An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-115

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2003

STATE OF NORTH CAROLINA

v .                             Stanly County
                                No. 00 CRS 3499
DEJUAN MARCUS WALL,
        Defendant.

    Appeal by defendant from judgment entered 29 May 2001 by Judge Kimberly Susan Taylor in Stanly County Superior Court. Heard in the Court of Appeals 21 January 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Diane A. Reeves, for the State.

    Noell P. Tin for defendant-appellant.

    EAGLES, Chief Judge.

    Defendant, Dejuan Marcus Wall, appeals from judgment entered in Stanly County Superior Court upon a jury verdict convicting him of voluntary manslaughter.
    The State's evidence tended to establish the following: On 10 May 2000, at approximately 6:30 p.m., Timothy Ridenhour (“Ridenhour”) was in the “Amhurst Gardens” section of Albemarle, North Carolina, with several of his friends. Ridenhour “waved [defendant] down” as defendant drove through the area. When defendant stopped, Ridenhour confronted defendant about speeding “down [his] street.” A verbal altercation between defendant andRidenhour followed, however, Ridenhour's friends kept the two men separated. The confrontation ended when defendant drove away.
    Ridenhour encountered defendant again sometime after 10:30 p.m. that same night, in the parking lot of a “Servco” store located on Main Street in Albemarle, North Carolina. Ridenhour had been driven to the store by one of his friends, Jamie Polk (“Polk”). Defendant taunted Ridenhour as he passed by the Jeep Ridenhour was riding in and the two again “had words.” However, Polk prevented the confrontation from escalating into a physical altercation. Once Polk “calmed [Ridenhour] down,” the two left the parking lot in Polk's jeep. Defendant left shortly thereafter and began to pursue Polk and Ridenhour. Once defendant caught up to Polk's jeep, he began shooting at Polk and Ridenhour. Polk eluded defendant by turning onto a side street and returning to Ridenhour's house on Davis Street. Approximately thirty seconds after Polk and Ridenhour arrived at Ridenhour's house, defendant turned the corner in his Mustang and drove up Davis Street in the direction of Ridenhour's house. When defendant was approximately three or four houses away, he turned off his car's headlights and began shooting in the direction of Ridenhour's house. Ridenhour, who had been standing in the yard, sustained a fatal gunshot wound to the chest.
    Defendant contended that the killing was an act of self- defense. Defendant argued that he was pursued through the streets of Albemarle and shot at from two separate sport utility vehicles (“SUV”): One SUV was occupied by Ridenhour and one of his friends;the other was occupied by another group of Ridenhour's friends. At some point during the chase, one SUV stopped while the other continued chasing and shooting at defendant. When defendant drove down Davis Street, he passed by the first SUV, which was parked on the side of the road. The occupants, who were now standing beside of the SUV, began shooting at defendant as he passed by. Defendant fired in the direction of the individuals standing near the parked jeep and drove away. Defendant's evidence contradicted the account given by the State's witnesses.
    Sherman Smith testified that he was with defendant in “Amhurst” during defendant's first confrontation with Ridenhour. According to Smith, Pedro Chambers actually “flagged” him and defendant down as they drove through Amhurst. Moreover, it was Chambers who initially argued with defendant about defendant's driving. Later, Ridenhour “jumped” into the argument, prompting Smith and defendant to leave and begin walking back to defendant's car. Ridenhour pursued defendant and spat in defendant's face as he was getting into his car. Ridenhour then walked over to Chambers' jeep and retrieved a gun. In response, defendant “popped the trunk” of his Mustang in order to retrieve his own gun, but Smith convinced defendant to leave before anything else happened.
    Jimmy Parker, a Servco employee, testified that defendant came into the store and paid for gas on 10 May 2000. A short time later, while defendant was pumping his gas, an argument erupted in the store's parking lot involving defendant, Ridenhour and Polk. Parker then went outside and threatened to call the police. This causedPolk and Ridenhour to get into Polk's Jeep and begin to leave. However, Polk pulled forward only a few feet before stopping and getting back out of the jeep “with a gun.” At this point, defendant drove out of the parking lot. Polk and Ridenhour followed defendant. Parker testified that he then heard several gunshots, but could not tell where the shots were coming from.
    Tiffany Simmons, a friend and neighbor of the Ridenhours, also testified. Simmons recalled that just before Ridenhour was shot, “a Mustang came flying down [Davis] street,” pursued by a Jeep. The occupants of the Jeep were shooting at the Mustang. Simmons also recalled that there were two people standing beside a second Jeep that was parked near Ridenhour's house. Simmons testified that these individuals began shooting at the Mustang as it passed and continued down the street. Once the individuals in the yard started shooting, “the Mustang [shot] back.”
    Defendant also sought to introduce testimony from three police officers and an inmate in the Stanly County Jail. During voir dire, the witnesses testified to Ridenhour's reputation for violence and aggression in the community, as well as to specific instances of Ridenhour's violent conduct. Following voir dire, the trial court ruled that defendant could “offer opinion testimony as to the character of the victim for violence, for violent behavior, whether or not known to the defendant,” but could not “offer evidence of specific acts of misconduct or bad acts unless there [wa]s evidence that these acts were known to the defendant.”    The trial court instructed the jury on first-degree murder, second-degree murder and voluntary manslaughter. The defendant was found guilty of voluntary manslaughter and was sentenced to imprisonment for a term of 117 to 150 months. Defendant appeals.
    The sole issue presented on appeal is whether the trial court improperly excluded evidence of specific instances of the victim's violent conduct. Defendant argues that “evidence of specific instances of a victim's character, 'known or unknown to the defendant at the time of the crime,' may be relevant in establishing that the victim was the aggressor when defendant claims self-defense.” State v. Ray, 125 N.C. App. 721, 726, 482 S.E.2d 755, 758 (1997)(citation omitted). Accordingly, defendant contends the trial court erroneously limited his methods of proving the victim's violent character to testimony in the form of opinion and reputation. We disagree.
    As a general rule, “[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on particular occasion . . . .” N.C. Gen. Stat. § 8C-1, Rule 404(a) (1999). Notwithstanding the general rule, there are certain instances when evidence of a pertinent trait of character are admissible. When permitted, character evidence is susceptible to being used in two fundamentally different ways. First, “[c]haracter may itself be an element of a crime, claim, or defense. A situation of this kind is commonly referred to as 'character in issue.'” N.C. Gen. Stat. § 8C-1, Rule 404(a) official commentary (1999). This use of characteris rare in the criminal context. Illustrations of this particular use of character include “the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction, or the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver.” Id. Second, character evidence may also be “used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. This use of character is often described as 'circumstantial.'” Id. It is this use of character that is most often employed in the criminal context. Illustrations of 'circumstantial' use of character include: “evidence of a violent disposition to prove that the person was the aggressor in an affray, or evidence of honesty in disproof of a charge of theft.” Id.
    One exception to the general rule excluding character evidence is Rule 404(a)(2). This rule allows an accused to offer “[e]vidence of a pertinent trait of character of the victim of the crime . . . .” N.C. Gen. Stat. § 8C-1, Rule 404(a)(2) (1999). Where a defendant argues he acted in self-defense, evidence of the victim's character may be admissible to show: (1) that the defendant's fear or apprehension was reasonable; or (2) that the victim was the aggressor. Ray, 125 N.C. App. at 725, 482 S.E.2d at 758.
    When evidence of the victim's character is offered to prove the reasonableness of a defendant's fear or apprehension, proof may be made either by testimony as to reputation or in the form of opinion, State v. Watson, 338 N.C. 168, 187, 449 S.E.2d 694, 706(1994), cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569 (1995), overruled on other grounds, State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995), or through evidence of specific instances of the victim's conduct. State v. Shoemaker, 80 N.C. App. 95, 101, 341 S.E.2d 603, 607, disc. review denied, 317 N.C. 340, 346 S.E.2d 145 (1986). “Rule 404(a)(2), however, does not govern its admission. 'The purpose of such evidence is not to prove conduct by the victim, but to prove defendant's state of mind.'” Watson, 338 N.C. at 187, 449 S.E.2d at 706 (citation omitted). Under these circumstances the evidence is relevant and admissible only to the extent that defendant had knowledge of the opinion, reputation or conduct at the time of the killing. Id.; Shoemaker, 80 N.C. App. at 101, 341 S.E.2d at 607.
    Where evidence of the victim's character for violence is offered for the purpose of proving that the victim was the aggressor, the defendant “may present evidence of the victim's violent character, 'whether known or unknown to the defendant at the time of the crime.'” Watson, 338 N.C. at 188, 449 S.E.2d at 706 (citation omitted). Any evidence of violent character is relevant “'to shed some light upon who was the aggressor[,] since a violent man is more likely to be the aggressor than is a peaceable man.'” Id. at 187, 449 S.E.2d at 706 (citation omitted). However, “evidence of a violent disposition [offered] to prove that the person was the aggressor in an affray,” involves the circumstantial use of character evidence to prove “that the person acted on the occasion in question consistently with his character.” N.C. Gen.Stat. § 8C-1, Rule 404 official commentary (1999). Under these circumstances, Rule 404(a)(2) expressly governs admission of the evidence.
    “Once the admissibility of character evidence in some form is established under [Rule 404], reference must then be made to Rule 405 . . . in order to determine the appropriate method of proof.” Id. According to Rule 405: “In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.” N.C. Gen. Stat. § 8C-1, Rule 405(a) (1999). However, “evidence of specific instances of conduct is admissible when proving character only if character 'is an essential element of a charge, claim, or defense . . . .'” Shoemaker, 80 N.C. App. at 101, 341 S.E.2d 607 (quoting N.C.R. Evid. 405(b)).
    Here, at the time of Ridenhour's death, defendant was unaware of the prior specific instances of violent conduct committed by Ridenhour. Therefore, any testimony concerning those instances of conduct were irrelevant to defendant's state of mind at the time of Ridenhour's death. Since defendant could only offer the testimony as circumstantial evidence that Ridenhour was the aggressor, the trial court properly limited the methods of proof to testimony in the form of reputation and opinion.
    Defendant nevertheless argues that “evidence of [the victim's] prior acts of violence . . . constitute 'character or a trait of character of a person that is an essential element of . . . [the defense of self-defense,] where proof may also be made of specificinstances of his conduct,” pursuant to N.C.R. Evid. 405(b). We disagree.
    The defense of self-defense has four required elements. In order to assert the defense, the defendant must show that at the time of the killing:
        (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and

        (2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and

        (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and

        (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.

State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981).     In State v. Shoemaker, 80 N.C. App. 95, 341 S.E.2d 603 (1986), this Court said that “[i]n self-defense cases, the character of the victim for violence is relevant only as it bears upon the reasonableness of defendant's apprehension and use of force, which are essential elements of the defense of self-defense.” Id. at 101, 341 S.E.2d at 607. Defendant relies on this language as support for his position. However, we find defendant's reliance is misplaced.
    Although the victim's character for violence is relevant to establishing essential elements of the defense, this does not convert the victim's character into an essential element of the defense. We have already noted that “evidence of a violentdisposition to prove that the person was the aggressor in an affray” is an example of a “circumstantial” use of character evidence, not one where character is itself an element of a charge claim or defense. N.C. Gen. Stat. § 8C-1, Rule 404, official commentary (1999). “When character is used circumstantially . . . proof may be only by reputation and opinion.” N.C. Gen. Stat. § 8C- 1, Rule 405 official commentary (1999). Therefore, we conclude the trial court properly limited defendant's methods of proof to testimony in the form of reputation and opinion.
    Accordingly, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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