Heard in the Court of Appeals August 28, 2014.
Wayne County. Nos. 06 CRS 52247, 06 CRS 52308.
Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.
John R. Mills for defendant-appellant.
GEER, Judge. Judge STEELMAN concurs in the result per separate opinion. Judge ROBERT N. HUNTER, JR. concurred in this opinion prior to 6 September 2014.
Appeal by defendant from judgments entered 16 August
2013 by Judge Jack W. Jenkins in Wayne County Superior Court.
Defendant Bobby Lee Rawlings appeals his convictions of attempted first degree murder, two counts of assault with a firearm on a law enforcement officer, assault with a deadly weapon with intent to kill (" AWDWIK" ), and assault with a deadly weapon. On appeal, defendant primarily argues that the trial court erred in instructing the jury pursuant to N.C. Gen. Stat. § 14-51.4 (2013) that self-defense is not available to a person who used defensive force in the commission of a felony. Defendant asserts that the General Assembly did not intend N.C. Gen. Stat. § 14-51.4 to apply when the defendant was committing a non-violent felony and was not an aggressor.
We do not address defendant's statutory construction argument because N.C. Gen. Stat. § 14-51.4 only applies to offenses occurring on or after 1 December 2011 and is, therefore, inapplicable to the 15 March 2006 offenses charged in this case. Although defendant did not recognize the inapplicability of the provision and, as a result, did not raise the issue at trial or on appeal, we have elected, in our discretion, to invoke Rule 2 of the Rules of Appellate Procedure and review the instruction for plain error. We hold that while the trial court erred in instructing the jury regarding a statutory amendment to the law of self-defense that had an effective date after the date of the offenses in this case, defendant has failed to meet his burden of showing that he was prejudiced by the instruction.
Defendant additionally argues that his convictions violate double jeopardy and that the trial court erred in entering judgment on AWDWIK when the jury returned a verdict of assault with a deadly weapon. We hold that defendant waived the double jeopardy argument and remand for correction of the judgment.
The State's evidence tended to show the following facts. On 15 March 2006, at about 9:40 a.m., 11 officers from the Goldsboro Police Department (" GPD" ) and the Drug Enforcement Agency assembled at defendant's residence to execute a search warrant. Officer Daniel Peters of the GPD knocked on the back door and yelled, " Police, search warrant." He then struck the door with a ram three or four times but was unable to open it because there were two-by-fours propped up against the door from the inside to keep it shut. Eventually one of the officers was able to break the door off its hinges, and the officers entered the house.
Once inside, Officer Peters proceeded upstairs with Sergeant Max Staps of the Wayne County Sheriff's Office and Captain Brady Thompson of the GPD, announcing, again, " ...