An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                                 NO. COA13-1173
                         NORTH CAROLINA COURT OF APPEALS

                              Filed: 2 September 2014


STATE OF NORTH CAROLINA

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


      Appeal by defendant from judgment entered 17 May 2013 by

Judge Nathaniel J. Poovey in Cleveland County Superior Court.

Heard in the Court of Appeals 9 April 2014.


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

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


      GEER, Judge.


      Defendant Rahul Rumar Mack appeals from a judgment entered

based upon his convictions of habitual misdemeanor assault on a

female     and   being    a   habitual    felon.        On   appeal,    defendant

primarily argues that the trial court committed plain error in

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

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

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

evidence was sufficient to support the "aggressor" portion of

the instruction.      We, therefore, find no error.

                                   Facts

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

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

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

several tenants.          The house has two apartments on the first

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

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

that    also    has   a    staircase     leading    to    the    second    floor

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

common area.

       On 29 August 2011, defendant was living with his mother

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

visiting tenants who were living in the house, including Bonnie

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

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

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

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

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

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

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

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

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

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

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

her apartment.

      Defendant returned shortly thereafter and again knocked on

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

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

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

went back into her apartment.             Defendant was still intoxicated.

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

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

Defendant     was   inside    the    common    area        while    Kashia    was    just

outside the front door.

      Ms.   Elliott     wanted      to   confront         defendant,    but    she    was

afraid of becoming involved in an altercation with him while he

was intoxicated.        She opened her door and asked defendant what

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

to go upstairs.        Defendant then suddenly became angry, started

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

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

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

Mr. Carroll came out of his apartment and separated defendant

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

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

Thompson    would     not   let    her   go    back    outside    the     apartment.

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

the police arrived, and defendant was arrested.

    Defendant was indicted for habitual misdemeanor assault on

a female and being a habitual felon.                    Defendant presented no

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

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

confronted defendant, she was already holding either a closed

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

self-defense.

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

had previously stipulated to having two prior convictions of

assault on a female, making him guilty of habitual misdemeanor

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

habitual    felon.        The    trial   court       sentenced    defendant      to    a

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

timely appealed to this Court.
                                            -5-
                                             I

    Defendant          first   argues       that    the     trial     court     erred      in

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

defendant    arrested        and     also   in     prohibiting        reference       to   an

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

not want defendant prosecuted.                    The trial court excluded this

evidence under Rule 403 of the Rules of Evidence.

    "'The determination of whether relevant evidence should be

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

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

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

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

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

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

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

has properly weighed both the probative and prejudicial value of

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

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

    Defendant contends that evidence showing that Ms. Elliott

did not want defendant arrested or prosecuted was relevant to

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

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

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

consequence to the determination of the action more probable or

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

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

excluded if its probative value is substantially outweighed by

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

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

tendency to suggest decision on an improper basis, commonly,

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

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

(internal quotation marks omitted).

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

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

allowed to testify that after defendant saw her with an object

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

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

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

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

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

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

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

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

court sustained the objections.

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

voir dire hearing to determine whether defense counsel would be

permitted to reference an affidavit Ms. Elliott had signed in

September 2012 indicating that she had never wanted defendant to

be prosecuted for striking her.               The trial court prohibited any

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

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

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

prejudicial."      Although acknowledging that the evidence could be

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

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

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

unfair prejudice."

      The trial court explained that the affidavit might cause

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

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

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

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

appellant argues the court erred in excluding was the                          joint

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

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

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

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

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

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

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

not be prosecuted.").

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

manifestly unreasonable in determining that the potential unfair

prejudice outweighed any probative value of the evidence.                       Ms.

Elliott   not    only   provided    all      of    the    evidence    supporting

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

testify   regarding     her   belief    that      defendant     thought   he    was

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

the trial court could reasonably conclude that the fact Ms.

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

landlady and apparently someone with whom she was friendly --

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

testimony suggested that she believed defendant was acting in

self-defense, the evidence was cumulative.

      As a result, the trial court reasonably concluded that the

risk that the jury would rely upon the excluded evidence to

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

that the trial court did not abuse its discretion when excluding

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

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

its discretion in excluding relevant evidence under Rule 403,

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

conducted   a   voir    dire    hearing       suggesting      that   it   carefully

weighed the probative value of the evidence against the danger

of unfair prejudice to defendant" and that excluded evidence was

cumulative).

                                        II

    Acknowledging       that     he     failed    to    object       to   the    jury

instructions    given   at     trial,    defendant     also     argues    that   the

trial court committed plain error when it instructed the jury

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

he was the "aggressor."

    The trial court gave the following instruction:

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

                 . . . .

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

Defendant contends that the State did not present any evidence

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

aggressor portion of the instruction should have been omitted.

    We     first     address    the     State's    contention      that     any       error

amounted     to      invited     error.          Our     appellate      courts        have

"consistently        denied    appellate       review   to   defendants         who   have

attempted       to   assign     error     to     the    granting     of    their       own

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

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

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

instructed adequately on the law and in a manner requested by

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

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

    During the charge conference defense counsel requested that

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

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

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

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

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

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

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

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

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

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

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

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

       The trial court granted defendant's request and gave the

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

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

deliberate, the trial court asked whether either party had any

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

no requests."

       Defendant       contends    that    the    exchange        between     his     trial

counsel and the trial court constituted "merely a failure to

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

appellate       review.      However,      in    his   exchange        with    the    trial

court,    defense      counsel     not    only    requested       the    pattern      jury

instruction,       but    also    twice    argued      to   the    trial      court   that

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

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

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

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

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

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

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

defendant cannot now claim on appeal that he was prejudiced by

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

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

modification       of    the    pattern        jury    instruction;            in    fact,     he

specifically requested the exact language of the charge that was

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

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

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

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

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

does    not   dispute     that       the   pattern      jury       instruction         properly

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

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

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

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

defense [of self-defense]").

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

defendant        can     be     considered            the     aggressor             when     [he]

'aggressively and willingly enters into a fight without legal

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

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

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

this    rule      whenever   he    has    wrongfully        assaulted   another    or

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

difficulty        by   language    or    conduct      towards    another    that   is

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

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

quotation marks omitted).

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

her apartment, she interrupted defendant, while he was yelling

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

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

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

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

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

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

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

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

testified that Ms. Elliott retreated into the apartment to grab

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

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

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

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

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

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

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

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

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

defendant was the aggressor.               All relevant testimony tends to

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

victim]   emerged     from      behind    defendant's        trailer      only    after

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

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

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

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

evidence in the record which would support an inference that

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

voluntarily" given that testimony at trial "was consistent that

defendant    verbally      harassed      [the   victim]      and   the    others    and

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

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

aggressor    portion       of   the     self-defense      instruction.            Since

defendant makes no other argument, we hold defendant received a

trial free of prejudicial error.
                         -15-


No error.

Judges STEPHENS and ERVIN concur.

Report per Rule 30(e).
