An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1661


Filed: 5 August 2003


         v.                        Cabarrus County
                                No. 02 CRS 5525

    Appeal by defendant from judgment entered 30 May 2002 by Judge W. Erwin Spainhour in Superior Court, Cabarrus County. Heard in the Court of Appeals 21 July 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Ann Stone, for the State.

    David Childers for defendant-appellant.

    McGEE, Judge.

    Willard James Holbrooks, Sr. (defendant) was incarcerated in the Cabarrus County jail on 21 March 2002. At approximately 6:00 p.m., Deputy Mark Hunt went to defendant's cell to move defendant to another cell. Deputy Hunt asked defendant twice to gather his personal items and come out of the cell, but defendant did not respond. Deputy Hunt stepped into the cell as he made a third request and defendant drew back his right hand, as if preparing to hit Deputy Hunt. Deputy Hunt restrained defendant by pinning him against the wall, exposing the back side of his arm to defendant. Defendant bit Deputy Hunt's upper right arm, "clenching his teeth" into the side of his arm. Deputy Hunt yanked his arm out ofdefendant's mouth and fell back.
    Deputy Jason Gilmore and Sergeant Theodore Lister arrived at the cell to restrain defendant. Defendant kicked Deputy Gilmore in the left shin and hit Sergeant Lister in the head while flailing his hands. Defendant was restrained and taken to another cell block. Deputy Hunt suffered bruising, bleeding and a break in the skin of his upper right arm as a result of the bite.
    Defendant testified at trial that he complied with Deputy Hunt's initial request to gather his belongings and leave the cell by pulling his personal property off the wall. Defendant admitted he "was on the offensive" when Deputy Hunt made his request. Defendant said he continued pulling items off the wall after Deputy Hunt made his second request. Defendant claimed that in his third request, Deputy Hunt stated that he would drag him out of the cell if he pulled one more item off the wall. Defendant claimed that Deputy Hunt grabbed him when he ignored the instruction to stop pulling items off the wall. Defendant denied drawing back his hand to hit Deputy Hunt. Defendant admitted he and Deputy Hunt "tussl[ed]" and that he bit Deputy Hunt, but claimed he was defending himself.
    A jury found defendant guilty of assault on a law enforcement officer. Defendant stipulated he had five prior misdemeanor convictions, including two assaults, and was sentenced for habitual misdemeanor assault, pursuant to N.C. Gen. Stat. § 14-33(c)(4), to a minimum of nineteen months and a maximum of twenty-three months imprisonment. Defendant appeals.     Defendant argues that the trial court erred in not instructing the jury on self-defense. Although defendant failed to request a jury instruction on self-defense at trial, he asserts that his testimony raised an inference of self-defense. Because he did not request a self-defense instruction or object to the trial court's instruction, defendant asks this Court to review this issue for plain error. State v. Carroll, 356 N.C. 526, 573 S.E.2d 899 (2002). "Plain error is one 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'" Id. at 539, 573 S.E.2d at 908 (quoting State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988)).
"'A defendant is entitled to a jury instruction on self- defense when there is evidence from which the jury could infer that he acted in self-defense.'" State v. Skipper, 146 N.C. App. 532, 538, 553 S.E.2d 690, 694 (2001) (quoting State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998)).
        The right of self-defense is only available, however, to "a person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self- defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so."

Skipper, 146 N.C. App. at 538-39, 553 S.E.2d at 694 (quoting State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977)). In the case before us, defendant was the aggressor and never abandoned the fight. On the contrary, the testimony showed that defendant"clenched his teeth" into Deputy Hunt's arm and continued to fight after Deputy Hunt yanked his arm away, until he was restrained by Deputy Gilmore and Sergeant Lister. Defendant was therefore not entitled to a jury instruction on self-defense. Accordingly, we find no error, let alone plain error, in the trial court's failure to instruct on self-defense.
    Defendant also argues his counsel at trial provided ineffective assistance of counsel by failing to request a jury instruction on self-defense. Defendant argues that he was entitled to the instruction based on his own testimony that he bit Deputy Hunt to protect himself from being assaulted. Under Strickland v. Washington, 466 U.S. 668, 80 L. Ed.2d 674 (1984), which North Carolina expressly adopted as the standard of analysis for ineffectiveness of counsel in State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985) , defendant's claim must meet a two part test:
            First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable.

Braswell, 312 N.C. at 562, 324 S.E.2d at 248 (quoting Strickland, 466 U.S. at 687, 80 L. Ed.2d at 693).
    Because we determined that the trial court did not err in failing to instruct the jury on self-defense, defense counsel's performance was not deficient in failing to request a self-defensejury instruction. As noted above, the evidence was sufficient for a jury to have found defendant assaulted Deputy Hunt and counsel's failure to request the self-defense instruction did not affect the outcome of the case. Defendant's assignment of error is overruled.
    No error.
    Judges HUDSON and GEER concur.
    Report per Rule 30(e).

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