              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-1231

                              Filed: 5 November 2019

Wayne County, No. 16CRS050564

STATE OF NORTH CAROLINA

             v.

GREGORY SCOTT COBURN, Defendant.


      Appeal by defendant from judgment entered on or about 15 December 2017 by

Judge William W. Bland in Superior Court, Wayne County. Heard in the Court of

Appeals 20 August 2019.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Melissa
      H. Taylor, for the State.

      Franklin E. Wells, Jr., for defendant-appellant.


      STROUD, Judge.


      Defendant appeals a judgment convicting him of assault with a deadly weapon

inflicting serious injury. On appeal defendant argues the trial court should have

instructed the jury on defense of habitation based upon North Carolina General

Statute § 14-51.2.    Because defendant invited any error in the trial court’s

instructions as to self-defense and defense of habitation, defendant has waived review

of this issue, including plain error review. We thus conclude there was no error in

defendant’s trial .
                                 STATE V. COBURN

                                 Opinion of the Court



                                    I.     Background

      The State’s evidence showed that Mr. William Howard Lancaster, Jr. had

owned the home where he also resided for 32 years.          Mr. Lancaster was an

acquaintance of defendant and allowed defendant to move into the home at a time

when defendant was struggling to find a stable living arrangement. Defendant

occasionally paid Mr. Lancaster for the accommodations. Mr. Lancaster did not

consider himself to be renting the room but rather “helping [defendant] out” until he

was able to get a job and move. Defendant lived with Mr. Lancaster for approximately

four months, and in February of 2016, Mr. Lancaster asked defendant to leave.

Shortly thereafter, Mr. Lancaster went to the home with Tony Anderson.           Mr.

Anderson and defendant got into an argument and a physical altercation ensued. Mr.

Lancaster testified he saw defendant hit Mr. Anderson with a crowbar and a bat and

spray fire at Mr. Anderson using an aerosol can and a lighter. Mr. Lancaster tried to

break up the fight, and defendant stabbed him in the leg with a knife from his back

pocket.

      Defendant also testified in his own defense. Defendant said he was renting a

room from Mr. Lancaster. One Friday Mr. Lancaster came home and told defendant

if he messed with one of the women who was visiting the home he would “cut [his]

guts out.” Defendant left the house on Saturday morning and did not return until




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                                         Opinion of the Court



Sunday. Defendant was packing up when Mr. Lancaster and his son1 threatened

defendant; defendant called 911. The police came and when they left, Mr. Lancaster,

Mr. Anderson, and Mr. Lancaster’s son went into defendant’s room, “cornered me in

the back of my bedroom and was jumping at me” and threatened defendant.

Defendant called 911 again because he “needed help,” and he “was scared they were

going to, you know, really hurt me, jump on me.”                    Defendant claimed he was

defending himself when he pulled out the knife.

       Defendant was indicted for assault with a deadly weapon with intent to kill

inflicting serious injury and attempted voluntary manslaughter. The trial court

dismissed some of the charges against defendant and submitted only assault with a

deadly weapon inflicting serious injury to the jury, and the jury found defendant

guilty. The trial court entered judgment and sentenced defendant to a minimum of

29 months and a maximum of 44 months imprisonment. Defendant appeals.

                                II.     Preservation of Issue on Appeal

       Defendant’s only issue on appeal is whether the trial court erred in failing to

instruct the jury on defense of habitation. The State contends defendant failed to

preserve this issue for appeal because he did not request an instruction regarding

defense of habitation. Defense of habitation was discussed from the beginning of the



1 The record does not include the age of Mr. Lancaster’s son, but it appears he was an adult. Mr.
Lancaster’s son left the scene “before the Sheriff got there” so the extent of his participation in the
incident is not clear.

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                                    Opinion of the Court



trial, based upon a pretrial motion, until the end, during the charge conference.

Defendant filed several motions prior to trial; one alleged he was immune from

prosecution based upon defense of habitation under North Carolina General Statutes

§§ 14.51.2 and 15A-954. The trial court denied defendant’s pretrial motion to dismiss

based upon “immunity” from prosecution and defendant has not challenged this

ruling appeal. After all of the evidence was presented, defendant made several more

motions, particularly regarding self-defense and the alleged defender’s reasonable

belief of the need to use force. Defendant did argue for defense of habitation. The

trial court then stated,

             I’m going to talk with each of the lawyers as we do this, so
             we kind of have an idea what’s coming, and then get it
             firmly on the record. . . . Let’s officially be in recess until a
             quarter to 2:00, and but let me speak to you all in
             chambers.

       Upon return to the courtroom the trial court stated, “I appreciate the

assistance and professional attitude of counsel as we worked through lunch

addressing some of these issues.” The trial court listed the introductory pattern jury

instructions it intended to give and then addressed the jury instructions regarding

self-defense and stated,

             Now, on the substantive charge, particularly as to the self-
             defense, the same issues, which were challenging in 14-
             51.2 and 14-51.3 made this, ah . . . charge challenging;
             however, we’re proceeding with assault with a deadly
             weapon inflicting serious injury.



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                                    Opinion of the Court



                    And then, including the defense of self-defense.
             When you go to the self-defense instruction, 308.45, in the
             pattern jury instruction, which, of course, is not the law,
             but is a dedicated attempt to properly instruct on the law,
             that instruction, 308.45, has a note well where it says if the
             assault occurred in the Defendant’s home, place of
             residence, or place of motor vehicle, use North Carolina
             Pattern Jury Instruction 308.8, defense of habitation. And
             we looked at that, the Court looked, and all of us looked
             together at that defense of habitation. It . . . under the facts
             as -- or the evidence as it’s developed, and in this case, I
             mean I really think all of us agreed, but I’ll speak only for
             the Court. That under the evidence as we’ve heard, 308.45,
             that self-defense instruction fit best and was appropriate
             even under the law in the facts or the evidence as it’s come
             up here[.]

The trial court then asked, “Anybody wish to be heard on these instructions?” The

State’s attorney did not and defendant’s attorney stated:

             Judge, the only exception the Defendant would note is in
             the self-defense instruction 308.45, it provides that if the
             circumstances would have created a reasonable belief in
             the mind of a person of ordinary firmness, we believe that
             to be an inaccurate statement under the law, under 14-
             51.3, and if you would note our exception to that portion for
             the record, Judge.

Defendant did not request an instruction on defense of habitation under North

Carolina General Statute § 14-52.2.

      The trial court later brought up defense of habitation again, stating,

             Also, the, ah . . . but there was certainly timely filed a notice
             of self-defense by the Defendant, there was no specific
             request for the defense of habitation, or abode or whatever
             it’s called. But, ah . . . and there was some discussion
             whether that had to be mandatory, because it’s in a house


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                                     Opinion of the Court



              that, ah -- stated the reasons that we’re proceeding here
              which seemed applicable to the evidence in this case.

The trial court again noted self-defense as the appropriate instruction and asked if

defendant’s attorney would like to say anything further to which he responded, “No,

sir.”

        The trial court then instructed the jury as to self-defense and not as to defense

of habitation, and once the jury had left the courtroom asked counsel, “Are there any

additions or corrections to the instructions as they were read?” Defendant’s counsel

renewed the earlier request regarding the wording of the “reasonable belief” portion

of the self-defense instruction. At 4:59 p.m., the trial court brought the jury back into

the courtroom and had them recess for the evening; again, the trial court asked if

defendant’s counsel had anything further, and he did not.

        The following day, the jury reached its verdict, and at no point during the

charge conference or the conversations until the close of the trial did defendant’s

attorney mention giving a jury instruction on the defense of habitation. Yet on

appeal, defendant raises only one issue – that the trial court erred in failing to give a

defense of habitation instruction.

        Defendant contends this issue regarding the instruction on defense of

habitation is preserved because the charge conference was not recorded in its entirety

in contravention of North Carolina General Statute § 15A-1231. North Carolina

General Statute § 15A-1231 provides:


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                                   Opinion of the Court



                     (b)    Before the arguments to the jury, the judge
             must hold a recorded conference on instructions out of the
             presence of the jury. At the conference the judge must
             inform the parties of the offenses, lesser included offenses,
             and affirmative defenses on which he will charge the jury
             and must inform them of what, if any, parts of tendered
             instructions will be given. A party is also entitled to be
             informed, upon request, whether the judge intends to
             include other particular instructions in his charge to the
             jury. The failure of the judge to comply fully with the
             provisions of this subsection does not constitute grounds
             for appeal unless his failure, not corrected prior to the end
             of the trial, materially prejudiced the case of the defendant.

                   (c)   After the arguments are completed, the judge
             must instruct the jury in accordance with G.S. 15A-1232.

                    (d)   All instructions given and tendered
             instructions which have been refused become a part of the
             record. Failure to object to an erroneous instruction or to
             the erroneous failure to give an instruction does not
             constitute a waiver of the right to appeal on that error in
             accordance with G.S. 15A-1446(d)(13).

N.C. Gen. Stat. § 15A-1231 (2017).

      Defendant contends that the trial court and counsel discussed the jury

instructions during the lunch break and the entire conference was therefore not

recorded. Defendant essentially argues that if all of a charge conference is not

recorded, the defendant can raise any issue regarding the instructions on appeal

because the statute requires the conference to be recorded and if it is not, there is no

way of knowing all of the issues raised before the trial court. We agree that North

Carolina General Statute § 15A-1231 provides that the entire charge conference



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                                   Opinion of the Court



should be recorded, and that is the better practice, but where the entire charge

conference is not recorded, defendant must show he was “materially prejudiced”

based upon the trial court’s failure to comply: “The failure of the judge to comply fully

with the provisions of this subsection does not constitute grounds for appeal unless

his failure, not corrected prior to the end of the trial, materially prejudiced the case

of the defendant.” Id.

      In these circumstances, even though a portion of the conference was not

recorded, defendant cannot show material prejudice from the failure to record the

entire conference. See id. Before the trial court spoke with counsel off the record

during the break, he clarified he wanted to ensure that when they returned all of the

issues would be “firmly on the record.” The trial court summarized on the record the

discussions with counsel regarding the jury instructions during lunch; defendant had

no objections or additions to the trial court’s summary regarding the defense of

habitation. In addition, on the record, the trial court twice mentioned the possibility

of giving an instruction on defense of habitation and invited counsel to address this

issue. But defendant instead focused on the self-defense instruction, specifically on

the portion regarding reasonable belief, but did not mention or request defense of

habitation, despite the extensive discussion of defense of habitation prior to the

charge conference. Further, even after the instructions were given, defendant failed

to raise any objection regarding the defense of habitation. Although some discussion



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                                     Opinion of the Court



regarding jury instructions was not recorded, the possibility of providing a jury

instruction regarding defense of habitation was discussed at length on the record.

Despite direct questions by the trial court, defendant did not request the instruction.

We agree with the State that defendant has not shown material prejudice from failure

to record the entire charge conference. See id.

      Defendant next contends that even if his argument regarding instruction on

defense of habitation was not properly preserved, the trial court plainly erred in

failing to instruct the jury on defense of habitation.

                    Because our courts operate using the adversarial
             model, we treat preserved and unpreserved error
             differently. . . . Unpreserved error in criminal cases . . . is
             reviewed only for plain error.
                    ....
             For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial. To
             show that an error was fundamental, a defendant must
             establish prejudice—that, after examination of the entire
             record, the error had a probable impact on the jury’s
             finding that the defendant was guilty. Moreover, because
             plain error is to be applied cautiously and only in the
             exceptional case, the error will often be one that seriously
             affects the fairness, integrity or public reputation of
             judicial proceedings[.]


State v. Lawrence, 365 N.C. 506, 512-18, 723 S.E.2d 326, 330-34 (2012) (citations and

quotation marks omitted).

      But plain error review is not available where the defendant has invited the

error he seeks to raise on appeal:


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                                      Opinion of the Court



                It is well established that a defendant who causes or joins
                in causing the trial court to commit error is not in a position
                to repudiate his action and assign it as ground for a new
                trial. Under the doctrine of invited error, a party cannot
                complain of a charge given at his request, or which is in
                substance the same as one asked by him. Moreover, a
                defendant who invites error waives his right to all
                appellate review concerning the invited error, including
                plain error review.

State v. Jones, 213 N.C. App. 59, 67, 711 S.E.2d 791, 796 (2011) (citations, quotations,

ellipses, and brackets omitted).

      As discussed above, the theory of defense of habitation under North Carolina

General Statute § 14-52.2 was addressed several times during the trial. Although a

portion of the charge conference was not recorded, defendant cannot show material

prejudice as to the instructions as to self-defense and specifically defense of

habitation because this issue was discussed on the record. The trial court specifically

asked about giving this instruction twice, and defendant did not request it, nor did

defendant request any addition to the instructions after they were given. Because of

the extensive discussion regarding defense of habitation, defendant’s failure to

request an instruction on defense of habitation, and defendant’s failure to object to

the instructions as given, if there was any error in failing to provide the instruction,

this error was invited and is not subject to plain error review. See id. This argument

is overruled.

                                      III.   Conclusion



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                           Opinion of the Court



For the foregoing reasons, we conclude there was no error in defendant’s trial.

NO ERROR.

Chief Judge McGEE and Judge MURPHY concur.




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