Assault in the Presence of a Minor
Assault in the presence of a minor requires a person to commit an assault, assault and battery or affray inflicting serious injury or using a deadly weapon on a person whom the defendant has a personal relationship and in the presence of a minor.
While statue does not specifically define “assault,” common law creates a clear understanding of assault in North Carolina. According to State v. Roberts, 270 N.C. 655, 658 (1967), assault is any overt act or attempt or the unequivocal appearance of attempt, with force or violence, to immediately physically injury another person, with the show of force or menace of violence being sufficient to put a reasonable person in fear of immediate physical injury. In other words, assault is any action which shows force or violence and causes a reasonable person to fear for he/she will suffer immediate physical injury.
North Carolina also recognizes battery as a form of assault. According to State v. West, 146 N.C. App. 741, 744 (2001), battery includes the application of force, no matter how slight, directly or indirectly, to another. The most common example of a battery is one person hitting or punching another person. Since this form of assault includes an actual touching, fear from the receiving party is not necessary.
Assault in the presence of a minor differs from other forms of assault (such as simple assault or assault on a female) in that the assault must result in serious injury or include the use of a deadly weapon, there must be a personal relationship between the parties and the assault must occur in the presence of a minor. Personal relationship under the statute is defined and includes current or former spouses, persons of the opposite sex who live or have lived together, parties related as parents and children, parties with a child in common, current or former household members or persons of the opposite sex who are or have been in a dating relationship. Presence of a minor includes any time when a minor was in the position to observe the assault.
Assault in the presence of a minor is a class A1 misdemeanor under North Carolina General Statute 14-33(d). The maximum under the law is 150 days incarceration and a discretionary fine not limited by statute.