IN THE COURT OF APPEALS OF NORTH CAROLINA
2021-NCCOA-494
No. COA20-198
Filed 21 September 2021
Caldwell County, No. 13 CRS 54340
STATE OF NORTH CAROLINA
v.
NANCY BENGE AUSTIN
Appeal by defendant from judgment entered 24 May 2019 by Judge Lisa C.
Bell in Caldwell County Superior Court. Heard in the Court of Appeals 14 April 2021.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Mary Carla Babb, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Daniel K. Shatz, for defendant.
DIETZ, Judge.
¶1 Defendant Nancy Austin appeals her conviction for first degree murder after
she shot and killed Dylan Short in her driveway.
¶2 Just before the shooting, Short drove his car into Austin’s driveway knowing
that he was not welcome there and refused to leave. Short then shoved Austin’s adult
daughter, in view of Austin, and a fight broke out. After Austin pulled out a gun and
demanded that Short leave her property, Short reached for the gun and, at some
point, a gunshot went off. After further fighting, a bystander saw Austin standing STATE V. AUSTIN
Opinion of the Court
over Short, who lay on the ground in the driveway pleading “Please, please, just let
me go. Let me go.” Austin then stepped several feet back and shot Short in the head,
killing him.
¶3 The State charged Austin with murder, and Austin asserted the castle doctrine
defense, which is codified in North Carolina General Statute § 14-51.2. The trial court
declined to resolve the defense in a pre-trial hearing and also denied Austin’s motion
to dismiss at trial, concluding that there were fact issues to be resolved by a jury.
¶4 As explained below, the trial court properly declined to resolve the castle
doctrine defense before trial. Where, as here, there are fact disputes concerning the
castle doctrine’s applicability, those fact questions must be resolved by a jury. The
trial court also properly denied the motion to dismiss because the State presented
sufficient evidence to rebut the castle doctrine’s presumption in favor of the lawful
occupant of a home, thus creating a fact issue concerning the doctrine’s applicability.
Finally, the trial court’s jury instructions, viewed as a whole, properly instructed the
jury on the elements of the castle doctrine. We therefore reject Austin’s arguments
and find no error in the trial court’s judgment.
Facts and Procedural History
¶5 In 2013, Defendant Nancy Austin lived in a home with her daughter, Sarah,
and Sarah’s child. Dylan Short is the father of Sarah’s child. Short was once in a
relationship with Sarah, but the two later broke up. STATE V. AUSTIN
¶6 After a violent incident between Short and Sarah at Austin’s home in the
summer of 2012, Austin told Short he was not welcome on the property. Sarah
resumed a relationship with Short in November 2013. In December 2013, Austin and
Short exchanged Facebook messages in which Austin disapproved of Short’s
relationship with her daughter. Austin also accused Short of attempting to run her
off the road, which he acknowledged.
¶7 On 26 December 2013, Short spent the day with Sarah and then followed her
home without her permission. Short had not been to the house in over a year. Austin
was outside in the driveway, near a “no trespassing” sign, when Short arrived. Sarah,
who had already arrived, got out of her car and took her child inside.
¶8 Short yelled at Sarah to stop and to talk to him. Austin told Short to leave.
Sarah also told Short to leave, and Short then pushed her. Short was unarmed at the
time. At this point, Austin took out a gun, pointed it at Short, told her daughter to go
inside, and told Short to leave. Short refused to leave, telling Austin he did not have
to leave because his child was inside the home.
¶9 Austin testified that she looked to see if her daughter had gone inside and,
when she turned back, Short had “jumped” on her and reached for the gun. As Sarah
was walking inside, she heard a gunshot. When she turned back around, Short and
Austin were entangled, and Short was reaching around Austin’s back toward the gun.
Sarah ran toward them and pushed Short. Sarah fell to the ground with Short, STATE V. AUSTIN
struggled with him, then moved on top of him and put her hands around his neck.
Sarah got up again to go back into the house and, as she walked away, heard a second
gunshot. She turned around and saw that Austin, who was standing up at this time,
had shot Short, who was on the ground. Austin told Sarah to call 911, which she did.
¶ 10 In statements to police officers that evening, Austin explained that she had
previously told Short not to come on her property, that when he arrived, she told him
to leave, and that Short refused to leave. She also told the officers about the struggle
in the driveway and that Short had knocked her to the ground and grabbed for her
gun. Lastly, she told the officers that Short was on the ground and within three feet
of her when she shot him.
¶ 11 The State charged Austin with the first degree murder of Short. The case went
to trial. At trial, Billy Herald, who was working on a nearby property about twenty-
five to forty yards away from Austin’s home, testified that he had witnessed some of
the incident. Herald testified that he saw Sarah drive into Austin’s driveway at a
fairly high speed and then saw Short pull up behind her, yelling at her to stop. Herald
stopped watching until he heard Short shout, “she’s got a loaded gun,” a few minutes
later. He looked back and saw Short on his left knee with his hand up, and Austin
pointing a gun at him. He stopped watching again and then, shortly after, he heard
a gunshot. He looked back and saw Short behind Austin and Austin’s daughter
jumping on top of Short, then Short falling to the ground. Herald testified that he STATE V. AUSTIN
then saw Austin stand over Short, take two steps back, and then shoot Short at a
distance of five to six feet away. Before Austin shot Short, Herald heard him say,
“Please, please, just let me go. Let me go.”
¶ 12 Dr. Patrick Lantz, who performed the autopsy, testified that Short died from a
single gunshot wound to the face. Lantz stated that he observed stippling on Short’s
face, indicating that the shooting occurred at an intermediate range. Finally, Lantz
testified that he would not expect stippling of this nature in a shooting with a range
farther than three feet, but that it would depend on the ammunition used.
¶ 13 On 24 May 2019, the jury found Austin guilty of first degree murder and the
court sentenced her to life without parole. Austin gave notice of appeal in open court.
Analysis
¶ 14 Every issue Austin asserts on appeal concerns some aspect of a self-defense
provision in our General Statutes commonly called the “castle doctrine.” See N.C.
Gen. Stat. § 14-51.2.
¶ 15 “The ‘castle doctrine’ is derived from the principle that one’s home is one’s
castle and is based on the theory that if a person is bound to become a fugitive from
her own home, there would be no refuge for her anywhere in the world.” State v. Cook,
254 N.C. App. 150, 157, 802 S.E.2d 575, 579 (2017) (Stroud, J. dissenting). The castle
doctrine is a form of self-defense, but it is broader than the traditional self-defense
doctrine because, when the statutory criteria are satisfied, the defendant no longer STATE V. AUSTIN
has the burden to prove key elements of the traditional self-defense doctrine. N.C.
Gen. Stat. § 14-51.2(b). With this overview in mind, we turn to Austin’s specific
arguments on appeal.
I. Pre-trial determination of castle doctrine defense
¶ 16 Austin first argues that the trial court erred by refusing to adjudicate her
castle doctrine defense in a pre-trial hearing. Austin contends that, when a criminal
defendant asserts the castle doctrine defense and moves to dismiss, the defendant
has “the right to have a judge, rather than a jury, evaluate the evidence to determine
whether she was immune under the statute.”
¶ 17 Austin’s argument turns on the specific language in the operative portion of
the castle doctrine statute, which provides that a person satisfying the castle doctrine
criteria “is immune from civil or criminal liability.” N.C. Gen. Stat. § 14-51.2(e).
Austin argues that the use of the word “immunity” means that this is a question that
must be resolved by the judge, not the jury.
¶ 18 The flaw in this argument is that the word “immunity” has different legal
meanings depending on the context and, here, the context indicates that this is not a
traditional immunity from prosecution that must be resolved by the court before trial.
A traditional immunity is “not merely an affirmative defense to claims; it is a
complete immunity from being sued in court.” Ballard v. Shelley, 257 N.C. App. 561,
564, 811 S.E.2d 603, 605 (2018). In other words, it creates not merely an assurance STATE V. AUSTIN
that no judgment can be entered against the person, but a right not to be forced into
court to defend oneself. Id.
¶ 19 In the criminal context, the General Assembly signals a grant of this type of
immunity by referring to it as “immunity from prosecution.” So, for example, the
statute requiring trial courts to resolve an immunity issue pre-trial applies when the
defendant “has been granted immunity by law from prosecution.” N.C. Gen. Stat.
§ 15A-954(a)(9). This type of immunity often arises when the government seeks to
compel a person to testify who might otherwise assert the right against self-
incrimination. See generally N.C. Gen. Stat. § 15A-1051 et seq.
¶ 20 Our General Statutes use the phrase “immunity from prosecution” repeatedly
when describing this type of immunity in the criminal context. See, e.g., N.C. Gen.
Stat. § 14-205.1 (granting “immunity from prosecution” to minors involved in
soliciting prostitution); N.C. Gen. Stat. § 75-11 (granting “full immunity from
criminal prosecution and criminal punishment” to persons compelled to testify
against a corporation in certain consumer cases); N.C. Gen. Stat. § 90-96.2 (granting
“limited immunity from prosecution” in the context of reporting drug overdoses); N.C.
Gen. Stat. § 90-113.27 (granting “immunity from prosecution” to certain participants
in needle exchange programs).
¶ 21 Here, by contrast, the castle doctrine provides immunity from “criminal
liability.” In this context, the immunity is from a conviction and judgment, not the STATE V. AUSTIN
prosecution itself. This conclusion is further supported by the distinction between
traditional immunities from prosecution, which typically involve little or no fact
determination, and the castle doctrine defense, which, as explained below, can involve
deeply fact-intensive questions. Accordingly, we reject Austin’s argument that the
castle doctrine statute granted her “the right to have a judge, rather than a jury,
evaluate the evidence to determine whether she was immune under the statute.”
Where, as here, the trial court determined that there were fact questions concerning
the applicability of the castle doctrine defense, the trial court properly permitted the
case to proceed to trial so that a jury can resolve those disputed facts.
II. Motion to dismiss
¶ 22 Austin next argues that the trial court erred by denying her motion to dismiss
for insufficiency of the evidence, based on the castle doctrine and a lack of
premeditation and deliberation.
¶ 23 “This Court reviews the trial court’s denial of a motion to dismiss de novo.”
State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). When a criminal
defendant moves to dismiss, “the trial court is to determine whether there is
substantial evidence (a) of each essential element of the offense charged, or of a lesser
offense included therein, and (b) of defendant’s being the perpetrator of the offense.”
State v. Earnhardt, 307 N.C. 62, 65–66, 296 S.E.2d 649, 651 (1982). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to STATE V. AUSTIN
support a conclusion.” State v. Smith, 300 N.C. 71, 78, 265 S.E.2d 164, 169 (1980). “In
making its determination, the trial court must consider all evidence admitted,
whether competent or incompetent, in the light most favorable to the State, giving
the State the benefit of every reasonable inference and resolving any contradictions
in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994).
¶ 24 The castle doctrine functions by creating a presumption of reasonable fear of
imminent death or serious bodily harm in favor of a lawful occupant of a home, which
in turn justifies the occupant’s use of deadly force. N.C. Gen. Stat. § 14-51.2.
Specifically, the statute provides that the “lawful occupant of a home” is “presumed
to have held a reasonable fear of imminent death or serious bodily harm to himself
or herself when using defensive force that is intended or likely to cause death or
serious bodily harm to another” if both of the following apply: (1) “The person against
whom the defensive force was used was in the process of unlawfully and forcefully
entering, or had unlawfully and forcibly entered, a home,” and (2) the person using
“defensive force knew or had reason to believe that an unlawful and forcible entry or
unlawful and forcible act was occurring or had occurred.” N.C. Gen. Stat. § 14-
51.2(b)(1)–(2). The statute’s definition of “home” includes the home’s curtilage, such
as the driveway at issue in this case. N.C. Gen. Stat. § 14-51.2(a)(1).
¶ 25 In effect, this provision eliminates the needs for lawful occupants of a home to
show that they reasonably believed the use of deadly force was necessary to prevent STATE V. AUSTIN
imminent death or serious bodily injury to themselves or others—a requirement of
traditional self-defense. Instead, that belief is presumed when the statutory criteria
are satisfied.
¶ 26 But, importantly, the statute has a separate section providing that this
presumption “shall be rebuttable” and “does not apply” in certain circumstances set
out in the statute:
The presumption set forth in subsection (b) of this section shall be rebuttable and does not apply in any of the following circumstances:
(1) The person against whom the defensive force is used has the right to be in or is a lawful resident of the home, motor vehicle, or workplace, such as an owner or lessee, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person.
(2) The person sought to be removed from the home, motor vehicle, or workplace is a child or grandchild or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used.
(3) The person who uses defensive force is engaged in, attempting to escape from, or using the home, motor vehicle, or workplace to further any criminal offense that involves the use or threat of physical force or violence against any individual.
(4) The person against whom the defensive force is used is a law enforcement officer or bail bondsman who enters or attempts to enter a home, motor vehicle, or workplace in the lawful performance of his or her official duties, and the officer or bail bondsman identified himself or herself in accordance with any applicable law or the person using STATE V. AUSTIN
force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer or bail bondsman in the lawful performance of his or her official duties.
(5) The person against whom the defensive force is used (i) has discontinued all efforts to unlawfully and forcefully enter the home, motor vehicle, or workplace and (ii) has exited the home, motor vehicle, or workplace.
N.C. Gen. Stat. § 14-51.2(c).
¶ 27 One fair reading of this provision is that the presumption is rebuttable only in
the five enumerated circumstances listed in the statute. That is, the statute
announces that the presumption can be overcome and then provides the only five
specific factual scenarios in which that is so.
¶ 28 But this Court and our Supreme Court rejected that interpretation several
years ago. In State v. Cook, law enforcement officers kicked the door to the defendant’s
bedroom while executing a search warrant and the defendant fired two shots at the
door, narrowly missing one of the officers. The defendant asserted that he did not
hear the officers announce their presence, that he thought an intruder was breaking
into his house, that he was scared for his life, and that “he did not take aim at or
otherwise have any specific intent to shoot the ‘intruder’ when he fired the shots.”
254 N.C. App. 150, 152, 802 S.E.2d 575, 577 (2017), aff’d, 370 N.C. 506, 809 S.E.2d
566 (2018).
¶ 29 The dissenting judge in the Court of Appeals argued that the defendant was STATE V. AUSTIN
entitled to a castle doctrine instruction and the trial court erred by refusing to provide
that instruction. Id. at 160, 802 S.E.2d at 581. The majority rejected that assertion,
holding that “a defendant who testifies that he did not intend to shoot the attacker is
not entitled to an instruction under N.C. Gen. Stat. § 14-51.2 because his own words
disprove the rebuttable presumption that he was in reasonable fear of imminent
harm.” Id. at 156, 802 S.E.2d at 578. The Supreme Court affirmed the Court of
Appeals in a per curiam decision. State v. Cook, 370 N.C. 506, 809 S.E.2d 566 (2018).
¶ 30 We are bound by Cook to hold that the castle doctrine’s rebuttable presumption
is not limited to the five scenarios listed in the statute. Instead, as explained in Cook,
if the State presents substantial evidence from which a reasonable juror could
conclude that a defendant did not have a reasonable fear of imminent death or serious
bodily harm, the State can overcome the presumption and create a fact question for
the jury. Thus, the castle doctrine, as interpreted in Cook, is effectively a burden-
shifting provision, creating a presumption in favor of the defendant that can then be
rebutted by the State.
¶ 31 Here, the State presented evidence that a bystander saw Austin standing over
Short, who was lying unarmed in Austin’s driveway and pleading “Please, please, just
let me go. Let me go.” The bystander saw Austin take several steps back and then
shoot Short in the head from three to six feet away. Taken in the light most favorable
to the State, this is sufficient evidence from which the jury could determine that the STATE V. AUSTIN
State had rebutted the presumption and shown that Austin did not have a reasonable
fear of imminent death or serious bodily harm when she shot Short in the head as he
lay on the ground in her driveway.
¶ 32 Likewise, this evidence readily is sufficient to overcome a motion to dismiss
based on lack of premeditation and deliberation. See State v. Childress, 367 N.C. 693,
695, 766 S.E.2d 328, 330 (2014). Accordingly, the trial court did not err by denying
Austin’s motion to dismiss.
III. Jury instruction on Section 14-51.2
¶ 33 Finally, Austin argues that the court erred in its jury instruction on the castle
doctrine and that this error prejudiced her.
¶ 34 This Court reviews challenges to the trial court’s jury instructions de novo.
State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). We examine the
instructions “as a whole” to determine if they present the law “fairly and clearly” to
the jury. State v. Chandler, 342 N.C. 742, 751–52, 467 S.E.2d 636, 641 (1996). The
purpose of a jury instruction “is to give a clear instruction which applies the law to
the evidence in such manner as to assist the jury in understanding the case and in
reaching a correct verdict.” State v. Smith, 360 N.C. 341, 346, 626 S.E.2d 258, 261
(2006). An error in jury instructions “is prejudicial and requires a new trial only if
there is a reasonable possibility that, had the error in question not been committed,
a different result would have been reached at the trial.” State v. Dilworth, 274 N.C. STATE V. AUSTIN
App. 57, 61, 851 S.E.2d 406, 409 (2020).
¶ 35 Here, the court instructed the jury that “Nancy Austin was justified in using
deadly force if . . . [she] reasonably believed that the degree of force she used was
necessary to prevent an unlawful and forceful entry or to terminate Dylan Short’s
unlawful and forcible entry into her home.” The court then instructed the jury on the
castle doctrine using language that mirrors the statute:
Under North Carolina law, a lawful occupant of her home does not have a duty to retreat from an intruder under these circumstances. Furthermore, a person who unlawfully and by force enters or attempts to enter a person’s home is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
In addition, Nancy Austin is presumed to have held a reasonable fear of imminent death or serious bodily harm to herself or another when using defensive force that is intended or likely to cause death or serious bodily harm if both of the following apply:
One, Dylan Short was in the process of unlawfully and forcefully entering or had unlawfully and forcibly entered Nancy Austin’s home; and Nancy Austin knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred. The presumption of Nancy Austin’s reasonable fear of imminent death or serious bodily harm may be rebutted if you find beyond a reasonable doubt that Dylan Short had discontinued all efforts to unlawfully and forcefully enter the home and that Dylan Short had exited the home.
¶ 36 Every portion of this instruction is an accurate statement of the law. Moreover,
this language was crafted with significant input from the parties during the charge STATE V. AUSTIN
conference.
¶ 37 During the conference, the trial court informed the parties that the court
believed the castle doctrine presumption could be rebutted by evidence beyond the
five enumerated criteria in the statute but explained that the court had not prepared
any specific instructions on what additional evidence could be considered to rebut the
presumption:
One thing that was not discussed yesterday and has not been included in my draft [of the jury instructions] are the – we didn’t discuss about the presumptions, the rebuttability of the presumption and what is required to rebut the presumption.
I did bring up my interpretation of the statute being those five enumerated exceptions aren’t the only – I don’t think the statute says those are the limited reasons – or the limited ways in which the presumption can be rebutted, because of the way the statute’s worded. But we didn’t get to a discussion of that yesterday, so that is one part of your proposed instruction that’s not included in the draft but wasn’t intentionally excluded.
¶ 38 The State then explained that it believed the fifth enumerated criteria in the
statute, N.C. Gen. Stat. § 14-51.2(c)(5), applied and that it was reluctant to propose
additional instructions fleshing out other possible evidence that could rebut the
presumption, beyond the express statutory criteria, because “the risk that the State
would run, Your Honor – and we talked about it, trying to figure out some
nonstatutory. Because the State’s reading and interpretation of that is that these are STATE V. AUSTIN
not just the only ways that this could be rebutted, but there are others. But since we
don’t have a lot of guidance with jury instructions – because they didn’t even address
the way that it could be rebutted, in the jury instruction. So we didn’t want to go
outside of what the law is providing in the statute, even though we do agree that
there are additional ways that that could possibly be shown.”
¶ 39 Ultimately, the court chose not to include any additional instructions on how
the castle doctrine presumption could be rebutted and simply instructed the jury that
the castle doctrine created a presumption. The court also included a statement,
consistent with the statute, that the presumption automatically is rebutted if the
State proved “beyond a reasonable doubt that Dylan Short had discontinued all
efforts to unlawfully and forcefully enter the home and that Dylan Short had exited
the home.”
¶ 40 The crux of Austin’s argument is that the State should be barred on appeal
from arguing that the jury could consider any basis to rebut the presumption other
than the specific statutory criteria in N.C. Gen. Stat. § 14-51.2(c)(5) because the State
“expressly disavowed any reliance on any non-statutory basis to rebut the
presumption” during the charge conference. We are not persuaded that the State’s
discussion with the trial court meant what Austin contends. But, in any event, the
State, like any other party, cannot stipulate to what the law is. State v. Hanton, 175
N.C. App. 250, 253, 623 S.E.2d 600, 603 (2006). “In a criminal trial the judge has the STATE V. AUSTIN
duty to instruct the jury on the law arising from all the evidence presented.” Smith,
360 N.C. at 346, 626 S.E.2d at 261.
¶ 41 Importantly, the trial court did not instruct the jury that the statutory criteria
in N.C. Gen. Stat. § 14-51.2(c)(5) was the only means of rebutting the presumption,
which would not be an accurate statement of the law under Cook. Instead, the court
instructed the jury, correctly, that Austin was “presumed to have held a reasonable
fear of imminent death or serious bodily harm to herself or another.” The court also
instructed the jury that, if it found beyond a reasonable doubt that the specific
statutory criteria in Section 14-51.2(c)(5) was satisfied, the presumption was rebutted
as a matter of law. The court chose not to provide additional instructions to the jury
concerning the particular circumstances, beyond the statutory criteria, that could
overcome the presumption of reasonable fear of imminent death or serious bodily
harm, instead leaving the jury to make that determination from the facts presented
in the case.
¶ 42 When viewed as a whole, the trial court accurately instructed the jury on the
castle doctrine defense and its rebuttable presumption using language that mirrored
the statute. Chandler, 342 N.C. at 751–52, 467 S.E.2d at 641. We thus reject Austin’s
arguments with respect to the presumption instruction.
¶ 43 Austin also argues that the trial court erred by treating the castle doctrine as
“distinct from self-defense” because “there is a unitary justification defense for the STATE V. AUSTIN
use of defensive force.” But again, the trial court properly instructed the jury on the
issue of self-defense and the castle doctrine separately, using language that mirrored
that statute and the applicable law. Indeed, Austin’s trial counsel told the trial court
that Austin had “no problem” with the castle doctrine and self-defense instructions
being separated, stating that they “should be seen as separate” because there are
“different elements.” We thus reject this argument as well.
¶ 44 Finally, Austin also asserts several other instructional arguments that were
not preserved in the trial court. We review these issues for plain error. State v.
Goforth, 170 N.C. App. 584, 587, 614 S.E.2d 313, 315 (2005). “For error to constitute
plain error, a defendant must demonstrate that a fundamental error occurred at
trial.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). Plain error
is “applied cautiously and only in the exceptional case” where the error “seriously
affect[s] the fairness, integrity or public reputation of the judicial proceedings.” Id.
Here, because the trial court’s instructions as a whole properly instructed the jury on
the law concerning self-defense and the statutory castle doctrine, we find no error
with respect to these unpreserved instructional arguments and certainly no plain
error.
Conclusion
¶ 45 We find no error in the trial court’s judgment.
NO ERROR. STATE V. AUSTIN
Judges ZACHARY and HAMPSON concur.