State v. Ervin, COA24-650, ___ N.C. App. ___ (Apr. 2, 2025)

In this Durham County case, defendant appealed his conviction for first-degree murder, arguing error in (1) denying his motion to dismiss, (2) admitting testimony of several of his prior violent acts, (3) overruling his objection to the State’s closing argument, and (4) excluding evidence surrounding the victim’s alleged gang involvement. The Court of Appeals found no error.

In March of 2019, defendant lived in a townhouse with his girlfriend, as well as his girlfriend’s brother, the brother’s girlfriend, and defendant’s sister. Conflict developed between defendant and his girlfriend/her brother after they learned another woman was pregnant with defendant’s child. On the day of the murder, defendant argued with his girlfriend after her mother recommended defendant move out of the townhouse. Later that evening, a confrontation led to defendant shooting the brother at the back door of the townhouse. Defendant surrendered to law enforcement and told officers he shot in self-defense. Despite the self-defense argument, the jury convicted defendant of first-degree murder.

In (1), defendant argued insufficient evidence of premeditation and deliberation, an argument the Court of Appeals rejected. The court noted that although defendant and the victim engaged in a fight before the shooting, defendant “walked away from this fight on his own accord” and then he “walked up two flights of stairs, retrieved his gun, walked down to the second floor, talked with his sister for a period of time, and then walked back down to the first floor.” Slip Op. at 7. This showed defendant clearly anticipated another confrontation and planned to respond. The court also pointed to multiple shots from defendant, as “[r]egardless of Defendant’s intent when he fired his first shot, there was adequate time between each shot for Defendant to think through his actions.” Id. at 8. Additionally, the State’s evidence suggested defendant did not act in self-defense, supporting the conviction.

For (2), defendant’s argument referenced testimony from his girlfriend about three previous incidents where he was violent towards her. The court first looked to Rules of Evidence 401 and 402, determining that the testimony was relevant as it provided context to the “circumstances surrounding the parties” and defendant’s relationship with his girlfriend and her brother before the shooting. Id. at 10. Moving to Rule 404(b), the court explained that the evidence showed defendant’s “motive and intent” and was “also sufficiently similar and temporally proximate to the charged crime.” Id. at 13. Finally, the court arrived at Rule 403, determining that “[a]fter considering the arguments made by both parties, the trial court conducted the proper balancing test required under Rule 403 to determine the evidence’s admissibility.” Id. at 16. 

Reaching (3), defendant argued that during closing argument a prosecutor misstated the law of self-defense, arguing it did not apply because defendant shot an unarmed man. Defendant objected to the statement, but the trial court overruled the objection. The court quoted the confusing statement: “[e]ven if it is reasonable, the defendant never has a right to use excessive force.” Id. at 17. Despite this confusing statement, the State further argued that defendant’s use of force was unreasonable and the jury instruction was proper, leading the court to conclude any improper statement of law was cured by the correct instructions.

Finally, in (4), defendant argued that denying his attempts to introduce evidence of the victim’s gang affiliation was error. The court disagreed, concluding that even if relevant, the evidence’s “probative value was substantially outweighed by the danger of unfair prejudice” and did little to support defendant’s claim of self-defense. Id. at 20.