An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-983


Filed: 15 November 2005


    v.                            Catawba County
                                No. 03 CRS 54817

    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.


    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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