in the Court of Appeals 24 April 2019.
by Defendant from Judgment entered 18 July 2017 by Judge
Julia Lynn Gullett in Iredell County Superior Court.15 CRS
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Hilda Burnett-Baker, for the State.
Eldred for defendant-appellant.
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.
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.
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. 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."
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.
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.
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 (