An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1748


Filed: 3 February 2004


v .                         Orange County
                            No. 98 CRS 1364

    Appeal by defendant from judgment dated 15 January 1999 by Judge Wiley F. Bowen in Superior Court, Orange County. Heard in the Court of Appeals 16 October 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State.

    Everett & Hite, L.L.P., by Kimberly A. Swank, for defendant- appellant.

    McGEE, Judge.

    Defendant appeals from a judgment entered upon his conviction of second degree murder on 15 January 1999. The State's evidence at trial tended to show the following:
    Defendant left work at A.O. Smith Electrical Products Company at 11:00 p.m. on 14 January 1998 and joined David Fulp (Fulp) in purchasing two twelve-packs of beer. After consuming the beer, defendant and Fulp drove to Mebane and purchased crack cocaine, which they smoked while parked on a gravel road in rural Orange County.
    Brandon Albertson (Albertson) passed defendant's car on the gravel road as he was driving home from work at approximately 2:30 a.m. on 15 January 1998. Albertson honked his horn at defendantand Fulp as he drove by. Shortly thereafter, defendant and Fulp continued driving down the gravel road and noticed Albertson's vehicle in the ditch. They decided not to stop and assist because there were beer cans and drug paraphernalia in their car.
    Defendant and Fulp drove by Albertson's car three more times on their trips to purchase additional crack cocaine. On the final trip, defendant and Fulp pulled over by Alberton's vehicle. Defendant asked Fulp, who was driving, for Fulp's knife which they had used to cut the crack cocaine. Defendant, with the knife in his pocket, exited the car and approached the unarmed Albertson, while Fulp remained in the car. Defendant and Albertson spoke briefly and Albertson expressed anger that defendant had not stopped earlier. Defendant turned to leave and Albertson grabbed defendant's arm. Defendant struck Albertson in the chest with the closed knife and a fight ensued between defendant and Albertson. Defendant stabbed Albertson twelve times, twice cutting his throat. Albertson's body was found in the ditch at approximately 4:30 a.m. on 15 January 1998. A pager located three feet from Albertson's body was registered to defendant.
    Defendant and Fulp left the scene and drove to Fulp's house where defendant threw the knife in a pond. Defendant then returned to his home, where he washed his clothes. Later in the day, Fulp told Heath Stovall (Stovall) about the killing. Defendant pointed out to Stovall the blood stains on his jeans and boots. Later that afternoon, defendant and Fulp told Fulp's younger brother, Michael Fulp, of the killing.    In defendant's first assignment of error, he contends that the trial court erred in failing to instruct the jury as to voluntary manslaughter. Defendant argues that because the trial court did not instruct the jury on this lesser included offense to murder, defendant was denied his constitutional rights to due process and a fair trial as guaranteed under the State and federal constitutions. However, at trial, the following exchange occurred between defendant and the trial court:
        THE COURT: In other words, what do you think that we should submit with regard to the substantive charges?

        MR. DICKERSON [for the defense]: Your Honor, at this time what I would indicate to the Court that I would request the Court to submit, pursuant 206.13, first-degree murder where a deadly weapon is used not involving self-defense but in _ but only including the lesser included offense of second-degree murder. Would not request voluntary manslaughter or involuntary manslaughter as lesser included offenses.

    "[T]his Court has 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), cert. denied, 353 N.C. 279, 546 S.E.2d 394 (2000); State v. Prevatte, 356 N.C. 178, 256, 570 S.E.2d 440, 483 (2002)(defendant invited the sentencing error by requesting instruction on life without parole), cert. denied, ___ U.S. ___, 155 L. Ed. 2d 681 (2003); State v. Basden, 339 N.C. 288, 303, 451 S.E.2d 238, 246 (1994)("Having invited the error, defendant cannot now claim on appeal that he was prejudiced by the instruction."), cert. denied, 515 U.S. 1152, 132 L. Ed. 2d 845 (1995); State v.McPhail, 329 N.C. 636, 643, 406 S.E.2d 591, 596 (1991)("A criminal defendant will not be heard to complain of a jury instruction given in response to his own request.").
    Defendant specifically requested at trial that there be no instruction given as to voluntary manslaughter. "Since [defendant] asked for the exact instruction that he now contends was prejudicial, any error was invited error. Therefore, this assignment of error is without merit and is overruled." McPhail, 329 N.C. at 643-44, 406 S.E.2d at 596-97.
    Defendant next argues the trial court's imposition of a sentence within the aggravated range without making any finding of aggravation was in error. Defendant was sentenced for second degree murder, a class B2 felony, under a prior record level III with five prior record points. Defendant was sentenced to a minimum term of 220 months and a maximum term of 273 months.
    N.C. Gen. Stat. § 15A-1444(a1)(2003) provides that a defendant who has been found guilty is
        entitled to appeal as a matter of right the issue of whether his or her sentence is supported by the evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range for the defendant's prior record or conviction level and class of offense.

The applicable minimum sentence range in this case under N.C. Gen. Stat. § 15A-1340.17(c)(2003) is 176 to 220 months. Defendant's minimum sentence of 220 months is within the presumptive range, although at the uppermost limit.
    Defendant argues that the minimum sentence also falls withinthe aggravated range and thus the trial judge was obliged to make findings in aggravation. This Court addressed the issue of the overlap between the presumptive range and the aggravated range in State v. Ramirez and concluded that "[t]he fact that the trial court could have found aggravating factors and sentenced defendant to the same term does not create an error in defendant's sentence." Ramirez, 156 N.C. App. 249, 259, 576 S.E.2d 714, 721, disc. review denied, 357 N.C. 255, 583 S.E.2d 286 (2003), cert. denied, ___ U.S. ___, 157 L. Ed. 2d 388 (2003). This Court is not persuaded by either of defendant's arguments regarding sentencing; defendant's assignment of error is overruled .
    Defendant failed to present an argument in support of his remaining assignments of error and they are therefore deemed abandoned. N.C.R. App. P. 28(b)(6).
    No error.
    Judges HUDSON and CALABRIA concur.
    Report per Rule 30(e).

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