State v. Greenfield

IN THE SUPREME COURT OF NORTH CAROLINA

No. 11A19

Filed 25 September 2020

STATE OF NORTH CAROLINA

v.
TYLER DEION GREENFIELD

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 262 N.C. App. 631, 822 S.E.2d 477 (2018), vacating judgments

entered on 23 February 2017 by Judge Phyllis M. Gorham in Superior Court, New

Hanover County, and remanding for a new trial for the assault with a deadly weapon

with intent to kill inflicting serious injury charge and for the entry of a judgment

convicting defendant of second-degree murder. On 11 June 2019, the Supreme Court

allowed the State’s petition for discretionary review. Heard in the Supreme Court on

9 March 2020.

Joshua H. Stein, Attorney General, by Teresa M. Postell, Assistant Attorney
General, for the State-appellee.

Glenn Gerding, Appellate Defender, by Kathryn L. VandenBerg, Assistant
Appellate Defender, for defendant-appellant.

HUDSON, Justice.

Here, we review (1) whether the trial court erred by failing to give defendant’s

proposed jury instructions on self-defense and transferred intent with regard to the

charge of assault with a deadly weapon with intent to kill inflicting serious injury
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Opinion of the Court

against Beth,1 and (2) whether the trial court’s error prejudiced defendant. Because

we conclude that defendant was prejudiced by the trial court’s failure to give his

proposed jury instructions on self-defense and transferred intent in connection with

the assault charge, we affirm the decision of the Court of Appeals. However, because

we conclude that the proper remedy for this prejudicial error is to remand the case

for a new trial on all charges, we affirm in part and reverse in part the decision of the

Court of Appeals.

Factual and Procedural Background

On 31 October 2016, a New Hanover County grand jury returned a superseding

indictment charging defendant with (1) first-degree murder; (2) attempted first-

degree murder; (3) attempted robbery with a dangerous weapon; and (4) assault with

a deadly weapon with intent to kill inflicting serious injury.2 Defendant’s trial began

on 6 February 2017.

At trial, the evidence showed that on 2 February 2015, defendant arrived with

a friend at Jon and Beth’s apartment to purchase marijuana from Jon. Subsequent

events in the apartment are disputed. However, by the time defendant and his friend

left the apartment, Jon was dead and both Beth and defendant had been shot.

1 We use the pseudonyms “Beth” and “Jon” to refer to the victims in this case, just as
the Court of Appeals did in its opinion. State v. Greenfield, 262 N.C. App. 631, 634 n.1,
822 S.E.2d 477, 479 n.1 (2018).
2 In this opinion we will refer to this as “the assault” or “the assault charge.”

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Opinion of the Court

Defendant testified that upon arrival he asked to use the bathroom. Defendant

testified that he did not notice a safe in Jon’s bedroom or the fact that Beth was asleep

as he passed through the bedroom on the way to the bathroom. After using the

bathroom, defendant returned to the living room where Jon and defendant’s friend

were talking. While they were talking, defendant picked up a gun that he found on a

coffee table. Defendant testified that he picked the gun up off the coffee table because

he thought it “looked like something off a movie” and “it looked cool.”

According to defendant, Jon noticed that defendant picked up the gun from the

coffee table and “started amping at [him].” Specifically, Jon stood up from where he

was seated and started acting “crazy” and “aggressive,” asking defendant if he was

planning to rob him. Then Beth came out of the bedroom holding a gun up to

defendant as if “she just had every intention on shooting [defendant].” Defendant

testified that he was “scared” and thought that he was “about to die.” Defendant

pointed the gun that he picked up from the coffee table at Beth after she pointed her

gun at him. Defendant then pointed the gun at Jon because he thought he had “to be

as tough as possible to get out of th[e] situation.” Defendant shouted “[p]ut the gun

down or I’m gonna shoot him in the head.” Defendant testified that he only made this

threat to get Beth to put the gun down so that he could get out of the apartment.

Eventually, Beth put the gun down on the table and defendant tried to run out

of the apartment. As he tried to leave, defendant saw Jon pull a gun from behind his

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Opinion of the Court

back and then defendant felt himself get shot in the side. When he got shot, defendant

“felt like [he] was going to die” and thought “it was all over” for him.

Defendant testified that after he was shot, he “just started shooting” and pulled

the trigger “as many times as [he could] until [he] got to the door.” Defendant stated

that he was not aiming at anyone in particular, and he was “just . . . shooting and

running.” However, defendant also testified that he aimed in Jon’s direction “as best

as [he] could,” and that while running he “intentionally” shot at Jon.

At trial, Beth testified for the State. Her account of events inside the apartment

diverged from defendant’s testimony. Specifically, Beth testified that: Jon’s voice got

“shaky” after defendant asked to use the bathroom; she did not actually hear

defendant use the bathroom; she would have been able to hear defendant use the

bathroom from where she was in her and Jon’s bedroom; and defendant’s path to the

bathroom led him right past the safe in the bedroom.

According to Beth, when defendant returned to the living room, she heard his

voice become “more aggressive” and Jon’s voice become “more shaky and more

scared.” Beth said that she heard defendant aggressively ask Jon where the guns,

money, and drugs were, and then she grabbed a gun located in the bedroom. As she

grabbed the gun, a third person that Beth did not recognize entered the apartment

carrying a black bag, found Beth in the bedroom, and called out that Beth had a gun.

Beth testified that defendant told her to bring the gun into the living room or he

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Opinion of the Court

would shoot Jon in the face. Beth entered the living room with her gun pointed down

to the ground and placed it on the coffee table.

Beth then stepped between Jon and defendant. Jon attempted to push her

away from him as he made a move for the gun that she had just placed on the coffee

table. She closed her eyes and turned away as shots came at her from defendant’s

direction. Beth testified that she felt a pain on the left side of her head and that she

saw defendant pointing his gun at her as she was closing her eyes. Beth lost

consciousness after she was shot. When she regained consciousness, she saw

defendant and the third person running out of the apartment. After attempting to get

help from a neighbor, Beth called 9-1-1 and reported that she and Jon were shot

during an attempted robbery.

Prior to trial, defendant gave notice to the State that he was planning to offer

the affirmative defense of self-defense at trial pursuant to N.C.G.S. § 15A-905(c). At

the charge conference, defendant asked the trial court to give an instruction on self-

defense for all charges and specifically requested an instruction on “the doctrine of

transferred intent as [it] relates to self-defense.” Defendant wanted the instruction to

“capture the idea that an individual . . . lawfully acting in self-defense who

accidentally injures another is entitled to the transference of his intent from his

original actions to an innocent bystander.” Up until the charge conference, defendant

had been referring to the jury instruction as an “accident” instruction, but later

explained that he had always intended to request an instruction on self-defense.

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Defendant’s proposed instruction provided as follows:

If a defendant, in acting in the lawful exercise of self-
defense, injures an innocent bystander while lawfully
defending himself, he is excused from criminal liability for
any unintentional harm caused to innocent bystanders by
his actions in his lawful exercise of self-defense.

The trial court ruled that it would not give defendant’s proposed instruction to the

jury. Instead, the trial court gave the pattern instruction defining “accident,” which

provided in pertinent part that

[a]n injury is accidental if it is unintentional, occurs during
the course of lawful conduct, and does not involve culpable
negligence. . . . When the defendant asserts the victim’s
injury was the result of an accident, he is, in effect, denying
the existence of those facts which the State must prove
beyond a reasonable doubt in order to convict him.

The trial court also gave the following general instruction on transferred intent:

If the defendant intended to harm one person but instead
harmed a different person, the legal effect would be the
same as if the defendant had harmed the intended victim.

The trial court also gave a self-defense instruction for first-degree murder under the

theory of premeditation and deliberation and its lesser included offenses, but did not

give a self-defense instruction for first-degree murder under the felony murder rule

or for any underlying felonies, including the assault charge.

The jury ultimately found defendant guilty of first-degree murder based on the

felony murder rule with the assault charge as the underlying felony. The jury also

found defendant guilty of second-degree murder, but the trial court set that verdict

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Opinion of the Court

aside. The jury found defendant not guilty of attempted first-degree murder and

attempted robbery with a deadly weapon. Defendant appealed.

The Court of Appeals held in pertinent part that the trial court erred by not

instructing the jury on self-defense with regard to the assault charge. State v.

Greenfield, 262 N.C. App. 631, 642, 822 S.E.2d 477, 485 (2018). Specifically, the Court

of Appeals reasoned that based on the evidence at trial, “[d]efendant was entitled to

a self-defense instruction on the homicide of Jon and the assault of Beth, but only if

the jury determined that those crimes were committed with shots intended for Jon.”

Id. at 639, 822 S.E.2d at 483. The Court of Appeals determined that defendant was

not entitled to a self-defense instruction for any shots intended for Beth because

“[defendant] testified that he did not intend to hit Beth, but that he was only shooting

at Jon. Defendant also testified that he was only in imminent fear of being killed by

Jon. He testified that Beth had already put down her gun before he returned fire.” Id.

at 639, 822 S.E.2d at 483–84.

The court concluded that the trial court’s failure to give a self-defense

instruction for the assault of Beth was prejudicial error, reasoning that it did

not know if the jury determined that the shot that struck
Beth was meant for Jon, which may have been legally
justified under self-defense, or if it was meant for Beth. . .
. And based on transferred intent, he should have been
acquitted if the jury believed he was firing at Jon in self-
defense.

Id. at 642, 822 S.E.2d at 485.

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Opinion of the Court

In addition to remanding the case for a new trial on the assault charge, the

Court of Appeals vacated the judgment convicting defendant of first-degree murder

under the felony murder rule. Id. at 643, 822 S.E.2d at 486. The Court of Appeals

then remanded the case for the entry of a judgment convicting defendant of second-

degree murder, concluding that even though the trial court arrested judgment on that

conviction, there was no reversible error as to that verdict because the jury was

instructed on self-defense for that charge. Id. at 643, 822 S.E.2d at 485–86.

The dissenting judge agreed with the majority’s decision to grant a new trial

on the assault charge but would have granted a new trial to defendant on all charges

because “it [was] not possible to separate the [assault] conviction from the tangled

mess of theories and charges.” Id. at 643, 822 S.E.2d at 486 (Stroud, J., dissenting).

Defendant appealed on the basis of the dissenting opinion. We also allowed the

State’s petition for discretionary review. Accordingly, we now analyze (1) whether the

Court of Appeals erred by concluding that defendant was prejudiced by the trial

court’s failure to give his proposed self-defense and transferred-intent instructions on

the assault charge; and (2) whether the Court of Appeals erred by failing to order a

new trial on all charges. Because we conclude that the failure to give the proposed

instructions prejudiced defendant and that he should receive a new trial on all

charges, we affirm in part and reverse in part the decision of the Court of Appeals.

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Analysis

I. Standard of Review

“This Court reviews the decision of the Court of Appeals to determine whether

it contains any errors of law.” State v. Golder, 374 N.C. 238, 244, 839 S.E.2d 782,

787 (2020) (quoting State v. Melton, 371 N.C. 750, 756, 821 S.E.2d 424, 428 (2018));

see N.C. R. App. P. 16(a). “To resolve whether a defendant is entitled to a requested

instruction, we review de novo whether each element of the defense is supported by

the evidence, when taken in the light most favorable to defendant.” State v. Mercer,

373 N.C. 459, 462, 838 S.E.2d 359, 362 (2020) (quoting State v. Mash, 323 N.C. 339,

348, 372 S.E.2d 532, 537 (1988)). Further, “[w]hether a jury instruction correctly

explains the law is reviewable de novo.” Piazza v. Kirkbride, 372 N.C. 137, 187, 827

S.E.2d 479, 510 (2019).

II. Defendant’s Proposed Instructions

We conclude that defendant presented sufficient evidence to require a self-

defense instruction on the assault charge for any shot intended for Jon.3 Accordingly,

the trial court erred by not instructing the jury according to defendant’s proposed

self-defense and transferred-intent instructions.

“[W]here competent evidence of self-defense is presented at trial, the defendant

is entitled to an instruction on this defense, as it is a substantial and essential feature

Because this conclusion is sufficient to demonstrate the trial court’s error, we do not
3

reach the issue of whether defendant was entitled to a self-defense instruction for any shots
he intended for Beth.

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Opinion of the Court

of the case, and the trial judge must give the instruction even absent any specific

request by the defendant.” State v. Morgan, 315 N.C. 626, 643, 340 S.E.2d 84, 95

(1986) (citations omitted).

Perfect self-defense requires that at the time of defendant’s use of force

(1) it appeared to defendant and he believed it to be
necessary to kill [or use force against] the [victim] in order
to save himself from death or great bodily harm; and
(2) defendant’s belief was reasonable in that the
circumstances as they appeared to him at the time were
sufficient to create such a belief in the mind of a person of
ordinary firmness; and
(3) defendant was not the aggressor in bringing on the
affray, i.e., he did not aggressively and willingly enter into
the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use
more force than was necessary or reasonably appeared to
him to be necessary under the circumstances to protect
himself from death or great bodily harm.

State v. Harvey, 372 N.C. 304, 307–08, 828 S.E.2d 481, 483–84 (2019) (quoting State

v. Bush, 307 N.C. 152, 158–59, 297 S.E.2d 563, 568 (1982)). “In determining whether

there was any evidence of self-defense presented, the evidence must be interpreted in

the light most favorable to defendant.” State v. Webster, 324 N.C. 385, 391, 378 S.E.2d

748, 752 (1989) (citing State v. Gappins, 320 N.C. 64, 71, 357 S.E.2d 654, 659 (1987)).

According to the doctrine of transferred intent, a defendant “is guilty or

innocent exactly as though the fatal act had caused the death of the person intended

to be killed. The intent is transferred to the person whose death has been caused.”

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Opinion of the Court

State v. Dalton, 178 N.C. 779, 781, 101 S.E. 548, 549 (1919) (citation omitted). In the

self-defense context specifically, we have stated that

[i]f the killing of the person intended to be hit would, under
all the circumstances, have been excusable or justifiable on
the theory of self-defense, then the unintended killing of a
bystander by a random shot fired in the proper and prudent
exercise of such self-defense is also excusable or justifiable.

Id. at 782, 101 S.E. at 549 (citation omitted).

Here, the evidence presented at trial, when interpreted in the light most

favorable to defendant, was sufficient to entitle him to a jury instruction on perfect

self-defense for any shot that he intended for Jon. Specifically, defendant testified

that (1) he only picked up the gun from Jon’s coffee table because he thought “it looked

cool” and “like something off a movie”; (2) when Jon noticed that defendant was

holding the gun, Jon got “aggressive” and “crazy”; (3) defendant did not point his gun

at anyone until Beth emerged from the bedroom pointing a gun at him; (4) defendant

was scared and thought he was about to die when Beth pointed the gun at him, and

he thought she had “every intention on shooting [him]”; (5) after Beth put her gun

down, defendant ran for the door to exit the apartment; (6) as defendant was leaving,

he saw Jon pull a gun and defendant felt a shot to his side; (7) defendant thought that

he was going to die; and (8) acting out of fear, defendant resorted to “just shooting

and running” while attempting to aim at Jon “as best as [he] could.”

Defendant’s testimony, taken in the light most favorable to him, entitled him

to a jury instruction on perfect self-defense. Defendant’s testimony, if believed, would

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Opinion of the Court

show that (1) he subjectively believed that he was going to die if he did not return fire

at Jon; (2) such belief was reasonable given the circumstances; (3) defendant was not

the aggressor in that he only picked up the gun because he thought “it looked cool,”

defendant raised the gun only after Beth pointed a gun at him, and defendant only

fired at Jon after Jon shot defendant while he was trying to escape; and (4) defendant

did not use excessive force by returning fire at the person he reasonably believed had

just shot him.

Further, defendant was entitled to a jury instruction on self-defense through

the doctrine of transferred intent for the assault charge based on any injury to Beth.

Defendant testified that he “intentionally” shot at Jon after having been shot in the

side and thinking that he was about to die. From this testimony, the jury could find

that Beth was struck by a bullet intended for Jon that defendant shot in self-defense.

Accordingly, in the light most favorable to defendant, he was entitled to have the trial

court instruct the jury on self-defense according to his proposed instruction for the

assault charge, and the trial court erred by failing to do so.

III. Prejudice

An error is prejudicial when “there is a reasonable possibility that, had the

error in question not been committed, a different result would have been reached at

the trial.” N.C.G.S. § 15A-1443(a) (2019).

Although perfect self-defense is not a direct defense to felony murder, it “may

be a defense to the underlying felony, which would thereby defeat the felony murder

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Opinion of the Court

charge.” State v. Juarez, 369 N.C. 351, 354, 794 S.E.2d 293, 297 (2016) (citing State

v. Richardson, 341 N.C. 658, 668–69, 462 S.E.2d 492, 499 (1995)). Here, the trial

court failed to give any self-defense instruction for the assault charge, which we

have already concluded was error because defendant’s testimony supported such an

instruction. We further conclude that such error was prejudicial because it impaired

defendant’s ability to present his defense to felony murder, and we see a reasonable

possibility that had the jury been given a self-defense instruction, a different result

would have been reached at trial.

We also conclude that defendant was prejudiced by the trial court’s failure to

give his specific, proposed instructions on self-defense and transferred intent for the

assault charge. Defendant proposed the following instruction:

If a defendant, in acting in the lawful exercise of self-
defense, injures an innocent bystander while lawfully
defending himself, he is excused from criminal liability for
any unintentional harm caused to innocent bystanders by
his actions in his lawful exercise of self-defense.

This instruction, if given, would have properly informed the jury that if it determined

that defendant intentionally shot at Jon in self-defense and unintentionally shot Beth

while exercising that right of self-defense, then his self-defense justification for

shooting at Jon would have transferred along with the bullet that unintentionally

struck Beth. Further, because perfect self-defense can serve as a defense to the

underlying felony for felony murder, and thereby defeat the felony murder charge,

there is a “reasonable possibility” that if the trial court had given defendant’s

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Opinion of the Court

proposed self-defense and transferred-intent instructions, the jury would have

acquitted him of both the assault charge and the felony murder charge for which the

assault served as the underlying felony.

The State’s argument that defendant was not prejudiced by the trial court’s

failure to give defendant’s proposed self-defense and transferred-intent instructions

is not persuasive.

First, the State argues that the trial court’s general instruction on transferred

intent adequately informed the jury that it could acquit defendant if it determined

that defendant unintentionally shot Beth while aiming for Jon in self-defense. But

the transferred-intent instruction only informed the jury that defendant’s intent to

harm would transfer; it did not inform the jury that defendant’s lawful exercise of

self-defense could transfer. It also seems unlikely that the jury would have

understood by this general instruction that defendant’s self-defense justification

would have transferred to any bullet that unintentionally struck Beth when the trial

court gave no self-defense instruction at all for the assault charge.

Second, the State argues that defendant could not have been prejudiced by the

trial court’s failure to give his proposed instructions because defendant invited any

error here by requesting the “accident” instruction that was given to the jury on the

assault charge. See N.C.G.S. § 15A-1443(c) (“A defendant is not prejudiced by the

granting of relief which he has sought or by error resulting from his own conduct.”).

But defendant’s success in obtaining an instruction on the accident defense does not

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Opinion of the Court

preclude his claim that he was prejudiced by the trial court’s failure to also give

separate, requested instructions on self-defense and transferred intent.4 This is

especially clear because defendant clarified at the charge conference that he had

always been requesting self-defense and transferred-intent instructions, and that he

had been using the term “accident” somewhat inartfully to refer to those instructions.

When defendant made this clarification, the trial court agreed that the issue had

always been about self-defense.

Finally, the State argues that defendant cannot demonstrate prejudice

resulting from the trial court’s failure to give his proposed instructions because the

jury’s verdict finding defendant guilty of second-degree murder shows that it did not

believe that defendant acted in perfect self-defense. However, as explained below, we

conclude that the second-degree murder verdict sheds no light on the jury’s

deliberations concerning defendant’s self-defense claim.

4 There is a clear distinction between a pure accident defense and a self-defense via
transferred-intent defense: a pure accident defense negates the elements of assault, whereas
a self-defense instruction provides a justification for actions that would otherwise satisfy the
elements of the offense. See N.C.P.I.—Crim. 307.10 (2019) (“When the defendant asserts that
the victim’s death was the result of an accident he is, in effect, denying the existence of those
facts which the State must prove beyond a reasonable doubt in order to convict him.”
(emphasis added)); State v. Riddick, 340 N.C. 338, 341, 457 S.E.2d 728, 730 (1995) (quoting
N.C.P.I.—Crim. 307.10 (1986)); State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10–11 (1927)
(“The first law of nature is that of self-defense. The law of this state and elsewhere recognizes
this primary impulse and inherent right. One being without fault, in defense of his person,
in the exercise of ordinary firmness, has a right to invoke this law and kill his assailant, if he
has reasonable ground for believing or apprehending that he is about to suffer death or great
or enormous bodily harm at his hands. . . . but there must be reasonable ground for the belief
or apprehension—an honest and well-founded belief or apprehension at the time the homicide
is committed.” (emphasis added) (citations omitted)).

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Opinion of the Court

Accordingly, we conclude that defendant was prejudiced by the trial court’s

failure to give defendant’s proposed instructions on self-defense and transferred

intent for the assault charge.

IV. Remand Order

We conclude that the Court of Appeals erred by remanding this case for the

entry of a judgment convicting defendant of second-degree murder. Instead, we

remand this case for a new trial on all charges.

The trial court accepted the jury’s verdicts finding defendant (1) guilty of first-

degree murder under the felony murder rule based upon assault; (2) not guilty of

attempted first-degree murder; (3) not guilty of attempted robbery with a deadly

weapon; and (4) guilty of assault with a deadly weapon with intent to kill inflicting

serious injury. Then, after noticing that the jury failed to mark the verdict sheet

under the premeditation and deliberation theory of first-degree murder, the trial

court called the members of the jury back into the courtroom and instructed them to

continue deliberations on the theory of premeditation and deliberation in the

following manner:

Under Count 1 of the verdict form, there were two first-
degree murder charges listed. It appears that you marked
one for the first-degree murder under the felony murder
rule but nothing was checked under first-degree murder
with premeditation and deliberation.

So what I’m going to have y’all do is go back into the jury
room and make a decision about the first-degree murder

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with premeditation and deliberation, because nothing was
checked as to that count; do you understand?

Later the trial court provided the following instruction:

Out of an abundance of caution, I want to make sure you
understand that, of course, there were two theories in the
first-degree murder. You made a decision under the first
theory, felony murder rule. The second theory is first-
degree murder with premeditation and deliberation. So
there’s first-degree murder, second-degree murder,
voluntar[y] manslaughter, or not guilty. That’s the decision
you have to make on that second one. You have those four
options; do you understand that?

After hearing this instruction, the jury asked the trial court the following:

[W]hy [does] it matter[ ] that we address both theories
since it’s for the same count? Why is there and/or instead
of an and in the charge sheet?

In response to the jury’s question, the trial court gave the following instruction:

Ladies and gentlemen, as I instructed you if you read the
instructions, the defendant is charged with first-degree
murder. The State presented two theories of first-degree
murder to you that required different elements to be
proven. First-degree murder under the felony murder rule
is one way first-degree murder can be proven, the second
way is first-degree murder with premeditation and
deliberation. So both theories of first-degree murder were
presented to you; therefore, you have to—to look at both
theories as they’re set out in the charge conference and in
the charge instructions and on the verdict sheet and make
a decision about both theories in this case.

Following this instruction, one juror asked whether the jury’s decision on the two

theories had to be “congruent” or “together in order to say first-degree felony murder.”

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Opinion of the Court

The trial court responded that the jury “ha[s] to make a decision about both. They

have to be consistent.”

After the jury finished its second round of deliberations, it returned verdicts

finding defendant (1) guilty of first-degree murder under the felony murder rule

based upon assault; (2) guilty of second-degree murder; (3) not guilty of attempted

first-degree murder; (4) not guilty of attempted robbery with a deadly weapon; and

(5) guilty of assault with a deadly weapon with intent to kill inflicting serious injury.

We conclude that the trial court’s failure to give any instruction on self-defense

pertaining to the assault charge prevented the jury from performing its fundamental

task of considering all of the substantial and essential features of the case, which

prejudiced defendant.5 Specifically, the trial court instructed the jury that it had to

redeliberate on first-degree murder under the theory of premeditation and

deliberation, and the trial court informed the jury that it only had “four options,”

which were to find defendant guilty of “first-degree murder, second-degree murder,

voluntar[y] manslaughter, or not guilty.” In so limiting the jury’s options, the trial

court denied it the ability to fully and properly consider whether defendant was guilty

of first-degree murder under the felony murder rule.

5See State v. Sargeant, 206 N.C. App. 1, 14, 696 S.E.2d 786, 795 (2010) (holding that
the trial court “intru[ded] into the province of the jury” when it accepted partial verdicts and
sent the jury back to deliberate with incomplete instructions on aspects of first-degree
murder).

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Further, when asked whether the jury’s verdict on first-degree murder under

the felony murder rule and its verdict on first-degree murder under the theory of

premeditation and deliberation needed to be “congruent,” the trial court instructed

the jury that the two findings needed to be “consistent.” Under that instruction, the

jury could have improperly found defendant guilty of second-degree murder because

it thought, for example, that although there was no evidence that defendant intended

to shoot Jon with premeditation and deliberation—it needed to at least convict him

of second-degree murder in order to render a verdict that was “consistent” with the

guilty verdict that the trial court had already accepted. Under such a line of

reasoning, the jury would not have engaged at all with defendant’s claim of perfect

self-defense. Moreover, such a decision by the jury would not have been based upon a

proper consideration of the elements of the crime of second-degree murder.

The trial court’s decision to have the jury continue deliberations on first-degree

murder under the theory of premeditation and deliberation after accepting a partial

verdict on first-degree murder under the felony murder rule could have resulted in

an improper conclusion by the jury that defendant was guilty of second-degree

murder. Therefore, we reverse the decision of the Court of Appeals to remand this

case for the entry of a judgment convicting defendant of second-degree murder.

Instead, we remand for a new trial on all charges.

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Conclusion

We conclude that the trial court erred by failing to give defendant’s proposed

instructions on self-defense and transferred intent for the assault charge, that such

error prejudiced defendant, and that the trial court’s decision to take a partial verdict

on the first-degree murder charge could have resulted in an improper finding by the

jury that defendant was guilty of second-degree murder. Accordingly, we affirm in

part, reverse in part, and remand this case to the trial court for a new trial on all

charges.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

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 Justice NEWBY dissenting.

A criminal defendant is entitled to a fair trial, free from prejudicial error. Here

the trial court gave adequate instructions, enabling defendant to present his defense

theory to the jury. Defendant argued that he was aiming at Jon and shot Beth by

accident. He asserted that his shooting Jon was justified as self-defense, and thus his

shooting Beth was also justified. By its verdict it is clear that the jury considered and

rejected defendant’s argument. Because the instructions given to the jury allowed the

jury to fully consider defendant’s defense, his conviction should be upheld. I

respectfully dissent.

Following a three-week trial, during which both defendant and the surviving

victim testified, the jury heard differing accounts of a drug deal gone wrong that

undisputedly resulted in the death of Jon and the serious injury of Beth. While

previously having given various accounts, by the time defendant testified he claimed

that he shot Jon in self-defense and that Beth was “just in his area” when he was

shooting at Jon. It is undisputed that the first person to pick up a gun was defendant

and that he was the only one holding a gun when the violent affray began. Likewise,

Jon’s cell phone undisputedly captured defendant’s threats and demands at the time

he was holding the gun.

The jury heard evidence that defendant was the initial aggressor and that his

actions were intentional, including that he intentionally shot Beth. Defendant
 STATE V. GREENFIELD

Newby, J., dissenting

entered the home to purchase drugs, picked up a gun and held it in close proximity

to Jon, threatened Jon, and threatened to take Jon’s life to convince Beth to put her

gun down. A recording on Jon’s cell phone captured the exchange that occurred after

defendant picked up the gun, including defendant’s voice demanding “the money”

from Jon, threatening to “shoot [Jon] in the head,” and demanding that Beth “[b]ring

the gun here[, p]ut it down.” Beth complied and stood in front of Jon. Beth saw

defendant still pointing his gun at her as she closed her eyes.

Beth did not see the gun fire the shots, but she heard two to three shots,

smelled gun powder, and felt the bullet strike her. Beth “felt pain on the left side of

[her] head” and felt the bullets penetrating her as she went unconscious. When she

regained consciousness, she saw her “hair floating around” her and on her arms and

felt a pain on the left side of her head. She then saw defendant running out of the

home. Following his flight and during the investigation, defendant gave different

explanations about how the drug deal at Jon’s house had gone wrong and how

defendant got shot. Defendant’s rendition of the facts varied as to who fired first and

who got shot first. By the time defendant testified, he claimed he shot Jon in self-

defense and that Beth was “just in his area” when he was shooting at Jon.

At the charge conference, defendant asked for jury instructions on self-defense

and transferred intent. He wanted to present to the jury the argument that if he was

justified in shooting Jon in self-defense, he was also justified in shooting Beth

accidently. The trial court gave a self-defense instruction and an instruction on

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 STATE V. GREENFIELD

Newby, J., dissenting

accident as well as a general transferred-intent instruction, but did not give the

specific transferred-intent instruction requested. Nonetheless, with the jury

instructions given, defendant was able to make the jury argument he desired.

Defendant’s defense theory was that he fired every shot in self-defense to ward

off Jon’s aggression and that any shots that hit Beth did so by accident or

unintentionally. Defense counsel clearly recapped defendant’s theory in his closing

argument as follows:

[Defendant] was acting in self-defense when he pulled the
trigger and those bullets came out of the gun firing at [Jon]
so he would not die, then it’s going to be not guilty the
whole way down. Similar principles. Not exactly self-
defense but very similar in their nature and application.

....

[I]f you believe [defendant’s] story that he wasn’t there to
rob anybody and that he acted in self-defense, really you
don’t have any choice in this case, you have to cut this kid
loose.

....

[F]or accident . . . . if you guys determine that his shooting
at [Jon] was the lawful exercise of self-defense, then the
bullets that came out of that gun were done lawfully, and
that it would be considered an accident as the definition of
the law, not that it was an actual accident, but otherwise
lawful conduct is covered under this defense of accident.

It’s important this concept is clear, that if you
believe that when he pointed that gun—when [defendant]
pointed that gun at [Jon], that he did so lawful—that he
did so in self-defense, that the fact that those bullets may
have hit an innocent bystander, or [Beth], that his belief

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 STATE V. GREENFIELD

Newby, J., dissenting

that he was acting in reasonable—that he was acting in
self-defense would be covered under the accident
instruction, that lawfully shooting at someone in self-
defense covers unintended victims. That’s the law, and it’s
important that you understand it.

The jury found defendant guilty of murder under the felony murder rule, with the

underlying felony being the assault on Beth, and of second-degree murder. The jury

verdict could have two meanings, both of which show that the jury rejected

defendant’s defense. The jury could have believed that defendant intended to shoot

Beth. The jury also could have believed that defendant intended to shoot Jon, and hit

Beth by accident, but that defendant did not shoot Jon in self-defense.

It is a well-established principle in this jurisdiction
that in reviewing jury instructions for error, they must be
considered and reviewed in their entirety. Where the trial
court adequately instructs the jury as to the law on every
material aspect of the case arising from the evidence and
applies the law fairly to variant factual situations
presented by the evidence, the charge is sufficient.

Murrow v. Daniels, 321 N.C. 494, 497, 364 S.E.2d 392, 395 (1988) (citing Gregory v.

Lynch, 271 N.C. 198, 203, 155 S.E.2d 488, 492 (1967); then citing King v. Powell, 252

N.C. 506, 114 S.E.2d 265 (1960)). Here the jury received instructions that adequately

instructed as to the law and on every material aspect of the case arising from the

evidence, including defendant’s defense theory. Any alleged deficiency in the jury

instructions would be harmless.

The trial court instructed the jury on the homicide charges lodged against

defendant for the fatal shooting of Jon: first-degree murder based upon malice,

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 STATE V. GREENFIELD

Newby, J., dissenting

premeditation and deliberation, or the felony murder rule; second-degree murder;

and voluntary manslaughter. As instructed, first-degree murder and second-degree

murder both involve an intentional and unlawful killing with malice. The trial court

defined malice to mean “not only hatred, ill will or spite, as it is ordinarily understood,

but also . . . a condition of mind which prompts a person to intentionally take the life

of another or to intentionally inflict serious bodily harm that proximately results in

another person’s death without just cause, excuse, or justification.” As the trial court

instructed,

to find the defendant guilty of second-degree murder, the
State must prove beyond a reasonable doubt that the
defendant unlawfully, intentionally and with malice
wounded the victim with a deadly weapon proximately
causing the victim’s death. The State must also prove that
the defendant did not act in self-defense, or if the defendant
did act in self-defense, the State must prove that the
defendant was the aggressor in provoking the fight with
intent to kill or inflict serious bodily harm.

Voluntary manslaughter, the last homicide option given to the jury, is an

unlawful killing that is still intentional but does not require malice or premeditation

and deliberation and instead applies when “the defendant acts in the heat of passion

based upon adequate provocation.” As stated in the jury instruction, a conviction on

voluntary manslaughter may indicate that the jury found that defendant killed in

self-defense “but use[d] excessive force under the circumstances or was the aggressor

without murderous intent in provoking the fight in which the killing took place.” The

trial court specifically instructed the jury that “if the State proves beyond a

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 STATE V. GREENFIELD

Newby, J., dissenting

reasonable doubt that the defendant, though otherwise acting in self-defense, was the

aggressor, though the defendant had no murderous intent when the defendant

entered the fight, the defendant would be guilty of voluntary manslaughter.”

Based on defendant’s testimony that he shot Jon in self-defense, the trial court

instructed the jury on self-defense as to all homicide charges that involved his intent

towards Jon as follows:

The defendant would be excused . . . if, first, the
defendant believed it was necessary to kill the victim in
order to save the defendant from death or great bodily
harm.

And 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 fitness.

In determining the reasonableness of the
defendant’s belief, you should consider the circumstances
as you find them to have existed from the evidence . . . .

The trial court specifically instructed that “[t]he defendant would not be guilty of any

murder or manslaughter if the defendant acted in self-defense and if the defendant

was not the aggressor in provoking the fight and did not use excessive force under

the circumstances.”

The trial court then described in detail the definition of “aggressor” for the jury,

stating that in order for the jury

to find the defendant guilty of first-degree murder or
second-degree murder, the [S]tate must prove beyond a
reasonable doubt, among other things, that the defendant
did not act in self-defense or, failing in this, that the

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 STATE V. GREENFIELD

Newby, J., dissenting

defendant was the aggressor with the intent to kill or to
inflict serious bodily harm upon the deceased.

The trial court reiterated that, “[i]f the State fails to prove the defendant did not act

in self-defense or was the aggressor[,] . . . you may not convict the defendant of either

first-degree or second-degree murder.” The trial court repeated the jury’s option to

choose not guilty on all intentional homicide charges if defendant acted in self-defense

and was not the aggressor. Defendant still could be convicted of voluntary

manslaughter if he, though otherwise acting in self-defense, was the aggressor.

The jury, however, found defendant guilty of second-degree murder, indicating

that defendant unlawfully killed Jon with malice and did not act in self-defense.

Otherwise, if the jury believed that defendant acted in self-defense, the jury would

have chosen not guilty of any murder or voluntary manslaughter.

The jury also found defendant guilty of murder under the felony murder rule.

To convict a defendant of first-degree murder on the theory of felony murder, the jury

must find, inter alia, that the defendant killed the victim while committing or

attempting to commit a felony; here the underlying felony was the independent

assault on Beth, which the jury found to be assault with a deadly weapon with intent

to kill inflicting serious injury. To find defendant guilty of this assault, the jury was

instructed that defendant must have “assaulted the victim by intentionally and

without justification or excuse shooting [Beth] in the head and arm.” This type of

assault requires “the specific intent to kill” and includes an attempt to kill the victim

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 STATE V. GREENFIELD

Newby, J., dissenting

by an intentional shot. Within the felony murder rule instruction, the trial court

informed the jury that the required intent “may be inferred by such just and

reasonable deductions from the circumstances proven as a reasonably prudent person

would ordinarily draw.” Of the assault options, the jury convicted defendant of

assault with a deadly weapon with intent to kill inflicting serious injury of Beth even

though the jury could have chosen an assault that does not require a specific intent

to kill, such as assault with a deadly weapon inflicting serious injury. Since Beth was

undisputedly unarmed at the time of the shooting, defendant has no viable self-

defense claim against Beth. This assault conviction becomes the underlying basis for

murder under the felony murder rule.

Given defendant’s testimony that he accidently shot Beth when shooting at Jon

because she was “just in his area,” at defendant’s request, the jury received an

“accident” defense instruction on the assault charge. This instruction stated that “[a]n

injury is accidental if it is unintentional, occurs during the course of lawful conduct,

and does not involve culpable negligence.” The accident instruction required the jury

to consider whether defendant unintentionally shot Beth. As summarized in defense

counsel’s jury argument, defendant’s theory that he intended to shoot Jon in self-

defense and that Beth was simply collateral damage is practically speaking the same

argument regardless of whether that claim is categorized as accidently arising out of

self-defense or simply an accident.

As the trial court instructed, the State bore the burden to prove “beyond a

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 STATE V. GREENFIELD

Newby, J., dissenting

reasonable doubt that the victim’s injury was not accidental.” If it did not satisfy that

burden of proof, “it would be [the jury’s] duty to return a verdict of not guilty.” If the

jury believed that defendant unintentionally shot Beth, it would have found

defendant not guilty of the intentional assault against Beth, as urged to do by defense

counsel during closing argument. The jury was not convinced by the “accident”

defense and instead convicted defendant of assault with the specific intent to kill

Beth. That verdict indicates that they believed defendant intended to shoot Beth or

that defendant’s shooting of Jon was unjustified. If the jury believed defendant’s

theory it would have found him not guilty of all homicide charges and every assault

charge. The jury, by finding defendant guilty of both a homicide offense against Jon

and the assault against Beth, simply did not believe defendant’s theory.

Nonetheless, the majority concludes that the trial court committed prejudicial

error when it failed to provide the jury with additional self-defense and transferred-

intent instructions for the assault on Beth, and it determines that the jury could have

reached a different outcome if given those instructions. In the majority’s view, in that

different outcome, “perfect self-defense can serve as a defense to the underlying felony

for felony murder, and thereby defeat the felony murder charge” and provide “a

‘reasonable possibility’ that if the trial court had given defendant’s proposed self-

defense and transferred-intent instructions, the jury would have acquitted him of

both the assault charge and the felony murder charge for which the assault served as

the underlying felony.” In other words, the jury could have concluded that defendant

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 STATE V. GREENFIELD

Newby, J., dissenting

shot Jon in self-defense and that defendant unintentionally shot Beth while

defending himself. This argument is essentially the same argument that defendant

presented to the jury at trial, which the jury rejected.

Because it appears that defendant was the aggressor, it appears he may not

have been entitled to the self-defense instruction at all. The evidence indicates that

defendant undisputedly made threats to kill Jon and, when the violence began,

defendant was the only one actually holding a gun. Nonetheless, having received the

self-defense instruction, the jury rejected defendant’s self-defense argument.

The law limits self-defense protection for aggressors, or those who create the

deadly situation by their own doing. If a defendant “by his own wrongful act produces

a condition of things wherein it becomes necessary for his own safety that he should

take life or do serious bodily harm, . . . the law wisely imputes to him his own wrong,

and its consequences to the extent that they may and should be considered in

determining the grade of offense which but for such acts would never have been

occasioned.” State v. Crisp, 170 N.C. 785, 792, 87 S.E. 511, 515 (1916) (quoting Reed

v. State, 11 Tex. App. 509, 518 (1882)).

While defendant’s testimony was the only substantiation of his claim of self-

defense, his testimony at the same time negated that claim. Defendant went into Jon

and Beth’s home and picked up a gun which caused Jon to ask defendant if defendant

was robbing him. Defendant never answered Jon’s question and instead threatened

to kill Jon. Beth pointed a gun at defendant. Defendant disarmed Beth by threat

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 STATE V. GREENFIELD

Newby, J., dissenting

against Jon. It is undisputed that defendant was the only one holding a gun once Beth

disarmed herself. It is only thereafter that the facts come into dispute. Based on

defendant’s own testimony and the testimony of the surviving victim, the jury heard

evidence that defendant was the aggressor and did not act in self-defense. Defendant,

based on his testimony, nonetheless received the benefit of the self-defense

instruction, and the jury considered defendant’s intent toward Jon for every crime.

The jury instructions sufficiently captured defendant’s essential defense theory,

which allowed defense counsel to make his argument to the jury.1

The jury considered and discredited the essence of defendant’s self-defense

theory when it convicted him of second-degree murder instead of voluntary

manslaughter. The jury simply decided that defendant intended to harm both victims

and was not justified in doing so. Thus, the shot fired at Jon was not “in the proper

and prudent exercise of such self-defense” and not “excusable or justifiable.” State v.

Dalton, 178 N.C. 779, 782, 101 S.E. 548, 549 (1919) (quoting 13 R. C. L. tit. Homicide,

§ 50, 745–46). Any random shot that unintentionally killed an innocent bystander

was likewise not “excusable or justifiable.” Id. The jury’s outcome is supported by the

1 Even if the shots fired at Jon unintentionally struck Beth, the trial court’s general
transferred-intent instruction covers shots defendant fired with either criminal intent
towards Jon or shots justified in self-defense. See State v. Dalton, 178 N.C. 779, 781–82, 101
S.E. 548, 549 (1919); id. at 782, 101 S.E. at 549 (The defendant “is guilty or innocent exactly
as though the fatal act had caused the death of the person intended to be killed. The intent
is transferred to the person whose death has been caused.” (quoting 13 R. C. L. tit. Homicide,
§ 50, 745–46) (emphasis added)). Thus, by definition, transferred intent encapsulates a
theory of justification like self-defense as well.

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 STATE V. GREENFIELD

Newby, J., dissenting

evidence presented and, based on the jury’s decisions, additional instructions would

not have resulted in a different outcome.

As demonstrated by the verdict, the jury simply was not convinced by

defendant’s testimony that he only intended to shoot Jon and that he shot Jon in self-

defense. The jury’s guilty verdict on second-degree murder shows that the jury did

not find his self-defense claim credible. Similarly, the jury’s finding that defendant

assaulted Beth with the intent to kill reflects its view that defendant intended to

shoot Beth or that defendant’s shooting of Jon was unjustified. The jury considered

and rejected defendant’s defense. His conviction should be upheld. I respectfully

dissent.

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