              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA18-422

                               Filed: 19 February 2019

Wake County, No. 17 CRS 205978

STATE OF NORTH CAROLINA

             v.

TOUSSANT LOVERTURE PARKS, Defendant.


      Appeal by Defendant from judgment entered 27 October 2017 by Judge Reuben

F. Young in Wake County Superior Court.           Heard in the Court of Appeals 28

November 2018.


      Attorney General Joshua H. Stein, by Assistant Attorney General Donna B.
      Wojcik, for the State.

      Joseph P. Lattimore, for defendant-appellant.


      MURPHY, Judge.


      A trial court must instruct a jury on self-defense where, taking the evidence in

the light most favorable to the defendant as true, there is competent evidence to

support such an instruction. Failure to do so is error, even if the State presents

conflicting evidence. Additionally, a trial court does not err in instructing the jury on

flight evidence where there is some evidence to reasonably support the theory that

the defendant fled after commission of the crime charged. Here, there was evidence

to support both a self-defense instruction and a flight instruction. The trial court
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committed prejudicial error by failing to instruct the jury on self-defense, thus

entitling Defendant to a new trial.

                                  BACKGROUND

      On 2 April 2017, Aubrey Chapman (“Chapman”) attended the birthday party

of his cousin, Timothy Sims (“Sims”), at Red Bowl Asian Bistro in Raleigh. Also in

attendance at the party was Chapman’s childhood friend, Alan McGill (“McGill”).

While McGill was ordering a drink from the restaurant’s bar and talking to a female

attendee, Defendant approached him. Defendant asked McGill, “How do you know

her? Where do you know her from?” McGill responded that he did not want any

trouble. At this time, Defendant hit McGill in the face with a closed fist. Chapman

observed this sudden confrontation and struck Defendant in the face.        Security

escorted Defendant out of the restaurant. Chapman followed shortly thereafter,

stating, “This guy is ruining this party for everybody.” A group of people “stampeded

out” of the restaurant behind Chapman.

      The sequence of events after Defendant, Chapman, and the group of attendees

exited the restaurant conflicts. Chapman stated that when he exited the restaurant,

Defendant immediately “came charging up” to him with an orange box cutter in his

hand. As Defendant approached him with the box cutter, Chapman stated that he

started “swinging” at Defendant. At this time, Chapman recalled the crowd grew and

intervened. Chapman then stated that Defendant came charging at him again with



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the box cutter and cut him below his left kidney as Chapman tripped over a curb.

Sims also recalled a male rushing towards Chapman outside of the restaurant. One

of the security guards working the event also observed Defendant charge towards

Chapman twice and cut Chapman on his back. Another security guard stated that

[Chapman’s] “friends had realized that [Defendant] had a box cutter, and [tried] to

basically fight him and beat him up.” Amidst the altercation between Defendant and

the group, Reggie Penny (“Penny”), a security guard, was also cut “on his front half

and his back.”

      Penny, the injured security guard, and Sherrel Outlaw (“Outlaw”), an

attendee, however, recalled a different sequence of events outside of the restaurant.

Penny stated that he observed Defendant trying to reenter the restaurant after being

escorted out. As he was speaking with Defendant, Penny recalled “two people rushing

up to [Defendant]” on both sides to start an altercation with Defendant. Amidst the

altercation, Penny observed the group “kicking and stomping.” Outlaw stated that

she went outside after hearing “commotion” inside the restaurant. She then saw

Defendant with “his hands up” when “a group of guys [started] walking towards him

. . . .” At this time, Defendant “took a couple of steps back and then there was a guy

on the left side of him that hit him in the face, and then there was a guy like probably

two steps to the right of [Defendant], and once he got hit, the guy on the right side

swung.” Outlaw stated, “that is when the group of guys started jumping on him and



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I seen [sic] them go down.” Outlaw stated that she did not see Defendant with a

weapon.

      Defendant was indicted on two counts of Assault with a Deadly Weapon

Inflicting Serious Injury. At trial, Defendant requested a jury instruction on self-

defense using N.C.P.I. – Crim. 308.45. The trial court denied this request, stating, “I

don’t believe that there is evidence that has been presented that supports a self

defense claim.” The trial court also overruled Defendant’s objection to instructing the

jury on flight. A jury convicted Defendant for Assault with a Deadly Weapon for the

injuries sustained by Penny and Assault with a Deadly Weapon Inflicting Serious

Injury for those sustained by Chapman. Defendant was sentenced to an active term

of 29 to 47 months.

                                     ANALYSIS

                              A. Standard of Review

      We review a challenge to the trial court’s decision regarding jury instructions

de novo. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). “Under

a de novo review, the court considers the matter anew and freely substitutes its own

judgment for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33, 669

S.E.2d 290, 294 (2008) (citation and internal quotation marks omitted). Defendant

preserved his arguments regarding jury instructions for appeal. Accordingly, he must

demonstrate that “there is a reasonable possibility that, had the error in question not



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been committed, a different result would have been reached at the trial out of which

the appeal arises.” N.C.G.S. § 15A-1443(a) (2017).

                            B. Self-Defense Instruction

      Defendant first contends the trial court erred in failing to instruct the jury on

the use of deadly force in self-defense. We agree.

      “It is the duty of the trial court to instruct the jury on all substantial features

of a case raised by the evidence.” State v. Shaw, 322 N.C. 797, 803, 370 S.E.2d 546,

549 (1988). “When supported by competent evidence, self-defense unquestionably

becomes a substantial and essential feature of a criminal case . . . .” State v. Deck,

285 N.C. 209, 215, 203 S.E.2d 830, 834 (1974). For this reason, a defendant is entitled

to an instruction on self-defense when he or she presents competent evidence of such.

State v. Morgan, 315 N.C. 626, 643, 340 S.E.2d 84, 95 (1986). In determining whether

a defendant has presented competent evidence sufficient to support an instruction for

self-defense, we take the defendant’s evidence as true and consider it in the light most

favorable to the defendant. State v. Moore, 363 N.C. 793, 796, 688 S.E.2d 447, 449

(2010). Once this showing of competent evidence is made, “the court must charge on

this aspect even though there is contradictory evidence by the State or discrepancies

in defendant’s evidence.” State v. Anderson, 40 N.C. App. 318, 321, 253 S.E.2d 48, 50

(1979) (quoting State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 818 (1974)).

      N.C.G.S. § 14-51.3 provides:



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             (a) A person is justified in using force, except deadly force,
             against another when and to the extent that the person
             reasonably believes that the conduct is necessary to defend
             himself or herself or another against the other’s imminent
             use of unlawful force. However, a person is justified in the
             use of deadly force and does not have a duty to retreat in
             any place he or she has the lawful right to be if either of
             the following applies:

                    (1) He or she reasonably believes that such force is
                    necessary to prevent imminent death or great bodily
                    harm to himself or herself or another.

                    (2) Under the circumstances permitted pursuant to
                    G.S. 14-51.2

N.C.G.S. § 14-51.3(a) (2017). However, subject to certain exceptions, our law does not

permit a defendant to receive “the benefit of self-defense if he was the aggressor” or

initially provokes the use of force against himself or herself. State v. Lee, ___ N.C.

App. ___, ___, 811 S.E.2d 233, 236 (2018); N.C.G.S. § 14-51.4(2) (2017). “An individual

is the aggressor if he or she aggressively and willingly enters into a fight without

legal excuse or provocation.” Lee, ___ N.C. App. at ___, 811 S.E.2d at 236. Moreover,

the limited circumstances under which an initial aggressor may regain his or her

right to use defensive force under N.C.G.S. § 14-51.4 are unavailable to a defendant

who used deadly force in his or her initial aggression. State v. Holloman, 369 N.C.

615, 628-29, 799 S.E.2d 824, 833 (2017).

      Here, Defendant does not dispute the trial court’s finding that the box cutter

is a deadly weapon as a matter of law. Thus, we analyze the use of the box cutter in



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self-defense as the use of deadly force. Accordingly, our inquiry is into whether

Defendant presented competent evidence that he “reasonably believe[d] that such

force [was] necessary to prevent imminent death or great bodily harm to himself” so

as to warrant an instruction on self-defense.1 N.C.G.S. § 14-51.3(a)(1).

       At trial, Defendant’s counsel asked Penny, “As you were talking to [Defendant],

the man who was hosting the party and his buddy came up and rushed around you

and attacked [Defendant]?” Penny replied, “Yes.” More explicitly, Penny testified

that “[t]hey attacked him.” Penny further stated that he did not see any weapon in

Defendant’s hand at that time. Outlaw, another attendee of the party, similarly

testified that she did not see a weapon in Defendant’s hand and that she observed the

group of people attack Defendant while he was backing up with his hands raised.

When the group attacked Defendant, Outlaw described it as a “riot,” with multiple

people hitting and kicking Defendant.              Outlaw even testified that she believed

Defendant would die in the attack “because there was [sic] so many of them.” Taken

as true and in the light most favorable to Defendant, this evidence is sufficient to

support Defendant’s proposition that the assault on him gave rise to his reasonable

apprehension of death or great bodily harm. See State v. Whetstone, 212 N.C. App.

551, 560, 711 S.E.2d 778, 784-85 (2011) (finding sufficient evidence to support the

proposition that an assault on the defendant gave rise to his reasonable apprehension


       1  N.C.G.S. § 14-51.3(a)(2) is inapplicable, as the circumstances permitted under N.C.G.S. § 14-
51.2 are inapplicable to this case.

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of death or great bodily harm when the defendant was knocked to the ground, held

there, and choked). As such, the trial court erred in failing to instruct the jury on the

use of self-defense.

      The State contends that there is no evidence from which self-defense may be

inferred, arguing that all of the evidence indicates that Defendant was the initial

aggressor, thus depriving him of a self-defense instruction. The State is correct in its

recitation of some of the evidence presented showing that Defendant was the initial

aggressor of the altercation outside of the restaurant when he twice charged at

Chapman with a box cutter; however, the State omits the conflicting evidence from

Penny and Outlaw indicating that Defendant had not brandished a weapon and was

attacked without provocation when attendees flanked and attacked him on both

sides. The credibility of such evidence does not factor into our analysis, as we must

view the evidence in the light most favorable to Defendant and take such evidence as

true. We have “held that when a defendant’s evidence tended to show he acted in

self-defense, ‘the trial judge was obligated to instruct on self-defense but because the

State’s evidence tended to show that defendant was the aggressor, he properly

instructed further that self-defense would be an excuse only if defendant was not the

aggressor.” Lee, ___ N.C. App. at ____, 811 S.E.2d at 237 (quoting State v. Joyner, 54

N.C. App. 129, 135, 282 S.E.2d 520, 524 (1981)). With conflicting evidence, it was for

the jury to determine which individual was the initial aggressor.



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      Having concluded the trial court erred in failing to instruct the jury on self-

defense, we must next determine whether Defendant has met his burden of showing

a reasonable possibility that, had this error not been committed, a different result

would have been reached. The State contends that no such reasonable possibility

exists, as “Defendant only put on one witness, Ms. Outlaw” and “[h]er testimony was

not credible.” However, the determination of the credibility of witness testimony

rests firmly with the jury. The trial court’s erroneous denial of Defendant’s request

for a self-defense instruction prevented the jury from considering whether Defendant

reasonably believed that deadly force was necessary to prevent imminent death or

great bodily harm to himself. See State v. Ramos, 363 N.C. 352, 356, 678 S.E.2d 224,

227 (2009) (“Evaluating the credibility of defendant’s testimony in light of the other

evidence was properly for the jury and the trial court’s instructional error prevented

the jury from considering the willfulness of defendant’s actions.”) Based on the

testimony of Penny and Outlaw, the trial court’s error was prejudicial, as there is a

reasonable possibility that the jury could have found that Defendant reasonably

believed deadly force to be necessary.

                               C. Flight Instruction

      Defendant also contends that the trial court erred in instructing the jury that

it could consider Defendant’s alleged flight as evidence of guilt. We disagree.




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      “A trial court may properly instruct on flight where there is some evidence in

the record reasonably supporting the theory that the defendant fled after the

commission of the crime charged.” State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596,

625 (2001) (citation and internal quotation marks omitted). “Mere evidence that

defendant left the scene of the crime is not enough to support an instruction on flight.

There must also be some evidence that defendant took steps to avoid apprehension.”

State v. Thompson, 328 N.C. 477, 490, 402 S.E.2d 386, 392 (1991). However, “[t]he

fact that there may be other reasonable explanations for defendant’s conduct does not

render the instruction improper.” State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833,

842 (1977).

      The probative value of flight evidence has been “consistently doubted” in our

legal system, and we note at the outset that we similarly doubt the probative value

of Defendant’s alleged flight here. See Wong Sun v. U.S., 371 U.S. 471, 483 n. 10, 83

S.Ct. 407, 415 n. 10, 9 L.Ed.2d 441 (1963). However, there is “some evidence in the

record” that “reasonably support[s] the theory that the defendant fled after the

commission of the crime charged.” See Lloyd, 354 N.C. at 119, 552 S.E.2d at 625.

Sims reported to a responding officer that after Penny was injured, Defendant “took

off running[,]” and “the other bouncers chased after [Defendant] and tackled him to

the ground.” Moreover, Officer Michael Curci testified that Defendant “had run in

this direction so [the] victims were to my left and the suspect was to my right.” Such



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evidence reasonably supports the theory that Defendant not only left the scene of the

altercation, but also took steps to avoid apprehension. The trial court did not err in

instructing the jury on flight.

                                  CONCLUSION

      Although the evidence of self-defense presented at trial was conflicting, taking

the evidence in the light most favorable to Defendant as true, there was competent

evidence sufficient to support a self-defense instruction. This error was prejudicial.

The trial court, however, did not err in instructing the jury on flight. Defendant is

entitled to a new trial.

      NEW TRIAL.

      Judges STROUD and DIETZ concur.




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