               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-152

                                       Filed: @

Wake County, No. 13 CRS 205985

STATE OF NORTH CAROLINA

              v.

JORGE JUAREZ, Defendant.


        Appeal by defendant from judgment entered 6 June 2014 by Judge Robert H.

Hobgood in Wake County Superior Court. Heard in the Court of Appeals 26 August

2015.


        Roy Cooper, Attorney General, by I. Faison Hicks, Special Deputy Attorney
        General, for the State.

        Staples Hughes, Appellate Defender, by Emily H. Davis, Assistant Appellate
        Defender, for defendant-appellant.


        ZACHARY, Judge.


        Where the felony of discharging a firearm into an occupied vehicle while it is

in operation does not merge into felony murder, the trial court did not err in denying

defendant’s motion to dismiss the charge of first-degree murder based upon the felony

murder rule. Where perfect self-defense was a defense to the underlying felony, the

trial court erred in refusing to instruct the jury on lesser included offenses to felony

murder. Where evidence showed that defendant withdrew, the trial court committed

plain error in instructing the jury on the aggressor doctrine of self-defense.
                                 STATE V. JUAREZ

                                 Opinion of the Court



                      I. Factual and Procedural Background

      On the evening of 29 October 2012, Jorge Juarez (defendant) was drinking beer

and smoking marijuana with Marcos Chaparro, Karen Gonzales, Erick Martinez, and

Karina Rodriguez at Chaparro’s residence in Durham. Around 11:30 p.m., the group

traveled in Chaparro’s four-door Acura to take Rodriguez to her home at the Foxhall

Village development in Raleigh. At approximately 12:00 a.m. on 30 October 2012,

the vehicle arrived at Rodriguez’ house in Foxhall Village. After dropping Rodriguez

off, Chaparro and Martinez proceeded to break into vehicles nearby to steal car

stereos. Martinez took Chaparro’s baseball bat along for protection. Chaparro asked

to carry defendant’s gun, but defendant refused.

      Awakened by the noise, Foxhall Village resident Alfonso Canjay and his wife

Silvia looked out of their window and saw Chaparro and Martinez “trying to steal

something.” Canjay chased Chaparro and Martinez, who fled back to the Acura;

Canjay pursued them with a machete in his white Ford Focus. After eluding Canjay,

Chaparro and Martinez returned to his residence and stole a stereo. Minutes later,

Canjay, in his Ford Focus, spotted Chaparro and Martinez in the Acura and sped

towards them, colliding twice with their vehicle. After the second impact, defendant

fired one gunshot at Canjay’s vehicle, shattering the driver’s window. Immediately

after the shooting, Gonzalez drove Chaparro, Martinez, and defendant back to

Durham.



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                                   Opinion of the Court



      Defendant was indicted for the first-degree murder of Canjay. On 6 June 2014,

a jury found defendant guilty of first-degree murder pursuant to the felony murder

rule, with the underlying felony being discharging a firearm into an occupied vehicle

that is in operation. The trial court sentenced defendant to life imprisonment without

parole.

      Defendant appeals.

                                 II. Motion to Dismiss

      In his first argument, defendant contends that the trial court erred in denying

his motion to dismiss. We disagree.

                                 A. Standard of Review

      The standard of review is not disputed. “This Court reviews the trial court’s

denial of a motion to dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d

29, 33 (2007). “‘Upon defendant’s motion for dismissal, the question for the Court is

whether there is substantial evidence (1) of each essential element of the offense

charged, or of a lesser offense included therein, and (2) of defendant’s being the

perpetrator of such offense. If so, the motion is properly denied.’” State v. Fritsch, 351

N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430

S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “In

making its determination, the trial court must consider all evidence admitted,

whether competent or incompetent, in the light most favorable to the State, giving



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                                   Opinion of the Court



the State the benefit of every reasonable inference and resolving any contradictions

in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,

515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

                                      B. Analysis

      At the close of the State’s evidence, defendant moved to dismiss the charge of

first-degree murder. This motion was denied, renewed at the close of all the evidence,

and denied again. Defendant contends that the trial court erred in denying this

motion because the underlying felony of discharging a firearm into an occupied

vehicle could not support a felony murder conviction.

      Felony murder is “[a] murder . . . committed in the perpetration or attempted

perpetration of any arson, rape, or a sex offense, robbery, kidnapping, burglary, or

other felony committed or attempted with the use of a deadly weapon,” and constitutes

first-degree murder, punishable by life imprisonment. State v. Wall, 304 N.C. 609,

612, 286 S.E.2d 68, 70 (1982) (emphasis in original) (citations omitted); see also N.C.

Gen. Stat. § 14-17 (2013). The existence of some underlying felony is an essential

element of felony murder.

      Defendant contends that, pursuant to the doctrine of merger, the underlying

felony of discharging a firearm into an occupied vehicle merges into the charge of

first-degree murder and thus cannot support the charge. This analysis, however, is

inaccurate.



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                                  Opinion of the Court



      The doctrine of merger provides that:

             [A] defendant may not be punished both for felony murder
             and for the underlying, ‘predicate’ felony, even in a single
             prosecution. The underlying felony supporting a conviction
             for felony murder merges into the murder conviction. The
             underlying felony provides no basis for an additional
             sentence, and any judgment imposed thereon must be
             arrested.

State v. Barlowe, 337 N.C. 371, 380, 446 S.E.2d 352, 358 (1994) (citations and

quotations omitted). The merger doctrine does not preclude indictments for both the

murder and the underlying felony, nor a guilty verdict for both; rather, it requires

that, if a defendant is found guilty of both felony murder and the underlying felony,

the judgment on the underlying felony is arrested, and “merges” into the felony

murder conviction. We have held that:

             The felony murder merger doctrine provides that “[w]hen
             a defendant is convicted of felony murder only, the
             underlying felony constitutes an element of first-degree
             murder and merges into the murder conviction.” State v.
             Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 770 (2002).
             “[W]hen the sole theory of first-degree murder is the felony
             murder rule, a defendant cannot be sentenced on the
             underlying felony in addition to the sentence for first-
             degree murder[.]” State v. Wilson, 345 N.C. 119, 122, 478
             S.E.2d 507, 510 (1996) (quoting State v. Small, 293 N.C.
             646, 660, 239 S.E.2d 429, 438–39 (1977)); compare State v.
             Lewis, 321 N.C. 42, 50, 361 S.E.2d 728, 733 (1987) (stating
             that if a defendant's conviction of first-degree murder is
             based on both the felony murder rule and premeditation
             and deliberation, a defendant may be sentenced for both
             first-degree murder and the underlying felony).

State v. Rush, 196 N.C. App. 307, 313-14, 674 S.E.2d 764, 770 (2009).


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                                   Opinion of the Court



      In support of his position, defendant cites State v. Jones, 353 N.C. 159, 538

S.E.2d 917 (2000). In Jones, the defendant was charged with two counts of first-

degree murder and several counts of assault after striking a vehicle from behind,

causing a collision which injured multiple passengers and resulted in the death of

two. The defendant was found guilty of first-degree murder under the felony murder

rule and of multiple charges of assault against the surviving passengers. In dictum,

the Supreme Court observed that the definition of felony murder includes a blanket

category of “‘other felon[ies] committed or attempted with the use of a deadly weapon,’

which includes such crimes as [assault with a deadly weapon inflicting serious injury]

and shooting into an occupied dwelling or vehicle.” Id. at 167, 538 S.E.2d at 924. In

a footnote, the Court in Jones further noted:

             Although this Court has expressly disavowed the so-called
             “merger doctrine” in felony murder cases involving a
             felonious assault on one victim that results in the death of
             another victim . . . cases involving a single assault victim
             who dies of his injuries have never been similarly
             constrained. In such cases, the assault on the victim cannot
             be used as an underlying felony for purposes of the felony
             murder rule. Otherwise, virtually all felonious assaults on
             a single victim that result in his or her death would be first-
             degree murders via felony murder, thereby negating lesser
             homicide charges such as second-degree murder and
             manslaughter.

Id., at 170 n. 3, 538 S.E.2d at 926 n. 3.




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                                  Opinion of the Court



      The offense of discharging a firearm into an occupied vehicle while the vehicle

is in operation differs, however, from ordinary assault. In the instant case, the

underlying offense of discharging a firearm into an occupied vehicle is defined thus:

             (a)   Any person who willfully or wantonly discharges or
             attempts to discharge any firearm or barreled weapon
             capable of discharging shot, bullets, pellets, or other
             missiles at a muzzle velocity of at least 600 feet per second
             into any building, structure, vehicle, aircraft, watercraft,
             or other conveyance, device, equipment, erection, or
             enclosure while it is occupied is guilty of a Class E felony.

             (b)    A person who willfully or wantonly discharges a
             weapon described in subsection (a) of this section into an
             occupied dwelling or into any occupied vehicle, aircraft,
             watercraft, or other conveyance that is in operation is
             guilty of a Class D felony.

             (c)    If a person violates this section and the violation
             results in serious bodily injury to any person, the person is
             guilty of a Class C felony.

N.C. Gen. Stat. § 14-34.1 (2013). Of particular significance is the fact that a person

may be found guilty of discharging a firearm into an occupied vehicle that is in

operation even if defendant’s conduct does not cause bodily injury to any person.

Moreover, “[t]his Court . . . has expressly upheld convictions for first-degree felony

murder based on the underlying felony of discharging a firearm into occupied

property.” Wall, 304 N.C. at 612-13, 286 S.E.2d at 71 (citing State v. Swift, 290 N.C.

383, 226 S.E.2d 652 (1976); State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973);

State v. Capps, 134 N.C. 622, 46 S.E. 730 (1904)).



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                                   Opinion of the Court



      In Wall, the defendant, a store clerk, attempted to stop a shoplifter by firing a

gun into her departing vehicle, resulting in the death of the driver. The defendant

was charged with first-degree murder under the felony murder statute. On appeal,

defendant urged our Supreme Court to apply the merger doctrine. The Court noted

that the rule is attributed to the California case of People v. Ireland, 70 Cal.2d 522,

450 P.2d 580, 75 Cal.Rptr. 188 (1969). In Ireland, the California court held that “a ...

felony-murder instruction may not properly be given when it is based upon a felony

which is an integral part of the homicide and which the evidence produced by the

prosecution shows to be an offense included in fact within the offense charged.” Wall,

304 N.C. at 612, 286 S.E.2d at 71 (emphasis in original) (quoting Ireland, 70 Cal.2d

at 539, 450 P.2d at 590, 75 Cal.Rptr. at 198). Our Supreme Court noted that “[t]he

felony of discharging a firearm into occupied property, G.S. 14-34.1, appears to be

such an integral part of the homicide in the instant case as to bar a felony-murder

conviction under the California merger doctrine.” Id. The Court went on to observe

that “[t]his Court, however, has expressly upheld convictions for first-degree felony

murder based on the underlying felony of discharging a firearm into occupied

property.” Id. Based upon North Carolina precedent, the Court held that discharging

a firearm into occupied property, specifically into a vehicle while it was in operation,

did not merge into felony murder in such a manner as to preclude the homicide

charge. Relying on Wall, our courts have repeatedly declined to extend the merger



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                                   STATE V. JUAREZ

                                   Opinion of the Court



doctrine into this area. See e.g. State v. Mash, 305 N.C. 285, 288, 287 S.E.2d 824, 826

(1982); State v. King, 316 N.C. 78, 81-82, 340 S.E.2d 71, 73-74 (1986); State v. Jackson,

189 N.C. App. 747, 752, 659 S.E.2d 73, 77 (2008); State v. Hicks, ___ N.C. App. ___,

___, 772 S.E.2d 486, 489 (2015). Our precedent clearly states that discharging a

firearm into occupied property is a felony involving a deadly weapon, and as such

supports a charge of first-degree murder based upon the felony murder theory.

      In the case at bar, the offense underlying felony murder was the willful or

wanton discharge of a firearm into a vehicle, which is a felony irrespective of the

outcome. Defendant’s arguments that it should merge into felony murder, and that

as a result the charge of felony murder should have been dismissed, are specious.

      This argument is without merit.

                                  III. Lesser Offenses

      In his second argument, defendant contends that the trial court erred in

denying his request to instruct the jury on the lesser offenses of second-degree murder

and voluntary manslaughter. We agree.

                                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). “An instruction on a lesser-included offense must be given

only if the evidence would permit the jury rationally to find defendant guilty of the



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                                   Opinion of the Court



lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561,

572 S.E.2d 767, 771 (2002).

                                      B. Analysis

      At trial, defendant requested that the jury be instructed on the lesser included

offenses of second-degree murder and voluntary manslaughter.            The trial court

denied this request, and the jury was instructed only on the charge of first-degree

murder pursuant to the felony murder theory.              Defendant contends that this

constituted reversible error.

      Defendant first maintains that there was conflict concerning the underlying

felony, which defendant argues merges into felony murder. We have discussed and

dismissed this argument in section II B of this opinion, above.

      Defendant next asserts that there was conflict regarding whether defendant

acted in self-defense. Self-defense is not a defense to first-degree murder under the

felony murder rule; it may be a defense solely to the underlying felony, and then only

if it is perfect self-defense. State v. Richardson, 341 N.C. 658, 668-69, 462 S.E.2d 492,

499 (1995). We further note that, in the instant case, the jury was instructed on

perfect self-defense. Our Supreme Court in Millsaps established when instructions

on lesser included offenses were to be given with respect to felony murder:

             (i) If the evidence of the underlying felony supporting
             felony murder is in conflict and the evidence would support
             a lesser-included offense of first-degree murder, the trial
             court must instruct on all lesser-included offenses


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                                   Opinion of the Court



             supported by the evidence whether the State tries the case
             on both premeditation and deliberation and felony murder
             or only on felony murder. State v. Thomas, 325 N.C. 583,
             386 S.E.2d 555.

             ...

             (iii) If the evidence as to the underlying felony supporting
             felony murder is not in conflict and all the evidence
             supports felony murder, the trial court is not required to
             instruct on the lesser offenses included within
             premeditated and deliberate murder if the case is
             submitted on felony murder only. See State v. Covington,
             290 N.C. 313, 226 S.E.2d 629.

Millsaps, 356 N.C. at 565, 572 S.E.2d at 773-74.

      The evidence supporting the underlying felony is in conflict. As previously

discussed, the underlying felony of discharging a firearm into an occupied vehicle

while it is in operation requires simply that a defendant (1) willfully or wantonly

discharges (2) a weapon (3) into an occupied vehicle (4) that is in operation. N.C. Gen.

Stat. § 14-34.1(b). There is no question that this transpired. Defendant fired a gun

into Canjay’s vehicle while Canjay was driving it.         The evidence also showed,

however, that defendant and his associates were leaving from in front of Canjay’s

home when Canjay pursued them in his vehicle, ramming into their vehicle twice.

This evidence is sufficient to support a finding that defendant had a reasonable fear

for his safety and was within his rights to fire his gun in self-defense.

      A finding that defendant acted in reasonable self-defense would have rendered

him not guilty of a charge of discharging a firearm into an occupied vehicle and would


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                                   Opinion of the Court



have necessarily precluded a finding of guilt for first-degree murder based upon

felony murder. The evidence, however, would have been sufficient to support a lesser

included offense. As such, we hold that defendant has adequately demonstrated that

it was error to deny defendant’s request that the jury be instructed on the lesser

included offenses of second degree murder and voluntary manslaughter.

                                   IV. Self-Defense

      In his third argument, defendant contends that the trial court committed plain

error by instructing the jury that defendant could not receive the benefit of self-

defense if he was found to be the aggressor. We agree.

                                 A. Standard of Review

      The North Carolina Supreme Court “has elected to review unpreserved issues

for plain error when they involve either (1) errors in the judge’s instructions to the

jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580,

584, 467 S.E.2d 28, 31 (1996).

             [T]he plain error rule ... is always to be applied cautiously
             and only in the exceptional case where, after reviewing the
             entire record, it can be said the claimed error is a
             “fundamental error, something so basic, so prejudicial, so
             lacking in its elements that justice cannot have been done,”
             or “where [the error] is grave error which amounts to a
             denial of a fundamental right of the accused,” or the error
             has “‘resulted in a miscarriage of justice or in the denial to
             appellant of a fair trial’” or where the error is such as to
             “seriously affect the fairness, integrity or public reputation
             of judicial proceedings” or where it can be fairly said “the
             instructional mistake had a probable impact on the jury's


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                                    Opinion of the Court



              finding that the defendant was guilty.”

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 333 (2012) (quoting State v.

Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)).

                                       B. Analysis

       At trial, the trial court instructed the jury that defendant was not entitled to

the benefit of self-defense on the felony of discharging a firearm into an occupied

vehicle if defendant was the aggressor in that situation. As defendant failed to object

to this instruction at trial, we review it for plain error.

       Our courts have consistently held that it is reversible error to instruct the jury

on the aggressor doctrine of self-defense where there is no evidence that the

defendant was the initial aggressor. See e.g. State v. Washington, 234 N.C. 531, 535,

67 S.E.2d 498, 501 (1951); State v. Jenkins, 202 N.C. App. 291, 299, 688 S.E.2d 101,

106-07 (2010); State v. Tann, 57 N.C. App. 527, 530-31, 291 S.E.2d 824, 827 (1982).

The initial aggressor doctrine provides that “the right of self-defense is only available

to a person who is without fault, and if a person voluntarily, that is aggressively and

willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he

first abandons the fight, withdraws from it and gives notice to his adversary that he

has done so.” State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977). Although

our courts have not explicitly defined an “initial aggressor,” we have held that

withdrawing from conflict is a means by which a person can avoid that status.



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                                  Opinion of the Court



      In the instant case, the evidence at trial tended to show that: (1) defendant

waited in the Acura while his associates broke into vehicles to steal car stereos; (2)

Canjay discovered the break-ins, grabbed a machete, and chased defendant’s

associates back to the Acura; (3) after eluding Canjay, defendant and his associates

returned to Canjay’s residence and stole a stereo from a vehicle nearby; (4) Canjay

spotted defendant’s associates and pursued the Acura in his own car; (5) Canjay used

his car to ram the Acura twice; and (6) defendant fired into Canjay’s vehicle. Even if

we were to assume that defendant’s conduct rose to the level of aggression, his

withdrawal in the Acura removes him from the realm of the initial aggressor.

Canjay’s pursuit of defendant and his associates reframes the conflict, placing Canjay

in the role of aggressor when he used force against defendant and his companions.

As there was no evidence to support a determination that defendant was the initial

aggressor, the trial court erred in issuing an instruction on the initial aggressor

exception to self-defense.

      NO ERROR IN PART, REVERSED AND REMANDED IN PART.

      Judges STEPHENS and McCULLOUGH concur.




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