STATE OF NORTH CAROLINA
v. Halifax Coun
ty
No. 00CRS000553
CHRISTOPHER MARK LYLES
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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