BY CLARKE MORRISON • NOVEMBER 20, 2009
ASHEVILLE — A former Asheville firefighter will spend 120 days in jail for shooting at a bicyclist, narrowly missing his head with a bullet that pierced the man’s helmet.
Charles Alexander Diez, 42, pleaded guilty Thursday to assault with a deadly weapon with intent to kill, but testified during his sentencing hearing that he only fired a warning shot and didn’t intend to hurt Alan Ray Simons.
“I was the one who felt truly, truly threatened,” Diez told the court. “It was not my intention to shoot him.”
Simons described being confronted by the 17-year Fire Department veteran on the morning of July 26 as he was riding his bike along Tunnel Road with his 4-year-old son in a seat on the back and his wife on another bike.
He said Diez yelled at him from his car, claiming he was putting the boy’s life in danger by riding on the busy roadway.
“We were out for an enjoyable ride, minding our own business,” Simons said. “At any point, he could have left.
“When I got to his door, the gun was pointing at my chest. I turned to walk away, (and) the gun went off. He chose to pull the trigger.”
Superior Court Judge James Downs sentenced Diez to 15-27 months in prison, with all but four months suspended for 30 months. If he runs afoul of the law during that 30 months, the full sentence could be imposed. Diez will be subject to a curfew after his release and must complete an anger management course. He also was ordered to pay Simons $1,200 restitution to cover medical treatments for damage to his eardrum.
The presumptive sentence for someone convicted of assault with a deadly weapon with intent to kill is 20-39 months under state sentencing guidelines.
Downs ruled that mitigating factors present for sentencing purposes in this case include that Diez has good character, served in the military, supports his family financially, has a positive employment history and has a good support system in the community. The judge found no aggravating factors, and Diez had no criminal record.
Simons said after the hearing that he and his wife had hoped for a harsher sentence.
“We think the sentence is light, but we expected it coming in… because of his outstanding career as a fireman.”
Assistant District Attorney Chris Hess, who handled the prosecution, said he had no quarrel with the sentence handed to Diez.
“The outcome was fair,” he said. “We respect Judge Down’s decision.
“The main thing is Mr. Simons and his family were not harmed. We’re just happy that his family has him around.”
Diez had about 30 supporters in the courtroom, and two of his former Fire Department supervisors testified on his behalf. Capt. Keith Gillespie described him as a fair, honest and loyal firefighter who wasn’t threatening or hostile.
“He’s been a top-notch employee,” Gillespie said. “I couldn’t ask for any better.”
Diez maintained that Simons reached into his car and grabbed him, a claim Simons denied.
“I wanted him to release my shirt and back away,” Diez told the judge. “It was a warning shot.”
Defense attorney Jack Stewart asked the judge for leniency.
“He’s a hard-working, decent man who used terrible judgment,” Stewart said. “He accepts responsibility for his actions. I think he is sincerely remorseful.”
Simons and others who witnessed the incident took down Diez’s license plate number and called police. Deputies found Diez at his home on Rowland Road in Swannanoa.
Police initially charged Diez with attempted first-degree murder after consulting District Attorney Ron Moore. But a grand jury declined to indict him on that charge, instead opting for the lesser assault charge. A first-degree attempted murder conviction requires a trial jury to find the elements of premeditation and deliberation.
City officials initially put Diez on leave with pay, but he lost his job Aug. 10.