                             NO. COA13-954

                    NORTH CAROLINA COURT OF APPEALS

                          Filed: 15 April 2014


STATE OF NORTH CAROLINA

    v.                               Gaston County
                                     No. 12 CRS 5522-23
ANTONIO ALONZO MONROE



    On writ of certiorari from judgment entered 11 April 2013

by Judge Yvonne Mims Evans in Superior Court, Gaston County.

Heard in the Court of Appeals 25 February 2014.


    Attorney General Roy Cooper, by Assistant Attorney General
    LaShawn S. Piquant, for the State.

    Mark Hayes for Defendant.


    McGEE, Judge.



    Antonio Alonzo Monroe (“Defendant”) was indicted for first-

degree murder of Mario Davis (“Davis”), possession of a firearm

by a felon, and for attaining the status of an habitual felon.

A jury found Defendant not guilty of first-degree murder but

guilty of possession of a firearm by a felon and of attaining

the status of an habitual felon on 10 April 2013.         Defendant

appeals from judgments entered upon his convictions.
                                        -2-
    The night before the offenses at issue, Defendant and Davis

had an argument at the residence of Defendant’s uncle.                         Antwan

Cobb (“Cobb”), a witness to the events, testified that “as we

unlock the door to leave out, [Davis and another man] barge

in[.]”     An    argument    resulted,        the    police     arrived,    and    the

argument ended.        The following day, 17 June 2011, Defendant and

Davis    had    another   brief   argument          outside     the    residence    of

Jah’Kwesi Gordon (“Gordon”).            Davis told Defendant he was going

to “turn the heat up on” him, and Davis then left with O’Brian

Smith (“Smith”).

    Shortly thereafter, Davis returned to the front yard of

Gordon’s residence, along with Smith.                     There was conflicting

evidence as to whether Davis had a gun when he returned.                          Cobb

testified that Davis said he was “going to stay out here until

the door come open.”        Gordon retrieved a gun from his bedroom in

the back of the house.         While Defendant and Gordon were inside

the house, Defendant took the gun from Gordon.

    Gordon      went    outside   the    house       to   ask    Davis    to   leave.

Defendant remained in the house with the gun.                    Gordon testified

that he was outside talking to Davis for less than five or ten

minutes before Defendant came to the doorway.                         Gordon further

testified that, when Defendant came to the doorway, “[h]e had a

couple more words and then [Davis] hit” Defendant “towards the
                                              -3-
facial area.”          Defendant then shot Davis five times.                      Defendant

and Cobb left in Cobb’s car.

    At trial, during the charge conference, Defendant asked the

trial    court    to    instruct      the     jury   on    self-defense          as    to   the

charge    of     possession     of    a     firearm       by    a    felon.       Defendant

submitted the requested instruction in writing in a document

titled    “Request       for   Special        Jury    Instruction         on     Duress     or

Justification.”         The trial court denied Defendant’s request for

the special instruction.

    Defendant argues on appeal that the trial court erred by

failing to instruct the jury on self-defense as to the charge of

possession of a firearm by a felon.                     This Court addressed this

argument in State v. Craig, 167 N.C. App. 793, 606 S.E.2d 387

(2005), in which we noted that “[f]ederal courts have recently

recognized justification as an affirmative defense to possession

of firearms by a felon.”              Id. at 795, 606 S.E.2d at 389 (citing

U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000)).

                               I. The Deleveaux Test

    “[T]he        Deleveaux     court         limited     the       application       of    the

justification defense to 18 U.S.C. § 922(g)(1) cases (federal

statute    for     possession        of   a    firearm         by   a   felon)    in    ‘only

extraordinary circumstances.’”                 Craig, 167 N.C. App. at 796, 606

S.E.2d at 389 (quoting State v. Napier, 149 N.C. App. 462, 465,
                                -4-
560 S.E.2d 867, 869 (2002)).     In Deleveaux, the United States

Court of Appeals for the Eleventh Circuit cited three cases from

other circuits, U.S. v. Paolello, 951 F.2d 537 (3rd Cir. 1991),

U.S. v. Singleton, 902 F.2d 471 (6th Cir. 1990); cert denied,

498 U.S. 872, 112 L. Ed. 2d 158 (1990), and U.S. v. Perez, 86

F.3d 735 (7th Cir. 1996), to illustrate that the defense is

available only in extraordinary circumstances.     Deleveaux, 205

F.3d at 1297.

       In Paolello, the United States Court of Appeals for the

Third Circuit observed that the “restrictive approach is sound”

and required that “the defendant meet a high level of proof to

establish the defense of justification.”    Paolello, 951 F.2d at

542.    In Singleton, the United States Court of Appeals for the

Sixth Circuit held that “a defense of justification may arise in

rare situations” in prosecutions for possession of a firearm by

a felon.    Singleton, 902 F.2d at 472.   The Court observed that,

although the language of 18 U.S.C. § 922 “gives no hint of an

affirmative defense of justification, Congress enacts criminal

statutes ‘against a background of Anglo-Saxon common law.’”    Id.

(quoting U.S. v. Bailey, 444 U.S. 394, 415, 62 L. Ed. 2d 575,

594 n.11 (1980)).

       “In Bailey, the Supreme Court held that prosecution for

escape from a federal prison, despite the statute’s absolute
                                          -5-
language and lack of a mens rea requirement, remained subject to

the common law justification defenses of duress and necessity.”

Singleton,      902   F.2d    at   472.         “Similarly,      the    Congressional

prohibition     of    possession    of    a     firearm    by   a     felon    does    not

eliminate the possibility of a defendant being able to justify

the possession through duress or necessity.”                    Id.

      “Common law historically distinguished between the defenses

of duress and necessity.”          Bailey, 444 U.S. at 409, 62 L. Ed. 2d

at 590.      “Duress was said to excuse criminal conduct where the

actor was under an unlawful threat of imminent death or serious

bodily    injury,     which    threat     caused     the    actor      to     engage   in

conduct violating the literal terms of the criminal law.”                              Id.

“While the defense of duress covered the situation where the

coercion had its source in the actions of other human beings,

the   defense    of   necessity,     or    choice     of    evils,      traditionally

covered the situation where physical forces beyond the actor’s

control rendered illegal conduct the lesser of two evils.”                             Id.

at 409-10, 62 L. Ed. 2d at 590.                  “Modern cases have tended to

blur the distinction between duress and necessity.”                         Id. at 410,

62 L. Ed. 2d at 590.

      “[I]f a previously convicted felon is attacked by someone

with a gun, the felon should not be found guilty for taking the

gun   away    from    the     attacker     in     order    to    save       his   life.”
                                             -6-
Singleton,      902   F.2d        at    472.         The     Court        held     that    the

“justification defense for possession of a firearm by a felon

should   be    construed      very      narrowly”      and       emphasized        “that    the

keystone of the analysis is that the defendant must have no

alternative——either          before         or     during        the     event——to        avoid

violating the law.”          Id. at 472-73.

    In    Perez,      the    United         States    Court       of     Appeals    for    the

Seventh Circuit observed that the “defense of necessity will

rarely lie in a felon-in-possession case unless the ex-felon,

not being engaged in criminal activity, does nothing more than

grab a gun with which he or another is being threatened (the

other might be the possessor of the gun, threatening suicide).”

Perez, 86 F.3d at 737.             The Court held that “the defendant may

not resort to criminal activity to protect himself or another if

he has a legal means of averting the harm.”                        Id.

    Under Deleveaux, “a defendant must show four elements to

establish      justification           as    a     defense”       to      the    charge     of

possession of a firearm by a felon:

              (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
                                          -7-
            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.

Craig,   167    N.C.     App.    at     796,    606    S.E.2d    at   389     (quoting

Deleveaux, 205 F.3d at 1297); see also U.S. v. Crittendon, 883

F.2d 326, 330 (4th Cir. 1989).

                II. Standard for Reviewing the Evidence

      Defendant      argues     that,    when    deciding      whether   to    give   a

requested      instruction,       the    trial        court    must   consider    the

evidence in the light most favorable to the movant.                      As support,

Defendant cites Long v. Harris, 137 N.C. App. 461, 467, 528

S.E.2d 633, 637 (2000), wherein the appeal arose from the denial

of a requested instruction on a “sudden emergency” in a civil

negligence action.        The present appeal, by contrast, arises from

the   denial    of   a   requested      instruction       on    self-defense     in   a

criminal prosecution.           We examine Napier, Craig, and other cases

that have considered this issue for guidance.

      In Napier, this Court stated only that the trial court must

give the requested instruction, “at least in substance, if [it

is] proper and supported by the evidence.”                       Napier, 149 N.C.

App. at 463, 560 S.E.2d at 868.                 This Court did not state that

the trial court must consider the evidence in the light most

favorable to the movant.              In Craig, this Court considered only
                                               -8-
the uncontroverted evidence.                   Craig, 167 N.C. App. at 796, 606

S.E.2d at 389.

       In State v. Boston, 165 N.C. App. 214, 222, 598 S.E.2d 163,

167 (2004), this Court made no statement as to how the evidence

must   be     viewed.        In    our     analysis,         we    considered             what   the

evidence      tended    to     show      and    referred          to    what        the    State’s

evidence tended to show.                 Id.     Also, in State v. McNeil, 196

N.C.   App.    394,     406,      674   S.E.2d        813,   821       (2009),        this    Court

considered      only    that      the    evidence       showed         that     the    defendant

“possessed the shotgun inside his home . . . at which time there

was no imminent threat of death or serious bodily injury.”

       Thus,    the     only      guidance       from    this          Court    is     that      the

instruction must be “supported by the evidence.”                                    Napier, 149

N.C. App. at 463, 560 S.E.2d at 868.                              This Court has never

stated that, in prosecutions for possession of a firearm by a

felon, the evidence must be viewed in the light most favorable

to a defendant.

       However, in an appeal from a conviction for driving while

impaired,      this    Court      stated       that    “there      must        be   substantial

evidence of each element of the defense when ‘the evidence [is]

viewed in the light most favorable to the defendant’” to entitle

the defendant to a necessity instruction.                         State v. Hudgins, 167

N.C. App. 705, 709, 606 S.E.2d 443, 446 (2005) (quoting State v.
                                     -9-
Ferguson, 140 N.C. App. 699, 706, 538 S.E.2d 217, 222 (2000)

(regarding an instruction on manslaughter)).               Thus, we review

the evidence in the present case in the light most favorable to

Defendant, in order to determine whether there is substantial

evidence of each element of the defense.

      Though the case is not binding, we note that in Perez, the

United States Court of Appeals for the Seventh Circuit stated

that a “criminal defendant is entitled to an instruction on any

defense for which there is some support in the                   evidence[.]”

Perez, 86 F.3d at 736.         The Court further stated that the United

States “Supreme Court has made clear that the evidence must be

sufficient    to   allow   a    reasonable   jury    to   find   the   defense

proved.”     Id.   (citing Mathews v. U.S., 485 U.S. 58, 99 L. Ed.

2d 54 (1988)).

      III. North Carolina Cases Applying Deleveaux By Assuming
             Arguendo That It Applies In North Carolina

      In Napier, this Court noted that “the courts of this State

have not recognized justification as a defense to a charge of

possession of a firearm by a felon.”            Napier, 149 N.C. App. at

464, 560 S.E.2d at 869.           Nevertheless, the defendant in that

case asked “this Court to expand the necessity defense and adopt

the   test   for   justification”     set    forth   in   Deleveaux.       Id.

(internal quotation marks omitted).          This Court assumed, without

deciding, that the Deleveaux rationale applied, but concluded
                                      -10-
that the evidence in Napier did “not support a conclusion that

[the] defendant was under a present or imminent threat of death

or injury.”       Id. at 465, 560 S.E.2d at 869.

      The evidence in Napier was that the defendant, a convicted

felon who was involved in an on-going dispute with his neighbor

and his neighbor’s son, “voluntarily walked across the street”

to his neighbor’s property, while armed with a handgun.                         Id.

The defendant stayed there for several hours and eventually shot

the neighbor’s son in the arm.                Id.        This Court disregarded

evidence     of   the   neighbor’s    son’s    drug      and   alcohol   use,   his

threats to the defendant, and recent shootings into the air by

him   over    the    defendant’s     property       in    deciding   whether    the

defendant was entitled to an instruction on justification.                     Id.

      In Craig, the defendant continued to hold the firearm after

leaving the altercation, while “not under any imminent threat of

harm.”     Craig, 167 N.C. App. at 796-97, 606 S.E.2d at 389.                   This

Court concluded that “the evidence did not support giving a

special instruction on justification because there was a time

period   where      [the]   [d]efendant   was   under       no   imminent   threat

while possessing the gun.”         Id. at 797, 606 S.E.2d at 389.

      In Boston, the evidence tended to show that the defendant

and the victim “were engaged in an on-going conflict whereby in

the week prior to the shooting, [the victim] threatened to kill
                                  -11-
[the] defendant, and on at least one prior occasion [the victim]

fired a gun at [the] defendant.”         Boston, 165 N.C. App. at 222,

598 S.E.2d at 167.    This Court held that the trial court did not

err in failing to instruct the jury on justification because the

defendant “was observed walking through the apartment complex

carrying a pistol.”    Id.   There was “no evidence to support the

conclusion that [the] defendant was under an imminent threat of

death or injury when he made the decision to carry the gun.”

Id. at 222, 598 S.E.2d at 167-68.

    In   McNeil,   this   Court   held    that   the   evidence   did   not

support giving a special instruction on justification where the

evidence showed that the defendant “possessed the shotgun inside

his home and away from” the victim, “at which time there was no

imminent threat of death or serious bodily injury.”          McNeil, 196

N.C. App. at 406-07, 674 S.E.2d at 821.

    Although unpublished, the analysis in State v. Ponder, ___

N.C. App. ___, 725 S.E.2d 674 (2012) (unpublished) (COA 11-1365)

is instructive.      This Court held that the defendant was “not

under an imminent threat when he acquired the gun” in Ponder.

Id., slip op. at 4.    The defendant “chose to leave the residence

and stand in the field, waiting to confront [the victim].           [The]

[d]efendant could have telephoned the police before obtaining

the weapon.”   Id., slip op. at 5.
                                     -12-
                   IV. Application To The Present Case

      Consistent with the precedent from this Court, we assume

arguendo, without deciding, that the Deleveaux rationale applies

in North Carolina prosecutions for possession of a firearm by a

felon.      Nevertheless, the evidence in the present case, even

when viewed in the light most favorable to Defendant, does not

support      a   conclusion   that    Defendant,       upon    possessing    the

firearm, was under unlawful and present, imminent, and impending

threat of death or serious bodily injury.

      The    evidence    showed   there   had   been    an    on-going    dispute

between Defendant and Davis.         Defendant was at Gordon’s house on

17 June 2011.       Davis and Smith later arrived at Gordon’s house,

and   Defendant    and   Davis    subsequently   argued       outside    Gordon’s

house.      The argument did not last long.        Cobb, who witnessed the

events on 17 June 2011, testified that Davis told Defendant he

was going to “turn the heat up on” him.            Cobb testified that the

phrase meant: “I guess I’m going to shoot you, anything.”                    Cobb

further testified that after Davis said that, Davis and Smith

left and were gone for fifteen or twenty minutes.

      Davis and Smith returned to Gordon’s house.                   Inside the

house, Gordon retrieved a gun from his bedroom in the back of

the house.       While inside the house, Defendant took the gun from

Gordon.      Gordon went outside to ask Davis to leave.                 Defendant
                                -13-
followed Gordon to the door and stood in the doorway of the

residence.     Gordon testified that he was outside talking to

Davis for less than five or ten minutes before Defendant came to

the doorway.    Gordon further testified that, when Defendant came

to the doorway, “[h]e had a couple more words and then [Davis]

hit” Defendant “towards the facial area.”     Defendant then shot

Davis five times.

    The uncontroverted evidence at trial showed that Defendant

was inside Gordon’s house when Defendant took possession of a

firearm.     Defendant’s primary support for his argument that the

trial court erred in failing to give a special instruction is

that the jury found Defendant not guilty of first-degree murder

“under a theory of perfect self-defense.”     However, the record

does not indicate why the jury acquitted Defendant of first-

degree murder——whether on the basis of self-defense or that the

jury found that the State failed to carry its burden to prove

beyond a reasonable doubt that Defendant murdered Davis.       The

record is silent as to this issue.        Any speculation by this

Court as to the reason or reasons for the jury’s decision to

acquit Defendant of first-degree murder is therefore baseless.

    Furthermore, the offenses of murder and possession of a

firearm by a felon are separate and distinct criminal offenses.

They share no elements in common.      See N.C. Gen. Stat. §§ 14-
                                         -14-
415.1; 14-17 (2013); State v. Vance, 328 N.C. 613, 621-22, 403

S.E.2d 495, 501 (1991).           Murder is a crime, defined as at common

law.     See    Vance,    328    N.C.    at   622,    403    S.E.2d      at    501   (“as

N.C.G.S.    § 14-17      does    not    define    the     crime    of    murder,      the

definition of that crime remains the same as it was at common

law”).     By contrast, possession of a firearm by a felon is a

statutory criminal offense of relatively recent vintage.                                  The

offenses are related in the present case only by the fact that

the State sought to prove that Defendant used a firearm to shoot

Davis.

       Defendant’s      subsequent       contentions        are   that    Davis       “had

instigated      violence      against     [Defendant]         before,”        and     that

remaining      inside     Gordon’s       residence        would    have       been        “no

protection”     because       Davis     had   previously      “barged         in”    to    a

residence where Defendant was located.                      However, the evidence

does not compel a conclusion that, while inside the residence,

Defendant      was   under      unlawful        and   present,       imminent,        and

impending      threat    of     death    or     serious     bodily      injury.            As

previously discussed, this Court has disregarded evidence of the

victim’s drug and alcohol use, threats, and recent shooting over

the defendant’s property in Napier, 149 N.C. App. at 465, 560

S.E.2d at 869.
                                         -15-
      We    thus    cannot      rely     on    the    mere     possibilities         that

(1) Davis    may    have       been    about    to    enter    the   residence        and

(2) that    Davis    then      would    have    threatened      death     or    serious

bodily injury to Defendant.              Defendant has failed to show that

he was under “‘unlawful and present, imminent, and impending

threat of death or serious bodily injury’” at the time he took

possession of the firearm.               Craig, 167 N.C. App. at 796, 606

S.E.2d at 389 (quoting Deleveaux, 205 F.3d at 1297).

      Although      the    failure      to     make    this     showing    is     alone

sufficient to hold that the trial court did not err in denying

Defendant’s request for the instruction, we note that Defendant

also failed to show that he “had no reasonable legal alternative

to   violating     the    law[.]”        Id.     It    was    uncontroverted         that

Defendant    voluntarily        armed    himself      and     then   walked     to    the

doorway of the residence.              Defendant has not shown there was no

acceptable legal alternative other than arming himself with a

firearm, in violation of N.C.G.S. § 14-415.1, and walking to the

doorway of Gordon’s house.

      Even viewing the evidence in the light most favorable to

Defendant, we conclude that Defendant has not made the requisite

showing of each element of the justification defense.                             Thus,

even assuming arguendo, without deciding, that the rationale in

Deleveaux    applies      in    North    Carolina      prosecutions,       the    trial
                                 -16-
court did not err in refusing Defendant’s request to give a

special   instruction    on   self-defense     as   to   the   charge   of

possession of a firearm by a felon.

    No error.

    Judge STEELMAN concurs.

    Judge       STROUD    dissents      with        separate     opinion.
                                 NO. COA13-954

                     NORTH CAROLINA COURT OF APPEALS

                            Filed: 15 April 2014


STATE OF NORTH CAROLINA

       v.                                 Gaston County
                                          No. 12 CRS 5522-23
ANTONIO ALONZO MONROE


       On writ of certiorari from Judgment entered 11 April 2013

by Judge Yvonne Mims Evans in Superior Court, Gaston County.

Heard in the Court of Appeals 25 February 2014.


       Attorney General Roy Cooper, by Assistant Attorney General
       LaShawn S. Piquant, for the State.

       Mark Hayes for Defendant.


       STROUD, Judge, dissenting.


       Because I believe that the evidence would permit a jury to

find    that   defendant   was   justified   in    possessing   the   firearm

under    the   Deleveaux   test,    I   dissent,    and   I   would   reverse

defendant’s conviction for possession of a firearm by a felon

and remand for a new trial on these charges.

       The majority opinion summarizes the evidence presented at

trial quite well, but draws a different conclusion from it than

I would; a properly instructed jury may also.                 First, I would

hold that the Deleveaux test does apply in North Carolina.                Our
                                        -2-
cases have relied upon it several times, although only assuming

arguendo that it would apply because the facts in those cases

did not satisfy the test.         The test is entirely consistent with

North    Carolina’s    common     law    defenses    of    justification      and

necessity and provides useful guidance to the trial courts for

instructing juries.       In the cases discussed by the majority

opinion,   different    factual    situations       were   presented   and,    in

those   cases,   the   jury   instruction     was    not   supported   by     the

evidence under the Deleveaux test.            The factual situation here

is different and presents a question of fact that I believe a

jury should have the opportunity to resolve.

        In Napier, the defendant possessed a gun when he went to

the victim’s property, where he stayed several hours and only

then shot the victim. State v. Napier, 149 N.C. App. 462, 463,

560 S.E.2d 867, 868 (2002). Thus, the defendant possessed the

gun well before he was potentially under any sort of threat

which would justify possession of the gun.                  In addition, the

jury’s assessment of the facts in Napier was quite different

than in this case.     The Napier defendant was charged with

           (1) discharging a firearm into occupied
           property, (2) assault with a deadly weapon
           with intent to kill inflicting serious
           injury,   (3)   conspiracy  to   discharge   a
           firearm    into    occupied   property,    (4)
           conspiracy to commit an assault with a
                                        -3-
              deadly weapon, (5) possession of a firearm
              by a felon on 4 July 1999, and (6)
              possession of a firearm by a felon on 3 July
              1999.

Id.

       The jury deadlocked and a mistrial was declared on the

first two charges.         Id.     The jury found defendant not guilty of

conspiracy and possession on 4 July and found defendant guilty

only of the charge of possession on 3 July.                      Id.     This Court

noted that the evidence did not support defendant’s claim of

justification due to the lapse of time between when defendant

went   to    the     victim’s    property   while    carrying     a    gun    and   the

shooting:         “[D]efendant asked Robert Ford and Brad Ford if they

wanted him to take the gun home; and defendant, while armed,

stayed on Robert Ford’s premises for several hours talking to

Robert Ford before the fight ensued.”               Id. at 465, 560 S.E.2d at

869. Under these circumstances, defendant was not entitled to an

instruction on justification. Id.

       In Craig, the defendant was charged with assault with a

deadly      weapon    inflicting    serious   injury      and    possession      of   a

firearm by a felon. State v. Craig, 167 N.C. App. 793, 795, 606

S.E.2d 387, 388 (2005).            An instruction as to self-defense was

given,      but     the   trial    court    did     not   give     the       requested
                                     -4-
instruction as to justification for possession of the gun.1 Id.

at 794, 606 S.E.2d at 388.      The jury found defendant guilty of

both charges. Id. at 795, 606 S.E.2d at 388.            On appeal, failure

to give an instruction as to justification for possession of the

firearm was the only issue raised by defendant.              Id.   The Court

noted that the

          uncontroverted evidence in this case shows
          that   after    leaving    the   altercation,
          Defendant kept the gun and took it with him
          to a friend’s house on Dana Road. He
          continued to hold it and carry it while
          speaking   with  Hamilton.   At   that  time,
          Defendant was not under any imminent threat
          of harm. Thus, the evidence did not support
          giving    a     special     instruction    on
          justification because there was a time
          period where Defendant was under no imminent
          threat while possessing the gun.

Id. at 796-97, 606 S.E.2d at 389 (citation omitted).

    In Boston, the defendant was charged with and convicted of

second-degree    trespassing   and    possession   of    a   firearm   by   a

felon.   State v. Boston, 165 N.C. App. 214, 215, 598 S.E.2d 163,

164 (2004). The evidence showed that the

          defendant and Daniels were engaged in an on-
          going conflict whereby in the week prior to
          the shooting, Daniels threatened to kill
          defendant, and on at least one prior
          occasion Daniels fired a gun at defendant.
          However, the evidence also tends to show

1
  Although not clear from the opinion, the record from Craig
shows that a self-defense instruction was given.
                                            -5-
              that on the day of the shooting, defendant
              was observed walking through the apartment
              complex carrying a pistol. The State’s
              evidence also tended to show that defendant
              chased Daniels around a parked car with the
              gun in hand. Therefore, we hold that, as in
              Napier, there is no evidence to support the
              conclusion that defendant was under an
              imminent threat of death or injury when he
              made   the   decision  to   carry  the   gun.
              Accordingly, the trial court did not err in
              failing    to    instruct    the   jury    on
              justification as an affirmative defense.

Id. at 222, 598 S.E.2d at 167-68. Again, regardless of whether

defendant may have been justified in possessing the gun at the

moment   of    the    shooting,       the     evidence    showed    that   defendant

possessed      the    gun    at   a        time   entirely    separate     from    the

altercation—when he was “walking through the apartment complex

carrying a pistol.”               Id. at 222, 598 S.E.2d at 167.

      In McNeil, the defendant was charged with and found guilty

of “first degree murder and possession of a firearm by a felon.”

State v. McNeil, 196 N.C. App. 394, 396, 674 S.E.2d 813, 815

(2009). As in this case, defendant did request and the trial

court gave an instruction on self-defense.                         Id. at 400, 674

S.E.2d   at    817.         Unlike    the     present    case,     the   jury     found

defendant guilty on all charges and rejected defendant’s claims

of   self-defense.      Id.          The    evidence     as   to   the   defendant’s

possession of the firearm in McNeil was as follows:
                                  -6-
         On 15 March 2007, William Frederick Barnes
         (“Barnes”) rode his bicycle up to the
         passenger side window of Vashawn Tomlin’s
         (“Tomlin”) car at approximately 10:00 a.m.
         Tomlin testified that Barnes wanted to wash
         Tomlin’s car. Approximately five minutes
         later, Tomlin saw Defendant walk out of
         Defendant’s house by Tomlin’s car and then
         walk into another house. Defendant walked
         out of the second house and spoke to Tomlin
         and Barnes. Barnes asked Defendant, “What’s
         up[?]” to which Defendant replied, “You got
         a nerve speaking to me, I ain’t forgot what
         you did, I was going with her then.” Barnes
         asked Tomlin what Defendant was talking
         about. Defendant tried to argue with Barnes,
         and “ kept saying . . . ‘I’ll burn your
         ass[.]’ ” Defendant also told Barnes he
         would “put a hot one in him.”

         Tomlin testified that Defendant walked back
         into the first house and returned carrying a
         shotgun. Defendant walked from his porch
         toward Barnes, who was still sitting on a
         bicycle and leaning against the door of
         Tomlin’s car, and Defendant shot Barnes with
         the shotgun. Tomlin testified Defendant
         walked back toward his house, then turned
         and walked into the street, stood over
         Barnes, aimed the shotgun at Barnes and
         fired. After shooting Barnes the second
         time, Defendant walked back to his house and
         stood in the doorway “looking crazy.”

Id. at 396-97, 674 S.E.2d at 815-16.

    As   to   the   defendant’s   request   for   an   instruction   on

justification, the McNeil court stated that

         As in Craig and Napier, the evidence in the
         present case shows that Defendant possessed
         the shotgun inside his home and away from
         Barnes, at which time there was no imminent
                                          -7-
             threat of death or serious bodily injury.
             Without deciding the availability of the
             justification defense in possession of a
             firearm by a felon cases in North Carolina,
             we hold that the evidence in this case did
             not support giving a special instruction on
             justification.

Id. at 406-07, 674 S.E.2d at 821 (citation omitted).

       Overall,        these     cases     support,      rather       than     defeat,

defendant’s argument that the jury should have been instructed

on justification.         The most significant difference between this

case and all of those above is that in those cases, there was an

obvious time period when the defendant possessed a gun but was

not under any imminent threat of death or great bodily harm.

Even    if   the     those      defendants      may    have    been   justified       in

possessing a gun at the exact moment of the altercation—which

the    juries    all    found    they    were   not,    by    rejecting      the   self-

defense theory—they would still be guilty of possessing the gun

at a time completely separate from the altercation with the

victim.

       Here, by contrast, the evidence, taken in the light most

favorable       to   defendant,     showed      that    the     entire     time    that

defendant possessed the gun Mr. Davis was standing outside of

the house with a gun, posing an imminent threat.                          One witness

testified that Mr. Davis said he was “going to stay out here
                                                 -8-
until the door come open.”                      Therefore, there was evidence from

which      a     jury       could       reasonably        conclude        that       defendant’s

possession of the firearm was justified for the entire time he

possessed it.

      Moreover, unlike in the prior cases, the jury acquitted the

defendant        of       all    homicide       charges      based      upon     self-defense.

Defendant was charged with first degree murder, but the jury was

presented with issues as to first degree murder, second degree

murder,        and    voluntary         manslaughter         and       found    defendant      not

guilty      of      all     of     these.        I   disagree       with       the    majority’s

statement        that       “the      record    does    not      indicate       why    the    jury

acquitted Defendant of first-degree murder—whether on the basis

of self-defense or that the jury found that the State failed to

carry    its        burden       to     prove    beyond      a     reasonable        doubt    that

Defendant murdered Davis.”

      To the contrary, it is not disputed that defendant shot

Davis, and the jury acquitted defendant of first degree murder

as   well      as     all       lesser-included        offenses.          The    only    logical

inference we can draw from the jury’s verdict is that the jury

relied upon defendant’s claim of perfect self-defense.                                   In none

of   the       cases        discussed       above      did       the     jury     believe      the

defendants’           claims       of    self-defense,           where     that       issue   was
                                       -9-
presented.     It   is   true   that    the   facts   presented   might   have

permitted a jury to reject a claim of self-defense, and that a

jury might have found that defendant could have used some other

means to protect himself or to avoid a confrontation with Davis,

but the jury has already considered that evidence and found in

favor of defendant.      This means that the jury found that:

         (1)    it   appeared   to  defendant   and  he
                believed it to be necessary to kill the
                deceased in order to save himself from
                death or great bodily harm; and

         (2)    defendant’s belief was reasonable in
                that the circumstances as they appeared
                to him at that time were sufficient to
                create such a belief in the mind of a
                person of ordinary firmness; and

         (3)    defendant was not the aggressor in
                bringing on the affray, i.e., he did
                not aggressively and willingly enter
                into the fight without legal excuse or
                provocation; and

         (4)    defendant did not use excessive force,
                i.e., did not use more force than was
                necessary or reasonably appeared to him
                to be necessary under the circumstances
                to protect himself from death or great
                bodily harm.

State v. Lyons, 340 N.C. 646, 661, 459 S.E.2d 770, 778 (1995)

(citation and quotation marks omitted).

    Given the jury’s determination as to self-defense as to the

shooting here, it is entirely possible, and indeed probable,
                                           -10-
that the jury would have also found, if properly instructed,

that     the    four    elements      of     the    justification           defense   were

established:

               (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.

United States v. Deleveaux, 205 F.3d 1292, 1297, cert. denied,

530 U.S. 1264, 147 L.Ed. 2d 988 (2000).

       The elements of perfect self-defense and justification are

slightly different, but not much, particularly under the facts

as presented in this case.                 The gun defendant used was not his

own; he got it from Gordon just prior to the shooting—not hours

or days before, but minutes—while Davis was just outside the

house,     threatening       defendant.            The    issue   of    the    timing   of

defendant’s possession of the gun is crucial.                           It is possible

that   a    jury     could    find     that    he    possessed         it    longer   than

necessary      for     his   own     protection,         but   the     facts    certainly

present a jury question in that regard, and that is sufficient
                                               -11-
for defendant to be entitled to the instruction.2

       This         case     presents    one     of    those   “most     extraordinary

circumstances” where the justification defense is applicable.

It   is       odd    that    a   man   could    be    acquitted   for    all    forms   of

homicide based on the theory that he had a clear right of self-

defense, but he would be convicted for using the gun that the

jury found to be necessary under the circumstances to protect

himself from “death or great bodily harm.” Lyons, 340 N.C. at

661, 459 S.E.2d at 778. This is not one of those cases where the

jury already evaluated any claims of self-defense and rejected

them, as all of the prior cases from this court cited by the

majority were.              Indeed, it is difficult to imagine a situation

in which a defendant would be entitled to an instruction on

justification for possession of a firearm if defendant here was

not.      I    would       therefore    specifically      adopt   the    justification

defense         as     laid      out    in      Deleveaux,     reverse     defendant’s

convictions for possession of a firearm by a felon and habitual

felon, and remand for a new trial on these matters.                            Therefore,

I respectfully dissent.

2
  See State v. Bush, 307 N.C. 152, 160, 297 S.E.2d 563, 569
(1982) (“A defendant is entitled to an instruction on self-
defense if there is any evidence in the record from which it can
be determined that it was necessary or reasonably appeared to be
necessary for him to kill his adversary in order to protect
himself from death or great bodily harm.”).
-12-
