An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1192

NORTH CAROLINA COURT OF APPEALS

Filed: 4 May 2004

STATE OF NORTH CAROLINA

         v.                        Robeson County
                                No. 00 CRS 007976
KENDRICK SHANTE MCLEAN
    

    Appeal by defendant from judgment dated 30 April 2003 by Judge Jack A. Thompson in Superior Court, Robeson County. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.

    McGEE, Judge.

    Defendant was convicted of voluntary manslaughter. The trial court imposed a presumptive sentence of fifty-seven to seventy- eight months of imprisonment.
    Defendant was charged with first-degree murder for the shooting death of Richard Stubbs on Malpass Avenue in Red Springs, North Carolina on 11 April 2000. An autopsy revealed that Stubbs was shot once or twice in the back of his legs and once fatally in the right side of his back. Police found eight shell casings at the scene, all of which were fired from defendant's nine millimeter handgun. Although defendant testified that he fired in self- defense only after Stubbs jumped in front of his car and threatenedhim with a gun, no weapon was found on or near Stubbs' body.
    The trial court denied defendant's motion to dismiss the charge at the conclusion of the evidence. The court instructed the jury on first degree and second degree murder, voluntary manslaughter, perfect and imperfect self-defense, and heat of passion.
    Defendant argues that the trial court erred in denying his motion to dismiss, absent substantial evidence that he was not entitled to use deadly force against Stubbs in self-defense. In order for a homicide to be justified as self-defense, the evidence must establish the following:
        (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and

        (2) defendant's belief was reasonable in that the circumstances as they appeared to him at that time were sufficient to create such a belief in the mind of a person of ordinary firmness; and

        (3) 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) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.
State v. McAvoy, 331 N.C. 583, 595, 417 S.E.2d 489, 497 (1992) (quoting State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981)).     Defendant argues the State's evidence failed to disprove any of these four factors.    Having reviewed the trial transcript, we find "[t]he evidence presented does not unequivocally establish that the killing was in self-defense." State v. Gray, 337 N.C. 772, 778, 448 S.E.2d 794, 798 (1994). The State's witnesses, Cecil Monroe and Charles Galbreath, both testified that defendant, without provocation, instigated the fatal encounter with Stubbs. These eyewitnesses stated they were with Stubbs in the front yard of Galbreath's house on the afternoon of the shooting. They saw defendant circle the block in his car three times. When Stubbs began walking toward his mother's house, defendant attempted to run him over with his car. Defendant got out of his car and fired at Stubbs several times as he attempted to flee. Although defendant challenges the motives and reliability of the State's witnesses, such issues are not before a court when ruling upon a motion to dismiss. Unless the testimony of a witness is contrary to physical laws or involves assertions of fact beyond his or her capacity to observe, the jury is the sole and final arbiter of credibility. See State v. Sneed, 327 N.C. 266, 272-73, 393 S.E.2d 531, 534 (1990) (citing State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967)). In this case, defendant neither asserts nor shows that the challenged testimony was inherently incredible in this way. Accordingly, the question of self-defense was properly left to the jury. State v. Turner, 305 N.C. 356, 363, 289 S.E.2d 368, 372 (1982) (quoting Miller, 270 N.C. at 732, 154 S.E.2d at 906).
    No error.
    Chief Judge MARTIN and Judge BRYANT concur.    Report per Rule 30(e).

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