State v. Roberson

368 S.E.2d 3 (1988)

STATE of North Carolina v. George Wayne ROBERSON.

No. 8715SC1039.

Court of Appeals of North Carolina.

May 17, 1988.

*5 Atty. Gen., Lacy H. Thornburg by Asst. Atty. Gen., J. Bruce McKinney, Asheville, for State.

Office of the Appellate Defender by Asst. Appellate Defender Teresa A. McHugh, Raleigh, for defendant-appellant.

WELLS, Judge.

The defendant brings forward five assignments of error. We overrule them all and find no error.

By his first assignment of error defendant contends the trial court erred in sustaining an objection to defendant's testimony as to the above-mentioned menacing statement. This assignment is meritless. Defendant testified: "They were talking about whipping somebody's butt." Although the trial court sustained an objection to this testimony, apparently on hearsay grounds, the statement was not stricken from the record, nor was the jury admonished not to consider it. Thus, the statement was effectively before the jury, and the prosecutor's objection presumably only highlighted it. Under such circumstances, we find no prejudice to the defendant in the court's ruling. See State v. Britt, 285 N.C. 256, 204 S.E.2d 817 (1974).

By his second assignment the defendant contends that the trial court should have dismissed the prosecution at the close of all the evidence for insufficiency of evidence. This assignment is also meritless. In evaluating a motion to dismiss in a criminal case the court must consider the evidence in the light most favorable to the State and determine "whether there is substantial evidence of each element of the crime charged and of the defendant's perpetration of such crime." State v. Bates, 309 N.C. 528, 308 S.E.2d 258 (1983).

Defendant argues that the evidence in the present case, considered in its best light, established defense of habitation *6 and self-defense as a matter of law. However, the State's evidence showed that Bradsher made no threat of physical assault upon the defendant. At most, the evidence shows a vigorous pounding, or kicking, upon the mobile home door by Bradsher depending on whether one believes the State's witnesses or defendant's account. There was no evidence that Bradsher was armed nor any testimony that he attempted to force the door's lock or doorknob. A defense of habitation requires that an intruder try to force an entrance into a dwelling "in a manner such as would lead a reasonably prudent man to believe that the intruder intends to commit a felony or to inflict some serious personal injury upon the inmates." State v. Miller, 267 N.C. 409, 148 S.E.2d 279 (1966) (emphasis added). The evidence presented in the present case does not establish that defendant acted in reasonable defense of habitation as a matter of law, and the trial court correctly concluded that the issue of the reasonableness of defendant's conduct was for the jury to decide. We find that the law of self-defense is irrelevant to the resolution of this case because the deceased never gained entry into defendant's home. Once an assailant gains entry into an occupied dwelling, the usual rules of self-defense replace the rules governing defense of habitation. State v. McCombs, 297 N.C. 151, 253 S.E.2d 906 (1979).

Defendant further contends that the State's evidence, considered in its best light, failed to show evidence of malice, which is essential to a proof of second-degree murder. However, as stated above, Wilkerson testified that Bradsher called out a couple of times, "Wayne, come out. I need to talk to you. We need to talk." Dixie Lee Bradsher, deceased's mother, testified that she had been to the M & W Trailer Park several times either to pick up or drop off Diane Geyer. The deceased's father testified that he had heard his son speak of the defendant as a friend of Ms. Geyer. As indicated above, there was no evidence that Bradsher assaulted or even threatened the defendant. Cumulatively, this was evidence from which, viewed in the light most favorable to the State, a jury might reasonably infer that defendant knew who was at his door, knew why he was there, and intentionally and with malice fired his rifle.

By his fourth assignment, defendant contends that the court erred in refusing to instruct the jury on imperfect defense of home. We disagree. First, our State has not recognized imperfect defense of habitation as a principle of justification or exculpation, and we decline to recognize this defense in this case. Second, the instruction of imperfect defense of habitation to which defendant claims he was entitled is inconsistent with the recognized defense of habitation rule and is less favorable than the instruction actually given by the court. The court instructed on defense of habitation as follows:

The defendant was justified in using deadly force only to prevent a forcible entry into his home and only if he reasonably believed that such force was necessary to prevent the entry and the circumstances at the time were such that he reasonably feared death or great bodily harm to himself or to other occupants of the home at the hands of the person seeking entry, or reasonably believed that such person intended to commit a felony in the home. It is for you, the jury, to determine the reasonableness of the defendant's apprehension or belief from the circumstances as they appeared to him at the time.

Defendant contends that the jury should have been charged additionally that if it found that defendant reasonably believed that it was necessary to act in defense of his home, but also found that he used excessive force, it must return a verdict of guilty of voluntary manslaughter. We hold, however, that the court properly instructed the jury to acquit the defendant if it should determine that defendant reasonably believed deadly force was necessary under the circumstances. As our Supreme Court elaborated in State v. McCombs, supra, one justification for the defense of habitation rule is the need to afford protection to occupants of a dwelling under circumstances *7 where there is no opportunity to see the intruder or clearly ascertain his purpose. Where an unknown assailant attempts to force entrance into a home, there is no duty to calibrate with the precision of 20/20 hindsight the lawful measure of force to repel. Any proof, or finding, of "excessive force" may be irrelevant and in any case will not vitiate, or render imperfect, a defense of habitation defense where the defendant reasonably believed that deadly force was necessary to protect himself or other occupants from serious injury, or reasonably believed that the intruder intended to commit a felony in the home.

We have carefully examined defendant's third and fifth assignments and find them to be without merit.

No error.

PARKER and ORR, JJ., concur.