in the Court of Appeals 28 November 2018.
by Defendant from judgment entered 27 October 2017 by Judge
Reuben F. Young in Wake County No. 17 CRS 205978 Superior
Attorney General Joshua H. Stein, by Assistant Attorney
General Donna B. Wojcik, for the State.
P. Lattimore, for defendant-appellant.
court must instruct a jury on self-defense where, taking the
evidence in the light most favorable to the defendant as
true, there is competent evidence to support such an
instruction. Failure to do so is error, even if the State
presents conflicting evidence. Additionally, a trial court
does not err in instructing the jury on flight evidence where
there is some evidence to reasonably support the theory that
the defendant fled after commission of the crime charged.
Here, there was evidence to support both a self-defense
instruction and a flight instruction. The trial court
committed prejudicial error by failing to instruct the jury
on self-defense, thus entitling Defendant to a new trial.
April 2017, Aubrey Chapman ("Chapman") attended the
birthday party of his cousin, Timothy Sims
("Sims"), at Red Bowl Asian Bistro in Raleigh. Also
in attendance at the party was Chapman's childhood
friend, Alan McGill ("McGill"). While McGill was
ordering a drink from the restaurant's bar and talking to
a female attendee, Defendant approached him. Defendant asked
McGill, "How do you know her? Where do you know her
from?" McGill responded that he did not want any
trouble. At this time, Defendant hit McGill in the face with
a closed fist. Chapman observed this sudden confrontation and
struck Defendant in the face. Security escorted Defendant out
of the restaurant. Chapman followed shortly thereafter,
stating, "This guy is ruining this party for
everybody." A group of people "stampeded out"
of the restaurant behind Chapman.
sequence of events after Defendant, Chapman, and the group of
attendees exited the restaurant conflicts. Chapman stated
that when he exited the restaurant, Defendant immediately
"came charging up" to him with an orange box cutter
in his hand. As Defendant approached him with the box cutter,
Chapman stated that he started "swinging" at
Defendant. At this time, Chapman recalled the crowd grew and
intervened. Chapman then stated that Defendant came charging
at him again with the box cutter and cut him below his left
kidney as Chapman tripped over a curb. Sims also recalled a
male rushing towards Chapman outside of the restaurant. One
of the security guards working the event also observed
Defendant charge towards Chapman twice and cut Chapman on his
back. Another security guard stated that [Chapman's]
"friends had realized that [Defendant] had a box cutter,
and [tried] to basically fight him and beat him up."
Amidst the altercation between Defendant and the group,
Reggie Penny ("Penny"), a security guard, was also
cut "on his front half and his back."
the injured security guard, and Sherrel Outlaw
("Outlaw"), an attendee, however, recalled a
different sequence of events outside of the restaurant. Penny
stated that he observed Defendant trying to reenter the
restaurant after being escorted out. As he was speaking with
Defendant, Penny recalled "two people rushing up to
[Defendant]" on both sides to start an altercation with
Defendant. Amidst the altercation, Penny observed the group
"kicking and stomping." Outlaw stated that she went
outside after hearing "commotion" inside the
restaurant. She then saw Defendant with "his hands
up" when "a group of guys [started] walking towards
him . . . ." At this time, Defendant "took a couple
of steps back and then there was a guy on the left side of
him that hit him in the face, and then there was a guy like
probably two steps to the right of [Defendant], and once he
got hit, the guy on the right side swung." Outlaw
stated, "that is when the group of guys started jumping
on him and I seen [sic] them go down." Outlaw stated
that she did not see Defendant with a weapon.
was indicted on two counts of Assault with a Deadly Weapon
Inflicting Serious Injury. At trial, Defendant requested a
jury instruction on self-defense using N.C. P.I. - Crim.
308.45. The trial court denied this request, stating, "I
don't believe that there is evidence that has been
presented that supports a self defense claim." The trial
court also overruled Defendant's objection to instructing
the jury on flight. A jury convicted Defendant for Assault
with a Deadly Weapon for the injuries sustained by Penny and
Assault with a Deadly Weapon Inflicting Serious Injury for
those sustained by Chapman. Defendant was sentenced to an
active term of 29 to 47 months.
Standard of Review
review a challenge to the trial court's decision
regarding jury instructions de novo. State v.
Osorio,196 N.C.App. 458, 466, 675 S.E.2d 144, 149
(2009). "Under a de novo review, the court
considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal." State v.
Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294
(2008) (citation and internal quotation marks omitted).
Defendant preserved his arguments regarding jury instructions
for appeal. Accordingly, he must demonstrate that "there
is a reasonable possibility that, had the error in question