Heard in the Court of Appeals 20 August
by defendant from judgment entered on or about 15 December
2017 by Judge William W. Bland in Superior Court, Wayne
County. No. 16CRS050564
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Melissa H. Taylor, for the State.
Franklin E. Wells, Jr., for defendant-appellant.
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
court's 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 defendant's trial .
State's 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. Lancaster's son went into
defendant's 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.
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 defendant's
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
made several more motions, particularly regarding
self-defense and the alleged defender's reasonable belief
of the need to use force. Defendant did argue for defense of
habitation. The trial court then stated,
I'm going to talk with each of the lawyers as we do this,
so we kind of have an idea what's coming, and then get it
firmly on the record. . . . Let's officially be in recess
until a quarter to 2:00, and but let me speak to you all in
return to the courtroom the trial court stated, "I
appreciate the assistance and professional attitude of
counsel as we worked through lunch addressing some of these
issues." The trial court listed the introductory pattern
jury instructions it intended to give and ...