NO. COA04-983
Appeal by defendant from judgment entered 31 March 2004 by
Judge Marcus L. Johnson in Catawba County Superior Court. Heard in
the Court of Appeals 26 September 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Mary S. Mercer, for the State.
Robert W. Ewing for defendant-appellant.
GEER, Judge.
Defendant Ramone Leon Robinson appeals his convictions for
assault with a deadly weapon inflicting serious injury and assault
with a deadly weapon. He argues that there was insufficient
evidence presented at trial to prove that his actions were not in
self-defense and that the trial court, therefore, erred in denying
his motion to dismiss. Because the record reveals that the State
presented substantial evidence that defendant failed to act in
self-defense, the trial court properly denied the motion to
dismiss.
Facts
The State's evidence at trial tended to show the following.
On 7 June 2003, defendant had a "confrontation" with ReginaldRobinson outside of the Top 40 Club in Hickory, North Carolina.
Once inside, defendant and Robinson continued to stare at each
other from opposite ends of the club. Defendant saw Robinson walk
out of the club. Because he thought Robinson might be getting a
gun, defendant also went outside and retrieved his nine-millimeter
handgun from a vehicle.
At that point, approximately 1:00 a.m., Robert Mason and
Stephanie Hamlin happened to be driving through the club's parking
lot in a white Honda Accord. Hamlin noticed defendant standing
beside the building. After Mason and Hamlin circled the club and
were about to exit the parking lot, defendant walked up to the
driver's side door of their car. Defendant later told the police
that he thought Mason was "possibly somehow related to" Robinson.
The two men "exchanged some words." Defendant claimed Mason
was seated in the car with his left hand on the steering wheel and
his right hand in his lap. In his statement to the police,
defendant said that because he suspected Mason "might have a gun"
in his lap, defendant brought his own gun from behind his back and
held it at his side. According to defendant, the two continued
"having some words with one another." Hamlin testified that she
suddenly heard shots and was struck in the thigh by a bullet.
Defendant claimed that Mason shot at defendant first, at which
point defendant returned fire.
Mason was bleeding from the chest and right arm. Mason and
Hamlin drove to Frye Regional Medical Center where they were
treated for the gunshot wounds. Defendant was also taken to thehospital with a gunshot wound to the chest.
Police recovered two distinct types of nine-millimeter shell
casings from the Top 40 Club parking lot. On 10 June 2003, police
located the white Honda Accord. The car had multiple bullet holes
in the driver's side door and a bullet fragment in the door frame.
The window to the door was shattered and there was blood splatter
inside the car. At some point after the shooting, police found a
Luger nine-millimeter handgun in a car being driven by Mason.
Ballistics tests confirmed that the gun had fired some of the shell
casings found in the Top 40 Club parking lot. Mason later pled
guilty to assault with a deadly weapon inflicting serious injury
upon defendant.
Defendant was indicted with two counts of assault with a
deadly weapon with intent to kill inflicting serious injury based
on the injuries to Mason and to Hamlin. At trial, defendant argued
in support of his motions to dismiss at the close of the State's
evidence and at the close of all the evidence that the State had
failed to prove that defendant did not act in self-defense.
Although the trial court denied the motions, he instructed the jury
on the law of self-defense. The jury found defendant guilty of
assault with a deadly weapon with respect to Mason and assault with
a deadly weapon inflicting serious injury with respect to Hamlin.
The trial court sentenced defendant to 150 days for the assault
with a deadly weapon conviction and to a consecutive sentence of 34
to 50 months with respect to the conviction of assault with a
deadly weapon inflicting serious injury. On appeal, defendant argues only that the trial court erred in
denying his motions to dismiss. "[T]he test on a motion to dismiss
is whether the State has presented substantial evidence which,
taken in light most favorable to the State, is sufficient to
convince a rational trier of fact the defendant did not act in
self-defense."
State v. Gilreath, 118 N.C. App. 200, 208, 454
S.E.2d 871, 876 (1995). Contradictions and discrepancies in the
evidence are strictly for the jury to decide.
State v. Lowery, 309
N.C. 763, 770, 309 S.E.2d 232, 238 (1983).
In order for an assault with a deadly weapon to be justified
as an act of self-defense, the defendant must not be the aggressor
in bringing about the affray and must reasonably believe that
deadly force is required to preserve him from death or serious
bodily harm.
State v. Williams, 342 N.C. 869, 873, 467 S.E.2d 392,
394 (1996). In his statement to the police, defendant acknowledged
that he initiated the contact with Mason by approaching the Honda
armed with a nine-millimeter handgun in the belief that Mason had
been called to the parking lot by Robinson. Further, defendant
admitted that he was the first person to brandish a gun during the
confrontation. This evidence was sufficient for a reasonable juror
to find that defendant voluntarily and without provocation entered
into the affray.
See State v. Blackwell, 163 N.C. App. 12, 17, 592
S.E.2d 701, 705 (evidence that defendant left the scene and
returned with a shotgun was sufficient to establish that he entered
into the confrontation willingly),
cert. denied, 358 N.C. 378, 597
S.E.2d 768 (2004);
State v. Hall, 89 N.C. App. 491, 494, 366 S.E.2d527, 529 (1988) (holding that a defendant is not entitled to the
defense of self-defense when the "evidence indicates defendant was
not without fault in bringing on the affray and voluntarily and
aggressively took himself into a situation" (internal quotation
marks omitted)).
Defendant's contention that Mason shot first does not
automatically establish self-defense. Evidence, such as
defendant's statement to the police, that defendant aggressively,
willingly, and without provocation entered into the affray
justified the trial court's denial of defendant's motion to
dismiss.
Cf.
State v. Bolin, 281 N.C. 415, 425, 189 S.E.2d 235,
242 (1972) ("conclud[ing] that the facts narrated in defendant's
statement [to police] did not establish as a matter of law that he
acted in self-defense"). Accordingly, we conclude the trial court
did not err.
The record on appeal contains additional assignments of error
not addressed by defendant in his brief to this Court. Pursuant to
N.C.R. App. P. 28(b)(6), we deem them abandoned.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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