An unpublished opinion of the North Carolina Court of Appeals does not constitute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-
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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.
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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
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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.
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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
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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
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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
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[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
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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
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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
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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
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(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. ___,
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___, 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.
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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.
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No error.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).