An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1139

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2003

STATE OF NORTH CAROLINA

         v.                                Halifax Coun ty
                                        No. 00CRS000553
CHRISTOPHER MARK LYLES
    

    Appeal by defendant from judgment entered 2 May 2002 by Judge Dwight L. Cranford in Halifax County Superior Court. Heard in the Court of Appeals 24 March 2003.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General William R. Miller, for the State.

    John T. Hall for defendant-appellant.

    HUNTER, Judge.

    Christopher Mark Lyles (“defendant”) was charged with possession of a firearm by a felon (00CRS000553) and carrying a concealed weapon (01CRS006281). A jury found defendant guilty of possession of a firearm by a felon, but acquitted him of carrying a concealed weapon. The trial court sentenced defendant to a suspended sentence of twelve to fifteen months imprisonment, and placed him on twenty-four months of supervised probation. Defendant appeals. We find no error.
    The State's evidence tends to show that at approximately 9:40 p.m. on the evening of 12 January 2000, officers of the Roanoke Rapids Police Department observed defendant walking away from thearea of a reported disturbance at 301 Quail Court Apartments. When officers stopped their car, defendant approached the car and advised one of the officers, Officer Jeff Cowan (“Officer Cowan”), that he had a weapon in his back pocket. A subsequent search of defendant yielded a large knife and a small Titan .25 caliber semiautomatic handgun, found in defendant's rear pants pockets. Without giving any names, defendant informed Officer Cowan that he had taken the handgun from one of the guys who had been fighting at 301 Quail Court Apartments. Records of the Halifax County Clerk of Court's Office showed that defendant was convicted of felony breaking and entering in 1991.
    At trial, defendant testified that he walked over to his friend Greg Boyd's (“Boyd”) house on the evening of 12 January 2000. After finding no one at Boyd's residence, defendant started to leave when Boyd approached, ranting and raving about somebody beating him up. Boyd stated that he was going back to get revenge, and asked defendant to go with him. Defendant stated that he told Boyd “to just sober up and forget it.” While defendant initially refused to go with Boyd, he subsequently decided to go to the 301 Quail Court location to calm the situation. When defendant arrived at the scene, the fight had spilled into Rick Washington's (“Washington”) yard. The person with whom Boyd was having the altercation was inside a neighboring apartment. Boyd, however, was determined to fight. Defendant testified that he observed Boyd, who was standing in Washington's yard, produce a knife and throw the weapon onto the ground. Boyd then produced a gun, and droppedit. Defendant picked up the knife, while Washington picked up the gun. Washington stated that he told Boyd that he was going to take the gun into his house, because the police had been called. Boyd insisted that Washington give defendant, his “'buddy,'” the gun. As a result, Washington gave defendant the gun, whereupon defendant left the scene as police began to arrive.
    On appeal, defendant argues only that the trial court committed plain error by failing to instruct the jury on the defense of legal justification. We disagree.
    As posited by defendant, although he did not object to the trial court's instruction to the jury prior to the jury retiring for deliberations as required by N.C.R. App. P. 10(b)(2), appellate courts will review alleged errors in jury instructions under the plain error doctrine. See N.C.R. App. P. 10(c)(4); State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). It is well settled however, that plain error review is to be applied cautiously and only in exceptional cases. State v. Davis, 349 N.C. 1, 29, 506 S.E.2d 455, 470 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999). In order to prevail under the plain error rule, “'[d]efendant has the burden of showing . . . (i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.'” State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). Specifically in the context of allegeddefects in a jury instruction, the appellate court must examine the entire record and determine if the error in instruction had a probable impact on the jury's finding of guilt. Odom, 307 N.C. at 661, 300 S.E.2d at 378-79. Our Supreme Court has cautioned, “'[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'” Id. at 661, 300 S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)).
    In the instant case, defendant failed to request an instruction on legal justification for a felon to possess a handgun. This Court recently noted, “the courts of this State have not recognized justification as a defense to a charge of possession of a firearm by a felon.” State v. Napier, 149 N.C. App. 462, 464, 560 S.E.2d 867, 869 (2002). At the defendant's behest in Napier and for the sake of analysis, however, the Court addressed the issue of whether defendant was entitled to an instruction on justification under the rationale set forth in U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir.), cert. denied, 530 U.S. 1264, 147 L. Ed. 2d 988 (2000).
    In Deleveaux, the Eleventh Circuit Court of Appeals provided that 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 wherehe 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.”

Napier, 149 N.C. App. at 465, 560 S.E.2d at 869 (quoting Deleveaux, 205 F.3d at 1297); see U.S. v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989) (utilizing the same test). This Court specifically noted that Deleveaux 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.'” Napier, 149 N.C. App. at 465, 560 S.E.2d at 869 (quoting Deleveaux, 205 F.3d at 1297).
    After a thorough review of the evidence, we conclude that even assuming arguendo the defense of legal justification were available, the evidence in this case does not support an instruction on legal justification. It does not appear that defendant, or for that matter, anyone else was “'under unlawful and present, imminent, and impending threat of death or serious bodily injury[.]'” Id. Defendant's own evidence tends to show that Washington was in possession of Boyd's gun, and did not intend to give it back to Boyd. Washington testified that he was going to take the gun into his house, to prevent anyone from being hurt. It was only at Boyd's insistence that Washington gave the gun to defendant. Moreover, defendant had a “'reasonable legal alternative'” to taking the gun. Id. He had only to refuse totake the gun that was already in Washington's safekeeping. We, therefore, conclude that the trial court did not commit plain error in failing to instruct the jury on legal justification. Defendant's arguments to the contrary are unpersuasive.
    Having so concluded, we hold that defendant received a fair trial, free from prejudicial error.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

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