N.C.P.I.—Crim. 308.60

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 the 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 killed 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 you find that the defendant killed the victim and that the

circumstances would have created a reasonable belief in the mind of a

person of ordinary firmness that the killing was necessary or apparently

necessary to protect a [family member] [third 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, the killing

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. 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 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 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). You, the jury, 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 the

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

other words, initially provoked the use of force. However, if the

[defendant] [family member] [third person] was the aggressor, the

defendant would be 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. 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. 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.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:

If you are satisfied beyond a reasonable doubt that the defendant

killed the victim, you may return a verdict of guilty only if the State also

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

act in the lawful defense of a [family member] [third person]. The State

must satisfy you beyond a reasonable doubt that the defendant did not

reasonably believe that the killing of the victim was necessary or

apparently necessary to protect [the defendant’s family member] [the

third person] from death or great bodily harm, or the State must satisfy

you beyond a reasonable doubt that the defendant used excessive force,

or was the aggressor. If you do not so find or have a reasonable doubt as

to one or more of these things, then the defendant would be justified by

defense of a [family member] [third person], and it would be your duty to

return a verdict of not guilty.

1. See State v. McLawhorn, 270 N.C. 622, 629 (1967).

2. See N.C.P.I.—Crim. 308.10. “[W]herever an individual is lawfully located—whether

it is his home, motor vehicle, workplace, or any other place where he has the lawful right to

be—the individual may stand his ground and defend himself from attack when he reasonably

believes such force is necessary to prevent imminent death or great bodily harm to himself

or another.” State v. Bass, 371 N.C. 535, 542, 819 S.E.2d 322, 326 (2018). “[A] defendant

entitled to any self-defense instruction is entitled to a complete self-defense instruction,

which includes the relevant stand-your-ground provision.” Id.

3. N.C. Gen. Stat. § 14-51.2 (a) (1) states that a home is a “building or conveyance

of any kind, to include its curtilage, whether the building or conveyance is temporary or

permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as

a temporary or permanent residence.” Curtilage is the area “immediately surrounding and

associated with the home,” which may include “the yard around the dwelling house as well

as the area occupied by barns, cribs, and other outbuildings.” State v. Grice, 367 N.C. 753,

759 (2015) (citations and quotations omitted) (defining curtilage in a Fourth Amendment

case).

. N.C. Gen. Stat. § 14-51.2 (a) (4) states that a workplace is a “building or

4

conveyance of any kind, whether the building or conveyance is temporary or permanent,

mobile or immobile, which has a roof over it, including a tent, which is being used for

commercial purposes.”

5. N.C. Gen. Stat. § 14-51.2 (a) (3); which incorporates N.C. Gen. Stat. § 20-

4.01 (23), defines “motor vehicle” as “Every vehicle which is self-propelled and every

vehicle designed to run upon the highways which is pulled by a self-propelled vehicle. This

shall not include mopeds as defined in N.C. Gen. Stat. § 20-4.01(27)d1.”

6. N.C. Gen. Stat. § 14-51.4(2). See also N.C. Gen. Stat. § 14-51.3 (b), which

provides that a person who uses force as permitted by the statute is justified in using such

force and is immune from civil or criminal liability, unless the person against whom force was

used is a law enforcement officer or bail bondsman “who was lawfully acting in the

performance of his or her official duties and the officer or bail bondsman identified himself or

herself in accordance with any applicable law or the person using force knew or reasonably

should have known that the person was a law enforcement officer or bail bondsman in the

lawful performance of his or her official duties.”

7. Pursuant to N.C. Gen. Stat. § 14-51.4(1), self-defense is also not available to a

person who used defensive force and who was attempting to commit, committing, or

escaping after the commission of a felony. If evidence is presented on this point, then the

instruction should be modified accordingly pursuant to N.C.P.I.—Crim. 308.90 to add this

provision at this point in the substantive instruction.

308.50 ASSAULT IN LAWFUL DEFENSE OF A [FAMILY MEMBER] [THIRD

PERSON]—(DEFENSE TO ALL ASSAULTS INVOLVING DEADLY FORCE).

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 defendant used 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 defense of a family member or third person

as 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.2

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 (with deadly force), then you would

consider whether the defendant's actions are excused and the defendant

is not guilty because the defendant acted in defense of a [family

member] [third person]. The State has the burden of proving from the

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

in defense of a [family member] [third person].

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 a [family member] [third 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 defense of a [family member]

[third person].3 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.4 (The defendant would have

a lawful right to be in the defendant’s [home]5 [own premises] [place of

residence] [workplace]6 [motor vehicle]7.)

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 a [family

member] [third person] 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 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). You, the jury, determine the reasonableness of the defendant's

belief from the circumstances appearing 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.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. However, if the

[defendant] [family member] [third person] was the aggressor, the

defendant would be 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. 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. 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.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: If the defendant used a weapon which is

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

paragraph, or the paragraph on page 5-6. If the

weapon is not a deadly weapon per se, give the

following paragraph and the paragraph on p. 5-6. 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 defense of [family member] [third person] 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, defense of a [family member] [third person] is an excuse

only if neither the defendant nor the [family member] [third person] was

the aggressor.)

DEFENSE OF [FAMILY MEMBER] [THIRD PERSON] MANDATE

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's

action was not in defense of a [family member] [third person]; that is,

that the defendant did not reasonably believe that the assault was

necessary or appeared to be necessary to protect a [family member]

[third person] 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 assaulted the victim, 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 a [family member]

[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's action would be justified by defense

of a [family member] [third person] and it would be your duty to return a

verdict of not guilty.)

1. Deadly force is any force likely to cause death or great bodily harm. S. v. Clay,

297 N.C. 555, 563 (1979).

2

. See State v. McLawhorn, 270 N.C. 622, 629 (1967).

3

. This instruction is intended to cover the rule of law that action in self-defense

need only be apparently, not actually, necessary. See, e.g., State v. Jennings, 276 N.C.

157 (1970).

4

. See N.C.P.I.—Crim. 308.10. “[W]herever an individual is lawfully located—whether

it is his home, motor vehicle, workplace, or any other place where he has the lawful right to

be—the individual may stand his ground and defend himself from attack when he reasonably

believes such force is necessary to prevent imminent death or great bodily harm to himself

or another.” State v. Bass, 371 N.C. 535, 542, 819 S.E.2d 322, 326 (2018). “[A] defendant

entitled to any self-defense instruction is entitled to a complete self-defense instruction,

which includes the relevant stand-your-ground provision.” Id.

5

. N.C. Gen. Stat. § 14-51.2 (a) (1) states that a home is a “building or conveyance

of any kind, to include its curtilage, whether the building or conveyance is temporary or

permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as

a temporary or permanent residence.” Curtilage is the area “immediately surrounding and

associated with the home,” which may include “the yard around the dwelling house as well

as the area occupied by barns, cribs, and other outbuildings.” State v. Grice, 367 N.C. 753,

759 (2015) (citations and quotations omitted) (defining curtilage in a Fourth Amendment

case).

. N.C. Gen. Stat. § 14-51.2 (a) (4) states that a workplace is a “building or

6

conveyance of any kind, whether the building or conveyance is temporary or permanent,

mobile or immobile, which has a roof over it, including a tent, which is being used for

commercial purposes.”

7. N.C. Gen. Stat. § 14-51.2 (a) (3); which incorporates N.C. Gen. Stat. § 20-

4.01 (23), defines “motor vehicle” as “Every vehicle which is self-propelled and every

vehicle designed to run upon the highways which is pulled by a self-propelled vehicle. This

shall not include mopeds as defined in N.C. Gen. Stat. § 20-4.01(27)d1.”

8. N.C. Gen. Stat. § 14-51.4(2). See also N.C. Gen. Stat. § 14-51.3 (b), which

provides that a person who uses force as permitted by the statute is justified in using such

force and is immune from civil or criminal liability, unless the person against whom force was

used is a law enforcement officer or bail bondsman “who was lawfully acting in the

performance of his or her official duties and the officer or bail bondsman identified himself or

herself in accordance with any applicable law or the person using force knew or reasonably

should have known that the person was a law enforcement officer or bail bondsman in the

lawful performance of his or her official duties.”

. Pursuant to N.C. Gen. Stat. § 14-51.4(1), self-defense is also not available to a

9

person who used defensive force and who was attempting to commit, committing, or

escaping after the commission of a felony. If evidence is presented on this point, then the

instruction should be modified accordingly pursuant to N.C.P.I.—Crim. 308.90 to add this

provision at this point in the substantive instruction.

10. Name all offenses which involve the use of deadly force.

308.47 ASSAULT IN LAWFUL DEFENSE OF A [FAMILY MEMBER] [THIRD

PERSON]—(DEFENSE TO ASSAULTS NOT INVOLVING DEADLY FORCE).

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.

1

. See State v. McLawhorn, 270 N.C. 622, 629 (1967).

2. See N.C.P.I.—Crim. 308.10. “[W]herever an individual is lawfully located—whether

it is his home, motor vehicle, workplace, or any other place where he has the lawful right to

be—the individual may stand his ground and defend himself from attack when he reasonably

believes such force is necessary to prevent imminent death or great bodily harm to himself

or another.” State v. Bass, 371 N.C. 535, 542, 819 S.E.2d 322, 326 (2018). “[A] defendant

entitled to any self-defense instruction is entitled to a complete self-defense instruction,

which includes the relevant stand-your-ground provision.” Id.

3

. N.C. Gen. Stat. § 14-51.2 (a) (1) states that a home is a “building or conveyance

of any kind, to include its curtilage, whether the building or conveyance is temporary or

permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as

a temporary or permanent residence.” Curtilage is the area “immediately surrounding and

associated with the home,” which may include “the yard around the dwelling house as well

as the area occupied by barns, cribs, and other outbuildings.” State v. Grice, 367 N.C. 753,

759 (2015) (citations and quotations omitted) (defining curtilage in a Fourth Amendment

case).

. N.C. Gen. Stat. § 14-51.2 (a) (4) states that a workplace is a “building or

4

conveyance of any kind, whether the building or conveyance is temporary or permanent,

mobile or immobile, which has a roof over it, including a tent, which is being used for

commercial purposes.”

5. N.C. Gen. Stat. § 14-51.2 (a) (3); which incorporates N.C. Gen. Stat. § 20-

4.01 (23), defines “motor vehicle” as “Every vehicle which is self-propelled and every

vehicle designed to run upon the highways which is pulled by a self-propelled vehicle. This

shall not include mopeds as defined in N.C. Gen. Stat. § 20-4.01(27)d1.”

6. N.C. Gen. Stat. § 14-51.4(2). See also N.C. Gen. Stat. § 14-51.3 (b), which

provides that a person who uses force as permitted by the statute is justified in using such

force and is immune from civil or criminal liability, unless the person against whom force was

used is a law enforcement officer or bail bondsman “who was lawfully acting in the

performance of his or her official duties and the officer or bail bondsman identified himself or

herself in accordance with any applicable law or the person using force knew or reasonably

should have known that the person was a law enforcement officer or bail bondsman in the

lawful performance of his or her official duties.”

7. Pursuant to N.C. Gen. Stat. § 14-51.4(1), self-defense is also not available to a

person who used defensive force and who was attempting to commit, committing, or

escaping after the commission of a felony. If evidence is presented on this point, then the

instruction should be modified accordingly pursuant to N.C.P.I.—Crim. 308.90 to add this

provision at this point in the substantive instruction.

308.45A SELF-DEFENSE EXAMPLE WITH 208.10—ALL ASSAULTS

INVOLVING DEADLY FORCE.

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.)