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State v. Holshouser

Court of Appeals of North Carolina

September 3, 2019

STATE OF NORTH CAROLINA
v.
CHRISTOPHER A. HOLSHOUSER, Defendant.

          Heard in the Court of Appeals 24 April 2019.

          Appeal by Defendant from Judgment entered 18 July 2017 by Judge Julia Lynn Gullett in Iredell County Superior Court.15 CRS 55659

          Attorney General Joshua H. Stein, by Special Deputy Attorney General Hilda Burnett-Baker, for the State.

          Edward Eldred for defendant-appellant.

          MURPHY, JUDGE.

         Where a criminal defendant testifies at trial that he did not commit the offense for which he has been charged, that defendant is not entitled to a jury instruction regarding the affirmative defense of justification. Defendant Christopher A. Holshouser testified at trial that he did not possess the shotgun he was charged with possessing in violation of our law against the Possession of a Firearm by a Felon ("PFF"). On appeal, Defendant argues the trial court committed plain error in failing to provide a jury instruction regarding the affirmative defense of justification. Because Defendant repeatedly testified that he did not possess the firearm in question, the trial court did not commit plain error in forgoing an instruction regarding justification.

         BACKGROUND

         On 28 September 2015, Deputy Leo Hayes and Detective Chris Lambreth, both of the Iredell County Sheriff's Office, responded to a domestic dispute involving "a subject armed with a shotgun" at the home of Defendant. Upon their arrival, Defendant met the officers on the front porch of his residence and denied knowing anything about a shotgun. The officers explained that they had been told Defendant had thrown the gun into the woods behind his house. Deputy Hayes testified at trial that Defendant eventually admitted that he had thrown the shotgun into the woods and told the deputy where he had thrown it. Upon running Defendant's criminal history, the officers learned he was a convicted felon. The officers then placed Defendant under arrest for PFF.

         At trial, Defendant testified that he had been involved in an altercation with his stepson, Nick, on the night in question but had never possessed the shotgun that was the subject of his indictment.[1] In relevant part, Defendant testified, "I don't think I remember taking [the shotgun] from [Nick, ]" and-when asked directly whether he took possession of the gun-"[w]ell, that gun, no."

         At the conclusion of Defendant's trial, the trial court read the pattern jury instruction regarding PFF verbatim. There were no objections lodged regarding the jury instructions. After deliberation, a jury unanimously found Defendant guilty of PFF. Defendant was also found guilty of having attained habitual felon status and sentenced to an active sentence of 120 to 156 months. Defendant timely appeals.

         ANALYSIS

         A. Jury Instruction

         Defendant's first argument on appeal is that the trial court committed plain error in failing to instruct "the jury that he was not guilty of being a felon in possession of a firearm if he acted in self-defense." This argument is inconsistent with our caselaw and overlooks the fact that Defendant testified at trial that he did not possess the firearm in question. The trial court did not err in foregoing a jury instruction as to the affirmative defense of justification.

         Understanding Defendant's argument requires some background explanation of the crime of PFF and our caselaw relating to unpreserved jury instruction arguments. Under N.C. G.S. § 14-415.1(a), there are two elements of a PFF offense: "(1) the defendant has been convicted of a felony, and (2) the defendant subsequently possessed a firearm." State v. Floyd, 369 N.C. 329, 333, 794 S.E.2d 460, 463 (2016); N.C. G.S. § 14-415.1(a) (2017). Although self-defense is not, per se, a defense to PFF, it is inexorably intertwined with the defense of "justification" set out in United Statesv. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), and adopted by a number of courts in the context of PFF cases. See, e.g., State v. Mercer, 818 S.E.2d 375, 380-81 ( N.C. ...


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