State v. Stone , 73 N.C. App. 691 ( 1985 )

JOHNSON, Judge.

Defendant’s initial contention is that the trial court erred in excluding evidence of specific acts committed by the victim which would have shown that the victim had a propensity for danger and violence. This assignment is not supported by an exception duly taken at trial and therefore presents no question for appellate review. State v. Green, 280 N.C. 431, 185 S.E. 2d 872 (1972); Rule 10, Rules of Appellate Procedure. Nevertheless, upon examination of the record, we find the exclusion of defendant’s evidence proper.

Defendant contends the trial court excluded evidence that the victim, on prior occasions, had violently knocked holes in the walls of his bedroom and had violent arguments with his girlfriend who was the defendant’s sister. In a criminal prosecution for homicide, if there is a proper showing that the accused may have acted in self-defense or some comparable justification, evidence of specific acts of violence committed by the victim is admissible. State v. Johnson, 270 N.C. 215, 154 S.E. 2d 48 (1967); 1 Brandis, N.C. Evidence sec. 106 (rev. ed. 2d). However, as a condition precedent to the admissibility of such evidence, the defendant must first present viable evidence of the necessity of self-defense. State v. Allmond, 27 N.C. App. 29, 217 S.E. 2d 734 (1975). This logically extends to defense of others, which was defendant’s justification in the case sub judice. At the time defendant sought to elicit the excluded evidence, he had introduced no evidence as to the defense of others. No evidence having been presented, the court did not err in sustaining the objections to the inquiries in question. See State v. Green, 62 N.C. App. 1, 301 S.E. 2d 920, affirmed; modified on other ground, 309 N.C. 623, 308 S.E. 2d 326 (1983).

Defendant’s second contention cites as error the trial court’s denial of his motion to dismiss the charge of second degree murder. On a motion to dismiss, the evidence is considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Simmons, 57 N.C. App. 548, 550, 291 S.E. 2d 815, 817 (1982). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. State v. Gray, 56 N.C. App. 667, 672, 289 S.E. 2d 894, 897, disc. rev. denied, 306 N.C. 388, 294 S.E. 2d 214 (1982).

When considered in light of the foregoing principles, we hold the State’s evidence was sufficient to withstand a motion to dismiss. The State’s evidence tended to show that the defendant was awakened by screaming and shouting by his sister and the victim in another room. Defendant then searched for his pistol in his bedroom, but not finding the pistol took down a rifle from a gun rack in the den. Defendant entered the bedroom of his sister and the victim with the gun in his possession. There was evidence that the victim was not in possession of a weapon when the gun in the possession of the defendant went off and killed the victim. Upon being questioned about the series of events, defendant responded, “I shot that son-of-a-bitch, Shelton.” Defendant then left in a truck and eventually threw the rifle over a bridge. The trial court properly denied defendant’s motion to dismiss.

Defendant’s final contention is that the trial court erred in instructing the jury on defense of others. Again, defendant has failed to comply with the Rules of Appellate Procedure. No party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection. Rule 10(b)(2), Rules of Appellate Procedure. Defendant did not object to the jury instructions during the trial proceedings, thus is prevented from raising it on appeal.

Nevertheless, we have reviewed the jury instructions and find defendant’s contention is without merit. The trial court instructed the jury pursuant to the North Carolina Pattern Jury Instructions. N.C.P.I. Crim. 308.60, “Killing In Lawful Defense of a Family Member.” Defendant cited the trial court’s use of the term “self-defense” at different times of the instructions as error. We find that so overbalanced was the charge on the defense of others, that the jury was not misled by the infrequent mention of the term “self-defense.” Taken as a whole, we find no prejudicial error in the jury instructions as given.

No error.

Judges BECTON and MARTIN concur.