State v. Gullie, 385 S.E.2d 556 (NC Ct. App. 1989)



No. 8910SC383


96 N.C. App. 366; 385 S.E.2d 556; 1989 N.C. App. LEXIS 991


October 17, 1989, Heard in the Court of Appeals

November 21, 1989, Filed


COUNSEL:Attorney General Lacy H. Thornburg, by Assistant Attorney General Barbara A. Shaw, Raleigh, North Carolina, for the State.

Dan Lynn, Raleigh, North Carolina, for defendant-appellant.


JUDGES: Hugh A. Wells, Judge.  Judges Clifton E. Johnson and Robert F. Orr concur.






Four of the five assignments of error which defendant has brought forward, in fact, present but a single issue, namely, whether the court erred in omitting the language “without legal justification” from its statement to the jury of the charge against defendant and its jury instructions.  In the factual context of this case, the relevant legal justification is self-defense. We therefore consider these four assignments of error together.

Defendant was charged with violating G.S. ß 14-34.  That statute provides in pertinent part:


If any person shall point any gun or pistol at any person, either in fun or otherwise, whether such gun or pistol be loaded or not loaded, he shall be guilty of an assault[.]



Our courts have stated that the provisions of G.S. ß 14-34 are subject to the qualification that for a violation of the statute to occur, the pointing of a gun must be intentional and without legal justification. See State v. Adams, 2 N.C. App. 282, 163 S.E.2d 1 (1968), and State v. Thornton, 43 N.C. App. 564, 259 S.E.2d 381 (1979), both of which rely on Lowe v. Dept. of Motor Vehicles, 244 N.C. 353, 93 S.E.2d 448 (1956). We agree with this interpretation of this statute.  We note, however, that these cases also clearly stand for the principle that the absence of legal justification is not an element of the offense to be established by the State; rather, the presence of legal justification is a defense which must arise upon the evidence.

The “legal justification” relied on by defendant in this case is self-defense. It is well established that to be entitled to an instruction on self-defense, a defendant must have presented evidence sufficient to invoke the benefit of that doctrine.  State v. Brewer, 89 N.C. App. 431, 366 S.E.2d 580, cert. denied, 322 N.C. 482, 370 S.E.2d 229 (1988) (and cases cited therein).  The record, however, reveals that defendant presented no such evidence.  Rather, defendant’s case was entirely grounded upon his denial that he had a gun in his possession during the confrontation. This defense obviated the necessity for the court to instruct the jury on the issue of legal justification, i.e., self-defense. Brewer, supra. See also State v. Harding, 22 N.C. App. 66, 205 S.E.2d 544, cert. denied, 285 N.C. 665, 207 S.E.2d 759 (1974) (“By denying the shooting, defendant rendered it unnecessary for the court to instruct the jury on self-defense.”).  These four assignments of error are therefore overruled.

By his remaining assignment of error, defendant challenges the court’s denial of his motion to dismiss. A motion to dismiss for insufficiency of evidence raises the question of whether there is substantial evidence to support each essential element of the crime charged and of defendant’s being the perpetrator.  In resolving this question, we must consider the evidence in the light most favorable to the State.  State v. Bates, 313 N.C. 580, 330 S.E.2d 200 (1985). The State is also entitled to all reasonable inferences to be drawn from the evidence.  Id. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. When substantial evidence supports a finding that the crime was committed, and that defendant is the criminal agent, the case must be submitted to the jury.  Id. The evidence need not exclude every reasonable hypothesis of innocence in order to support the denial of a defendant’s motion to dismiss. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Measuring the State’s evidence against these standards, we conclude that the issue of defendant’s guilt was properly submitted to the jury in this case.  This assignment of error is overruled.

No error.


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