in the Court of Appeals 20 August 2019.
by defendant from judgment entered on or about 15 December
2017 by Judge William W. Bland in Superior Court, Wayne
County, No. 16CRS050564.
General Joshua H. Stein, by Special Deputy Attorney General
Melissa H. Taylor, for the State.
E. Wells, Jr., Asheboro, for defendant-appellant.
Defendant appeals a judgment convicting him of assault with a
deadly weapon inflicting serious injury. On appeal defendant
argues the trial court should have instructed the jury on
defense of habitation based upon North Carolina General
Statute § 14-51.2. Because defendant invited any error in the
trial courts instructions as to self-defense and defense of
habitation, defendant has waived review of this issue,
including plain error review. We thus conclude there was no
error in defendants trial.
States evidence showed that Mr. William Howard Lancaster,
Jr. had owned the home where he also resided for 32 years.
Mr. Lancaster was an acquaintance of defendant and allowed
defendant to move into the home at a time when defendant was
struggling to find a stable living arrangement. Defendant
occasionally paid Mr. Lancaster for the accommodations. Mr.
Lancaster did not consider himself to be renting the room but
rather "helping [defendant] out" until he was able
to get a job and move. Defendant lived with Mr. Lancaster for
approximately four months, and in February of 2016, Mr.
Lancaster asked defendant to leave. Shortly thereafter, Mr.
Lancaster went to the home with Tony Anderson. Mr. Anderson
and defendant got into an argument and a physical altercation
ensued. Mr. Lancaster testified he saw defendant hit Mr.
Anderson with a crowbar and a bat and spray fire at Mr.
Anderson using an aerosol can and a lighter. Mr. Lancaster
tried to break up the fight, and defendant stabbed him in the
leg with a knife from his back pocket.
also testified in his own defense. Defendant said he was
renting a room from Mr. Lancaster. One Friday Mr. Lancaster
came home and told defendant if he messed with one of the
women who was visiting the home he would "cut [his] guts
out." Defendant left the house on Saturday morning and
did not return until Sunday. Defendant was packing up when
Mr. Lancaster and his son threatened defendant; defendant
called 911. The police came and when they left, Mr.
Lancaster, Mr. Anderson, and Mr. Lancasters son went into
defendants room, "cornered me in the back of my bedroom
and was jumping at me" and threatened defendant.
Defendant called 911 again because he "needed
help," and he "was scared they were going to, you
know, really hurt me, jump on me." Defendant claimed he
was defending himself when he pulled out the knife.
Defendant was indicted for assault with a deadly weapon with
intent to kill inflicting serious injury and attempted
voluntary manslaughter. The trial court dismissed some of the
charges against defendant and submitted only assault with a
deadly weapon inflicting serious injury to the jury, and the
jury found defendant guilty. The trial court entered judgment
and sentenced defendant to a minimum of 29 months and a
maximum of 44 months imprisonment. Defendant appeals.
Preservation of Issue on Appeal
only issue on appeal is whether the trial court erred in
failing to instruct the jury on defense of habitation. The
State contends defendant failed to preserve this issue for
appeal because he did not request an instruction regarding
defense of habitation. Defense of habitation was discussed
from the beginning of the trial, based upon a pretrial
motion, until the end, during the charge conference.
Defendant filed several motions prior to trial; one alleged
he was immune from prosecution based upon defense of
habitation under North Carolina General Statutes § § 14.51.2
and 15A-954. The trial court denied defendants pretrial
motion to dismiss based upon "immunity" from
prosecution and defendant has not challenged this ruling
appeal. After all of the evidence was presented, defendant