N.C.P.I.—Crim. 308.45

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].

A defendant does not have the right to use excessive force. The

defendant had the right to use only such force as reasonably appeared

necessary to the defendant under the circumstances to protect the defendant

from death or great bodily harm. In making this determination, you should

consider the circumstances as you find them to have existed from the

evidence, (including 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), (and the reputation, if any, of the

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

from the evidence). Again, you, the jury, 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. 7 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 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. A person is also justified in

using defensive force when the force used by the person who was provoked

is so serious that the person using defensive force reasonably believes that

[he] [she] was in imminent danger of death or serious bodily harm, the person

using defensive force had no reasonable means to retreat, and the use of force

likely to cause death or serious bodily harm was the only way to escape the

danger. 8)

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.

See State v. Holloman, 369 N.C. 615 (2017), reversing, 247

N.C. App. 434, 786 S.E.2d 328 (2016). The Supreme Court

in Holloman explained that G.S. 14-51.4(2)(a), allowing an

aggressor to regain the right to utilize defensive force under

certain circumstances, does not apply where the aggressor initially

uses deadly force against the person provoked. Accordingly, the

trial court did not err by instructing that a defendant who was the

aggressor using deadly force had forfeited the right to use deadly

force and that a person who displays a firearm to his opponent

with the intent to use deadly force against him or her and

provokes the use of deadly force in response is an aggressor. See

also State v. Corbett, 839 S.E. 2d 361 (N.C. Ct. App. 2020).

NOTE WELL: If the defendant used a weapon which is a deadly

weapon "per se," do not give the following paragraph, or the

paragraph on page 5. If the weapon is not a deadly weapon per

se, give the following paragraph and the paragraph on p. 5. State

v. Clay, 297 N.C. 555, 566 (1979).

(If you find from the evidence beyond a reasonable doubt that the

defendant assaulted the victim, but not with a deadly weapon or other deadly

force, that the circumstances would create a reasonable belief in the mind of

a person of ordinary firmness that the action was necessary or appeared to

be necessary to protect that person from bodily injury or offensive physical

contact, and the circumstances did create such belief in the defendant's mind

at the time the defendant acted, the assault would be justified by self-defense-

even though the defendant was not thereby put in actual danger of death or

great bodily harm. However, the force used must not have been excessive.

Furthermore, self-defense is an excuse only if the defendant was not the

aggressor.)

NOTE WELL: The following self-defense mandate must be given

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

Therefore I instruct you, if you are satisfied beyond a reasonable doubt

that the defendant committed (name offense, including appropriate lesser

included offenses), 9 you may return a verdict of guilty only if the State has

satisfied you beyond a reasonable doubt that the defendant's action was not

in self-defense; that is, that the defendant did not reasonably believe that the

assault was necessary or appeared to be necessary to protect the defendant

from death or serious bodily injury, or that the defendant used excessive

force, or that the defendant was the aggressor. 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.

NOTE WELL: Do not give the following paragraph if the defendant

used a weapon, which is a deadly weapon “per se.”

(Therefore, I instruct you, if you are satisfied beyond a reasonable doubt

that the defendant committed (name offense, including appropriate lesser

included offenses), 10 you may return a verdict of guilty only if the State has

satisfied you beyond a reasonable doubt that the defendant did not reasonably

believe that the assault was necessary or appeared to be necessary to protect

the defendant from bodily injury or offensive physical contact, or that the

defendant used excessive force, or was the aggressor. If you do not so find or

have a reasonable doubt that the State has proved one or more 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.)