N.C.P.I.—Crim. 308.40

NOTE WELL: Use only with N.C.P.I.—Crim. 208.40,

208.40A, 208.70, 208.70A, 206.50, 208.75, and 208.60

when no evidence of deadly force.1

NOTE WELL: The trial judge is reminded that this

instruction must be combined with the substantive

offense instruction in the following manner: (1) the jury

should be instructed on the elements of the charged

offense; (2) the jury should then be instructed on the

definition of self-defense set out in this instruction

below; (3) the jury should then be instructed on the

mandate of the charged offense; and (4) the jury

should be instructed on the mandate for self-defense

as set out below in this instruction. THE FAILURE TO

CHARGE ON ALL OF THESE MATTERS CONSTITUTES

REVERSIBLE ERROR.

NOTE WELL: If the assault occurred in defendant’s

home, place of residence, workplace or motor vehicle,

use N.C.P.I.—Crim. 308.80, Defense of Habitation.

NOTE WELL: If the State contends that the defendant

is not entitled to the use of defensive force because

the defendant was attempting to commit, committing,

or escaping after the commission of a felony, and that

felony offense was immediately causally connected to

the circumstances giving rise to the use of such

defensive force, the jury should be instructed pursuant

to N.C.P.I.—Crim. 308.90. If the felony offense alleged

was immediately causally connected to the

circumstances giving rise to the defensive forced use,

the defendant would be disqualified from the benefit of

using such defensive force.

If the State has satisfied you beyond a reasonable doubt that the

defendant assaulted the victim then you would consider whether the

defendant's actions are excused and the defendant is not guilty because

the defendant acted in self-defense. The State has the burden of proving

from the evidence beyond a reasonable doubt that the defendant's action

was not in self-defense.

Even if you find beyond a reasonable doubt that the defendant

assaulted the victim, the assault would be justified by self-defense under

the following circumstances:

1.If 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, and

2.The circumstances created such belief in the defendant's

mind. You determine the reasonableness of the

defendant's belief from the circumstances appearing to

the defendant at the time.2

Furthermore, the defendant has no duty to retreat in a place where

the defendant has a lawful right to be.3 (The defendant would have a

lawful right to be in the defendant’s [home]4 [own premises] [place of

residence] [workplace]5 [motor vehicle]6.)

NOTE WELL: The preceding parenthetical should only

be given where the place involved was the defendant’s

[home] [own premises] [place of residence]

[workplace] [motor vehicle]. 7

Additionally, even if the defendant believed there was a right to

use force, the amount of force would be limited to reasonable force–not

excessive force. The right to use force extends only to such force

reasonably appearing to the defendant under the circumstances,

necessary to protect the defendant from bodily injury or offensive

physical contact. In so determining, you should consider the

circumstances you find to have existed from the evidence. You should

consider (the size, age and strength of the defendant as compared to the

victim), (the fierceness of the assault, if any, upon the defendant),

(whether the victim possessed a weapon), (the reputation, if any, of the

victim for danger and violence) (and) (describe other circumstances

supported by the evidence). Again, you determine the reasonableness of

the defendant's belief from the circumstances appearing to the defendant

at the time.

(Furthermore, self-defense is justified only if the defendant was not

the aggressor.8 Justification for defensive force is not present if the

person who used defensive force voluntarily entered into the fight or, in

other words, initially provoked the use of force against [himself]

[herself]. If one uses abusive language toward one's opponent which,

considering all of the circumstances, is calculated and intended to bring

on a fight, one enters a fight voluntarily. However, if the defendant was

the aggressor, the defendant would be justified in using defensive force if

the defendant thereafter attempted to abandon the fight and gave notice

to the defendant's opponent that the defendant was doing so. In other

words, a person who uses defensive force is justified if the person

withdraws, in good faith, from physical contact with the person who was

provoked, and indicates clearly that [he] [she] desires to withdraw and

terminate the use of force, but the person who was provoked continues or

resumes the use of force.9)

NOTE WELL: Instructions on aggressors and

provocation should only be used if there is some

evidence presented that defendant provoked the

confrontation. See N.C. Gen. Stat. § 14-51.4(2). If no

such evidence is presented, the preceding

parenthetical and reference to the aggressor

throughout this instruction would not be given. In

addition, the remainder of the instruction, including the

mandate, would need to be edited accordingly to

remove references to the aggressor. It is reversible

error to instruct the jury on the aggressor doctrine if

the record lacks evidence from which the jury could

infer that the defendant was an aggressor at the

time the defendant allegedly acted in self-defense.

State v. Hicks, 2022-NCCOA-263.

NOTE WELL: The following self-defense mandate must

be given after the mandate on each substantive

offense instructed upon. INCLUDING THE SELF-DEFENSE MANDATE IS REQUIRED BY STATE V.

WOODSON, 31 N.C. APP. 400 (1976). Cf. State v.

Dooley, 285 N.C. 158 (1974).

SELF-DEFENSE MANDATE

Even if you are satisfied beyond a reasonable doubt that the

defendant committed (name offense) you may return a verdict of guilty

only if the State has also satisfied you beyond a reasonable doubt that

the defendant did not act in self-defense. Therefore, if the defendant did

not reasonably believe that the defendant’s action was necessary or

appeared to be necessary to protect the defendant from bodily injury or

offensive physical contact, or the defendant used excessive force, or the

defendant was the aggressor, the defendant’s acts would not be excused

or justified in defense of the defendant.

If you do not so find or have a reasonable doubt that the State has

proved any of these things, then the defendant's action would be

justified by self-defense and it would be your duty to return a verdict of

not guilty.