IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-886
Filed 7 October 2026
Union County, No. 22CR051353-890
STATE OF NORTH CAROLINA
v.
BILLY RASHAWN BARRINO
Appeal by defendant from judgment entered 8 October 2024 by Judge
Jonathan Wade Perry in Union County Superior Court. Heard in the Court of
Appeals 3 June 2026.
Attorney General Jeff Jackson, by Assistant Attorney General Benjamin T.
Spangler, for the State.
Sandra Payne Hagood for the defendant-appellant.
TYSON, Judge.
Billy Barrino (“Defendant”) appeals from a judgment entered following a jury
verdict finding him guilty of first-degree murder. We discern no error on the record
before us.
I. Background
On 23 April 2022, a group of young adults was recording or “shooting” a music
video for an artist known as “Freeway Vic” or “Rat Dawg” on the 1600 block of Boyte
Street in the Monroe Housing Authority apartment complex. The group had gathered
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Opinion of the Court
in a parking lot and was preparing for the “shoot” when Jaleel Nivens (“Nivens”), who
was sitting on the front steps of one of the apartments, began yelling profanity at
them. The group moved further down the block away from Nivens. Nivens followed
the group down the sidewalk, while continuing to yell profanities. He also lifted his
shirt and flashed a pistol at the group. Evidence was presented tending to show
Nivens had been drinking. He was living at the apartment complex with his cousin,
Britteny Butler (“Butler”).
Rat Dawg walked across the street to talk with Nivens in an attempt to
deescalate the situation. Defendant walked across the street to join the conversation
between Nivens and Rat Dawg. Defendant was not aggressive in his approach and
his hands were empty. Rat Dawg left the conversation and walked back across the
street towards the video producer, Bristol Williams (“Williams”).
The situation then escalated quickly. According to Williams, the only
eyewitness, Nivens drew his gun and shot “like towards [Defendant’s] feet, towards
his leg.” Defendant quickly responded by pushing Nivens’ gun away, and then fired
two shots in quick succession. Nivens collapsed to the ground and everyone, including
Defendant, ran away. Butler walked to Nivens as he lay on the sidewalk. She took
his gun and carried it away.
On 26 April 2022, an arrest warrant was issued for Defendant for murder. On
5 July 2022, the grand jury indicted Defendant for first-degree murder. The case
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came on for trial during the 30 September 2024 session of Union County Superior
Court.
The State presented evidence, including testimony from the police officers who
responded to the scene, Nivens’ mother, the medical examiner, and officers from the
department of corrections.
Defendant also presented testimony and evidence supporting his claim of selfdefense. Homero Andrade, an investigator for the Union County Public Defender’s
Office District 30 and Detective Mayer with Monroe Police Department both testified
regarding their previous interactions with the eyewitness, Butler. Butler made
herself unavailable by refusing to testify despite being under subpoena. However,
Defendant was able to introduce previously recorded testimony from her interview
with Detective Mayer. Additionally, Defendant introduced testimony from Robert
Young, a participant in the video shoot, and Williams, the producer of the video shoot,
both of whom were witnesses to the events surrounding the shooting. Defendant did
not testify.
On 8 October 2024, the jury found Defendant guilty of first-degree murder.
The trial court sentenced Defendant to life without the possibility of parole.
Defendant gave oral notice of appeal in open court after sentencing.
II. Issues
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Defendant argues the trial court erred by: (1) omitting the stand-your-ground
or no-duty-to-retreat instructions, (2) admitting the Monroe Housing Authority
security video, and (3) admitting Defendant’s writings.
III. Jurisdiction
Defendant appeals from a final judgment of the trial court pursuant to N.C.
Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2025).
IV. Jury Instructions
Defendant argues he presented evidence of self-defense and the trial court had
agreed to instruct the jury on self-defense under the pattern jury instructions in
N.C.P.I.—Crim. 206.10 during the charge conference. However, when instructing the
jury, the trial court omitted the “no duty to retreat” language of N.C.P.I.—Crim.
206.10 without notice to the parties and did not give any of N.C.P.I.—Crim. 308.10,
the “stand-your-ground” instruction. Defendant concedes he did not object to the jury
instructions at trial but contends this deviation from an agreed-upon instruction is
preserved as a matter of law and constitutes reversible error.
A. “No Duty to Retreat” and “Stand Your Ground”
“It is fundamental that a jury must be properly instructed on the law.” State
v. Phillips, 386 N.C. 513, 525, 905 S.E.2d 23, 32 (2024). Our statutes provide two
circumstances in which an individual’s use of deadly force is justified, thereby
excusing the individual from criminal liability. N.C. Gen. Stat. § 14-51.3 provides:
(a) A person is justified in using force, except deadly force,
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Opinion of the Court
against another when and to the extent that the person
reasonably believes that the conduct is necessary to
defend himself or herself or another against the other’s
imminent use of unlawful force. However, a person is
justified in the use of deadly force and does not have a
duty to retreat in any place he or she has the lawful right
to be if either of the following applies:
(1) He or she reasonably believes that such force is
necessary to prevent imminent death or great bodily
harm to himself or herself or another.
(2) Under the circumstances permitted pursuant to
G.S. 14-51.2.
N.C. Gen. Stat. § 14-51.3(a) (2025) (emphasis supplied).
Under Section 14-51.2:
(b) The lawful occupant of a home, motor vehicle, or
workplace is presumed to have held a reasonable fear of
imminent death or serious bodily harm to himself or
herself or another 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, motor vehicle, or workplace, or if that person
had removed or was attempting to remove another
against that person’s will from the home, motor
vehicle, or workplace.
(2) The person who uses defensive force knew or had
reason to believe that an unlawful and forcible entry
or unlawful and forcible act was occurring or had
occurred.
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N.C. Gen. Stat. § 14-51.2 (b) (2025) (emphasis supplied).
“The relevant distinction between the two statutes is that a rebuttable
presumption arises that the lawful occupant of a home, motor vehicle, or workplace
reasonably fears imminent death or serious bodily harm when using deadly force at
those locations under the circumstances in N.C.G.S. § 14-51.2(b). This presumption
does not arise in N.C.G.S. § 14-51.3(a)(1).” State v. Lee, 370 N.C. 671, 675, 811 S.E.2d
563, 566 (2018).
Evidence was presented tending to show the victim had been consuming
alcohol and was yelling obscenities at the crowd, the crowd had moved to a different
location to get away from the victim, Rat Dawg and Defendant appeared to be trying
to de-escalate the situation, the victim displayed and was armed with a handgun, and
the victim drew and fired his weapon first. The trial court specifically asked and the
parties agreed no evidence was presented in this case tending to show Defendant was
in his home, motor vehicle or workplace during the shooting. The relevant and
applicable statute is N.C. Gen. Stat. § 14-51.3(a) (2025).
The trial court and parties agreed the jury would be instructed on the pattern
jury instruction N.C.P.I.—Crim. 206.10 (“First Degree Murder Where a Deadly
Weapon Is Used, Covering All Lesser Included Homicide Offenses and Self Defense”).
The pattern instruction states in pertinent:
Furthermore, the defendant has no duty to retreat in a
place where the defendant has a lawful right to be. (The
defendant would have a lawful right to be in the
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defendant’s [home] [own premises] [place of residence]
[workplace] [motor vehicle].)
NOTE WELL: The preceding parenthetical should only be
given where the place involved was the defendant’s [home]
[own premises] [place of residence] [workplace] [motor
vehicle].
N.C.P.I.—Crim. 206.10 (footnotes omitted). This section of the pattern instruction
contains footnote number 7, which states “See N.C.P.I.—Crim. 308.10.”
N.C.P.I.—Crim. 308.10 is entitled “Self-Defense, Retreat – Including Homicide
(to Be Used Following Self-Defense Instructions Where Retreat Is in Issue).” The
pattern instruction states:
NOTE WELL: This instruction is to be used if the evidence
shows that the defendant was at a place where the
defendant had a lawful right to be, including the
defendant’s own home or premises, the defendant’s place of
residence, the defendant’s workplace, or in the defendant’s
motor vehicle, when the assault on the defendant occurred.
If the defendant was not the aggressor and the defendant
was [in the defendant’s own home] [on the defendant’s own
premises] [in the defendant’s place of residence] [at the
defendant’s workplace] [in the defendant’s motor vehicle]
[at a place the defendant had a lawful right to be], the
defendant could stand the defendant’s ground and repel
force with force regardless of the character of the assault
being made upon the defendant. However, the defendant
would not be excused if the defendant used excessive force.
N.C.P.I.—Crim. 308.10 (footnotes omitted).
B. Preservation of Error
The unique facts of this case present a challenge where the record is unclear
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as to whether the issue was preserved for our review. The parties orally agreed the
jury would be instructed on N.C.P.I.—Crim. 206.10. The trial court informed the
parties, “I’ve made some edits” to the pattern jury instructions, and stated:
I’m going to get the clerk to print out five copies so I have
one and the four of you all can look back through it. I’m
going to go back through my list. I’ve already started
working on the other non-substantive charges. So if ya’ll
don’t mind looking through the proposed substantive and
I’ll look through my list and then I’ll read those out.
Defense counsel then informed the trial court he had reviewed the proposed
instructions and had no objections. The trial court addressed the other instructions
and indicated proposed instructions were being emailed to counsel for their review.
Defense counsel objected to the State’s request for a flight instruction, but he did not
object to or request additional instructions. The trial court emailed the revised and
compiled jury instructions to counsel and provided defense counsel and the State with
a printed copy. Defense counsel requested a moment to review the instructions before
noting his approval.
The trial court’s instructions actually provided to the jury did not contain the
portion of N.C.P.I.—Crim. 206.10, which states “the defendant has no duty to retreat
in a place where the defendant has a lawful right to be.” The instructions also did
not include N.C.P.I.—Crim. 308.10, the “stand your ground” instruction incorporated
by N.C.P.I.—Crim. 206.10. (“if the defendant was not the aggressor and the defendant
was . . . [at a place the defendant had a lawful right to be,] the defendant could stand
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the defendant’s ground and repel force with force.”) Following the jury charge, the
trial court asked defense counsel whether he had any issues with the instructions the
court read. He responded that he did not.
“It is fundamental that a jury must be properly instructed on the law.” State
v. Phillips, 386 N.C. 513, 525, 905 S.E.2d 23, 32 (2024). However, it is also well settled
if a defendant fails to object to the trial court’s instructions, he has failed to preserve
the issue for appellate review. N.C. R. App. P. 10(a)(2); State v. Crisp, 281 N.C. App.
127, 129, 867 S.E.2d 399, 401 (2021).
Defendant concedes he failed to object to the jury instructions provided at trial.
He also does not argue for plain error review on appeal. “Defendant’s failure to object
during the charge conference or after the instructions were given to the jury, along
with his express agreement during the charge conference and after the instructions
were given to the jury, constitutes invited error. His invited error waives any right
to appellate review, including plain error review.” State v. Hooper, 279 N.C. App. 451,
455, 864 S.E.2d 376, 378-79 (2021) (emphasis original).
In State v. White, our Supreme Court examined defense counsel’s involvement
in jury instructions provided in a death penalty case. Id. 349 N.C. 535, 508 S.E.2d
253 (1998). The Court held:
Counsel . . . did not object when given the opportunity
either at the charge conference or after the charge had been
given. In fact, defense counsel affirmatively approved the
instructions during the charge conference. Where a
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defendant tells the trial court that he has no objection to
an instruction, he will not be heard to complain on appeal.
Id. at 570, 508 S.E.2d at 275 (citing State v. Wilkinson, 344 N.C. 198, 213, 474 S.E.2d
375, 396 (1996)). “A defendant is not prejudiced by the granting of relief which he
has sought or by error resulting from his own conduct.” N.C. Gen. Stat. § 15A-1443(c)
(2025).
Defendant argues the purported deviation from a purportedly agreed-upon
instruction is preserved as a matter of law and constitutes reversible error to award
a new trial. Defendant relies on our Supreme Court’s decisions in State v. Bass, 371
N.C. 535, 819 S.E.2d 322 (2018) and State v. Lee, 370 N.C. 671, 811 S.E.2d 563 (2018).
When reviewing errors in self-defense jury instructions, our Supreme Court in
Bass held, “it is clear that a defendant entitled to any self-defense instruction is
entitled to a complete self-defense instruction, which includes the relevant standyour-ground provision.” Bass, 371 N.C. at 542, 819 S.E.2d at 326 (emphasis in
original). Furthermore, “[pre]suming defendant was entitled to a self-defense
instruction, [and] the trial court erred in omitting the relevant stand-your-ground
language . . . [it follows] Defendant is entitled to a trial with complete and accurate
jury instructions.” Id.
In Lee, the trial court, like in this case, agreed to instruct the jury on N.C.P.I.—
Crim. 206.10, but “ultimately omitted the ‘no duty to retreat’ language of N.C.P.I.—
Crim. 206.10 from its actual instructions without prior notice to the parties and did
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not give any part of the ‘stand-your-ground’ instruction.” Lee, 370 N.C. at 673, 811
S.E.2d at 565 (emphasis supplied); See also, State v. Irabor, 262 N.C. App. 490, 493,
822 S.E.2d 421, 423 (2018) (The trial court also agreed to instruct the jury on selfdefense under N.C.P.I.—Crim. 206.10, but it “omitted the ‘no duty to retreat’
language . . . without prior notice to the parties and also failed to give any part of the
‘stand-your-ground’ instruction.” (emphasis supplied)).
The Court in Lee concluded because the trial court had “erroneous[ly]
deviat[ed]” from an agreed upon jury instruction, regardless of the defendant’s failure
to object, the issue was preserved for full review on appeal. Lee, 370 N.C. at 676, 811
S.E.2d at 567. This Court came to the same conclusion in Irabor, 262 N.C. App. at
496, 822 S.E.2d at 425.
The facts of this case are distinguished from those present in both Lee and
Irabor. Here, the record shows the parties had ample time to review, in advance and
in writing, the instructions the trial court intended to give the jury. The record does
not disclose whether the reviewed and agreed-upon instructions deviated from the
actual instructions given to the jury. The instructions distributed to the parties for
review prior to the jury charge are not included in the record. It is Defendant’s burden
to ensure the record contains the documents and exhibits “necessary for an
understanding of all issues presented on appeal.” N.C. R. App. P. 9(3)(e).
We cannot discern whether Defendant had “prior notice” of the instructions to
be given to the jury, or whether those instructions in fact deviated from the pattern
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jury instructions. Lee, 370 N.C. at 673, 811 S.E.2d at 565; Irabor, 262 N.C. App. at
493, 822 S.E.2d at 423. If the record had shown the approved proposed jury
instructions the parties reviewed contained the “no-duty to retreat” and “stand-yourground” provisions, then Lee and Irabor may have controlled to award Defendant a
new trial. Id.
The record before us is silent on whether the trial court had excluded the “noduty to retreat” and “stand your ground” language in its written instructions prior to
defense counsel’s review and acceptance during the charge conference. Thus,
Defendant must argue plain error to permit this Court’s review of the purported
error, which Defendant has not done. If the written and reviewed instructions
deviated from the oral instructions to the jury, questions could logically be raised
regarding invited error, waiver, and ineffective assistance of counsel (“IAC”).
On the record before us, we cannot presume that no deviations occurred and
then hold Lee and Irabor automatically control to award Defendant a new trial. The
record is silent on whether Defendant had prior notice of or had agreed to the
erroneous instructions. Defendant has not argued plain error, and we are without
jurisdiction to review the purportedly omitted instructions for error. See State v.
Leopard, 300 N.C. App. 199, 205, 920 S.E.2d 390, 394 (2025) (“In the absence of an
objection at trial, jury instructions may be challenged on appeal only for plain error,
and the defendant must specifically and distinctly argue plain error on appeal.”
(citation and quotation marks omitted)).
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Our dissenting colleague cites this Court’s recent decision in State v. Miller,
COA25-525 (N.C. App. Sept. 16, 2026). In Miller, the defendant argued the trial court
committed both structural and plain error by instructing the jury the defendant “had
the burden to prove ‘beyond a reasonable doubt’ its theory of third-part guilt via
recent possession.” Miller, slip op. at 40. During the charge conference, the trial
court distributed to the parties a copy of the proposed jury instructions. Id. at 42.
The court noted it had made one change to the proposed instructions. Id. Defense
counsel had no objection to that change but wished to “mark what [he] had submitted
yesterday” to “make the record complete.” Id. The court marked the modified jury
instruction defense counsel provided to the court as Exhibit 14. Id.
The State argued the defendant had waived appellate review of the jury
instruction because his counsel had invited the error. Id. at 41. Defendant’s modified
jury instruction, Exhibit 14, was not included in the Record on Appeal, nor could the
clerk of Clerk of Superior Court of Pender County locate a copy. Id. at 43. We noted,
“[a]lthough it is clear that defense counsel agreed to substitute a word in a different
part of the proposed instruction, it remains unclear whether defense counsel’s
modified jury instruction or the trial court’s proposed jury instruction placed the
burden of proof on Defendant. Consequently, this Court is unable to definitively
conclude that Defendant invited this error.” Id. at 43.
Because neither party in Miller, nor the Clerk of Court, was able to produce
Exhibit 14 on appeal and this Court was “unable to definitively conclude that [the
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defendant] invited [the] error,” it was discretionarily determined “[i]n the interest of
justice, we assume [the defendant] did not invite this error, and we [would] consider
[the defendant’s] arguments.” Id.
In Miller, the defendant distinctly argued for plain error review. See Leopard,
300 N.C. App. at 205, 920 S.E.2d at 394. Defense counsel took the appropriate steps
to ensure the modified jury instruction was included as an exhibit in the record, but
the document was apparently lost. The facts created a scenario where fairness
required our requested plain error review of Defendant’s argument. Id. Here
Defendant did not include the instructions purportedly different from what was
provided without objection and did not seek plain error review.
Where the record does not permit us to discern whether Defendant had notice
of the erroneous instruction and he did not argue plain error, this issue is
unpreserved and properly dismissed. “Where a defendant tells the trial court that he
has no objection to an instruction, he will not be heard to complain on appeal.” White,
349 N.C. at 570, 508 S.E.2d at 275 (citing State v. Wilkinson, 344 N.C. 198, 213, 474
S.E.2d 375, 396 (1996)).
This issue is dismissed without prejudice for Defendant’s opportunity to file a
Motion for Appropriate Relief in the trial court. See, e.g., State v. Fair, 354 N.C. 131,
166, 557 S.E.2d 500, 524-25 (2001) (“IAC claims brought on direct review will be
decided on the merits when the cold record reveals that no further investigation is
required, i.e., claims that may be developed and argued without such ancillary
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Opinion of the Court
procedures as the appointment of investigators or an evidentiary hearing. This rule
is consistent with the general principle that, on direct appeal, the reviewing court
ordinarily limits its review to material included in the record on appeal and the
verbatim transcript of proceedings, if one is designated.” (citations and quotation
marks omitted)).
If Defendant chooses to file an MAR, the appropriate procedure is for the lower
court to determine whether defense counsel was provided “prior notice” of the
instructions the trial court gave the jury, which omitted the “no duty to retreat” and
“stand-your-ground” language. If the inquiry reveals defense counsel did have “prior
notice” and agreed to the instructions, Defendant is without prejudice to assert an
IAC claim, if he so desires. If defense counsel was without “prior notice” these
provisions were to be eliminated from the instructions actually given to the jury, the
lower court should proceed with the analysis set forth in Lee and Irabor. Until the
instructions provided are reviewed and that factual determination is made, we are
merely speculating whether the trial court deviated from the instructions it
previously had provided to counsel.
We reiterate “it is clear that a defendant entitled to any self-defense instruction
is entitled to a complete self-defense instruction, which includes the relevant standyour-ground provision.” Bass, 371 N.C. at 542, 819 S.E.2d at 326 (emphasis in
original).
V. Admission of Security Camera Footage
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Defendant argues the trial court erred by admitting into evidence surveillance
camera footage from Monroe Housing Authority (“MHA”) Camera Three, and asserts
it was not properly authenticated and was irrelevant and misleading. We disagree.
A. Standard of Review
“A trial court’s determination as to whether a document has been sufficiently
authenticated is reviewed de novo on appeal as a question of law.” State v. Hicks, 243
N.C. App. 628, 638, 777 S.E.2d 341, 348 (2015) (citation omitted). “Under a de novo
review, the court considers the matter anew and freely substitutes its own judgment
for that of the lower tribunal.” Id. at 639, 777 S.E.2d at 348. (citation omitted).
B. Analysis
The State offered four video exhibits from the motion-activated security
cameras on the MHA property where the shooting took place. State’s Exhibits 4 and
5 are videos from MHA Camera Three. The video in Exhibit 4 is six minutes and 47
seconds long. The video in Exhibit 5 is a shorter, “zoomed” in, version of Exhibit 4.
It begins when the crowd of young people has already moved to the second parking
lot, but before Nivens approaches them. It ends after Nivens has been shot, and
shows Butler approach his body, remove the gun, and walk away.
The video footage freezes repeatedly. It freezes for the six seconds immediately
before the shooting and the six seconds after it. The video skips over portions of
recording. It skips throughout the footage of the actual shooting, and only one second
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Opinion of the Court
of the thirteen seconds of the shooting is recorded. The portion of the video missing
is the part that would have shown who drew their weapon first.
Detective Corey Helms testified during voir dire he was familiar with the
“security cameras and video surveillance system that are operated by the [MHA] in
the area around where the homicide occurred.” The Monroe Police Department has
direct access to MHA’s camera footage. Detective Helms described how the security
camera system worked and how he had accessed the videos. He further testified the
videos cannot be altered. He did not explain or know why the video repeatedly
skipped or froze.
Rule 901(a) requires that evidence be authenticated by showing “that the
matter in question is what its proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a)
(2025). Rule 901(b) lists ten examples of authentication that meet the requirements
of subsection (a). N.C. Gen. Stat. § 8C-1, Rule 901(b) (2025). “‘Recordings such as a
tape from an automatic surveillance camera can be authenticated as the accurate
product of an automated process’ under Rule 901(b)(9).” State v. Snead, 368 N.C. 811,
814, 783 S.E.2d 733, 736 (2016) (quoting 2 Kenneth S. Broun et al., McCormick on
Evidence § 216, at 39-40 (7th ed. 2013)). “Evidence that the recording process is
reliable and that the video introduced at trial is the same video that was produced by
the recording process is sufficient to authenticate the video and lay a proper
foundation for its admission as substantive evidence.” Id. (citations omitted).
“[G]aps in coverage of video surveillance recordings do not necessarily render
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the recording process unreliable for the purpose of authentication. A gap in footage
does not indicate the video is not ‘what it purports to be.’” State v. Butler, 929 S.E.2d
82, 95 (N.C. Ct. App. 2026) (quoting Snead, 368 N.C. at 815, 783 S.E.2d at 737). “The
video footage which was actually recorded still may constitute relevant,
authenticated, and admissible evidence, with any gaps more properly affecting the
weight assigned to the video by the finder of fact.” Id. Gaps in footage, even at critical
moments, more properly impact the weight of the evidence, not its admissibility. Id.
The gaps and freezes in video coverage do not render it unproperly
authenticated, unreliable or misleading. This argument is overruled. Id.
VI. Defendant’s Writings
Defendant argues the trial court erred by admitting rap lyrics Defendant wrote
in jail awaiting trial because they were irrelevant and unfairly prejudicial. We
disagree.
A. Standard of Review
[W]hen analyzing rulings applying Rules 404(b) and 403,
we conduct distinct inquiries with different standards of
review. We review de novo the legal conclusion that the
evidence is, or is not, within the coverage of Rule 404(b).
Under a de novo review, the court considers the matter
anew and freely substitutes its own judgment for that of
the lower tribunal.
We then review the trial court’s Rule 403 determination for
abuse of discretion. A trial court may be reversed for an
abuse of discretion only upon a showing that its ruling was
so arbitrary that it could not have been the result of a
reasoned decision.
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State v. Jones, 288 N.C. App. 175, 179-80, 884 S.E.2d 782, 788 (2023) (internal
citations and quotation marks omitted). “When the admission of the same evidence
is challenged based on both Rules 404(b) and 403, we review the evidence on 404(b)
grounds first before turning to Rule 403.” Id. at 179, 884 S.E.2d at 788.
B. Analysis
The State’s theory at trial asserted Defendant had killed Nivens as retribution.
Defendant’s brother, Jaquavious “Quay” Allen, who had been murdered on 1 August
2021. Robert Ashcraft was arrested for the murder. Nivens and Ashcraft were first
cousins and were known to associate together.
Defendant wrote in a composition notebook during his time in jail awaiting
trial. In the notebook he wrote a number of passages, which appear to be rap lyrics.
The State presented evidence tending to show references to both Quay and Nivens in
the lyrics. The State introduced the extensive lyrics as evidence at trial to support
its theory.
This Court has held rap lyrics may be “relevant to establish identity, motive,
and intent, and their probative value [may] substantially outweigh [] their prejudicial
effect to defendant.” State v. Hayes, 239 N.C. App. 539, 556, 768 S.E.2d 636, 647
(2015). The lyrics contained in Defendant’s notebook are relevant to support the
State’s theory of motive and intent. Id.; N.C. Gen. Stat. § 8C-1, Rule 404(b) (2025).
Although the lyrics contain extensive references to violence and shooting,
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Defendant has not shown the trial court abused its discretion in determining
probative value of the relevant lyrics to support the State’s theory was “substantially
outweighed by the danger of unfair prejudice.” N.C. Gen. Stat. § 8C-1, Rule 403
(2025). This argument is overruled.
VII. Conclusion
The record before us fails to show Defendant preserved his argument regarding
the trial court’s failure to give the jury a complete and legally sufficient self-defense
jury instruction. This argument is dismissed without prejudice for Defendant to file
a MAR in the trial court under the standards above.
Defendant has failed to show error or prejudice in the trial court’s discretion to
admit the security video footage and Defendant’s lyrics and writings. It is so ordered.
DISMISSED IN PART WITHOUT PREJUDICE; AND NO ERROR IN PART.
Judge Flood concurs.
Judge Wood dissenting with separate opinion.
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WOOD, Judge, dissenting.
I respectfully dissent from the majority opinion dismissing without prejudice
the self-defense jury instruction issue for the opportunity to file an MAR. I agree
with the majority’s recitation of the facts and discussion of the relevant self-defense
statutes and corresponding jury instructions. However, I disagree with the majority’s
assertion that the record before us does not permit us to determine whether the selfdefense issue is preserved for appellate review. The record before us is sufficient for
us to determine the trial court erred by omitting portions of the agreed upon jury
instruction for self-defense. Accordingly, I would reverse and remand for a new trial.
“It is fundamental that a jury must be properly instructed on the law.” State v.
Phillips, 386 N.C. 513, 525, 905 S.E.2d 23, 32 (2024). Our Supreme Court has
consistently held,
a request for an instruction at the charge conference is
sufficient compliance with Rule 10(b)(2) of the North
Carolina Rules of Appellate Procedure to warrant our full
review on appeal where the requested instruction is
subsequently promised but not given, notwithstanding any
failure to bring the error to the trial judge’s attention at the
end of the instructions.
State v. Withers, 179 N.C. App. 249, 255, 633 S.E.2d 863, 867 (2006) (quoting State v.
Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988)).
In State v. Lee, “the trial court agreed to deliver the pattern jury instruction on
first-degree murder and self-defense, N.C.P.I.–Crim. 206.10,” the same instruction at
issue in this case. State v. Bass, 371 N.C. 535, 542, 819 S.E.2d 322, 326 (2018)
STATE V. BARRINO
WOOD, J., dissenting
(discussing State v. Lee, 370 N.C. 671, 673, 811 S.E.2d, 563 565 (2018)). The correct
instruction within N.C.P.I.–Crim. 206.10, when a defendant presents evidence of selfdefense, states, in pertinent part, “the defendant has no duty to retreat in a place
where the defendant has a lawful right to be.” Lee, 370 N.C. at 673, 811 S.E.2d at
565. It also incorporates by reference the pattern jury instruction on “Self-Defense,
Retreat,” N.C.P.I.–Crim. 308.10, which states that “if the defendant was not the
aggressor and the defendant was at a place the defendant had a lawful right to be,
the defendant could stand the defendant’s ground and repel force with force.” Id.
(cleaned up). The trial court failed to include these portions of N.C.P.I.–Crim. 206.10
despite Defendant having raised evidence of self-defense and the stand-your-ground
instructions being pertinent to his defense. Our Supreme Court has held failure to
instruct as agreed is an “erroneous deviation” and is preserved for review. Id. at 676,
811 S.E.2d at 567. This Court addressed this same issue in State v. Irabor, 262 N.C.
App. 490, 496, 822 S.E.2d 421, 425 (2018).
The case sub judice presents the same issue raised in Lee and Irabor. During
the charge conference, the trial court engaged with both parties regarding the jury
instructions; Defendant requested, and everybody agreed N.C.P.I.–Crim. 206.10 was
the correct pattern jury instruction.
THE COURT: Okay. Mr. Covington, as far as a starting
point for the substantive charge?
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STATE V. BARRINO
WOOD, J., dissenting
DEFENSE: So your Honor, we were looking at -- your
Honor, we were looking at 206. - - I’ve lost the place now.
First degree murder including all lesser offenses and self
defense.
STATE: That’s 10.
THE COURT: So we’re all three on the same page as far as
206.10 being the correct outline?
DEFENSE: Yes, your Honor.
After confirming everyone’s agreement on N.C.P.I.–Crim. 206.10, the trial court went
on to ask questions about the substantive instruction.
THE COURT: All right. Let’s see. Let me just kind of go
through the pattern instruction as it is. Are both sides in
agreement that this didn’t occur in the Defendant’s home,
place of residence, workplace or motor vehicle; State?
STATE: That it didn’t?
THE COURT: Did not.
STATE: Correct.
THE COURT: Mr. Covington, y’all agree?
DEFENSE: Yes.
The trial court then went on to discuss which of the five lesser included offenses listed
in N.C.P.I.–Crim. 206.10 should be included. Both parties agreed the instructions on
involuntary manslaughter were unnecessary; however, the State argued voluntary
manslaughter also did not apply. Defendant argued it did:
DEFENSE: Yes, your Honor. We believe [voluntary
manslaughter] should be included because the jury could
find that there was imperfect self defense exercised here.
3
STATE V. BARRINO
WOOD, J., dissenting
There is a distinction to be made between being the
aggressor with murderous intent and the aggressor
without murderous intent. It would be possible for the jury
to find that [Defendant] was the initial aggressor in
approaching Mr. Nivens from across the street but that he
was not the aggressor with murderous intent.
And the belief that [Defendant] felt it necessary to kill Mr.
Nivens in order to defend himself, we’ve put on evidence
that the victim was armed with a firearm, he was seen
brandishing the firearm and we even had evidence that not
only did he draw the firearm but he fired the first shot.
And your Honor has seen the video evidence that’s been
introduced, it’s a very, very, quick interaction. And this
was a situation where it was either [Defendant] or Mr.
Nivens and [Defendant] clearly would have felt the need to
defend himself in that situation.
THE COURT: So let me do this, let me just back up one
second. It sounds like both sides are - - don’t let me speak
for you, but both sides are in agreement that at least the
first prong of voluntary manslaughter in terms of the heat
of passion argument, that’s not relevant for this case; is
that correct?
STATE: Yes, sir.
THE COURT: All right, Mr. Covington, do y’all agree with
that as far as that prong?
DEFENSE: There’s no evidence of it.
Our review of the transcript tends to show that the trial court made the discussed
edits in real time and indicated it would print copies for counsel to review
immediately.
THE COURT: So let me take that one out. Okay. All right.
So let me ask both sides this now, I’ve made some edits.
And what I’ll do is I’ll get the clerk to print out copies here
shortly but the State’s position on the component of the
4
STATE V. BARRINO
WOOD, J., dissenting
instruction for aggressors, let me make sure I understand
that, as far as leaving it in or excluding it?
STATE: Your Honor, I think any part of this instruction
where there is reference to aggressor needs to be included.
THE COURT: Mr. Covington, y’all have a position on that?
DEFENSE: I mean, I’m not sure exactly which part you’re
referring to but I think that the jury could find that
[Defendant] was the aggressor with murderous intent, they
could find that he was aggressor without murderous intent
or they could find that he was not the aggressor. So I think
the jury needs to be instructed as the same.
THE COURT: That’s what I thought, I just wanted to make
sure. So I am going to leave those instructions in.
At the end of the discussion on the substantive instruction, the trial court stated:
THE COURT: I’m going to get the clerk to print out five
copies so I have one and the four of you all can look back
through it. I’m going to go back through my list. I’ve
already started working on the other non-substantive
charges. So if y’all don’t mind looking through the proposed
substantive and I’ll look through my list and then I’ll read
those out.
Do y’all want to approach, I have at least two copies and
what I’ll do is e-mail y’all a copy, that way y’all can pull it
up. If y’all will just let me know when you’re ready to be
heard on that.
The transcripts do not indicate there was any prolonged break during which
the trial court would have made additional changes to the substantive instructions
before counsel reviewed them.
DEFENSE: We’ve reviewed the proposed instructions.
THE COURT: Okay. Mr. Covington, what from the
5
STATE V. BARRINO
WOOD, J., dissenting
Defense, if anything, on the proposed instruction?
DEFENSE: Your Honor, we have no objection to the
proposed instruction.
THE COURT: Okay. All right.
STATE: I have no objection.
THE COURT: So both the State and the Defense are fine.
Again, this is just the substantive charge, both of y’all are
fine with that?
DEFENSE: Yes.
The trial court proceeded to discuss the general non-substantive instructions and
then stated, “[l]et me combine these two and I’ll e-mail a copy and I’ll have three
printed out as well. I e-mailed a copy. Did y’all receive it?” Counsel both received the
e-mailed instructions and made one additional edit to the verdict sheet. The trial
court asked them to review the instructions over lunch. Neither the transcripts nor
the record indicate any changes were made following lunch.
The State contends, and the majority agrees, that Defendant is entitled only to
plain error review because he did not object to the instructions at trial. However,
they overlook the fact that the trial court specifically agreed to instruct the jury on
N.C.P.I.–Crim. 206.10. The State argues this case is distinguishable from Lee
because in an apparent reference to the e-mailed and printed copies of the
instructions discussed during the charge conference, “the trial court gave both sides
ample opportunities to review, in writing, the instructions that were to be given.”
While the State further asserts “Defendant does not allege that the actual
6
STATE V. BARRINO
WOOD, J., dissenting
instructions deviated from the agreed upon instructions, only that they deviated from
the pattern jury instructions,” neither the printed copies of the jury instructions nor
the e-mails referenced during the charge conference were entered as exhibits, neither
were they included in the record on appeal. Although it is clear that edits were made
to the pattern jury instructions set forth in N.C.P.I.–Crim. 206.10, nothing in the
transcripts demonstrates that the omission of the relevant self-defense instructions
was an edit upon which the parties agreed.
Notably, the State contends in its brief that Defendant is entitled to plain error
review; however, “a defendant who invites error has waived his right to all appellate
review concerning the invited error, including plain error.” State v. Miller, 289 N.C.
App. 429, 433, 889 S.E.2d 231, 234 (2023) (quoting State v. Crane, 269 N.C. App. 341,
343, 837 S.E.2d 607, 608 (2020)). However, if Defendant had explicitly accepted
erroneous instructions after having had had ample opportunity to review the edited
instructions as the State suggests, this case may be one of invited error as the
majority suggests requiring Defendant to file an MAR for ineffective assistance of
counsel in order to allow for appellate review. In my view, absent any record evidence
to indicate the instructions at issue were omitted in the reviewed and accepted
instructions, we should decline “to apply the invited error doctrine where such specific
and affirmative actions are absent.” Id. Following this logic, we can presume the
instructions provided during the charge conference for review contained the critically
relevant portions of N.C.P.I.–Crim. 206.10 that were later erroneously omitted. See
7
STATE V. BARRINO
WOOD, J., dissenting
Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 488-89, 586 S.E.2d 791, 795 (2003).
To presume otherwise, would be to presume that the trial court prepared incorrect
jury instructions and after having reviewed them, both the State and Defendant
agreed for the trial court to deliver incorrect instructions to the jury.
Rather, in accordance with our Supreme Court’s precedent, we ought to
presume that after everyone had correctly agreed to instruct on N.C.P.I.–Crim.
206.10, the trial court intended to provide the instruction in its entirety, except only
the explicitly agreed upon sections recorded in the above referenced transcript
excerpts. See Bass, 371 N.C. at 542, 819 S.E.2d at 326. Therefore, irrespective of
Defendant’s failure to object, because the trial court “erroneous[ly] deviat[ed]” from
an agreed upon jury instruction the issue is preserved for full review on appeal. Lee,
370 N.C. at 676, 811 S.E.2d at 567; Irabor, 262 N.C. App. at 496, 822 S.E.2d at 425;
see also Withers, 179 N.C. App. at 255, 633 S.E.2d at 867.
When reviewing errors in self-defense jury instructions our Supreme Court has
held, “it is clear that a defendant entitled to any self-defense instruction is entitled to
a complete self-defense instruction, which includes the relevant stand-your-ground
provision.” Bass, 371 N.C. at 542, 819 S.E.2d at 326. Furthermore, “assuming
defendant was entitled to a self-defense instruction, [and] the trial court erred in
omitting the relevant stand-your-ground language . . . [it follows] Defendant is
entitled to a trial with complete and accurate jury instructions.” Id. Relying on our
Supreme Court’s holdings in Lee and Bass, this Court in Irabor held, “[f]ailure to
8
STATE V. BARRINO
WOOD, J., dissenting
include the relevant stand-your-ground provision constitutes prejudicial error and
warrants a new trial. Defendant is entitled to a new trial with proper jury
instructions.” Irabor, 262 N.C. App. at 496, 822 S.E.2d at 425.
Defendant presented eyewitness testimony at trial which tended to
demonstrate that Nivens instigated the confrontation by first yelling profanities at
the music video crowd who then moved away from him. Nivens then followed the
crowd, continued yelling profanities, and also “flashed a pistol.” Defendant then
approached Nivens calmly with his hands empty and, according to the only
eyewitness to the shooting to testify, Defendant did not pull his gun to shoot until
after Nivens pulled his own gun and fired the first shot. The State, Defendant, and
the trial court agreed the evidence entitled Defendant to the instruction in N.C.P.I.–
Crim. 206.10, the instruction on first-degree murder including all lesser offenses and
self-defense. Further, this testimony tends to support Defendant’s argument on
appeal that “it was critical that the jury understand that [Defendant] had a right to
stand his ground and no duty to retreat because they might otherwise assume that
[Defendant] should have retreated after Mr. Nivens pulled his weapon.” Thus, “there
is a reasonable possibility that, had the jury been informed that, because he was
standing on a public sidewalk, [Defendant] had the right to stand his ground and no
duty to retreat, a different result would have been reached at trial.”
Defendant presented evidence of self-defense which entitled him to the selfdefense instruction, and the parties and the trial court agreed on self-defense
9
STATE V. BARRINO
WOOD, J., dissenting
instructions during the charge conference. It is uncontested that the trial court failed
to give the entire self-defense instruction as the trial court omitted the “no duty to
retreat” language of N.C.P.I.–Crim. 206.10 and did not give any of N.C.P.I.–Crim.
308.10, the “stand-your-ground” instruction. Notably, the majority agrees and
reiterated that “it is clear that a defendant entitled to any self-defense instruction is
entitled to a complete self-defense instruction, which includes the relevant standyour-ground provision.” Bass, 371 N.C. at 542, 819 S.E.2d at 326. Failure to provide
the entire jury instruction constitutes prejudicial error and warrants reversal and
remand for a new trial. Id.; Irabor, 262 N.C. App. at 496, 822 S.E.2d at 425.
Consequently, the proper holding is to reverse the trial court’s judgment and remand
for a new trial.
While I do not disagree with the majority that dismissing the issue without
prejudice for the opportunity to file an MAR would allow for the potential review of
the e-mailed instructions and a definitive determination of “whether Defendant had
prior notice of or had agreed to the erroneous instructions,” this avenue creates
additional unnecessary hoops through which Defendant must jump and wastes
precious judicial resources. The requirement that Defendant first return to the trial
court for a factual determination regarding whether defense counsel had prior notice
of the instructions creates an unnecessary procedural hurdle and effectively shifts to
the trial court a determination that is properly the responsibility of the appellate
court. Further, the majority’s instruction that the trial court should engage in a
10
STATE V. BARRINO
WOOD, J., dissenting
review under Lee and Irabor if it determines defense counsel did not have prior
knowledge shifts the responsibility to the trial court to determine whether it erred.
The question presented is whether the trial court erred in the instructions it gave to
the jury after agreeing to give the proper instruction, and that is ultimately a question
for the appellate court to resolve based on the record before it. The transcripts and
record are clear that Defendant requested and the trial court agreed to deliver the
pattern jury instruction on first-degree murder and self-defense, N.C.P.I.–Crim.
206.10. N.C.P.I.–Crim. 206.10 clearly incorporates by reference the pattern jury
instruction on “Self-Defense, Retreat,” N.C.P.I.–Crim. 308.10.
Defendant met his burden to ensure the record on appeal contained all
documents and exhibits necessary for our review of this issue by including an entire
transcript of the proceedings. Our rules of appellate procedure state that the printed
record in a criminal action must contain, in relevant part, the following materials:
e. so much of the litigation, set out in the form provided in
Rule 9(c)(1), as is necessary for an understanding of all
issues presented on appeal, or a statement specifying that
the entire transcript of the proceedings is being filed
pursuant to Rule 9(c)(2), or designating portions of the
transcript to be so filed;
f. where an issue presented on appeal relates to the giving
or omission of instructions to the jury, a transcript of the
entire charge given; and identification of the omitted
instruction by setting out the requested instruction or its
substance in the printed record immediately following the
instruction given;
11
STATE V. BARRINO
WOOD, J., dissenting
i. copies of all other documents filed and statements of all
other proceedings had in the trial courts which are
necessary for an understanding of all issues presented on
appeal unless they appear in another component of the
record on appeal.
N.C. R. App. P. 9(a)(3) (emphasis added). If the State believed the record on appeal
was insufficient to allow review of Defendant’s issue, it could have supplemented the
record to include the e-mailed instructions to support its argument that Defendant
had ample opportunity to review the instructions and was entitled only to plain error
review. N.C. R. App. P. 9(b)(5)(a) (emphasis added) (“If the record on appeal as settled
is insufficient to respond to the issues presented in an appellant’s brief . . . the
responding party may supplement the record on appeal with any items that could
have been included pursuant to this Rule 9.”). While Rule 9 contains numerous items
that could be included in a record on appeal, here, I would hold Defendant has
included all those items required to be in the record on appeal to understand his issue
presented. See N.C. R. App. P. 9(a)(3)(e), (f), (i).
In contrast to this Court’s recent case State v. Miller where the defense entered
the modified jury instructions at issue as an exhibit, here, the e-mailed instructions
were not entered as an exhibit or filed with the trial court. State v. Miller, No. COA25-525 slip op. at *18, __ N.C. App. __, __, __ S.E.2d. __, __ (N.C. App. Sept. 16, 2026).
In Miller, although the transcripts clearly established the jury instructions were
entered as an exhibit, the exhibit was not included in the record on appeal nor was
the charge conference included in the transcript, leaving this Court in a similar
12
STATE V. BARRINO
WOOD, J., dissenting
predicament where it remained unclear whether the reviewed instructions were the
same erroneous instructions as those read to the jury. Id. Despite the fact neither
party in Miller was able to produce the jury instruction exhibit on appeal and this
Court was “unable to definitively conclude that [the defendant] invited [the] error,” it
was determined that “[i]n the interest of justice, we assume [the defendant] did not
invite this error, and we [would] consider [the defendant’s] arguments.” Id. The same
should be done in the case sub judice.
For the reasons stated herein, I conclude the record does not prevent us from
determining Defendant’s jury instruction issue is preserved for full appellate review
and further that the trial court erroneously omitted essential portions of the agreed
upon instructions Defendant was entitled to receive. Therefore, Defendant did not
receive a fair trial free from prejudicial error, and I would reverse and remand for a
new trial.
13