An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-977

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005

LESTER R. MITCHUM,
    Plaintiff,

v .                         Carteret County
                            No. 02 CVS 295
TIMOTHY GLENN GASKILL,
    Defendant.

    Appeal by defendant from judgment entered 5 January 2004 and order entered 5 March 2004 by Judge Charles H. Henry in the Carteret County Superior Court. Heard in the Court of Appeals 8 March 2005.

    Newton Law Firm, by J. Jefferson Newton and Emanuel & Dunn, by Raymond E. Dunn, Jr., for plaintiff-appellee.

    Wallace, Morris, Barwick, Landis, Braswell & Stroud, P.A., by Edwin M. Braswell, Jr., for defendant-appellant.

    TYSON, Judge.

    Defendant Timothy Glenn Gaskill (“Gaskill”) appeals from entry of judgment after a jury found he negligently injured plaintiff Lester R. Mitchum (“Mitchum”) and order denying Gaskill's motions to set aside the verdict, for judgment notwithstanding the verdict, and for a new trial. We find no error.

I. Background
    Gaskill and Mitchum grew up together in Carteret County and were lifelong friends. As both grew older, Mitchum became the captain of a commercial fishing boat and Gaskill became a welder. As adults, the two remained close friends. Their relationshipstrengthened after Mitchum hired Gaskill's son and brother-in-law to work on his boat. In addition to Mitchum and Gaskill spending time together, their families also began sharing free time and holidays.
    On 8 March 2001, Gaskill hosted a party at his home. Mitchum was an invited guest. Both Mitchum and Gaskill drank alcohol throughout the course of the evening. The party lasted into the early morning until Mitchum remained as the last guest. An argument ensued over an alleged telephone call from a female. The argument became heated and escalated into a fight. Gaskill walked to a closet and armed himself with a shotgun.
    When Gaskill confronted Mitchum with the shotgun, it discharged and wounded Mitchum in his right side. Mitchum testified that the shotgun blast was unintentional and due to Gaskill's carelessness and negligence. Gaskill argues he intentionally shot Mitchum in self-defense in the course of the fight. Mitchum was taken to East Carolina University School of Medicine for treatment.
    Gaskill was arrested for shooting Mitchum and later pled guilty to assault inflicting serious bodily injury. Gaskill was convicted on 5 June 2002 and sentenced to a minimum active term of twenty-one months and a maximum term of twenty-six months.
    One year after the event, Mitchum filed a complaint against Gaskill on 8 March 2002 alleging: (1) Gaskill negligently injured Mitchum by unintentionally shooting him with the shotgun; and in the alternative (2) that if Gaskill's conduct was intentional, itwas an assault against Mitchum. Gaskill answered on 7 May 2002 claiming: (1) if he was negligent, Mitchum was contributorily negligent and barred from recovery; and (2) he acted in self- defense against Mitchum, who had allegedly initially attacked him.
    In response to a court order dated 24 February 2003, Gaskill filed an amended answer on 4 March 2003. This answer alleged: (1) Gaskill acted in self-defense in shooting Mitchum; and (2) Mitchum's violent behavior contributed to any negligent behavior by Gaskill. On 15 December 2003, Mitchum voluntarily dismissed his claim alleging Gaskill intentionally assaulted him.
    The case was tried by a jury, which found: (1) Gaskill negligently injured Mitchum; and (2) Mitchum was not contributorily negligent. Gaskill was not found to have acted in self-defense. Mitchum suffered damages and was awarded $772,700.00. On 5 January 2004, Gaskill filed motions: (1) to set aside the verdict; (2) for judgment notwithstanding the verdict; and (3) for a new trial. Gaskill's motions were denied on 29 February 2004.
    On 18 February 2004, Gaskill petitioned for writ of habeas corpus and alleged the jury's finding of negligence precluded his guilt to the criminal charge of assault inflicting serious bodily injury. The trial court considered Gaskill's petition and determined there was “no arguable legal basis” for issuance of the writ and it was denied on 22 March 2004.
    Gaskill appeals from: (1) judgment finding he negligently injured Mitchum and Mitchum was not contributorily negligent; and (2) the trial court's order denying his motions to set aside theverdict, for judgment notwithstanding the verdict, and for a new trial.
II. Issues
    The issues on appeal are whether the trial court erred in: (1) denying Gaskill's motion for a directed verdict; (2) permitting a police officer's opinion testimony; (3) instructing the jury during admission of evidence; and (4) its charge to the jury.
III. Abandonment of Assignment of Error
    Gaskill does not assign error to or present arguments in his brief regarding the trial court's denial of his motions to set aside the verdict, for judgment notwithstanding the verdict, and for a new trial. This assignment of error is abandoned. See N.C.R. App. P. 28(b)(6) (2004) (“Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.”)
IV. Motion for Directed Verdict
    Gaskill argues the trial court erred in denying his motion for directed verdict because he intentionally, not negligently, shot Mitchum. We disagree.
A. Standard of Review
    In Davis v. Dennis Lilly Co., our Supreme Court stated the appellate standard of review for a directed verdict:
        whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury. Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). When determining the correctness of the denialfor directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party's favor, Smith v. Voncannon, 283 N.C. 656, 197 S.E.2d 524 (1973), or to present a question for the jury. In re Housing Authority, 235 N.C. 463, 70 S.E.2d 500 (1952).

330 N.C. 314, 322-23, 411 S.E.2d 133, 138 (1991). “As a general rule, a directed verdict motion should not be granted in a negligence action.” Alston v. Monk, 92 N.C. App. 59, 62, 373 S.E.2d 463, 465 (1988) (citing Alva v. Cloninger, 51 N.C. App. 602, 277 S.E.2d 535 (1981)), disc. rev. denied, 324 N.C. 246, 378 S.E.2d 420 (1989). However, the plaintiff must introduce proof of each element of negligence to survive defendant's motion. Everhart v. LeBrun, 52 N.C. App. 139, 141, 277 S.E.2d 816, 818 (1981). “If there is such relevant evidence as a reasonable mind might accept as adequate to support the elements of negligence, the trial court must deny defendant's motion and allow the case to go to the jury.” Cobb v. Reitter, 105 N.C. App. 218, 220-21, 412 S.E.2d 110, 111 (1992).
B. Negligence
    A plaintiff alleging common law negligence “must offer evidence of four essential elements in order to prevail: duty, breach of duty, proximate cause, and damages.” Estate of Mullis v. Monroe Oil Co., 349 N.C. 196, 201, 505 S.E.2d 131, 135 (1998) (citations omitted).
        Actionable negligence is the failure to exercise that degree of care which a reasonable and prudent person would exercise under similar conditions. A defendant is liable for his negligence if the negligence isthe proximate cause of injury to a person to whom the defendant is under a duty to use reasonable care.

Id. (quotation omitted).
    Prior cases have stated the degree of care required of a person handling firearms.
        The utmost caution must be used in their care and custody, to the end that harm may not come to others from coming in contact with them. The degree of care must be commensurate with the dangerous character of the article. The same degree of care is, no doubt, expressed by saying that the care which persons using firearms are bound to take in order to avoid injury to others is a care proportionate to the probability of injuries to others . . . . One who handles a loaded gun is charged with the knowledge that it is a dangerous instrumentality which, if accidentally discharged, might cause injury to others. If one is injured from the discharge of firearms negligently used or handled by another, the person causing the injury is civilly liable even though the discharge was not intended.

        Any loaded firearm . . . is a highly dangerous instrumentality and, since its possession or use is attended by extraordinary danger, any person having it in his possession or using it is bound to exercise extraordinary care. A person handling or carrying a loaded firearm in the immediate vicinity of others is liable for its discharge, even though the discharge is accidental and unintentional, provided it is not unavoidable.

Edwards v. Johnson, 269 N.C. 30, 35-36, 152 S.E.2d 122, 126-27 (1967) (internal citations and quotations omitted) (emphasis supplied).
    Mitchum's evidence tended to show that he and Gaskill were lifelong friends. Gaskill invited Mitchum to a party at Gaskill's home with other guests. An argument ensued and Gaskill armedhimself with his shotgun. The gun discharged and Mitchum was wounded in his right side. The following exchanges and admissions were offered into evidence by Mitchum:
        Question:    So your intent when you got that shotgun was to shoot Les Mitchum, is that correct?

        Gaskill:    I didn't even know the gun was loaded.

        . . . .

        Question:    You remember pointing the gun at him, don't ya?

        Gaskill:    No, Sir.

        . . . .

        Question:    You pulled the trigger, didn't you?

        Gaskill:    I don't never actually remember pulling the trigger. She fired.

    The above evidence sufficiently shows that Gaskill owed a duty to Mitchum, he breached that duty, and that breach proximately caused severe injuries to Mitchum. Estate of Mullis, 349 N.C. at 201, 505 S.E.2d at 135. Gaskill contends that he either intentionally shot Mitchum, or, in the alternative, Mitchum was contributorily negligent. Overlooking the alternating and inherent conflict in Gaskill's argument, the evidence creates a question of fact for the jury. Davis, 330 N.C. at 322-23, 411 S.E.2d at 138. Taking the evidence in the light most favorable to Mitchum, a jury could reasonably find that Gaskill negligently shot Mitchum. Id. The trial court properly denied Gaskill's motion for a directed verdict. This assignment of error is overruled.
V. Opinion Testimony
    Defendant contends the trial court erred in permitting Detective Frank Galazia to answer a question seeking his opinion concerning the significance of Mitchum being shot in the side. We disagree.
    During trial, the following exchange took place:
        Mitchum:        Detective, the defendant admitted that he shot Les in the side. Is this consistent with the defendant's claim that the defendant was being attacked at the time that the defendant shot Les?

        Gaskill:        Objection.

        The Court:    Sustained.

        Mitchum:        What is the significance of the fact that the defendant shot Les in the side?

        Gaskill:        Objection.

        The Court:    Overruled.

        . . . .

        Det. Galazia:    By his own admission, on the videotape, he thought he had shot him dead center chest, and he brought that up. By shooting him in the right side, best of my knowledge, in the right side just around the hip area, indicated to me that standing in the hall and evaluating - reconstructing what could have happened, it wasn't a direct on attack, if you will.

        . . . .

        Det. Galazia:    [T]he victim was in some form of moving or not facing directly into the path, the way of the bullet - I mean, thebarrel of the shotgun was facing.

        Gaskill:        Motion to Strike.

        The Court:    Motion denied.

        Gaskill:        Motion for mistrial.

        The Court:    Denied.

A. Preservation of Error
    Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure provides in part, “[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.” N.C.R. App. 10(b)(1) (2004). Further, “[i]n the absence of a special request to qualify a witness as an expert, a general objection to specific opinion testimony will not suffice to preserve the question of the expert's qualifications, even on ultimate issues.” State v. Hamilton, 77 N.C. App. 506, 509, 335 S.E.2d 506, 508-09 (1985) (citing State v. Hunt, 305 N.C. 238, 287 S.E.2d 818 (1982)), disc. rev. denied, 315 N.C. 593, 341 S.E.2d 33 (1986).
    Gaskill argues Detective Galazia “was not competent to answer the question posed to him. He was never qualified as an expert witness.” However, Gaskill neither: (1) raised the issue of Detective Galazia's qualifications at trial; nor (2) requested that Detective Galazia be qualified as an expert prior to this testimony. Further, Gaskill made only general objections and did not provide the specific nature of his objections at trial. SeeState v. Tyler, 346 N.C. 187, 203, 485 S.E.2d 599, 608 (“[A] mere general objection to the content of the witness's testimony will not ordinarily suffice to preserve the matter for subsequent appellate review . . . . since defendant did not object on the grounds that the testifying witnesses were not qualified as experts, he has waived his right to later make the challenge on appeal.”) (quotations omitted), cert. denied, 522 U.S. 1001, 139 L. Ed. 2d 411 (1997). Gaskill failed to properly preserve this assignment of error for our review. This assignment of error is dismissed.
VI. Evidentiary Instruction
    Gaskill argues the trial court erred in its instruction to the jury during the admission of Mitchum's evidence. We disagree.
    “An admission may be implied or inferred from any conduct of a party which fairly indicates a consciousness of the existence of a relevant fact.” 2 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 210 (6th ed. 2004). For example, “[t]he conveyance of property during litigation or just prior to it, may be evidence of the transferor's consciousness that he ought to lose.” Doub v. Hauser, 256 N.C. 331, 336, 123 S.E.2d 821, 825 (1962) (internal quotations omitted); see also Pratt v. Bishop, 257 N.C. 486, 506, 126 S.E.2d 597, 612 (1962) (“the conveyance of property during litigation [is] evidence of the transferor's consciousness that he ought to lose.”).
    Mitchum offered into evidence the fact that Gaskill conveyed away his real property after a charge was made against him. OverGaskill's objection, the trial court provided the following instruction to the jury:
        Ladies and gentlemen of the jury, the defendant's transfer of property after a charge has been made against him may be evidence of the - some evidence tending to show a consciousness of liability. And if you believe this evidence, you may consider it, but only for the limited purpose for which it was received.

This instruction correctly states the applicable law permitting the admission of the property transfer as evidence of Gaskill's possible “consciousness of liability.” The trial court noted Gaskill would have the opportunity to rebut the inference or explain it away. Defense counsel acknowledged he could offer to the jury evidence that Gaskill conveyed his real property to avoid foreclosure should he go to jail and not be able to pay the mortgage.
    The trial court properly instructed the jury on the applicable law during the admission of Mitchum's evidence. Gaskill was provided notice of and received the opportunity to rebut and explain away his transfer of real property. This assignment of error is overruled.
VII. Jury Instructions
    Defendant asserts the trial court erred in instructing the jury on: (1) self-defense; (2) handling of firearms; and (3) assault inflicting serious bodily injury. We disagree.
A. Standard of Review
    This Court reviews a trial court's instructions to the jury:
        contextually and in its entirety. The charge will be held to be sufficient if it presents the law of the case in such manner as to leave no reasonable cause to believe the jury was misled or misinformed . . . . The party asserting error bears the burden of showing that the jury was misled or that the verdict was affected by an omitted instruction. Under such a standard of review, it is not enough for the appealing party to show that error occurred in the jury instructions; rather, it must be demonstrated that such error was likely, in light of the entire charge, to mislead the jury.

Bass v. Johnson, 149 N.C. App. 152, 160, 560 S.E.2d 841, 847 (2002) (internal citations and quotations omitted) (emphasis supplied).
B. Self-Defense
    Gaskill argues the trial court erred by instructing the jury that if they thought Gaskill acted unreasonably by shooting Mitchum in self-defense, such conduct was negligent. We disagree.
    The elements of self-defense are well-established.
        (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 the 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. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981) (emphasis supplied). Under the law of perfect self-defense, a defendant is excused if all of the above four elements existed at the time of the incident shooting. Id. An act of self-defense is intentional, not accidental. State v. Gray, 347 N.C. 143, 166-67, 491 S.E.2d 538, 546 (1997), cert. denied, 523 U.S. 1031, 140 L. Ed. 2d 486 (1998), overruled on other grounds by State v. Long, 354 N.C. 534, 557 S.E.2d 89 (2001); State v. Ray, 299 N.C. 151, 164, 261 S.E.2d 789, 797 (1980). The act of self-defense remains even though it was not perfected. Norris, 303 N.C. at 530, 279 S.E.2d at 573 (imperfect self-defense includes an intentional act). Self-defense is available, appropriate, and can be asserted in civil actions. Young v. Warren, 95 N.C. App. 585, 588, 383 S.E.2d 381, 383 (1989) (citations omitted); Mitchell v. Talley, 182 N.C. 683, 686, 109 S.E. 882, 884 (1921); Penny v. R.R., 153 N.C. 296, 305, 69 S.E. 238, 242 (1910).
    Our Supreme Court has stated an intentional act may not be the basis for a claim in negligence:
        Negligence . . . does not include intentional acts of violence. For example, an automobile driver operates his car in violation of the speed law and in so doing inflicts injury as a proximate result, his liability is based on his negligent conduct. On the other hand, if the driver intentionally runs over a person it makes no difference whether the speed is excessive or not, the driver is guilty of an assault and if death results of manslaughter or murder. If injury was intended it makes no difference whether the weapon used was an automobile or a pistol. Such willful conduct is beyond and outside the realm of negligence.
Jenkins v. Department of Motor Vehicles, 244 N.C. 560, 563, 94 S.E.2d 577, 580 (1956); see Pleasant v. Johnson, 312 N.C. 710, 714, 325 S.E.2d 244, 248 (1985) (“[O]nly when the injury is intentional does the concept of negligence cease to play a part.”); Siders v. Gibbs, 39 N.C. App. 183, 187, 249 S.E.2d 858, 860 (1978) (“[T]his willful and deliberate purpose not to discharge a duty differs crucially . . . from the willful and deliberate purpose to inflict injury -- the latter amounting to an intentional tort.”).
    The trial court gave the following instruction to the jury:
        A person's failure to use the highest degree of care in handling a firearm is negligence. One who handles a loaded gun, is charged with the knowledge that it is a dangerous instrumentality, which, if accidentally discharged might cause injury to others.

        If one is injured from the discharge of firearms negligently used, or handled by another, the person causing the injury is civilly liable, even though the discharge was not intended. The defendant would not be negligent, however, if he acted in self-defense.

        In order to answer the first issue yes, in favor of the plaintiff, the plaintiff has the burden of proving by the preponderance of the evidence that defendant's actions were not in self-defense, and find by the preponderance of evidence that the plaintiff, Lester Mitchum, assaulted the defendant, Timothy Gaskill, with deadly force. That is, force likely to cause death or great bodily harm, and that the circumstances would have created a reasonable belief in the mind of a person of ordinary firmness that the assault was necessary, or apparently necessary, to protect himself from death or great bodily harm, and the circumstances did create such belief in the defendant's mind, at the time he acted, that the shooting of the plaintiff would be justified by self-defense.
        You, the jury, determine the reasonableness of the defendant's belief from the circumstances appearing to him at the time.

        The defendant does not have the right to use excessive force. He had the right to use only such force as reasonably appeared necessary to him, under the circumstances, to protect himself from death or great bodily harm.

        In making this determination you should consider the circumstances as you find them to have existed from the evidence, including the size, age, and strength of the defendant as compared to the plaintiff, the fierceness of the assault, if any, upon the defendant, and whether or not the plaintiff had a weapon in his possession.

        Again, you, the jury, determine the reasonableness of the defendant's belief from the circumstances appearing to him at the time.

        The defendant would also not be negligent if his actions were an intentional act of violence, intending to injure the plaintiff. An intentional act of violence is not a negligent act.

        Finally, as to this first issue on which the plaintiff has the burden of proof, if you find by the greater weight of the evidence that the defendant was negligent in the way contended by the plaintiff, and further, that the defendant's action was not in self-defense, that is, the defendant did not reasonably believe that the assault was necessary, or apparently necessary, to protect himself from death or serious bodily injury, or that he used excessive force, and further, that his actions were not intentional acts of violence, and that such negligence was a proximate cause of the plaintiff's injury, then, it would be your duty to answer this issue yes, in favor of the plaintiff.

(Emphasis supplied).
    Reviewing the instructions “contextually and in its entirety,” we hold the trial court did not err in instructing the jury onself-defense. Bass, 149 N.C. App. at 160, 560 S.E.2d at 847. The instruction included the elements Mitchum was required to prove by a preponderance of the evidence to show Gaskill negligently shot him. In addition, the elements of self-defense were correctly described for which Mitchum had the burden of proving by a preponderance did not occur.
    Mitchum proffered substantial evidence that Gaskill shot him by accident, not intentionally. In addition, Gaskill admitted that he did not realize the gun was loaded and did not remember either aiming the gun at Mitchum or pulling the trigger. Gaskill was unable to satisfy the jury that he acted intentionally in self- defense or that Mitchum was contributorily negligent. The jury rejected Gaskill's argument and found him negligent. Gaskill has not shown how the alleged error “was likely, in light of the entire charge, to mislead the jury.” Id. This portion of the assignment of error is overruled.
C. Handling of Firearms
    Gaskill asserts the trial court erred in instructing the jury on the handling of firearms. We disagree.
    Our Supreme Court stated in Edwards:
        One who handles a loaded gun is charged with the knowledge that it is a dangerous instrumentality which, if accidentally discharged, might cause injury to others. If one is injured from the discharge of firearms negligently used or handled by another, the person causing the injury is civilly liable even though the discharge was not intended.

        Any loaded firearm . . . is a highly dangerous instrumentality and, since its possession or use is attended by extraordinary danger, anyperson having it in his possession or using it is bound to exercise extraordinary care. A person handling or carrying a loaded firearm in the immediate vicinity of others is liable for its discharge, even though the discharge is accidental and unintentional, provided it is not unavoidable.

269 N.C. at 35-36, 152 S.E.2d at 126-27.
    The trial court provided the jury the following instruction:
        A person's failure to use the highest degree of care in handling a firearm is negligence. One who handles a loaded gun, is charged with the knowledge that it is a dangerous instrumentality, which, if accidentally discharged might cause injury to others.

        If one is injured from the discharge of firearms negligently used, or handled by another, the person causing the injury is civilly liable, even though the discharge was not intended. The defendant would not be negligent, however, if he acted in self- defense.

    The trial court's instruction follows our Supreme Court's language in Edwards. Reviewing the instruction “contextually and in its entirety,” we hold the trial court did not err in instructing the jury on self-defense. Bass, 149 N.C. App. at 160, 560 S.E.2d at 847. This portion of the assignment of error is overruled.
D. Intentional Crime
    Gaskill contends the trial court erred in denying his request to instruct the jury on his admission of guilt to the charge of assault inflicting serious bodily injury against Mitchum. We disagree.
    Rule 10(c)(2) of the North Carolina Rules of Appellate Procedure require where “[a] question of the failure to giveparticular instructions to the jury . . . [the party] shall identify the omitted instruction . . . by setting out its substance in the record on appeal immediately following the instructions given . . . .” N.C.R. App. P. 10(c)(2) (2004). If the charge is not included in the record on appeal, “[i]t is therefore presumed that the jury was properly instructed as to the law arising upon the evidence as required by G.S. 1-180.” State v. Hedrick, 289 N.C. 232, 234, 221 S.E.2d 350, 352 (1976) (citations omitted).
    Our review of the record on appeal fails to disclose the required omitted instruction pursuant to Rule 10(c)(2). It is the appellant's duty and responsibility to ensure the record on appeal is in proper form and complete. Tucker v. Telephone Co., 50 N.C. App. 112, 118, 272 S.E.2d 911, 915 (1980) (citing Hill v. Hill, 13 N.C. App. 641, 642, 186 S.E.2d 665, 666 (1972)). This portion of the assignment of error is dismissed.
VIII. Conclusion
    The trial court properly denied Gaskill's motion for directed verdict. Gaskill did not properly preserve his objection to Detective Galazia's “opinion testimony” for appellate review. The trial court did not err by instructing the jury during the admission of evidence. The trial court properly instructed the jury on the issues at trial. We find no error in the trial court's judgment entered consistent with the jury's verdict.
    No error.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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