IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA20-146
Filed: 17 November 2020
Catawba County, No. 17 CRS 4801
STATE OF NORTH CAROLINA
v.
NOWLIN POWELL CROOKS
Appeal by defendant from judgments entered 19 September 2019 and 20
September 2019 by Judge Kevin M. Bridges in Catawba County Superior Court.
Heard in the Court of Appeals 8 September 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Donna B. Wojcik, for the State.
Stephen G. Driggers for defendant.
DIETZ, Judge.
Defendant Nowlin Crooks appeals his conviction for possession of a firearm by
a felon, arguing that he was entitled to a jury instruction on the defense of
justification. He also challenges the civil judgment entered against him for the
attorneys’ fees of his court-appointed counsel.
As explained below, the trial court properly declined to instruct on justification
because undisputed trial evidence showed that Crooks continued to possess the
firearm well after any potential threat had ended despite many options for STATE V. CROOKS
Opinion of the Court
relinquishing possession. We therefore find no error in the trial court’s criminal
judgment.
The State concedes error with respect to the civil judgment for attorneys’ fees
because Crooks was not provided sufficient opportunity to be heard. We agree and
therefore vacate that judgment and remand for further proceedings.
Facts and Procedural History
This case involves two versions of events so deeply inconsistent that telling
both accounts is impractical. Because this appeal concerns the sufficiency of evidence
supporting a jury instruction on justification, we recount the version of events
described by Defendant Nowlin Crooks, which is the more favorable version for his
argument, and ignore the accounts of the State’s witnesses, who offered a
dramatically different version of events. State v. Mercer, 373 N.C. 459, 464, 838
S.E.2d 359, 363 (2020).
In August 2017, Crooks was walking to the store when he passed by David
Harrison’s home in a trailer park. Harrison was on his porch and invited Crooks
inside for a drink. Crooks and Harrison began drinking bourbon. The two men had
seven or eight shots of bourbon.
While the two men were drinking, Harrison suddenly stood up while only a few
feet from Crooks, pulled a pistol out of his pocket, pointed it toward the wall near
Crooks, and fired a shot at the wall. Before pulling out the gun, Harrison had not
-2- STATE V. CROOKS
threatened Crooks in any way. Harrison also did not appear angry or upset. As soon
as Harrison fired the shot at the wall, Crooks stood up, grabbed the pistol from
Harrison, and left the trailer.
Crooks then went looking for a woman named Karen Tucker, who was dating
his father. Crooks believed that Tucker likely would be sober and safely could take
the gun from him. Crooks went to a nearby trailer and knocked on the door. Karen
Tucker’s daughter Lacey answered the door, but Crooks did not give the gun to Lacey
because Crooks worried that she was high on drugs. Lacey’s sister Echo also was
present in the trailer. Echo told Crooks that Karen was nearby in Crooks’s father’s
trailer. Crooks testified that he did not try to go to his father’s trailer after learning
that Karen was there because the “sheriffs got over there.” Instead, Crooks waited
with the gun in his possession, in the presence of Lacey and Echo, until Karen arrived.
Crooks then gave Karen the gun.
Law enforcement who responded to the trailer park found a number of
intoxicated people outside the trailers, including Harrison and Crooks. Harrison
claimed that Crooks stole the gun from his living room while Harrison was in the
bathroom. Karen Tucker’s daughter Lacey told officers that Crooks pounded on the
door to her trailer and, when she opened it, Crooks pointed the gun at her and went
into the kitchen of the trailer with her while holding the gun to her head.
Crooks told the officers he took the gun from Harrison after Harrison held it
-3- STATE V. CROOKS
close to him and fired a shot at the ceiling. None of the other witnesses heard any gun
shots. Officers searched the inside of Harrison’s trailer and did not find any bullet
holes but did find a shell casing sitting on a coffee table.
The State later charged Crooks with a number of offenses, including possession
of a firearm by a felon. At trial, Crooks requested a jury instruction on the defense of
justification. The trial court denied the request. The jury found Crooks guilty of
possession of a firearm by a felon. The trial court sentenced Crooks to 25 to 39 months
in prison and also entered a civil judgment of $2,220 against Crooks for the attorneys’
fees of his court-appointed counsel. Crooks filed a timely pro se notice of appeal that
had a number of procedural defects. Crooks never served the notice of appeal on the
State.
Crooks later petitioned for a writ of certiorari to remedy the defects with his
notice of appeal. The State does not oppose the petition. In our discretion, we allow
the petition and issue a writ of certiorari to address the merits of this appeal. See
N.C. R. App. P. 21.
Analysis
I. Jury instruction on defense of justification
Crooks first argues that the trial court erred by denying his request for a jury
instruction on the defense of justification. Ordinarily, when a defendant requests
specific jury instructions, the trial court “must give the instructions requested, at
-4- STATE V. CROOKS
least in substance, if they are proper and supported by the evidence.” State v.
Edwards, 239 N.C. App. 391, 392, 768 S.E.2d 619, 620 (2015). On appeal, we review
de novo whether the evidence supported the requested instruction. Id. at 393, 768
S.E.2d at 621.
The doctrine of justification is available as a defense to the charge of possession
of a firearm by a felon. State v. Mercer, 373 N.C. 459, 463, 838 S.E.2d 359, 362 (2020).
The justification defense is appropriate when, taken in the light most favorable to the
defendant, there is evidence of each of the following factors:
(1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.
Id. at 464, 838 S.E.2d at 363.
Here, the evidence at trial was insufficient to establish the first factor of the
Mercer test. Even assuming that Harrison’s drunken act of firing his pistol into the
wall or ceiling of his house represented an “impending threat of death or serious
bodily injury” to Crooks, that threat was gone once Crooks left Harrison’s trailer with
the gun. But after that point, undisputed evidence showed that Crooks continued to
possess the gun. He admitted at trial that he could have disposed of the gun in various
-5- STATE V. CROOKS
ways, such as throwing it on a roof or hiding it somewhere until police arrived. More
importantly, Crooks testified that, once he took the gun to the Tuckers’ home and
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IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA20-146
Filed: 17 November 2020
Catawba County, No. 17 CRS 4801
STATE OF NORTH CAROLINA
v.
NOWLIN POWELL CROOKS
Appeal by defendant from judgments entered 19 September 2019 and 20
September 2019 by Judge Kevin M. Bridges in Catawba County Superior Court.
Heard in the Court of Appeals 8 September 2020.
Attorney General Joshua H. Stein, by Assistant Attorney General Donna B. Wojcik, for the State.
Stephen G. Driggers for defendant.
DIETZ, Judge.
Defendant Nowlin Crooks appeals his conviction for possession of a firearm by
a felon, arguing that he was entitled to a jury instruction on the defense of
justification. He also challenges the civil judgment entered against him for the
attorneys’ fees of his court-appointed counsel.
As explained below, the trial court properly declined to instruct on justification
because undisputed trial evidence showed that Crooks continued to possess the
firearm well after any potential threat had ended despite many options for STATE V. CROOKS
Opinion of the Court
relinquishing possession. We therefore find no error in the trial court’s criminal
judgment.
The State concedes error with respect to the civil judgment for attorneys’ fees
because Crooks was not provided sufficient opportunity to be heard. We agree and
therefore vacate that judgment and remand for further proceedings.
Facts and Procedural History
This case involves two versions of events so deeply inconsistent that telling
both accounts is impractical. Because this appeal concerns the sufficiency of evidence
supporting a jury instruction on justification, we recount the version of events
described by Defendant Nowlin Crooks, which is the more favorable version for his
argument, and ignore the accounts of the State’s witnesses, who offered a
dramatically different version of events. State v. Mercer, 373 N.C. 459, 464, 838
S.E.2d 359, 363 (2020).
In August 2017, Crooks was walking to the store when he passed by David
Harrison’s home in a trailer park. Harrison was on his porch and invited Crooks
inside for a drink. Crooks and Harrison began drinking bourbon. The two men had
seven or eight shots of bourbon.
While the two men were drinking, Harrison suddenly stood up while only a few
feet from Crooks, pulled a pistol out of his pocket, pointed it toward the wall near
Crooks, and fired a shot at the wall. Before pulling out the gun, Harrison had not
-2- STATE V. CROOKS
threatened Crooks in any way. Harrison also did not appear angry or upset. As soon
as Harrison fired the shot at the wall, Crooks stood up, grabbed the pistol from
Harrison, and left the trailer.
Crooks then went looking for a woman named Karen Tucker, who was dating
his father. Crooks believed that Tucker likely would be sober and safely could take
the gun from him. Crooks went to a nearby trailer and knocked on the door. Karen
Tucker’s daughter Lacey answered the door, but Crooks did not give the gun to Lacey
because Crooks worried that she was high on drugs. Lacey’s sister Echo also was
present in the trailer. Echo told Crooks that Karen was nearby in Crooks’s father’s
trailer. Crooks testified that he did not try to go to his father’s trailer after learning
that Karen was there because the “sheriffs got over there.” Instead, Crooks waited
with the gun in his possession, in the presence of Lacey and Echo, until Karen arrived.
Crooks then gave Karen the gun.
Law enforcement who responded to the trailer park found a number of
intoxicated people outside the trailers, including Harrison and Crooks. Harrison
claimed that Crooks stole the gun from his living room while Harrison was in the
bathroom. Karen Tucker’s daughter Lacey told officers that Crooks pounded on the
door to her trailer and, when she opened it, Crooks pointed the gun at her and went
into the kitchen of the trailer with her while holding the gun to her head.
Crooks told the officers he took the gun from Harrison after Harrison held it
-3- STATE V. CROOKS
close to him and fired a shot at the ceiling. None of the other witnesses heard any gun
shots. Officers searched the inside of Harrison’s trailer and did not find any bullet
holes but did find a shell casing sitting on a coffee table.
The State later charged Crooks with a number of offenses, including possession
of a firearm by a felon. At trial, Crooks requested a jury instruction on the defense of
justification. The trial court denied the request. The jury found Crooks guilty of
possession of a firearm by a felon. The trial court sentenced Crooks to 25 to 39 months
in prison and also entered a civil judgment of $2,220 against Crooks for the attorneys’
fees of his court-appointed counsel. Crooks filed a timely pro se notice of appeal that
had a number of procedural defects. Crooks never served the notice of appeal on the
State.
Crooks later petitioned for a writ of certiorari to remedy the defects with his
notice of appeal. The State does not oppose the petition. In our discretion, we allow
the petition and issue a writ of certiorari to address the merits of this appeal. See
N.C. R. App. P. 21.
Analysis
I. Jury instruction on defense of justification
Crooks first argues that the trial court erred by denying his request for a jury
instruction on the defense of justification. Ordinarily, when a defendant requests
specific jury instructions, the trial court “must give the instructions requested, at
-4- STATE V. CROOKS
least in substance, if they are proper and supported by the evidence.” State v.
Edwards, 239 N.C. App. 391, 392, 768 S.E.2d 619, 620 (2015). On appeal, we review
de novo whether the evidence supported the requested instruction. Id. at 393, 768
S.E.2d at 621.
The doctrine of justification is available as a defense to the charge of possession
of a firearm by a felon. State v. Mercer, 373 N.C. 459, 463, 838 S.E.2d 359, 362 (2020).
The justification defense is appropriate when, taken in the light most favorable to the
defendant, there is evidence of each of the following factors:
(1) that the defendant was under unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.
Id. at 464, 838 S.E.2d at 363.
Here, the evidence at trial was insufficient to establish the first factor of the
Mercer test. Even assuming that Harrison’s drunken act of firing his pistol into the
wall or ceiling of his house represented an “impending threat of death or serious
bodily injury” to Crooks, that threat was gone once Crooks left Harrison’s trailer with
the gun. But after that point, undisputed evidence showed that Crooks continued to
possess the gun. He admitted at trial that he could have disposed of the gun in various
-5- STATE V. CROOKS
ways, such as throwing it on a roof or hiding it somewhere until police arrived. More
importantly, Crooks testified that, once he took the gun to the Tuckers’ home and
learned that Karen Tucker was not there, he continued to possess the gun and remain
inside that home with Tucker’s two daughters, even after they informed Crooks that
their mother Karen was at a nearby trailer with Crooks’s father.
When asked why he stayed instead of going to his father’s trailer at that point,
Crooks explained that it was because “the sheriffs got over there” and that he had no
other explanation:
Q: Okay. But you stayed at Karen’s place until she arrived?
A: Yes. . . .
Q: Why didn’t you leave and go to your dad’s place?
A: The sheriffs got over there.
Q: How did you know that?
A: Because Echo called them. That’s the other sister.
Q: Why didn’t you leave to go give her the gun?
A: I just didn’t.
In light of this evidence, Crooks failed to show that his possession of the gun
was justified because he was in imminent danger. The danger had ended. But Crooks
chose to keep possession of the gun in the presence of other people. The law does not
permit Crooks that choice; once the threat (assuming one actually existed) was gone,
-6- STATE V. CROOKS
Crooks was required to relinquish possession of the firearm. See State v. Craig, 167
N.C. App. 793, 796–97, 606 S.E.2d 387, 389 (2005). Thus, the trial evidence did not
support the first factor of the Mercer test and the trial court properly declined to
provide a jury instruction on justification.
II. Attorneys’ fees
Crooks next argues that the trial court improperly imposed attorneys’ fees
without providing notice and an opportunity to be heard. The State concedes error
and we agree.
Before imposing a judgment for the attorneys’ fees of a defendant’s court-
appointed counsel, “the trial court must afford the defendant notice and an
opportunity to be heard.” State v. Friend, 257 N.C. App. 516, 522, 809 S.E.2d 902, 906
(2018). To afford the necessary opportunity to be heard, “trial courts should ask
defendants—personally, not through counsel—whether they wish to be heard on the
issue.” Id. at 523, 809 S.E.2d at 907. “Absent a colloquy directly with the defendant
on this issue, the requirements of notice and opportunity to be heard will be satisfied
only if there is other evidence in the record demonstrating that the defendant received
notice, was aware of the opportunity to be heard on the issue, and chose not to be
heard.” Id.
Here, Crooks’s counsel had not calculated the number of hours worked on the
case at the time of sentencing. The trial court explained to Crooks at sentencing that
-7- STATE V. CROOKS
“your attorney will calculate the time that he has expended in representing you. He
will submit the total of his hours to me. I will sign what I feel to be a reasonable fee.”
The court later entered a civil judgment for $2,220 in attorneys’ fees without first
informing Crooks of that amount and providing Crooks the opportunity to address
the entry of a civil judgment for that amount.
We agree with the parties that, under Friend, Crooks was not provided
sufficient opportunity to be heard before entry of this civil judgment. We therefore
vacate the civil judgment and remand for further proceedings on that issue in the
trial court.
Conclusion
We find no error in the trial court’s criminal judgment. We vacate the civil
judgment for attorneys’ fees and remand that matter for further proceedings.
NO ERROR IN PART; VACATED AND REMANDED IN PART.
Chief Judge McGEE and Judge HAMPSON concur.
-8-