Appeal by defendant from judgment entered 1 June 2001 by Judge
Russell J. Lanier, Jr., in New Hanover County Superior Court.
Heard in the Court of Appeals 29 October 2002.
Attorney General Roy Cooper, by Assistant Attorney General M.
Elizabeth Guzman, for the State.
Anderson & Hogston, L.L.P., by A. Griffin Anderson, for
defendant-appellant.
MARTIN, Judge.
Defendant appeals from a judgment entered upon his conviction
by a jury of simple assault, a Class 2 misdemeanor, upon Michael
Allred (“Allred”). The evidence at trial tended to show that
defendant and Allred lived on McCullock Lane, a narrow unpaved road
in Wilmington, N.C., which provided access to three residences. In
order to reach his residence, it was necessary for defendant to
pass in front of Allred's residence. Prior to 26 August 2000,
Allred had complained to defendant, and to defendant's landlord, on
several occasions concerning the speed at which defendant and his
guests drove on McCullock Lane. There was also evidence that, on
previous occasions, Allred had threatened defendant and some of his
family members and had used his automobile to block McCullock Lanein an effort to get them to slow their speed.
On the evening of 26 August and the early morning hours of 27
August 2000, Allred hosted a party at his home, during which he
consumed several beers. At approximately 3:00 a.m., Allred and
several other people were in the front yard of Allred's residence
when defendant, returning to his home, drove past in a white
Chevrolet Tahoe. Defendant had two friends in the Tahoe; he was
followed by two more friends in another vehicle. As defendant
drove past the Allred residence, one of the men in the Allred yard
yelled, “Slow the f___ down!” Defendant stopped the Tahoe, and the
following car also stopped.
The State offered evidence tending to show that defendant got
out of the Tahoe, went directly to Allred, and punched him in the
face, causing him to fall. The evidence also tended to show that
defendant and two others then punched Allred in the back of the
head and kept him on the ground, while the other members of
defendant's group kept Allred's family members and guest from
assisting him.
In contrast, defendant's evidence tended to show that after he
got out of the Tahoe, Allred came across his yard toward defendant
yelling, “What the f___ is going on here?” Defendant testified
that he remained on McCullock Lane and that Allred came into the
road. As Allred got very close to him, defendant told him,
“[p]lease do not get in my face,” and took a step back and raised
his hand to keep defendant from running into his body. Allred ran
into his hands and, due to his intoxication, fell to the ground. Defendants' friends prevented Allred from getting back to his feet.
The police were called and arrived after the physical
altercation had ended. No arrests were made. The following
morning, Allred obtained a warrant charging defendant with simple
assault.
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By his only assignment of error, defendant contends the trial
court committed reversible error by denying his motion to instruct
the jury with respect to self-defense. The trial court denied the
request, noting:
The Court denied that motion because [sic] the
fact that the clear evidence from the
Defendant himself showed that he was the
aggressor. He voluntarily entered into the
situation. And there was no evidence he
attempted to abandon the fight or notify the
opponent that he was doing so.
A defendant is entitled to an instruction on self-defense if
there is evidence that would support an inference that he acted in
self-defense.
See State v. Allred, 129 N.C. App. 232, 498 S.E.2d
204 (1998). In considering a motion to include instructions on a
particular defense, the trial court must view the facts in the
light most favorable to defendant, resolving any contradictions in
the evidence in his favor.
See State v. Moore, 111 N.C. App. 649,
432 S.E.2d 887 (1993);
State v. Blackmon, 38 N.C. App. 620, 248
S.E.2d 456 (1978).
In terms of the substantive law, a person may use physical
force to defend himself from bodily harm or offensive physical
contact.
See Moore, 111 N.C. App. at 653, 432 S.E.2d at 889. However, in the case of a non-felonious assault, he must attempt to
exit the situation if at all possible.
See Allred, 129 N.C. App.
at 235, 498 S.E.2d at 206. A defendant may claim the affirmative
defense of self-defense only if he is without fault with respect to
the encounter.
See State v. Marsh, 293 N.C. 353, 237 S.E.2d 745
(1977). Where a defendant voluntarily enters into the situation
with the alleged victim, and does not abandon the fight, withdraw
from it, and give notice to the other party that he is doing so,
the doctrine of self-defense will not be available to him.
See id.
In this case, as there is no evidence that defendant attempted
to abandon the altercation or give notice to Allred of such an
intention, the outcome of his appeal depends on whether he
presented evidence that he was neither the aggressor nor even a
voluntary participant in the altercation.
In
State v. Moore,
supra, the Court held that a defendant was
entitled to an instruction on self-defense where he was attempting
to get in his car and leave the victim's home when the victim
charged at him. In
State v. Tann, 57
N.C. App. 527, 291 S.E.2d 824
(1982), where the victim and defendant had an altercation earlier
in the evening that had ended, and the victim later came up to him
in a public place and grabbed and pushed him, defendant was said
not to have provoked the later altercation.
On the other hand, in cases where the evidence indicated that
the defendant came to the victim, such that there would have been
no altercation had he stayed away or left the area, it has
generally been held that the defendant is not entitled to aninstruction on self-defense. In
State v. Brooks, 37 N.C. App. 206,
245 S.E.2d 564 (1978), where the defendant affirmatively placed
himself in the path of the victim, knowing that either he or the
victim were likely to end up using physical force, the court
affirmed the trial court's denial of defendant's motion for an
instruction on self-defense. In
State v. Hall, 89 N.C. App. 491,
366 S.E.2d 527 (1988), the court held that defendant was not
entitled to an instruction on self-defense where he had reason to
believe that violence would occur if he approached the victim, but
he nevertheless did not retreat and even armed himself before going
to confront the victim.
In the present case, the evidence, even when considered in the
light most favorable to defendant, shows that defendant was not
without fault in creating the situation from which the charge
against him arises. With knowledge of Allred's previous complaints
and threats concerning the speed at which he drove on McCullock
Lane, as well as the circumstances then extant, defendant chose to
stop his car and address in person the obscenities which were
shouted at him, rather than continue on to his home and deal with
the issue when emotions had cooled. Thus, he voluntarily entered
into the situation and made no attempt to leave it or indicate to
Allred that he was doing so. The trial court did not err in
denying defendant's motion for an instruction on self-defense.
No error.
Judges GREENE and BRYANT concur.
Report per Rule 30(e).
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