State v. Mack

• Court: Court of Appeals of North Carolina
• Decided: September 2, 2014
• Docket: 13-1173
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1173 NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

STATE OF NORTH CAROLINA

v. Cleveland County Nos. 11 CRS 3314 RAHUL RUMAR MACK, 11 CRS 3315 Defendant.

Appeal by defendant from judgment entered 17 May 2013 by

Judge Nathaniel J. Poovey in Cleveland County Superior Court.

Heard in the Court of Appeals 9 April 2014.

Attorney General Roy Cooper, by Assistant Attorney General Douglas W. Corkhill, for the State.

Glover & Petersen, P.A., by Ann B. Petersen, for defendant- appellant.

GEER, Judge.

Defendant Rahul Rumar Mack appeals from a judgment entered

based upon his convictions of habitual misdemeanor assault on a

female and being a habitual felon. On appeal, defendant

primarily argues that the trial court committed plain error in

instructing the jury that if defendant was the "aggressor" when

he struck the victim, he would not have been acting in self- -2- defense. Based on our review of the transcript, however, we

hold that any error was invited by defendant. Regardless, the

evidence was sufficient to support the "aggressor" portion of

the instruction. We, therefore, find no error.

Facts

The State's evidence tended to show the following facts.

Defendant's mother owns and lives next door to a two-story house

in Shelby, North Carolina ("the house"), which she rents to

several tenants. The house has two apartments on the first

floor and another two apartments on the second floor. On the

first floor, the apartments are separated by an open common area

that also has a staircase leading to the second floor

apartments. The front door to the house opens directly onto the

common area.

On 29 August 2011, defendant was living with his mother

next door. From late afternoon into the evening, defendant was

visiting tenants who were living in the house, including Bonnie

Elliott, Melissa Thompson, Ms. Thompson's fiancé Christopher

Carroll, and Melissa Moore. Ms. Elliott lived in one of the

first floor apartments with Mr. Carroll and Ms. Thompson. Over

the course of the evening, defendant became intoxicated and, at

some point, left the house. -3- Defendant later returned and knocked on the door to the

house. Ms. Elliott answered, and defendant told Ms. Elliott

that he was having trouble getting into his mother's home and

asked if he could sit on the porch steps. Ms. Elliott engaged

defendant in a "calm" and "friendly" conversation on the front

porch of the house for about 15 minutes before Ms. Elliott went

back inside. Defendant later left, and Ms. Elliott returned to

her apartment.

Defendant returned shortly thereafter and again knocked on

the front door to the house. When Ms. Elliott answered,

defendant asked her if he could sit inside on the steps leading

up to the second floor. Ms. Elliott let defendant inside and

went back into her apartment. Defendant was still intoxicated.

Moments later, Ms. Elliott heard defendant yelling at Kashia, a

second floor tenant, outside Ms. Elliott's apartment door.

Defendant was inside the common area while Kashia was just

outside the front door.

Ms. Elliott wanted to confront defendant, but she was

afraid of becoming involved in an altercation with him while he

was intoxicated. She opened her door and asked defendant what

he was doing, and defendant responded that he was telling Kashia

to go upstairs. Defendant then suddenly became angry, started

yelling at Ms. Elliott, and ordered Ms. Elliott back into her -4- apartment. Ms. Elliott took a step toward defendant, although

she did not hit, threaten, or strike him. Defendant then struck

Ms. Elliott's face with his hand and grabbed her by her hair.

Mr. Carroll came out of his apartment and separated defendant

and Ms. Elliott, while Ms. Thompson called the police. Ms.

Elliott went back into the apartment to grab a knife, but Ms.

Thompson would not let her go back outside the apartment.

Within about five minutes, Ms. Elliott's nose began bleeding,

the police arrived, and defendant was arrested.

Defendant was indicted for habitual misdemeanor assault on

a female and being a habitual felon. Defendant presented no

evidence. He did, however, request an instruction on self-

defense, relying upon Ms. Elliott's testimony that when she

confronted defendant, she was already holding either a closed

knife or a stick and that she believed defendant was reacting in

self-defense.

The jury found defendant guilty of assault on a female. He

had previously stipulated to having two prior convictions of

assault on a female, making him guilty of habitual misdemeanor

assault, a felony. Defendant then pled guilty to being a

habitual felon. The trial court sentenced defendant to a

mitigated-range term of 66 to 89 months imprisonment. Defendant

timely appealed to this Court. -5- I

Defendant first argues that the trial court erred in

excluding Ms. Elliott's testimony that she did not want

defendant arrested and also in prohibiting reference to an

affidavit Ms. Elliott signed prior to trial stating that she did

not want defendant prosecuted. The trial court excluded this

evidence under Rule 403 of the Rules of Evidence.

"'The determination of whether relevant evidence should be

excluded under Rule 403 is a matter that is left in the sound

discretion of the trial court, and the trial court can be

reversed only upon a showing of abuse of discretion.'" State v.

Peterson, 179 N.C. App. 437, 460, 634 S.E.2d 594, 612 (2006)

(quoting State v. Lanier, 165 N.C. App. 337, 345, 598 S.E.2d

596, 602 (2004)), aff'd, 361 N.C. 587, 652 S.E.2d 216 (2007).

Further, "[t]his Court will not intervene where the trial court

has properly weighed both the probative and prejudicial value of

the evidence and made its ruling accordingly." State v. Maney,

151 N.C. App. 486, 490, 565 S.E.2d 743, 746 (2002).

Defendant contends that evidence showing that Ms. Elliott

did not want defendant arrested or prosecuted was relevant to

prove "her belief that Defendant Mack was acting in self-

defense." Generally, "[a]ll relevant evidence is admissible,"

N.C.R. Evid. 402, and "'[r]elevant evidence' means evidence -6- having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence." N.C.R.

Evid. 401. However, relevant evidence may nonetheless "be

excluded if its probative value is substantially outweighed by

the danger of unfair prejudice . . . ." N.C.R. Evid. 403.

"'Unfair prejudice,' as used in Rule 403, means an undue

tendency to suggest decision on an improper basis, commonly,

though not necessarily, as an emotional one." State v.

DeLeonardo, 315 N.C. 762, 772, 340 S.E.2d 350, 357 (1986)

(internal quotation marks omitted).

In this case, the trial court allowed Ms. Elliott to

testify that, in her opinion, defendant "snapped." She was also

allowed to testify that after defendant saw her with an object

in her hand, "I guess he thought I was going to come after him

or something I guess. He just reacted to it." She repeated

that "[defendant] reacted to me stepping towards him and hit me

in my face." Following this testimony, defense counsel asked

Ms. Elliott on cross-examination: (1) "Is this a case where you

went down to the magistrate's office and it's a self-initiated

warrant so to speak?" and (2) "At that point in time when you

interacted with the police, did you ask for [defendant] to be -7- arrested?" The State objected to both questions, and the trial

court sustained the objections.

At defense counsel's request, the trial court then held a

voir dire hearing to determine whether defense counsel would be

permitted to reference an affidavit Ms. Elliott had signed in

September 2012 indicating that she had never wanted defendant to

be prosecuted for striking her. The trial court prohibited any

reference to the affidavit and explained that "[i]n a case like

this where you've got basically no eyewitnesses, whether or not

the victim in the case wants to prosecute to me is extremely

prejudicial." Although acknowledging that the evidence could be

relevant, the trial court concluded that "even if [the

affidavit] is relevant, and I contend potentially it is[,]

[i]t's far outweighed under 403 analyses [sic] by the danger of

unfair prejudice."

The trial court explained that the affidavit might cause

the jury to find defendant not guilty simply because Ms. Elliott

did not want defendant arrested or prosecuted, which would be an

improper basis for a verdict. See Martin v. Commonwealth, 260

S.W.2d 663, 665 (Ky. Ct. App. 1953) ("The evidence which

appellant argues the court erred in excluding was the joint

affidavit of the owners of the bakery that they did not desire

the commonwealth attorney to prosecute the case against -8- [defendant]. The court permitted this affidavit to be made a

part of the record, but refused to let it be read to the jury or

to let Mr. Ellison, one of the affiants, be interrogated as to

it. Clearly, the court was correct in excluding the affidavit

as it had no bearing on the guilt or innocence of accused but

only expressed the desire of the owners of the property that he

not be prosecuted.").

We do not believe, in this case, that the trial court was

manifestly unreasonable in determining that the potential unfair

prejudice outweighed any probative value of the evidence. Ms.

Elliott not only provided all of the evidence supporting

defendant's claim of self-defense, but was also allowed to

testify regarding her belief that defendant thought he was

acting in self-defense. Given the admission of that testimony,

the trial court could reasonably conclude that the fact Ms.

Elliott did not seek the arrest of defendant -- the son of her

landlady and apparently someone with whom she was friendly --

was of limited probative value. To the extent that the excluded

testimony suggested that she believed defendant was acting in

self-defense, the evidence was cumulative.

As a result, the trial court reasonably concluded that the

risk that the jury would rely upon the excluded evidence to

decide the case on an improper basis substantially outweighed -9- the evidence's limited probative value. We, therefore, hold

that the trial court did not abuse its discretion when excluding

the evidence. See State v. Owen, 133 N.C. App. 543, 550-51, 516

S.E.2d 159, 165 (1999) (holding that trial court did not abuse

its discretion in excluding relevant evidence under Rule 403,

reasoning that "[t]he record reveals that the trial court

conducted a voir dire hearing suggesting that it carefully

weighed the probative value of the evidence against the danger

of unfair prejudice to defendant" and that excluded evidence was

cumulative).

II

Acknowledging that he failed to object to the jury

instructions given at trial, defendant also argues that the

trial court committed plain error when it instructed the jury

that defendant would not be justified in using self-defense if

he was the "aggressor."

The trial court gave the following instruction:

The right to use force extends only to such force reasonably appearing to the defendant under the circumstances necessary to protect the defendant from bodily injury or offensive physical contact.

. . . .

Furthermore, self-defense is justified only if the defendant was not the aggressor. Justification for defensive force is not present if the person who used defensive -10- force voluntarily entered into the fight or, in other words, initially provoked the use of force against himself.

Defendant contends that the State did not present any evidence

tending to show that he was the aggressor and, therefore, the

aggressor portion of the instruction should have been omitted.

We first address the State's contention that any error

amounted to invited error. Our appellate courts have

"consistently denied appellate review to defendants who have

attempted to assign error to the granting of their own

requests." State v. Wilkinson, 344 N.C. 198, 213, 474 S.E.2d

375, 383 (1996). It is well established that "[t]he defendant

will not be heard to complain on appeal when the trial court has

instructed adequately on the law and in a manner requested by

the defendant." State v. Weddington, 329 N.C. 202, 210, 404

S.E.2d 671, 677 (1991).

During the charge conference defense counsel requested that

the trial court instruct on self-defense. In response to the

trial court's request that he explain why he believed defendant

was entitled to the instruction, defense counsel argued: "The

self-defense instruction, 308.40, we can argue excessive force,

whether or not he was aggressive, whether or not he was

defending himself, but I think that that's a matter of province

for the jury." (Emphasis added.) When the trial court asked -11- whether defense counsel wanted to add anything more, defense

counsel responded: "[The prosecutor] can argue in regards to the

aggressor. She can argue all that in regards to the jury, but

it ought to be a matter for the jury and not the Court and not

exclude self-defense. Given what she said, it should be an

option for the jury to determine." (Emphasis added.)

The trial court granted defendant's request and gave the

pattern jury instruction on self-defense, N.C.P.I., Crim. 308.40

(2013). Then, after the jury was instructed and dismissed to

deliberate, the trial court asked whether either party had any

requests for corrections. Defense counsel replied: "[W]e have

no requests."

Defendant contends that the exchange between his trial

counsel and the trial court constituted "merely a failure to

object" to the "aggressor" language and should not preclude

appellate review. However, in his exchange with the trial

court, defense counsel not only requested the pattern jury

instruction, but also twice argued to the trial court that

whether defendant was the aggressor was a question of fact to be

resolved by the jury. Counsel's argument was more than just a

mere failure to object, and, therefore, we conclude that

defendant invited any error and has waived appeal of this issue.

See State v. Basden, 339 N.C. 288, 302-03, 451 S.E.2d 238, 246 -12- (1994) ("Defendant in this case not only did not object to the

challenged instruction, but in fact, requested it and stated he

was satisfied with it. . . . Having invited the error,

defendant cannot now claim on appeal that he was prejudiced by

the instruction."); State v. McPhail, 329 N.C. 636, 643-44, 406

S.E.2d 591, 596 (1991) ("The defendant made no request for

modification of the pattern jury instruction; in fact, he

specifically requested the exact language of the charge that was

given. . . . Since he asked for the exact instruction that he

now contends was prejudicial, any error was invited error.").

Nonetheless, even if the issue were properly before us, we

would hold that the trial court did not err in giving the

"aggressor" portion of the self-defense instruction. Defendant

does not dispute that the pattern jury instruction properly

states the law of self-defense when it instructs that an

aggressor is not entitled to rely upon self-defense. See, e.g.,

State v. Poland, 148 N.C. App. 588, 597, 560 S.E.2d 186, 192

(2002) (holding that "[a]n aggressor is not entitled to the

defense [of self-defense]").

This Court has explained that, "[b]roadly speaking, the

defendant can be considered the aggressor when [he]

'aggressively and willingly enters into a fight without legal

excuse or provocation.'" State v. Vaughn, ___ N.C. App. ___, -13- ___, 742 S.E.2d 276, 279 (2013) (quoting State v. Wynn, 278 N.C.

513, 519, 180 S.E.2d 135, 139 (1971)). Our Supreme Court has

held that "[a] person is considered to be an aggressor under

this rule whenever he has wrongfully assaulted another or

committed a battery upon him or when he has provoked a present

difficulty by language or conduct towards another that is

calculated and intended to bring it about." State v. Potter,

295 N.C. 126, 144 n.2, 244 S.E.2d 397, 409 n.2 (1978) (internal

quotation marks omitted).

Here, it is undisputed that when Ms. Elliott stepped out of

her apartment, she interrupted defendant, while he was yelling

at another tenant, to ask what defendant was doing. Ms. Elliott

testified that when defendant saw her, "[h]e got angry . . .

[and] yelled at me and told me to go back into my apartment."

When Ms. Elliott ignored the order and took one step toward

defendant, defendant, according to Ms. Elliott, "snapped."

Although Ms. Elliott testified that she did not hit or threaten

defendant, defendant struck Ms. Elliott's face and then grabbed

her by the hair. Further, another witness, Ms. Thompson,

testified that Ms. Elliott retreated into the apartment to grab

a knife only after defendant struck her. A jury could have

inferred from this that Ms. Elliott either held only a stick in

her hand or nothing at all when she stepped toward defendant. -14- Based on this evidence, a jury could have reasonably

concluded that defendant "'provoked'" the conflict with Ms.

Elliott "'by language or conduct towards'" her that was

"'calculated and intended to bring it about.'" Id. (quoting

State v. Crisp, 170 N.C. 785, 791, 87 S.E. 511, 514 (1916)).

See also State v. Effler, 207 N.C. App. 91, 98, 698 S.E.2d 547,

552 (2010) ("The evidence presented at trial establishes that

defendant was the aggressor. All relevant testimony tends to

show that [the victim] did not initiate the altercation. [The

victim] emerged from behind defendant's trailer only after

defendant threw [the victim's] tools into the yard along with

expletive-laden remarks."); State v. Skipper, 146 N.C. App. 532,

539, 553 S.E.2d 690, 694 (2001) (holding trial court properly

refused to instruct on self-defense when there was "simply no

evidence in the record which would support an inference that

defendant did not enter into the altercation with [the victim]

voluntarily" given that testimony at trial "was consistent that

defendant verbally harassed [the victim] and the others and

taunted them to 'come out in the road'").

The trial court, therefore, did not err when it gave the

aggressor portion of the self-defense instruction. Since

defendant makes no other argument, we hold defendant received a

trial free of prejudicial error. -15-

No error.

Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).