Encounters with Lions: Evidence of Gang Affiliation in State v. Ervin
A defendant who claims self-defense is generally permitted to offer evidence of the victim’s prior violent conduct if known to the defendant at the time defensive force was used. Such evidence is relevant to the reasonableness of the defendant’s belief in the need to use force. In State v. Ervin, No. COA24-650 (N.C. Ct. App. April 2, 2025), the trial court excluded as irrelevant and unduly prejudicial evidence offered by the defendant to show his state of mind at the time he killed his girlfriend’s brother, namely, evidence that the victim was in a gang. The Court of Appeals found no error, stating that evidence the defendant feared for his life because the victim was in a gang “does little to support his theory of self-defense.” This post examines the opinion in Ervin.
Character Evidence
Evidence Rule 404 “governs the content of admissible character evidence and the contexts in which it may be admitted.” State v. Walston, 367 N.C. 721, 725 (2014). Under that rule, evidence of a person’s character is generally inadmissible for the purpose of proving he acted in conformity therewith on a particular occasion, but there are exceptions. G.S. 8C-1, Rule 404(a). One exception allows a defendant in a criminal case to offer evidence of a pertinent trait of character of the victim. Id. “[T]o be pertinent, a character trait of the victim must bear a relationship to the crime with which the defendant is charged. For example, if the defendant’s defense to murder is self-defense, character of the victim for violence is pertinent.” State v. Sexton, 336 N.C. 321, 360 (1994).
“When a defendant argues that he acted in self-defense, the victim’s character is admissible for two purposes, to show defendant’s fear or apprehension was reasonable or to show the victim was the aggressor.” State v. Laws, 345 N.C. 585, 596 (1997). As to the former, the jury should, as far as possible, be placed in defendant’s situation and possess the same knowledge of danger and the same necessity for action, in order to decide if defendant acted under a reasonable apprehension of danger to his person or his life. State v. Corbett, 376 N.C. 799, 832 (2021). The defendant’s knowledge of the victim’s past at the time of the shooting is relevant to the defendant’s mental state. See State v. Jacobs, 363 N.C. 815, 822 (2010). Hence, the defendant may offer evidence of the victim’s character to show the defendant’s fear or apprehension was reasonable and, as a result, his belief in the need to use force was also reasonable. State v. Watson, 338 N.C. 168, 187 (1994).
Rule 404(a) does not, however, govern the admission of such evidence. State v. Watson, 338 N.C 168, 187 (1994). The purpose of such evidence is not to prove conduct by the victim, but to prove the defendant’s state of mind. Id. Accordingly, the evidence is relevant only to the extent that the defendant had knowledge of the victim’s character. Id.; State v. Jordan, 130 N.C. App. 236, 242 (1998). In other words, “[e]vidence of a victim’s violent character is relevant to prove that defendant’s apprehension and need to use force were reasonable if defendant had knowledge of the victim’s character at the time of the encounter.” State v. Ray, 125 N.C. App. 721, 725 (1997).
Gang Evidence
Reviewing courts have viewed with suspicion evidence of gang membership. See State v. Hinton, 226 N.C. App. 108, 113 (2013) (evidence “tends to be prejudicial”); State v. Privette, 218 N.C. App. 459, 480 (2012) (evidence is “generally inadmissible”). As recognized by the courts, the public views street gangs with distaste and fear. State v. Freeman, 313 N.C. 539, 547 (1985); cf. State v. Mann, 355 N.C. 294, 305 (2002). Indeed, defendants frequently object to evidence of their own gang affiliation as improper character evidence. See e.g., State v. Thompson, 265 N.C. App. 576, 581 (2019). Membership in a gang, however, does not fit neatly into any of the recognized methods of proving character. See State v. Mason, 295 N.C. 584, 593, (1978) (gang activity is not a specific act of misconduct); State v. Horskins, 228 N.C. App. 217, 227 (2013) (gang membership is not descriptive of a person’s disposition). Whether evidence of a witness’s gang affiliation is admissible to rebut evidence of his good character remains unclear. See State v. Greenfield, 912 S.E.2d 213, 230 (N.C. Ct. App. 2025) (no error excluding evidence when character was not at issue); State v. Perez, 182 N.C. App. 294, 297 (2007) (any such error was harmless).
Still, gang-related evidence is not categorically barred. To be sure, the evidence must be relevant to some issue in the case beyond merely portraying the defendant as a gang member. See State v. Hope, 189 N.C. App. 309, 316 (2008); State v. Gayton, 185 N.C. App. 122, 125 (2007). Evidence of the defendant’s gang membership may, however, be relevant to motive in committing a crime of violence. See State v. Hightower, 168 N.C. App. 661, 667 (2005); State v. Riley, 159 N.C. App. 546, 551-52 (2003); cf. G.S. 15A-1340.16(d)(2a) (aggravating factor for gang-related motive). Alternatively, evidence of gang membership may be relevant to establishing the scene of the crime or the defendant’s identity as the perpetrator. See State v. Freeman, 313 N.C. 539, 547 (1985); State v. Medina, 174 N.C. App. 723, 734 (2005). And if these purposes of gang-related evidence tend to support the State’s case, defendants may also wish to elicit such evidence. See State v. Harris, 256 N.C. App. 549, 556 (2017); State v. Little, 163 N.C. App. 235, 243 (2004).
Defendants in self-defense cases have occasionally sought to introduce evidence of the victim’s gang affiliation to establish the reasonableness of their apprehension. Consistent with the rules noted above, such evidence is relevant only to the extent that the affiliation was known to the defendant at the time he used defensive force. See State v. Greenfield, 912 S.E.2d 213, 226 (N.C. Ct. App. 2025) (defendant was not aware of victim’s reputation); State v. Horskins, 228 N.C. App. 217, 228 (2013) (no evidence defendant knew the victim was a gang member). In one case, where the defendant was allowed to testify about the victim’s gang membership, still the trial court did not err by excluding other evidence about gang culture that went beyond what the defendant knew at the relevant time. State v. Gayles, 233 N.C. App. 173, 182 (2014). Contrariwise, the defendant’s gang affiliation may be relevant to show the defendant had a different objective in mind and could rebut the defendant’s claim of self-defense. See State v. Kirby, 206 N.C. App. 446, 457 (2010).
State v. Ervin
The defendant in State v. Ervin, No. COA24-650 (N.C. Ct. App. April 2, 2025), lived in a three-story townhouse in Durham with his girlfriend, Akira Jackson, and her brother, Marcus Jackson. On March 18, 2019, Marcus confronted the defendant about a quarrel he had had with Akira earlier that day. The confrontation became physical, and Akira found the defendant on top of Marcus. Akira separated the men, and Akira and Marcus went outside. Ervin, Slip Op. pp. 2-3.
The defendant went upstairs and retrieved his gun. Marcus texted the defendant, taunting him to come outside. Defendant responded, taunting Marcus to come inside. Marcus was standing near the sliding doors at the back of the house. The defendant went downstairs and walked toward the back, shooting at Marcus as he walked. Marcus fell face-down. Ervin, Slip Op. pp. 3-4.
Police found the defendant in the parking lot with his hands up. Marcus was transported to the hospital, where he was declared dead. Two of Marcus’s three gunshot wounds had stippling, indicating the gun was fired from less than three feet away. Ervin, Slip Op. p. 4.
The defendant was charged with first-degree murder. At trial, the defendant testified that he retrieved his gun because Marcus had threatened to kill him. He claimed he shot Marcus in self-defense. Ervin, Slip Op. p. 5. The defendant also sought to introduce evidence of Marcus’s gang affiliation. He offered the testimony of the defendant’s psychiatrist and a video allegedly showing Marcus making gang hand signs. The trial court ruled that evidence of Marcus’s gang membership was irrelevant and any relevance was outweighed by the danger of unfair prejudice. Ervin, Slip Op. p. 19. The defendant was convicted of first-degree murder and appealed. Ervin, Slip Op. p. 5.
Before the Court of Appeals, the defendant argued the trial court erred by excluding evidence of Marcus’s alleged gang involvement. He claimed the evidence was relevant to his state of mind. Ervin, Slip Op. p. 18. The Court of Appeals disagreed. “Evidence that Defendant feared for his life because Marcus belonged to a gang,” it said, “does little to support his theory of self-defense.” On the other hand, the evidence’s probative value was substantially outweighed by the danger of unfair prejudice. Such evidence, the Court of Appeals said, “would have had an undue tendency to suggest decision on an improper basis.” Accordingly, the trial court did not abuse its discretion by excluding the evidence under the balancing test of Rule 403. Ervin, Slip Op. p. 20.
Conclusion
In a case involving self-defense, evidence known to the defendant about the victim’s character for violence is admissible as an exception to the general rule against character evidence. As one early case recognized, “[o]ne cannot be expected to encounter a lion as he would a lamb.” State v. Floyd, 51 N.C. 392, 398 (1859). Further, evidence that might be inadmissible if offered against a defendant might yet be admissible if offered by the defendant to show his apprehension of the victim. As our Supreme Court recognized in another context, unlike the prior convictions of a defendant, evidence of a victim’s prior convictions does not encourage decision on an improper basis for the simple reason that the victim is not on trial. State v. Jacobs, 363 N.C. 815, 825 (2010).
Given these considerations, prosecutors should be wary about reading too much into Ervin. If gang-related evidence is generally inadmissible and prejudicial because the public fears and distrusts gangs, that would seem to be precisely what makes such evidence relevant to show the reasonableness of a defendant’s apprehension of a known gang-member. Ultimately, the takeaway from Ervin is not that such evidence is never probative of self-defense but that a trial court’s rulings under Rule 403 are reviewed for abuse of discretion and are unlikely to be overturned in any event.
The result might have been different had the defendant offered his own opinion of Marcus’s character for violence, as evidenced by his belief that Marcus was in a gang. Of course, the reasonableness of the defendant’s belief in the need to use deadly force would be for the jury – the prosecutor could still argue it was unreasonable for the defendant to shoot an unarmed man – but the association between gangs and violence does not strain credulity. It is difficult to see how the trial court applying the rules above could have kept out the evidence if couched in those terms.
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