State v. Hooper

IN THE SUPREME COURT OF NORTH CAROLINA

2022-NCSC-114

No. 382A21

Filed 4 November 2022

STATE OF NORTH CAROLINA

v.
IVAN GERREN HOOPER

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 279 N.C. App. 451, 2021-NCCOA-500, finding no error after

appeal from a judgment entered on 7 March 2018 by Judge Stanley L. Allen in

Superior Court, Rockingham County. Heard in the Supreme Court on 23 May 2022

in session in the Old Burke County Courthouse in the City of Morganton pursuant to

N.C.G.S. § 7A-10(a).

Joshua H. Stein, Attorney General, by Jasmine McGhee, Special Deputy
Attorney General, and Zachary Ezor, Solicitor General Fellow, for the State-
appellee.

Glenn Gerding, Appellate Defender, by John F. Carella, Assistant Appellate
Defender, for defendant-appellant.

ERVIN, Justice.

¶1 The issue before the Court in this case is whether a request made by

defendant’s trial counsel that the trial court instruct the jury concerning the law of

self-defense that was made after the conclusion of the jury instruction conference and
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prior to the delivery of the trial court’s instructions to the jury properly preserved

defendant’s challenge to the trial court’s refusal to deliver the requested instruction

for purposes of appellate review and whether the trial court erred by denying

defendant’s request for the delivery of a self-defense instruction. The Court of

Appeals held that defendant had waived the right to appellate review of the trial

court’s refusal to deliver a self-defense instruction on the basis of the invited error

doctrine and that the trial court did not commit prejudicial error by refusing to deliver

the requested self-defense instruction. After careful consideration of defendant’s

challenge to the trial court’s judgment in light of the applicable law, we modify and

affirm the Court of Appeals’ decision.

I. Background

A. Substantive Facts

1. State’s Evidence

¶2 On either 1 or 2 March 2017, Ashley Thomas; her uncle Wilbert Reaves; the

son that she and defendant had had together; and defendant attended the funeral of

defendant’s great aunt. Following the funeral, the group went to lunch, after which

defendant asked to be taken to a store at which he could obtain cigarettes and

purchase bullets, with Ms. Thomas denying both having provided defendant with any

assistance in procuring ammunition and having had any conflict with defendant on

that day. Similarly, Mr. Reaves testified that the group had gone to lunch together
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after the funeral, that Ms. Thomas had taken defendant to get cigarettes, and that

defendant had asked “a couple of times [for Ms. Thomas] to purchase him bullets.”

¶3 Ms. Thomas stated she and her son had visited defendant at the Reidsville

Quality Inn on 4 March 2017 in response to a request that defendant had made to

Ms. Thomas at her mother’s residence that Ms. Thomas come to talk with him and

allow him to visit with their son. Upon her arrival at defendant’s hotel room, Ms.

Thomas testified that she placed her son on the bed and took a seat in a chair by the

door. After Ms. Thomas refused defendant’s request to get out of the chair, defendant

pulled up a chair “directly in front of [her] face” and began to question Ms. Thomas

about her relationship with an individual with whom defendant assumed that Ms.

Thomas had become romantically involved. When Ms. Thomas asked defendant “[i]s

this really why you called me here?,” defendant responded, “[w]ell honestly, I don’t

care. I don’t want you anyway, so you can really dismiss yourself.” At that point, Ms.

Thomas rose to pick up her son and leave.

¶4 As Ms. Thomas rose, defendant “g[ot] in [her] face,” pushed her, and began to

punch her in the face and stomach before hurling her onto the bed as he continued to

hit her face. As defendant did this, Ms. Thomas screamed for him to stop and to

refrain from acting in this manner in front of their son. Ms. Thomas testified that,

as he struck her, defendant stated that “[n]obody is going to be able to save you, but
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[your son], and even he is not going to be able to save you today. I’m going to kill you,

bitch.” At that point, Ms. Thomas claimed that she feared for her life.

¶5 After Ms. Thomas “nudged” defendant, the two of them stood up, at which point

defendant threw Ms. Thomas on the floor and choked her with his hands. As she was

being choked, Ms. Thomas kneed defendant in the groin, causing him to stand up, at

which point she ran to the mirror in the rear of the hotel room “to see what

[defendant] actually did to [her].” Ms. Thomas did not attempt to leave the hotel

room given that defendant had forcibly detained her when she had attempted to

depart from his presence at an earlier time.

¶6 After examining herself in the mirror, Ms. Thomas grabbed her phone and

attempted to return a call that she had received from Mr. Reaves during the course

of defendant’s assault so that she could let him know that she needed help. As she

did so, defendant knocked the phone out of Ms. Thomas’ hand, causing the phone to

hit the wall of the hotel room and the screen to shatter. Although the phone remained

functional, the damage that it had sustained made it difficult for Ms. Thomas to make

things out on the screen.

¶7 Eventually, Ms. Thomas’ attention was drawn to the television stand, on which

she saw a firearm. After she picked upon the weapon, defendant grabbed their son

and held him between Ms. Thomas and himself. At that point, Ms. Thomas told her

son to come to her and informed defendant that, in the event that he refused to let
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her leave with her son, she had no choice except to shoot. As a result of the fact that

defendant acted as if he was going to lunge towards her, Ms. Thomas pulled the

trigger at a time when the gun was pointed at the floor, at which point defendant

exclaimed, “I’ve been shot,” grabbed her hand, and asked that she relinquish

possession of the weapon, a step that Ms. Thomas refused to take. However, when

defendant asked “if I let it go, can I leave with you?,” Ms. Thomas acquiesced in that

request. As soon as defendant released her hand, however, Ms. Thomas grabbed their

son, ran to her automobile, returned to her home, and contacted the Reidsville Police

Department. Subsequently, Ms. Thomas told Mr. Reaves that “she had shot

[defendant] because he was beating her.”

¶8 Although a friend had given her a .22 caliber pistol about a week prior to 4

March 2017, Ms. Thomas denied having had that weapon in her possession at the

time of her encounter with defendant at the Quality Inn. In addition, Ms. Thomas

denied that she had had any intention of harming defendant at the time that she

went to meet him at the hotel. On the other hand, Ms. Thomas had previously

informed one of her friends that she had a weapon and had insinuated that she would

use it to protect herself from defendant.

¶9 At approximately 5:15 p.m. on 4 March 2017, Ms. Thomas called the Reidsville

Police Department to report an alleged assault that had allegedly occurred at the

Quality Inn. Ms. Thomas told Officer Scott Brown of the Reidsville Police
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Department that she had gotten into an altercation with defendant, who is the father

of her three-year-old son. At the time of her conversation with Officer Brown, Ms.

Thomas’ face and neck were visibly bruised and swollen.

¶ 10 In the course of discussing the incident with Officer Brown, Ms. Thomas stated

that, at defendant’s request, she had visited him at a room that he had rented at the

Quality Inn and that, following her arrival, defendant began questioning her about

her relationship with another man. After defendant began acting in an aggressive

manner, the two of them became involved in an altercation. Ms. Thomas stated that,

when defendant attempted to obtain possession of a firearm that was already in the

hotel room, she reached for it as well. According to Ms. Thomas, the gun discharged

in the ensuing struggle, at which point Ms. Thomas returned home with their child.

Officer Brown retrieved a Rossi .357 Magnum revolver that contained two spent shell

casings and four live rounds from Ms. Thomas’ home.

¶ 11 At the time that Sergeant Kenneth Mitchell of the Reidsville Police

Department spoke with Ms. Thomas, he observed that she had bruises across the

bridge of her nose and eyes, bruises and red marks around both sides of her neck, a

laceration on her cheek, and scratches running down her chest. On 8 March 2017,

Sergeant Mitchell examined the hotel room in which the incident between defendant

and Ms. Thomas had occurred and identified the location at which a projectile had

hit the floor. In view of the fact that the carpet in the hotel room had been placed
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directly over a concrete floor, there was no way to identify the path at which that

projectile had been travelling. Sergeant Mitchell determined that, based upon

information that had been provided to him by Ms. Thomas and the damage that he

observed to the bedspread, the box springs, and the floor, a bullet had ricocheted off

the floor and struck defendant in his left calf. According to Sergeant Mitchell, the

fact that both participants in the altercation admitted to having had their hands on

the firearm and that no fingerprints had been detected on the weapon made it

pointless for him to have any testing performed upon any of the blood that had been

detected in the hotel room.

¶ 12 At 11:50 p.m. on 5 March 2017, Officer Jason Joyce of the Reidsville Police

Department responded to a report that an individual who had sustained a gunshot

wound had come to Cone Health Annie Penn Hospital. Defendant, who was the

person in question, told Officer Joyce that Ms. Thomas had brought their child to the

Quality Inn, that their conversation had turned into an argument, and that Ms.

Thomas had pulled out a gun and shot him in the leg. According to defendant, after

Ms. Thomas pulled out the firearm, he had advanced towards Ms. Thomas for the

purpose of taking the gun from her, and that, as he did so, the two of them struggled,

she shot him, and then she left the hotel room with their child.
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2. Defendant’s Evidence

¶ 13 The mother of one of defendant’s sons, Marcelina Machoca, testified that, prior

to 4 March 2017, she and Ms. Thomas had communicated using electronic messages

after Ms. Machoca had driven defendant to the hospital to visit his ailing great aunt.

Ms. Machoca testified that Ms. Thomas was upset that Ms. Machoca and defendant

had been around each other; that Ms. Thomas had stated that defendant “was just

using [Ms. Machoca]”; and that Ms. Thomas and defendant were trying to get back

together. Ms. Thomas told Ms. Machoca “that [defendant] had been going to [Ms.

Thomas’] house almost every morning” and that, “since he was hanging around [Ms.

Machoca,] . . . he needed to stop coming around [Ms. Thomas’] house because one of

her guy friends had [given] her a gun, and if he came around again, she wouldn’t have

no problem using it.” Marsena Jones, a cousin to both Ms. Thomas and defendant,

testified that defendant did not own a firearm and that Ms. Thomas had not

mentioned either shooting defendant or otherwise discharging a firearm during her

conversations with Ms. Jones.

¶ 14 Felicia Donnell, who was defendant’s mother and one of Ms. Thomas’

acquaintances, testified that she had contacted Ms. Thomas on 3 March 2017 for the

purpose of communicating defendant’s request that Ms. Thomas come to see him at

the Quality Inn. At that time, Ms. Donnell had advised Ms. Thomas against seeing

defendant because “their relationship is like nitro and glycerin.” In addition, Ms.
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Donnell testified that she had received a call from Ms. Thomas after 4:00 p.m. on 4

March 2017 and that Ms. Thomas had seemed to be very upset during that

conversation. According to Ms. Donnell, Ms. Thomas stated that, “I shot him. I shot

your son”; that Ms. Thomas claimed to have gone to see defendant; that Ms. Thomas

had feared for her life during their encounter; and that Ms. Thomas had possessed a

firearm during her encounter with defendant. In addition, Ms. Donnell testified that

Ms. Thomas told her that she pointed the gun at defendant, that she had asked

defendant if he was going to kill her, that defendant had responded by demanding

that Ms. Thomas give him the weapon, and that a shot had been fired. According to

Ms. Donnell, Ms. Thomas had stated that, after the shot had been fired, a scuffle had

ensued, that another shot had been fired during the scuffle, and that defendant had

looked at his leg. Ms. Thomas also told Ms. Donnell that defendant had choked and

punched her during the interval between the two shots and had exclaimed, “you shot

me, you shot me,” after the firing of the second shot. Ms. Thomas did not tell Ms.

Donnell how she had come to be in possession of the firearm from which the shot that

struck defendant had been fired. After speaking with Ms. Thomas, Ms. Donnell called

defendant and told him that he needed to go to the hospital to seek medical treatment.

On the following day, defendant told Ms. Donnell that he was going to the hospital

and knew that he would be placed under arrest once he did that.
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B. Procedural History

¶ 15 On 10 April 2017, the Rockingham County grand jury returned bills of

indictment charging defendant with assault by strangulation, communicating

threats, assault on a female, interfering with an emergency communication, and

possession of a firearm by a felon. On 5 February 2018, the Rockingham County

grand jury returned a bill of indictment charging defendant with having attained the

status of a habitual felon.

¶ 16 The charges against defendant came on for trial before the trial court and a

jury at the 5 March 2018 criminal session of Superior Court, Rockingham County. At

the jury instruction conference that the trial court conducted with counsel for both

the State and defendant, the trial court described the instructions that it intended to

deliver to the jury without making any mention of the issue of self-defense. After

some discussion, neither the prosecutor nor defendant’s trial counsel expressed any

objections to the trial court’s proposed jury instructions or requested the trial court

to deliver any additional instructions. On the following morning, however, the

following proceedings occurred:

THE COURT: All right, Sheriff, bring the jury in, please.

[DEFENSE COUNSEL]: Your Honor, may I have just one
moment?

THE COURT: Yes.

....
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[DEFENSE COUNSEL]: Your Honor, I think it’s
reasonable based on information that has been presented
that the . . . self-defense component in this particular jury
instruction would be appropriate, as well, the 308.40 to be
elicited here in this particular matter.

Also secondly with that, Your Honor, I do have a case
to hand up. I think that would be reflective of that, as well,
based on the evidence that has been presented at this time.

THE COURT: Okay. Well, you said yesterday you were
satisfied with the instructions as the Court had outlined is
going to give.

[DEFENSE COUNSEL]: And Your Honor, (inaudible) back
where we started in that component, so I wanted to make
sure that (inaudible) would be appropriate, Your Honor.

THE COURT: And you want to be heard further?

[DEFENSE COUNSEL]: Yes, Your Honor. Simply as we
look at this particular matter, the State v. Jennings, . . . .
This particular matter . . . reflects to a slightly more serious
[crime]—it’s a murder allegation, but still when it reflects
what takes place with a self-defense proposition, that
should be provided to the jurors. The piece here, I think,
that falls in line with this particular matter is that
obviously whatever has been charged, whatever was done,
the fact still remains that this particular matter that’s in
front of the Court today, it is most appropriate that this
particular test here for self-defense should be
appropriated—is appropriate and should be provided to the
jurors.

With that, the actions that were done, the timeliness
of the actions, all of those components are supported and
would be prudent to make sure that the jurors are aware
of this particular action that will be most beneficial, I
think, in this matter.
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In response, the prosecutor argued that defendant had not given the statutorily-

required notice that he intended to rely upon self-defense and that the record

evidence did not support the delivery of a self-defense instruction given defendant’s

failure to testify in his own behalf. At the conclusion of the colloquy initiated by

defendant’s request for the delivery of a self-defense instruction, the trial court stated

that:

Well, I have to agree with the State. . . . [T]here was no
notice given of affirmative defense . . . and because we don’t
know what was in . . . [d]efendant’s mind because he
exercised his constitutional right not to testify, we don’t
know what he was thinking or what he believed. And
there’s been no other evidence that . . . anything was done
in self-defense. The request for a self-defense instruction
is denied.

Bring the jury in, please, Sheriff.

At the conclusion of the trial court’s jury instructions, the trial court inquired whether

there were “any requests for additional instructions or for corrections or any

objections to the instructions given to the jury” without drawing any further

objections, proposed corrections, or requests for additional instructions from counsel

for either the State or defendant.

¶ 17 On 7 March 2018, the jury returned verdicts convicting defendant of assault

by strangulation, communicating threats, assault on a female, and interfering with

an emergency communication and acquitting defendant of possession of firearm by a

felon. At the conclusion of a separate proceeding conducted on the same date, the
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jury found that defendant had attained the status of an habitual felon. Based upon

these jury verdicts, the trial court consolidated defendant’s convictions for judgment

and sentenced defendant to a term of sixty-five to ninety months imprisonment. On

12 August 2019, defendant filed a petition seeking the issuance of a writ of certiorari

authorizing review of the trial court’s judgment, with the Court of Appeals having

issued the requested writ of certiorari on 27 August 2019.

C. Court of Appeals Decision

¶ 18 In seeking relief from the trial court’s judgment before the Court of Appeals,

defendant argued that the trial court had erred by rejecting his request that the jury

be instructed that it could acquit defendant on the grounds of self-defense given that

the record contained evidence that would have allowed the jury to make such a

determination. State v. Hooper, 279 N.C. App. 451, 2021-NCCOA-500, ¶¶ 12–13. In

rejecting defendant’s challenge to the trial court’s judgment, the Court of Appeals

held that “[d]efendant’s failure to object [to the planned instructions] 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” and “waive[d] any right to appellate

review concerning the invited error, ‘including plain error review,’ ” id. ¶ 18 (quoting

State v. Barber, 147 N.C. App. 69, 74 (2001)), with the Court of Appeals having
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reached this result in reliance upon State v. White, 349 N.C. 535 (1998), in which we

held that:

[c]ounsel . . . 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
defendant tells the trial court that he has no objection to
an instruction, he will not be heard to complain on appeal.

Hooper, ¶ 19 (quoting White, 349 N.C. at 570). According to the Court of Appeals,

“[t]he tardiness of [d]efendant’s purported request followed by his counsel’s express

agreement following the jury instructions as given waive[d] appellate review.”

Hooper, ¶ 19. In addition, the Court of Appeals held that, even if the trial court had

erred by rejecting defendant’s request for the delivery of a self-defense instruction,

defendant could not “carry his burden to show the court’s refusal of his requested

instruction ‘had a probable impact on the jury’s [decision to find] that defendant was

guilty,’ ” id. ¶ 20 (quoting State v. Lawrence, 365 N.C. 506, 517 (2012)), given that,

“where the evidence against a defendant is overwhelming and uncontroverted[, a]

defendant cannot show that, absent the error, the jury probably would have returned

a different verdict” and given that the evidence against defendant in this case was

both “overwhelming and uncontroverted,” Hooper, ¶¶ 21, 23 (first alteration in

original) (quoting State v. Chavez, 378 N.C. 265, 2021-NCSC-86, ¶ 13). As a result,

the majority at the Court of Appeals held that no error had occurred in the

proceedings leading to the entry of the trial court’s judgment.
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¶ 19 In a dissenting opinion, Judge Murphy expressed disagreement with his

colleagues’ conclusion that defendant had invited any error that the trial court might

have committed in the course of refusing to instruct the jury concerning the law of

self-defense and concluded that the trial court had committed prejudicial error by

refusing to instruct the jury that it was entitled to acquit defendant on the basis of

self-defense. Hooper, ¶¶ 25–26, 50 (Murphy, J., dissenting). In support of his

determination that defendant had not invited the trial court’s alleged error in

refusing to instruct the jury concerning the law of self-defense and that defendant

had properly preserved this issue for purposes of appellate review, Judge Murphy

pointed to State v. Rowe, 231 N.C. App. 462 (2013), which held that “a request for

instructions constitutes an objection” as required by N.C. R. App. P. 10(a)(2). Hooper,

¶ 35 (Murphy, J., dissenting) (quoting Rowe, 231 N.C. App. at 469). As a result of the

fact that “[d]efendant [had] specifically requested the trial court to include a jury

instruction on [self-defense] and argued that point before the [trial] court,” Judge

Murphy had “properly preserved this issue for appellate review.” Hooper, ¶ 37

(Murphy, J., dissenting) (third and fourth alterations in original) (quoting Rowe, 231

N.C. App. at 469–70).

¶ 20 In Judge Murphy’s view, his colleagues’ reliance upon White was misplaced

given that, in White, the defendant’s trial counsel had specifically agreed with the

language that he later claimed to have been erroneous. Hooper, ¶ 38 (Murphy, J.,
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dissenting) (citing White, 349 N.C. at 568–70). In addition, Judge Murphy noted that

the defendant’s trial counsel in White had failed to object to the challenged trial court

instruction both before and after that instruction had been delivered, Hooper, ¶ 38

(Murphy, J., dissenting) (citing White, 349 N.C. at 568–70), while, in this case,

defendant’s request for the delivery of a self-defense instruction had been rejected by

the trial court, Hooper, ¶ 39 (Murphy, J., dissenting).

¶ 21 Finally, Judge Murphy concluded that the record contained sufficient evidence

to support the delivery of the requested self-defense instruction and that the trial

court’s refusal to deliver that instruction constituted error. Hooper, ¶ 47 (Murphy,

J., dissenting). In Judge Murphy’s opinion, the evidence, when taken in the light

most favorable to defendant, tended to show that Ms. Thomas had fired a shot before

the altercation began and that defendant reasonably believed “that the conduct [was]

necessary to defend himself . . . against [Ms. Thomas’] imminent use of unlawful

force.” Hooper, ¶¶ 46–47 (Murphy, J., dissenting) (first alteration in original)

(quoting N.C.G.S. § 14-51.3(a) (2019)). Finally, arguing in reliance upon State v.

Gomola, 257 N.C. App. 816 (2018), Judge Murphy would have held that the trial

court’s failure to deliver the requested self-defense instruction “deprived the jury of

the ability to decide the issue of whether [defendant’s] participation in the altercation

was lawful,” Hooper, ¶ 48 (Murphy, J., dissenting) (quoting Gomola, 257 N.C. App at

823), a determination which, if made, would “have compelled the jury to return a
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verdict of ‘not guilty,’ especially in light of the jury finding that [d]efendant was not

guilty of possession of a firearm,” Hooper, ¶ 49 (Murphy, J., dissenting). Defendant

noted an appeal from the Court of Appeals’ decision to this Court based upon Judge

Murphy’s dissent.

II. Analysis

A. Standard of Review

¶ 22 This Court reviews decisions of the Court of Appeals for the purpose of

determining whether they contain any error of law. N.C. R. App. P. 16(a). In deciding

whether a defendant is entitled to the delivery of a requested jury instruction, we

conduct a de novo review for the purpose of determining “whether each element of

the defense is supported by the evidence, when taken in the light most favorable to

defendant.” State v. Mercer, 373 N.C. 459, 462 (2020) (citing State v. Mash, 323 N.C.

339, 348 (1988)).

B. Preservation and Invited Error

¶ 23 In seeking to persuade us that he had properly preserved his challenge to the

trial court’s refusal to instruct the jury concerning the law of self-defense for purposes

of appellate review, defendant begins by noting that N.C. R. App. P. 10(a)(2) provides

that:

[a] party may not make any portion of the jury charge or
omission therefrom the basis of an issue presented on
appeal unless the party objects thereto before the jury
retires to consider its verdict, stating distinctly that to
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which objection is made and the grounds of the objection;
provided that opportunity was given to the party to make
the objection out of the hearing of the jury, and, on request
of any party, out of the presence of the jury.

According to defendant, “a request for an instruction ‘constitutes an objection,’ ” citing

Rowe, 231 N.C. App. at 469. In addition, defendant directs our attention to Rule 21

of the General Rules of Practice for the Superior and District Courts, which requires

that a trial court provide counsel with an opportunity to lodge objections at the jury

instruction conference and at the conclusion of the trial court’s jury instructions and

prior to the beginning of the jury’s deliberations, N.C. Gen. R. Prac. Super. & Dist.

Ct. 21 ¶¶ 1–2, and authorizes the trial court to recall the jury and correct any of the

instructions that it had previously delivered, id. ¶ 3. Defendant asserts that, since

his trial counsel had requested the delivery of a self-defense instruction “before the

trial court charged the jury” and “before the trial court provided the required second

opportunity for ‘additional instructions or for corrections or any objections to the

instructions given’ ” at the conclusion of its instructions to the jury, defendant had

properly preserved his challenge to the trial court’s failure to instruct the jury

concerning the issue of self-defense for purposes of appellate review.

¶ 24 In addition, defendant asserts that the majority at the Court of Appeals had

erred by concluding that he had invited the trial court’s allegedly erroneous refusal

to instruct the jury concerning the law of self-defense, arguing that the Court of

Appeals had “incorrectly relied on this Court’s decision in State v. White . . . as support
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for [its] conclusion.” In defendant’s view, our decision in White is not controlling with

respect to this issue given that, in this case, defendant actually requested the delivery

of a self-defense instruction, “whereas in White, the trial court instructed the jury

based on the instruction defense counsel requested and the proposed language they

agreed to.” Hooper, ¶ 39.

¶ 25 On the other hand, the State contends that defendant failed to comply with

N.C.G.S. § 15A-905(c)(1), which requires that a defendant:

[g]ive notice to the State of the intent to offer at trial a
defense of . . . self-defense. Notice of defense as described
in this subdivision is inadmissible against the defendant.
Notice of defense must be given within 20 working days
after the date the case is set for trial pursuant to G.S. 7A-
49.4, or such other later time as set by the court.

N.C.G.S. § 15A-905(c)(1) (2021). According to the State, defendant’s failure to give

notice of his intention to assert a claim of self-defense “did not preserve the issue of a

self-defense instruction and, in fact, invited error.” In addition, the State contends

that the Court of Appeals correctly concluded that defendant’s failure to object to the

trial court’s failure to deliver a self-defense instruction during the jury instruction

conference or at the conclusion of the instructions that the trial court actually

delivered to the jury constituted invited error, with “a defendant who [has] invite[d

an] error ha[ving] waived his right to all appellate review concerning the invited

error, including plain error review,” quoting Barber, 147 N.C. App. at 74, and citing

State v. Roseboro, 344 N.C. 364, 373 (1996). The State further contends that, even if
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defendant had not invited the trial court’s alleged error, “it is still unpreserved

and . . . only plain error review would be available,” citing Lawrence, 365 N.C. at 512,

with plain error review not having been available to defendant in this case “because

[he] did not specifically and distinctly contend plain error in the trial court’s decision.”

¶ 26 A careful review of the record satisfies us that the defendant properly

preserved his challenge to the trial court’s failure to deliver a self-defense instruction

for purposes of appellate review. As has already been noted, the literal language of

N.C. R. App. P. 10(a)(2) states that “[a] party may not make any portion of the jury

charge or omission therefrom the basis of an issue presented on appeal unless the

party objects thereto before the jury retires to consider its verdict.” The record in this

case clearly reflects that defendant requested the trial court to instruct the jury

concerning the issue of whether he was entitled to be acquitted on the grounds of self-

defense prior to the point in time at which the trial court instructed the jury. In

addition, this Court clearly held almost four decades ago in Wall v. Stout, 310 N.C.

184 (1984), that the purpose sought to be achieved by N.C. R. App. P. 10(a)(2)1 “is met

when a request to alter an instruction has been submitted and the trial judge has

considered and refused the request,” with the trial court’s “refusal at the charge

1 Wall refers to this rule as N.C. R. App. P. 10(b)(2) throughout its text. See generally
Wall, 310 N.C. 184. However, as a result of an amendment that became effective 1 October
2009, the provisions of former N.C. R. App. P. 19(b)(2) were transferred to N.C. R. App. P.
10(a)(2). As a result, decisions construing former N.C. R. App. P. 10(b)(2) are equally
applicable to current N.C. R. App. P. 10(a)(2).
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conference to instruct in accordance with [a party’s] proposals represent[ing] the

judge’s final decision” and with “further objections [being] not only useless but

wasteful of the court’s time.”2 Id. at 189; see also State v. Smith, 311 N.C. 287, 290

(1984) (stating that the defendant was not required “to repeat his objection to the jury

instructions, after the fact, in order to properly preserve his exception for appellate

review”); Rowe, 231 N.C. App. at 469–70 (holding that, given that the defendant had

“specifically requested the trial court to include a jury instruction on simple assault

and argued that point before the court, he had properly preserved the instructional

issue in question for purposes of appellate review). As a result, given that defendant

requested the trial court to instruct the jury concerning the issue of self-defense

“before the jury retire[d] to consider its verdict,” N.C. R. App. P. 10(a)(2), and given

that the trial court expressly denied defendant’s request for the delivery of the

requested self-defense instruction,3 defendant’s challenge to the trial court’s allegedly

2 As was the case in Wall, nothing in the record before us in this case provides any
basis for a conclusion that defendant’s trial counsel had a change of heart concerning the
appropriateness of the requested self-defense instruction. Instead, the trial court in this case
heard and rejected defendant’s request for an additional instruction, making what happened
in this case indistinguishable from the series of events that this Court held in Wall to be
sufficient to preserve the rejection of a party’s request for instructions for purposes of
appellate review.
3 The fact that defendant requested the delivery of a self-defense instruction makes

this case fundamentally different from White, in which the trial court agreed to give a
peremptory instruction with respect to non-statutory mitigating circumstances at
defendant’s capital sentencing hearing, defendant agreed to the language that the trial court
proposed and “neither suggested nor provided any other language either orally or in writing,”
“the trial court instructed the jury exactly as it had indicated” that it would, and defendant
“did not object” after the conclusion of the trial court’s instructions. White, 349 N.C. at 569.
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erroneous refusal to deliver a self-defense instruction to the jury was properly

preserved for purposes of appellate review even though defendant did not raise the

self-defense issue at the jury instruction conference, expressed initial agreement with

the trial court’s proposed instructions, and did not lodge any sort of objection to the

instructions that the trial court actually gave at the conclusion of the trial court’s

final charge to the jury.4

¶ 27 The fact that defendant failed to provide notice of his intent to rely upon self-

defense in advance of trial as required by N.C.G.S. § 15A-905(c)(1) does not call for a

different result with respect to this issue. Subsection § 15A-905(c)(1) appears in the

statutory provision setting out a criminal defendant’s obligation to make disclosure

to the State during the discovery process. A party’s failure to comply with his, her,

or its discovery-related obligations is addressed in N.C.G.S. § 15A-910, which sets out

a number of sanctions that can be imposed in the event that a party fails to provide

discovery in accordance with applicable law, including the entry of “other appropriate

In other words, the trial court in White had no basis for believing that defendant objected to
the manner in which it had instructed the jury concerning non-statutory mitigating
circumstances while the trial court in this case was presented with and rejected a request for
the delivery of a self-defense instruction.
4 Our determination that defendant properly preserved his challenge to the trial

court’s refusal to instruct the jury concerning the law of self-defense suffices to dispose of the
State’s argument that defendant invited the trial court’s alleged error. As N.C.G.S. § 15A-
1443(c) provides, “[a] defendant is not prejudiced by the granting of relief which he has sought
or by error resulting from his own conduct.” N.C.G.S. § 15A-1443(c) (2021). As a result, a
finding of invited error must hinge upon a party’s affirmative request for a specific action
upon the part of the trial court rather than a mere failure to lodge an objection to an action
that the trial court actually took.
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orders.” N.C.G.S. § 15A-910(a)(4) (2021). However, before “finding any sanctions

appropriate, the court shall consider both the materiality of the subject matter and

the totality of the circumstances surrounding an alleged failure to comply with [the

applicable discovery-related statutes] or an order issued pursuant to” those statutes,

N.C.G.S. § 15A-910(b), and, in the event that it deems the imposition of sanctions

appropriate, “it must make specific findings justifying the imposed sanction,”

N.C.G.S. § 15A-910(d). Assuming, without in any way deciding, that a trial court is

authorized to refrain from instructing the jury concerning an affirmative defense of

which the defendant was required to provide notice pursuant to N.C.G.S. § 15A-

905(c)(1) as a discovery sanction on the basis that such a determination constitutes

an “other appropriate order” authorized by N.C.G.S. § 15A-910(a)(4), the record

contains no indication that the trial court considered the totality of the surrounding

circumstances in reaching that decision as required by N.C.G.S. § 15A-910(b) or made

the required “findings justifying the imposed sanction,” N.C.G.S. § 15A-910(d).5

Instead, the trial court appears to have rejected defendant’s request for the delivery

5The trial court’s ruling upon defendant’s request for instructions consisted of nothing
more than a notation that no notice had been given, that “we don’t know what was in the
[d]efendant’s mind because he exercised his constitutional right not to testify,” that
defendant’s failure to testify precluded any knowledge of “what he was thinking or what he
believed,” and that “there’s been no other evidence that . . . anything was done in self-
defense.” Although the trial court did ask a number of questions during the colloquy that it
conducted with counsel for the State and defendant, none of these questions was mentioned
in the trial court’s statement of the basis for its decision, which clearly focuses upon the
merits of defendant’s request for a self-defense instruction and does not reflect the weighing
process that is contemplated by N.C.G.S. § 15A-910(b) and (d).
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Opinion of the Court

of the requested self-defense instruction based upon a determination that the record

evidence, when taken in the light most favorable to defendant, would not have

permitted a jury to acquit defendant on the grounds of self-defense. As a result, given

that the trial court’s decision to reject defendant’s request for a self-defense

instruction does not appear to have resulted from the imposition of a discovery

sanction and given that the trial court did not take the procedural steps necessary to

justify the imposition of such a sanction upon defendant in this case, we hold that

defendant is not precluded from advancing his challenge to the trial court’s refusal to

instruct the jury concerning the law of self-defense based upon defendant’s

noncompliance with N.C.G.S. § 15A-905(c)(1) and will proceed to address the merits

of the trial court’s decision to refrain from delivering the requested self-defense

instruction.

C. Sufficiency of the Evidence to Support a Self-Defense Instruction

¶ 28 In seeking to persuade us that the record developed before the trial court in

this case supports the delivery of the requested self-defense instruction, defendant

asserts that the record contains conflicting evidence concerning the nature of the

events that occurred in the hotel room on the night of the alleged assault. Among

other things, defendant notes that Ms. Donnell testified that Ms. Thomas had told

her that “a shot was fired, a scuffle happened, and then a fire, . . . and then he looked

down at his leg.” In addition, defendant points out that Ms. Machoca testified that
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Opinion of the Court

Ms. Thomas had acquired a gun prior to her visit to defendant’s hotel room and that

the jury had acquitted defendant of being a felon in possession of a firearm.

Defendant asserts that, even though “there may be contradictory evidence from the

State or discrepancies in the defendant’s evidence, . . . the trial court must charge the

jury on self-defense where there is evidence that the defendant acted in self-defense,”

citing State v. Coley, 375 N.C. 156, 163 (2020), with it being “within the purview of

the jury to resolve any conflicts in the evidence presented at trial and to render

verdicts upon being properly instructed by the trial court,” Coley, 375 N.C. at 163.

¶ 29 The State, on the other hand, appears to contend that the record precluded the

delivery of a self-defense instruction in this case given that the undisputed evidence

tended to show that defendant was the initial aggressor or that this fact precluded a

finding of prejudicial error. In the State’s view, the record provides ample “reason for

the victim to need to defend herself against [d]efendant,” including the existence of

evidence tending to show that defendant made unwelcome visits to the home of Ms.

Thomas’ mother “almost every day” that were accompanied by “repeated verbal

threats,” evidence tending to show that defendant’s mother had to serve as an

intermediary between defendant and Ms. Thomas, and evidence tending to show that

Ms. Thomas felt it necessary to bring Mr. Reaves to the funeral of defendant’s great

aunt funeral to assist in her interactions with defendant. Aside from the presence of

evidence “indicative of an abusive relationship with [d]efendant,” the State notes that
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Opinion of the Court

the record contains evidence concerning defendant’s history of inflicting physical

abuse upon his romantic partners. In other words, the State contends that defendant

failed to “present[ ] competent and sufficient evidence to warrant the self-defense

instruction,” quoting Coley, 375 N.C. at 162, and that the delivery of a self-defense

instruction would not have changed the ultimate outcome at defendant’s trial given

the strength of the State’s evidence and the fact that the wound that defendant

sustained was not inflicted with a firearm like the one that Ms. Thomas obtained

prior to 4 March 2017. As a result, since the evidence against defendant was both

“overwhelming and uncontroverted,” Hooper, ¶ 21 (quoting Chavez, ¶ 13), the State

contends that any error that the trial court might have committed in refusing

defendant’s request for the delivery of a self-defense instruction could not have

prejudiced defendant’s chances for a more favorable outcome at trial.

¶ 30 According to N.C.G.S. § 14-51.3(a),

[a] person is justified in using force, except deadly force,
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.

N.C.G.S. § 14-51.3(a) (2021). As the relevant statutory language indicates, a

defendant is not entitled to rely upon self-defense unless he or she (1) reasonably

believes (2) that his or her use of force (3) is necessary (4) to defend himself or herself

against the imminent use (5) of unlawful force by another. As this Court has
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Opinion of the Court

previously stated, “[t]he reasonableness of a [defendant’s] belief is to be determined

by the jury from the facts and circumstances as they appeared to him at the time” he

used force against his adversary. State v. Gladden, 279 N.C. 566, 572 (1971).

¶ 31 A careful review of the record persuades us that the record contains no

evidence tending to show that defendant assaulted Ms. Thomas for the purpose of

defending himself from the use of unlawful force on the part of Ms. Thomas.

Accepting, as we are required to do, the truthfulness of Ms. Donnell’s recitation of the

statements that Ms. Thomas made to her and the truthfulness of Officer Joyce’s

recitation of the statements that defendant made to him, the record contains nothing

more than an assertion that an initial (and possibly a second) gunshot occurred before

defendant assaulted Ms. Thomas.6 In order for defendant to have been entitled to

6 A careful study of the record reveals no evidence that any of the gunshots described
in the testimony of the various witnesses resulted from any sort of unprovoked intentional
act of the type that would be necessary to support a valid claim of self-defense. For example,
defendant told Officer Joyce that, after Ms. Thomas pulled out the firearm, he advanced upon
her in order to take the gun away, at which point she shot him during the ensuing struggle.
As a result, in this version of the relevant events, Ms. Thomas did nothing more than display
a firearm before defendant attacked her, with there being no evidence that Ms. Thomas
pulled out the gun before the argument between the two of them began or any evidence that
Ms. Thomas made any menacing gesture or uttered any threats before defendant’s assault
began. Similarly, Ms. Donnell testified that Ms. Thomas stated that she had pointed the gun
at defendant, that she asked defendant if she was going to kill her, that a shot had been fired,
and that another shot was fired during the scuffle. Aside from the fact that nothing in Ms.
Donnell’s description of Ms. Thomas’ statements indicates that either gunshot had been fired
intentionally, Ms. Donnell’s testimony reflects that, at the time that Ms. Thomas pointed the
gun at defendant, she asked defendant if he was going to kill her, a set of circumstances that
is inconsistent with the sort of attack upon the defendant or one of defendant’s relatives or
friends that occurred in cases like State v. Greenfield, 375 N.C. 434, 442 (2020); State v. Lee,
370 N.C. 671, 672 (2018); and State v. Moore, 363 N.C. 793, 797–98 (2010). As a result, we
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Opinion of the Court

have used force against Ms. Thomas in self-defense, the record would have had to

have contained evidence that the force that defendant used against Ms. Thomas

stemmed from an attempt to protect himself against an unlawful use of force on the

part of Ms. Thomas. However, even if the first gunshot occurred before defendant

assaulted Ms. Thomas, the record contains no indication that defendant assaulted for

the purpose of defending himself from any unlawfully assaultive conduct on the part

of Ms. Thomas.

¶ 32 Although Ms. Donnell described Ms. Thomas as having stated that she and

defendant were standing in front of one another; that Ms. Thomas “had [the gun]

pointed at” defendant and asked defendant if he was going to kill her; that defendant

had requested that Ms. Thomas give him the gun; that each of them repeated the

statements that they had just made; and that “a fire, . . . a bullet happened again,

and [defendant] looked down at his leg,” causing her to realize that she had “shot him

in the leg” and although Officer Joyce testified that defendant claimed to have

attempted to take a gun away from Ms. Thomas, none of this evidence tended to show

that defendant assaulted Ms. Thomas for the purpose of protecting himself from any

unlawful use of force on the part of Ms. Thomas. Put another way, the record does

not contain any evidence tending to show that Ms. Thomas threatened defendant or

do not believe that the evidence, even when taken in the light most favorable to defendant,
supports an inference that defendant only attacked Ms. Thomas after she intentionally fired
a weapon at him.
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Opinion of the Court

that Ms. Thomas pointed a gun toward defendant in the absence of any provocation

on his part prior to his assault upon her. On the contrary, the statements that Ms.

Donnell attributed to Ms. Thomas reflect a fear on the part of Ms. Thomas that

defendant would kill her. In the absence of any affirmative evidence tending to show

that defendant assaulted Ms. Thomas based upon a perceived need to defend himself

against unlawful attack, the trial court was not required to instruct the jury

concerning the issue of self-defense. As a result, the trial court did not err by refusing

to instruct the jury that it was entitled to acquit defendant of assault on the grounds

of self-defense.

III. Conclusion

¶ 33 Thus, for the reasons set forth above, we hold that defendant properly

preserved his challenge to the trial court’s refusal to instruct the jury concerning the

law of self-defense for purposes of appellate review and that the trial court did not

err by refusing to deliver defendant’s requested self-defense instruction. As a result,

the Court of Appeals’ decision is modified and affirmed.

MODIFIED AND AFFIRMED.
 Chief Justice NEWBY concurring in part and dissenting in part.

¶ 34 On the merits, this case asks whether the trial court erred when it denied

defendant’s request for a jury instruction on self-defense. Were this issue preserved,

I agree with the majority that the trial court did not err. Because defendant failed to

preserve this issue for appellate review, however, this Court should not reach the

merits. Further, defendant failed to provide timely notice to the State of his intent to

offer a defense of self-defense as required by N.C.G.S. § 15A-905(c). The trial court,

therefore, appropriately exercised its discretion under N.C.G.S. § 15A-910(a) in

denying defendant’s requested instruction. Accordingly, I respectfully concur in part

and dissent in part.

¶ 35 “A party may not make any portion of the jury charge or omission therefrom

the basis of an issue presented on appeal unless the party objects thereto before the

jury retires to consider its verdict, stating distinctly that to which objection is made

and the grounds of the objection . . . .” N.C. R. App. P. 10(a)(2). A trial court must give

the parties or their attorneys an opportunity to object to the jury instructions (1) at

the charge conference, and (2) “[a]t the conclusion of the charge and before the jury

begins its deliberations.” Gen. R. Prac. Super. & Dist. Cts. 21. This Court has held

that “[w]here a defendant tells the trial court that he has no objection to an

instruction,” both at the charge conference and after the trial court charges the jury,

“he will not be heard to complain on appeal.” State v. White, 349 N.C. 535, 570, 508
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Newby, C.J., concurring in part and dissenting in part

S.E.2d 253, 275 (1998).

¶ 36 Relying on the decision in Wall v. Stout, the majority contends that the

objection requirement in Rule 10(a)(2) is achieved whenever “a request to alter an

instruction has been submitted and the trial judge has considered and refused the

request.” Wall v. Stout, 310 N.C. 184, 189, 311 S.E.2d 571, 574 (1984). This

conclusion, however, ignores the possibility that a party’s other conduct, including

the timing of any request, could render a mere request inadequate to preserve an

objection.

¶ 37 In Wall, the trial court held a charge conference after the conclusion of all

evidence and described the pattern jury instructions it intended to use. Id. at 188,

311 S.E.2d at 574. At that time, the plaintiffs’ counsel objected and asked the trial

court to remove various portions of the proposed instructions. Id. The trial court

overruled the request and instructed the jury as described at the charge conference.

Id. The plaintiffs’ counsel made no additional objections to the instructions after the

trial court’s jury charge concluded. Id. After the jury returned a verdict for defendant,

the plaintiffs appealed seeking a new trial based on the jury instructions used by the

trial court. See id. at 190, 311 S.E.2d at 575. Before turning to the merits of the

plaintiffs’ argument, this Court considered whether the plaintiffs properly preserved

this issue for appellate review. See id. at 187−89, 311 S.E.2d at 574−75.

¶ 38 This Court noted that “[i]n most instances” the purpose of Rule 10(a)(2) is “met
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Newby, C.J., concurring in part and dissenting in part

when a request to alter an instruction has been submitted and the trial judge has

considered and refused the request” because it will usually be “obvious that further

objection at the close of instructions would be unavailing.” Id. at 189, 311 S.E.2d at

574 (emphasis added). This reasoning held true in Wall because

[o]n the basis of the record . . . it appear[ed] plain that the
trial judge’s refusal at the charge conference to instruct in
accordance with plaintiffs’ proposals represented the
judge’s final decision and further objections would have
been not only useless but wasteful of the court’s time. As
such, we hold that plaintiffs’ failure to object following the
giving of the jury instructions does not foreclose review by
this Court of plaintiffs’ exceptions . . . .

Id. at 189, 311 S.E.2d at 575. The plaintiffs in Wall objected to the trial court’s

proposed instructions at the first opportunity required by Rule 21 of the General

Rules of Practice—the charge conference—and thereafter did nothing to indicate they

had changed their position. Thus, this Court concluded, based on those facts, that no

further action was required to preserve plaintiffs’ objection. Id.

¶ 39 Here, unlike in Wall, defendant’s conduct rendered his singular request for a

self-defense instruction insufficient to preserve the issue for appellate review. First,

at the Rule 21 charge conference, defendant affirmatively agreed to the trial court’s

proposed jury charge that did not include a self-defense instruction. The following

morning just before the trial court instructed the jury, defendant orally requested

that the trial court add a self-defense instruction to the jury charge. At that point,

the trial judge asked both defendant and the State for argument on whether it should
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Newby, C.J., concurring in part and dissenting in part

grant defendant’s request and explained its reasoning for denying the request.

Defendant did not note an objection to the trial court’s denial, and the trial court

proceeded to charge the jury without the requested self-defense instruction. Finally,

once the jury charge was complete, defendant told the trial court that he had no

“requests for additional instructions or for corrections or . . . objections to the

instructions given to the jury.”

¶ 40 Based on this sequence of events, it was not “obvious” at the conclusion of the

jury charge whether defendant objected or assented to the trial court’s instructions.

Wall, 310 N.C. at 189, 311 S.E.2d at 574. It is entirely possible that the reason

defendant did not object to the trial court’s denial of his request and subsequently

agreed with the trial court’s jury instructions is because defendant changed his mind

upon hearing the trial court’s reasoning for denying his request and agreed that a

self-defense instruction was improper. Accordingly, Wall is distinguishable and

should not control the outcome of this case. Instead, this case is controlled by White

where we said that “defense counsel . . . did not object when given the opportunity

either at the charge conference or after the charge had been given,” so any issue

regarding a requested instruction is not preserved. See White, 349 N.C. at 570, 508

S.E.2d at 275. Thus, defendant’s request for a self-defense instruction was, without
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Newby, C.J., concurring in part and dissenting in part

more, insufficient to preserve the issue for appellate review.1

¶ 41 Additionally, the majority concludes that the trial court could not have denied

defendant’s requested instruction under the notice requirement of N.C.G.S. § 15A-

905(c) because it failed to first consider the “totality of the circumstances,” as required

by N.C.G.S. § 15A-910(b). The record does not support this conclusion.

¶ 42 During discovery, a criminal defendant must “[g]ive notice to the State of the

intent to offer at trial a defense of . . . self-defense.” N.C.G.S. § 15A-905(c)(1) (2021).

If a defendant fails to satisfy this or other discovery requirements, the trial court

may: “(1) [o]rder the party to permit the discovery or inspection, or (2) [g]rant a

continuance or recess, or (3) [p]rohibit the party from introducing evidence not

disclosed, or (3a) [d]eclare a mistrial, or (3b) [d]ismiss the charge, with or without

prejudice, or (4) [e]nter other appropriate orders.” N.C.G.S. § 15A-910(a) (2021).

Before ordering any remedy under subsection (a), the trial court must “consider both

the materiality of the subject matter and the totality of the circumstances

surrounding [the] alleged failure to comply with” the notice requirement and “make

specific findings justifying the imposed sanction.” N.C.G.S. § 15A-910(b), (d) (2021).

¶ 43 However, “[t]he choice of which sanction to apply, if any, rests in the sound

discretion of the trial court.” State v. Gladden, 315 N.C. 398, 412, 340 S.E.2d 673, 682

1 Because defendant failed to preserve his objection to the trial court’s jury
instructions under Rule 10(a)(2) of the Rules of Appellate Procedure, it is unnecessary to
address whether defendant’s conduct constituted invited error.
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Newby, C.J., concurring in part and dissenting in part

(1986); see also State v. Dukes, 305 N.C. 387, 390, 289 S.E.2d 561, 563 (1982) (“This

statute . . . is permissive and not mandatory, and the remedy for failure to provide

discovery rests within the trial court’s discretion.”). Accordingly, the trial court’s

selected remedy under N.C.G.S. § 15A-910(a) “is not reviewable absent a showing of

an abuse of that discretion.” Gladden, 315 N.C. at 412, 340 S.E.2d at 682. We reverse

a trial court’s decision for abuse of discretion “only upon a showing that its ruling [is]

so arbitrary that it could not have been the result of a reasoned decision.” Id. (citing

State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985)).

¶ 44 Both parties agree that defendant failed to provide the required notice of his

intent to offer a defense of self-defense. As such, the trial court acted within its

statutory discretion to enter any “appropriate order” under N.C.G.S. § 15A-910(a)

when it denied defendant’s request for a self-defense instruction. Further, the trial

court complied with the requirements of N.C.G.S. § 15A-910(b) and (d) before denying

defendant’s request. Once defendant requested a self-defense instruction, the trial

court asked defendant and the State for argument on whether it should grant the

request and then provided its basis for denying the request on the record.

¶ 45 Specifically, the trial court considered the fact that no notice was given to the

State as required by N.C.G.S. § 15A-905(c), the State objected to the inclusion of the

instruction, defendant agreed to the proposed instructions the previous day, the

evidence at trial did not support the inclusion of a self-defense instruction, and the
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Newby, C.J., concurring in part and dissenting in part

jury could not properly assess what defendant believed at the time of the incident

because defendant chose not to testify. See N.C.P.I.−Crim. 308.40 (2020) (providing

that a standard self-defense instruction includes consideration of what the defendant

believed at the time he or she acted with force). The trial court recorded these findings

orally on the record.

¶ 46 These actions satisfy the analysis required by N.C.G.S. § 15A-910(b) and (d).

Since the trial court weighed various factors related to the parties’ conduct and the

evidence at trial, it did not abuse its discretion under N.C.G.S. § 15A-910(a) in

denying defendant’s request for a self-defense instruction.

¶ 47 Nonetheless, were the Court to reach the question of whether the trial court

erred in refusing to give a self-defense instruction, I agree with the majority that the

trial court did not err. Accordingly, I concur in part and dissent in part.

Justices BERGER and BARRINGER join in this concurring in part and

dissenting in part opinion.
 Justice EARLS concurring in part and dissenting in part.

¶ 48 “This Court has consistently held that ‘where competent evidence of self-

defense is presented at trial, the defendant is entitled to an instruction on this

defense, as it is a substantial and essential feature of the case, and the trial judge

must give the instruction even absent any specific request by the defendant.’ ” State

v. Coley, 375 N.C. 156, 159 (2020) (quoting State v. Morgan, 315 N.C. 626, 643 (1986)).

“In determining whether a defendant has presented competent evidence sufficient to

support a self-defense instruction, we take the evidence as true and consider it in the

light most favorable to the defendant.” Coley, 375 N.C. at 159. Applying this well-

established standard to the facts of this case, it was error for the trial court to fail to

instruct the jury on self-defense. To hold otherwise, the majority advances an

astounding proposition: Even if, as Mr. Hooper’s evidence suggests, Ashley Thomas

had grabbed a gun, pointed it at him, fired it, and he then tried to wrestle the gun

away from her, there is nevertheless no evidence “tending to show that defendant

assaulted Ms. Thomas based upon a perceived need to defend himself against

unlawful attack.” The notion that the jury could not reasonably infer that Mr. Hooper

feared for his life after being shot in his hotel room, a place he had a legal right to be,

goes against common sense and well-established precedent. Therefore, I concur with

the majority that this issue was preserved for review on appeal, but I dissent from

the conclusion that Mr. Hooper’s evidence in this case did not justify the submission
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Earls, J., concurring in part and dissenting in part

of a self-defense instruction to the jury. The jury was free to believe the State’s

witnesses over Mr. Hooper’s, but they needed to know the law of self-defense to

properly assess his guilt.

A. Defendant’s Evidence

¶ 49 Though Mr. Hooper did not testify at his trial, his statement regarding the

incident, made just hours afterwards, was in evidence. He told law enforcement that

Ms. Thomas, the alleged victim, entered his hotel room with their son on 4 March

2017. Ms. Thomas and Mr. Hooper had a conversation that turned into an argument,

at which point Ms. Thomas pulled out a gun that she had received from a friend. Mr.

Hooper explained that he approached her to take the gun away from her, she fired a

shot, a struggle ensued, and she shot the gun a second time, this time hitting Mr.

Hooper in the leg.

¶ 50 Mr. Hooper’s mother, Felicia Donnell, corroborated this version of events. She

testified that Ms. Thomas called her after the incident took place to inform Ms.

Donnell that she shot Ms. Donnell’s son. According to Ms. Donnell, Ms. Thomas

explained that she pointed a gun at Mr. Hooper and fired a shot after Mr. Hooper

demanded that she give him the weapon. This shot did not hit Mr. Hooper. Ms.

Thomas told Ms. Donnell that a scuffle then ensued during which she fired a second

shot. Ms. Thomas said that this second shot hit Mr. Hooper’s leg. Ms. Donnell testified

that her understanding was that there was no physical altercation between Ms.
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Thomas and Mr. Hooper until after the first shot was fired. She further testified that

the assault took place during the interval between shots, when Mr. Hooper choked

and punched Ms. Thomas.

¶ 51 Another one of Mr. Hooper’s witnesses and the mother of one of his sons—

Marcelina Machoca—testified that she communicated with Ms. Thomas before the

incident took place. Ms. Machoca explained that Ms. Thomas was upset that Mr.

Hooper had spent time with Ms. Machoca because Mr. Hooper and Ms. Thomas were

having conversations about getting back together. According to Ms. Machoca, during

this conversation, Ms. Thomas told her that Ms. Thomas had a gun and would “have

no problem” using it against Mr. Hooper.

B. Requirement of Self-Defense Instruction

¶ 52 In the light most favorable to Mr. Hooper, this evidence shows that, before the

incident occurred, Ms. Thomas acquired a gun that she felt prepared to use on Mr.

Hooper. On the day of the incident, Ms. Thomas pointed a gun at him, which she then

fired. Mr. Hooper attempted to disarm her to protect himself, but she ultimately shot

him in the leg. This evidence, supported by two witnesses, as well as by Mr. Hooper’s

own statement about what happened, which he made to a police officer while he was

in the hospital receiving treatment for his injury, is sufficient to warrant a jury

instruction on self-defense.

¶ 53 The majority recognizes that Mr. Hooper introduced this evidence but
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nonetheless concludes that there is “no evidence” that Mr. Hooper assaulted Ms.

Thomas in self-defense. The majority explains that “even if the first gunshot occurred

before defendant assaulted Ms. Thomas, the record contains no indication that

defendant assaulted for the purpose of defending himself from any unlawfully

assaultive conduct on the part of Ms. Thomas.” This is a remarkably untenable

conclusion. In fact, and very much to the contrary, Mr. Hooper’s evidence tended to

show that his disgruntled ex-girlfriend arrived at his hotel room, at which point an

argument ensued. The evidence suggests that, during this argument, Ms. Thomas

pointed a gun at him and fired before he used any force against her. A predictable

response to such conduct is to use physical force as a means of self-protection. This

response was made even more obviously necessary by the fact that Ms. Thomas then

fired the gun a second time, hitting Mr. Hooper in his leg.

¶ 54 Thus, taking Mr. Hooper’s version of events in the light most favorable to him,

a reasonable jury could conclude that, after Ms. Thomas pointed the gun at him and

fired once, (1) Mr. Hooper reasonably believed his conduct was necessary to defend

himself (2) from Ms. Thomas’s imminent use of unlawful force.1 See N.C.G.S. § 14-

51.3(a) (2021). The majority’s conclusion that “none of this evidence tended to show

1 The majority repeatedly interprets the evidence in the light most favorable to the
State, which is, of course, improper. For example, the majority’s “careful study of the record”
suggests that Mr. Hooper was not trying to defend himself when he tried to take the gun
away from Ms. Thomas but instead was unlawfully assaulting her. That inference implicitly
favors the State when the Court should be making an inference in favor of Mr. Hooper.
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Earls, J., concurring in part and dissenting in part

that defendant assaulted Ms. Thomas for the purpose of protecting himself from any

unlawful use of force” defies logic, common sense, and countless cases that have

examined whether a person who is being shot at or faces the imminent possibility of

being shot has the right to defend themselves. See, e.g., State v. Greenfield, 375 N.C.

434, 436–37, 442 (2020) (holding that the evidence was sufficient to entitle defendant

to a self-defense jury instruction where defendant’s evidence was that he did not point

his gun at anyone until the surviving victim emerged from the bedroom pointing

a gun at him); State v. Lee, 370 N.C. 671, 672, 676–77 (2018) (holding that a self-

defense instruction was warranted where defendant asserted that he fired the fatal

shot only after the victim turned the gun on him and defendant introduced evidence

supporting his version of events); State v. Moore, 363 N.C. 793, 794, 798 (2010)

(holding that defendant was entitled to a jury instruction on self-defense, despite

conflict between defendant’s evidence and the State’s evidence, where victim of

shooting was unarmed but evidence presented at trial, when viewed in the light most

favorable to defendant, suggested the victim could have had a gun); see also State v.

Irabor, 262 N.C. App. 490, 494–95 (2018) (holding that defendant was entitled to a

jury instruction on self-defense, despite the State’s contention that the evidence was

conflicting, where victim of shooting did not have a gun but evidence presented at

trial, when viewed in the light most favorable to defendant, suggested the victim

could have been armed); State v. Johnson, 184 N.C. 637, 645 (1922) (holding that the
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Earls, J., concurring in part and dissenting in part

defendant was entitled to a jury instruction on self-defense where there was evidence

that defendant did not stab the victim with a knife until the victim assaulted him).

¶ 55 The majority cites Mr. Hooper’s “history of inflicting physical abuse upon his

romantic partners” as part of the State’s evidence that a self-defense instruction was

unwarranted under the circumstances. But the evidence introduced at trial indicates

that this “history” is much more limited than the majority suggests. First, Ms.

Machoca testified on cross-examination that several years earlier, Mr. Hooper “pulled

out a gun on” her brother on one occasion and assaulted her on another. Ms. Machoca

was careful to emphasize that the incidents took place years ago, and she provided

no other context or details about what happened. Additionally, Ms. Donnell testified

on cross-examination that Ms. Thomas and Mr. Hooper’s “relationship is like nitro

and glycerin.” However evocative the characterization, and regardless of how

extensive or limited this history is, such evidence is irrelevant to the question of

whether Mr. Hooper’s evidence merits a self-defense instruction. This point

highlights a larger, key principle in determining whether a self-defense instruction

is proper: The State’s evidence, however convincing, cannot negate evidence

presented by a defendant for the purpose of determining whether a jury should be

instructed on self-defense. See, e.g., State v. Greenfield, 375 N.C. at 440 (quoting State

v. Mash, 323 N.C. 39, 348 (1988)) (“ ‘To resolve whether a defendant is entitled to a

requested instruction, we review de novo whether each element of the defense is
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Earls, J., concurring in part and dissenting in part

supported by the evidence, when taken in the light most favorable to defendant.’ ”).

¶ 56 The State could have offered hours upon hours of testimony demonstrating

that Mr. Hooper was the aggressor and was therefore not justified in assaulting Ms.

Thomas. Indeed, the State may have offered significant evidence to rebut every

element of the self-defense instruction. The question for the trial court, however, was

whether Mr. Hooper offered sufficient competent evidence of each element of self-

defense such that a reasonable jury could, if they believed that evidence, conclude

that he acted in self-defense in assaulting Ms. Thomas. See, e.g., Moore, 363 N.C. at

796 (“[I]f the defendant’s evidence, taken as true, is sufficient to support an

instruction for self-defense, it must be given even though the State’s evidence is

contradictory.”); State v. Webster, 324 N.C. 385, 391 (1989) (“In determining whether

there was any evidence of self-defense presented, the evidence must be interpreted in

the light most favorable to defendant.” (citing State v. Gappins, 320 N.C. 64, 71

(1987))). If believed, Mr. Hooper’s evidence here was sufficient to show that, unarmed,

he acted in self-defense when he assaulted Ms. Thomas after Ms. Thomas pointed

and shot a gun at him.

¶ 57 Surely, if the roles were reversed and Ms. Thomas were on trial for assault,

there would be no hesitation to give the jury an instruction on self-defense. In other

words, would this Court hold that there is no evidence that Ms. Thomas was trying

to defend herself if 1) Ms. Thomas had been shot in the leg while Mr. Hooper
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sustained a bite mark, a swollen jaw, red marks on his neck, and broken fingernails,

and 2) a witness for Ms. Thomas testified that, very shortly after the incident, Mr.

Hooper told Ms. Thomas’s mother that he fired the gun once and only then did Ms.

Thomas try to choke him before he fired a second time? The answer to this question,

I believe, is a resounding no. Recognizing this likely discrepancy in result, it is

important to remember that both men and woman may be victims of intimate partner

violence.2 Assuming that Ms. Thomas must have been the victim of an assault in this

incident without properly crediting Mr. Hooper’s version of events is both counter to

the law of self-defense and runs the risk of ignoring this important reality.

¶ 58 Perhaps it is true that on 4 March 2017 Ms. Thomas was the victim of an

unprovoked assault by Mr. Hooper in his hotel room in front of their young son. But

Mr. Hooper produced evidence showing the opposite to be true, namely that he was

the victim and that Ms. Thomas, the aggressor, was angry about his behavior with

another woman and entered his room looking for a fight. It is neither this Court’s nor

2 There is debate among scholars over the relative extent to which women and men
are victims of domestic violence. Compare Amanda J. Schmesser, Real Men May Not Cry, but
They are Victims of Domestic Violence: Bias in the Application of Domestic Violence Laws, 58
Syracuse L. Rev. 171, 186–89 (2007) (reviewing studies indicating gender symmetry, that is,
just as many men as women are victims of domestic violence), with Michael S. Kimmel,
‘Gender Symmetry’ in Domestic Violence: A Substantive and Methodological Research Review,
8 Violence Against Women 1332 (2002) (reviewing research including over 100 studies
showing gender symmetry and cautioning that different conclusions are warranted when
more nuanced factors are considered such as severity of injury). There is no need to resolve
this debate for the purposes of the point being made here; all agree that intimate partner
violence must be taken seriously and that all victims, regardless of gender, deserve equal
access to laws that serve to protect and defend them.
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Earls, J., concurring in part and dissenting in part

the trial court’s duty to determine whose evidence was more convincing. Rather, the

guiding principle courts must follow is that “although there may be contradictory

evidence from the State or discrepancies in the defendant’s evidence, . . . the trial

court must charge the jury on self-defense where there is evidence that the defendant

acted in self-defense.” Coley, 375 N.C. at 163. In light of the evidence produced by

both parties, it was the jury’s duty to determine in whose favor it weighed after

having been properly instructed on the law of self-defense in North Carolina.

¶ 59 Having concluded that a jury instruction on self-defense was warranted, I

would also hold that it was prejudicial error for the trial court to fail to give that

instruction, as there is a reasonable possibility that had the instruction been given,

a different result would have been reached at trial. See N.C.G.S. § 15A-1443(a) (2021);

State v. Bass, 371 N.C. 535, 542 (2018) (announcing that when self-defense

instruction omitted relevant language, “[d]efendant is entitled to a trial with

complete and accurate jury instructions”). I would therefore reverse the decision of

the Court of Appeals, vacate the trial court’s judgment, and remand this case to the

trial court for a new trial.