              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-438

                               Filed: 6 February 2018

Carteret County, No. 13CRS053086

STATE OF NORTH CAROLINA

             v.

STEPHEN PAUL GOMOLA, Defendant.


      Appeal by Defendant from judgment entered 26 February 2016 by Judge

Benjamin G. Alford in Carteret County Superior Court.         Heard in the Court of

Appeals 17 October 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
      Hyde, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender James R.
      Grant, for the Defendant-Appellant.


      DILLON, Judge.


      Stephen Paul Gomola (“Defendant”) appeals from judgment entered upon a

jury verdict finding him guilty of involuntary manslaughter on the theory that he

committed an unlawful act which proximately caused the death of Stephen Johnson

(the “Decedent”). Defendant argues that the trial court committed reversible error

by refusing to give a jury instruction on “defense of others” as an affirmative defense

to the unlawful act Defendant allegedly committed. We agree and order that the

judgment be vacated and remand this matter for a new trial.
                                   STATE V. GOMOLA

                                   Opinion of the Court



                                     I. Background

        In July 2013, Defendant was at a waterfront bar with friends in Morehead

City.   Defendant was involved in an altercation with approximately eight other

individuals at the bar, including the Decedent. The altercation lasted only a few

seconds, but resulted in the death of the Decedent.

        A surveillance video shows a partial view of the bar where the altercation took

place. The video shows several individuals positioned along a railing at the bar

overlooking a marina. The video shows Defendant standing next to his friend Jimmy.

Jimmy is shown holding a drink in each hand and engaging in conversation with one

or more individuals who were off-camera. Jimmy testified that the conversation

began after he saw a patron throw a beer bottle over the railing into the water and

that when he politely asked the patron not to do it again, the Decedent shoved Jimmy.

The video shows Jimmy being pushed backwards by someone off-camera and then

Defendant and another individual moving past Jimmy toward the person off-camera

who had shoved Jimmy.         The video does not show the rest of the altercation.

Approximately 6-8 seconds later, the video shows patrons trying to locate the

Decedent, who had fallen into the water.

        There was conflicting evidence regarding the role Defendant and other patrons

played in the altercation. Several patrons testified that during the portion of the

altercation which took place off-camera, Defendant “shoved,” “pushed,” or “flipped”



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the Decedent over a railing into the water.             Other testimony suggested that

Defendant’s role in the altercation was limited to an initial shove right after his friend

Jimmy was shoved and that the Decedent fell over the railing or was pushed over the

railing by a different individual.

      In any event, the Decedent did not resurface. An autopsy revealed that the

Decedent had a blood alcohol concentration of .30 or more at the time of his death.

The stated cause of death was drowning while incapacitated due to head trauma,

with alcohol intoxication as a contributing factor.

      The trial court instructed the jury that it could find Defendant guilty of

involuntary manslaughter if it found beyond a reasonable doubt that (1) Defendant

acted unlawfully, and that (2) Defendant’s unlawful act proximately caused the

victim’s death.   The trial court further instructed the jury that the underlying

“unlawful act” allegedly committed by Defendant was the crime of participating in an

“affray,” defining this crime as “a fight between two or more persons in a public place

so as to cause terror to the public.” In re May, 357 N.C. 423, 426, 584 S.E.2d 271, 274

(2003) (citing State v. Wilson, 61 N.C. 237, 237-38 (1867)). Defendant requested an

additional instruction on self-defense or defense of another in order to negate the

“unlawful act” element of the offense. The trial court declined to give the requested

instruction.




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      The jury convicted Defendant of involuntary manslaughter, and the trial court

sentenced him to 16-29 months imprisonment and fined him $10,000. Defendant

timely appealed.

                                     II. Analysis

      On appeal, Defendant contends that the trial court erred when it refused his

request to give the jury a “defense of others” instruction. We agree.

      Our Supreme Court defines involuntary manslaughter as “the unintentional

killing of a human being, without malice, proximately caused by [either] (1) an

unlawful act not amounting to a felony nor naturally dangerous to human life, or (2)

a culpably negligent act or omission.” State v. Wingard, 317 N.C. 590, 600, 346 S.E.2d

638, 645 (1986) (quoting State v. Hill, 311 N.C. 465, 471, 319 S.E.2d 163, 167 (1984)).

      In the context of involuntary manslaughter, our Supreme Court has held that

a defendant’s unlawful or negligent act is a proximate cause of the victim’s death if

the act “is a cause that produced the result in continuous sequence and without which

[the death] would not have occurred.” State v. Cole, 343 N.C. 399, 416, 471 S.E.2d

362, 370 (1996) (citation omitted). Our Supreme Court has further explained that a

defendant is criminally culpable even if his unlawful act “[is] not [] the immediate

cause of death. [A defendant] is legally accountable if the direct cause is the natural

result of the criminal act. [Even though] [t]here may be more than one proximate

cause[,] . . . criminal responsibility arises when the act complained of caused or



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directly contributed to the death.” State v. Cummings, 301 N.C. 374, 377-78, 271

S.E.2d 277, 279 (1980) (citations omitted).

      Here, the jury was instructed that it could convict Defendant of involuntary

manslaughter if the jury determined that Defendant committed the unlawful act of

“affray” and that Defendant’s act was a proximate cause of the Decedent’s death. The

jury was correctly instructed on the crime of “affray,” as defined by our Supreme

Court, as “a fight between two or more persons in a public place so as to cause terror

to the public.” May, 357 N.C. at 426, 584 S.E.2d at 274 (citing Wilson, 61 N.C. at 237

(1867)). And the jury was correctly instructed that Defendant’s act was a “proximate

cause” of the Decedent’s death if the jury determined that the act was “a cause

without which the [Decedent’s] death would not have occurred . . . [and] th[at]

[D]efendant’s act need not have been the only cause, nor the last nor nearest cause[,]

[but that it] is sufficient if [Defendant’s act] occurred with some other cause acting at

the same time which in combination with caused the death of the [Decedent].”

      We conclude that the above instructions were warranted as there was evidence

from which the jury could conclude that Defendant unlawfully participated in an

affray and that his participation was a proximate cause of the death of the Decedent.

      However, Defendant argues that the trial court committed reversible error by

refusing to give his requested instruction on self-defense or “defense of others” as an




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                                        Opinion of the Court



affirmative defense to the crime of affray.1 Defendant contends that the evidence,

when viewed in the light most favorable to him, shows that his participation in the

fight was limited to a single shove. Defendant further contends that his single shove

was legally justified because he was defending his friend, and the shove was therefore

not “unlawful,” though it may have resulted in others becoming aggressive and

resulted in another person directly forcing the Decedent into the water. For the

reasons stated below, we must agree. Specifically, it is reasonably possible that the

jury determined that Defendant participated in the affray; that his participation was

a proximate cause – though maybe not the final cause – of the Decedent’s death; and

that, if given the opportunity, the jury would have determined that Defendant’s

participation was lawful because he acted reasonably in defense of his friend Jimmy.

Indeed, the video evidence only shows Defendant deliver a single shove immediately

after his friend Jimmy was shoved; the video does not show the rest of the affray.

       Our Supreme Court has previously sanctioned the use of self-defense by a

defendant as an appropriate defense when the defendant has been accused of

unlawfully participating in an affray, stating as follows:

               If a person be without fault in bringing on an affray, he
               may [act] in self-defense if it is necessary, or appears to him
               to be necessary[.] . . .          The reasonableness of his
               apprehension is for the jury to determine from the
               circumstances as they appeared to him. This defense
               cannot be invoked when a person aggressively and

       1 Specifically, defense counsel stated that Defendant sought an “instruct[ion] on self-defense
or defense of another as far as the misdemeanor instruction [on the crime of affray] goes.”

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              willingly enters into a fight without legal excuse or
              provocation. And in exercising the right of self-defense one
              can use no more force than was or reasonably appeared
              necessary under the circumstances[.]

State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971), overruled on other

grounds by State v. Hickey, 317 N.C. 457, 346 S.E.2d 646 (1986) (citations omitted).

And our General Assembly has provided that 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,” N.C. Gen. Stat. § 14-

51.3(a) (2013) (emphasis added), and that a person who uses force as permitted by

N.C. Gen. Stat. § 14-51.3(a) is “justified in using such force and is immune from civil

or criminal liability for the use of such force[.]” N.C. Gen. Stat. § 14-51.3(b).

       Accordingly, where, as here, the State prosecutes a defendant for involuntary

manslaughter based on the theory that the defendant committed an “unlawful”

act – rather than based on a theory that the defendant committed a “culpably

negligent” act – the defendant is entitled to all instructions supported by the evidence

which relate to the unlawful act, including any recognized affirmative defenses to the

unlawful act. See Calhoun v. Highway Comm’n, 208 N.C. 424, 424, 181 S.E. 271, 272

(1935) (noting that a defendant is entitled to a specific jury instruction if it is a correct

statement of the law and is supported by the evidence presented at trial).




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                                  Opinion of the Court



      In determining whether the instruction is supported by the evidence, the

evidence must be viewed in the light most favorable to the defendant. See State v.

Moore, 363 N.C. 793, 796, 688 S.E.2d 447, 449 (2010) (holding that in determining

whether an instruction on self-defense must be given, “the evidence is to be viewed

in the light most favorable to the defendant”). Further, our Supreme Court has

instructed   that   “[w]hen   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).

      Here, there was conflicting evidence as to how the Decedent ended up in the

water and the level to which Defendant participated in the affray. Indeed, when

viewed in the light most favorable to the State, the evidence shows that Defendant

unlawfully assaulted the Decedent, knocking the Decedent into the water. However,

other evidence supports Defendant’s argument that instruction on defense of others

was warranted:      For example, there was evidence that Jimmy “absolutely felt

threatened” when the Decedent shoved him; that Defendant immediately advanced

toward the Decedent in response to the Decedent’s shove; that the Decedent punched

and kicked Defendant; that another person pushed Defendant into the Decedent,

“who eventually fell into the water”; and that Defendant only struck the Decedent

one time.




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                                   Opinion of the Court



      Taking the evidence in the light most favorable to Defendant, as we must do,

we conclude that Defendant was entitled to the “defense of others” instruction to

supplement the “affray” instruction. Specifically, based on the evidence viewed in the

light most favorable to Defendant, the jury could have determined that Defendant’s

participation in the affray was limited to one or a few pushes or blows at the

beginning, thrown merely to protect his friend Jimmy who had just been assaulted

by the Decedent. The jury could have determined that Defendant’s push was a

proximate cause in the chain that resulted in the Decedent going over the railing 6-8

seconds later. And based on these determinations, the jury would still have been

bound to convict Defendant based on the instructions as given: Defendant engaged

in a fight that involved a number of people and his participation was a proximate

cause leading to the Decedent’s death. However, had the jury also been given the

“defense of others” instruction, the jury may have determined that Defendant’s

involvement in the affray – though a proximate cause of the Decedent’s death – was

lawful because Defendant merely used the force necessary to protect his friend from

an ongoing assault. See In re Wilson, 153 N.C. App. 196, 198, 568 S.E.2d 862, 863

(2002) (citing State v. Herrell, 107 N.C. 944, 946-47, 12 S.E. 439, 440 (1890) (“A claim

of self-defense may be used to defeat a charge of affray where the [] defendant is

without fault in provoking, engaging in, or continuing a difficulty with another.”).




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                                  Opinion of the Court



      We take no position as to whether Defendant did, in fact, act lawfully. Again,

there was considerable evidence in the record showing that Defendant acted

unlawfully. Specifically, several witnesses testified to their individual recollections

of the event: “[Defendant was] punching [the Decedent] until he fell over the side

[into the water]”; “I saw [Defendant] hit the [Decedent] five or six times”; “[I] saw

[Defendant] punch another man multiple times in the face and the chest or stomach

and then grab him by the knees and throw him over the railing into the water”;

Defendant was the person who pushed the Decedent into the water; and Defendant

“flip[ped] somebody over the railing[.]” However, when Defendant's evidence, taken

as true, is sufficient to show that he acted lawfully in self-defense or in defense of

another, the instruction “must be given even though the State's evidence is

contradictory.” Moore, 363 N.C. at 796, 688 S.E.2d at 449; see also State v. Dooley,

285 N.C. 158, 163, 203 S.E.2d 815, 818 (1974) (“Where there is evidence that

defendant acted in self-defense, the court must charge on this aspect even though

there is contradictory evidence by the State or discrepancies in defendant’s

evidence.”).

      Accordingly, we hold that the evidence presented at trial, viewed in the light

most favorable to Defendant, was sufficient to warrant the instruction of the jury on

the issue of defense of others. Thus, the trial court’s failure to give the instruction

was error. We further hold that there is a reasonable possibility that had this error



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not been committed, a different result would have been reached at trial. See Dooley,

285 N.C. at 166, 203 S.E.2d at 820 (“[T]he trial court's failure to include [an

instruction on self-defense] in its final mandate to the jury was prejudicial error [that]

entitle[d] defendant to a new trial.”). There were contradictory witness accounts of

the altercation, the first trial ended with a deadlocked jury, and the prosecutor

argued in closing that self-defense/defense of others was irrelevant.

      We note the State’s argument that self-defense is not a defense to involuntary

manslaughter based on State v. Ray, 299 N.C. 151, 261 S.E.2d 789 (1980). However,

the State’s argument is misplaced. The issue in the present case is not whether self-

defense/defense of others is necessarily an affirmative defense to the crime of

involuntary manslaughter, but rather whether it is an affirmative defense to the

crime of affray – the “unlawful act” that the State used as the basis for the

involuntary manslaughter charge.         In any event, the Supreme Court in Ray

specifically provided that the result in that case “should not be read as casting any

doubt on the validity of earlier decisions of . . . the Court of Appeals[,]” and limited

its holding to an issue involving erroneous submission of lesser included offenses to

the jury. Ray, 299 N.C. at 167, 261 S.E.2d at 799. In Ray, our Supreme Court

highlighted two cases from our Court which illustrate the relationship between self-

defense and involuntary manslaughter: State v. Walker, 34 N.C. App. 485, 238 S.E.2d

666 (1977) and State v. Spinks, 39 N.C. App. 340, 250 S.E.2d 90 (1979). Both Walker



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and Spinks involved situations where the trial court submitted the charge of

involuntary manslaughter to the jury based on an “unlawful act” of the defendant.

      In Spinks, the defendant was convicted of involuntary manslaughter based on

the unlawful act of pointing a gun.       Our Court recognized that “an intentional

pointing of a gun violates the statute only if it is done without legal justification,”

concluding that “if the jury found that the defendant acted in self-defense they could

not have found her guilty of involuntary manslaughter[.]” Spinks, 39 N.C. App. at

343, 250 S.E.2d at 93 (emphasis added). Our Court acknowledged that the trial court

erred when it instructed the jury that the “defendant’s act was unlawful,” because it

took the opportunity away from the jury to decide whether the defendant’s pointing

of the gun was, in fact, lawful. Id.

      In Walker, our Court found no error where the trial court instructed the jury

that the defendant’s act was unlawful because it was clear from the form of the jury

charge that the jury had specifically considered and rejected the defendant’s theory

of self-defense – and had therefore determined that the defendant’s act was

unlawful – before considering the charge of involuntary manslaughter. See Walker,

34 N.C. App. at 487, 238 S.E.2d at 667.

      Thus, these two cases, which we once again emphasize were left undisturbed

by the Supreme Court in Ray, demonstrate that Ray was not intended to prevent a

defendant from asserting a recognized affirmative defense to an underlying unlawful



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                                  Opinion of the Court



act when charged with involuntary manslaughter in order to show that he, in fact,

acted lawfully.

      We also note our holding in State v. Alston that “self-defense, as an intentional

act, [cannot] serve as an excuse for the negligence or recklessness required for a

conviction of involuntary manslaughter” under the culpable negligence prong. See

State v. Alston, 161 N.C. App. 367, 375, 588 S.E.2d 530, 536 (2003). However, this

holding is inapposite to the present case because here, the theory of the State’s case

is that Defendant intentionally committed an unlawful act by participating in an

affray.   And certainly self-defense/defense of others may serve as an excuse for

intentionally participating in a fight. Therefore, one whose participation in a fight

proximately causes the death of another is not guilty of involuntary manslaughter

unless his participation is was unlawful.

                                   III. Conclusion

      We hold that, in this case, the lack of a self-defense/defense of others

instruction deprived the jury of the ability to decide the issue of whether Defendant’s

participation in the altercation was lawful.       A determination by the jury that

Defendant’s participation was lawful would have negated the “unlawful act” element

of involuntary manslaughter and would have compelled the jury to return a verdict

of “not guilty.” Therefore, because the trial court failed to include an instruction on




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                                  Opinion of the Court



self-defense/defense of others in its final mandate to the jury, Defendant is entitled

to a new trial.

      NEW TRIAL.

      Judges DAVIS and INMAN concur.




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