                                NO. COA14-242

                     NORTH CAROLINA COURT OF APPEALS

                          Filed: 16 September 2014


STATE OF NORTH CAROLINA

      v.                                   Wayne County
                                           Nos. 06 CRS 52247
BOBBY LEE RAWLINGS,                             06 CRS 52308
          Defendant.


      Appeal by defendant from judgments entered 16 August 2013

by Judge Jack W. Jenkins in Wayne County Superior Court.                Heard

in the Court of Appeals 28 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      John P. Barkley, for the State.

      John R. Mills for defendant-appellant.


      GEER, Judge.


      Defendant   Bobby   Lee   Rawlings     appeals   his   convictions   of

attempted first degree murder,         two counts of         assault with a

firearm on a law enforcement officer,             assault with a deadly

weapon with intent to kill ("AWDWIK"), and assault with a deadly

weapon.      On appeal, defendant primarily argues that the trial

court erred in instructing the jury pursuant to N.C. Gen. Stat.

§ 14-51.4 (2013) that self-defense is not available to a person

who   used    defensive   force   in   the    commission     of   a   felony.
                                                 -2-
Defendant asserts that the General Assembly did not intend N.C.

Gen. Stat. § 14-51.4 to apply when the defendant was committing

a non-violent felony and was not an aggressor.

      We     do        not    address          defendant's            statutory      construction

argument     because          N.C.      Gen.     Stat.   §       14-51.4      only    applies       to

offenses      occurring            on    or     after        1    December        2011      and    is,

therefore,         inapplicable to the 15 March 2006 offenses charged

in    this    case.           Although          defendant         did       not   recognize        the

inapplicability of the provision and, as a result, did not raise

the   issue       at    trial      or     on    appeal,          we   have    elected,       in    our

discretion, to invoke Rule 2 of the Rules of Appellate Procedure

and review the instruction for plain error.                                 We hold that while

the   trial       court       erred      in     instructing           the    jury    regarding       a

statutory     amendment            to    the     law    of       self-defense        that    had    an

effective date after the date of the offenses in this case,

defendant has failed to meet his burden of showing that he was

prejudiced by the instruction.

      Defendant additionally argues that his convictions violate

double     jeopardy          and   that        the   trial       court      erred    in     entering

judgment on AWDWIK when the jury returned a verdict of assault

with a deadly weapon.                   We hold that defendant waived the double

jeopardy argument and remand for correction of the judgment.

                                                Facts
                                   -3-
    The State's evidence tended to show the following facts.

On 15 March 2006, at about 9:40 a.m., 11 officers from the

Goldsboro    Police   Department   ("GPD")    and   the   Drug   Enforcement

Agency assembled at defendant's residence to execute a search

warrant.     Officer Daniel Peters of the GPD knocked on the back

door and yelled, "Police, search warrant."            He then struck the

door with a ram three or four times but was unable to open it

because there were two-by-fours propped up against the door from

the inside to keep it shut.        Eventually one of the officers was

able to break the door off its hinges, and the officers entered

the house.

    Once     inside,    Officer    Peters     proceeded     upstairs   with

Sergeant Max Staps      of the Wayne County Sheriff's Office            and

Captain Brady Thompson of the GPD, announcing, again, "Police,

search warrant," as they did so.         Once upstairs, Sergeant Staps

found defendant's roommate, Rico Lewis, asleep on a mattress in

a room directly across from the stairs and apprehended him.

Officer Peters and Captain Thompson proceeded down the hall to

check the rest of the rooms.        Officer Peters opened the door to

defendant's room and saw defendant standing 10 to 15 feet away

from him with a pistol in his hand.          As soon as the door opened,

defendant fired three shots.          Officer Peters felt the first
                                    -4-
bullet go past his arm, and retreated.         Captain Thompson was hit

in his bullet proof vest by one of the bullets.

       After the shots were fired, Sergeant Staps left the room

where he had Mr. Lewis handcuffed and went to the room across

the hall from defendant's room, where he found Captain Thompson

lying on the ground.       Sergeant Staps checked Captain Thompson's

pulse and checked to see if there was any blood.                   As he was

checking on Captain Thompson, the door to defendant's room began

to open.     Sergeant Staps drew his weapon, announced that he was

the police, and told defendant to put his gun down and give up.

When the door opened, defendant had put down his gun and was

sitting on the floor with his hands over his head.                 Defendant

did not resist arrest.

       When officers searched defendant, they found a significant

amount of cocaine on his person.          Additionally, officers found a

marijuana    cigarette,    a   police   scanner,     digital   scales,    and

sandwich bags in defendant's house, as well as cocaine residue

and bullets in defendant's vehicle.            Testimony was presented

that   in   the   drug   trade,   digital   scales    are   used   to   weigh

controlled substances for sale, and sandwich bags are used for

packaging.

       On 3 July 2006, defendant was indicted, with respect to the

shooting of Captain Thompson, for attempted first degree murder,
                                    -5-
assault with a deadly weapon with intent to kill inflicting

serious injury, and assault with a firearm on a law enforcement

officer.     With respect to Officer Peters, defendant was indicted

for assault with a firearm on a law enforcement officer and

AWDWIK.     Defendant pleaded guilty and was sentenced to a term of

133 to 169 months imprisonment.           On 10 April 2012, the superior

court    granted   defendant's    motion    for   appropriate   relief   and

vacated his convictions.         Defendant subsequently entered a plea

of not guilty and was tried from 13 to 16 August 2013.

    At trial, defendant testified in his own defense that he is

a Vietnam War veteran who suffers from post-traumatic stress

disorder.     He lived at the residence on East Elm Street with a

series of roommates.          Five days before the officers executed

their    search    warrant,   defendant's    roommate,   Mr.    Lewis,   was

robbed after an intruder entered through the back door of the

house.     After the robbery, defendant braced the back door with

two-by-fours to keep the door closed.             Defendant also bought a

handgun, which he kept in his nightstand, because Mr. Lewis told

defendant that he thought that the robbers were coming back.

    On the morning of 15 March 2006, defendant was asleep in

his bedroom when he was awakened by a boom.                He then heard

running up the stairs that panicked him "because nobody came up

[his] stairs."      He pulled out the handgun from his nightstand,
                                          -6-
locked    and    loaded    it,    and    laid    back    down    to    listen.        The

television      in   his   bedroom      was   turned    on,     but    he    could   hear

"creeping" up the stairs and expected a robbery.                       He never heard

anyone say "police" or "search warrant."

      Defendant heard another boom as his bedroom door was kicked

in, and he saw a black man wearing dark clothes with a gun

pointed at him whom he thought was a "stickup kid."                            Defendant

immediately fired two shots as the door flung open -- the door

hit a file cabinet and bounced back shut again.                        After the door

shut, defendant fired a clearance shot to make a noise so that

he could crawl out of the bed onto the floor.                           When he then

heard a lot of people running up the stairs, he asked, "[W]ho

the hell is out there?"            Several of the officers responded that

it was law enforcement, and defendant realized, for the first

time, that he was not being robbed.                    When he found out it was

the police, he automatically put the gun down and lay down with

his   hands     straight    out    in    front    of    him   until     the     officers

arrested him.

      The jury found defendant guilty of attempted first degree

murder, AWDWIK, and assault with a firearm on a law enforcement

officer    for       shooting     Captain       Thompson.        The        trial    court

sentenced defendant to presumptive-range terms of 251 to 311

months imprisonment for attempted first degree murder, 46 to 65
                                         -7-
months    imprisonment       for   assault       with     a   firearm      on   a     law

enforcement     officer,     and    46    to   65    months       imprisonment       for

AWDWIK.       With    respect      to    Officer     Peters,      the    jury       found

defendant guilty of assault with a deadly weapon and assault

with a firearm on a law enforcement officer.                       The trial court

consolidated the two convictions and sentenced defendant on the

more serious conviction to a presumptive-range term of 46 to 65

months imprisonment.          All of the sentences ran concurrently.

Defendant timely appealed to this Court.

                                    Discussion

    Defendant        first   contends     that      the   trial    court    erred     in

instructing the jury that "[s]elf-defense is not available to a

person who used defensive force in the commission of a felony."

Defendant argues that N.C. Gen. Stat. § 14-51.4, the statute

upon which the instruction was based, should only be read to

apply    to   the    commission     of    violent       offenses    or     where     the

defendant is the aggressor.

    North Carolina has long recognized the common law right to

use defensive force in one's home.               State v. Blue, 356 N.C. 79,

88, 565 S.E.2d 133, 139 (2002) (examining rules governing common

law defense of habitation and common law right to self defense

while in one's home).           However, in this case, the trial court

instructed    the    jury    pursuant     to   the      statutory    right      to    use
                                           -8-
defensive force as provided by N.C. Gen. Stat. § 14-51.2 (2013)

and N.C. Gen. Stat. § 14-51.3 (2013).                    Under the statutes, self-

defense "is not available to a person who used defensive force

and   who    .    .     .    [w]as    attempting    to    commit,       committing,      or

escaping after the commission of a felony."                       N.C. Gen. Stat. §

14-51.4.         Here, the trial court, over defendant's objection,

granted the State's request to give this limiting instruction

because     the    State       presented   evidence       that    at    the    time    that

defendant shot at the officers, he was committing the felonies

of possession of cocaine and maintaining a dwelling for the

purpose of using and selling controlled substances.

      Defendant argues that the General Assembly did not intend

N.C. Gen. Stat. § 14-51.4 to apply to the commission of non-

violent felonies because that would deprive a non-aggressor of

the   ability      to       defend   himself,    with     the    result    that      "[t]he

interpretation endorsed by the trial court would prevent a claim

of    self-defense           during     credit     card     fraud,       tax       evasion,

possession of marijuana, or any other of the many non-violent

felonies proscribed by North Carolina law."                            To avoid absurd

consequences,         defendant       asserts,     N.C.    Gen.    Stat.       §    14-51.4

should be applied only to commission of violent felonies or

where the defendant is the aggressor.
                                  -9-
    Apparently,     neither   defendant,   the   State,   nor   the   trial

court realized that N.C. Gen. Stat. § 14-51.4 only applies to

offenses committed on or after 1 December 2011.           See 2011 N.C.

Sess. Laws ch. 268, § 26 ("Prosecutions for offenses committed

before the effective date of this act are not abated or affected

by this act, and the statutes that would be applicable but for

this act remain applicable to those prosecutions.").              Because

defendant was charged based on acts committed on 15 March 2006,

defendant is not subject to the self-defense statutes enacted by

the General Assembly in 2011.

    Defendant failed to raise this argument to the trial court

or on appeal.     Even if defendant had raised this argument on

appeal, "'the law does not permit parties to swap horses between

courts in order to get a better mount,'            . . .    meaning, of

course, that a contention not raised and argued in the trial

court may not be raised and argued for the first time in the

appellate court."     Wood v. Weldon, 160 N.C. App. 697, 699, 586

S.E.2d 801, 803 (2003) (quoting Weil v. Herring, 207 N.C. 6, 10,

175 S.E. 836, 838 (1934)).

    This Court has recognized, however, that "[i]n cases where

a party has failed to preserve an argument for appellate review,

'Rule 2 permits the appellate courts to excuse a party's default

. . . when necessary to prevent manifest injustice to a party or
                                      -10-
to expedite decision in the public interest.'"                In re Hayes, 199

N.C. App. 69, 76, 681 S.E.2d 395, 400 (2009) (quoting Dogwood

Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 196,

657 S.E.2d 361, 364 (2008)).          North Carolina courts have invoked

Rule 2 when all the parties and the trial court operated under

an erroneous assumption of law.          Id.

      In this case, the record reflects that the trial court

prepared the proposed jury instructions "relying exclusively on

the   North    Carolina   Pattern      Jury    Instructions      including       the

footnotes     therein."      The    Pattern    Jury    Instruction      Committee

revised   the    criminal    pattern     instructions       in   June     2012   to

incorporate the changes made to the common law by the new self-

defense statutes enacted in 2011.             It is evident from the record

that the defendant, the State, and the trial court were all

operating under the erroneous assumption that the Pattern Jury

instructions     correctly         reflected     the    law      applicable       to

defendant's offenses.

      Defendant did, however, preserve at the trial level the

statutory     construction     argument        that    he   makes    on     appeal

regarding the 2011 statute.            We are reluctant to decide, as a

case of first impression, how this addition to the self-defense

law should be interpreted and applied in a case in which the

statute does not apply.            Under these unique circumstances, we
                                                 -11-
have decided, in the interest of justice, to invoke Rule 2 of

the     Rules    of    Appellate           Procedure          and    to     review     the     jury

instructions for plain error.

       In    order         to        establish     plain        error,      defendant        "must

demonstrate that a fundamental error occurred at trial.                                  To show

that    an     error       was       fundamental,       a     defendant       must      establish

prejudice -- that, after examination of the entire record, the

error    had    a    probable          impact    on     the    jury's       finding     that     the

defendant was guilty."                   State v. Lawrence, 365 N.C. 506, 518,

723    S.E.2d       326,    334       (2012)     (internal       citation        and    quotation

marks omitted).

       In arguing that the trial court erred in instructing the

jury that self-defense did not apply if defendant was committing

a felony, defendant argued that he was prejudiced because "[h]ad

the    jurors       been    properly          instructed,        there      is   a     reasonable

probability         that        at    least     one     juror       would    have      reached    a

different result.                Without any reference to the 'in commission

of a felony' limitation, at least one juror might have credited

[defendant's] account and found him not guilty."                                 This argument

is insufficient to meet defendant's burden of showing that there

is a reasonable possibility that the jury would have reached a

different verdict in the absence of the instruction.                                    See N.C.

Gen. Stat. § 15A-1443(a) (2013) ("A defendant is prejudiced by
                                            -12-
errors       relating       to     rights     arising    other        than     under     the

Constitution of the United States when there is a reasonable

possibility that, had the error in question not been committed,

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

which       the    appeal        arises."   (emphasis       added)).           Certainly,

defendant has not shown and, given the evidence, we cannot find,

that the instruction had a probable impact on the verdict, as

opposed to possibly influencing a single juror.

       We, therefore hold that the trial court                         did not      commit

plain error when it instructed the jury using the 2012 version

of    the    pattern      jury      instructions.        We    express       no    opinion

regarding the proper construction of N.C. Gen. Stat. § 14-51.4.

       Defendant next argues that his sentences for the offenses

arising out of           the shooting of           Captain Thompson violate the

prohibition on double jeopardy.                   Defendant concedes that he did

not   raise       the   double      jeopardy    issue    below.        "Constitutional

questions not raised and passed on by the trial court will not

ordinarily be considered on appeal."                    State v. Tirado, 358 N.C.

551, 571, 599 S.E.2d 515, 529 (2004).                       Our Supreme Court has

held that the issue of double jeopardy cannot be raised for the

first time on appeal.               State v. Davis, 364 N.C. 297, 301, 698

S.E.2d      65,    67    (2010)      ("To   the    extent     defendant        relies     on

constitutional          double     jeopardy    principles,       we    agree      that   his
                                       -13-
argument is not preserved[.]"); see also State v. Madric, 328

N.C. 223, 231, 400 S.E.2d 31, 36 (1991) (holding that defendant

waived double jeopardy argument for failure to raise issue in

trial court).      Therefore, we hold that defendant has failed to

preserve this issue for appellate review and do not address it.

       Defendant, nevertheless, requests that we apply Rule 2 and

address the issue of double jeopardy, citing State v. Dudley,

319 N.C. 656, 659-60, 356 S.E.2d 361, 364 (1987) (invoking Rule

2 to address double jeopardy issue), and State v. Mulder, ___

N.C. App. ___, ___, 755 S.E.2d 98, 101 (2014) (same).                      "The

decision to review an unpreserved argument relating to double

jeopardy is entirely discretionary."            Id. at ___, 755 S.E.2d at

101.     Here, even assuming, without deciding, that sentencing

defendant   on   all   three     convictions    violated    double   jeopardy,

arresting judgment on one of the convictions would not alter the

total time defendant is required to serve because the trial

court ordered the sentences to run concurrently.                  Under these

circumstances, the extraordinary relief of invoking Rule 2 is

not necessary to prevent manifest injustice.               In our discretion,

we decline to address this issue.

       Finally, defendant argues that, with respect to the charges

related to Officer Peters, the trial court erred in entering

judgment    on   the   offense    of   AWDWIK   because     the   trial   court
                                   -14-
instructed the jury and accepted a verdict of guilty on the

lesser-included offense of assault with a deadly weapon.

    The State concedes that defendant was convicted of assault

with a deadly weapon, and that the trial court erred and entered

judgment on the greater offense of AWDWIK.                 It is, however,

apparent that this error was merely a clerical one.                  The two

offenses for which defendant was originally indicted regarding

Officer Peters were AWDWIK (in Count IV) and assault with a

firearm on a law enforcement officer (Count V).              Both of those

offenses are class E felonies.          Assault with a deadly weapon is,

however, punished as a class A1 misdemeanor.           At sentencing, the

trial court announced: "And then the last two, Count IV and

Count V, the Court is going to consolidate these two, and the

most serious of those two is the Count V, which is the Class E .

. . ."     Thus, because the trial court was aware that defendant's

conviction under Count IV did not involve a class E felony, the

court     necessarily   recognized      that   defendant    had    not     been

convicted of AWDWIK.       Accordingly, any error on the judgment

amounts    to   a   clerical   error.       We,   therefore,      remand    for

correction of the judgment.

    Defendant, however, citing State v. Dickens, 162 N.C. App.

632, 640, 592 S.E.2d 567, 573 (2004), also correctly notes that

convictions for both assault with a deadly weapon and assault
                                 -15-
with a firearm on a law enforcement officer, when based upon the

same   conduct,   violate   double   jeopardy.   Defendant,   however,

failed to preserve this issue and, based on our review of the

record, we cannot conclude that review is necessary to prevent

manifest injustice since the trial court ordered that all of the

sentences run concurrently.


       No error in part; remanded in part.

       Judge STEELMAN concurs in the result per separate opinion.

       Judge ROBERT N. HUNTER, JR. concurred in this opinion prior

       to 6 September 2014.
                            NO. COA14-242

                  NORTH CAROLINA COURT OF APPEALS

                       Filed: 16 September 2014


STATE OF NORTH CAROLINA

    v.                              Wayne County
                                    Nos. 6 CRS 52247
BOBBY L. RAWLINGS,                       6 CRS 52308
          Defendant.


    Judge STEELMAN, concurring in the result.

    I concur in the result reached by the majority in this

case, but write separately because it is inappropriate to invoke

Rule 2 of the Rules of Appellate Procedure as to defendant’s

first argument.   It cannot be a “manifest injustice” or the

expediting of a “decision in the public interest” to consider an

argument made by defendant under a statute that was inapplicable

to the offenses for which defendant was tried.    See N.C. R. App.

P. 2; see also S.L. 2011-268 § 26, eff. Dec. 1, 2011.
