State v. Parks , 264 N.C. App. 112 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-422
Filed: 19 February 2019
Wake County, No. 17 CRS 205978
STATE OF NORTH CAROLINA
v.
TOUSSANT LOVERTURE PARKS, Defendant.
Appeal by Defendant from judgment entered 27 October 2017 by Judge Reuben
F. Young in Wake County Superior Court. Heard in the Court of Appeals 28
November 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General Donna B.
Wojcik, for the State.
Joseph P. Lattimore, for defendant-appellant.
MURPHY, Judge.
A trial court must instruct a jury on self-defense where, taking the evidence in
the light most favorable to the defendant as true, there is competent evidence to
support such an instruction. Failure to do so is error, even if the State presents
conflicting evidence. Additionally, a trial court does not err in instructing the jury on
flight evidence where there is some evidence to reasonably support the theory that
the defendant fled after commission of the crime charged. Here, there was evidence
to support both a self-defense instruction and a flight instruction. The trial court
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Opinion of the Court
committed prejudicial error by failing to instruct the jury on self-defense, thus
entitling Defendant to a new trial.
BACKGROUND
On 2 April 2017, Aubrey Chapman (“Chapman”) attended the birthday party
of his cousin, Timothy Sims (“Sims”), at Red Bowl Asian Bistro in Raleigh. Also in
attendance at the party was Chapman’s childhood friend, Alan McGill (“McGill”).
While McGill was ordering a drink from the restaurant’s bar and talking to a female
attendee, Defendant approached him. Defendant asked McGill, “How do you know
her? Where do you know her from?” McGill responded that he did not want any
trouble. At this time, Defendant hit McGill in the face with a closed fist. Chapman
observed this sudden confrontation and struck Defendant in the face. Security
escorted Defendant out of the restaurant. Chapman followed shortly thereafter,
stating, “This guy is ruining this party for everybody.” A group of people “stampeded
out” of the restaurant behind Chapman.
The sequence of events after Defendant, Chapman, and the group of attendees
exited the restaurant conflicts. Chapman stated that when he exited the restaurant,
Defendant immediately “came charging up” to him with an orange box cutter in his
hand. As Defendant approached him with the box cutter, Chapman stated that he
started “swinging” at Defendant. At this time, Chapman recalled the crowd grew and
intervened. Chapman then stated that Defendant came charging at him again with
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the box cutter and cut him below his left kidney as Chapman tripped over a curb.
Sims also recalled a male rushing towards Chapman outside of the restaurant. One
of the security guards working the event also observed Defendant charge towards
Chapman twice and cut Chapman on his back. Another security guard stated that
[Chapman’s] “friends had realized that [Defendant] had a box cutter, and [tried] to
basically fight him and beat him up.” Amidst the altercation between Defendant and
the group, Reggie Penny (“Penny”), a security guard, was also cut “on his front half
and his back.”
Penny, the injured security guard, and Sherrel Outlaw (“Outlaw”), an
attendee, however, recalled a different sequence of events outside of the restaurant.
Penny stated that he observed Defendant trying to reenter the restaurant after being
escorted out. As he was speaking with Defendant, Penny recalled “two people rushing
up to [Defendant]” on both sides to start an altercation with Defendant. Amidst the
altercation, Penny observed the group “kicking and stomping.” Outlaw stated that
she went outside after hearing “commotion” inside the restaurant. She then saw
Defendant with “his hands up” when “a group of guys [started] walking towards him
. . . .” At this time, Defendant “took a couple of steps back and then there was a guy
on the left side of him that hit him in the face, and then there was a guy like probably
two steps to the right of [Defendant], and once he got hit, the guy on the right side
swung.” Outlaw stated, “that is when the group of guys started jumping on him and
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I seen [sic] them go down.” Outlaw stated that she did not see Defendant with a
weapon.
Defendant was indicted on two counts of Assault with a Deadly Weapon
Inflicting Serious Injury. At trial, Defendant requested a jury instruction on self-
defense using N.C.P.I. – Crim. 308.45. The trial court denied this request, stating, “I
don’t believe that there is evidence that has been presented that supports a self
defense claim.” The trial court also overruled Defendant’s objection to instructing the
jury on flight. A jury convicted Defendant for Assault with a Deadly Weapon for the
injuries sustained by Penny and Assault with a Deadly Weapon Inflicting Serious
Injury for those sustained by Chapman. Defendant was sentenced to an active term
of 29 to 47 months.
ANALYSIS
A. Standard of Review
We review a challenge to the trial court’s decision regarding jury instructions
de novo. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). “Under
a de novo review, the court considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669
S.E.2d 290, 294 (2008) (citation and internal quotation marks omitted). Defendant
preserved his arguments regarding jury instructions for appeal. Accordingly, he must
demonstrate that “there is a reasonable possibility that, had the error in question not
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been committed, a different result would have been reached at the trial out of which
the appeal arises.” N.C.G.S. § 15A-1443(a) (2017).
B. Self-Defense Instruction
Defendant first contends the trial court erred in failing to instruct the jury on
the use of deadly force in self-defense. We agree.
“It is the duty of the trial court to instruct the jury on all substantial features
of a case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546,
549 (1988). “When supported by competent evidence, self-defense unquestionably
becomes a substantial and essential feature of a criminal case . . . .” State v. Deck,
285 N.C. 209, 215, 203 S.E.2d 830, 834 (1974). For this reason, a defendant is entitled
to an instruction on self-defense when he or she presents competent evidence of such.
State v. Morgan, 315 N.C. 626, 643, 340 S.E.2d 84, 95 (1986). In determining whether
a defendant has presented competent evidence sufficient to support an instruction for
self-defense, we take the defendant’s evidence as true and consider it in the light most
favorable to the defendant. State v. Moore, 363 N.C. 793, 796, 688 S.E.2d 447, 449
(2010). Once this showing of competent evidence is made, “the court must charge on
this aspect even though there is contradictory evidence by the State or discrepancies
in defendant’s evidence.” State v. Anderson, 40 N.C. App. 318, 321, 253 S.E.2d 48, 50
(1979) (quoting State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 818 (1974)).
N.C.G.S. § 14-51.3 provides:
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(a) A person is justified in using force, except deadly force,
against another when and to the extent that the person
reasonably believes that the conduct is necessary to defend
himself or herself or another against the other’s imminent
use of unlawful force. However, a person is justified in the
use of deadly force and does not have a duty to retreat in
any place he or she has the lawful right to be if either of
the following applies:
(1) He or she reasonably believes that such force is
necessary to prevent imminent death or great bodily
harm to himself or herself or another.
(2) Under the circumstances permitted pursuant to
G.S. 14-51.2
N.C.G.S. § 14-51.3(a) (2017). However, subject to certain exceptions, our law does not
permit a defendant to receive “the benefit of self-defense if he was the aggressor” or
initially provokes the use of force against himself or herself. State v. Lee, ___ N.C.
App. ___, ___, 811 S.E.2d 233, 236 (2018); N.C.G.S. § 14-51.4(2) (2017). “An individual
is the aggressor if he or she aggressively and willingly enters into a fight without
legal excuse or provocation.” Lee, ___ N.C. App. at ___, 811 S.E.2d at 236. Moreover,
the limited circumstances under which an initial aggressor may regain his or her
right to use defensive force under N.C.G.S. § 14-51.4 are unavailable to a defendant
who used deadly force in his or her initial aggression. State v. Holloman, 369 N.C.
615, 628-29, 799 S.E.2d 824, 833 (2017).
Here, Defendant does not dispute the trial court’s finding that the box cutter
is a deadly weapon as a matter of law. Thus, we analyze the use of the box cutter in
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self-defense as the use of deadly force. Accordingly, our inquiry is into whether
Defendant presented competent evidence that he “reasonably believe[d] that such
force [was] necessary to prevent imminent death or great bodily harm to himself” so
as to warrant an instruction on self-defense.1 N.C.G.S. § 14-51.3(a)(1).
At trial, Defendant’s counsel asked Penny, “As you were talking to [Defendant],
the man who was hosting the party and his buddy came up and rushed around you
and attacked [Defendant]?” Penny replied, “Yes.” More explicitly, Penny testified
that “[t]hey attacked him.” Penny further stated that he did not see any weapon in
Defendant’s hand at that time. Outlaw, another attendee of the party, similarly
testified that she did not see a weapon in Defendant’s hand and that she observed the
group of people attack Defendant while he was backing up with his hands raised.
When the group attacked Defendant, Outlaw described it as a “riot,” with multiple
people hitting and kicking Defendant. Outlaw even testified that she believed
Defendant would die in the attack “because there was [sic] so many of them.” Taken
as true and in the light most favorable to Defendant, this evidence is sufficient to
support Defendant’s proposition that the assault on him gave rise to his reasonable
apprehension of death or great bodily harm. See State v. Whetstone, 212 N.C. App.
551, 560, 711 S.E.2d 778, 784-85 (2011) (finding sufficient evidence to support the
proposition that an assault on the defendant gave rise to his reasonable apprehension
1 N.C.G.S. § 14-51.3(a)(2) is inapplicable, as the circumstances permitted under N.C.G.S. § 14-
51.2 are inapplicable to this case.
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of death or great bodily harm when the defendant was knocked to the ground, held
there, and choked). As such, the trial court erred in failing to instruct the jury on the
use of self-defense.
The State contends that there is no evidence from which self-defense may be
inferred, arguing that all of the evidence indicates that Defendant was the initial
aggressor, thus depriving him of a self-defense instruction. The State is correct in its
recitation of some of the evidence presented showing that Defendant was the initial
aggressor of the altercation outside of the restaurant when he twice charged at
Chapman with a box cutter; however, the State omits the conflicting evidence from
Penny and Outlaw indicating that Defendant had not brandished a weapon and was
attacked without provocation when attendees flanked and attacked him on both
sides. The credibility of such evidence does not factor into our analysis, as we must
view the evidence in the light most favorable to Defendant and take such evidence as
true. We have “held that when a defendant’s evidence tended to show he acted in
self-defense, ‘the trial judge was obligated to instruct on self-defense but because the
State’s evidence tended to show that defendant was the aggressor, he properly
instructed further that self-defense would be an excuse only if defendant was not the
aggressor.” Lee, ___ N.C. App. at ____, 811 S.E.2d at 237 (quoting State v. Joyner, 54
N.C. App. 129, 135, 282 S.E.2d 520, 524 (1981)). With conflicting evidence, it was for
the jury to determine which individual was the initial aggressor.
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Having concluded the trial court erred in failing to instruct the jury on self-
defense, we must next determine whether Defendant has met his burden of showing
a reasonable possibility that, had this error not been committed, a different result
would have been reached. The State contends that no such reasonable possibility
exists, as “Defendant only put on one witness, Ms. Outlaw” and “[h]er testimony was
not credible.” However, the determination of the credibility of witness testimony
rests firmly with the jury. The trial court’s erroneous denial of Defendant’s request
for a self-defense instruction prevented the jury from considering whether Defendant
reasonably believed that deadly force was necessary to prevent imminent death or
great bodily harm to himself. See State v. Ramos, 363 N.C. 352, 356, 678 S.E.2d 224,
227 (2009) (“Evaluating the credibility of defendant’s testimony in light of the other
evidence was properly for the jury and the trial court’s instructional error prevented
the jury from considering the willfulness of defendant’s actions.”) Based on the
testimony of Penny and Outlaw, the trial court’s error was prejudicial, as there is a
reasonable possibility that the jury could have found that Defendant reasonably
believed deadly force to be necessary.
C. Flight Instruction
Defendant also contends that the trial court erred in instructing the jury that
it could consider Defendant’s alleged flight as evidence of guilt. We disagree.
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“A trial court may properly instruct on flight where there is some evidence in
the record reasonably supporting the theory that the defendant fled after the
commission of the crime charged.” State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596,
625 (2001) (citation and internal quotation marks omitted). “Mere evidence that
defendant left the scene of the crime is not enough to support an instruction on flight.
There must also be some evidence that defendant took steps to avoid apprehension.”
State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991). However, “[t]he
fact that there may be other reasonable explanations for defendant’s conduct does not
render the instruction improper.” State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833,
842 (1977).
The probative value of flight evidence has been “consistently doubted” in our
legal system, and we note at the outset that we similarly doubt the probative value
of Defendant’s alleged flight here. See Wong Sun v. U.S., 371 U.S. 471, 483 n. 10, 83
S.Ct. 407, 415 n. 10, 9 L.Ed.2d 441 (1963). However, there is “some evidence in the
record” that “reasonably support[s] the theory that the defendant fled after the
commission of the crime charged.” See Lloyd, 354 N.C. at 119, 552 S.E.2d at 625.
Sims reported to a responding officer that after Penny was injured, Defendant “took
off running[,]” and “the other bouncers chased after [Defendant] and tackled him to
the ground.” Moreover, Officer Michael Curci testified that Defendant “had run in
this direction so [the] victims were to my left and the suspect was to my right.” Such
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evidence reasonably supports the theory that Defendant not only left the scene of the
altercation, but also took steps to avoid apprehension. The trial court did not err in
instructing the jury on flight.
CONCLUSION
Although the evidence of self-defense presented at trial was conflicting, taking
the evidence in the light most favorable to Defendant as true, there was competent
evidence sufficient to support a self-defense instruction. This error was prejudicial.
The trial court, however, did not err in instructing the jury on flight. Defendant is
entitled to a new trial.
NEW TRIAL.
Judges STROUD and DIETZ concur.
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