State v Fredrick, (02-237) 06/03/2003

Appeal by defendant from judgment entered 14 September 2001 by Judge James U. Downs in Rutherford County Superior Court. Heard in the Court of Appeals 27 January 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General Edwin W. Welch, for the State.

Marjorie S. Canaday for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Ralph Franklin Fredrick was tried before a jury at the 4 September 2001 Criminal Session of Rutherford County Superior Court after being charged with attempted first-degree murder and first-degree burglary. The State's evidence showed the following: Defendant and Ms. Carolyn Dover were romantically involved from 1993 through 1998, when defendant went to jail on a DWI conviction. Ms. Dover dealt with some of defendant's finances while he was incarcerated, but the two had a fight over money defendant said was missing from a bank card in early 1999. After her relationship ended with defendant, Ms. Dover began dating Mr. Eric Turner and was seeing him in August of 1999.     On the afternoon of 27 August, Ms. Dover and Mr. Turner went to the grocery store and returned to her house. As Ms. Dover was putting the groceries away in her kitchen, she looked outside the kitchen door and saw defendant talking to someone across the street at a daycare center. When Ms. Dover went into her bedroom a short time later, she heard defendant yelling and saw him standing outside her bedroom window. Though she did not see a gun, she heard one shot fired. Ms. Dover got down on the floor and made her way to the telephone in her den, where she called 911. When officers responded to the scene, Ms. Dover told them that defendant fired a shot at her house. After unsuccessfully searching for the bullet hole and defendant, the officers wrote a report and left.     Approximately fifteen minutes later, defendant returned to Ms. Dover's house. Mr. Turner, who was seated in a recliner in the living room, testified that the storm door was closed, but the wooden portion of the front door was open. Mr. Turner stated that defendant jerked the door open, entered the house with his .38 caliber pistol drawn, and yelled, “I'm going to kill both of you- all. Both of you MFs.” Mr. Turner stated he raised both his hands and said, “Why you doing this?” and “Please don't do this.” Defendant fired two shots at Mr. Turner. One bullet lodged in the wall behind the recliner; the other bullet struck Mr. Turner in the mouth, knocked out two of his teeth, and lodged in his throat. Defendant then went down the hallway toward Ms. Dover, who was in the bathroom. When she saw defendant, Ms. Dover fell to her knees, begged him not to shoot her and said, “Don't do this.” Defendantpointed the pistol directly at her and stated, “And you too bitch.” Ms. Dover raised her hand as he fired. The bullet went through two of her fingers, down the side of her neck and left side, and into her back, fracturing several ribs. Defendant then said, “I hope both you mother f_ _ _ers die[]” and left the house.
    Ms. Dover could see into the living room and discovered that Mr. Turner had been shot and was lying bleeding on the floor. She told him not to move in case defendant was nearby, and the two remained where they had fallen for approximately twenty minutes. Ms. Dover told Mr. Turner they needed help and began crawling toward the telephone in the kitchen; however, the phone often malfunctioned and did not have a dial tone when Ms. Dover tried to use it. Mr. Turner got up and made his way to the next door neighbor's house. The neighbor saw Mr. Turner in the driveway near her car, noticed that he was bleeding from his mouth, and called 911.
    Officers from the Rutherford County Sheriff's Office responded to the 911 call and arrived at Ms. Dover's home around 10:15 p.m. Upon arrival, the officers saw a large pool of blood in front of the entrance way, blood on the recliner, and blood in the bathroom down the hallway. The officers did not find anyone in the house. The officers found Mr. Turner's two teeth behind the recliner and retrieved a .38 caliber slug from a bullet hole located on a door molding above the recliner.
    The three officers who responded to Ms. Dover's earlier call were still nearby and were discussing the situation they hadreported at Ms. Dover's house. As the officers talked, defendant was seen walking up the road. Officer Keever drew his gun and ordered defendant three times to get on the ground. Defendant complied after the third order. Officer Keever seized a gun sticking out of defendant's back pocket, as well as approximately twenty rounds of live ammunition from defendant's front pocket. Defendant was then arrested.
    On 1 September 1999, the bullet in Ms. Dover's back was successfully removed by Dr. Robert Terry. The procedure was witnessed by an officer, who seized the bullet as evidence for the State Bureau of Investigation (SBI). The bullet in Mr. Turner's throat could not be removed, and he had to have a tracheotomy for six months to assist his breathing. The State later presented the testimony of SBI Special Agent Ronald Marrs, who examined two bullets retrieved by officers as well as defendant's gun. Special Agent Marrs stated that the two bullets had been fired from defendant's gun.
    The State also presented the testimony of several officers from the Rutherford County Sheriff's Office, who described two prior altercations between the victims and defendant which occurred in the spring of 1999. In late April or early May 1999, defendant drove a riding lawn mower against a car in the driveway he shared with Ms. Debra Francis and prevented it from moving. According to Ms. Francis, defendant “started yelling and screaming and telling both of them [Ms. Dover and Mr. Turner] that he was going to kill them.” On 29 May, defendant jumped on Mr. Turner while Mr. Turnerand Ms. Dover were walking near her home. Mr. Turner was carrying a gun, which went off once while he and defendant struggled on the ground; Mr. Turner sustained an injury to one of his fingers. The police officer who arrived on the scene took Mr. Turner's gun away from defendant and charged defendant with carrying a concealed weapon.
    After presenting the testimony of thirteen witnesses, the State rested. Defendant testified on his own behalf and stated that his relationship with Ms. Dover ended after a dispute over money. He also testified regarding the two prior incidents between himself and the victims. Defendant stated that he was riding a lawn mower and tried to go up his driveway, but it was blocked by Ms. Francis' car. He denied cursing at them or threatening them. As to the second incident, defendant stated Mr. Turner was drunk, approached him, and shot point-blank at his face. Defendant admitted he had been drinking that day, but stated he was unarmed and tackled Mr. Turner to protect himself.
    With regard to the 27 August shooting, defendant stated he had an ongoing drinking problem and had sought treatment for it. On 27 August, he returned from a treatment center and discovered his trailer had been broken into and his stereo had been stolen by his son. Defendant admitted he drank a large quantity of alcohol because he was upset, and that he retrieved his .38 caliber pistol because he wanted to have some protection when he went to Forest City to get back his stereo. As he was walking to his friend Jimmy Laster's house to ask for a ride to Forest City, defendant passedby Ms. Dover's house and saw the police there. He stated he heard the police tell Ms. Dover and Mr. Turner to call them if they saw defendant, and he became angry. Defendant testified he wanted to talk to the victims because they had previously called the police to complain about his loud music, and he was “tired” of it.
    Defendant stated he could see Mr. Turner sitting in the recliner when he knocked on the door, and that Mr. Turner saw defendant and reached toward his pocket. Defendant stated he believed Mr. Turner was reaching for a gun, so he shot once at Mr. Turner from outdoors. After firing the shot, defendant stated that Ms. Dover ran out of the bathroom yelling; that he fired “one time in the air over her head” and did not know how she was shot, because he “sure wasn't shooting at her.” Defendant stated he slammed the door after firing the shots and told the victims, “You- all -- you people need to quit messing with me. I'm not bothering you.” Defendant stated he had been drinking and that “everything was a blur” because of the alcohol, and he did not realize that either Ms. Dover or Mr. Turner had been shot when he left Ms. Dover's house. Defendant stated he walked for a few minutes after the shooting, then saw Jimmy Laster and asked for a ride to Forest City. A short time later, defendant realized he was intoxicated.
    Defendant also presented the testimony of his sister, who stated that her brother was truthful “to the best of his ability.” She noted, however, that her brother had a drinking problem and became violent when he was drinking. Defendant also called Detective James Fish, who was the assistant jail administrator andknew defendant during his confinement from 27 August 1999 to 31 March 2000. Detective Fish stated defendant was always nice and polite, and appeared to be truthful. Finally, Mr. Laster testified that he believed defendant was intoxicated when he saw him on 27 August, and that defendant told him he had just shot Ms. Dover and Mr. Turner.
    The State presented rebuttal testimony from two witnesses, Captain David Philbeck and Detective Mike Hollifield of the Rutherford County Sheriff's Office. Captain Philbeck stated that when he interviewed defendant hours after the shootings and asked if defendant shot the victims, defendant answered, “No, but I hope they both die.” Defendant elaborated and stated, “I didn't shoot them. But if I had, they would have been head shots and they wouldn't be talking today, tomorrow, or ever.” Defendant told Captain Philbeck he consumed some vodka and a beer during the day; however, Captain Philbeck testified he did not believe defendant was intoxicated at the time he talked with him. Detective Hollifield stated he did not believe defendant was intoxicated, and he did not detect an odor of alcohol about him.
    The jury found defendant guilty of the attempted first-degree murder of Carolyn Dover and felonious breaking and entering. He was found not guilty of the attempted first-degree murder of Eric Turner. The trial court determined that defendant had a prior record level of II and sentenced him to a consolidated term of 251 to 311 months' imprisonment for his convictions. Defendant appealed in open court.     On appeal, defendant argues the trial court erred by (I) failing to instruct the jury on self-defense pursuant to the doctrine of transferred intent; (II) failing to instruct the jury on assault with a deadly weapon inflicting serious injury and assault with a deadly weapon with intent to kill inflicting serious injury; (III) denying his request for an instruction on attempted voluntary manslaughter; (IV) impermissibly commenting on the evidence; (V) trying and sentencing him upon a defective indictment; and that (VI) his conviction for attempted first-degree murder was obtained in violation of his state and federal constitutional rights to effective assistance of counsel. For the reasons set forth herein, we are not persuaded by defendant's arguments and conclude he received a trial free from reversible error.

    By his first assignment of error, defendant contends the trial court committed plain error by failing to instruct the jury on self-defense based on the doctrine of transferred intent because the evidence supported such an instruction. We do not agree.
        “[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or 'where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has '“resulted in a miscarriage of justice or in the denial to appellant of a fair trial”' or where the error is such as to “seriously affect the fairness, integrity orpublic reputation of judicial proceedings, or where it can be fairly said 'the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.'”
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983), (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982) (footnotes omitted) (emphasis in original). On appeal, we “must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.” Odom, 307 N.C. at 661, 300 S.E.2d at 379.
    In the present case, the trial court instructed the jury that defendant would not be guilty of the attempted first-degree murder of Eric Turner if he acted in self-defense. The trial court further stated that the jury was not permitted to consider whether defendant acted in self-defense regarding the attempted first- degree murder of Carolyn Dover. After deliberating, the jury found defendant not guilty of the attempted first-degree murder of Eric Turner, but did find defendant guilty of the attempted first-degree murder of Carolyn Dover.
    “It is an elementary rule of law that a trial judge is required to declare and explain the law arising on the evidence and to instruct according to the evidence.” State v. Strickland, 307 N.C. 274, 284, 298 S.E.2d 645, 652 (1983), overruled in part on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986). The common law doctrine of transferred intent has been explained as follows:            It is an accepted principle of law that where one is engaged in an affray with another and unintentionally kills a bystander or a third person, his act shall be interpreted with reference to his intent and conduct towards his adversary. Criminal liability, if any, and the degree of homicide must be thereby determined. Such a person is guilty or innocent exactly as [if] the fatal act had caused the death of his adversary. It has been aptly stated that “The malice or intent follows the bullet.” 40 Am. Jur., 2d Homicide, § 11, p. 302 [(1968)].

State v. Wynn, 278 N.C. 513, 519, 180 S.E.2d 135, 139 (1971) (citations omitted). Generally speaking, “an instruction on transferred intent is appropriate where an unintended victim is harmed.” State v. Andrews, ___ N.C. App. ___, ___, 572 S.E.2d 798, 802 (2002). Furthermore, “under the doctrine of transferred intent, it is immaterial whether the defendant intended injury to the person actually harmed; if he in fact acted with the required or elemental intent toward someone, that intent suffices as the intent element of the crime charged as a matter of substantive law.” State v. Locklear, 331 N.C. 239, 245, 415 S.E.2d 726, 730 (1992).
    Upon review of the facts of the present case, we believe the trial court properly declined to instruct the jury on self-defense based on transferred intent with regard to the attempted first- degree murder of Ms. Dover. Defendant testified that Mr. Turner shot at him without provocation on 29 May 1999, and that this episode caused him to believe Mr. Turner was reaching for a gun on 27 August. Defendant further stated that he fired two shots; one at Mr. Turner, “[a]nd [Ms. Dover] ran out of the bathroomhollering, and I shot one time up in the air over her head. Now, how she got hit with a bullet, I don't know. Because I sure wasn't shooting at her.” This testimony did not indicate that defendant fired at Mr. Turner in self-defense and that the shot missed Mr. Turner and instead hit Ms. Dover. Nor does defendant's testimony indicate that he was trying to defend himself by firing over Ms. Dover's head to frighten her. Rather, the logical inference from defendant's testimony is that the shot in Ms. Dover's direction had nothing to do with self-defense or an errant bullet but was, instead, directly fired at her.
    The police found blood on the recliner where Mr. Turner was seated and discovered another area of blood in the bathroom down the hall from the room in which the recliner was located. Moreover, the police determined that three shots were fired -- one which struck Mr. Turner and lodged in his throat, one that hit the wall behind the recliner, and one that was surgically removed from Ms. Dover's back. Based on the forensic evidence, as well as the testimony of the victims, it appears that defendant shot Mr. Turner, stepped over him, and made his way down the hallway to the bathroom, where he shot Ms. Dover.
    During the charge conference, the trial court and the prosecutor agreed that an instruction on transferred intent was not warranted by the evidence, even in light of defendant's testimony to the contrary. Defendant's attorney did not request such an instruction, nor did he object to the instructions as given. Though defendant now argues the absence of the instruction wasplain error, we do not believe his argument is persuasive.
    Finally, we note that, in the absence of a claim by defendant that he fired a particular shot at another person in self-defense, he is not entitled to an instruction on self-defense. See State v. Nicholson, 355 N.C. 1, 30-31, 558 S.E.2d 109, 130, cert. denied, ___ U.S. ___, 154 L. Ed. 2d 71 (2002). It also follows that where a defendant fires a shot and intends to frighten a victim, an instruction on self-defense is not warranted because the defendant does not possess the belief that it was necessary to kill the victim. See State v. Lyons, 340 N.C. 646, 662, 459 S.E.2d 770, 778 (1995); and State v. Reid, 335 N.C. 647, 671, 440 S.E.2d 776, 789 (1994). As defendant can show no evidence in support of an instruction on self-defense based on transferred intent, the trial court properly declined to give such an instruction. Defendant's first assignment of error is overruled.

    In his next assignment of error, defendant contends the trial court committed plain error by failing to instruct the jury on the crimes of assault with a deadly weapon with intent to kill inflicting serious injury and assault with a deadly weaponinflicting serious injury because the charges were supported by the evidence and were charged by the language of the indictment. We do not agree.
    In the present case, the indictment alleging the attempted first-degree murder of Carolyn Dover stated the following:
            The jurors for the State upon their oath present that on or about the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did of malice aforethought attempt to kill and murder Carolyn Delouise Dover, by shooting her in the neck with a deadly weapon, a .38 caliber pistol, thereby inflicting serious injury.

Assault with a deadly weapon with intent to kill inflicting serious injury and assault with a deadly weapon inflicting serious injury are codified at N.C. Gen. Stat. § 14-32(a) and (b) (2001), as follows:
            (a) Any person who assaults another person with a deadly weapon with intent to kill and inflicts serious injury shall be punished as a Class C felon.

            (b) Any person who assaults another person with a deadly weapon and inflicts serious injury shall be punished as a Class E felon.

    Defendant argues that, due to the unusual language of the indictment, the trial court should have instructed the jury on the two assault crimes, in addition to attempted murder.
        [W]hen it is sought to fall back on the lesser offense of assault and battery or assault with a deadly weapon, in case the greater offense, murder or manslaughter, is not made out, the indictment for murder should be so drawn as necessarily to include an assault and battery or assault with a deadly weapon, or it shouldcontain a separate count to that effect.

State v. Rorie, 252 N.C. 579, 581, 114 S.E.2d 233, 235 (1960). See also State v. Whiteside, 325 N.C. 389, 403, 383 S.E.2d 911, 919 (1989); and State v. Gibson, 333 N.C. 29, 38-39, 424 S.E.2d 95, 100-01 (1992), overruled on other grounds by State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993). In Whiteside, the Supreme Court held that an indictment charging “that defendant 'unlawfully, willfully and feloniously and of malice aforethought did kill and murder [the victim]' is insufficient to support a verdict of guilty of assault, assault inflicting serious injury or assault with intent to kill” because that murder indictment did not specify a murder accomplished by assault. Whiteside, 325 N.C. at 403, 383 S.E.2d at 919.
    Defendant points out that
        under our jurisprudence defendant is subject to the decision of the District Attorney regarding the crime with which he will be charged. The State takes a risk in using the short-form indictment; if the evidence is insufficient to sustain a verdict of guilty of the crime on which the defendant is indicted, the defendant is pronounced not guilty and set free.

Gibson, 333 N.C. at 39, 424 S.E.2d at 101. Here, the State did not rely on the language of the short-form indictment, but instead added the language in question. The indictment specified attempted murder accomplished by shooting with a deadly weapon, inflicting serious injury. Defendant maintains that “whether considered a lesser included offense or simply another offense alleged by the indictment, the state did allege the elements of the assaultcharges at issue.” According to defendant, the trial court's failure to instruct the jury on the assault charges was error warranting a new trial.
    The State argues, and we agree, that a defendant can only be convicted of the offense charged in the indictment or a lesser included offense. State v. Hannah, 149 N.C. App. 713, 716, 563 S.E.2d 1, 4, disc. review denied, 355 N.C. 754, 566 S.E.2d 81 (2002). The “essential elements test” and the “definitional approach” are used to determine whether one offense is a lesser included offense of another. Id. Under both methods, assault with a deadly weapon inflicting serious injury is a lesser-included offense of assault with a deadly weapon with intent to kill inflicting serious injury. State v. Parker, 7 N.C. App. 191, 193- 94, 171 S.E.2d 665, 666 (1970). In State v. Rainey, ___ N.C. App. ___, ___, 574 S.E.2d 25, 27, disc. review denied, 356 N.C. 621, 575 S.E.2d 520 (2002), our Court held that “[a]ssault with a deadly weapon requires the State to prove the existence of a deadly weapon; however, attempted murder does not require a deadly weapon. Accordingly, assault with a deadly weapon inflicting serious injury is not a lesser-included offense of attempted first-degree murder. Cf. State v. Coble, 351 N.C. 448, 453, 527 S.E.2d 45, 49 (2000).” Likewise, the crime of assault with a deadly weapon with intent to kill inflicting serious injury requires proof of, among other things, use of a deadly weapon. State v. Cain, 79 N.C. App. 35, 46, 338 S.E.2d 898, 905, disc. review denied, 316 N.C. 380, 342 S.E.2d 899 (1986). As both assault crimes require proof of anelement not required for attempted first-degree murder (use of a deadly weapon), neither crime qualifies as a lesser-included offense of attempted first-degree murder.
    Despite these arguments, we hold that, because the assault crimes are not lesser included offenses of attempted first-degree murder, the trial court did not have to instruct the jury as to those offenses. We have considered defendant's other arguments with respect to this assignment of error and conclude they are without merit. Accordingly, this assignment of error is overruled.

    In his next assignment of error, defendant contends the trial court erred by denying his request for an instruction on attempted voluntary manslaughter based on imperfect self-defense. Although we agree that the instruction can be given in an appropriate case, we do not believe the trial court's failure to do so here was reversible error.
    In Rainey, ___ N.C. App. at ___, 574 S.E.2d at 25, this Court held that “attempted voluntary manslaughter is (1) a crime in North Carolina, and, (2) a lesser-included offense of attempted first- degree murder[.]” While we are bound by the logic of Rainey, we believe that the trial court's failure to instruct the jury on attempted voluntary manslaughter was not erroneous, because defendant did not act in self-defense and therefore did not lower his culpability from attempted first-degree murder to attempted voluntary manslaughter.
            The law of perfect self-defense excuses akilling altogether if, at the time of the killing, these four elements existed:

            (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and

            (2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and

            (3) defendant was not the aggressor in bringing on the affray; i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and

            (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.

State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981). “The existence of these four elements gives the defendant a perfect right of self-defense and requires a verdict of not guilty, not only as to the charge of murder in the first degree but as to all lesser included offenses as well.” Id. at 530, 279 S.E.2d at 573. If the first two elements are met, but one or both of the other elements are not met, then defendant is entitled to a defense of imperfect self-defense and is guilty of at least voluntary manslaughter. Id.
    As previously discussed, the evidence and testimony indicate that defendant shot Mr. Turner, then went down the hallway and shot Ms. Dover, who was unarmed. Defendant cannot show any of the four elements of self-defense (or imperfect self-defense), and wastherefore not entitled to rely on those concepts to lower the charge of attempted first-degree murder to attempted voluntary manslaughter. As we have already determined that defendant was not entitled to an instruction of self-defense based on transferred intent with regard to the attempted first-degree murder of Ms. Dover, we likewise determine that he was not entitled to an instruction on attempted voluntary manslaughter based on imperfect self-defense. Accordingly, this assignment of error is overruled.

    In his fifth assignment of error, defendant contends the trial court committed reversible error by impermissibly commenting on the evidence, thereby prejudicing defendant. We do not agree.
    During the charge conference, defendant's attorney asked the trial court to instruct the jury that the trial court had no opinion on the case. In addressing the jury, the trial court stated:
            Now, I did omit to tell you something. I'm sure you can't imagine me forgetting to tell you anything, but I did omit telling you something and that is this. And I don't tell you this to plant an idea in your head. I tell you this because the Supreme Court makes me tell you this. I simply forgot it.

            You are not to use anything I've said or any manner by which I've said it or any ruling that I've rendered in this case to aid you or assist you or help you in finding a fact or not finding a fact, or believing any evidence or not believing any evidence. That's not the Court's function. And you're not to glean anything from any conduct on the part of the Court to assist you or persuade or dissuade you on the business you are about to embark on in terms of deciding what the facts are inthese cases.

            Now, if in the event something was stated during the course of the trial by a witness and it shouldn't have been stated, and some attorney, either for the State or Defense, moved to strike it and asked me to instruct the jury, and I said, that's allowed and I tell you not to consider, then you will follow those instructions. But otherwise -- and hopefully, I haven't displayed any conduct along that line. But in any event you are not to gather or glean anything from the Court's conduct to help you, if you will, on any business that you are about to begin in terms of deciding what the facts are in this case.

Later, the trial court stated:
            And members of the jury, the Court -- you didn't ask for it, but I've been requested to tell you -- that the Court has no opinion about the case or as to how the case ought to come out. That's not the Court's function and you are not to glean anything from my instructions that I do.

    Defendant contends these comments indicate that the trial court only told the jury it was impartial because the Supreme Court (and an unnamed individual, in the second statement) made it do so. Defendant contends the trial court failed to acknowledge that the law required impartiality. In support of his argument, defendant implies that, since the jury acquitted him of the attempted murder charge involving Mr. Turner, the State's evidence was weak, and the trial court's improper commentary swayed the jury into finding defendant guilty of the attempted first-degree murder of Ms. Dover.
    N.C. Gen. Stat. § 15A-1222 (2001) states that “[t]he judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by thejury.” Furthermore,
        [w]hether the judge's comments, questions or actions constitute reversible error is a question to be considered in light of the factors and circumstances disclosed by the record, the burden of showing prejudice being upon the defendant. Thus, in a criminal case it is only when the jury may reasonably infer from the evidence before it that the trial judge's action[s] intimated an opinion as to a factual issue, the defendant's guilt, the weight of the evidence or a witness's credibility that prejudicial error results.

    After reviewing the trial court's statements, we believe there was no impropriety and no prejudice to defendant. Additionally, we note that defendant requested the instruction and did not object to the instruction as given. As such, “if there was error in the charge, it was invited error and not subject to review.” State v. Cagle, 346 N.C. 497, 509, 488 S.E.2d 535, 544, cert. denied, 522 U.S. 1032, 139 L. Ed. 2d 614 (1997). See also N.C. Gen. Stat. § 15A-1443(c) (2001) (stating that “[a] defendant is not prejudiced by the granting of relief which he has sought”). Defendant's fifth assignment of error is overruled.