N.C.P.I.—Crim. 308.47

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

208.40A, 208.70, 208.70A, 208.75, and 208.60 when

there is no evidence of deadly force.

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 defense of a family member or third person

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 defense of a family member or third person

as set out below in this instruction. THE FAILURE TO

CHARGE ON ALL OF THESE MATTERS CONSTITUTES

REVERSIBLE ERROR.

NOTE WELL: Defense of a [family member] [third

person] is only justified if the [family member] [third

person] would have been justified in using self-defense. If this is an issue, modify accordingly.1

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 defendant assaulted the victim in lawful defense of another

person, the defendant's actions would be excused, and the defendant

would be not guilty. The State has the burden of proving from the

evidence beyond a reasonable doubt that the defendant did not act in the

lawful defense of another person.

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

defendant assaulted the victim and that the circumstances would have

created a reasonable belief in the mind of a person of ordinary firmness

that the assault was necessary or apparently necessary to protect a

[family member] [third 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, such assault would be justified by

defense of a [family member] [third person]. 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.2 (The defendant would have a lawful right to be in the defendant’s

[home]3 [own premises] [place of residence] [workplace]4 [motor vehicle]5

.)

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 may only do in defense of a [family member] [third

person] what that other person might do in that person's own defense.

Further, a defendant does not have the right to use excessive force. This

means that the defendant had the right to use only such force as

reasonably appeared to the defendant to be necessary under the

circumstances to protect that [family member] [third person] from bodily

injury or offensive physical contact. 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

and the [family member] [third person] as compared to the victim), (the

fierceness of the assault, if any, upon the [family member] [third person],

(whether the victim had a weapon in the victim's possession), (and) (the

reputation, if any, of the victim for danger and violence). Again, it is for

you, the jury, to determine whether the defendant's belief was

reasonable from the circumstances as they appeared to the defendant at

the time.

(Furthermore, defense of a [family member] [third person] is

justified only if the [defendant] [family member] [third person] was not

the aggressor.6 Justification for defensive force is not present if a person

voluntarily enters into the fight or, in other words, initially provokes 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] [family member] [third person] was the

aggressor, the defendant is justified in using defensive force only if the

[defendant] [family member] [third person] thereafter attempted to

abandon the fight and gave notice to the opponent that the [defendant]

[family member] [third person] 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.7)

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: Add the following to the final mandate:

Although you are satisfied beyond a reasonable doubt that the

defendant assaulted the victim, you may return a verdict of guilty only if

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

defendant did not act in the lawful defense of a [family member] [third

person]; that is, that the defendant did not reasonably believe that the

assault of the victim was necessary or apparently necessary to protect

[the defendant's family member] [the third person] 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

would be justified by defense of a [family member] [third person];

therefore, your duty would be to return a verdict of not guilty.