N.C.P.I.—Crim. 308.45A

NOTE WELL: This charge is intended for use with

N.C.P.I.

Crim. 208.09, 208.10, 208.15, 208.16, 208.25, 208.50,

208.55, 208.85, and 208.60 where the evidence shows

that the defendant used deadly force.1

NOTE WELL: This example instruction combines the

assault instruction with the self-defense 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.

The defendant has been charged with assault with a deadly weapon

with intent to kill inflicting serious injury.

For you to find the defendant guilty of this offense, the State must

prove four things beyond a reasonable doubt:

First, that the defendant assaulted the victim by intentionally2 (and

without justification or excuse)3 (describe assault).

Second, that the defendant used a deadly weapon. A deadly

weapon is a weapon which is likely to cause death or serious bodily

injury. [(Name object) is a deadly weapon]. [In determining whether

(name object) was a deadly weapon, you should consider the nature of

(name object), the manner in which it was used, and the size and

strength of the defendant as compared to the victim.]4

Third, the State must prove that the defendant had the specific

intent to kill the victim.

And Fourth, that the defendant inflicted serious injury.5

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

defendant assaulted the victim with a deadly weapon with intent to

cause death or serious bodily injury, 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.

If the circumstances would have created a reasonable belief in the

mind of a person of ordinary firmness that the assault was necessary or

appeared to be necessary to protect that person from imminent death or

great bodily harm, and the circumstances did create such belief in the

defendant's mind at the time the defendant acted, such assault would be

justified by self-defense.6 You, the jury, determine the reasonableness of

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

at the time. Furthermore, the defendant has no duty to retreat in a place

where the defendant has a lawful right to be.7 (The defendant would have

a lawful right to be in the defendant’s [home]8 [own premises] [place of

residence] [workplace]9 [motor vehicle]10.)

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.11 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 is 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.12)

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: If the defendant used a weapon which is

a deadly weapon “per se,” do not give the following

paragraph, or the paragraph on page 6-7. If the

weapon is not a deadly weapon per se, give the

following paragraph and the paragraph on p. 6-7. 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.)

If you find from the evidence beyond a reasonable doubt that on or

about the alleged date, the defendant intentionally (describe assault) the

victim with a (name object) (and that (name weapon) was a deadly

weapon)13 and that the defendant intended to kill the victim and did

seriously injure him, it would be your duty to return a verdict of guilty. If

you do not so find or have a reasonable doubt as to one or more of these

things, it would be your duty to return a verdict of not guilty.14

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

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

doubt that the defendant committed (name offense, including appropriate

lesser included offenses),15 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 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.

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)16 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.)