Opinion
No. 07-420.
Filed 17 June 2008. This case not for publication.
Mecklenburg County Nos. 05 CRS 225342, 05 CRS 225343.
Appeal by defendant from judgments entered 21 September 2006 by Judge Nathaniel J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 16 October 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General William H. Borden, for the State. Terry W. Alford for defendant-appellant.
Defendant Scotty Lenwood Jones appeals from his convictions of assault with a deadly weapon inflicting serious injury and discharging a firearm into an occupied vehicle. Defendant primarily argues that the trial court erred in denying his motion to dismiss because the State failed to prove defendant did not act in self-defense. When, however, the evidence is viewed in the light most favorable to the State — as is required in reviewing the denial of a motion to dismiss — the record contains sufficient evidence to allow a reasonable juror to find that defendant was not in danger of death or bodily injury and, in any event, was the aggressor in the confrontation. The trial court, therefore, properly denied the motion to dismiss.
Facts
The State's evidence tended to show the following facts. In March 2005, Angelo Culbreth loaned defendant's girlfriend, Caprice Bird, $2,000.00 that defendant agreed to help her repay. The money was, however, never repaid.
On 30 May 2005, Culbreth went to pick up his niece to take her to a cookout. As Culbreth turned onto the street on which his niece lived, defendant was driving down the same street in the opposite direction. When defendant saw Culbreth, he turned around and pulled behind Culbreth's car.
After Culbreth parked, defendant got out of his car and approached Culbreth. Defendant and Culbreth "had some words" for about eight minutes. Culbreth saw defendant's gun and got back in his car and put the car in gear in an effort to leave. Defendant walked to the passenger side of Culbreth's car, reached into the car in front of Culbreth's niece, and shot Culbreth in his knee and finger. Culbreth testified he was not in possession of a gun on the day of the shooting and denied ever threatening defendant. As a result of the shooting, Culbreth permanently lost his "little finger" and had to go to therapy for six months for his hand and knee.
On 13 June 2005, defendant was indicted for assault with a deadly weapon with intent to kill inflicting serious injury and with discharging a firearm into occupied property. On 20 January 2006, defendant filed notice of intent to use self-defense as a defense to the charges against him. Defendant's trial began on 18 September 2006 in the Superior Court of Mecklenburg County. As an initial matter, the trial court granted the State's motion to amend the charge of assault with intent to kill inflicting serious injury to assault with a deadly weapon inflicting serious injury.
At trial, defendant presented evidence tending to show the following. Defendant was not aware that Culbreth had loaned Caprice Bird money, and he did not agree to help repay the money. In May 2005, Cameron Jones, Caprice Bird's son, told defendant that Culbreth had threatened to shoot defendant's kneecaps so that defendant would not be able to play semi-professional football anymore. On the morning of 30 May 2005, defendant also received a phone call from a friend who warned defendant that Culbreth had told her that he was going to "shoot up" defendant's house where his wife and children lived.
During the afternoon of 30 May 2005, defendant went to pick up Cameron Jones to take him to a football game. As defendant was leaving Jones' house, Culbreth turned onto the street on which Jones lived. Defendant waited at his car until Culbreth finished a phone conversation. After completing the phone call, Culbreth walked over to defendant's car, and the two of them began talking. When defendant asked Culbreth about the threats, Culbreth initially denied making them. As defendant began calling his friend to confirm the threats, Culbreth admitted making the threats and then informed defendant that he had a "tool" in the trunk of his car. Defendant understood "tool" to mean a gun. When defendant saw the trunk of Culbreth's car move followed by Culbreth's heading toward the driver's seat of Culbreth's car, defendant unholstered his gun, fired two shots at Culbreth's car, got into his own car, and drove off.
On 20 September 2006, the jury found defendant guilty of (1) assault with a deadly weapon inflicting serious injury and (2) discharging a firearm into occupied property. The trial court sentenced defendant to a term of 25 to 39 months imprisonment for the assault conviction. With respect to the conviction of discharging a firearm, the trial court sentenced defendant to a term of 25 to 39 months, which the court suspended. The court then imposed a term of 60 months of supervised probation, including an eight-month active term commencing at the conclusion of the assault sentence as a special condition of probation. Defendant timely appealed to this Court.
Discussion
As a preliminary matter, we note that at the end of each substantive argument presented by defendant in his brief, defendant appends a constitutional basis for his contentions. None of these constitutional arguments was raised below. It is well established that "constitutional error will not be considered for the first time on appeal." State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005). Therefore, defendant's constitutionally-based arguments are not properly before us, and we do not address them.
I
Turning to defendant's non-constitutional assignments of error, defendant first contends that the trial court erred by excluding defendant's testimony regarding a threat made by Culbreth. During voir dire examination, defendant testified that a week prior to the shooting, Caprice Bird told him that Culbreth's wife had called her and told her that defendant should not come over because Culbreth had a gun and was going to shoot defendant. The trial court excluded this evidence as inadmissible hearsay and, alternatively, under Rule 403 of the Rules of Evidence.
We need not address defendants' arguments that the evidence was admissible because defendant has failed to show prejudice from any error. Under N.C. Gen. Stat. § 15A-1443(a) (2007), the defendant bears the burden of establishing that "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached" by the jury. See also State v. Barrow, 276 N.C. 381, 388, 172 S.E.2d 512, 517 (1970) ("The admission of evidence, even though technically incompetent, will not be held prejudicial unless it is made to appear that defendant was prejudiced thereby and that a different result would have likely ensued had the evidence been excluded.").
Although evidence of Culbreth's wife's telephone conversation was excluded, the trial court allowed testimony regarding two other threats made directly by Culbreth, including a threat made the very morning of the shooting. In addition, defendant, in his testimony, referenced "three previous threats," and an investigating officer stated that defendant had said that he "was told by several people . . . that [Culbreth] was going to shoot his kneecaps out[.]" Defendant does not explain in what way the excluded testimony might reasonably have made a difference to the jury's verdict in light of the other admitted evidence of threats by Culbreth against defendant. The threats that the jury was allowed to hear were just as recent as or more recent than the omitted threat; they were just as violent; and they involved use of a gun. Without a showing by defendant that the details of this third threat would have added something to the other evidence of threats that could have made a difference to the jury, we cannot find prejudice. Compare State v. Ransome, 342 N.C. 847, 853-54, 467 S.E.2d 404, 408-09 (1996) (finding prejudicial error when admitted threats were "of lesser import than" excluded threats).
II
Defendant next contends that the trial court committed prejudicial error by denying his motion to dismiss because the State failed to prove that defendant did not act in self-defense. When considering a motion to dismiss, the trial court must determine whether the State presented substantial evidence of each element of the crime and of the defendant's being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "`Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). The evidence must be viewed "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, 451 S.E.2d 211, 223 (1994), cert denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).
The State bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense when there is some evidence in the case that he did. State v. Herbin, 298 N.C. 441, 445, 259 S.E.2d 263, 267 (1979). To survive a motion to dismiss, the State must, therefore, present substantial evidence that, when taken in the light most favorable to the State, is sufficient to convince a rational trier of fact that defendant did not act in self-defense. State v. Hamilton, 77 N.C. App. 506, 513, 335 S.E.2d 506, 511 (1985), disc. review denied, 315 N.C. 593, 341 S.E.2d 33 (1986).
Our Supreme Court has set forth the law of self-defense as follows:
The right to act in self-defense rests upon necessity, real or apparent, and a person may use such force as is necessary or apparently necessary to save himself from death or great bodily harm in the lawful exercise of his right of self-defense. A person may exercise such force if he believes it to be necessary and has reasonable grounds for such belief. The reasonableness of his belief is to be determined by the jury from the facts and circumstances as they appeared to the accused at the time. However, the right of self-defense is only available to a person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so.
State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977) (internal citations omitted).
The record in this case contains sufficient evidence to raise a question for the jury whether defendant's use of force was apparently necessary to save him from death or great bodily harm. Viewing the evidence in the light most favorable to the State, defendant approached Culbreth, but when Culbreth saw defendant's gun, he got into his car in an effort to leave. Defendant then walked to the passenger side of Culbreth's car, reached in, and shot Culbreth in front of Culbreth's niece. Defendant never saw Culbreth with an actual weapon and, according to Culbreth, he had no gun. This evidence would allow a reasonable juror to find that defendant could not have reasonably believed he was in danger of death or great bodily harm.
Further, the record contains substantial evidence that defendant was the aggressor. The evidence favorable to the State indicates that defendant, when he saw Culbreth, turned his car around, parked behind Culbreth's car, and approached Culbreth to discuss the threats he had heard. When Culbreth tried to leave, defendant shot him. Defendant thus initiated and escalated the confrontation. See State v. Blackwell, 163 N.C. App. 12, 17, 592 S.E.2d 701, 705 (finding that evidence that defendant left the scene and returned with a shotgun was sufficient to establish that he entered into confrontation willingly), cert. denied, 358 N.C. 378, 597 S.E.2d 768 (2004); State v. Hall, 89 N.C. App. 491, 494, 366 S.E.2d 527, 528-29 (1988) (holding that defendant voluntarily and aggressively took himself into situation when, after defendant was told victim had a knife and wanted to hurt defendant, defendant went back to his car, refused his wife's request to stay in the car, and approached victim with a shotgun; defendant shot victim after victim had started to leave).
Defendant's argument in support of his claim that the motion to dismiss should have been allowed views the facts in the light most favorable to him — contrary to the standard applicable to a motion to dismiss. In deciding a motion to dismiss, the court considers only the State's evidence and such evidence of the defendant that "`explains, clarifies or is not inconsistent with the State's evidence.'" State v. Barnett, 141 N.C. App. 378, 382-83, 540 S.E.2d 423, 427 (2000) (quoting State v. Walker, 332 N.C. 520, 530, 422 S.E.2d 716, 722 (1992), cert. denied, 508 U.S. 919, 124 L. Ed. 2d 271, 113 S. Ct. 2364 (1993)), appeal dismissed and disc. review denied, 353 N.C. 527, 549 S.E.2d 552, aff'd per curiam, 354 N.C. 350, 554 S.E.2d 644 (2001). We, therefore, hold that the trial court properly denied defendant's motion to dismiss.
III
Lastly, defendant contends that the trial court erred when it denied his request for a jury instruction informing the jury that he had no duty to retreat. When there is evidence that "`a felonious assault was being made upon a defendant without fault on his part, it is error for the court to fail to submit the question and to charge upon defendant's right to stand his ground without retreating.'" State v. Browning, 28 N.C. App. 376, 380, 221 S.E.2d 375, 378 (1976) (quoting 4 Strong, N.C. Index 2d, Homicide, § 28, pp. 248, 249).
As a general principle, when a person is assaulted with non-deadly force, he may "not stand his ground and kill his adversary, if there is any way of escape open to him, although he is permitted to repel force by force and give blow for blow." State v. Pearson, 288 N.C. 34, 39, 215 S.E.2d 598, 602-03 (1975). If, however, the assault is felonious, the person "is under no obligation to retreat, but may stand his ground and kill his adversary, if need be." Id. at 39-40, 215 S.E.2d at 603. An assault is felonious if "it is done with the intent to kill or at least to inflict serious bodily injuries." State v. Frizzelle, 243 N.C. 49, 50, 89 S.E.2d 725, 726 (1955).
Here, defendant was not entitled to an instruction regarding the lack of a duty to retreat because he was never assaulted, feloniously or otherwise. According to defendant, Culbreth got angry and indicated he had a "tool" in the car trunk — a statement that defendant interpreted as meaning he had a gun in the trunk. Defendant testified that Culbreth then went over to his car, and defendant saw the trunk move. According to defendant, Culbreth then moved quickly to the driver's seat of the car, while defendant remained on the passenger side of the car. Defendant testified regarding why he shot: "I don't see what he gets out of the trunk, but because of the threats, I thought my life was in danger. . . . I don't know whether to run or what to do. So my first instinct was to unholster my weapon. As he is moving, I fired two shots." "An assault is a show of violence causing a reasonable apprehension of immediate bodily harm, an intentional offer or attempt by force or violence to do injury to the person of another." State v. McAvoy, 331 N.C. 583, 595, 417 S.E.2d 489, 497 (1992). Defendant never presented evidence of a show of violence by Culbreth. The most that can be inferred from the evidence is that defendant was afraid that Culbreth would assault him using a gun. Such evidence is not sufficient to warrant a no-duty-to-retreat instruction. See id. (holding that evidence did not support instruction on no duty to retreat when victim threatened to kill defendant, victim reached back to grab what defendant thought was a weapon, and defendant shot victim, because "[t]he only assault being committed at the time of the shooting was by the defendant upon the victim by pointing the gun at the victim's head"). The trial court, therefore, properly declined to give the requested instruction.
No error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).