STATE OF NORTH CAROLINA
v. Person County
No. 01 CRS 4513
STEVE CARLTON GENTRY
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).
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