An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-565

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2003

STATE OF NORTH CAROLINA

v .                         Guilford County
                            No. 99 CRS 106802
JAMES CHARLES COX, JR.

    Appeal by defendant from judgment entered 7 November 2001 by Judge Clarence E. Horton, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 12 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General John P. Scherer, II, for the State.

    Paul T. Cleavenger for defendant.

    TYSON, Judge.

I. Background
    The State's evidence tended to show that on 25 October 1999, Demetrius Parker (“Parker”) tried to call his former girlfriend, Twanetta Gant (“Gant”) at her workplace. Parker did not reach Gant, but did speak with her supervisor, Taneka Parker (“Taneka”). Parker invited Taneka to come to his home without Gant. Taneka informed Gant about Parker's invitation. The women decided to meet and confront Parker at his house around 11:00 that evening.
    Taneka and Gant traveled in Taneka's vehicle to meet Parker at his home. Along the way, the women saw James Charles Cox, Jr. (“defendant”), a friend of Gant's brother. The women spoke to defendant, who was on his way to visit Gant's brother, and informed him that Gant's brother was not at home. Defendant decided to ridewith the women. Upon arrival at Parker's house, defendant remained in the car. Gant and Taneka met Parker on his porch. Parker and Gant argued, pushed and shoved each other before taking the argument inside Parker's house. Taneka stood at the doorway and watched.
    Parker left Gant in the front room of the house. While Parker was outside the room, Gant picked up a knife. Parker returned to the room with his cell phone and called 911 asking for help before someone was hurt. Parker and Gant continued the argument outside in the front yard. Taneka left the porch area and returned to her car. During the argument, Parker faced Gant in front of a tree, and blocked her from Taneka's car. According to defendant's brief, Parker threatened to kill Gant.
    Taneka tried to persuade defendant to remain in the car because she noticed he was upset. Defendant pushed Taneka out of the way and approached Parker. Defendant struck Parker on the right front side of his head, and fired shots at him. Some evidence was offered to show that a struggle may have ensued before the shots were fired. Defendant, Taneka, and Gant left the scene.
    Police officers discovered Parker to be dead on arrival due to injuries from a gunshot wound. No weapons were found inside Parker's house, in his front yard, or on his body. Neither Gant nor Taneka noticed a weapon in Parker's possession.
    On 4 November 1999, a warrant was issued that charged defendant with second degree murder. Defendant was arrested on 15 August 2000, and a grand jury returned a true bill of indictment on2 October 2000. On April 9 2001, an order for arrest of defendant was issued for the possession of a firearm by a felon and for being a habitual felon. Defendant was arrested and indicted on those charges. At trial on 6 December 2001, the jury found defendant guilty of possessing a firearm as a felon. On 7 December 2001, the jury found defendant guilty of voluntary manslaughter and to being a habitual felon based upon his stipulation to prior felonies. Defendant appeals.
II. Issues
    The issues on appeal are: (1) whether the trial court committed reversible error in failing to grant defendant's request for a jury instruction on defense of others, and (2) whether the trial court committed plain error by failing to state or refer to the underlying enhanced felony in the habitual felon indictment.
III. Defense of Others
    Defendant contends that the trial court erred when it refused to give a jury instruction on defense of others. Defendant argues that sufficient facts were in evidence to support the instruction.
    A trial court must “comprehensively instruct the jury on a defense to the charged crime when the evidence viewed in the light most favorable to the defendant reveals substantial evidence of each element of the defense.” State v. Ferguson, 140 N.C. App. 699, 706, 538 S.E.2d 217, 222 (2000), disc. review denied, 353 N.C. 386, 547 S.E.2d 25 (2001). “A person has the right to kill not only in his own self-defense but also in the defense of another.” State v. McKoy, 332 N.C. 639, 643, 422 S.E.2d 713, 716 (1992). “Aperson may lawfully do in another's defense, however, only what the other might lawfully do in his own defense.” Id. (citing State v. McLawhorn, 270 N.C. 622, 629, 155 S.E.2d 198, 204 (1967)). A defendant is entitled to an instruction on the defense of others when a jury could find from the evidence that it was reasonably necessary to use force in order to protect a third person from death or great bodily harm. See State v. Moses, 17 N.C. App. 115, 193 S.E.2d 288 (1972).
        Self defense completely excuses a defendant for the killing of another person if four conditions are met:

        (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. Maynor, 331 N.C. 695, 699, 417 S.E.2d 453, 455 (1992) (citations omitted). If only the first two elements of self defense are met, the defendant loses the right to perfect self defense but may nevertheless be entitled to imperfect self defense and in that case would be guilty of at least voluntary manslaughter. State v. Wilson, 304 N.C. 689, 285 S.E.2d 804 (1982).

State v. Wood, 149 N.C. App. 413, 418-19, 561 S.E.2d 304, 308 (2002), disc. review denied, 356 N.C. 175, 569 S.E.2d 280 (2002).    It is apparent from the jury's verdict of manslaughter and the trial court's instructions that the jury found defendant had adequate provocation to assault and kill Parker. A finding of imperfect self-defense or defense of others would have required the jury to give defendant the same verdict, but a finding of perfect self-defense or defense of others would have required a verdict of not guilty. McKoy, 332 N.C. at 643-44, 422 S.E.2d at 716.
    The State contends that defendant produced no evidence to support a reasonable belief of his need to use deadly force against Parker. Defendant relies more upon the speculation of Gant and Taneka and their reasonable beliefs to show he had a reasonable belief that the use of deadly force was required to defend Gant. At trial, Gant testified that Parker pinned her against a tree and would not let her leave, that Parker threatened her, and that Parker's posture indicated he had a weapon in his back pocket. Defendant did not testify at trial.
    No evidence shows that Parker had a weapon on his person when he argued with Gant in the front yard. Gant had picked up a knife while arguing inside the house. Neither Taneka nor Gant ever saw a weapon on Parker's person, and no weapon was found at the scene. No reasonable person in defendant's position would need to use deadly force in defending Taneka or Gant.
    The evidence supports a basis for a reasonable person in defendant's shoes to defend Gant with limited force. Because the jury could not have found perfect defense of others due to defendant's use of excessive deadly force, a verdict ofmanslaughter is appropriate. Error in failing to give jury instructions on substantive issues arising from the evidence has been held prejudicial error. See State v. Young, 324 N.C. 489, 492, 380 S.E.2d 94, 96 (1989) (questioning the principle cited in Stephenson and stating “we expressly disavow prior decisions of this Court to the extent that they state or imply that a verdict of first degree murder in such situations does not render the failure to give instructions on involuntary manslaughter, or errors made in giving such instructions, harmless.”); State v. Stephenson, 43 N.C. App. 323, 326, 258 S.E.2d 806, 808 (1979), disc. review denied, 299 N.C. 124, 262 S.E.2d 8 (1980). Because the conviction in this case would not change, regardless of the instruction, and there is overwhelming evidence of defendant's guilt, we hold that any error in failing to submit the jury instruction on defense of others to be harmless beyond a reasonable doubt.
IV. Habitual Felon Indictment
    Defendant assigns plain error to the lack of cross reference in the habitual felon indictment. Defendant contends that the omission of a cross reference on the habitual felon indictment to the felonies it sought to enhance was plain error.
    Plain error is a “fundamental error”, that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings”, or that “had a probable impact on the jury's finding that the defendant was guilty.” State v. Moore, 311 N.C. 442, 445, 319 S.E.2d 150, 152 (1984). Plain error analysis is appropriate in exceptional cases involving the improper admission of evidence orjury instructions. State v. Greene, 351 N.C. 562, 566, 528 S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 148 L. Ed. 2d 543 (2000). Plain error is not an appropriate standard in this case.
    Defendant's argument cannot prevail regardless of defendant's characterization of alleged error. Defendant's sole basis for error is the overruled opinion of State v. Hawkins, 110 N.C. App. 837, 431 S.E.2d 503, disc. review dismissed, 334 N.C. 624, 435 S.E.2d 345 (1993). Hawkins was overruled by our Supreme Court in State v. Cheek, 339 N.C. 725, 453 S.E.2d 862 (1995). The Supreme Court in Cheek stated, “[w]e agree with the State that a habitual felon indictment is not required to specifically refer to the predicate substantive felony.” Cheek at 727, 453 S.E.2d at 863. This assignment of error is overruled.
    No error.
    Judges MCCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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