§14-34. Assaulting by pointing gun.If any person shall point any gun or pistol at any person, either in fun or otherwise, whether such gun or pistol be loaded or not loaded, he shall be guilty of a Class A1 misdemeanor.
A person guilty of this offense(1) intentionally(2) points a gun (3) at another.
Class A1 misdemeanor. G.S. 14-34.
Element (1). Even though the defendant might actually have pointed a gun at someone, the offense has not occurred unless the defendant intended to do so. State v. Kluckhohn, 243 N.C. 306 (1956). If the defendant intends to point the gun at one person and mistakenly points it at someone else, he or she has committed this offense. State v. Thornton, 43 N.C. App. 564 (1979). See “Transferred Intent” in Chapter 1 (States of Mind).
If a person points a gun at another with legal justification, then this offense has not occurred. Lowe v. Dep’t of Motor Vehicles, 244 N.C. 353 (1956); In re J.A., 103 N.C. App. 720 (1991). For example, if a law enforcement officer points a gun at a person in the good faith discharge of the officer’s official duties, then this offense has not been committed. See generally “Public Authority” in Chapter 2 (Bars and Defenses). The absence of legal justification is not an element of the offense; instead, a defendant must raise the issue as a defense. State v. Gullie, 96 N.C. App. 366 (1989). But see State v. Dickens, 162 N.C. App. 632 (2004) (describing the elements of the offense as (1) pointing a gun (2) without justification).
Element (2). The statute provides that this offense occurs regardless of the defendant’s purpose in pointing the gun (“in fun or otherwise”) and regardless of whether the gun was loaded. G.S. 14-34.
The evidence was insufficient to support an adjudication of delinquency based on assault by pointing a gun when the weapon was an airsoft gun from which plastic pellets were fired using a “pump action” mechanism. In re N.T., ___ N.C. App. ___, ___ S.E.2d ___ (Aug. 2, 2011). The court reasoned that for purposes of this statute, the term “gun” “encompasses devices ordinarily understood to be ‘firearms’ and not other devices that fall outside that category,” such as imitation firearms. Id.
Charging issues. See this note to “Simple Assault,” above.
Greater and lesser included offenses. Assault by pointing a gun is not a lesser-included offense of assault with a firearm on a law enforcement officer, probation or parole officer, or detention facility employee. Dickens, 162 N.C. App. at 638 .
Relation to other offenses. An assault by pointing a gun also could be an assault with a deadly weapon if the pointing amounts to an assault, such as when the defendant points a gun at someone and threatens to shoot. See the note on Element (1) to “Simple Assault,” above. However, this offense applies even if the pointing does not amount to an assault.
If a person dies as a result of this offense, the assault may constitute criminal negligence supporting a charge of involuntary manslaughter. See “Criminal Negligence” in Chapter 1 (States of Mind) for a detailed discussion of criminal negligence, including when gun mishaps constitute criminal negligence.
See the offenses in Chapter 22 (Weapons Offenses).Criminal use of laser device. G.S. 14-34.8.Transporting dangerous weapon or substance during emergency. G.S. 14-288.7.
For a case with multiple victims where the court rejected the defendant’s argument that the State’s evidence was too vague for the jury to infer that he pointed the gun at any particular person, see State v. Pender, 243 N.C. App. 142 (2015) (witnesses testified that the defendant waved the gun “at us” and pointed the gun “toward everybody in one room”).
Transporting dangerous weapon or substance during emergency. G.S. 14-288.7.