An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1498


Filed: 1 July 2003


         v.                        Madison County
                                Nos.    98 CRS 1059-61

    Appeal by defendant from judgments entered 30 September 1999 by Judge Michael E. Helms in Superior Court, Madison County. Heard in the Court of Appeals 23 June 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Linda Kimbell, for the State.

    Leake & Scott, by Ward D. Scott, for defendant appellant.

    WYNN, Judge.

    Defendant, Charles Erskine Creasman, presents the following issue for our consideration: Did the trial court reversibly err by failing to instruct the jury on the issue of self-defense to the charge of discharging a firearm into occupied property? Because we find the trial court properly instructed the jury on the issue of self-defense, we find no error.
    The State's evidence tended to show as follows: On the night of 30 June 1998, Joe Griffey drove his red Ford Probe to the 911 station in Madison County, North Carolina, to speak with Amanda Waldrup. Darren Griffey was a passenger in the car. When the two men arrived in the parking lot of the 911 station, Joe Griffey noticed the defendant's pickup truck parked beside Waldrup's car. While Darren Griffey waited in the car, Joe Griffey walked to the front door of the station and asked defendant if he could speak with Waldrup. Waldrup walked onto the porch to talk with Joe Griffey. Ten minutes later, defendant came outside, sat on the hood of Waldrup's car, and asked her to choose between him and Joe Griffey. When Waldrup replied that she could not work things out with defendant, he said, “Well, I'll end it right here.” The defendant walked to his truck, retrieved a pistol, and shot Joe Griffey in his left side. Joe Griffey fell from the porch, unable to feel or move his legs. As Waldrup ran into the station, the defendant fired shots at the Ford Probe. One of the bullets passed through the car door and entered Darren Griffey's back. The defendant drove off in his truck but returned minutes later, asking Waldrup to open the door and speak with him. He offered no assistance to the Griffeys.
    The defendant testified that Waldrup invited him to the 911 station because she was working alone and was afraid of Joe Griffey who arrived at the station and argued with Waldrup until she cried. The defendant asked Joe Griffey to leave, but he refused. The defendant retrieved his gun from the truck to protect both himself and Waldrup. When Joe Griffey saw the gun, he threatened the defendant and walked toward him. The defendant backed away from him and told him to stop. When Joe Griffey continued toward him, the defendant fired a warning shot. Seeing Joe Griffey reach into his back pocket, the defendant fired a second shot which struck Joe Griffey. The defendant also fired into the car, because he saw theoccupant move as if reaching for a weapon.
    A jury found the defendant guilty of assault with a deadly weapon inflicting serious injury upon Joe Griffey, assault with a deadly weapon inflicting serious injury upon Darren Griffey, and discharging a firearm into a vehicle occupied by Darren Griffey. The defendant was sentenced to three consecutive terms of 25 to 39 months. By order entered 27 June 2000, we issued a writ of certiorari to review the judgments entered upon his convictions.
    On appeal, defendant asserts that the trial court erred in failing to “instruct the jury at all in regards to self-defense” as to the offense of discharging a firearm into occupied property. Defendant further avers that by instructing the jury on self- defense as to the remaining offenses, the trial court implied to the jury that self-defense did not excuse the act of discharging a firearm into the occupied vehicle.
    A defendant is entitled to an instruction on self-defense if there is evidence to support such a finding “even though there is contradictory evidence by the State or discrepancies in the defendant's evidence.” State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 818 (1974) (citing State v. Hipp, 245 N.C. 205, 95 S.E.2d 452 (1956)). In instructing the jury on self-defense, the trial court “must correctly define the term self-defense and must place the burden on the State to disprove self-defense beyond a reasonable doubt[.]” State v. Herbin, 298 N.C. 441, 446, 259 S.E.2d 263, 267 (1979) (citations omitted). However, the court'scharge “must be read as a whole” and “construed contextually,” as it was presented to the jury at trial. State v. Rich, 351 N.C. 386, 393-94, 527 S.E.2d 299, 303 (2000) (quoting State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970)). “If the charge presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal.” Id.
With these principles in mind, we find the trial court properly instructed the jury on self-defense as it pertained to the offense of discharging a firearm into occupied property. The court first addressed the alleged assault upon Joe Griffey. It instructed the jury on the doctrine of self-defense with regard to this assault, setting forth the elements of self-defense in their entirety. It then turned to the offenses involving Darren Griffey, instructing the jury as follows:
        . . . [T]urn to the second page which should have Mr. Darren Griffey's name at the bottom. This verdict sheet should be dealing with discharging a firearm into occupied property. . . .

        . . . [F]or you to find the defendant guilty of discharging a firearm into occupied property the State must prove three things beyond a reasonable doubt. First, that the defendant willfully or wantonly and intentionally discharged a firearm into an occupied vehicle and not in self-defense. Second, that the vehicle was occupied . . . . And third, that the defendant knew that the vehicle was occupied . . . . So I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant willfully or wantonly and intentionally discharged a firearm into an occupied vehicle, and not in self-defense, while it was occupied and the defendant knewit might be occupied it would be your duty to return a verdict of guilty as charged. However, if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict not guilty. . . .

            Now, Ladies and Gentlemen, turn to the third page which should have Mr. Darren Griffey's name at the bottom. I'm going to read you the instruction on self-defense again because it applies to all these potential offenses as well.

            With regard to the following crimes . . . wherein Mr. Darren Griffey is the alleged victim: If the defendant acted in self- defense, his actions are excused; therefore, he is not guilty. The State, not the defendant, has the burden of proving that the defendant's acts were not in self-defense. (emphasis added)

The court then reviewed with the jury the assault charges pertaining to Darren Griffey, repeating in full the elements of self-defense.
    As quoted above, the trial court twice charged that defendant was guilty of discharging a weapon into occupied property only if the jury found beyond a reasonable doubt that defendant acted willfully or wantonly, intentionally and “not in self-defense[.]” The court's mandate explicitly required the State to prove beyond a reasonable doubt that defendant discharged his firearm “not in self-defense[.]” Moreover, at no time did the court recite the elements of this offense to the jury without reference to the State's burden of proving lack of self-defense. Although the court did not fully review the elements of self-defense during this portion of the jury instructions, the court twice instructed the jury on the elements of self-defense over the course of the entirecharge. Because “the trial court unmistakably placed the burden of proof upon the State to satisfy the jury beyond a reasonable doubt that defendant did not act in self-defense[,]” we believe the challenged instruction was sufficient. State v. Jones, 294 N.C. 642, 654, 243 S.E.2d 118, 125 (1978).
    The record on appeal contains additional assignments of error not addressed in the defendant's brief to this Court. By rule, we deem them abandoned. See N.C.R. App. P. 28(b)(6).
    No error.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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