N.C.P.I.—Crim. 308.70

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 defendant acted in self-defense defending against a sexual

assault,1 the defendant’s actions are excused and the defendant would

be not guilty. The State has the burden to prove beyond a reasonable

doubt that the defendant did not act in self-defense.

A killing would be excused if:

First, it appeared to the defendant and the defendant reasonably

believed it to be necessary to use deadly force against the victim in order

to save the defendant from death, great bodily harm or sexual assault.

(Define appropriate sexual assault involved.)

Second, the circumstances as they appeared to the defendant at

the time were sufficient to create such a belief in the mind of a person of

ordinary firmness. It is for you the jury to determine the reasonableness

of the defendant's belief from the circumstances as they appeared to the

defendant at the time. 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 with

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

defendant), (whether or not the victim possessed a weapon in his

possession) (the reputation, if any, of the victim for danger, violence

and/or sexual attacks (and) (describe any other circumstances supported

by the evidence). 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].

And Third, the defendant did not use excessive force; that is, more

force than reasonably appeared to be necessary to the defendant at the

time. 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 had a weapon in the

victim's possession), (and) (the reputation, if any, of the victim for

danger and violence) (describe other circumstances as appropriate from

the evidence). Again, it is for you, the jury, to determine the

reasonableness of the force used by the defendant under all of the

circumstances as they appeared to the defendant at the time.6

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

6

the aggressor. 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.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.

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: 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

Although you are satisfied beyond a reasonable doubt that the

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

believe that the killing of the victim was necessary to save the defendant

from death, great bodily harm or sexual assault, or that the defendant

used excessive force. If you do not so find or have a reasonable doubt

that the State has proved any of these things, then the defendant would

be justified by self-defense to sexual assault and it would be your duty

to return a verdict of not guilty.