An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-904
Filed 6 May 2026
Wake County, Nos. 21CR201071-910; 21CR201077-910; 21CR201078-910; 21CR201079-910; 21CR201081-910; 21CR201082-910; 21CR203408-910; 21CR203411-910; 21CR203421-910
STATE OF NORTH CAROLINA
v.
HENDERSON JONES ATWATER
Appeal by defendant from judgment entered 31 July 2024 by Judge Keith O.
Gregory in Wake County Superior Court. Heard in the Court of Appeals
26 March 2026.
Attorney General Jeff Jackson, by Special Deputy Attorney General Terence Steed, for the State.
W. Michael Spivey for defendant-appellant.
ARROWOOD, Judge.
Henderson Atwater (“defendant”) appeals from judgment entered 31 July 2024
upon his conviction of seven counts of discharging a barreled weapon into an occupied
vehicle, five counts of injury to personal property, three counts of injury to real
property, and one count of assault with a deadly weapon. For the following reasons, STATE V. ATWATER
Opinion of the Court
we discern no error and affirm defendant’s convictions.
I. Background
On 8 January 2024, defendant was arraigned and pled not guilty to forty-three
indictments. On 10 July 2024, the State filed a motion to join thirteen of the forty-
three indictments for trial. The trial court granted the State’s motion on
24 July 2024.
The thirteen indictments arose from thirteen incidents of vehicles, buildings,
or people being shot at with a BB or pellet gun. The incidents took place between
March and December 2020 and largely occurred in three close locations around Holly
Springs, North Carolina: on Piney Grove Wilbon Road, on Main Street, and near
Holly Springs Elementary School. Below, we describe the thirteen incidents as
presented through trial testimony and the investigation that led to the charges.
A. Shooting Incidents
On 8 March 2020, James Mauldin was driving toward Bass Lake on Piney
Grove Wilbon Road. As another car slowly passed by him, Mauldin heard a loud pop
that sounded like a gunshot in his driver’s door. Mauldin described the car that
passed him as a silver four-door “Honda Civic-type car” and said it was being driven
by an African American man. Mauldin pulled over and saw two dents resembling
bullet holes that went “almost all the way through” in the driver’s door of his truck.
He told a deputy sheriff that he believed his truck was shot with a pellet gun or a .22
but no pellets or projectiles were found.
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On 14 April 2020, Dwight Brown heard a loud crash while working at his
company Pace Yourself Running Company (“Pace”) which is located in a strip of shops
facing Main Street. Brown and his business partners inspected the store to find the
source of the noise and noticed that a window in the front of the store had been
damaged. Brown saw similar damage at Sir Walter Coffee, a shop located in the same
strip as Pace. He did not notice any debris or projectiles by the windows. The
following day, an officer responded to a report about the incident and noticed similar
damage to the windows of two other businesses.
On 19 April 2020, Meghan Griffin’s car was damaged while she was driving on
Main Street. Initially, Griffin thought she had heard a rock hit her car windshield.
However, when she looked at her driver’s side door, she saw what “looked like a
gunshot or a BB or something in it.” Griffin did not see what caused the damage and
did not describe any person or vehicle who may have been responsible. No projectiles
were found in her car. On the same day, Julia Emore was driving home from Bass
Lake with her friend. When she was near Holly Springs Elementary, her friend heard
“a weird sound” and noticed her back driver’s side window was “shot out.” Emore did
not see any projectiles or any car or person nearby when her window was damaged.
On 20 April 2020, Jeremy Hammons was traveling south on Piney Grove
Wilbon Road. He met a car traveling north that braked “very hard” as he approached.
Hammons described the car as small, gray, and dark-in-color. He reported that the
driver was wearing a white T-shirt, but he could not tell if the driver was male or
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female. As he passed the car, Hammons heard a loud noise that he thought was from
his tire throwing up a rock. That day, Hammons did not notice any damage to his
car. However, the next day, Hammons’ wife drove the car and noticed dents on the
rear driver’s side door, about an inch below the window.
On the evening of 16 May 2020, Meghan Rowe was a passenger in a car driven
by her husband on Piney Grove Wilbon Road. She heard glass shattering and turned
to see that the rear window on the driver’s side of their car had been shot out. Around
two days after the incident, Rowe reported the incident to the Wake County Sheriff’s
Department who conducted a phone interview. Rowe reported to the police that she
saw a “tan or light-colored Dodge Durango” driving nearby when the window broke.
At trial, she testified that there were two or three cars coming towards them at the
time, but she could not remember what the other cars looked like.
Arianna Evans was also traveling on Piney Grove Wilbon Road that same
evening. She heard a “pop” and her front driver’s side window shattered. She pulled
over and discovered she was bleeding from above her left eyebrow. Evans reported
that three cars passed her when her window shattered, with the last one being a light
color, gold or white, BMW or Saab. Soon after the incident, Evans sought medical
treatment to remove “some sort of pellet” from her forehead.
On 7 June 2020, Jennifer French was a passenger in a car driven by her son
on Holly Springs Road near Holly Springs Elementary School when she heard “two
loud tings” that sounded like “metal on metal.” She did not know what the sound
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was. When French arrived home, she found two dents on the passenger side of the
car but no projectiles that may have caused the damage. French testified that she
was sure there were other cars on the road when she heard the loud noises but could
not identify any specific vehicles.
On 9 June 2020, Jennifer Putzi was driving her black Jeep down Main Street
when she “heard a pop sound” and something hit the rear driver’s side of the car. She
could not tell what the sound was, but when she pulled over, she noticed a hole in the
rear window of her Jeep. Putzi did not find any bullet or projectile in her car and did
not describe any vehicles, people, or weapons that may have been involved.
In September 2020, Edward Barys reported damage to his house. Wake
County Deputy Sheriff Berryman went to Barys’ home to investigate the report and
confirmed damage to the vinyl siding and a dent in the garage door. Deputy
Berryman saw the back of a pellet lodged in the siding. Video obtained from Barys’
doorbell camera showed that a vehicle pulled up to the house on 25 September 2020
at 9:30 a.m., a shot was heard, and then the vehicle sped away.
On 10 December 2020, Irena Krstanovic was driving on Holly Springs Road
and heard the sound of a gunshot as she passed Holly Springs Elementary School.
She turned and saw a male pedestrian walking on the sidewalk by her car. She pulled
over and saw that a shot had hit her back window. While Krstanovic was stopped,
the pedestrian approached her. He said he heard a gunshot but did not see what
happened. He looked in the back of her car and found “a little bullet” which he said
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was from a pellet gun. Krstanovic testified that there were no vehicles coming
towards her when she heard the gunshot.
In the early morning of 17 December 2020, Catherine Smith approached an
intersection on Piney Grove Wilbon Road on her way to Garner, North Carolina. She
heard a “large thump or a thud” on the driver’s side of her vehicle. When she heard
the noise, a small sedan was traveling towards her in the opposite direction. Smith
did not know what the noise was and continued driving to a well-lit parking area.
She pulled into a parking lot and saw what appeared to be a bullet or something
similar on the rear driver’s side door of her car.
B. Packer
Between the aforementioned incidents, Craig Packer reported an incident
between him and defendant. In June or July of 2020, Packer and his wife began
visiting their new property in Holly Springs. They had secured a loan to build a home
on the open lot and Packer was consistently on the property during construction. He
noticed that many members of the community would use the powerline easement on
his property to drive ATVs and trucks, shoot guns, and dump garbage. Packer got
into many arguments with people who thought that the easement was public access.
Packer met defendant around August or September 2020 when defendant was
parked in a car on the easement listening to music. Packer informed defendant that
the easement was private property. Defendant told Packer that he owned the
property across the road. The two of them spoke on about five different occasions in
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a friendly manner. Packer would frequently see defendant across the road mowing
grass, walking around, or sitting in his car listening to music. On at least one
occasion, Packer saw defendant repeatedly firing a pellet rifle. Packer also saw other
people going to the property, parking there, and sometimes dumping garbage. Packer
suspected that no one lived on the property because the house was dilapidated.
On 19 September 2020, Packer and his wife were on their property cutting
down trees and brush. Defendant was across the street doing yard work. Later,
Packer heard a “choo” and the sound of a projectile whizzing through the leaves.
From his own experience with small BB guns and pellet guns, Packer recognized the
sound as the burst of CO2 from a weapon. He looked up and saw defendant driving
by with the barrel of a gun through the window. Packer went to pursue defendant in
his truck but decided against it as he was unlikely to catch up.
Soon after, defendant returned and Packer followed him until defendant
stopped and got out of his car. Packer and defendant had a heated confrontation in
which defendant denied shooting at Packer. Defendant said that someone was hiding
in the woods and shooting at defendant all day while he was mowing grass, and that
it was probably that person who shot at Packer. However, Packer testified that he
had not seen anyone else or heard any other shots that day. Packer took a picture of
defendant’s car and license plate which bore the number TAS-9711. He then called
911 and reported the incident to the sheriff’s department.
C. Investigation and Trial
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The Wake County Sheriff’s Department and the Holly Springs Police
conducted investigations into these separate incidents that led them to believe they
were each committed by defendant. On 15 April 2020, Holly Springs Police Officer
Matthew Watson went to Pace to investigate the damage to it and the surrounding
businesses. From the point of impact in Pace’s window, Officer Watson believed that
whatever hit the glass was small, “wasn’t travelling very fast,” and came from the
direction of Main Street. A Pace employee told Officer Watson that the window was
damaged at around 4:40 p.m. Officer Watson viewed the surveillance video and
determined when the window was hit based on when someone in the store turned
around to look at the window. He testified that the window was hit at 16:41:31
military time with a deviation of around two seconds.
Officer Watson testified that the video showed a “dark-in-color passenger car
driving past the business” at the time something hit the window. However, he could
not identify the make, model, or any other distinctive feature of the car. Officer
Watson knew that another business further down Main Street, ASAP Computers
(“ASAP”) had video surveillance cameras. He estimated the time when the vehicle
he observed in the Pace video would pass ASAP based on its speed and the distance
between the businesses. Officer Watson testified that the ASAP video system was
forty-two minutes fast and so he retrieved video for 14 April 2020 at 17:23 which
would capture events around “4:40, 4:41” p.m.
Officer Watson recorded the ASAP video with his phone and gave the recording
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to Holly Springs Investigator Melissa Ottaway. Investigator Ottaway viewed the
video and took a screenshot of a vehicle shown in the video in the farthest lane from
the camera at 3 minutes and 41 seconds. She used the screenshot to create and
distribute a “Be on the Lookout flyer.” Then, Holly Springs Detective Matt Hilkert
used the video and screenshot to attempt to locate the vehicle when it passed traffic
cameras at 5:22 p.m. Detective Hilkert observed a gray Dodge Durango, a gray
Toyota Camry, and a Volkswagen pass the camera. Investigator Ottaway viewed the
video of the Volkswagen and saw that it had license plate number TAS-9711 which
was registered to defendant and Adele Dickson. She contacted Dickson and asked
her to schedule a time to meet, but neither Investigator Ottaway nor Dickson followed
up.
Investigator Ottaway also investigated the incidents involving Putzi and
Krstanovic. She located and viewed surveillance video of Main Street around the
time that Putzi’s car was shot. The video showed defendant’s Volkswagen with the
plate TAS-9711 passing Putzi’s car. When investigating the incident involving
Krstanovic, Investigator Ottaway went to the area near Holly Springs Elementary
School where the shooting allegedly occurred. She noticed a single-family residence
with a tall wooden privacy fence that had one missing board facing the elementary
school. Investigator Ottaway testified that the missing board was significant because
there were multiple reports of shootings in that area and it seemed like a place where
someone could stand and shoot a pellet or a BB gun. It was later discovered that
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defendant’s father, Amon Atwater, lived in the house.
Meanwhile, in May 2020, Wake County Sheriff’s Investigator Richard Whitlow
was assigned to investigate the incident involving Evans, who was struck in the
forehead with a pellet. During his investigation, Investigator Whitlow learned of the
pellet gun shootings which had damaged property in Holly Springs. Investigator
Whitlow recognized a common pattern in the shooting: “A subject firing at moving
vehicles with a rifle or pellet gun . . . as well as driving though Main Street and
shooting out windows on a storefront[.]” Additionally, Investigator Whitlow
recognized that the Holly Springs incidents and the incidents on Piney Grove Wilbon
Road were in the same area since Piney Grove Wilbon Road was a straight drive from
Main Street in Holly Springs.
Investigator Whitlow then connected many of the incidents to defendant’s cars
or locations that he frequented. Investigator Whitlow’s investigation confirmed that
defendant owned and had access to the 2017 Volkswagen Jetta believed to be present
at the Pace, Putzi, and Packer shootings. Additionally, defendant owned an older
Toyota Corolla that was dark in color, and reports from incidents early in 2020
indicated that a dark color Toyota or Honda style sedan was travelling near the
vehicles that had been struck. As for the location of the incidents, Investigator
Whitlow spoke to Packer at his home and learned that defendant frequented the
property across the street, which was actually owned by defendant’s father.
Investigator Whitlow also realized that both defendant and Barys had addresses on
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Mims Road which was close to Piney Grove Wilbon Road.
In January 2021, Investigator Whitlow went to defendant’s home to speak to
him and saw what appeared to be a rifle in plain view in the back of defendant’s
Volkswagen. Later that month, Investigator Whitlow obtained a search warrant and
searched defendant’s home and Volkswagen. During the search outside defendant’s
residence, officers found numerous spent CO2 cartridges and pellets which
Investigator Whitlow testified were used in a pellet rifle. Officers also found a truck
and a flat screen television that appeared to have been shot with a pellet or BB gun
as target practice.
Inside the house, officers found more used CO2 cartridges, loose and contained
pellets and BBs, and two pellet guns. The first gun was a pellet pistol with a CO2
cartridge and a pellet magazine attached. The second gun was a disassembled rifle
in defendant’s bedroom. The officers placed that rifle in a box labelled “Ruger Impact
Max[,]” although Investigator Whitlow also refers to that rifle as a “Ruger Impact
Max Elite” or “Max Elite” in his testimony. The box listed the muzzle velocity of the
rifle as 1,050 feet per second.
Officers also recovered a Ruger Impact Max Elite pellet rifle from defendant’s
Volkswagen, which Investigator Whitlow placed in its original box. Investigator
Whitlow testified that the rifle in defendant’s Volkswagen was “very similar” to the
rifle in his bedroom, but they had different names according to the packaging.
Investigator Whitlow also testified that he was not familiar with these models of
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weapons outside of this case. However, he did figure out how to load the rifle.
Investigator Whitlow testified that it was a single shot rifle and to discharge it, one
had “to break the action where the barrel points down, put the bullets or BB, pellet
in it, close the action, and then fire.” Breaking the action essentially requires
“fold[ing] the rifle in half.”
Lastly, officers recovered a box for a full-auto air gun. During his testimony,
Investigator Whitlow read the warnings on the box that indicated that the gun had a
muzzle velocity of 465 feet per second and could cause “fatal injury.” The air gun that
belonged in the box was never recovered.
At trial, the State presented, among other evidence, testimony from victims
and investigators demonstrating the above-mentioned facts. Defendant did not
present any evidence and moved to dismiss the charges at the close of the State’s
evidence. The trial court denied his motion. The jury found defendant guilty of seven
counts of discharging a barreled weapon into an occupied vehicle, five counts of injury
to personal property, three counts of injury to real property, and one count of assault
with a deadly weapon. Defendant was found not guilty of the charges that arose from
the incidents with Meghan Rowe, Arianna Evans, Catherine Smith, and Edward
Barys. The trial judge sentenced defendant to a cumulative sentence of
imprisonment for a minimum of 588 months and a maximum of 791 months.
II. Discussion
Defendant argues that the trial court erred by denying his motion to dismiss
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the charges of discharging a barreled weapon into an occupied vehicle and assault
with a deadly weapon. For the following reasons, we hold that the trial court did not
err in denying defendant’s motion to dismiss.
A. Standard of Review
“This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62 (2007) (citations omitted). “Upon defendant’s
motion for dismissal, the question for the Court is whether there is substantial
evidence (1) of each essential element of the offense charged, or of a lesser offense
included therein, and (2) of defendant’s being the perpetrator of such offense. If so,
the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378 (2000) (quoting
State v. Powell, 299 N.C. 95, 98 (1980)). Substantial evidence exists if there “is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” State v. Smith, 300 N.C. 71, 78 (1980) (citations omitted). “In making
its determination, the trial court must consider all evidence admitted, whether
competent or incompetent, in the light most favorable to the State, giving the State
the benefit of every reasonable inference and resolving any contradictions in its
favor.” State v. Rose, 339 N.C. 172, 192–93 (1994) (citations omitted).
“Once the court decides that a reasonable inference of defendant’s guilt may be
drawn from the circumstances, then it is for the jury to decide whether the facts,
taken singly or in combination, satisfy it beyond a reasonable doubt that the
defendant is actually guilty.” State v. Blagg, 377 N.C. 482, 489 (2021) (quoting State
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v. Fritsch, 351 N.C. 373, 379 (2000)). “Contradictions and discrepancies are for the
jury to resolve and do not warrant dismissal.” State v. Coley, 257 N.C. App. 780, 786
(2018). “In borderline or close cases, our courts have consistently expressed a
preference for submitting issues to the jury.” Blagg, 377 N.C. at 489 (citations
omitted).
B. Discharging A Barreled Weapon
Defendant contends that the State presented insufficient evidence that 1) a
weapon with a muzzle velocity of 600 feet per second was used in any of the cases of
discharging a barreled weapon into an occupied vehicle; 2) that French’s vehicle was
shot at all; and 3) that defendant was the perpetrator of the offenses charged. We
address each of defendant’s arguments separately.
1. Muzzle Velocity
To support a conviction of discharging a barreled weapon into an occupied
vehicle, the State must show in part that the weapon was “capable of discharging
shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per
second[.]” N.C.G.S. § 14-34.1(a) (2025); see also State v. Small, 201 N.C. App. 331,
341–42 (2009). Defendant argues that the State presented insufficient evidence of
the muzzle velocity of the weapon used because there were no descriptions from the
victims or video evidence of what the weapon used looked like. Additionally,
defendant contends that the single-shot Ruger Rifle could not have been used in the
incidents involving Mauldin, Hammons, and French where multiple shots were
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discharged from a moving vehicle because the rifle would have taken too long to
reload between shots.
However, when considered in the light most favorable to the State and drawing
all reasonable inferences in favor of the State, there was substantial evidence to
submit to the jury that a barreled weapon with a muzzle velocity of at least 600 feet
per second was used in each incident. The State presented evidence that defendant
possessed at least one pellet rifle with a muzzle velocity of well over 600 feet per
second, as well as another similar rifle which was found in his car. Additionally, the
weapon used in each shooting caused significant damage such as shattered windows
and dents in the car doors, suggesting the use of a powerful weapon consistent with
a higher muzzle velocity.
As to the incidents where multiple shots were discharged, evidence suggested
that the rifle had to be reloaded between shots, making it more difficult to use that
rifle to shoot a target multiple times from a moving vehicle. However, the State
presented other evidence from which the jury could infer that defendant could fire his
pellet rifle quickly. Namely, Packer testified that he had seen defendant repeatedly
fire a pellet rifle. Additionally, the large amount of ammo and targets found at
defendant’s home suggests he is well-experienced with BB and pellet guns. Further,
Mauldin testified that both he and the car passing him were driving slowly while
Hammons testified that the car he passed at the time of the shooting had slammed
on its brakes.
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Viewing the evidence in the light most favorable to the State, defendant’s
experience plus the slow speed of the cars in some incidents suggests it is possible
that the single-shot Ruger Rifle or a similar rifle was used in the shootings. Any
contradiction or discrepancies in the evidence was for the jury to resolve. Altogether,
the State’s evidence was sufficient to survive a motion to dismiss.
2. French
Defendant also argues that there was insufficient evidence that French’s car
was shot by anyone and emphasizes that there was no description or photo of the
dents presented to the jury, no projectiles found, and no person or vehicle nearby that
they associated with the sound that the State alleges came from the shooting.
However, particularly considering the similarities between the incident described by
French and the other shootings, we find that the State presented substantial evidence
that French’s car had been shot.
French described the sound she heard as “metal on metal” which is consistent
with a pellet or BB hitting her car. The damage to her car was similar to Mauldin
and Hammons, who also found dents in their car doors but no projectile. Additionally,
just as in the incidents with Krstanovic and Emore, French was driving near Holly
Springs Elementary School in the afternoon when she heard the sound. The fact that
French did not see anyone that may have shot at her car is similar to Krstanovic and
consistent with the State’s theory that defendant was shooting through the missing
fence panel on his father’s property. Given the similarities between what French
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described and the other shooting incidents, there was such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion that French’s car
was shot. Accordingly, the trial court did not err by denying defendant’s motion to
dismiss.
3. Evidence that Defendant Was the Perpetrator
Defendant next argues that there was insufficient evidence that he was the
perpetrator of the offenses charged. Defendant cites State v. Bell to support his
argument that evidence of motive or opportunity alone is never sufficient to carry a
case to the jury. Defendant claims that the State did not offer evidence of motive and
instead merely invited the jury to speculate that defendant was “bored” and was
shooting passing cars and businesses for fun. Additionally, defendant contends that
the State did not prove opportunity because no eyewitnesses testified that they saw
defendant discharging a weapon into their vehicle. Finally, defendant argues that
the incidents charged were not sufficiently similar to indicate that they were
committed by the same person. Defendant emphasizes that the incident with Packer
was distinct from the shootings at random cars, that the descriptions of nearby cars
at the time of the shootings were inconsistent, and that anyone with access to a BB
or pellet gun could have committed the offenses.
Our courts have recognized “proof of motive, opportunity, capability and
identity” as “different ways to show that a particular person committed a particular
crime.” State v. Bell, 65 N.C. App. 234, 238 (1983). Defendant correctly notes that in
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Bell, this Court held that “evidence of either motive or opportunity alone is
insufficient to carry a case to the jury.” Id. at 238–39 (emphasis in original) (citations
omitted). This Court also held that it was impossible “to glean from the existing cases
any clear, bright-line test by which it can be accurately and consistently determined
when the state has presented sufficient substantial circumstantial evidence of
identity of the perpetrator to survive a defendant’s motion to dismiss.” Id. at 239–40.
Rather, the issue of whether the State has presented substantial evidence that
defendant committed the crime must be reviewed “in the light of all the
circumstances.” Id. at 240–41.
In State v. Gallion, this Court held that proof of both opportunity and
capability was sufficient to survive the defendant’s motion to dismiss his first-degree
murder charge. 282 N.C. App. 305, 337–38 (2022). Proof of opportunity requires
evidence placing the defendant at the scene of the crime at the time it was committed.
Id. at 337. In Gallion, the State’s evidence showed that the defendant was in the
vicinity of the victim’s home on the same day that they were last seen alive and at a
time when a reasonable jury could find that the crime was committed. Id. at 337–38.
As to the defendant’s capability, the State showed that the casings found around the
victim’s body matched the ammunition found in the defendant’s truck shortly after
the defendant was in the vicinity of the victim’s home, and that the defendant
possessed multiple guns, one of which was later determined to be the murder weapon.
Id. at 338.
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Proof of identity through evidence of similar offenses can also demonstrate that
a defendant was the perpetrator of the offense charged. “In many ways the problem
of determining when ‘substantial’ evidence of identity has been presented is similar
to the problem of determining whether evidence is relevant and therefore admissible.”
Bell, 65 N.C. App. at 240. Accordingly, we find the rules governing the relevancy of
evidence that a defendant committed a similar offense to be instructive in
determining what evidence may be considered in assessing whether the State
presented sufficient evidence of the perpetrator’s identity.
When proving identity through the similarities of offenses, “ ‘there must be
shown some unusual facts present in both crimes or particularly similar acts which
would indicate that the same person committed both crimes.’ ” State v. Corum, 176
N.C. App. 150, 156–57 (2006) (quoting State v. Moore, 309 N.C. 102, 106 (1983)).
“Although it is not necessary that there be bizarre and unique signature elements
common to the [offenses], the similarities between the crimes must support the
reasonable inference that the same person committed both the earlier and the later
crimes.” State v. Adams, 220 N.C. App. 319, 328 (2012) (quoting State v. Haskins,
104 N.C. App. 675, 681 (1991)).
Remoteness of the crimes is also a factor. Id.; see also Corum, 176 N.C. App.
at 156–57. For example, in Corum, evidence of a defendant’s alleged robbery was
admissible to prove his identity as the perpetrator of another robbery where both
offenses occurred at convenience stores in neighboring counties at night within a two-
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day period and the perpetrator of both robberies wore gloves and a blue hood or mask
of similar descriptions. Corum, 176 N.C. App. at 157.
Here, the State presented substantial evidence that defendant was the
perpetrator of each incident through a combination of proof of opportunity, capability,
and identity. The State’s evidence showed opportunity by placing defendant at the
incidents involving Packer, Pace, and Putzi through eyewitness testimony or video of
his car. Additionally, in the incidents involving Mauldin and Hammons, a car with a
description consistent with either defendant’s Volkswagen or his Toyota was present
at the scene. The State also showed that defendant had the capability to commit each
offense through evidence that defendant owned ammo and multiple BB or pellet guns
and had experience using them. The combination of proof of opportunity and
capability provides substantial evidence that defendant was the perpetrator of the
offenses related to the incidents involving Packer, Pace, Putzi, Mauldin, and
Hammons.
For the incidents where defendant or his car were not placed at the scene, the
State provided substantial evidence that defendant was the perpetrator through the
similarity of the incidents. Each of the incidents involved BB or pellet guns being
shot at or from moving vehicles. All of the incidents occurred near each other and
many of the incidents occurred repeatedly at the same precise locations such as in
front of Holly Springs Elementary School. The thirteen incidents occurred over a
span of ten months, and many incidents happened within days or weeks of another.
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These similarities between incidents support the reasonable inference that they were
all committed by the same person. Combined with the evidence that the incidents
occurred in areas near defendant, one of which he had unique access to through the
missing fence panel on his father’s property, the evidence of defendant’s capability,
and the evidence of defendant’s opportunity to commit some of the offenses, the State
provided substantial evidence that defendant was the perpetrator of the offenses
charged. Accordingly, the trial court did not err by denying defendant’s motion to
dismiss for insufficient evidence that he committed the offenses charged.
C. Assault with a Deadly Weapon
Finally, defendant contends that the trial court erred by denying his motion to
dismiss the assault with a deadly weapon charge for the incident involving Packer
because there was insufficient evidence that a deadly weapon was employed.
Defendant argues that BB and pellet guns are not dangerous or deadly as a matter
of law and as such the record must contain evidence that the nature of the gun and
its manner of use was deadly. Defendant alleges that the record is devoid of any such
evidence because Packer could only identify the weapon as a pneumatic weapon or
pellet rifle.
Use of a deadly weapon is an essential element of assault with a deadly
weapon. In re Murdock, 222 N.C. App. 45, 50–51 (2012) (citing N.C.G.S. § 14-
33(c)(1)). Thus, to survive a motion to dismiss, the State must present substantial
evidence that a deadly weapon was used in the assault. See Fritsch, 351 N.C. at 378.
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A deadly weapon is “[a]ny instrument which is likely to produce death or great bodily
harm, under the circumstances of its use.” State v. Batchelor, 167 N.C. App. 797, 800
(2005) (quoting State v. Smith, 187 N.C. 469, 470 (1924)); see also State v. Webster,
291 N.C. App. 392, 397 (2023).
“The deadly character of the weapon depends sometimes more upon the
manner of its use, and the condition of the person assaulted, than upon the intrinsic
character of the weapon itself.” Batchelor, 167 N.C. App. at 800 (quoting Smith, 187
N.C. at 470). For example, hands have repeatedly been held to be deadly weapons in
cases where the defendant was significantly larger than the victim and used their
hands to inflict serious injury. See State v. Allen, 193 N.C. App. 375, 378–79 (2008)
(holding that the defendant’s hands were deadly weapons and providing examples of
similar cases). “Where the alleged deadly weapon and the manner of its use are of
such character as to admit of but one conclusion, the question as to whether or not it
is deadly . . . is one of law[.]” Batchelor, 167 N.C. App. at 800 (quoting Smith, 187
N.C. at 470). However, where a weapon “may or may not be likely to produce fatal
results, according to the manner of its use . . . its alleged deadly character is one of
fact to be determined by the jury.” Id. (quoting Smith, 187 N.C. at 470).
In State v. Pettiford, 60 N.C. App. 92, 99 (1982), this Court held that a pellet
rifle could be a deadly weapon. There, the defendant shot the victim at close range
with a weapon, leaving a small entry wound with a large bruise and a metallic
fragment from a bullet embedded in the victim’s face. Id. at 93. The State presented
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evidence tending to show that the defendant shot the victim with a small caliber pistol
while the defendant presented evidence that he used a pellet gun. Id. at 93–94. In
his appeal of his conviction of assault with a deadly weapon with intent to kill
inflicting serious injury, defendant challenged the trial court’s jury instructions
which he claimed improperly instructed the jury that a pellet gun was a deadly
weapon. Id. at 98. This Court held in part that it would not have been error for the
trial court to instruct that the weapon defendant used was a deadly weapon as a
matter of law because it was apparent from the victim’s injuries that, under the
circumstances it was used, the weapon was likely to cause death or great bodily harm.
Id. at 99.
This Court has since emphasized that BB and pellet guns are not inherently
dangerous or deadly as a matter of law but rather can be considered deadly based on
their use. See State v. Williamson, 272 N.C. App. 204, 216 (2020) (explaining that
Pettiford reinforces the principle that there must be evidence demonstrating the
dangerous character of the weapon). In the context of determining whether the use
of a BB or pellet gun can support a conviction of robbery with a dangerous weapon,
this Court has held that “there must be evidence in the record of the weapons’
capability to inflict death or serious bodily injury.” Id. Adequate evidence of the
dangerousness of the weapon may include demonstrations of its damage to targets at
a relevant distance, descriptions of the weapon’s capabilities, and warnings from the
weapon’s user manual. See id. at 214.
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For example, in State v. Hall, 165 N.C. App. 658, 666 (2004), the State
presented substantial evidence of a BB gun’s deadly character by demonstrating its
destructive power. There, during the commission of two robberies, the defendant had
placed a BB gun directly into the backs of two store clerks and pointed the BB gun at
the face of another clerk from a distance of only six to eight inches. Id. at 665–66.
The State presented testimony from a detective that based on his testing, the BB gun
allegedly used by the defendant “was capable of denting a quarter-inch piece of cedar
plywood at distances up to two feet.” Id. at 666. This Court held that the detective’s
testimony provided sufficient evidence for a jury to conclude that the defendant’s BB
gun “was capable of endangering the lives of the victims had it been discharged.” Id.
Here, similar to Hall, the State provided substantial evidence of the deadly
nature of defendant’s weapon through evidence of damage to other physical objects.
In several of the other shootings presented to the jury, the weapon employed caused
dents in metal car doors or broke glass. In his testimony, Packer described where he
was standing in relation to the road when he heard the shots and saw defendant drive
past him. Combined with the detailed testimony describing the other incidents,
Packer’s testimony provides sufficient evidence for the jury to compare the damage
and distance of the shootings and infer that defendant employed a deadly weapon.
Moreover, in addition to the evidence of actual damage caused in similar
incidents, the State presented evidence of relevant characteristics of pneumatic
weapons owned by defendant. The State demonstrated that two similar pellet rifles
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were found in defendant’s home and car and one of the rifles had a muzzle velocity of
1,050 feet per second. The State also presented to the jury the box for a full-auto air
gun with a lower muzzle velocity of 465 feet per second that warned that the gun
could cause fatal injury. This evidence provided further information from which the
jury could reasonably infer that defendant used a weapon that, when shot from the
road directly at someone in their yard, was likely to produce death or great bodily
harm.
Defendant argues that the State’s evidence is insufficient because here, there
is little evidence of what weapon was actually used to shoot at Packer. Defendant
asserts his case is distinguishable from Hall, wherein eyewitnesses and investigators
testified that the gun belonging to the defendant and admitted as an exhibit at trial
was consistent with or similar to the gun used in the robberies. Hall, 165 N.C. App.
at 660–62.
While additional evidence of the precise gun used to shoot at Packer would
certainly have strengthened the State’s case, it is not necessary here in order to
provide substantial evidence and send the question of the gun’s deadly nature to the
jury. The evidence that defendant owned several BB or pellet guns, each of which
could be considered a deadly weapon given the manner of use, and that defendant
had caused significant damage with BB or pellet guns in other similar incidents is
sufficient to support a reasonable inference that defendant employed a deadly weapon
when he shot a pneumatic weapon at Packer. Accordingly, the trial court did not err
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by denying defendant’s motion to dismiss.
III. Conclusion
For the foregoing reasons, we affirm defendant’s convictions.
NO ERROR.
Judges GORE and MURRY concur.
Report per Rule 30(e).
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