An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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_1482

NORTH CAROLINA COURT OF APPEALS

Filed: 1 November 2005

STATE OF NORTH CAROLINA

v .                         Wake County
                            Nos. 01 CRS 81075
JAMES MERLAND MOORE,                01 CRS 81841
        Defendant.

    Appeal by defendant from judgments entered 22 November 2002 by Judge Henry V. Barnette, Jr., in Wake County Superior Court. Heard in the Court of Appeals 22 August 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General Steven M. Arbogast, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant.

    GEER, Judge.

    Defendant James Merland Moore appeals from his convictions for the murder of Andre Dunn and the attempted murder of Jeremy Sanders. On appeal, defendant primarily contends that the trial court erred in failing to instruct the jury on the theory of perfect self-defense. Because, however, defendant testified that he fired only one shot and, when doing so, did not try to hit either of the victims, he was not entitled to a self-defense instruction under State v. Williams, 342 N.C. 869, 873, 467 S.E.2d 392, 394 (1996).

____________________
    Our Supreme Court has held that a defendant is entitled to a self-defense instruction "if there is any evidence in the record from which it can be determined that it was necessary or reasonably appeared to be necessary for him to kill his adversary in order to protect himself from death or great bodily harm." State v. Bush, 307 N.C. 152, 160, 297 S.E.2d 563, 569 (1982). When there is any evidence that defendant acted in self-defense, the trial court must instruct the jury on this aspect "even though there is contradictory evidence by the State or discrepancies in defendant's evidence." State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 818 (1974). In considering whether to give a self-defense instruction, the trial court must consider the evidence in the light most favorable to defendant. State v. Gappins, 320 N.C. 64, 71, 357 S.E.2d 654, 659 (1987).
Facts

    When the evidence is viewed in the light most favorable to defendant, it tends to show the following. In 2001, defendant and Andre Dunn were friends who also sold crack cocaine together. In early September 2001, they had a falling out. In the early morning hours of 10 September 2001, when defendant failed to give Dunn a ride as agreed, Dunn left several threatening messages on defendant's cell phone. Defendant played the messages for another friend, Terrell Jones, who then gave defendant a .38 revolver for protection. Later that day, Dunn and defendant had a brief altercation at an apartment where defendant was selling a customer crack cocaine. During the argument, defendant pulled out his gunand held it at his side, and, according to defendant, Dunn then told defendant that he wanted to kill defendant. When defendant picked up his girlfriend a short while after the altercation, defendant saw Dunn chasing after their car yelling that he wanted to kill defendant and acting as if he had a gun.
    In the early evening of 10 September 2001, while it was still light outside, defendant and Jones drove to a location in downtown Raleigh to purchase marijuana. According to defendant, when no one was home at the dealer's apartment, Jones and he began walking back to their car. As they turned a corner into an alley, they came upon Dunn and his half-brother Jeremy Sanders.
    Defendant testified that he saw Sanders pull out a gun, and that defendant responded by pulling out the .38 revolver that Jones had given him. According to defendant:
    A.    I only shot one time in [Sanders'] direction and I didn't try to hit him. He was _ he was close enough to me where if I was to shoot at him I could hit him, but I was not pointing the gun directly at none of his immediate area.

        I shot over his head. I wasn't trying to hit him at all. He was close enough for me to hit him, but I wasn't trying to hit him at all. I seen that he had a gun.

    Q.    And when you fired the shot what did you do?

    A.    After I fired a shot, I turned around, I seen him turn around. So I turned around back to my father's car.

During cross-examination, defendant agreed that he shot over Sanders "when [Sanders] was running away." According to defendant,at that point, Jones began firing repeated shots at Dunn and Sanders with a .9 millimeter handgun.
    The State presented evidence that defendant shot at Dunn as well. Sanders testified that he saw defendant jump around the corner and fire two shots at Dunn and that Dunn fell to the ground. As a result of a plea bargain, Jones also appeared as a witness for the State at defendant's trial. Jones testified that defendant took him to a location where he expected to find Dunn and Sanders. According to Jones, when they got there, defendant looked around the corner of a building and then stepped out firing. Jones testified that he saw Dunn fall. Jones admitted firing after Sanders as Sanders ran away. While defendant claimed that Jones had the .9 millimeter gun, Jones testified that defendant had the .9 millimeter and Jones kept the .38.
    Dunn ultimately was shot six times, with a shot traveling through his abdomen being fatal. The State offered evidence that the bullets and bullet fragments collected from Dunn's body were all fired from a .9 millimeter firearm. Twelve .9 millimeter shell casings, two bullets, and three bullet fragments were also collected at the crime scene. Another single bullet collected the next day from a nearby house was shot from a .38 or .357 caliber firearm.
    Defendant was convicted of first degree murder of Dunn and attempted first degree murder of Sanders. He was sentenced to life imprisonment without parole for the murder conviction and 151 to 191 months for the attempted murder conviction.

I

    Defendant contends that the trial court erred in failing to instruct the jury regarding perfect self-defense with respect to each charge. It is well-established that a defendant is entitled to an instruction on perfect self-defense when the evidence presented tends to show the following four elements:
            (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).
    With respect to the attempted murder of Sanders, defendant repeatedly claimed that he was not trying to actually shoot Sanders, but rather that he shot once over Sanders' head. Our Supreme Court held in Williams that comparable testimony precluded an instruction on self-defense. The Court explained:
    In the case sub judice, the defendant did not testify that he fired his weapon at the victim because he believed that deadly force was necessary to save himself from death or great bodily harm. Instead, the defendant testified that he fired his pistol three timesinto the air to scare Statan and the others [who were reaching for pistols] and make them retreat so he could leave the area. The defendant further testified that he did not know anyone had been shot until the next day and maintains that he never actually intended to shoot anyone. The defendant is not entitled to an instruction on self-defense while still insisting that he did not fire the pistol at anyone, that he did not intend to shoot anyone and that he did not know anyone had been shot. Clearly, a reasonable person believing that the use of deadly force was necessary to save his or her life would have pointed the pistol at the perceived threat and fired at the perceived threat. The defendant's own testimony, therefore, disproves the first element of self-defense.

Id. at 873, 467 S.E.2d at 394 (emphasis added). See also State v. Nicholson, 355 N.C. 1, 30, 558 S.E.2d 109, 130 (holding that the defendant was not entitled to a self-defense instruction when he denied shooting anyone and testified that he did not intend to hit anyone, but rather fired two shots into the floor as he ran out because he was afraid), cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71, 123 S. Ct. 178 (2002); State v. Reid, 335 N.C. 647, 671, 440 S.E.2d 776, 789 (1994) ("If what defendant contended was true, that he never aimed his gun at anyone, then the first requirement of self-defense, that defendant believed it necessary to kill the victim[,] would not be met." (internal quotation marks omitted)).
    Under Williams, defendant's testimony, even when considered in the light most favorable to him, is insufficient to support a finding as to the first element of self-defense: "that it was necessary or reasonably appeared to be necessary for him to kill his adversary in order to protect himself from death or great bodily harm." Bush, 307 N.C. at 160, 297 S.E.2d at 569. Based onour review of the record, we have found no other evidence that could support the required finding. When "no such evidence is presented, a defendant is not entitled to an instruction on self- defense." Nicholson, 355 N.C. at 30, 558 S.E.2d at 130. The trial court, therefore, did not err in declining to instruct the jury regarding self-defense with respect to the attempted murder charge.
    As to the first degree murder of Dunn, defendant first argues that he was entitled to a perfect self-defense instruction based on the doctrine of transferred intent. The doctrine of transferred intent provides:
        [W]here one is engaged in an affray with another and unintentionally kills a bystander or a third person, his act shall be interpreted with reference to his intent and conduct towards his adversary. Criminal liability, if any, and the degree of homicide must be thereby determined. Such a person is guilty or innocent exactly as the fatal act had caused the death of his adversary. It has been aptly stated that "The malice or intent follows the bullet."

State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971) (quoting State v. Rogers, 273 N.C. 330, 333, 159 S.E.2d 900, 902 (1968), overruled on other grounds by State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986)). Defendant argues that by virtue of transferred intent, if he was acting in self-defense with respect to Sanders, then he was entitled to an instruction on self-defense with respect to Dunn. See id. We need not, however, address this contention since we have concluded that defendant did not shoot at Sanders in self-defense.    Alternatively, defendant argues that he was entitled to a self-defense instruction on the murder charge because he was justified in feeling threatened by Dunn based on Dunn's threats throughout the day. The first and second elements of self-defense, however, "require a consideration of whether the 'victim did [something] to create a reasonable fear of imminent danger in the mind of a person of ordinary firmness.'" State v. Richardson, 341 N.C. 585, 592, 461 S.E.2d 724, 729 (1995) (alteration in original) (emphasis added) (quoting and overruling in part on other grounds, State v. Watson, 338 N.C. 168, 181, 449 S.E.2d 694, 702 (1994), cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569, 115 S. Ct. 1708 (1995)). "The term 'imminent,' as used to describe such perceived threats of death or great bodily harm as will justify a homicide by reason of perfect self-defense, has been defined as 'immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law.'" State v. Norman, 324 N.C. 253, 261, 378 S.E.2d 8, 13 (1989) (quoting Black's Law Dictionary 676 (5th ed. 1979)). Here, defendant's evidence does not suggest that Dunn was armed or threatening defendant in any way at the time of the murder, such that defendant could reasonably believe he was about to suffer immediate danger that had to be instantly met with force. Accordingly, the trial court also properly refused to give a self- defense instruction with respect to the first degree murder charge.

II

    Defendant has also filed a motion for appropriate relief pursuant to N.C. Gen. Stat. § 15A-1415(b)(7) (2003), arguing, based on State v. Watkins, __ N.C. App. __, 610 S.E.2d 746 (2005), that the indictment for attempted first degree murder was insufficient. In Watkins, this Court held that N.C. Gen. Stat. § 15-144 (2003), the short-form murder indictment statute, did not authorize the State to use a short-form indictment for attempted murder: "[T]he application of [N.C. Gen. Stat. § 15-144] to indictments for attempted murder goes beyond the plain language of the statute. Absent authority for a short-form indictment, the State must allege all essential elements of the crime charged." Id. at __, 610 S.E.2d at 750-51.
    Our Supreme Court, however, has recently held that an indictment for attempted first degree murder need only comply with the short-form indictment requirements of N.C. Gen. Stat. § 15-144. In State v. Jones, 359 N.C. 832, 838, 616 S.E.2d 496, 499 (2005), the Court stated:
        N.C.G.S. § 15-144, when construed alongside N.C.G.S. § 15-170, implicitly authorizes the state to utilize a short-form indictment to charge attempted first-degree murder. We further hold that when drafting such [an] indictment, it is sufficient for statutory purposes for the state to allege "that the accused person feloniously, willfully, and of his malice aforethought, did [attempt to] kill and murder" the named victim.

Under Jones, the indictment in this case for attempted first degree murder was sufficient. Defendant's motion for appropriate relief is, therefore, without merit.
    No error.
    Chief Judge MARTIN and Judge BRYANT concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***