STATE OF NORTH CAROLINA
v
.
JAMES MARVIN NAPIER, SR.
Attorney General Roy Cooper, by Special Deputy Attorney
General Hal F. Askins, for the State.
Noell P. Tin for defendant-appellant.
EAGLES, Chief Judge.
James Marvin Napier, Sr., (“defendant”) appeals from the trial
court's judgment entered on a jury verdict finding him guilty of
possession of a firearm by a felon. On appeal, defendant's sole
assignment of error is that the trial court erred in denying his
request for a jury instruction stating that justification is a
defense for possession of a firearm by a felon. After careful
review of the record, briefs, and arguments of counsel, we find no
error.
The evidence tends to show the following. Defendant, a
convicted felon, was involved in an on-going feud with his
neighbor, Robert Ford, and his neighbor's son, Brandon (“Brad”)
Ford. On or about 30 June 1999, Brad Ford began shooting a shotgun
in the air over defendant's property. During the next few days,Brad Ford continued to shoot over defendant's property. At
approximately 8:00 p.m. on 3 July 1999, defendant, with a holstered
9 millimeter handgun attached to his hip, walked across the street
to Robert Ford's premises. Neither Robert Ford nor Brad Ford was
armed at the time.
Once defendant arrived on Robert Ford's premises, defendant
“walked up to [Robert Ford and Brad Ford]” and admittedly stated
“[i]f I'm bothering y'all with this gun or I'm scaring you or
defending [sic] y'all with this, I'll take it back to the house.”
Defendant and Robert Ford then discussed the neighbor's situation.
Brad Ford left the two men in the yard and entered the residence.
After several hours, the conversation between defendant and Robert
Ford escalated into a physical altercation. Upon seeing the
altercation, Brad Ford came out of the residence and joined the
fight. Eventually, someone called 9-1-1 and law enforcement
officers arrived on the scene. After the officers restored order
and left the scene, defendant fired a gun from his property and hit
Brad Ford in the arm.
Defendant was tried before a jury during the 13 December 1999
Criminal Session of Richmond County Superior Court on charges of
(1) discharging a firearm into occupied property, (2) assault with
a deadly weapon with intent to kill inflicting serious injury, (3)
conspiracy to discharge a firearm into occupied property, (4)
conspiracy to commit an assault with a deadly weapon, (5)
possession of a firearm by a felon on 4 July 1999, and (6)
possession of a firearm by a felon on 3 July 1999. At theconclusion of the trial, the jury deadlocked on the first two
charges, and the trial court declared a mistrial as to those
counts. Additionally, the jury found defendant not guilty on the
conspiracy and the 4 July 1999 possession charges, and the jury
found defendant guilty of the 3 July 1999 possession of a firearm
by a felon charge. The trial court entered judgment and sentenced
defendant to a term of imprisonment of 25 to 30 months. Defendant
appeals.
On appeal, defendant argues that the trial court abused its
discretion in denying his request for a jury instruction on
justification as a defense to the charge of possession of a firearm
by a felon. We disagree.
In North Carolina, requests for special jury instructions are
allowable pursuant to G.S. §§ 1-181 and 1A-1, Rule 51(b). It is
well settled that the trial court must give the instructions
requested, at least in substance, if they are proper and supported
by the evidence. See Roberts v. Young, 120 N.C. App. 720, 726, 464
S.E.2d 78, 83 (1995). “The proffered instruction must . . .
contain a correct legal request and be pertinent to the evidence
and the issues of the case.” State v. Scales, 28 N.C. App. 509,
513, 221 S.E.2d 898, 901 (1976). “However, the trial court may
exercise discretion to refuse instructions based on erroneous
statements of the law.” Roberts, 120 N.C. App. at 726, 464 S.E.2d
at 83 (citation omitted).
Here, defendant was charged with possession of a firearm by a
felon in violation of G.S. § 14-415.1. Pursuant to § 14-415.1(a),
it is unlawful “for any person who has been convicted of a felony
to purchase, own, possess, or have in his custody, care, or control
any handgun or other firearm with a barrel length of less than 18
inches or an overall length of less than 26 inches . . . .” An
exception to this offense exists for a felon who possesses a
firearm “within his own home or on his lawful place of business.”
G.S. § 14-415.1(a). In creating this exception, the legislature
clearly expressed its intent to limit its applicability to the
confines and privacy of the convicted felon's own premises, over
which he has dominion and control to the exclusion of the public.
See State v. McNeill, 78 N.C. App. 514, 516, 337 S.E.2d 172, 173
(1985). Here, defendant was not within his own premises. Thus,
defendant's case does not fit within this exception.
At trial, defendant requested an instruction on justification,
and the court denied the request. We note that the courts of this
State have not recognized justification as a defense to a charge of
possession of a firearm by a felon. However, North Carolina has
recognized the defense of necessity in limited circumstances. See
State v. Thomas, 103 N.C. App. 264, 405 S.E.2d 214 (1991).
“Necessity excuses otherwise criminal behavior which was reasonably
necessary to protect life, limb, or health, and where no other
acceptable choice was available.” State v. Haywood, 144 N.C. App.
223, 234-35, 550 S.E.2d 38, 45, disc. review denied, 354 N.C. 72,
553 S.E.2d 206 (2001). Nevertheless, we are unable to find anycase law in our State supporting the proposition that necessity is
available as a defense to a charge of possession of a firearm by a
felon. In fact, defendant concedes that “[n]o reported opinions
from this state specifically address the application of the
necessity defense to possession of a firearm by a convicted felon.”
Accordingly, defendant asks this Court to expand the necessity
defense and “adopt the test for justification as set out by the
Eleventh Circuit” in U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir.),
cert. denied, 530 U.S. 1264, 147 L.Ed.2d 988 (2000). Under the
test set out in Deleveaux, a defendant must show four elements to
establish justification as a defense to a charge of possession of
a firearm by a felon:
(1) that the defendant was under unlawful and
present, imminent, and impending threat of
death or serious bodily injury;
(2) that the defendant did not negligently or
recklessly place himself in a situation where
he would be forced to engage in criminal
conduct;
(3) that the defendant had no reasonable legal
alternative to violating the law; and
(4) that there was a direct causal
relationship between the criminal action and
the avoidance of the threatened harm.
Deleveaux, 205 F.3d at 1297. Significantly, we note that the
Deleveaux court limited the application of the justification
defense to 18 U.S.C. § 922(g)(1) cases (federal statute for
possession of a firearm by a felon) in “only extraordinary
circumstances.” Id. Assuming, without deciding, for purposes of this appeal that
the Deleveaux rationale applies in North Carolina, the evidence
here does not support a conclusion that defendant was under a
present or imminent threat of death or injury. Regardless of the
evidence of Brad Ford's drug and alcohol use, Brad Ford's threats,
and Brad Ford's recent shooting over defendant's property, the
evidence shows that defendant, while armed, voluntarily walked
across the street and onto Robert Ford's premises; defendant asked
Robert Ford and Brad Ford if they wanted him to take the gun home;
and defendant, while armed, stayed on Robert Ford's premises for
several hours talking to Robert Ford before the fight ensued.
Without ruling on the general availability of the
justification defense in possession of a firearm by a felon cases
in North Carolina, we conclude that under the facts of this case
defendant was not entitled to a justification instruction. See
U.S. v. Crittendon, 883 F.2d 326 (4th Cir. 1989). Since the
evidence here does not support the justification instruction, the
trial court did not abuse its discretion in denying defendant's
request.
In sum, we conclude that defendant received a fair trial free
from prejudicial error.
No error.
Judges CAMPBELL and SMITH concur.
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