White, Cir.2010), government § 144 does not 606 F.3d The interpreted “physical require- challenge force” the district court’s determination 921(a)(33)(A)(ii) § qualify ment of to mean “violent that Vinson’s conviction would not (“[T]he force,” categorical app an phrase ‘physi- see id. at 153 as MCDV under the is, Instead, government argues cal force’ means violent force—that roach.2 that, causing physical pain contrary or to the district court’s conclu- capable force 185, 526, (1956) (defendant's Although Descamps a state crime 95 S.E.2d 529 addressed statute, by repeatedly defined we have since held that stopping his car a few actions in Descamps analysis applies to state crimes away staring at her feet from the victim by whose elements are defined case law rath "moving part body while the lower of his by Aparic er than io-Soria, statute. See United States v. support back and forth” sufficient to convic 152, (4th Cir.2014) 740 F.3d McIver, assault); tion for State v. 231 N.C. banc) (en ("[T]he categorical/modified cate 313, 604, (1949) (affirming 56 S.E.2d gorical typologies apply equally statutory assault conviction based on defendant's “re crimes.”); law States v. and common peated proposals”); obscene State (4th Cir.2013) Hemingway, 734 F.3d Williams, 186 N.C. 120 S.E. ("[T]he Descamps divisibility analysis appli (1923) (affirming assault convietion in case question of whether a common cable to the involving attempted use of force no use or predicate law constitutes ... a[ ] that, was instructed obscene com crime.”). by separate three occasions ments made on girl held, 23-year-old 15-year-old could man to 2. As the district court convictions under 14-33(c)(2) display "a of force” sufficient for categori- § amount to N.C. Gen.Stat. do not conviction). attempted phys- cally require use of the use See, Allen, e.g., ical force. State v. 245 N.C. 14-33(c)(2) sion, divisible, violence.”), § such that crime or a crime of cert. de —nied, may -, categorical approach the modified U.S. 134 S.Ct. (2014). Nonetheless, charging And because the docu- L.Ed.2d 229

applied. we are by case that the conviction “bound the state supreme ment this shows court’s ... battery determination of the predicated po was on Vinson’s elements of the wife, predicate offense,” tential government contends United States v. (4th categorical approach Hemingway, modified establishes Cir. 2013) (internal quotation was convicted of an Vinson MCDV marks and alter omitted), only and that the district court therefore erred ations and the elements of 14-33(c)(2) by dismissing § assault on a against the indictment Vin- female under identified the son. Court of North “(1) (2) Carolina are an assault upon a A. person female person a male old,” who is at eighteen years least 14-33(c)(2), § Under N.C. Gen.Stat. Wortham, “guilty defendant is of a Class A1 misde- Because the statute’s in-the- if, assault, meanor in the course of the course-of language does not create ele battery, affray, assault and he ... [as- offense, ments of the that language does female, being saults a he a male not render the crime divisible. years age.” least 18 The district court 33(c)(2) establishing understood 14— government, however, contends that female, the crime of assault on a crime the crime is divisible because North Car- that can through be committed olina law through defines “assault” alter- battery, affray. assault and or an In the nate elements. North Carolina law in- view, assault, battery, district court’s cludes three different definitions of the affray were alternate means committing First, crime of assault. under what can be crime, elements, not alternate such called the “attempted battery” formula- 33(c)(2) § was not divisible. See 14— tion, by an assault can be committed “an Omargharib, (explaining 775 F.3d at 198 attempt, overt act or an or the unequivocal that alternate of a committing means sin- appearance of an attempt, with force and divisible); gle crime do make the crime see violence, to do some immediate physical Descamps, also 133 n. 2. S.Ct. 2285 injury person another, of 14-33(e)(2)’s “in

Section the course show of force or menace of violence must assault, battery, of the assault and or af to put person be sufficient a of reasonable fray” language certainly sounds like lan in fear bodily firmness of immediate (inter- Roberts, guage creating an element of a harm.” crime. 155 S.E.2d at 305 Cf., 924(c)(1) omitted). Second, § e.g., (creating 18 U.S.C. nal marks un- formulation, enhanced sentence for a defendant who der the “show of violence” an “uses or carries a “during firearm” assault can be committed “a show of in relation to crime accompanied by appre- of violence or violence reasonable drug trafficking added)); (emphasis bodily inju- crime” hension of immediate harm or Strayhorn, ry part United States v. on of person assailed which (4th Cir.) (“To prove 925 him engage [a] violation of causes a course of con- 924(c)(1), 18 government U.S.C. duct which he would not otherwise have must show that Finally, the defendant used or followed.” Id. under the “com- formulation, a battery” carried firearm and that he did so dur pleted assault ing and in a drug trafficking may premised proof relation to conviction be on of a — id., K.C., touching,” appli- and indirect offensive re

battery. See In force, deceiving vic- (2013) (“When cations of such as -, 742 S.E.2d drinking poison, see id. at 1414- tim into occurred, may prov- assault be battery has “battery” scope 15. The definition battery of either assault or by finding en law is no under North Carolina broader Britt, victim.”); 270 N.C. State on definition set out than the common-law (“A (1967) battery See, Sudderth, e.g., State v. Castleman. an as- includes an and is always 753, 114 S.E. directly whereby any applied, force is sault as, alia, battery inter “an assault (defining another.”). person of indirectly, to the force, slight, is actu- whereby any however these differ- argues that government to the of another di- ally applied assault are alternate formulations of ent Monroe, rectly indirectly”); the crime divisible that render elements (druggist N.C. 28 S.E. modified application of the permit thus on diarrhea-inducing croton placed who oil approach. categorical at customer’s piece candy request battery druggist when guilty of assault B. give customer intended to tainted knew cate- explained, the modified Thus, any As we have candy prank). as a friend only in applies cases gorical approach completed-battery for the form conviction necessarily be- include use the state crime is “divisible” of assault would where physical satisfy force sufficient to multiple, alternative cause it “consists of According- crimes, of an MCDV. federal definition creating several different elements ly, if different theories North Carolina’s generic of which would match the some divisible, the crime use assault make would not.” offense and others that federal categorical approach would modified (internal quo- at 197 Omargharib, F.3d crime of proper because the omitted). marks tation battery categorically qualifies completed divisibility turn to the as an MCDV.3 We 1. question now. divisibility Taking part the last first, determine wheth we must definition categories into “at least one of the er under Des- crime is divisible “[A] may be divided consti which the [crime] if to include camps only it is defined multi elements, tutes, by qualifying predi [a its (thus creating ple alternative Cabrera-Umanzor, cate offense].” crime), opposed of a as multiple versions the Court’s F.3d at 352. Given (of committing means multiple alternative Castleman, question eas decision crime).” Omargharib, 775 F.3d the same ily answered in the affirmative. “Elements, from distinguished as at 198. discussed, previously As the means, factual circumstances of the are 921(a)(33)(A)’s § unanimously Castleman held must find (in “is satisfied “physical requirement force” Id. beyond a reasonable doubt.” omitted). supports force Al degree quotation ... of ternal marks conviction,” battery though Castle we have found no North Carolina common-law man, directly the means-or- “mere case that answers including 134 S.Ct. at categorically qualifies an as question makes it of assault also 3. Our resolution of this whether, gov- unnecessary as the to consider MCDV. contends, attempted-battery form ernment by Descamps,4 question required completed-battery form elements focuses that, government as the “not [on] we are satisfied hostile intent of the defen- dant, argues, the alternate formulations of the but rather [on] absence of con- of crime of assault are alternate elements sent to the contact on part of the crimes, K.C., effectively separate plaintiff,” what are In re at 244 S.E.2d (internal omitted). committing alternate means of the same marks That crime.5 proscribed by kind of conduct the dif- ferent formulations of assault quite differs Preliminarily, we note that each formu- that, significantly suggests purposes for type lation of the crime involves a different § 922(g)(9) analysis, our the different for- force; attempted of conduct —an use of mulations should be treated separate of violence an attempt- show without even warranting crimes the use of the modified force; completed, ed use of and a noncon- categorical approach. See Chambers v. against per- sensual use of force another States, 122, 126, 555 U.S. 129 S.Ct. son. Each of the formulations its has own (2009) 687, 172 L.Ed.2d 484 (holding that elements, unique set and each set of categorical may modified approach ap- jury’s elements directs the focus to differ- plied to statute that proscribed “several aspects attempted- ent the crime-—-the different kinds of behavior” that “differ[ ] battery “places formulation of assault em- significantly” so from they each other that phasis on the intent or state of mind of the must, purposes predicate-offense accused,” Roberts, person 155 S.E.2d at crimes).6 inquiry, separate be treated as 305, while show-of-violenee form “places Moreover, emphasis on the reasonable North Carolina’s for- assault assailed,” id., apprehension person of the fundamentally mulations are different directly tery 4. In separate identity order to answer the means-or- nonetheless retains a question, likely See, a case would need to e.g., under' North Carolina law. N.C. jury charge multiple involve that included (making § Gen.Stat. Ann. 14-31 it unlawful to definitively formulations assault treat “maliciously [in commit a secret manner] ed those formulations either re as elements battery any deadly weapon assault and with quiring unanimity requiring or as means not otherwise, upon by waylaying another Holder, unanimity. Omargharib v. Cf. person” (emphasis intent to kill such other Cir.2014) J., (4th (Niemeyer, F.3d Hill, added)); State v. concurring) (discussing difficulty in distin (1974) (“[T]he offense of se- guishing alternate means from alternate ele (1) cret assault contains five elements: ments). (2) (3) battery, deadly weapon, intent to kill, manner, (em- secret and malice.” later, majority As will be discussed added)). is, phasis battery That remains an Descamps “parse stated that a court need not see, crime, independent e.g., N.C. Gen.Stat. state law” to determine whether a criminal divisible, 14-23.6(a) ("A only person guilty offense is but instead need Ann. con approved sult the indictment or docu separate battery other offense of on an unborn child - States, Descamps ments. v. United U.S. battery pregnant if the commits on a -, 133 S.Ct. 2285 n. 186 L.Ed.2d added)), (emphasis woman....” one that can cases, post-Descamps howev be established even in the absence of conduct er, this court has continued to evaluate state satisfy attempted- that would the elements of resolving divisibility question. law when the- battery or show-of-violence assault. See State 198-99; Omargharib, See 775 F.3d at Lassiter, 208, 592, N.C.App. v. 18 196 S.E.2d Cir.2013), 333, (4th Royal, States v. 731 F.3d 341 (in (1973) involving complet- 595 assault case - denied, -(cid:127), rt. U.S. 134 S.Ct. ce battery, jury ed need not decide whether vic- 1777, 188 L.Ed.2d 605 bodily injury, tim fear was in of as would be assault). required prove attempted-battery to regard, noting In this it is worth that while assault, battery always a constitutes an batr 426 jury in the instruc lations were included that we have things those

nature from Hartness, See, v. 326 e.g., tions. State as alternate means identified previously (1990) 561, 177, 178-80 391 S.E.2d N.C. that non- have held Descamps. We under (trial jury in instructing not err court did satisfy that lists of various acts exhaustive immoral, liberty is an that indecent “[a]n means, a crime are element of alternate an touching or or indecent act improper Hemingway, See alternate not elements.. child,” because upon the the defendant Cabrera-Umanzor, 333-34; F.3d at 734 “immoral, or indecent liberties” improper, formulations F.3d at 353. The assault 728 of not elements referred to in statute were here, however, fully func provide issue at liberty an indecent taking of offense stand-alone, definitions tioning, alternative child, alternative means of vio with a but itself, and definitions these of offense statute). Carolina, North lating ways in universe capture the entire of however, generally required are not courts may be committed. of assault give jury any definition assault formu operation of the nature charged con beyond description of the they operate thus indicate lations Hewitt, -See, 34 e.g., v. duct. State for the or elements definitions' alternate (1977) 152, 338, 339 N.C.App. 237 S.E.2d assault, means of of not alternate (trial assault not court’s failure to define Descamps, offense. See committing the judge trial instructed “[T]he error: ("Courts may modify the at 2291 S.Ct. 133 element the State must jury that the first to accommodate al categorical approach prove the defendant assaulted was (second statutory ternative definitions.” intentionally him shooting victim] [the added; and internal citations emphasis explained This instruction pistol. with a omitted)); v. Barks marks State law the applied the term assault 302, 579, dale, N.C.App. 638 S.E.2d 181 omitted)). Thus, (emphasis evidence.” in case (acknowledging, n. 1 582 has revealed no case while our research form of as involving attempted-battery charged were where all three formulations sault, second, as “a different definition jury, there are numerous cases to the rule” called the ‘show violence’ sault way only by is defined where assault added)). (emphasis conduct, jury such that charged determining divisibility When only of the with one formulation presented crime, court has looked to a state this West, N.C.App. 146 offense. See charged in which the offense is (no the manner error jury. Omargharib, “only as jury define[d] instructions jury (considering pattern instructions by battery”); State v. sault as committed was di determining when whether offense Dammons, N.C.App. S.E.2d Descamps); (1995) (instructions under United States visible in assault case Cir.2013) (4th Royal, 731 F.3d informed trial court proper where (“[T]o physical decide whether ‘offensive required prove be that “the State was harm’ alternative ‘physical are yond contact’ doubt that defendant reasonable battery form of completed ‘intentionally’ with [the victim] shot consider how second-degree handgun” we and that “defendant would juries was Maryland generally shooting assault if the guilty courts instruct offense.”). accidental”); Daniels, If respect to that the dif State v. (1978) (failure means formulations were alternate ferent elements, where was “jury would not error than alternate one to define assault rather find from evi- that it must three formu- instructed expect to find cases where all

427 “ beyond a reasonable doubt that defendant ‘assaulted [the dence victim] ” assault). defendant ‘struck over- the [the victim] knife’ but did not define These ”); blackjack’ McCoy, head with a State v. general cases reflect approach in 567, 300, N.C.App. 34 239 S.E.2d 302 North Carolina to instructing jury in (1977) (no failing error in assault define Except assault cases. in cases with multi- adequate where instructions “included an ple assault counts based on different con- description constituting of the facts duct, see, e.g., State v. Spellman, 167 assault for which defendant was 374, 696, N.C.App. 605 S.E.2d 701-02 Harris, charged”); N.C.App. State 34 (2004), single typical- definition of assault (1977) (failure 491, 642, 644 to ly given, and that definition often is define assault not error “the trial where nothing more than a description of the judge jury instructed connection charged conduct.7 with each offense submitted that to convict general practice using This a single beyond defendant it find must reason- jury definition of assault in the instructions able doubt ‘that the defendant assaulted is consistent with approach recom- by intentionally him shooting [the victim] by mended North past Carolina’s and cur- ”); pistol’ with a v. Springs, State rent pattern jury instructions. Under the (1977) 61, 193, N.C.App. 234 S.E.2d 195-96 pattern assault-on-a-female instruction (no defining error not assault where that was in pleaded effect when Vinson jury trial court instructed the state “ crime, guilty to that only required prove must ‘that the defendant assaulted definition of assault was a description of by intentionally [the victim] and without underlying conduct.8 See N.C. Pattern justification or shooting excuse [the victim] (March 2002). Instructions —Crim. 208.70 ”); upper shotgun’ left chest with a Likewise, pattern the current instruction 687, v. Lineberger, 115 N.C.App. cf. require does not that the trial court define (1994) (trial 446 S.E.2d court beyond describing the underlying defining response erred not assault in conduct. See N.C. Pattern Instructions— jury’s question in case where defendant (June 2011). Crim. 208.70 And to officer); the ex- security “shouldered” State v. Hickman, might tent that a definition be needed N.C.App. 204 S.E.2d case, given pattern the current instruc- (finding reversible error trial charged jury instructing where court tions do not recommend beyond must find a reasonable doubt that on all assault formulations as alterna- out, elements, points general ap- operate As the dissent this tions as alternate Garrison Garrison, proach Carpenter universal. See State v. do not undermine our ultimate N.C.App. 736 S.E.2d conclusion. (using attempted-battery definition in case in- volving completed battery); Carpenter, State v. pattern 8. The dissent notes that the 2002 in- struction includes the traditional definition of (2002) (in involving completed battery, case attempted-batteiy assault. Because that defi- initially by describing however, court defined assault placed parentheses, nition is inside conduct, charged gave attempted-battery but "[o]ptional” of the definition is and the use. response jury question). definition in given Con- "only definition should when war- view, however, trary to the dissent’s we do ranted the evidence.” N.C. Pattern In- structions, Book,” outlying not believe that the existence anof "Guide to the Use of This assault,” prevents concluding case or two us from at xx. The directions to "describe placed paren- assault formulations are alternate ele- which are italicized and inside theses, judge ments of the offense. Given all the other refer to "facts that the must fill added). indicating (emphasis factors that the assault xix formula- in.” Id. at by show an assault charging A warrant committing the crime of means of tive (1) of allege: a show Instructions— of violence must N.C. Pattern assault. Cf 2003) defendant; (including accompa- (April by 226.85 Crim. violence in v. Hart- means identified State im- apprehension alternate of by nied reasonable for indecent-liberties ness instruction injury on the bodily harm or mediate offense). Instead, instructions pattern assailed; causing person -the part of the com- distinguish assault between for of con- engage in a course the victim formulations of and other pleted-battery not otherwise have duct which she would of the most by calling for use the offense followed. battery-based definition of as- appropriate alleged warrant .... While the arrest battery was involved sault cases where supporting facts an assault and listed assault- appropriate use of the most ... a show of violence the elements of battery in cases where no based definition activi- from her normal deviation N.C. Pattern Instruc- was involved. See victim, the arrest warrant by ties 2011). (June tions—Crim. 120.20 support allege any fails to facts view, trial In our the North Carolina of apprehension of reasonable element instructing the general practice of courts’ injury on the bodily harm or immediate of assault jury using single formulation As assailed. this part affirma- of case law absence by element an assault an essential of the- tively the alternate-means supporting violence, warrant, by arrest show of formula- ory indicates that the alternate supporting the element of omitting facts alternate elements or operate tions as of immedi- apprehension a “reasonable pattern of the offense. The definitions harm,” charge Defen- bodily fails to ate instructions, their focus on the with commission of an assault dant with the by implicated form of assault single theory. Accordingly, this under facts, likewise indicate that the underlying sufficiently failed to arrest warrant of are alter- alternate formulations assault ..., with a crime charge Defendant elements, means. nate not alternate failing to dismiss the trial court erred understanding of the assault formu This plead- in the criminal charge as stated by supported the North Carolina lations ing. Appeals’ of decision State Gar added; quo- internal (emphasis Id. at 915 cia, 745, 553 S.E.2d 914 omitted). alteration tation marks Garcia, the court- vacated clearly treats the show-of- Garcia thus simple for assault defendant’s conviction not as an formulation of assault violence serving as the because the arrest warrant committing the crime instrument,9 alternative means of charging purported which crime with its separate of but as with assault show charge the defendant if one of violence, elements.10 And separate own was deficient: Thorne, ("The 15A-922(a) cita- sistent 9. See N.C. Gen.Stat. summons, arrest, tion, (1953), criminal warrant for found an indict S.E.2d 140 pleading magistrate’s serves as the order alleging "violated the ment that the defendant prosecuted in State for a misdemeanor on one Carolina assault laws of North court, prosecutor files a unless the the district support a Harvey Thomas” sufficient charges, objection to or there is statement (altera charge simple assault. Id. at citation.”). trial on a omitted). quotation marks tions and internal disagree. Twenty years after Thome was We improper 10. The dissent contends that it is decided, passed the Criminal North Carolina incon- rely on Garcia because Garcia is us to alternative, under the three formulations the court merely resorts crime, separate North Carolina law is a we approved to the documents and com- for treating can conceive of no basis pares the elements revealed there to According- formulations otherwise. other generic those of the offense. that, ly, purposes we conclude for of our Descamps, 133 S.Ct. at 2285 n. 2. And as § inquiry 922(g)(9), under 18 U.S.C. explain, we the relevant document serves attempted-battery completed-battery and as an additional confirmation that the vari- assault, just forms of like the show-of- ous assault formulations serve as alternate Garcia, form at

violence issue effective- elements of the offense. ly separate separate create crimes with elements. serving The document as the indictment

Our review of North Carolina law thus “Magistrate’s in this case is a Order” find- satisfies us that the various formulations of ing probable cause for the detention of the assault are alternate defini- defendant after a warrantless arrest. See offense, tions of the not alternate means. 15A-921(4), 15A-922(a). §§ N.C. Gen.Stat. disagrees While the dissent with our as- Magistrate’s A serving Order as a criminal law, sessment of North con- Carolina our pleading must include “a statement of the compelled by clusion is also the approach accused,” crime of which the person is resolving the elements-versus-means 15A-511(c)(3)(a), § N.C. Gen.Stat. question suggested by Court must contain plain and “[a] concise factual in Descam/ps. Descamps, the dissent which, statement in each count without expressed difficulty concern about the in allegations nature, evidentiary of an as- distinguishing alternate means from alter- supporting every serts facts element of a Descamps, nate elements. See 138 S.Ct. criminal offense and the defendant’s com- (Alito, J., at dissenting). In re- mission thereof with precision sufficient majority sponse, stated that when an clearly apprise the defendant ... of the arises, question elements-versus-means subject conduct which is the of the accusa- approved the documents we in Taylor tion,” 15A-924(a)(5). § N.C. GemStat. indictment, Shepard i.e., in- — The factual structions, statement contained in the plea colloquy, plea agree- Magistrate’s Order in this case ment —would states the crime’s ele- reflect “unlawfully willfully ments. So a court Vinson did assault parse need state way law in the and strike suggests: the dissent FRANCIS DEANNA VIN- SON, When a state person, [offense is a female formulated] HITTING HER Act, notes, requires Procedure which Worsley that criminal As the dissent considered the pleadings plain indictment, contain "[a] and concise fac- sufficiency burglary aof and the tual statement in each count which ... as- pleading "sup- common-law rule that was supporting every serts facts element of a crim- planted” in that case was more restrictive inal offense and the defendant’s commission § than the new rule set forth in 15A- precision clearly ap- thereof with sufficient 924(a)(5). Worsley, 443 S.E.2d at 73. prise the defendant or of the con- defendants assertion, however, Contrary to the dissent's subject duct which of the accusation.” Worsley's recognition superseded that the Act 15A-924(a)(5). § N.C. Gen.Stat. As the Su- prior inconsistent cases cannot be limited preme recog- Court of North Carolina has burglary imposing pleading cases stricter re- nized, 15A-924(a)(5) "supplanted § prior quirements. interpreting Because Garcia was law,” pre-Act addressing such cases 15A-924(a)(5), we it proper believe longer contents of indictments "are no con- rely on it rather than Thome. trolling Worsley, on this issue.” State v. N.C. 443 S.E.2d battery, actual discloses evidence HER HIS OPEN FACE WITH ABOUT inappo- in fear is put facts do not de- the victim is 38. These whether HAND.” J.A. omitted)). (internal attempted-battery or show-of- marks site.” scribe no as there are forms of violence charges Magistrate’s Order thus reasonable-apprehen- supporting the facts battery, by completed with assault Vinson of those crimes. See Gar- sion elements formula- that the various which establishes Roberts, 915; cia, see also are alternate elements tions. of assault (describing elements of at 305 offense, in turn definitions show-of-violence and attempted-battery assault on a that the offense of establishes assault). in the alleged The facts of forms Descamps, 133 See female is divisible.11 however, Order, more are Magistrate’s 2;n. see also United States S.Ct. at 2285 every of support element than sufficient (1st Martinez, 762 F.3d form of completed-battery Cir.2014) a' Massachu- (finding divisible reasonable-apprehension re- has no battery statute that cov- setts assault and Sudderth, 114 at 829 See S.E. quirement. (1) harmful types battery: of ered “three (“[A] inflic- battery the actual unlawful is battery; and battery; offensive another, on the tion of violence (internal battery” reckless by any may proved evidence and omitted)). ” marks touching person.... of [victim’s] unlawful divisible, is Because the offense (internal omitted)); see quotation marks categorical approach applica- is modified Thompson, also State (1975) (“Where categorical ap- the modified ble.12 Under second-degree not analysis assault statute was complains that this land’s 11. The dissent circular, general determining purposes rule is that courts whether in that divisible for only may charging if the felony look to documents qualified prior conviction as a violent Regardless of the dis- Act). offense is divisible. Criminal under the Armed Career ap- approach, it is the view of this sent’s cases that assault does conclusions those Supreme proach dictated Court. See were based on have alternative elements not (explaining Descamps, S.Ct. at 2285 n. 2 Maryland and thus are not inconsistent law parse state law” to that “a court need not case, contrary conclusion in this with our alter- whether an offense involves determine Carolina law. which is based on North elements, because nate means or alternate Moreover, explained, we whether a as have Taylor approved we “the documents instructions, indictment, depends or criminal offense is divisible statute Shepard i.e.,— plea agreement plea colloquy, and re- the existence of alternate on w[ill]— elements”). event, is, as matching category flect the crime’s alternate ele- —that clear, solely rely opinion makes we do not our category or must create at least one ments rely approach on it as on this but instead up an offense that matches form of understanding of North confirmation of our generic offense in elements of the federal / law. Carolina 197; Omargharib, at question. 775 F.3d See Cabrera-Umanzor, ge- F.3d at 352. The recognize previously 12. We that this court has Aparicio- federal offenses at issue- neric assault offenses are determined that various underlying Royal required both Soria divisible, categori- that the modified such to have as an element use state offense See, e.g., applied. approach cal could not be Aparicio- attempted use of violent force. Aparicio-Soria, 740 F.3d United States v. 154-55; Soria, Royal, at at 731 F.3d banc) (4th Cir.2014) (en (holding that completed-battery form 341-42. Even if the (which resisting-arrest in- Maryland's statute elements under did have alternate of assault assault) divisible elements of was not cludes law, not have Maryland the offense still would purposes determining whether a con- Royal be- Aparicio-Soria or been divisible in qualified viction under statute matching category, 2L1.2); there would be no cause under U.S.S.G. "crime violence” battery predicated on an “offen- Mary- can be (holding that since Royal, 731 F.3d at 341 proach, prior qualifies Vinson’s conviction majority chooses to rely on suppo- tenuous sitions, charging as an MCDV: The relevant docu- inapposite jury instructions, and ment establishes Vinson was convicted decision of a state appel- intermediate (at completed-battery form of assault late court odds with the supreme state court) under North Carolina law. to hold that And as we ais divisible already explained, have offense North the crime of as- Carolina. Still pro- moré blematic, by completed battery majority sault categorically proceeds to assert qualifies as an courts need not look to MCDV. The district court state law at all may rely solely instead on by dismissing therefore erred the indict- the factual allegations of a charging ment document charging pos- Vinson with unlawful to de- termine divisibility in these by person session of firearm a circumstances. convicted logic Such circular plainly of an odds with MCDV. analytical approach required by the consistently Court and used IV. this Court. reasons, Accordingly, for the foregoing broadly More speaking, the majority’s hereby we vacate the district court’s order disregards view Supreme Court’s dismissing Vinson, against indictment teaching that the categorical modified ap- and we remand with instructions that the proach only should apply to a “narrow district court reinstate the indictment. cases,” range of such as where a single VACATEDAND REMANDED burglary statute effectively includes the separate crimes of entry of an automobile GREGORY, Judge, dissenting: Circuit States, and building. Descamps v. United — presents -, This case the question 2276, 2284, U.S. 133 S.Ct. 186 (2013) whether a court should treat a that, state of- L.Ed.2d (observing 438 in such fense as divisible circumstances, when the relevant state “the prosecutor charges ambiguous law is itself alternatives, inconsistent- one of those two and the and/or ly applied. North Carolina’s common law judge jury instructs accordingly”). crime of assault is one such offense. See by divining divisibility And in the face of Kelly, 553, United States v. 917 F.Supp.2d uncertainty, majority disregards also (W.D.N.C.2013) (conducting a de- typically how courts construe ambiguity in tailed offenses, review of North Carolina common criminal where the resolution of law describing it a “quagmire ambiguity has clear im- constitutional alternative definitions for assault on a plications. fe- Edward J. DeBartolo Corp. Cf. male”). In the face of that uncertainty, it Bldg. v. Fla. Coast & Constr. Trades Gulf prudent Council, would be 568, 575, 1392, err on the side of 485 U.S. 108 S.Ct. caution, (1988) (“[Wjhere constitutional construing state law 99 L.Ed.2d 645 an other- way in a lurking minimizes the Sixth acceptable wise construction of a statute danger Amendment imposing a sentence would prob- raise serious constitutional lems, based on a fact that need not found the Court will construe the statute to beyond a Apprendi reasonable doubt. See problems avoid such unless such construc- 466, 490, v. New Jersey, 530 plainly U.S. 120 S.Ct. tion is contrary to the intent of 2348, (2000). 147 L.Ed.2d Congress.”). 435 Yet the lenity, Under the rule of touching” amounting

sive completed-battery not to violent force. form of assault therefore case, course, generic In this federal matching category. does create a force, require offense does not violent and the 432 not), others do statute, the federal offense while including a

instance, “any criminal which occurred. See Om saying without construed must be sentencing provision, (4th Holder, 192, 199 argharib v. gov against the accused favor of Cir.2014) is indivisi (noting that statute ambiguous.” See United if it is ernment unanimously need (4th ble when Hall, 67, F.2d 69 Cir. 972 States engaged conduct that a defendant agree States, 1992) v. United (citing Bifulco offense). generic that matched a federal 2247, L.Ed.2d 100 S.Ct. U.S. (1980)); v. San United States see also crime of the North Carolina Regarding tos, 128 S.Ct. 553 U.S. female, majority acknowl- on a (2008) (“The lenity rule of L.Ed.2d controlling precedent state that no edges laws to be ambiguous criminal requires types of as- establishes whether different sub of the defendants interpreted favor as alternative ele- must be treated sault them.”); F.Supp.2d at Kelly, 917 jected to sep- charged and instructed ments that are deciding lenity (invoking Indeed, the rule Maj. at 424-25. arately. Op. in North of assault the crime whether of “assault on only of the crime a misdemeanor categorically Carolina is of North that the female” “(1) federal violence under crime of domestic are an as- enumerated Carolina has law). (3) majority a different sault, charts upon person, a female course, respectfully I dis eighteen therefore is at least male who Herring, N.C. years sent. old.” State Nonethe- I. less, that the com- majority concludes divisi- of assault is itself mon law offense recognizes, the majority opinion theAs ble, way the the law reasoning part in that appropri- is categorical approach modified Maj. at divisibility. Op. “suggests” looks formulations of only where ate alternative view, North majority’s 425. Under offense consti- statutory a or common law an cleanly carves common law Carolina functionally crimes. those tute distinct functionally dis- offense into three assault cases, that element limited alternative 1) as- “attempted-battery” tinct crimes: (here, generic a federal offense matches 2) assault; sault; “completed-battery” a “misdemeanor offense of a predicate 3) assault. a “show of violence” violence”) will necessari- crime domestic level, courts superficial that Yet even on separately. instructed ly charged be of as- that the definition recognized have that a defendant can then be confident We common law that sault under North Carolina actually of a crime convicted was Kelly, 917 offense, keeping straightforward. far from matched the federal 556-57, some of (noting 559 F.Supp.2d safeguards.1 with Sixth Amendment various, and indivisible, applying challenges other on the When an offense inconsistent, of as- formulations hand, that an indi- sometimes agree need not by North Carolina articulated alternative sault specific committed vidual Daniel, Instead, courts); v. 136 N.C. see also crime. State that matches the federal (1904) (“While 544, 48 S.E. that a defendant jury may simply conclude would seem to relating to this crime proscribed law engaged in one of several we are (some easy application, simple and of of which match courses of conduct corresponds to limiting specifically, the version of crime” plea 1. In the context Descamps, 133 generic offense. the federal categorical approach to use modified plea S.Ct. at 2284. that a "was to divisible offenses ensures perplexed attempt often our to discrimi- if it did not rise to the level of an attempt law). nate what is and what is not an between under state assault.”). Second, North high Carolina court generally, Most North Carolina courts recognized has that an may also be ways have there are two stated committed through a “show violence assault, commit an both of which encom accompanied by reasonable apprehension pass conduct that falls outside the federal of immediate bodily harm or injury on the definition of “misdemeanor crime of do part of the person assailed which causes First, mestic violence.” under what the him engage in a course of conduct which majority terms an “attempted-battery” as he would not otherwise have followed.” sault, recognized courts have the “tra Roberts, 155 S.E.2d at 305. majority ditional common law definition of criminal government and the agree that this defini- assault is an overt act or or the attempt, tion is also broader than predi- the federal unequivocal appearance attempt, of an cate offense require because it does not violence, with force and to do some imme any use or attempted use of physical force physical injury diate person to the of an whatsoever. other, which show of force or menace of In addition to the primary two defini must be put person violence sufficient to tions of North Carolina courts of reasonable firmness in fear of immedi provided have a variety of others. For McDaniel, bodily ate harm.” See instance, West, in State v. the North Car 111 N.C.App. olina Court of Appeals defined assault as Roberts, (citing State v. “an by violence, (1967)). attempt, intentional do S.E.2d This injury person to the of another.” is broader than definition do federal mestic predicate violence because Hefner,

it criminalizes And State “unequivocal appearance an attempt” whereas Carolina provided the federal crime North that “[a]n ‘as only “the use or attempted attempt by includes use of sault’ is an offer force or physical 921(a)(33)(A); force.” 18 U.S.C. injury violence to do to the of an Vinson, see also United States v. No. 778, 879, 5:13— other.” 199 N.C. 155 S.E. CR-121-FL, 6843013, (1930). 2013 WL at *6 (E.D.N.C. 2013) Dec. (observing that meanwhile, battery, A has been defined “[t]his court is not convinced that ‘un the by the state courts “an whereby as assault equivocal appearance attempt’ of an in the force, any slight[,] actually ap- however state law offense rises to the level of an plied to directly of another attempt, required by as of federal Sudderth, indirectly.” 184 N.C. fense”). Attempt crime, is a specific intent (1922); 114 S.E. see also requiring that the consciously “defendant Britt, State v. 154 S.E.2d completion intends the compris the acts (1967); West, 554 S.E.2d at ing choate offense.” Am.Jur.2d Thus, battery 840. always “[a] includes an Criminal Law 155 But an “un Britt, 521; assault.” 154 S.E.2d at Hef- equivocal appearance' of an attempt” ap ner, 155 S.E. at 880.

pears require no such intent. actual Barksdale, See light, State v. In that a must court instruct a (finding completed battery separately, that a itmay qualified defendant’s conduct rely as an “un on the traditional common law defini- equivocal appearance of an attempt” even in tions of assault at least some cases a constituent needs to be question in May a court tor battery is involved?

where a proved must [that] offense part jury a on both assault-without- instruct every in case to sustain assault completed-battery prosecution battery and (inter theory? jury given convict under either a statute.” let the conviction under for- attempted-battery omit emphasis instruct the May it marks quotation nal for a lesser included mulation as see Om ted, original)); in also alteration to those battery? The answers (“Elements, completed at 198 argharib, 775 F.3d forthcoming from defini- not questions are means, cir are distinguished from factual Indeed, a state even where alone. tions jury must of the offense cumstances ways to has listed two statute criminal beyond a reasonable unanimously and find (which in the alternative an offense commit (internal marks omit doubt.” at issue does statute Carolina North ted)). not), found the “use word have we of a crime does the definition ‘or’ in II. divisible.”

automatically render crime more at Still 775 F.3d Omargharib, courts how North Carolina Looking in States this Court point, on practice, crime of assault treat the Maryland determined that Royal understandably turns to the majority though a defi- even was indivisible statute jury instructions. pattern state’s disjunc- framed was nition of assault (examining at 199 Omargharib, 775 F.3d Cir.2013). (4th 333, 341 731 F.3d tive. deter- jury instructions to Virginia model “Maryland juries true This because was statute divisi- a state was mine whether they agree must are not instructed (looking ble); Royal, beyond a reasonable ‘unanimously and jury instructions for evidence Maryland caused on whether the defendant doubt’ con- At the time of Vinson’s divisibility). contact’ or physical ‘offensive [either] viction, only pattern instruction victim; rather, it is harm’ to the ‘physical 208.70, which a female” was “assault on agree only that one juror that each enough upon based to convict allowed a occurred, settling on without of the two engaged finding that defendant Id. which.” types of con- of alternative of a number an offense matters is thus not What how duct, did not involve of which some isolation, it is how is defined in but instead force. attempted physical use of use or practice. by state courts treated The stated: instruction context, enough show it is not defendant, person, a male has been ways committing an of- different (An on a charged with assault female. instruct- charged and fense are sometimes attempt, act or an or is an overt assault court, at the discretion of ed separately an at- unequivocal appearance of charged than not or more often even violence, do to tempt, with force Instead, the differ- separately. instructed to the injury physical some immediate charged be ent forms of an offense must another, force show of person law under state separately and instructed must be of violence sufficient or menace alternative they to be considered if are firmness person of reasonable put to categori- such that modified harm.) bodily of immediate fear permissible. cal approach guilty of the defendant you For to find Beltran-Munguia, States offense, prove must (9th Cir.2007) (“To this the State three constitute beyond a reasonable doubt: crime, things fac- particular of a an element

co cn First, intentionally the defendant Royal, 731 F.3d at 341 (drawing a similar (and excuse) justification without as- conclusion regarding Maryland (describe assault). assault). by saulted the victim

Second, that the victim awas female The determination that North Carolina person. courts required are not to use a single Third, And the defendant was a formulation of assault in jury their instruc- person, eighteen male at least years of tions finds substantial support additional age. instance, state case law. For in State v. Carpenter, N.C.App. N.C.P.I. Crim. 208.70 Like North (2002), a defendant was charged with itself, Carolina common law the instruction assault on a by “hitting female [the victim] is not a lucidity. model of But the instruc- with his hands.” Id. at 674-75. The trial tion, if given fully parenthetical with the court originally gave a battery-based in- definition of plainly jury allows a struction, asking jury to determine to convict even if the defendant did not use whether “the defendant intentionally as- to attempt physical jury use force. A saulted the victim hitting her with his could instead find that a defendant en- hands and feet.” at Id. 674. But when gaged “unequivocal appearance of an the jury then asked for the “Definition of attempt,” and the instruction appears also Assault,” provided the court the model def- finding guilt to sanction a based on a above, inition stated instructing that: “menace of violence”—a standard that can An assault is ... an overt act or an interpreted as consistent with the attempt unequivocal or the appearance “show violence” definition of pre- of an attempt with force and violence viously to discussed. do some physical injury immediate to course, Of North Carolina courts are not person of another which show of required instructions, pattern follow the force or menace of violence must be see, Garcell, e.g., State v. put sufficient to of reasonable (2009), and courts could firmness fear of bodily immediate have formulated completed-battery-specific harm. instructions at the time of Vinson’s convic- Id. Reviewing instruction, the trial court’s Indeed, tion. some of the cases cited of Appeals of North Carolina majority suggest that courts created error, found no plain even though the in- such instructions. But the model instruc- dictment did not mention “attempt.” Id. tions nonetheless remain strong evidence The appellate court reasoned “[t]he practice of the 'default They of courts. are required trial court is not to frame its also consistent with the district court’s be- instructions greater particularity lief that it possible here was for a North than necessary jury enable the Carolina to convict an individual of apply understand and law the evi- assault based on either a theory of assault- bearing upon dence the elements of the without-battery or assault-with-battery, charged.” crime Id. at 674-75. having without to specify which version Vinson, Garrison, occurred. Similarly, WL in State v. “[tjhere concluded, *7. As the district court (2013), 736 S.E.2d 610 requirement is no that the factfinder must North Carolina defendant was indicted for [types determine which of the of battery-based assault] assaults that resulted in occurred order to convict for physical injuries the crime like “a broken rib and a Id.; of assault on a nose, cheekbone, female.” see also broken ruptured a law enforce- Hurley was know that the trial Id. at 612. When eardrum.” ment officer. counts of jury the on two court instructed female, it a version of the a used assault on And, third, the defendant that when instruction, aof instead attempted-battery Hurley, Hur- against bumped or struck in- instruction. completed-battery duty discharge a attempting to ley was stated: office, it, ejecting struction the defendant to of his question. premises from the defendant, has person, a male [T]he on a female charged with assault been that Appeals held at 377. The Court Id. an 9th, An assault April on it was deficient because the instruction attempt do some act or an to overt As for Id. at 379. to assault. failed define person injury to the physical immediate used, the have been definition should what of another. under- the common law’s court turned to act or as “an overt guilty standing find the defendant you For to unequivocal appearance offense, attempt, three or the must prove this State violence, to do attempt, with force a reasonable an beyond doubt. things injury per- physical some immediate intentionally First, defendant another, of force or which show son of alleged victim. assaulted violence must be sufficient menace of a Second, alleged was victim in fear person of reasonable firmness put person. female bodily harm.” Id. at 378-79 of immediate third, was a And, defendant (internal and citation quotation marks years of eighteen at least male Hickman, 21 omitted); see also State age. 421, 204 N.C.App. S.E.2d Id. instruc- when a trial court’s (finding error majority, cited And in a case alleged but conduct tions described 687, 446 Lineberger, assault). failed define (1994), the North Carolina Garrison, and Carpenter, Cases like to find so far as Appeals went majority’s as- Lineberger directly belie the when a trial error court reversible failed of assault single “a definition sertion that of the jury with version provide cases], state assault typically given [in of as- common law definition traditional nothing more often is and that definition as- attempted-battery (including both sault charged description conduct.” than assault) in a sault show-of-violence least, the very 427. At the Maj. Op. at alleged completed an involved case that consistency and the lack of cases show off-duty officer. Id. battery police of an courts how North Carolina precision in the trial court Lineberger, 378-79. charge of actually juries on the instruct jury to find originally instructed alleges indictment even where an following if it found the guilty defendant thus battery. The cases underlying beyond a reasonable doubt: danger in where reveal the circumstances First, M.C. that the defendant assaulted what may describe document charging jus- intentionally Hurley by without battery (necessarily completed looks like a excuse, striking bumping or tification force), but involving physical the use of him his shoulder. against lañ- later include actual instructions appear- “unequivocal guage regarding Second, Hurley was a law that M.C. a “show of vio- attempt” or ance of an and the defendant officer enforcement Furthermore, law North Carolina to lence.” grounds had reasonable knew regarding fatal variances between indict- The rather problem considerable and appears Garcia, ments instructions to allow a relying however, on is that court to include an instruction for an at- directly decision conflicts prece- with the tempted-battery assault as a lesser includ- dent of Court of North Car- ed offense alleges where the indictment a olina. See United States v. Hemingway, completed-battery. (4th 323, Cir.2013) (“[A] N.C. Gen.Stat. fed- § (“Upon the trial of indict- eral court by is ‘bound supreme the [state prisoner may ment the be convicted of the interpretation law, court’s] of state includ- charged crime degree therein or of a less ing its determination of the elements of crime, of the same attempt offense.”) of an potential predicate (quoting commit the crime charged, so or of an States, Johnson v. 133, 559 U.S. attempt to commit a degree less of the 130 S.Ct. 176 L.Ed.2d 1 crime.”); (alterations same v. Squires, 357 N.C. original)). In State v. (“The Thome, ele- high court unambiguously held attempt ments of are an intent to commit that an indictment for simple assault need the substantive offense and an overt act not specify type of assault alleged. goes beyond preparation mere but (1953). 78 S.E.2d 140 As the offense.”). completed falls short of the court stated: sure, To inconsistency Given the the allegation haziness that the defen- (Evella Thorne) North Carolina dant regarding unlawfully, instructions willful- ly the instructions violated the do little to estab- laws of North Carolina Indeed, divisibility. lish assault on way Harvey one of inter- one Thomas is suffi- preting charge the addition of cient to simple the more recent assault. This is battery-based so because it majority charges instruction the that offense with cites is as an such a attempt bring degree certainty needed such a clarity to previously uncertain manner as to a person area of enable of common Court, however, state law. This understanding comprehend limited . charge, to the it law as existed at the and the court to pronounce judg- time of Vinson’s conviction. ment on according the conviction to the case,

law of the plead the accused to III. acquittal an or conviction on it in bar of prosecution another for the same of- For further evidence of whether fense. divisible, crime of assault is majority (internal also prudently looks to whether the assault 141-^42 S.E.2d at alternatives are charged separately. omitted); Find- marks and alterations see also ing no decision in history 4th, of the Su- Strong’s North Carolina Index As- preme Court of North support Carolina to Battery (citing sault and Thome for the proposition they must be so the proposition that warrant charging “[a] charged, majority holding relies on the day the defendant on a certain in a appellate intermediate state city court named did unlawfully willfully vio- Garcia, State v. which concluded that an late the laws of North Carolina simple arrest warrant assault must assault on a named is sufficient to specify type assault”). charged, charge simple least the offense of a where “show of violence” assault is al- Thome thus makes plain the state su- leged. preme court’s belief that the different for- of assault are not mulations different ele- 438 any sufficient, the inclusion of without is separately. charged that must be

ments elements, support a to satisfy to essential Instead, merely means other they are in North Carolina. indivisible, simple of assault. charge element of single, the 416, 57 Jeffries, v. also State fails to Garcia It thus curious that is (1982) (“Assault 859, is 860-61 291 S.E.2d The omission Thorne. even mention a fe- on of assault requisite a element fact that Gar- given the peculiar still more male.”). mirrors the language that uses cia itself before decided Notably, was Thome the before in cases from language used Pro- the Criminal enacted North Carolina ob- As Garcia Procedural Act. Criminal Act, that a criminal requires cedure which served: fac- and concise plain contain pleading “[a] substantially Generally, a warrant which which, with- in each count tual statement statute is suffi- “the words of the follows nature, evidentiary of an allegations out when it pleading] a criminal [as cient of a every element supporting facts asserts in the offense the essentials charges of com- and the defendant’s criminal offense manner”. intelligible, explicit plain, precision sufficient with mission thereof' however, statutory language, If the or defen- the defendant clearly apprise of the to set forth the essentials “fails subject of which is the of the conduct dants offense, statutory language then the § 15A- Gen.Stat. N.C. the accusation.” allega- by other supplemented must however, standard, 924(a)(5). Such and ex- plainly, intelligibly, which tions at the time place in was similar what every element set forth essential plicitly required Pre-existing precedent Thome. no doubt the offense as to leave of the language beyond the go that an indictment as and the court of the defendant mind plain- did the statute not a statute when charged.” to be offense intended of an forth essential ly set (internal citations omit- at 915 cases, statutory “the In those offense. Similarly, the ted, original). alterations supplemented been] words must [have has con- of North Carolina Supreme Court allegations indictment other pre-Criminal Procedure tinued to invoke every accurately set forth explicitly re- describing what is precedent Act such essential element See State quired charging in a document. in the no exactitude as to leave doubt Jones, 299, 758 S.E.2d 351 v. the court as to minds of the accused Cook, 272 (citing v. N.C. State to be offense intended specific (1968)). ifAs that Greer, S.E.2d charged.” N.C. leading encyclopedia (1953).2 enough, were stan- that Under S.E.2d cite law continues to on North Carolina allega- that dard, Thorne established warrant establishing “[a] another Thome that assaulted tion that one individual pleading requirement and found that mon Worsley, N.C. law In State longer controlling on this (1994), prior "are no cases Indeed, added). (emphasis specific Id. subset issue.” overruled of North Carolina require- "pleading that Proce- court observed cases decided before Criminal Act are the Criminal specific Procedure concerned ments dure Act. The cases rules. law burglary liberal” than common more an "indictment for issue of whether omitted). (internal felony Id. particular which the marks specify the must Worsley overrule Thome's light, does not alleged have to com- defendant is intended simple as- entering.” indictment breaking and Id. conclusion mit at the time elements of not list further sault need Criminal at 73. The concluded court actually the com- crime. relaxed Procedure Act had charging that the defendant on a certain that the offense of assault on a female is day in city unlawfully a named did Maj. divisible.” Op. at 430-31. That sim- willfully violate the laws of North Carolina ply cannot be. Magistrate’s Order by an assault on a named is suffi- First, does things. two it lists the offense charge to the offense of simple cient a that Vinson allegedly, committed —N.C. Strong’s assault.” North Carolina Index 14-33(c)(2). § Gen.Stat. As previously 4th, Battery Assault and discussed, nothing in the text of the stat- Thus, majority’s reliance on Garcia ute itself suggests that assault is a divisi- as establishing divisibility misplaced. Second, ble offense. the order describes Instead, Garcia at most shows the unset- Vinson’s alleged conduct support tled nature of question. charge that an assault was committed. Nowhere, however, does the specify Order IV. that Vinson was charged with complet- a majority opinion The not only relies on ed-battery variant of to the exclu- equivocal state law. Surprisingly, goes it sion of types essence, other of assault. step dramatic further and reasons that a majority’s logic boils down to this: court need not look to- law at all in state Because charging document describes these may circumstances and instead turn conduct consistent a battery, a com- directly to the description alleged con- pleted-battery assault must be a separate duct in a charging document to establish element of an in assault offense North divisibility. Such a standard turns Des- Carolina such it that is necessarily camps precedent this Court’s recent charged and instructed separately. Of on respective their heads. course, approach is backwards. Un- Descamps plain, As made the modified Descamps, der we must first look to state categorical approach is not an exception to law to determine if an offense is divisible categorical approach’s im fundamental before turning then to documents of con- perative that courts may only look to the viction to if see an individual was prose- statutory offense, elements of an and not cuted under the alternative element that specific conviction, facts underlying matches the federal definition. to determine whether a conviction can predicate count as a To Descamps, support approach, offense. its novel the ma- 133 S.Ct. at analytical 2283-84. This jority opinion relies on a in footnote Des- framework is critical preserve Sixth camps suggesting may that courts consult Amendment safeguards protect the documents of conviction determine against sending person jail, length divisibility when a statute lists alternative sentence, his or ening her based on a fact disjunctive versions of a in crime that a factfinder necessarily need not find the documents necessarily speci- thus also beyond a reasonable doubt. See Shepard fy which version charged, of the crime was States, 24-25, U.S. 125 instructed, pled to. See Descamps, and/or S.Ct. 161 L.Ed.2d205 133 S.Ct. at 2285 n. 2. To take the example used however, Supreme Court elsewhere majority, in reasons this Descamps, imagine ease that we can a burglary the factual alleged statement of stat- in Magistrate’s prohibits conduct ute that entry Order unlawful of both “estab- buildings. lishes cars and various formulations of as- Id. at 2284. In that ease, sault are alternate presents definitions the statute alternative ver- offense, of turn establishes disjunctive of a crime in sions and the separate al- functionally encompasses necessarily sault will of conviction documents the modified fact, such that has, ternative offenses an individual whether specify approach permissible. categorical of a car or burglary charged with been further, a looking building. Without I dissent. respectfully burglary that the confident court can be is divisible. an situation relatively clear-cut But the Descamps is a by the footnote

ticipated circum instant cry from the

very far noth

stances, statute itself lists where the a court must

ing in the alternative common necessarily delve into state

thus America, STATES UNITED is divisible if an offense to determine law Plaintiff-Appellee, to It stretches reason place. in the first how, circum in these understand try to stances, divisibility could discern a court PARRAL-DOMINGUEZ, Edgar a/k/a more than the de looking nothing Edgar Sandoval-Lopez, Hector a/k/a Magis in a conduct scription alleged Defendant-Ap- Dominguez-Arellanez, Indeed, post- this Court’s trate’s Order. pellant. consistently looked have Descamps cases if an offense to state law to determine No. 14-4546. examining documents before divisible Appeals, Hem States v. States Court of of conviction. See United (4th Cir. F.3d Fourth Circuit. ingway, 734 2013) state law (looking to South Carolina May 2015. Argued: crime a common law to determine whether divisible); battery was Om of assault July Decided: (finding the at 198-99 argharib, F.3d approach inapplicable categorical

modified survey Virgi conducting detailed

after stat concluding that the

nia state law and divisible, though even

ute at issue was not in the ways commit a

it listed crime (turn Royal, 731 F.3d

disjunctive); law determine whether

ing to state was divisible

Maryland of assault not). concluding that it was novelty of the unsupported

Given the uncertainty it

majority’s approach, and cases, only hope I future can

creates for rehearing grant full will

that the consistency. clarity and

provide needed

V. sum, majori- agree I cannot crime of as- the state

ty’s conclusion that

Case Details

Case Name: United States v. Rodney Vinson

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 21, 2015

Citation: 794 F.3d 418

Docket Number: 14-4078

Court Abbreviation: 4th Cir.