State v. Larson
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-163 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 STATE OF NORTH CAROLINA v. Guilford County No. 11 CRS 78597 DANIEL FRED LARSON Appeal by defendant from judgment entered 9 August 2012 by Judge Anderson D. Cromer in Guilford County Superior Court. Heard in the Court of Appeals 27 August 2013. Attorney General Roy Cooper, by Special General Kimberly D. Potter, for the State. Deputy Attorney Law Office of Glen Gerding, by Glen Gerding for defendantappellant. STEELMAN, Judge. Where defendant failed to request or object to jury instructions and failed to show prejudice, the trial court did not commit defense. plain Where error in its instructions defendant was found guilty concerning of self- first-degree murder based upon the felony murder rule, the trial court erred in failing to arrest judgment on the underlying felony. -2- I. Factual and Procedural History On 11 June 2011, following Larson (defendant) shot and latter was away in following driving evening, a killed failed William defendant s defendant turned drug deal, Kennedy, motor himself Daniel as vehicle.1 in to the The law enforcement. Defendant was charged with non-capital first-degree murder, and the felony of discharging a firearm into a vehicle while occupied and in operation, inflicting serious bodily injury. On 9 August 2012, the jury found defendant guilty of discharging a firearm into a vehicle, and of first-degree murder based upon the felony murder rule. The jury did not find defendant guilty of based first-degree deliberation. murder upon malice, premeditation and The trial court consolidated the convictions for judgment and sentenced defendant to life imprisonment without parole. Defendant appeals. II. Jury Instructions 1 There was conflicting testimony as to whether Kennedy attempting to escape from defendant in the vehicle, or attempting to run over defendant. was was -3In his first and second arguments, defendant contends that the trial court erred by failing to instruct the jury on selfdefense, including failing to give a final mandate concerning self-defense, and committed plain error by instructing the jury that defendant could not avail himself of self-defense if he was the aggressor. We disagree. A. Standard of Review [Arguments] challenging the trial court s decisions regarding jury instructions are reviewed de novo by this Court. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). The prime purpose of a court s charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence. State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d 1153 (1974). [A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial. Id. Where jury instructions are given without supporting evidence, a new trial is required. State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995). Where a jury instruction is not requested and no objection is given to its omission, we review the omission on appeal for -4plain error. State v. Davis, 177 N.C. App. 98, 102, 627 S.E.2d 474, 477 (2006). For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. See Odom, 307 N.C. at 660, 300 S.E.2d at 378. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. See id. (citations and quotation marks omitted); see also Walker, 316 N.C. at 39, 340 S.E.2d at 83 (stating that absent the error the jury probably would have reached a different verdict and concluding that although the evidentiary error affected a fundamental right, viewed in light of the entire record, the error was not plain error). State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). B. Self-Defense Instruction Defendant instructed the concedes jury in on his brief first-degree that the trial court murder based upon premeditation and deliberation and upon felony murder, for which the underlying felony was the discharge of a firearm into a vehicle; that the trial court instructed the jury on the lesserincluded offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter; that the trial court instructed the jury on perfect self-defense as to the first- and -5second-degree murder charges, and imperfect self-defense as to the voluntary manslaughter charge; and that the trial court instructed the jury on the elements of discharging a firearm into an occupied vehicle. Defendant contends, however, that the trial court did not give a complete instruction concerning selfdefense, as set out in the North Carolina Criminal Pattern Jury Instructions, with regard to the discharging a firearm charge. Defendant failed to object to instructions during the charge conference. review these arguments for plain error. the trial court s Accordingly, we only The burden rests upon defendant to show that, absent this alleged error, the jury probably would have reached a different verdict. In reviewing the record as a whole, including the testimony of witnesses and defendant s own confession, we are not convinced that the jury probably would have reached a different verdict had this instruction been included. While the trial court did not give the recommended instruction with regard to the discharging a firearm charge, it did give a complete selfdefense instruction with regard to the homicide charge. The trial court also instructed the jury that a lack of self-defense was an element that the State was required to prove as to the charge of discharging a firearm. The trial court s instructions -6were clear and unambiguous. to suggest that the Defendant has offered no argument trial court s refusal to repeat the identical self-defense instruction given in connection with the homicide charge somehow prejudiced discharging a firearm case. the outcome of the We hold that the trial court did not commit plain error in omitting an instruction that was not requested by defendant and to the omission of which defendant did not object. This argument is without merit. C. Aggressor Exception Defendant further contends that the trial court erred in instructing the jury that defendant would not be excused by reason of self-defense if he was the aggressor in provoking a fight[.] Defendant contends that there was no evidence in the record to support the notion that defendant was the aggressor, and that it was therefore inappropriate for the trial court to instruct the jury concerning this subject. We review this instruction for plain error. the record, the facts of the case show that In examining defendant and Kennedy were involved in a drug deal, that Kennedy did not pay defendant, that when defendant discovered that he had not been paid, he pursued Kennedy with a gun, and that when Kennedy -7sought to flee in defendant s vehicle, defendant shot Kennedy. There was sufficient evidence that defendant was the aggressor to support the instruction of which defendant complains, in that he (1) pursued Kennedy, (2) with a gun, (3) while Kennedy was attempting to flee. This evidence supports the trial court s instruction on the aggressor exception. failed to convince us that, Further, defendant has absent the trial court s instructions on the aggressor exception, the jury probably would have reached a different verdict. did not commit plain error by We hold that the trial court instructing the jury on the aggressor exception to self-defense. III. Underlying Felony In his third argument, defendant contends that the trial court erred by failing to arrest judgment on discharging a firearm into an occupied vehicle. the charge of We agree. Our law is clear that if the State secures an indictment for the underlying felony and a defendant is convicted of both the underlying felony and felony murder, the defendant will only be sentenced for the murder. State v. Dudley, 151 N.C. App. 711, 716, 566 S.E.2d 843, 847 (2002), disc. review denied, 356 N.C. 684, 578 S.E.2d 314 (2003). Thus, the underlying felony must be arrested under the merger rule. Id. State v. Young, 186 N.C. App. 343, 353, 651 S.E.2d 576, 583 (2007). In Young, we held that where judgment on the underlying -8felony was not arrested, the case must be remanded to arrest judgment on the underlying felony. In the instant case, even though the convictions were consolidated for judgment, judgment on the underlying felony conviction must be arrested. this case to the trial court, with instructions We remand to arrest judgment on the underlying felony of discharging a firearm into a vehicle while occupied and in operation, inflicting serious bodily injury. IV. Conclusion The trial court did not commit plain error in its selfdefense instructions to the jury. The trial court erred in failing to arrest judgment on the underlying felony. We remand this matter to the trial court for entry of an order arresting judgment on the charge of discharging a firearm into a vehicle while occupied and in operation, inflicting injury. NO ERROR IN PART, REMANDED IN PART. Judges McGEE and ERVIN concur. Report per Rule 30(e). serious bodily
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