PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4078

UNITED STATES OF AMERICA,

Plaintiff - Appellant,

v.

RODNEY MARSHALL VINSON,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Louise W. Flanagan, 

District Judge. (5:13-cr-00121-FL-1)

Argued: January 27, 2015 Decided: July 21, 2015

Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit Judges.

Vacated and remanded by published opinion. Chief Judge Traxler 

wrote the opinion in which Judge Agee joined. Judge Gregory wrote 

a separate dissenting opinion.

ARGUED: Barbara Dickerson Kocher, OFFICE OF THE UNITED STATES 

ATTORNEY, Raleigh, North Carolina, for Appellant. Robert Earl 

Waters, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North 

Carolina, for Appellee. ON BRIEF: Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellant. Thomas P. McNamara, Federal Public 

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North 

Carolina, for Appellee.
2

TRAXLER, Chief Judge:

Police officers dispatched to the residence of Rodney 

Marshall Vinson found a rifle and ammunition during a consensual 

search. After determining that Vinson had a prior North Carolina 

conviction amounting to a “misdemeanor crime of domestic 

violence,” 18 U.S.C. § 921(a)(33)(A), the government charged 

Vinson with possession of a firearm by a prohibited person, see 18 

U.S.C. § 922(g)(9). The district court granted Vinson’s motion to 

dismiss the indictment, concluding that Vinson was not a prohibited 

person because the state statute at issue did not, as a categorical 

matter, qualify as a misdemeanor crime of domestic violence. The 

government appeals, arguing that the analytical approach referred 

to as the “modified categorical approach” applies to this case and 

establishes that Vinson was convicted of a qualifying misdemeanor 

crime of domestic violence. We agree with the government, and we 

therefore vacate the district court’s order dismissing the 

indictment and remand with instructions that the district court 

reinstate the indictment against Vinson.

I.

Section 922(g) prohibits the possession of firearms by 

various classes of persons, including those convicted of a 

“misdemeanor crime of domestic violence.” 18 U.S.C. § 922(g)(9). 
3

Subject to certain exceptions not relevant here, a crime qualifies 

as a “misdemeanor crime of domestic violence” if it: 

(i) is a misdemeanor under Federal, State, or Tribal . 

. . law; and 

(ii) has, as an element, the use or attempted use of 

physical force, or the threatened use of a deadly weapon, 

committed by a current or former spouse, parent, or 

guardian of the victim, by a person with whom the victim 

shares a child in common, by a person who is cohabiting 

with or has cohabited with the victim as a spouse, 

parent, or guardian, or by a person similarly situated 

to a spouse, parent, or guardian of the victim.

18 U.S.C. § 921(a)(33)(A).

The existence of the domestic relationship between the victim 

and defendant specified in the statute is an element of the § 

922(g)(9) charge that must be proven beyond a reasonable doubt by 

the government, but the relationship need not be an element of the 

underlying state statute. See United States v. Hayes, 555 U.S. 

415, 426 (2009). As is clear from the terms of the statute, the 

use or attempted use of physical force, or threatened use of a 

deadly weapon, must be an element of the underlying state offense. 

The “physical force” element of § 921(a)(33)(A) is satisfied “by 

the degree of force that supports a common-law battery conviction,” 

United States v. Castleman, 134 S. Ct. 1405, 1413 (2014), “namely, 

offensive touching,” id. at 1410.

Vinson was convicted under N.C. Gen. Stat. § 14-33, a statute 

that classifies simple and aggravated forms of misdemeanor 

assault, assault and battery, and affray. Subsection (a) provides 
4

that “[a]ny person who commits a simple assault or a simple assault 

and battery or participates in a simple affray is guilty of a Class 

2 misdemeanor.” N.C. Gen. Stat. § 14-33(a). Subsection (c) 

addresses aggravated forms of the crimes, providing that:

(c) . . . [A]ny person who commits any assault, assault 

and battery, or affray is guilty of a Class A1 

misdemeanor if, in the course of the assault, assault 

and battery, or affray, he or she:

(1) Inflicts serious injury upon another person or 

uses a deadly weapon; 

(2) Assaults a female, he being a male person at 

least 18 years of age;

(3) Assaults a child under the age of 12 years;

(4) Assaults an officer or employee of the State or 

any political subdivision of the State, when the officer 

or employee is discharging or attempting to discharge 

his official duties; 

(5) Repealed . . . ; or 

(6) Assaults a school employee or school volunteer 

when the employee or volunteer is discharging or 

attempting to discharge his or her duties as an employee 

or volunteer, or assaults a school employee or school 

volunteer as a result of the discharge or attempt to 

discharge that individual’s duties as a school employee 

or school volunteer. . . .

N.C. Gen. Stat. § 14-33(c). Because there is no statutory 

definition of assault, battery, or affray, the common-law rules 

governing these crimes apply to prosecutions under N.C. Gen. Stat. 

§ 14-33. See State v. Roberts, 155 S.E.2d 303, 305 (N.C. 1967). 

The record establishes that Vinson was convicted of violating 

subsection (c)(2) of the statute. 
5

II.

To determine whether a prior conviction renders the defendant 

a prohibited person under § 922(g), we apply the familiar 

“categorical approach.” Castleman, 134 S. Ct. at 1413. Under the 

categorical approach, we look “‘only to the fact of conviction and 

the statutory definition of the prior offense’. . . . , focus[ing] 

on the elements of the prior offense rather than the conduct

underlying the conviction.” United States v. Cabrera-Umanzor, 728

F.3d 347, 350 (4th Cir. 2013) (internal quotation marks omitted).

A modification to the categorical approach may be used in 

cases where the underlying state crime “consists of multiple, 

alternative elements creating several different crimes, some of 

which would match the generic federal offense and others that would 

not.” Omargharib v. Holder, 775 F.3d 192, 197 (4th Cir. 2014) 

(internal quotation marks omitted). When such “divisible” crimes 

are at issue, we may apply the “modified categorical approach,” 

which permits us “to examine a limited class of documents to 

determine which of a [crime’s] alternative elements formed the 

basis of the defendant’s prior conviction.” Descamps v. United 

States, 133 S. Ct 2276, 2284 (2013).1 “General divisibility, 

 1 Although Descamps addressed a state crime defined by 

statute, we have since held that the Descamps analysis applies to 

state crimes whose elements are defined by case law rather than by 
6

however, is not enough; a [state crime] is divisible for purposes 

of applying the modified categorical approach only if at least one 

of the categories into which the [crime] may be divided 

constitutes, by its elements, [a qualifying predicate offense].” 

Cabrera-Umanzor, 728 F.3d at 352; see Descamps, 133 S. Ct. at 2285.

The district court concluded that § 14-33(c)(2) was not 

divisible and that the modified categorical approach was therefore 

inapplicable. Applying the categorical approach, the district 

court concluded that a violation of 14-33(c)(2) did not amount to 

a misdemeanor crime of domestic violence because the use or 

threatened use of physical force is not an element of assault under 

North Carolina law. In reaching this conclusion, the district 

court applied this court’s decision in United States v. White, 606 

F.3d 144 (4th Cir. 2010), and interpreted the “physical force” 

requirement of § 921(a)(33)(A)(ii) to mean “violent force,” see

id. at 153 (“[T]he phrase ‘physical force’ means violent force --

that is, force capable of causing physical pain or injury to 

another person.” (internal quotation marks omitted)).

 

statute. See United States v. Aparicio-Soria, 740 F.3d 152, 155 

(4th Cir. 2014) (en banc) (“[T]he categorical/modified categorical 

typologies apply equally to statutory and common law crimes.”);

United States v. Hemingway, 734 F.3d 323, 333 (4th Cir. 2013) 

(“[T]he Descamps divisibility analysis is applicable to the 

question of whether a common law offense constitutes a[] . . . 

predicate crime.”).
7

After the district court granted Vinson’s motion to dismiss, 

however, the Supreme Court issued its decision in Castleman and 

held, directly contrary to our holding in White, that violent force 

was not necessary to satisfy the “physical force” requirement of 

§ 921(a)(33)(A)(ii). See Castleman, 134 S. Ct. at 1413. Instead, 

the Court held that the statute “incorporated the common-law 

meaning of ‘force’ -- namely, offensive touching,” id. at 1410, 

and that “the requirement of ‘physical force’ is satisfied, for 

purposes of § 922(g)(9), by the degree of force that supports a 

common-law battery conviction,” id. at 1413.

III.

The sole issue on appeal is whether Vinson’s conviction under 

N.C. Gen. Stat. § 14-33(c)(2) qualifies as a conviction for a 

misdemeanor crime of domestic violence (“MCDV”) as defined by 18 

U.S.C. § 921(a)(33)(A). The government does not challenge the 

district court’s determination that Vinson’s conviction would not 

qualify as an MCDV under the categorical approach.2 Instead, the 

 2 As the district court held, convictions under N.C. Gen.

Stat. § 14.33(c)(2) do not categorically require the use or 

attempted use of physical force. See, e.g., State v. Allen, 95 

S.E.2d 526, 529 (N.C. 1956) (defendant’s actions in repeatedly 

stopping his car a few feet away from the victim and staring at 

her while “moving the lower part of his body back and forth” 

sufficient to support conviction for assault); State v. McIver, 56 

S.E.2d 604, 607 (N.C. 1949) (affirming assault conviction based on 

defendant’s “repeated obscene proposals”); State v. Williams, 120 
8

government argues that, contrary to the district court’s 

conclusion, § 14-33(c)(2) is divisible, such that the modified 

categorical approach may be applied. And because the charging 

document in this case shows that the conviction was predicated on 

a battery of Vinson’s wife, the government contends that the 

modified categorical approach establishes that Vinson was 

convicted of an MCDV and that the district court therefore erred 

by dismissing the indictment against Vinson.

A.

Under N.C. Gen. Stat. § 14-33(c)(2), a defendant is “guilty 

of a Class A1 misdemeanor if, in the course of the assault, assault 

and battery, or affray, he . . . [a]ssaults a female, he being a 

male person at least 18 years of age.” The district court 

understood § 14-33(c)(2) as establishing the crime of assault on 

a female, a crime that can be committed through an assault, assault 

and battery, or an affray. In the district court’s view, assault, 

battery, and affray were alternate means of committing the crime, 

not alternate elements, such that § 14-33(c)(2) was not divisible. 

See Omargharib, 775 F.3d at 198 (explaining that alternate means 

 

S.E. 224, 225 (N.C. 1923) (affirming assault conviction in case 

involving no use or attempted use of force and jury was instructed 

that obscene comments made on three separate occasions by a 23-

year-old man to 15-year-old girl could amount to “a display of 

force” sufficient for conviction).
9

of committing a single crime do make the crime divisible); see 

also Descamps, 133 S. Ct. at 2285 n.2.

Section 14-33(c)(2)’s “in the course of the assault, assault 

and battery, or affray” language certainly sounds like language 

creating an element of a crime. Cf., e.g., 18 U.S.C. § 924(c)(1) 

(creating enhanced sentence for a defendant who “uses or carries 

a firearm” “during and in relation to any crime of violence or 

drug trafficking crime” (emphasis added)); United States v. 

Strayhorn, 743 F.3d 917, 925 (4th Cir.) (“To prove [a] violation 

of 18 U.S.C. § 924(c)(1), the government must show that the 

defendant used or carried a firearm and that he did so during and 

in relation to a drug trafficking crime or a crime of violence.”), 

cert. denied, 134 S. Ct. 2689 (2014). Nonetheless, we are “bound 

by the state supreme court’s . . . determination of the elements 

of the potential predicate offense,” United States v. Hemingway, 

734 F.3d 323, 333 (4th Cir. 2013) (internal quotation marks and 

alterations omitted), and the only elements of assault on a female 

under § 14-33(c)(2) identified by the Supreme Court of North 

Carolina are “(1) an assault (2) upon a female person (3) by a 

male person (4) who is at least eighteen years old,” State v. 

Wortham, 351 S.E.2d 294, 296 (N.C. 1987). Because the statute’s 

in-the-course-of language does not create elements of the offense, 

that language does not render the crime divisible.
10

The government, however, contends that the crime is divisible 

because North Carolina law defines “assault” through alternate 

elements. North Carolina law includes three different definitions 

of the crime of assault. First, under what can be called the 

“attempted battery” formulation, an assault can be committed by 

“an overt act or an attempt, or the unequivocal appearance of an 

attempt, with force and violence, to do some immediate physical 

injury to the person of another, which show of force or menace of 

violence must be sufficient to put a person of reasonable firmness 

in fear of immediate bodily harm.” Roberts, 155 S.E.2d at 305 

(internal quotation marks omitted). Second, under the “show of 

violence” formulation, an assault can be committed by “a show of 

violence accompanied by reasonable apprehension of immediate 

bodily harm or injury on the part of the person assailed which 

causes him to engage in a course of conduct which he would not 

otherwise have followed.” Id. Finally, under the “completed 

battery” formulation, an assault conviction may be premised on 

proof of a battery. See In re K.C., 742 S.E.2d 239, 243 (N.C. Ct. 

App. 2013) (“When a battery has occurred, assault may be proven by 

a finding of either assault or battery on the victim.”); State v. 

Britt, 154 S.E.2d 519, 521 (N.C. 1967) (“A battery always includes 

an assault, and is an assault whereby any force is applied, 

directly or indirectly, to the person of another.”). The 

government argues that these different formulations of assault are 
11

alternate elements that render the crime divisible and thus permit 

application of the modified categorical approach.

B.

As we have explained, the modified categorical approach 

applies only in cases where the state crime is “divisible” because 

it “consists of multiple, alternative elements creating several 

different crimes, some of which would match the generic federal 

offense and others that would not.” Omargharib, 775 F.3d at 197 

(internal quotation marks omitted).

1.

Taking the last part of the divisibility definition first, we 

must determine whether “at least one of the categories into which 

the [crime] may be divided constitutes, by its elements, [a 

qualifying predicate offense].” Cabrera-Umanzor, 728 F.3d at 352. 

Given the Supreme Court’s decision in Castleman, that question is 

easily answered in the affirmative.

As previously discussed, the Court in Castleman held that § 

921(a)(33)(A)’s “physical force” requirement “is satisfied . . .

by the degree of force that supports a common-law battery 

conviction,” Castleman, 134 S. Ct. at 1413, including “mere 

offensive touching,” id., and indirect applications of force, such 

as deceiving the victim into drinking poison, see id. at 1414-15. 

The definition and scope of “battery” under North Carolina law is 

no broader than the common-law definition set out in Castleman. 
12

See, e.g., State v. Sudderth, 114 S.E. 828, 829 (N.C. 1922) 

(defining battery as, inter alia, “an assault whereby any force, 

however slight, is actually applied to the person of another 

directly or indirectly”); State v. Monroe, 28 S.E. 547, 548 (N.C. 

1897) (druggist who placed diarrhea-inducing croton oil on a piece 

of candy at customer’s request guilty of assault and battery when 

druggist knew customer intended to give tainted candy to friend as 

a prank). Thus, any conviction for the completed-battery form of 

assault would necessarily include a use of physical force 

sufficient to satisfy the federal definition of an MCDV. 

Accordingly, if North Carolina’s different theories of assault 

make the crime divisible, use of the modified categorical approach 

would be proper because the crime of assault by completed battery 

categorically qualifies as an MCDV.3 We turn to the divisibility 

question now.

2.

“[A] crime is divisible under Descamps only if it is defined 

to include multiple alternative elements (thus creating multiple 

versions of a crime), as opposed to multiple alternative means (of 

committing the same crime).” Omargharib, 775 F.3d at 198. 

“Elements, as distinguished from means, are factual circumstances 

 3 Our resolution of this question makes it unnecessary to 

consider whether, as the government contends, the attemptedbattery form of assault also categorically qualifies as an MCDV. 
13

of the offense the jury must find unanimously and beyond a 

reasonable doubt.” Id. (internal quotation marks omitted). 

Although we have found no North Carolina case that directly answers 

the means-or-elements question required by Descamps,4 we are 

satisfied that, as the government argues, the alternate 

formulations of the crime of assault are alternate elements of 

what are effectively separate crimes, not alternate means of 

committing the same crime.5

Preliminarily, we note that each formulation of the crime 

involves a different type of conduct –- an attempted use of force; 

a show of violence without even an attempted use of force; and a 

completed, nonconsensual use of force against another person. Each 

of the formulations has its own unique set of elements, and each 

set of elements directs the jury’s focus to different aspects of 

 4 In order to directly answer the means-or-elements 

question, a case would likely need to involve a jury charge that 

included multiple formulations of assault and definitively treated 

those formulations either as elements requiring unanimity or as 

means not requiring unanimity. Cf. Omargharib v. Holder, 775 F.3d 

192, 201 (4th Cir. 2014) (Niemeyer, J., concurring) (discussing 

the difficulty in distinguishing alternate means from alternate 

elements).

5 As will be discussed later, the majority in Descamps

stated that a court need not “parse state law” to determine whether 

a criminal offense is divisible, but instead need only consult the 

indictment or other approved documents. Descamps v. United States, 

133 S. Ct. 2276, 2285 n.2 (2013). In post-Descamps cases, however, 

this court has continued to evaluate state law when resolving the 

divisibility question. See Omargharib, 775 F.3d at 198-99; United 

States v. Royal, 731 F.3d 333, 341 (4th Cir. 2013), cert. denied, 

134 S. Ct. 1777 (2014).
14

the crime -- the attempted-battery formulation of assault “places 

emphasis on the intent or state of mind of the person accused,” 

Roberts, 155 S.E.2d at 305, while the show-of-violence form “places 

the emphasis on the reasonable apprehension of the person 

assailed,” id., and the completed-battery form focuses “not [on] 

the hostile intent of the defendant, but rather [on] the absence 

of consent to the contact on the part of the plaintiff,” In re 

K.C., 742 S.E.2d at 244 (internal quotation marks omitted). That 

the kind of conduct proscribed by the different formulations of 

assault differs quite significantly suggests that, for purposes of 

our § 922(g)(9) analysis, the different formulations should be 

treated as separate crimes warranting the use of the modified 

categorical approach. See Chambers v. United States, 555 U.S. 

122, 126 (2009) (holding that modified categorical approach may be 

applied to statute that proscribed “several different kinds of 

behavior” that “differ[] so significantly” from each other that 

they must, for purposes of the predicate-offense inquiry, be 

treated as separate crimes).6

 6 In this regard, it is worth noting that while a battery 

always constitutes an assault, battery nonetheless retains a 

separate identity under North Carolina law. See, e.g., N.C. Gen. 

Stat. Ann. § 14-31 (making it unlawful to “maliciously commit [in 

a secret manner] an assault and battery with any deadly weapon 

upon another by waylaying or otherwise, with intent to kill such 

other person” (emphasis added)); State v. Hill, 209 S.E.2d 528, 

531 (N.C. Ct. App. 1974) (“[T]he offense of secret assault contains 

five elements: (1) assault and battery, (2) deadly weapon, (3) 
15

Moreover, North Carolina’s assault formulations are 

fundamentally different in nature from those things that we have 

previously identified as alternate means under Descamps. We have 

held that non-exhaustive lists of various acts that satisfy an 

element of a crime are alternate means, not alternate elements. 

See Hemingway, 734 F.3d at 333-34; Cabrera-Umanzor, 728 F.3d at 

353. The assault formulations at issue here, however, provide 

fully functioning, stand-alone, alternative definitions of the 

offense itself, and these definitions capture the entire universe 

of the ways in which an assault may be committed. The nature and 

operation of the assault formulations thus indicate that they 

operate as alternate definitions or elements for the offense of 

assault, not alternate means of committing the offense. See

Descamps, 133 S. Ct. at 2291 (“Courts may modify the categorical 

approach to accommodate alternative statutory definitions.”

(second emphasis added; citations and internal quotation marks 

omitted)); State v. Barksdale, 638 S.E.2d 579, 582 n.1 (N.C. Ct. 

 

intent to kill, (4) secret manner, and (5) malice.” (emphasis 

added)). That is, battery remains an independent crime, see, e.g., 

N.C. Gen. Stat. Ann. § 14-23.6(a) (“A person is guilty of the 

separate offense of battery on an unborn child if the person 

commits a battery on a pregnant woman. . . .” (emphasis added)), 

one that can be established even in the absence of conduct that 

would satisfy the elements of attempted-battery or show-ofviolence assault. See State v. Lassiter, 196 S.E.2d 592, 595 (N.C. 

Ct. App. 1973) (in assault case involving completed battery, jury 

need not decide whether victim was in fear of bodily injury, as 

would be required to prove attempted-battery assault).
16

App. 2007) (acknowledging, in case involving attempted-battery 

form of assault, “a second, different definition of assault called 

the ‘show of violence’ rule” (emphasis added)).

When determining the divisibility of a state crime, this court 

has looked to the manner in which the offense is charged to the 

jury. See Omargharib, 775 F.3d at 199 (considering pattern jury 

instructions when determining whether offense was divisible under 

Descamps); United States v. Royal, 731 F.3d 333, 341 (4th Cir. 

2013) (“[T]o decide whether ‘offensive physical contact’ and 

‘physical harm’ are alternative elements of the completed battery 

form of second-degree assault, we consider how Maryland courts 

generally instruct juries with respect to that offense.”). If the 

different formulations were alternate means rather than alternate 

elements, one would expect to find cases where all three 

formulations were included in the jury instructions. See, e.g.,

State v. Hartness, 391 S.E.2d 177, 178-80 (N.C. 1990) (trial court 

did not err in instructing jury that “[a]n indecent liberty is an 

immoral, improper or indecent touching or act by the defendant 

upon the child,” because “immoral, improper, or indecent 

liberties” referred to in statute were not elements of the offense 

of taking an indecent liberty with a child, but alternative means 

of violating the statute). In North Carolina, however, courts 

generally are not required to give the jury any definition of 

assault beyond a description of the charged conduct. See, e.g.,
17

State v. Hewitt, 237 S.E.2d 338, 339 (N.C. Ct. App. 1977) (trial 

court’s failure to define assault not error: “[T]he trial judge 

instructed the jury that the first element the State must prove 

was that the defendant assaulted [the victim] by intentionally 

shooting him with a pistol. This instruction explained the term 

assault and applied the law to the evidence.” (emphasis omitted)). 

Thus, while our research has revealed no case where all three 

formulations were charged to the jury, there are numerous cases

where assault is defined only by way of the charged conduct, such 

that the jury is presented with only one formulation of the 

offense. See State v. West, 554 S.E.2d 837, 840 (N.C. Ct. App. 

2001) (no error in jury instructions that “only define[d] assault 

as committed by a battery”); State v. Dammons, 461 S.E.2d 6, 8 

(N.C. Ct. App. 1995) (instructions in assault case proper where 

trial court informed jury that “the State was required to prove 

beyond a reasonable doubt that defendant ‘intentionally’ shot [the 

victim] with a handgun” and that “defendant would not be guilty of 

the assault if the shooting was accidental”); State v. Daniels, 

247 S.E.2d 770, 771-72 (N.C. Ct. App. 1978) (failure to define 

assault not error where “jury was instructed that it must find 

from the evidence and beyond a reasonable doubt that defendant 

‘struck [the victim] over the head with a blackjack’”); State v. 

McCoy, 239 S.E.2d 300, 302 (N.C. Ct. App. 1977) (no error in 

failing to define assault where instructions “included an adequate 
18

description of the facts constituting the assault for which the 

defendant was charged”); State v. Harris, 238 S.E.2d 642, 644 (N.C. 

Ct. App. 1977) (failure to define assault not error where “the 

trial judge instructed the jury in connection with each offense 

submitted that to convict defendant it must find beyond a 

reasonable doubt ‘that the defendant assaulted [the victim] by 

intentionally shooting him with a pistol’”); State v. Springs, 234 

S.E.2d 193, 195-96 (N.C. Ct. App. 1977) (no error in not defining 

assault where trial court instructed jury that the state must prove 

“‘that the defendant assaulted [the victim] by intentionally and 

without justification or excuse shooting [the victim] in the upper 

left chest with a shotgun’”); cf. State v. Lineberger, 446 S.E.2d 

375, 378 (N.C. Ct. App. 1994) (trial court erred by not defining 

assault in response to jury’s question in case where defendant 

“shouldered” security officer); State v. Hickman, 204 S.E.2d 718, 

719 (N.C. Ct. App. 1974) (finding reversible error where trial 

court charged that the jury must find beyond a reasonable doubt 

that defendant “‘assaulted [the victim] with a knife’” but did not 

define assault). These cases reflect the general approach in North 

Carolina to instructing the jury in assault cases. Except in cases 

with multiple assault counts based on different conduct, see, e.g., 

State v. Spellman, 605 S.E.2d 696, 701-02 (N.C. Ct. App. 2004), a 

single definition of assault typically is given, and that 
19

definition often is nothing more than a description of the charged 

conduct.7

This general practice of using a single definition of assault 

in the jury instructions is consistent with the approach 

recommended by North Carolina’s past and current pattern jury 

instructions. Under the pattern assault-on-a—female instruction 

that was in effect when Vinson pleaded guilty to that crime, the 

only required definition of assault was a description of the 

underlying conduct.8 See N.C. Pattern Instructions - Crim. 208.70 

(March 2002). Likewise, the current pattern instruction does not 

require that the trial court define assault beyond describing the 

underlying conduct. See N.C. Pattern Instructions - Crim. 208.70

 7 As the dissent points out, this general approach is not 

universal. See State v. Garrison, 736 S.E.2d 610, 612 (N.C. Ct. 

App. 2013) (using attempted-battery definition in case involving 

completed battery); State v. Carpenter, 573 S.E.2d 668, 674-75 

(N.C. Ct. App. 2002) (in case involving completed battery, court 

initially defined assault by describing charged conduct, but gave 

attempted-battery definition in response to jury question). 

Contrary to the dissent’s view, however, we do not believe that 

the existence of an outlying case or two prevents us from 

concluding that the assault formulations are alternate elements of 

the offense. Given all the other factors indicating that the

assault formulations operate as alternate elements, Garrison and 

Carpenter do not undermine our ultimate conclusion. 8 The dissent notes that the 2002 pattern instruction 

includes the traditional definition of attempted-battery assault. 

Because that definition is placed inside parentheses, however, use 

of the definition is “[o]ptional” and the definition should be 

given “only when warranted by the evidence.” N.C. Pattern 

Instructions, “Guide to the Use of This Book,” at xx. The 

directions to “describe assault,” which are italicized and placed 

inside parentheses, refer to “facts that the judge must fill in.” 

Id. at xix (emphasis added).
20

(June 2011). And to the extent that a definition might be needed 

in a given case, the current pattern instructions do not recommend 

instructing the jury on all assault formulations as alternative 

means of committing the crime of assault. Cf. N.C. Pattern 

Instructions – Crim. 226.85 (April 2003) (including the alternate 

means identified in State v. Hartness in instruction for indecentliberties offense). Instead, the pattern instructions for assault 

distinguish between the completed-battery and other formulations 

of the offense by calling for use of the most appropriate batterybased definition of assault in cases where a battery was involved 

and use of the most appropriate assault-based definition in cases 

where no battery was involved. See N.C. Pattern Instructions -

Crim. 120.20 (June 2011).

In our view, the North Carolina trial courts’ general practice 

of instructing the jury using a single formulation of assault and 

the absence of any case law affirmatively supporting the alternatemeans theory indicates that the alternate formulations operate as 

alternate elements or definitions of the offense. The pattern 

jury instructions, with their focus on the single form of assault 

implicated by the underlying facts, likewise indicate that the 

alternate formulations of assault are alternate elements, not 

alternate means.

This understanding of the assault formulations is supported 

by the North Carolina Court of Appeals’ decision in State v. 
21

Garcia, 553 S.E.2d 914 (N.C. Ct. App. 2001). In Garcia, the court 

vacated the defendant’s conviction for simple assault because the 

arrest warrant serving as the charging instrument,9 which purported 

to charge the defendant with assault by show of violence, was 

deficient:

A warrant charging an assault by show of violence must 

allege: (1) a show of violence by the defendant; (2) 

accompanied by reasonable apprehension of immediate 

bodily harm or injury on the part of the person assailed; 

(3) causing the victim to engage in a course of conduct 

which she would not otherwise have followed.

. . . . While the arrest warrant alleged an assault and 

listed facts supporting the elements of a show of 

violence . . . and a deviation from her normal activities 

by the victim, the arrest warrant fails to allege any 

facts to support the element of reasonable apprehension 

of immediate bodily harm or injury on the part of the 

person assailed. As this is an essential element of an 

assault by show of violence, the arrest warrant, by 

omitting facts supporting the element of a “reasonable 

apprehension of immediate bodily harm,” fails to charge 

Defendant with the commission of an assault under this 

theory. Accordingly, as the arrest warrant failed to 

sufficiently charge Defendant with a crime . . . , the 

trial court erred in failing to dismiss the charge as 

stated in the criminal pleading.

Id. at 915 (emphasis added; internal quotation marks and alteration 

omitted). Garcia thus clearly treats the show-of-violence 

formulation of assault not as an alternative means of committing 

 9 See N.C. Gen. Stat. § 15A-922(a) (“The citation, 

criminal summons, warrant for arrest, or magistrate’s order serves 

as the pleading of the State for a misdemeanor prosecuted in the 

district court, unless the prosecutor files a statement of charges, 

or there is objection to trial on a citation.”).
22

the crime of assault, but as a separate crime with its own separate 

elements.10 And if one of the three formulations of assault under 

North Carolina law is a separate crime, we can conceive of no basis 

for treating the other formulations otherwise. Accordingly, we 

conclude that, for purposes of our inquiry under 18 U.S.C. § 

922(g)(9), the attempted-battery and completed-battery forms of 

assault, just like the show-of-violence form at issue in Garcia, 

effectively create separate crimes with separate elements.

 10 The dissent contends that it is improper for us to rely 

on Garcia because Garcia is inconsistent with State v. Thorne, 78 

S.E.2d 140 (N.C. 1953), which found an indictment alleging that 

the defendant “violated the laws of North Carolina by assault on 

one Harvey Thomas” sufficient to support a charge of simple 

assault. Id. at 142 (alterations and internal quotation marks

omitted). We disagree. Twenty years after Thorne was decided, 

North Carolina passed the Criminal Procedure Act, which requires 

that criminal pleadings contain “[a] plain and concise factual 

statement in each count which . . . asserts facts supporting every 

element of a criminal offense and the defendant’s commission 

thereof with sufficient precision clearly to apprise the defendant 

or defendants of the conduct which is the subject of the 

accusation.” N.C. Gen. Stat. § 15A-924(a)(5). As the Supreme 

Court of North Carolina has recognized, § 15A-924(a)(5) 

“supplanted prior law,” such that pre-Act cases addressing the 

contents of indictments “are no longer controlling on this issue.” 

State v. Worsley, 443 S.E.2d 68, 73 (N.C. 1994).

As the dissent notes, Worsley considered the sufficiency of 

a burglary indictment, and the common-law pleading rule that was 

“supplanted” in that case was more restrictive than the new rule 

set forth in § 15A-924(a)(5). See Worsley, 443 S.E.2d at 73. 

Contrary to the dissent’s assertion, however, Worsley’s 

recognition that the Act superseded prior inconsistent cases 

cannot be limited to burglary cases imposing stricter pleading 

requirements. Because Garcia was interpreting § 15A-924(a)(5), we 

believe it is proper to rely on it rather than Thorne.
23

Our review of North Carolina law thus satisfies us that the 

various formulations of assault are alternate elements or 

definitions of the offense, not alternate means. While the dissent 

disagrees with our assessment of North Carolina law, our conclusion 

is also compelled by the approach for resolving the elementsversus-means question suggested by the Supreme Court in Descamps. 

In Descamps, the dissent expressed concern about the difficulty in 

distinguishing alternate means from alternate elements. See

Descamps, 133 S. Ct. at 2297-98 (Alito, J., dissenting). In 

response, the majority stated that when an elements-versus-means 

question arises,

the documents we approved in Taylor and Shepard -- i.e., 

indictment, jury instructions, plea colloquy, and plea 

agreement -- would reflect the crime’s elements. So a 

court need not parse state law in the way the dissent 

suggests: When a state [offense is formulated] in the 

alternative, the court merely resorts to the approved 

documents and compares the elements revealed there to 

those of the generic offense.

Descamps, 133 S. Ct. at 2285 n.2. And as we explain, the relevant 

document serves as an additional confirmation that the various 

assault formulations serve as alternate elements of the offense.

The document serving as the indictment in this case is a 

“Magistrate’s Order” finding probable cause for the detention of 

the defendant after a warrantless arrest. See N.C. Gen. Stat. §§ 

15A-921(4), 15A-922(a). A Magistrate’s Order serving as a criminal 

pleading must include “a statement of the crime of which the person 
24

is accused,” N.C. Gen. Stat. § 15A-511(c)(3)(a), and must contain 

“[a] plain and concise factual statement in each count which, 

without allegations of an evidentiary nature, asserts facts 

supporting every element of a criminal offense and the defendant’s 

commission thereof with sufficient precision clearly to apprise 

the defendant . . . of the conduct which is the subject of the 

accusation,” N.C. Gen. Stat. § 15A-924(a)(5).

The factual statement contained in the Magistrate’s Order in 

this case states that Vinson “unlawfully and willfully did assault 

and strike FRANCIS DEANNA VINSON, a female person, by HITTING HER 

ABOUT HER FACE WITH HIS OPEN HAND.” J.A. 38. These facts do not 

describe the attempted-battery or show-of-violence forms of 

assault, as there are no facts supporting the reasonableapprehension elements of those crimes. See Garcia, 553 S.E.2d at 

915; see also Roberts, 155 S.E.2d at 305 (describing elements of 

attempted-battery and show-of-violence forms of assault). The 

facts alleged in the Magistrate’s Order, however, are more than 

sufficient to support every element of the completed-battery form 

of assault, which has no reasonable-apprehension requirement. See

Sudderth, 114 S.E. at 829 (“[A] battery is the actual unlawful 

infliction of violence on the person of another, and may be proved 

by evidence of any unlawful touching of [victim’s] person . . . .” 

(internal quotation marks omitted)); see also State v. Thompson, 

219 S.E.2d 566, 568 (N.C. Ct. App. 1975) (“Where the evidence 
25

discloses an actual battery, whether the victim is put in fear is 

inapposite.” (internal quotation marks omitted)).

The Magistrate’s Order thus charges Vinson with assault by 

completed battery, which establishes that the various formulations 

of assault are alternate elements or definitions of the offense, 

which in turn establishes that the offense of assault on a female 

is divisible.11 See Descamps, 133 S. Ct. at 2285 n.2; see also

United States v. Martinez, 762 F.3d 127, 133-34 (1st Cir. 2014) 

(finding divisible a Massachusetts assault and battery statute 

that covered “three types of battery: (1) harmful battery; (2) 

offensive battery; and (3) reckless battery” (internal quotation 

marks omitted)).

Because the offense is divisible, the modified categorical 

approach is applicable.12 Under the modified categorical approach, 

 11 The dissent complains that this analysis is circular, in 

that the general rule is that courts may look to charging documents 

only if the offense is divisible. Regardless of the dissent’s 

view of this approach, it is the approach dictated by the Supreme 

Court. See Descamps, 133 S. Ct. at 2285 n.2 (explaining that “a 

court need not parse state law” to determine whether an offense 

involves alternate means or alternate elements, because “the 

documents we approved in Taylor and Shepard -- i.e., indictment, 

jury instructions, plea colloquy, and plea agreement – w[ill]

reflect the crime’s elements”). In any event, as our opinion makes 

clear, we do not rely solely on this approach but instead rely on 

it as confirmation of our understanding of North Carolina law.

12 We recognize that this court has previously determined 

that various assault offenses are not divisible, such that the 

modified categorical approach could not be applied. See, e.g., 

United States v. Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) 
26

Vinson’s prior conviction qualifies as an MCDV: The relevant 

charging document establishes that Vinson was convicted of the 

completed-battery form of assault under North Carolina law. And 

as we have already explained, the crime of assault by completed 

battery categorically qualifies as an MCDV. The district court 

therefore erred by dismissing the indictment charging Vinson with 

unlawful possession of a firearm by a person convicted of an MCDV.

 

(en banc) (holding that Maryland’s resisting-arrest statute (which 

includes elements of assault) was not divisible for purposes of 

determining whether a conviction under that statute qualified as 

a “crime of violence” under U.S.S.G. § 2L1.2); Royal, 731 F.3d at

341 (holding that Maryland’s second-degree assault statute was not 

divisible for purposes of determining whether prior conviction 

qualified as a violent felony under the Armed Career Criminal Act). 

The conclusions in those cases that assault does not have 

alternative elements were based on Maryland law and thus are not 

inconsistent with our contrary conclusion in this case, which is 

based on North Carolina law. 

Moreover, as we have explained, whether a statute or criminal 

offense is divisible depends on the existence of alternate elements 

and a matching category – that is, the alternate elements must 

create at least one category or form of an offense that matches up 

to the elements of the generic federal offense in question. See

Omargharib, 775 F.3d at 197; Cabrera-Umanzor, 728 F.3d at 352. 

The generic federal offenses at issue in Aparicio-Soria and Royal

both required the underlying state offense to have as an element 

the use or attempted use of violent force. See Aparicio-Soria, 

740 F.3d at 154-55; Royal, 731 F.3d at 341-42. Even if the 

completed-battery form of assault did have alternate elements 

under Maryland law, the offense still would not have been divisible 

in Aparicio-Soria or Royal because there would be no matching 

category, since battery can be predicated on an “offensive 

touching” not amounting to violent force. In this case, of course, 

the generic federal offense does not require violent force, and 

the completed-battery form of assault therefore does create a 

matching category.
27

IV.

Accordingly, for the foregoing reasons, we hereby vacate the 

district court’s order dismissing the indictment against Vinson, 

and we remand with instructions that the district court reinstate 

the indictment.

VACATED AND REMANDED
28

GREGORY, Circuit Judge, dissenting:

This case presents the question of whether a court should 

treat a state offense as divisible when the relevant state law is 

itself ambiguous and/or inconsistently applied. North Carolina’s 

common law crime of assault is one such offense. See United States 

v. Kelly, 917 F. Supp. 2d 553, 556-59 (W.D.N.C. 2013) (conducting 

a detailed review of North Carolina common law and describing it 

as a “quagmire of alternative definitions for assault on a 

female”). In the face of that uncertainty, it would be prudent to

err on the side of constitutional caution, construing state law in 

a way that minimizes the lurking Sixth Amendment danger of imposing 

a sentence based on a fact that need not be found beyond a 

reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490 

(2000). Yet the majority chooses to rely on tenuous suppositions, 

inapposite jury instructions, and the decision of a state 

intermediate appellate court (at odds with the state supreme court) 

to hold that assault is a divisible offense in North Carolina. 

Still more problematic, the majority proceeds to assert that courts 

need not look to state law at all and may instead rely solely on 

the factual allegations of a charging document to determine

divisibility in these circumstances. Such circular logic is 

plainly at odds with the analytical approach required by the 

Supreme Court and consistently used by this Court.
29

More broadly speaking, the majority’s view disregards the 

Supreme Court’s teaching that the modified categorical approach 

should only apply to a “narrow range of cases,” such as where a 

single burglary statute includes the effectively separate crimes 

of entry of an automobile and building. Descamps v. United States, 

133 S. Ct. 2276, 2284 (2013) (observing that, in such 

circumstances, “the prosecutor charges one of those two 

alternatives, and the judge instructs the jury accordingly”). And 

by divining divisibility in the face of uncertainty, the majority 

also disregards how courts typically construe ambiguity in 

criminal offenses, where the resolution of the ambiguity has clear 

constitutional implications. Cf. Edward J. DeBartolo Corp. v. 

Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575

(1988) (“[W]here an otherwise acceptable construction of a statute 

would raise serious constitutional problems, the Court will 

construe the statute to avoid such problems unless such 

construction is plainly contrary to the intent of Congress.”). 

Under the rule of lenity, for instance, “any criminal statute, 

including a sentencing provision, must be construed in favor of 

the accused and against the government if it is ambiguous.” See

United States v. Hall, 972 F.2d 67, 69 (4th Cir. 1992) (citing 

Bifulco v. United States, 447 U.S. 381, 387 (1980)); see also

United States v. Santos, 553 U.S. 507, 514 (2008) (“The rule of 

lenity requires ambiguous criminal laws to be interpreted in favor 
30

of the defendants subjected to them.”); Kelly, 917 F. Supp. 2d at 

561 (invoking the rule of lenity in deciding whether the crime of 

assault in North Carolina is categorically a misdemeanor crime of 

domestic violence under federal law). The majority charts a 

different course, and I therefore respectfully dissent.

I.

As the majority opinion recognizes, the modified categorical 

approach is appropriate only where alternative formulations of a 

statutory or common law offense constitute functionally distinct 

crimes. In those limited cases, the alternative element that 

matches a generic federal offense (here, the predicate offense of 

a “misdemeanor crime of domestic violence”) will necessarily be 

charged and instructed separately. We can then be confident that 

a defendant was actually convicted of a crime that matched the 

federal offense, in keeping with Sixth Amendment safeguards.1 When

an offense is indivisible, on the other hand, a jury need not agree 

that an individual committed the specific alternative that matches 

the federal crime. Instead, a jury may simply conclude that a 

defendant engaged in one of several proscribed courses of conduct

(some of which match the federal offense while others do not), 

 1 In the plea context specifically, limiting the use of the 

modified categorical approach to divisible offenses ensures that 

a plea “was to the version of the crime” that corresponds to the 

federal generic offense. Descamps, 133 S.Ct. at 2284.
31

without saying which occurred. See Omargharib v. Holder, 775 F.3d 

192, 199 (4th Cir. 2014) (noting that a statute is indivisible 

when a jury need not unanimously agree that a defendant engaged in 

conduct that matched a federal generic offense).

Regarding the North Carolina crime of assault on a female, 

the majority acknowledges that no controlling state precedent 

establishes whether different types of assault must be treated as 

alternative elements that are charged and instructed separately. 

Maj. Op. at 13. Indeed, the only elements of the crime of “assault 

on a female” that the Supreme Court of North Carolina has 

enumerated are “(1) an assault, (2) upon a female person, (3) by 

a male person (4) who is at least eighteen years old.” State v. 

Herring, 370 S.E.2d 363, 370 (N.C. 1988). Nonetheless, the 

majority concludes that the common law offense of assault is itself 

divisible, reasoning in part that the way the law looks “suggests” 

divisibility. Maj. Op. at 14. Under the majority’s view, North 

Carolina common law cleanly carves an assault offense into three 

functionally distinct crimes: 1) an “attempted-battery” assault; 

2) a “completed-battery” assault; and 3) a “show of violence” 

assault.

Yet even on that superficial level, courts have recognized 

that the definition of assault under North Carolina common law is 

far from straightforward. See Kelly, 917 F. Supp. 2d at 556-57, 

559 (noting some of the challenges in applying the various, and 
32

sometimes inconsistent, formulations of assault articulated by 

North Carolina courts); see also State v. Daniel, 48 S.E. 544, 545 

(N.C. 1904) (“While the law relating to this crime would seem to 

be simple and of easy application, we are often perplexed in our 

attempt to discriminate between what is and what is not an 

assault.”).

Most generally, North Carolina courts have stated that there 

are two ways to commit an assault, both of which encompass conduct 

that falls outside the federal definition of a “misdemeanor crime 

of domestic violence.” First, under what the majority terms an 

“attempted-battery” assault, courts have recognized that the 

“traditional common law definition of criminal assault is an overt 

act or attempt, or the unequivocal appearance of an attempt, with 

force and violence, to do some immediate physical injury to the 

person of another, which show of force or menace of violence must 

be sufficient to put a person of reasonable firmness in fear of 

immediate bodily harm.” See State v. McDaniel, 433 S.E.2d 795, 

797 (N.C. Ct. App. 1993) (citing State v. Roberts, 155 S.E.2d 303, 

305 (N.C. 1967)). This definition is broader than the federal 

domestic violence predicate offense because it criminalizes the

“unequivocal appearance of an attempt” whereas the federal crime 

only includes “the use or attempted use of physical force.” 18 

U.S.C. § 921(a)(33)(A); see also United States v. Vinson, No. 5:13-

CR-121-FL, 2013 WL 6843013, at *6 (E.D.N.C. Dec. 27, 2013)
33

(observing that “[t]his court is not convinced that the 

‘unequivocal appearance of an attempt’ in the state law offense 

rises to the level of an attempt, as required by the federal 

offense”). Attempt is a specific intent crime, requiring that the 

“defendant consciously intends the completion of the acts 

comprising the choate offense.” 21 Am. Jur. 2d Criminal Law § 155 

(2015). But an “unequivocal appearance of an attempt” appears to 

require no such actual intent. See State v. Barksdale, 638 S.E.2d 

579, 582 (N.C. Ct. App. 2007) (finding that a defendant’s conduct 

qualified as an “unequivocal appearance of an attempt” even if it 

did not rise to the level of an attempt under state law).

Second, the North Carolina high court has recognized that an 

assault may also be committed through a “show of violence

accompanied by reasonable apprehension of immediate bodily harm or 

injury on the part of the person assailed which causes him to 

engage in a course of conduct which he would not otherwise have 

followed.” Roberts, 155 S.E.2d at 305. The majority and the 

government agree that this definition is also broader than the 

federal predicate offense because it does not require any use or 

attempted use of physical force whatsoever.

In addition to the two primary definitions of assault, North 

Carolina courts have provided a variety of others. For instance, 

in State v. West, the North Carolina Court of Appeals defined 

assault as “an intentional attempt, by violence, to do injury to 
34

the person of another.” 554 S.E.2d 837, 840 (N.C. Ct. App. 2001). 

And in State v. Hefner, the Supreme Court of North Carolina 

provided that “[a]n ‘assault’ is an offer or attempt by force or 

violence to do injury to the person of another.” 155 S.E. 879, 

879 (N.C. 1930).

A battery, meanwhile, has been defined by the state courts as 

“an assault whereby any force, however slight[,] is actually 

applied to the person of another directly or indirectly.” State 

v. Sudderth, 114 S.E. 828, 829 (N.C. 1922); see also State v. 

Britt, 154 S.E.2d 519, 520-21 (N.C. 1967); West, 554 S.E.2d at 

840. Thus, “[a] battery always includes an assault.” Britt, 154 

S.E.2d at 521; Hefner, 155 S.E. at 880.

In that light, must a court instruct a completed battery 

separately, or may it rely on the traditional common law 

definitions of assault in at least some cases where a battery is 

involved? May a court instruct a jury on both assault-withoutbattery and completed-battery assault and let the jury convict 

under either theory? May it instruct the attempted-battery 

formulation as a lesser included offense for completed battery? 

The answers to those questions are not forthcoming from definitions 

alone. Indeed, even where a state criminal statute has listed two 

ways to commit an offense in the alternative (which the North 

Carolina statute at issue does not), we have found the “use of the 

word ‘or’ in the definition of a crime does not automatically 
35

render the crime divisible.” Omargharib, 775 F.3d at 198. Still 

more on point, this Court in United States v. Royal determined 

that a Maryland assault statute was indivisible even though a 

definition of assault was framed in the disjunctive. 731 F.3d 

333, 341 (4th Cir. 2013). This was true because “Maryland juries 

are not instructed that they must agree ‘unanimously and beyond a 

reasonable doubt’ on whether the defendant caused [either]

‘offensive physical contact’ or ‘physical harm’ to the victim; 

rather, it is enough that each juror agree only that one of the 

two occurred, without settling on which.” Id.

What matters is thus not how an offense is defined in 

isolation, but instead how it is treated by state courts in 

practice. In that context, it is not enough to show that the 

different ways of committing an offense are sometimes charged and 

instructed separately at the discretion of a court, or even more 

often than not charged and instructed separately. Instead, the 

different forms of an offense must be charged and instructed 

separately under state law if they are to be considered alternative 

elements such that the modified categorical approach is 

permissible. See United States v. Beltran-Munguia, 489 F.3d 1042, 

1045 (9th Cir. 2007) (“To constitute an element of a crime, the 

particular factor in question needs to be a constituent part of 

the offense [that] must be proved by the prosecution in every case 

to sustain a conviction under a given statute.” (internal 
36

quotation marks and emphasis omitted, alteration in original)); 

see also Omargharib, 775 F.3d at 198 (“Elements, as distinguished 

from means, are factual circumstances of the offense the jury must 

find unanimously and beyond a reasonable doubt.” (internal 

quotation marks omitted)).

II.

Looking to how North Carolina courts treat the crime of 

assault in practice, the majority understandably turns to the 

state’s pattern jury instructions. See Omargharib, 775 F.3d at 

199 (examining Virginia model jury instructions to determine 

whether a state statute was divisible); Royal, 731 F.3d at 341 

(looking to Maryland jury instructions for evidence of 

divisibility). At the time of Vinson’s conviction, the only 

pattern instruction for “assault on a female” was 208.70, which 

allowed a jury to convict based upon a finding that a defendant 

engaged in any of a number of alternative types of conduct, some 

of which did not involve the use or attempted use of physical 

force. The instruction stated:

The defendant, a male person, has been charged with 

assault on a female. (An assault is an overt act or 

an attempt, or the unequivocal appearance of an 

attempt, with force and violence, to do some 

immediate physical injury to the person of another, 

which show of force or menace of violence must be 

sufficient to put a person of reasonable firmness in 

fear of immediate bodily harm.)
37

For you to find the defendant guilty of this offense, 

the State must prove three things beyond a 

reasonable doubt:

First, that the defendant intentionally (and without 

justification or excuse) assaulted the victim by 

(describe assault).

Second, that the victim was a female person.

And Third, that the defendant was a male person, at 

least eighteen years of age.

N.C.P.I. Crim. 208.70 (2002). Like North Carolina common law 

itself, the instruction is not a model of lucidity. But the 

instruction, if given fully with the parenthetical definition of 

assault, plainly allows a jury to convict even if the defendant 

did not use or attempt to use physical force. A jury could instead 

find that a defendant engaged in an “unequivocal appearance of an 

attempt,” and the instruction also appears to sanction a finding 

of guilt based on a “menace of violence” – a standard that can be 

interpreted as consistent with the “show of violence” definition 

of assault previously discussed.

Of course, North Carolina courts are not required to follow 

the pattern instructions, see, e.g., State v. Garcell, 678 S.E.2d 

618, 642-43 (N.C. 2009), and courts could have formulated 

completed-battery-specific instructions at the time of Vinson’s 

conviction. Indeed, some of the cases cited by the majority 

suggest that courts created such instructions. But the model 

instructions nonetheless remain strong evidence of the default 

practice of courts. They are also consistent with the district 
38

court’s belief here that it was possible for a North Carolina jury

to convict an individual of assault based on either a theory of 

assault-without-battery or assault-with-battery, without having to 

specify which version occurred. Vinson, 2013 WL 6843013, at *7. 

As the district court concluded, “[t]here is no requirement that 

the factfinder must determine which of the [types of assault] 

occurred in order to convict for the crime of assault on a female.” 

Id.; see also Royal, 731 F.3d at 341 (drawing a similar conclusion 

regarding the Maryland offense of assault).

The determination that North Carolina courts are not required 

to use a single formulation of assault in their jury instructions 

finds substantial additional support in state case law. For 

instance, in State v. Carpenter, 573 S.E.2d 668 (N.C. Ct. App. 

2002), a defendant was charged with assault on a female by “hitting 

[the victim] with his hands.” Id. at 674-75. The trial court 

originally gave a battery-based instruction, asking the jury to 

determine whether “the defendant intentionally assaulted the 

victim by hitting her with his hands and feet.” Id. at 674. But 

when the jury then asked for the “Definition of Assault,” the court 

provided the model definition stated above, instructing that:

An assault is . . . an overt act or an attempt or the 

unequivocal appearance of an attempt with force and 

violence to do some immediate physical injury to the 

person of another which show of force or menace of 

violence must be sufficient to put a person of reasonable 

firmness in fear of immediate bodily harm.
39

Id. Reviewing the trial court’s instruction, the Court of Appeals 

of North Carolina found no plain error, even though the indictment 

did not mention “attempt.” Id. The appellate court reasoned that 

“[t]he trial court is not required to frame its instructions with 

any greater particularity than is necessary to enable the jury to 

understand and apply the law to the evidence bearing upon the 

elements of the crime charged.” Id. at 674-75.

Similarly, in State v. Garrison, 736 S.E.2d 610 (N.C. Ct. 

App. 2013), a North Carolina defendant was indicted for batterybased assaults that resulted in physical injuries like “a broken 

rib and a broken nose, cheekbone, and ruptured eardrum.” Id. at 

612. When the trial court instructed the jury on two counts of 

assault on a female, it used a version of the attempted-battery 

instruction, instead of a completed-battery instruction. The 

instruction stated:

[T]he defendant, a male person, has been charged with 

assault on a female on April 9th, 2010. An assault is 

an overt act or an attempt to do some immediate physical 

injury to the person of another.

For you to find the defendant guilty of this offense, 

the State must prove three things beyond a reasonable 

doubt.

First, that the defendant intentionally assaulted the 

alleged victim.

Second, that the alleged victim was a female person.

And, third, that the defendant was a male person at least 

eighteen years of age.

Id.
40

And in a case cited by the majority, State v. Lineberger, 446 

S.E.2d 375 (N.C. Ct. App. 1994), the North Carolina Court of 

Appeals went so far as to find reversible error when a trial court 

failed to provide the jury with a version of the traditional common 

law definition of assault (including both attempted-battery 

assault and show-of-violence assault) in a case that involved an 

alleged completed battery of an off-duty police officer. Id. at 

378-79. In Lineberger, the trial court originally instructed the 

jury to find the defendant guilty if it found the following beyond 

a reasonable doubt:

First, that the defendant assaulted M.C. Hurley by 

intentionally and without justification or excuse, 

striking or bumping against him with his shoulder.

Second, that M.C. Hurley was a law enforcement officer 

and the defendant knew or had reasonable grounds to know 

that Hurley was a law enforcement officer.

And, third, that when the defendant struck or bumped 

against Hurley, Hurley was attempting to discharge a 

duty of his office, to it, ejecting the defendant from 

the premises in question.

Id. at 377. The Court of Appeals held that the instruction was 

deficient because it failed to define assault. Id. at 379. As 

for what definition should have been used, the court turned to the 

common law’s understanding of assault as “an overt act or attempt, 

or the unequivocal appearance of an attempt, with force and 

violence, to do some immediate physical injury to the person of 

another, which show of force or menace of violence must be 

sufficient to put a person of reasonable firmness in fear of 
41

immediate bodily harm.” Id. at 378-79 (internal quotation marks 

and citation omitted); see also State v. Hickman, 204 S.E.2d 718, 

719 (N.C. Ct. App. 1974) (finding error when a trial court’s 

instructions described the alleged conduct but failed to define 

assault).

Cases like Carpenter, Garrison, and Lineberger directly belie 

the majority’s assertion that “a single definition of assault 

typically is given [in state assault cases], and that definition 

often is nothing more than a description of the charged conduct.” 

Maj. Op. at 19. At the very least, the cases show the lack of 

consistency and precision in how North Carolina courts actually 

instruct juries on the charge of assault, even where an indictment 

alleges an underlying battery. The cases thus reveal the danger 

in circumstances where a charging document may describe what looks 

like a completed battery (necessarily involving the use of physical 

force), but the actual jury instructions later include language 

regarding the “unequivocal appearance of an attempt” or a “show of 

violence.” Furthermore, North Carolina law regarding fatal 

variances between indictments and instructions appears to allow a 

court to include an instruction for an attempted-battery assault 

as a lesser included offense where the indictment alleges a 

completed-battery. See N.C. Gen. Stat. § 15–170 (“Upon the trial 

of any indictment the prisoner may be convicted of the crime 

charged therein or of a less degree of the same crime, or of an 
42

attempt to commit the crime so charged, or of an attempt to commit 

a less degree of the same crime.”); State v. Squires, 591 S.E.2d 

837, 841 (N.C. 2003) (“The elements of attempt are an intent to 

commit the substantive offense and an overt act which goes beyond 

mere preparation but falls short of the completed offense.”).

Given the inconsistency and haziness in North Carolina jury 

instructions regarding assault, the instructions do little to 

establish divisibility. Indeed, one way of interpreting the 

addition of the more recent battery-based instruction the majority 

cites is as an attempt to bring needed clarity to a previously 

uncertain area of state law. This Court, however, is limited to 

the law as it existed at the time of Vinson’s conviction.

III.

For further evidence of whether the crime of assault is 

divisible, the majority also prudently looks to whether the assault 

alternatives are charged separately. Finding no decision in the 

history of the Supreme Court of North Carolina to support the 

proposition that they must be so charged, the majority relies on 

the holding of the intermediate state appellate court in State v. 

Garcia, which concluded that an arrest warrant for simple assault 

must specify the type of assault charged, at least where a “show 

of violence” assault is alleged. 553 S.E.2d 914, 915 (N.C. Ct. 

App. 2001).
43

The rather considerable problem with relying on Garcia, 

however, is that the decision directly conflicts with the precedent 

of the Supreme Court of North Carolina. See United States v. 

Hemingway, 734 F.3d 323, 333 (4th Cir. 2013) (“[A] federal court 

is ‘bound by the [state supreme court’s] interpretation of state 

law, including its determination of the elements of’ the potential 

predicate offense.” (quoting Johnson v. United States, 559 U.S. 

133, 138 (2010) (alterations in original)). In State v. Thorne, 

the high court unambiguously held that an indictment for simple 

assault need not specify the type of assault alleged. 78 S.E.2d 

140 (N.C. 1953). As the court stated:

To be sure, the allegation that the defendant 

(Evella Thorne) unlawfully, willfully violated the laws 

of North Carolina by assault on one Harvey Thomas is 

sufficient to charge a simple assault. This is so 

because it charges that offense with such a degree of 

certainty and in such a manner as to enable a person of 

common understanding to comprehend the charge, and the 

court to pronounce judgment on the conviction according 

to the law of the case, and the accused to plead an 

acquittal or conviction on it in bar of another 

prosecution for the same offense.

78 S.E.2d at 141-42 (internal quotation marks and alterations 

omitted); see also Strong’s North Carolina Index 4th, Assault and 

Battery § 54 (citing Thorne for the proposition that “[a] warrant 

charging that the defendant on a certain day in a named city did 

unlawfully and willfully violate the laws of North Carolina by an 

assault on a named person is sufficient to charge the offense of 

a simple assault”). Thorne thus makes plain the state supreme 
44

court’s belief that the different formulations of assault are not 

different elements that must be charged separately. Instead, they 

are merely means to satisfy the single, indivisible, element of 

assault. See also State v. Jeffries, 291 S.E.2d 859, 860-61 (N.C. 

Ct. App. 1982) (“Assault is a requisite element of assault on a 

female.”).

Notably, Thorne was decided before North Carolina enacted the 

Criminal Procedure Act, which requires that a criminal pleading 

contain “[a] plain and concise factual statement in each count 

which, without allegations of an evidentiary nature, asserts facts 

supporting every element of a criminal offense and the defendant’s 

commission thereof with sufficient precision clearly to apprise 

the defendant or defendants of the conduct which is the subject of 

the accusation.” N.C. Gen. Stat. § 15A–924(a)(5). Such a 

standard, however, is similar to what was in place at the time of 

Thorne. Pre-existing precedent required that an indictment go 

beyond the language of a statute when the statute did not plainly 

set forth the essential elements of an offense. In those cases, 

“the statutory words must [have been] supplemented in the 

indictment by other allegations which explicitly and accurately 

set forth every essential element of the offense with such 

exactitude as to leave no doubt in the minds of the accused and 

the court as to the specific offense intended to be charged.” 
45

State v. Greer, 77 S.E.2d 917, 920 (N.C. 1953).2 Under that 

standard, Thorne established that the allegation that one 

individual assaulted another is sufficient, without the inclusion 

of any other essential elements, to support a charge of simple 

assault in North Carolina.

It is thus curious that Garcia fails to even mention Thorne. 

The omission is still more peculiar given the fact that Garcia

itself uses language that mirrors the language used in cases from 

before the Criminal Procedural Act. As Garcia observed:

Generally, a warrant which substantially follows “the 

words of the statute is sufficient [as a criminal 

pleading] when it charges the essentials of the offense 

in a plain, intelligible, and explicit manner”. If the 

statutory language, however, “fails to set forth the 

essentials of the offense, then the statutory language 

must be supplemented by other allegations which plainly, 

intelligibly, and explicitly set forth every essential 

element of the offense as to leave no doubt in the mind 

of the defendant and the court as to the offense intended 

to be charged.”

 2 In State v. Worsley, 443 S.E.2d 68, 73-74 (N.C. 1994), the 

Supreme Court of North Carolina overruled a specific subset of 

cases decided before the Criminal Procedure Act. The cases 

concerned the specific issue of whether an “indictment for burglary 

must specify the particular felony which the defendant is alleged 

to have intended to commit at the time of breaking and entering.” 

Id. at 73. The court concluded that the Criminal Procedure Act 

had actually relaxed the common law pleading requirement and found 

that prior cases “are no longer controlling on this issue.” Id.

(emphasis added). Indeed, the court observed that the “pleading 

requirements of the Criminal Procedure Act are more liberal” than 

the common law rules. Id. (internal quotation marks omitted). In 

that light, Worsley does not overrule Thorne’s conclusion that an 

indictment for simple assault need not list any further elements 

of the crime.
46

553 S.E.2d at 915 (internal citations omitted, alterations in 

original). Similarly, the Supreme Court of North Carolina has 

continued to invoke pre-Criminal Procedure Act precedent in 

describing what is required in a charging document. See State v. 

Jones, 758 S.E.2d 345, 351 (N.C. 2014) (citing State v. Cook, 158 

S.E.2d 820, 822 (N.C. 1968)). As if that were not enough, a 

leading encyclopedia on North Carolina law continues to cite Thorne

as establishing that “[a] warrant charging that the defendant on 

a certain day in a named city did unlawfully and willfully violate 

the laws of North Carolina by an assault on a named person is 

sufficient to charge the offense of a simple assault.” Strong’s 

North Carolina Index 4th, Assault and Battery § 54.

Thus, the majority’s reliance on Garcia as establishing 

divisibility is misplaced. Instead, Garcia at most shows the 

unsettled nature of the question.

IV.

The majority opinion not only relies on equivocal state law. 

Surprisingly, it goes a dramatic step further and reasons that a 

court need not look to state law at all in these circumstances and 

instead may turn directly to the description of alleged conduct in 

a charging document to establish divisibility. Such a standard 

turns Descamps and this Court’s recent precedent on their 

respective heads.
47

As Descamps made plain, the modified categorical approach is 

not an exception to the categorical approach’s fundamental 

imperative that courts may only look to the statutory elements of 

an offense, and not the specific facts underlying a conviction, to 

determine whether a conviction can count as a predicate offense.

Descamps, 133 S.Ct. at 2283-84. This analytical framework is 

critical to preserve Sixth Amendment safeguards that protect 

against sending a person to jail, or lengthening his or her 

sentence, based on a fact that a factfinder need not necessarily 

find beyond a reasonable doubt. See Shepard v. United States, 544 

U.S. 13, 24-25 (2005).

The majority, however, reasons in this case that the factual 

statement of alleged conduct in the Magistrate’s Order 

“establishes that the various formulations of assault are 

alternate elements or definitions of the offense, which in turn 

establishes that the offense of assault on a female is divisible.” 

Maj. Op. at 25-26. That simply cannot be. The Magistrate’s Order 

does two things. First, it lists the offense that Vinson allegedly 

committed – N.C. Gen. Stat. § 14-33(c)(2). As previously 

discussed, nothing in the text of the statute itself suggests that 

assault is a divisible offense. Second, the order describes 

Vinson’s alleged conduct to support the charge that an assault was 

committed. Nowhere, however, does the Order specify that Vinson 

was charged with a completed-battery variant of assault, to the 
48

exclusion of other types of assault. In essence, the majority’s 

logic boils down to this: Because a charging document describes 

conduct consistent with a battery, a completed-battery assault 

must be a separate element of an assault offense in North Carolina 

such that it is necessarily charged and instructed separately. Of 

course, that approach is backwards. Under Descamps, we must first 

look to state law to determine if an offense is divisible before 

then turning to documents of conviction to see if an individual 

was prosecuted under the alternative element that matches the 

federal definition.

To support its novel approach, the majority opinion relies on 

a footnote in Descamps suggesting that courts may consult the 

documents of conviction to determine divisibility when a statute

lists alternative versions of a crime in the disjunctive and the 

documents thus also necessarily specify which version of the crime 

was charged, instructed, and/or pled to. See Descamps, 133 S. Ct. 

at 2285 n.2. To take the example used by the Supreme Court 

elsewhere in Descamps, we can imagine a burglary statute that 

prohibits unlawful entry of both cars and buildings. Id. at 2284. 

In that case, the statute presents alternative versions of a crime 

in the disjunctive and the documents of conviction will necessarily 

specify whether an individual has, in fact, been charged with the 

burglary of a car or building. Without looking any further, a 

court can be confident that the burglary offense is divisible.
49

But the relatively clear-cut situation anticipated by the 

footnote in Descamps is a very far cry from the instant 

circumstances, where the statute itself lists nothing in the 

alternative and a court must thus necessarily delve into state 

common law to determine if an offense is divisible in the first 

place. It stretches reason to try to understand how, in these 

circumstances, a court could discern divisibility by looking to 

nothing more than the description of alleged conduct in a 

Magistrate’s Order. Indeed, this Court’s post-Descamps cases have 

consistently looked to state law to determine if an offense is 

divisible before examining any documents of conviction. See United 

States v. Hemingway, 734 F.3d 323, 333-34 (4th Cir. 2013) (looking 

to South Carolina state law to determine whether a common law crime 

of assault and battery was divisible); Omargharib, 775 F.3d at 

198-99 (finding the modified categorical approach inapplicable 

after conducting a detailed survey of Virginia state law and 

concluding that the statute at issue was not divisible, even though 

it listed ways to commit a crime in the disjunctive); Royal, 731 

F.3d at 341 (turning to state law to determine whether the Maryland 

offense of assault was divisible and concluding that it was not).

Given the unsupported novelty of the majority’s approach, and 

the uncertainty it creates for future cases, I can only hope that 

the full Court will grant rehearing to provide needed clarity and 

consistency.
50

V.

In sum, I cannot agree with the majority’s conclusion that 

the state crime of assault encompasses functionally separate 

alternative offenses such that the modified categorical approach 

is permissible.

I respectfully dissent.