Defendant argues on appeal that the trial court erred by failing to instruct the jury on self-defense as to the charge of possession of a firearm by a felon. This Court addressed this argument in State v. Craig, 167 N.C.App. 793, 606 S.E.2d 387 (2005), in which we noted that “[f]ederal courts have recently recognized justification as an affirmative defense to possession of firearms by a felon.” Id. at 795, 606 S.E.2d at 389 (citing U.S. v. Deleveaux, 205 F.3d 1292 (11th Cir.2000)).
A trial court must give all requested jury instructions if the requested instructions "are proper and supported by the evidence." State v. Craig , 167 N.C. App. 793, 795, 606 S.E.2d 387, 388 (2005) (citation omitted). To determine "whether a defendant is entitled to a requested instruction, [appellate courts] review de novo whether each element of the defense is supported by the evidence, when taken in the light most favorable to [the] defendant."
Roberts, 120 N.C.App. at 726, 464 S.E.2d at 83 (citation omitted). State v. Craig, 167 N.C.App. 793, 795, 606 S.E.2d 387, 388 (2005). At trial, Defendant requested a special jury instruction on the defense of justification for the charge of possession of a firearm by a felon, which the trial court denied.
(1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.State v. Craig , 167 N.C. App. 793, 796, 606 S.E.2d 387, 389 (2005) (quoting Deleveaux , 205 F.3d at 1297 ); see also United States v. Crittendon , 883 F.2d 326, 330 (4th Cir. 1989).This Court has not explicitly adopted the Deleveaux test; however, we have consistently "assume[d] arguendo , without deciding, that the Deleveaux rationale applies in North Carolina prosecutions for possession of a firearm by a felon."
After reviewing the applicable case law, we find it unclear whether necessity is an available defense to a defendant charged with possession of a firearm by a felon in North Carolina. This Court has previously noted that justification has been recognized as an affirmative defense to a charge of possession of a firearm by a felon in federal court. See State v. Craig, 167 N.C.App. 793, 795, 606 S.E.2d 387, 389 (2005) (referencing United States v. Deleveaux, 205 F.3d 1292 (11th Cir.2000)). “However, this Court has [also] specifically noted ‘that the Deleveaux court limited the application of the justification defense to 18 U.S.C. § 922(g)(1) cases (federal statute for possession of a firearm by a felon) in “only extraordinary circumstances.” ‘ “ Id. at 796,606 S.E.2d at 389 (quoting State v. Napier, 149 N.C.App. 462, 465, 560 S.E.2d 867, 869 (2002) (quoting Deleveaux, 205 F.3d at 1297)).
‘The proffered instruction must ... contain a correct legal request and be pertinent to the evidence and the issues of the case.’ ” State v. Craig, 167 N.C.App. 793, 795, 606 S.E.2d 387, 388 (2005) (citing Roberts v. Young, 120 N.C.App. 720, 726, 464 S.E.2d 78, 83 (1995), and quoting State v. Scales, 28 N.C.App. 509, 513, 221 S.E.2d 898, 901 (1976) ).Defendant contends that there is a “conflict in North Carolina law about whether a trial court's failure to give a jury instruction is reviewed under a de novo standard or an abuse of discretion standard.”
Without deciding whether these defenses are applicable to the charge of possession of a firearm by a felon, we held in State v. Craig that the defendant was not entitled to an instruction because there was a “time period where [the d]efendant was under no imminent threat while possessing the gun.” 167 N.C.App. 793, 797, 606 S.E.2d 287, 389 (2005). When viewed in the light most favorable to defendant, the evidence presented at trial tends to show the following.
A trial court must give a jury instruction requested by a defendant, at least in substance, if that instruction is proper and supported by the evidence. State v. Craig, 167 N.C. App. 793, 795, 606 S.E.2d 387, 388 (2005). However, " '[t]he proffered instruction must . . . contain a correct legal request and be pertinent to the evidence and the issues of the case.' "
Ultimately, defendant fails to meet his burden; he has not presented evidence tending to show that he "had no reasonable legal alternative to violating the law[.]" Mercer, 373 N.C. at 464 (citation omitted); see also State v. Craig, 167 N.C.App. 793, 797 (2005) (holding that "the evidence did not support giving a special instruction on justification because there was a time period where [the] [d]efendant was under no imminent threat while possessing the gun."); accord State v. Boston, 165 N.C.App. 214, 222 (2004); Napier, 149 N.C.App. at 465.
We hold it was not error for the court not to charge on this feature of the case."); see also State v. Craig, 167 N.C.App. 793, 794, 606 S.E.2d 387, 387 (2005) ("Defendant contends the trial court erred by denying his request to give a special instruction on the defense of justification of possession of a firearm by a felon. Where, as here, Defendant failed to submit the special instruction in writing, the trial court did not error by declining to give it.").