               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-859

                                 Filed: 18 June 2019

Wilson County, No. 16CRS051643

STATE OF NORTH CAROLINA

              v.

SHEKITA MONLEE PENDER, Defendant.


        Appeal by Defendant from judgment entered 8 February 2018 by Judge Jeffery

B. Foster in Wilson County Superior Court. Heard in the Court of Appeals 24 April

2019.


        Attorney General Joshua H. Stein, by Special Deputy Attorney General Jess D.
        Mekeel, for the State.

        Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for the Defendant.


        DILLON, Judge.


        Defendant Shekita Monlee Pender appeals from a judgment entered upon a

jury’s verdict finding her guilty of assault with a deadly weapon inflicting serious

injury.   We conclude that the trial court properly instructed the jury and that

Defendant received a fair trial, free from reversible error.

                                    I. Background

        Defendant was in a physical altercation with another woman. At some point

during the altercation, Defendant cut the other woman a number of times with a
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                                    Opinion of the Court



knife, requiring the woman to receive over one hundred (100) stitches. Defendant

was indicted and tried for felony assault with a deadly weapon inflicting serious

injury based on this altercation.

      During the trial, the jury was instructed on the crime of assault with a deadly

weapon inflicting serious injury. The jury was given a generic self-defense, pattern

jury instruction. However, the jury was not given the self-defense, pattern jury

instruction for assaults where deadly force is used.

      The jury found Defendant guilty, and Defendant was sentenced in the

presumptive range. Defendant gave notice of appeal in open court.

                                       II. Analysis

      Defendant argues that the trial court committed plain error by instructing the

jury on the crime for which she was tried, assault with a deadly weapon inflicting

serious injury, and that “[a] knife is a deadly weapon[,]” while only providing an

instruction for self-defense specific to assaults not involving deadly force.

      As Defendant failed to object to the jury instructions at trial, we review for

plain error. State v. Bagley, 321 N.C. 201, 211, 362 S.E.2d 244, 250 (1987). “Under

the plain error rule, [the] defendant must convince this Court not only that there was

error, but that absent the error, the jury probably would have reached a different

result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).




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      In North Carolina, a defendant may be criminally excused from assaulting

another if she acts in self-defense, so long as the force used to repel the attack is not

excessive:

             If one is without fault in provoking, or engaging in, or
             continuing a difficulty with another, [s]he is privileged by
             the law of self-defense to use such force against the other
             as is actually or reasonably necessary under the
             circumstances to protect [her]self from bodily injury or
             offensive physical contact at the hands of the other, even
             though [s]he is not thereby put in actual or apparent
             danger of death or great bodily harm.

State v. Anderson, 230 N.C. 54, 56, 51 S.E.2d 895, 897 (1949). And while a defendant

may generally employ non-deadly force to protect her from “bodily injury or offensive

contact,” she “may employ deadly force in self-defense only if it reasonably appears to

be necessary to protect against . . . great bodily injury” or “death[.]” State v. Clay, 297

N.C. 555, 562-63, 256 S.E.2d 176, 182 (1979) (emphasis added).

      Recognizing that a defendant may only use deadly force to protect herself from

great bodily injury or death, the North Carolina Pattern Jury Instructions provide

two different sets of jury instructions for self-defense: Pattern Jury Instruction

308.40 and 308.45. NCPI-Criminal 308.40 provides, in pertinent part, that the use

of non-deadly force is justified

             [i]f the circumstances, at the time the defendant acted,
             would cause a person of ordinary firmness to reasonably
             believe that such action was necessary or apparently
             necessary to protect that person from bodily injury or
             offensive physical contact[.]


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(Emphasis added). Whereas, NCPI-Criminal 308.45 provides, in pertinent part, that

the use of deadly force is justified

             [i]f the circumstances would have created a reasonable
             belief in the mind of a person of ordinary firmness that the
             assault was necessary or appeared to be necessary to
             protect that person from imminent death or great bodily
             harm.

(Emphasis added).

      When the evidence, in the light most favorable to the defendant, supports a

finding she acted in self-defense, the trial court must give the appropriate self-defense

instruction(s). See State v. Montague, 298 N.C. 752, 755, 259 S.E.2d 899, 902 (1979)

(holding that the instruction must be given where supported by the evidence); Clay,

297 N.C. at 565-66, 256 S.E.2d at 183 (holding that the appropriate instruction to be

given depends on whether or not the defendant used deadly force). Of course, a trial

judge is never required to give a particular self-defense instruction if that instruction

is not supported by the evidence. See State v. McLawhorn, 270 N.C. 622, 630, 155

S.E.2d 198, 204 (1967).

      Therefore, a defendant is entitled to an instruction consistent with NCPI-

Criminal 308.40 when it could be determined from the evidence that the defendant

faced the threat of bodily injury or offensive contact and that defendant did not use




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                                          Opinion of the Court



deadly force or other force deemed excessive as a matter of law to repel the attack.1

A defendant is never entitled to this instruction if the only conclusion from the

evidence is that she used deadly force to repel an attack, as such use of force is

excessive as a matter of law.2

        And a defendant is entitled to an instruction consistent with NCPI-Criminal

308.45 where it could be determined from the evidence that the defendant faced a

reasonable threat of serious bodily harm or death and that the defendant used deadly,

or lesser, force to repel the attack.3

        Thus, the relative inquiry is not whether the defendant had an intent to kill,

but the nature of the underlying attack and how much force the defendant used in

repelling the attack. Clay, 297 N.C. at 561, 256 S.E.2d at 181.4

        The evidence in the present case, taken in the light most favorable to the State,

is certainly sufficient to sustain Defendant’s conviction: Defendant and the victim


        1 Clay, 297 N.C. at 566, 256 S.E.2d at 183 (stating that if the weapon used by the defendant is
not a deadly weapon per se, “the trial judge should instruct the jury that if they find that defendant
assaulted the victim but do not find that he used a deadly weapon, that assault would be excused as
being in self-defense if [the defendant reasonably feared] bodily injury or offensive physical contact.”).
        2 Clay, 297 N.C. at 566, 256 S.E.2d at 183 (stating that “[i]f the weapon used is a deadly weapon

per se, no reference should be made at any point in the charge to ‘bodily injury or offensive physical
contact.’ ”).
        3 Clay, 297 N.C. at 565-66, 256 S.E.2d at 183 (stating that “[i]n cases involving assault with a

deadly weapon, trial judges should, in the charge, instruct that the assault would be excused [if the
defendant reasonably believed the assault] was necessary to protect [herself] from death or great
bodily harm.”).
        4 Our Supreme Court has found jury instructions erroneous when the trial court combined and

conflated the concepts of “death or great bodily harm” and “bodily injury or offensive physical contact.”
Clay, 297 N.C. at 561, 256 S.E.2d at 181; accord State v. Fletcher, 268 N.C. 140, 142, 150 S.E.2d 54,
56 (1966) (holding a jury instruction regarding self-defense prejudicial because it improperly placed
the burden on the defendant to show that he acted in self-defense of death or great bodily harm).

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                                   Opinion of the Court



were fighting. At some point, Defendant left the fight to retrieve a knife; Defendant

returned, swinging the knife; Defendant struck the victim with wounds requiring

over one hundred (100) stitches; another person was cut by the knife while trying to

break up the fight; and at all times the victim was unarmed.

      The evidence, taken in the light most favorable to Defendant, however, showed

that she acted in self-defense. Specifically, in this light, the evidence showed as

follows: During a heated argument, the victim struck Defendant first. Then after a

calming down period, the victim again attacked Defendant, this time by cutting

Defendant’s arm with a “little pocketknife.” Defendant grabbed the knife from the

victim and, while the victim was unarmed, “cut [the victim].” The victim continued

to fight Defendant until others intervened to stop the altercation.

      The jury was given a self-defense instruction consistent with NCPI-Criminal

308.40, that Defendant’s assault should be excused if the jury determined that

Defendant faced the threat of “bodily injury or offensive physical contact” and did not

use excessive force to repel the threat.

      On appeal, Defendant argues that since the jury could have determined that

the knife was a deadly weapon, she was entitled to an instruction consistent with

NCPI-Criminal 308.45, which excuses an assault by the use of a deadly weapon when

faced with a threat of death or serious bodily harm. However, viewing the evidence

in the light most favorable to Defendant, we conclude that the evidence was not



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                                    Opinion of the Court



sufficient to support a finding that Defendant reasonably apprehended death or great

bodily harm when she struck the victim with the knife. Therefore, the trial court did

not err in failing to give the instruction.

       Assuming arguendo that there was sufficient evidence from which the jury

could conclude that Defendant reasonably feared serious bodily harm, as opposed to

just fearing bodily injury or offensive contact, at the time she stabbed and cut the

victim with the knife, we conclude that any error by the trial court in failing to give

an instruction consistent with NCPI-Criminal 308.45 did not rise to the level of plain

error. Indeed, our Supreme Court has held that such error is not prejudicial: an

instruction consistent with NCPI-Criminal 308.40, even where a jury could determine

that the defendant used a deadly weapon, is “more favorable than that which

defendant was entitled.” Clay, 297 N.C. at 565, 256 S.E.2d at 183. Based on the

instruction actually given, assuming the other requirements of self-defense were met,

the jury was free to excuse Defendant’s assault even if they found the knife to be a

deadly weapon by making a mere finding that Defendant feared bodily injury, a much

lower threshold than serious bodily harm or death. Id.; see also State v. Loftin, 322

N.C. 375, 381, 368 S.E.2d 613, 617 (1988) (concluding that a trial judge’s “jury

instruction concerning self-defense” did not amount to plain error whereby it provided




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the jury with “a vehicle by which to acquit defendant that it would not otherwise have

had.”).5

                                           III. Conclusion

        It was not plain error for the trial court to instruct the jury on the crime of

assault with a deadly weapon inflicting serious injury and on self-defense of assaults

not involving deadly force.

        NO ERROR.

        Judges INMAN and HAMPSON concur.




        5We acknowledge the State’s argument concerning “invited error.” At the charging conference,
both Defendant and the State encouraged the trial court to use NCPI-Criminal 308.40. As such, the
State argues that any error in not also giving NCPI-Criminal 308.45 was invited error, pursuant to
Section 15A-1443(c) of our General Statutes. N.C. Gen. Stat. § 15A-1443(c) (2018). However, our
Supreme Court has held that it is the duty of the trial court to give a specific self-defense instruction
“where competent evidence of self-defense is presented at trial,” regardless of “any specific request by
the defendant.” State v. Morgan, 315 N.C. 626, 643, 340 S.E.2d 84, 95 (1986). Thus, if the evidence
supported a NCPI-Criminal 308.45 instruction, the trial court was required to give it, notwithstanding
that Defendant did not ask for it.

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