An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1249


Filed: 3 June 2003


         v.                        Person County
                                No. 01 CRS 4513


    Appeal by defendant from judgment entered 30 May 2002 by Judge W. Osmond Smith, III, in Person County Superior Court. Heard in the Court of Appeals 26 May 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Robert O. Crawford, III, for the State.

    Winifred H. Dillon, for defendant-appellant.

    CALABRIA, Judge.

    Defendant appeals his conviction for assault with a deadly weapon inflicting serious injury. We find no error.
    The State's evidence tended to show that on the evening of 24 September 2000, Kenneth Wilborne (“complainant”) and his wife, Crystal Wilborne (“Crystal”), returned to their home on Virgilina Road in Triple Springs to find their driveway blocked by defendant's car. After speaking with neighbors Mike and Rebecca Satterfield, the Wilbornes walked next door to defendant's residence. Defendant was sitting on his porch holding a twelve- gauge shotgun. Complainant stood at the bottom of the porch stepsand asked defendant to move his car. After a heated exchange in which defendant threatened to kill complainant, the Wilbornes started to leave. Complainant heard defendant pump the shotgun and turned around to see defendant pointing the gun at the back of Crystal's head. As complainant pushed Crystal out of the way, defendant shot him on his right side. Pellets from the blast entered complainant's neck, shoulder, chest and abdomen. Defendant yelled, “[y]ou deserves it; you deserves it; I hope you die.” Hearing defendant pump the shotgun again, complainant ran to the Satterfields' trailer.
    Defendant called 911 and informed the dispatcher that he had shot a man in the chest with birdshot and did not know if the man would “make it or not.” As he was taken into custody, defendant told Person County Sheriff's Deputy James Harris, “Yeah, I shot that boy in the chest. I should have shot him in the head and got rid of him once and for all.” Based on Crystal's account of the incident, deputies estimated that defendant shot complainant from a distance of fifty-six feet. Deputies also determined that the shotgun had jammed on a cartridge that was loaded backwards.
    Mike Satterfield (“Mike”) testified that defendant came to his house on the afternoon of 24 September 2002. Seeing defendant had “been drinking real heavy and was very intoxicated[,]” Mike refused to let him into his house. Defendant walked home. An hour later, an “upset” complainant visited Mike, looking for defendant. When Mike explained that defendant was intoxicated and probably asleep, complainant went to defendant's residence. From his kitchen, Mikeheard “a lot of beating and banging” and walked outside to see complainant kicking in defendant's door. Defendant and complainant stood on defendant's porch shoving and cursing each other. Mike saw defendant and complainant “wrestling with the shotgun” until it fell onto the porch. Complainant and Crystal began walking away from defendant's house. Crystal turned around and threw a soda bottle at defendant. Complainant threw a knife at defendant before being shot at a distance of approximately twenty feet.
    Rebecca Satterfield (“Rebecca”) testified that she heard defendant and complainant argue but did not see the shooting. However, Crystal later told Rebecca that complainant had thrown his knife at defendant and that Crystal had thrown a plastic soda bottle. Rebecca went to defendant's residence with Crystal to retrieve the knife, which they found on the edge of the porch. Rebecca described the knife as six to eight inches long with a folding blade, which was closed when they found it.
    The Wilbornes denied throwing anything at defendant. Complainant acknowledged that he was wearing an empty sheath for a three-inch knife at the time of the incident but denied having a knife on his person.
    Defendant testified he spent the day of 24 September 2000 drinking beer or wine on his front porch. He went to sleep early but was awakened by someone banging on his front door. Defendant sat on his couch and listened to the banging for more than two minutes. Feeling “afraid[,]” defendant retrieved his shotgun from a closet. He opened his front door and stepped onto the porch withthe shotgun, where he saw complainant. Complainant initially stepped off of the porch but returned to argue with defendant. Defendant told complainant to leave his property and “cussed him just about everything I could think of.”
    When asked if complainant had threatened him, defendant replied as follows:
        He had a knife or had a pistol under his shirt, up there with his hand under his shirt. He come up my second step, and I told him, Don't come no further 'cause I told him if he pulled a pistol and put one hole through me, I'd blow his head off. I told him if he cut me, I was going to blow his hand off.

Defendant believed complainant had a weapon under his shirt but did not “know whether it was a pistol or a knife.” Defendant never saw complainant throw anything at him.
    In his first reference to the shooting, defendant testified that “the gun went off [when complainant] smacked the gun.” Complainant was standing one yard away from him. When asked if complainant was standing still, approaching or retreating, defendant replied, “He was standing still until he slammed the end [of the gun].” Asked again whether complainant was coming toward him, defendant stated, “He wasn't coming toward me when the gun went off. The gun went off with him standing down there when he smacked the gun. If he got shot by me, he should have got shot in this area, and I think he got shot about the belt level.”
    Defense counsel asked defendant if he remembered pulling the trigger. He replied, “When the gun was shot, I had a firm grip on it. If he hadn't smacked the end of the shotgun -- I didn't shoothim in this shoulder, I don't think.” Counsel then had the following exchange with defendant:
        Q. Mr. Gentry, do you remember pulling the trigger?

        A. I did not pull the trigger.

        Q. The gun went off?

        A. I brung it down. The gun went off, but I would have pulled the trigger if he had pulled out a pistol and put one hole in me.

On cross-examination, the prosecutor asked defendant, “[Y]ou didn't pull the trigger, is that right?” He responded, “It had already, the shotgun had already went off.” When asked again, defendant said, “I don't know what happened there because I had it where if he slapped it, he was going to get it somewhere. He got it in the shoulder.” Defendant also suggested complainant had “got someone else to shoot him in the shoulder,” because defendant had the gun pointed at complainant's waist. Defendant's final account of the shooting was as follows:
        I don't know where [complainant] got shot. He was standing down -- I'm standing up here on the porch, and I had the shotgun on where his knife was, and then he slapped it over with his left hand. The gun went off. I don't know whether I pulled it or if he caused it.

    During the charge conference, defense counsel requested a jury instruction on self-defense. The trial court found that the evidence supported an instruction on accident, but did not support a finding of self-defense. On appeal, defendant avers the court erred in refusing to instruct the jury on self-defense. He contends the evidence established that “an ill and old man[] wasconfronted by a younger, healthier, very angry man, who appeared to the [d]efendant to be armed.” Under such circumstances, defendant argues that his “use of deadly force to protect himself from what he reasonably perceived to be a threat of great bodily harm was justified.”
    “[W]hen there is evidence from which it may be inferred that a defendant acted in self-defense, he is entitled to have this evidence considered by the jury under proper instruction from the court.” State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). The use of force may be justified as self-defense under the following circumstances:
        (1) the defendant believed it necessary to kill or use force against the victim in order to save himself from death or great bodily harm; (2) the 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;' (3) the 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) the defendant did not use excessive force other than what was necessary or reasonably appeared necessary to protect himself from death or great bodily harm.

State v. Thomas, __ N.C. App. __, __, 570 S.E.2d 142, 149 (quoting State v. Wood, 149 N.C. App. 413, 418-19, 561 S.E.2d 304, 308, disc. rev. denied, 356 N.C. 175, 569 S.E.2d 280 (2002)), appeal dismissed and disc. rev. denied, 356 N.C. 624, 575 S.E.2d 759 (2002). Absent evidence to support a finding of each of these elements, “a defendant is not entitled to an instruction on self-defense.” State v. Nicholson, 355 N.C. 1, 30, 558 S.E.2d 109,130, cert. denied, __ U.S. __, 154 L. Ed. 2d 71 (2002).
    We find no evidence to support the first element of self- defense as set forth above. “In the case sub judice, the defendant did not testify that he fired his weapon at the victim because he believed that deadly force was necessary to save himself from death or great bodily harm.” State v. Williams, 342 N.C. 869, 873, 467 S.E.2d 392, 394 (1996). Defendant's proffer tended to show that he believed complainant was holding a gun or knife under his shirt. Defendant was prepared to shoot complainant if complainant shot or cut him. However, defendant repeatedly testified that complainant caused the shotgun to discharge by smacking the barrel. Defendant never testified that he intended to fire the weapon. Moreover, defendant did not see complainant throw his knife; and none of the evidence suggests that defendant ever formed a belief that it was necessary to shoot complainant in order to protect himself. See State v. Blankenship, 320 N.C. 152, 154-55, 357 S.E.2d 357, 358-59 (1987). “[D]efendant's evidence tended to show that the shooting was an accident. The trial court gave proper instructions to the jury concerning the defense of accident. The evidence did not warrant more.” Id. at 155, 357 S.E.2d at 359.
    The record on appeal contains an additional assignment of error not addressed by defendant in his brief to this Court. By rule, we deem it abandoned. See N.C.R. App. P. 28(b)(6) (2003).
    No error.
    Judges MARTIN and McCULLOUGH concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***