In terms of the substantive law, a person may use physical force to defend
himself from bodily harm or offensive physical contact. See Moore, 111
N.C. App. at 653, 432 S.E.2d at 889. However, in the case of a non-felonious
assault, he must attempt to exit the situation if at all possible. See
Allred, 129 N.C. App. at 235, 498 S.E.2d at 206. A defendant may claim
the affirmative defense of self-defense only if he is without fault with
respect to the encounter. See State v. Marsh, 293 N.C. 353, 237 S.E.2d
745 (1977). Where a defendant voluntarily enters into the situation with
the alleged victim, and does not abandon the fight, withdraw from it,
and give notice to the other party that he is doing so, the doctrine of
self-defense will not be available to him.
In State v. Hall, 89 N.C. App. 491, 366 S.E.2d 527 (1988), the court held
that defendant was not entitled to an instruction on self-defense where
he had reason to believe that violence would occur if he approached the
victim, but he nevertheless did not retreat and even armed himself before
going to confront the victim.
A motion to dismiss is properly denied if “there is substantial
evidence (1) of each essential element of the offense charged and (2)
that defendant is the perpetrator of the offense.” State v. Lynch,
327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence
is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” State v. Franklin, 327 N.C. 162, 171,
393 S.E.2d 781, 787 (1990). “When ruling on a motion to dismiss,
all of the evidence should be considered in the light most favorable to
the State, and the State is entitled to all reasonable inferences which
may be drawn from the evidence.” State v. Davis, 130 N.C. App. 675,
679, 505 S.E.2d 138, 141 (1998).
USE OF FORCE IN INSTANCE
INVOLVING PROPERTY
An incident in Tabor City has raised public awareness and inquiry in regard
to Use of Force in Instance Involving Property. The victim of a prior,
but never reported, residential break-in believed three particular suspects
responsible for the crime. After overhearing suspects' plans of another
break-in, the victim, fearing another crime against his property, shot
at a truck carrying the three suspects. A bullet went through the truck's
rear windshield and hit one of the suspects in the back of the head. This
suspect is a 15-year-old boy who is presently in critical condition.
The question ??? was this victim within his legal rights to use force
in this instance involving his property?
Defense of Habitation
G.S. 14.51.1 provides that a lawful occupant within a home or other place
of residence is justified in using any degree of force that the occupant
reasonably believes is necessary, including deadly force, against an intruder
to prevent a forcible entry into the house or residence or to terminate
the intruder's unlawful entry if:
1.The occupant reasonably apprehends that the intruder may kill or inflict
serious bodily harm to the occupant or others in the home or residence;
or
2. The occupant reasonably believes that the intruder intends to commit
a felony in the home or residence.
There is no duty to retreat in the circumstances described above.
Defense of Property
The law never permits the use of deadly force to protect mere property.
You may use non-deadly force to do so, but not deadly force.
To Prevent a Crime
A person may use reasonable force to prevent a person from feloniously
assaulting himself or someone else. You must have a reasonable belief
that a felonious assault is being committed. Deadly force may in fact
be reasonable if the felony to be prevented involves the risk of great
bodily harm or death. The use of deadly force would not be legally appropriate
to prevent something like a strong-armed robbery and may not in fact be
appropriate to prevent an armed robbery.
Generally, a person may use appropriate force to "detain" someone
who has committed a crime; but the use of deadly force to do so would
rarely ever be appropriate.
Self-defense
In order to be entitled to self-defense, a person:
1. Must believe it to be necessary to use deadly force in order to save
himself from death or great bodily harm; and
2. This belief must be reasonable in the circumstances; and
3. The person must be the aggressor in the encounter; and
4. The person must not use excessive force.
If a person is not an aggressor, there is no duty to retreat.
SPEAK OUT IN THE FORUM
