State v. Holshouser ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1138
Filed: 3 September 2019
Iredell County, 15 CRS 55659
STATE OF NORTH CAROLINA
v.
CHRISTOPHER A. HOLSHOUSER, Defendant.
Appeal by Defendant from Judgment entered 18 July 2017 by Judge Julia
Lynn Gullett in Iredell County Superior Court. Heard in the Court of Appeals 24
April 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Hilda
Burnett-Baker, for the State.
Edward Eldred for defendant-appellant.
MURPHY, Judge.
Where a criminal defendant testifies at trial that he did not commit the offense
for which he has been charged, that defendant is not entitled to a jury instruction
regarding the affirmative defense of justification. Defendant Christopher A.
Holshouser testified at trial that he did not possess the shotgun he was charged with
possessing in violation of our law against the Possession of a Firearm by a Felon
(“PFF”). On appeal, Defendant argues the trial court committed plain error in failing
to provide a jury instruction regarding the affirmative defense of justification.
Because Defendant repeatedly testified that he did not possess the firearm in
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Opinion of the Court
question, the trial court did not commit plain error in forgoing an instruction
regarding justification.
BACKGROUND
On 28 September 2015, Deputy Leo Hayes and Detective Chris Lambreth, both
of the Iredell County Sheriff’s Office, responded to a domestic dispute involving “a
subject armed with a shotgun” at the home of Defendant. Upon their arrival,
Defendant met the officers on the front porch of his residence and denied knowing
anything about a shotgun. The officers explained that they had been told Defendant
had thrown the gun into the woods behind his house. Deputy Hayes testified at trial
that Defendant eventually admitted that he had thrown the shotgun into the woods
and told the deputy where he had thrown it. Upon running Defendant’s criminal
history, the officers learned he was a convicted felon. The officers then placed
Defendant under arrest for PFF.
At trial, Defendant testified that he had been involved in an altercation with
his stepson, Nick, on the night in question but had never possessed the shotgun that
was the subject of his indictment.1 In relevant part, Defendant testified, “I don’t think
I remember taking [the shotgun] from [Nick,]” and—when asked directly whether he
took possession of the gun—“[w]ell, that gun, no.”
1 Defendant was indicted for possessing “a New England Firearms Pardner Model 12 Gauge
Shotgun, which is a firearm.”
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At the conclusion of Defendant’s trial, the trial court read the pattern jury
instruction regarding PFF verbatim. There were no objections lodged regarding the
jury instructions. After deliberation, a jury unanimously found Defendant guilty of
PFF. Defendant was also found guilty of having attained habitual felon status and
sentenced to an active sentence of 120 to 156 months. Defendant timely appeals.
ANALYSIS
A. Jury Instruction
Defendant’s first argument on appeal is that the trial court committed plain
error in failing to instruct “the jury that he was not guilty of being a felon in
possession of a firearm if he acted in self-defense.” This argument is inconsistent
with our caselaw and overlooks the fact that Defendant testified at trial that he did
not possess the firearm in question. The trial court did not err in foregoing a jury
instruction as to the affirmative defense of justification.
Understanding Defendant’s argument requires some background explanation
of the crime of PFF and our caselaw relating to unpreserved jury instruction
arguments. Under N.C.G.S. § 14-415.1(a), there are two elements of a PFF offense:
“(1) the defendant has been convicted of a felony, and (2) the defendant subsequently
possessed a firearm.” State v. Floyd, 369 N.C. 329, 333, 794 S.E.2d 460, 463 (2016);
N.C.G.S. § 14-415.1(a) (2017). Although self-defense is not, per se, a defense to PFF,
it is inexorably intertwined with the defense of “justification” set out in United States
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Opinion of the Court
v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000), and adopted by a number of courts in
the context of PFF cases. See, e.g., State v. Mercer, 818 S.E.2d 375, 380-81 (N.C. Ct.
App. 2018); State v. Monroe, 233 N.C. App. 563, 564-65, 756 S.E.2d 376, 380 (2014),
aff’d, 367 N.C. 771, 768 S.E.2d 292 (2015) (reviewing cases). The Deleveaux rationale
requires a criminal defendant to produce evidence of the
following to be entitled to an instruction on justification as
a defense to a charge of [PFF]:
(1) that the defendant was under unlawful and present,
imminent, and impending threat of death or serious bodily
injury;
(2) that the defendant did not negligently or recklessly
place himself in a situation where he would be forced to
engage in criminal conduct;
(3) that the defendant had no reasonable legal alternative
to violating the law; and
(4) that there was a direct causal relationship between the
criminal action and the avoidance of the threatened harm.
State v. Edwards, 239 N.C. App. 391, 393-94, 768 S.E.2d 619, 621 (2015) (quoting
Deleveaux, 205 F.3d at 1297).
Prior to 2018, where a defendant was denied a special instruction pursuant to
Deleveaux at trial our court had repeatedly “assume[d] arguendo, without deciding,
that the Deleveaux rationale applies in North Carolina prosecutions for [PFF].”
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Mercer, 818 S.E.2d at 379.2 However, in Mercer, we applied the Deleveaux test where
the defendant “presented evidence that he grabbed the gun only after he heard guns
cocking and witnessed his cousin struggling with the gun[,]” and requested a special
instruction as to justification at trial. Id. at 380. The trial court explicitly denied the
defendant’s motion for special instruction regarding justification and, in essence, did
so a second time when—during their deliberation—the jury sent the trial court a note
asking for clarification as to whether justification applies as an affirmative defense
in PFF cases. Id. at 378. Based on the unique facts of Mercer, we held the defendant
“was entitled to have the jury instructed on justification as a defense to the charge of
possession of a firearm by a felon.” Id. at 380-81.
Based on our application of the Deleveaux factors in Mercer, Defendant argues
the justification defense is a substantial and essential feature of a PFF charge and
that, consequently, the trial court was required to present it to the jury. In making
this argument on appeal, Defendant relies upon our opinion in State v. Scaturro, 802
S.E.2d 500 (N.C. Ct. App. 2018), which holds, “[a] defendant’s failure to request an
instruction as to a substantial and essential feature of the case does not vitiate the
2 Shortly after we decided Mercer, our Supreme Court granted the State’s Motion for
Temporary Stay, 371 N.C. 480, 817 S.E.2d 209 (2018) (Memorandum), and subsequently granted the
State’s Petition for Writ of Supersedeas and Discretionary Review, 371 N.C. 573, 820 S.E.2d 809 (2018)
(Memorandum). We do not cite Mercer as binding authority, but only to show why Defendant advances
this specific argument on appeal. For the purposes of this case, we follow our precedent as it stood
when Defendant’s case was still before the trial court and assume arguendo without deciding that the
Deleveaux test applies in North Carolina PFF prosecutions. Mercer, 818 S.E.2d at 379 (citing Monroe,
233 N.C. App. at 569, 756 S.E.2d at 380).
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trial court’s affirmative duty [to instruct the jury upon that feature].” Id. at 506. The
facts of this case are markedly different from those of Scaturro, and Defendant’s
argument to the contrary is unavailing.
In Scaturro, the Defendant was charged with felony hit and run resulting in
serious bodily injury after he struck a cyclist with his car, drove the victim to the
hospital, and failed to return to the scene. Id. at 502-03. In charging the jury, the
trial court instructed that an essential element of the offense was that “the
defendant’s failure to remain at the scene of the crash was willful, that is intentional.”
Id. at 504. Willful action on the part of the defendant is an essential element of the
hit and run offense as it is set out in our criminal statutes. See N.C.G.S. § 20-166
(2017). We held the trial court committed plain error by failing to instruct the jury
“that an act is willful if it is without justification or excuse” and by “conflat[ing] willful
acts with intentional ones.” Scaturro, 802 S.E.2d at 507. At trial, the defendant’s
sole defense was that he was authorized and required by statute to leave the scene in
order to take the victim to the hospital. Id. We held the jury instruction deprived
the defendant of the “gravamen of his basis for acquittal” and ordered a new trial. Id.
In contrast to Scaturro, even assuming arguendo the Deleveaux rationale
applies in North Carolina it is not clear a justification defense is a “substantial and
essential feature” of a PFF charge. Again, the only two elements of PFF are (1) a
prior felony conviction, and (2) possession of a firearm. Unlike in Scaturro, there is
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nothing in the PFF statute that describes justification or self-defense as an element
of the offense. Compare N.C.G.S. § 14-415.1 with § 20-166. Additionally, there is no
North Carolina pattern jury instruction on the “justification” defense and the PFF
pattern instruction does not include any language regarding justification, necessity,
or self-defense. This is markedly different from the circumstances in Scaturro, where
willfulness was explicitly set out in the governing statute and defined in the pattern
instruction but the trial court chose not to read that instruction in its entirety.
Nevertheless, Defendant’s own testimony rendered an instruction on the
justification defense unavailable to him. Our self-defense caselaw dictates that a
defendant is not entitled to a self-defense instruction where he testifies that he did
not commit the underlying offense. State v. Williams, 342 N.C. 869, 873, 467 S.E.2d
392, 394 (1996); State v. Cook, 254 N.C. App. 150, 153, 802 S.E.2d 575, 577 (2017),
aff’d, 370 N.C. 506, 809 S.E.2d 566 (2018). As is true in the context of self-defense
claims, a defendant seeking to avail himself of the affirmative defense of justification
must show that he reasonably believed he was under an impending threat of death
or serious bodily injury. Williams, 342 N.C. at 872-73, 467 S.E.2d at 394; Deleveaux,
205 F.3d at 1297. Indeed, the affirmative defense of justification “does not negate
any element of [the charged crime],” but “serves only as a legal excuse for the criminal
act and is based on additional facts and circumstances that are distinct from the
conduct constituting the underlying offense.” Deleveaux, 205 F.3d at 1297-98.
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Consistent with our self-defense caselaw, a defendant is not entitled to an instruction
regarding justification where he testifies that he did not commit the criminal act at
all.
Here, Defendant was indicted for possessing “a New England Firearms
Pardner Model 12 Gauge Shotgun, which is a firearm.” At trial, Defendant testified
that he never possessed that gun, stating: “I don’t think I remember taking [the
shotgun] from [Nick,]” and—when asked directly whether he took possession of the
gun—“[w]ell, that gun, no.” Defendant repeatedly testified that he never committed
PFF because he never possessed the shotgun at issue. Consequently, Defendant was
not entitled to an instruction regarding justification, which is premised upon a
defendant’s having committed the offense with which he is charged but being legally
excused from punishment. The trial court did not err in forgoing such an instruction
during its jury charge.
B. Ineffective Assistance of Counsel
Defendant’s second argument on appeal is that his attorney rendered
ineffective assistance when he failed to request a special jury instruction regarding
the affirmative defense of justification.
To prove his counselor rendered ineffective assistance, a defendant must show
(1) “counsel’s representation fell below an objective standard of reasonableness[,]”
and (2) “there is a reasonable probability that, but for counsel’s unprofessional errors,
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the result of the proceeding would have been different.” State v. Allen, 360 N.C. 297,
316, 626 S.E.2d 271, 286 (2006) (quoting Wiggins v. Smith, 539 U.S. 510, 521, 534,
156 L. Ed. 2d 471, 484, 493 (2003)). IAC claims should be resolved through a Motion
for Appropriate Relief (“MAR”) in the trial court, rather than on direct appeal, unless
“the cold record reveals that no further investigation is required, i.e., claims that may
be developed and argued without such ancillary procedures as the appointment of
investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d
500, 524 (2001). Defendant’s IAC claim is exceptional in that it may be resolved based
on the cold record alone.
Defendant’s sole purported reason that he received IAC is that “his attorney’s
failure to ask for the instruction [regarding justification] constituted [IAC.]”
Defendant was not entitled to a justification instruction because he repeatedly
testified that he did not possess the shotgun he was charged with possessing.
Consequently, even if Defendant’s counsel had requested such an instruction the trial
court should not have granted his request. The fact that his attorney did not ask for
such an instruction did not have any impact on Defendant’s trial. As the lack of
prejudice is apparent from the cold record, we deny Defendant’s IAC argument.
CONCLUSION
The trial court did not err in forgoing a jury instruction as to the affirmative
defense of justification as Defendant’s testimony at trial made such a defense
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unavailable. Likewise, Defendant’s counsel did not render IAC by failing to request
a special instruction regarding the affirmative defense.
NO ERROR.
Judges DILLON and HAMPSON concur.
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