State v. Holshouser, ___ N.C. App. ___, 833 S.E.2d 193 (Sept. 3, 2019)

The defendant was indicted for possession of a firearm—specifically, “a New England Firearms Pardner Model 12 Gauge Shotgun”—by a person previously convicted of a felon. The defendant initially told officers, who were investigating a report of a domestic dispute at the defendant’s home, that he had no knowledge about a shotgun, but he later admitted to one of the deputies that he had thrown the shotgun into the woods and told the deputy where he had thrown it. At trial, the defendant testified that he had been involved in an altercation with his stepson but did not remember taking the shotgun from him. He further testified that he did not take possession of “that gun.” The trial judge gave the pattern instruction on possession of a firearm by a person previously convicted of a felony. There were no objections to the instruction, and the jury found the defendant guilty of the possession charge and of having attained habitual felon status. On appeal, the defendant argued that the trial judge committed plain error by failing to instruct the jury on the affirmative defense of justification. The Court of Appeals held that the defendant was not entitled to the instruction.

The Court first recognized that in State v. Mercer, ___ N.C. App. ___, 818 S.E.2d 375 (2018), aff'd ___ N.C. ___, ___ S.E.2d ___ (2020), it had recognized the defense of justification to possession of a firearm by a person previously convicted of a felony. The Court noted that the North Carolina Supreme Court has granted review in Mercer but stated that it would follow Mercer as it applied when the defendant’s case was before the trial court. Assuming a justification defense as explained in Mercer applies in North Carolina, the Court stated first that it isn’t clear that a justification defense is a “substantial and essential feature” of the possession charge, requiring an instruction by the trial judge, because the possession statute does not describe justification or self-defense as an element of the offense. The Court then ruled that the defendant’s own testimony, in which he denied possessing the gun alleged in the indictment, rendered a justification defense unavailable. The Court stated that a defendant is not entitled to a justification instruction where he testifies that he did not commit the criminal act at all. The Court also rejected the defendant’s claim of ineffective assistance of counsel based on counsel’s failure to request a justification instruction, holding that even if counsel had requested such an instruction the trial court should not have granted it.