An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-525


Filed: 2 August 2005


v .                         Forsyth County
                            No. 03 CRS 55230

    Appeal by defendant from judgment entered 22 January 2004 by Judge Michael E. Helms in Forsyth County Superior Court. Heard in the Court of Appeals 2 March 2005.

     Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton , for the State.

    Moser, Schmidly & Roose, by Richard G. Roose, for defendant- appellant.

    GEER, Judge.

    Defendant Alfreda Renea Stone appeals from her conviction of assault with a deadly weapon with intent to kill inflicting serious injury. Defendant argues that the trial court erred (1) by not instructing the jury on self-defense, (2) by excluding character evidence suggesting that the victim was the aggressor, (3) by improperly questioning witnesses from the bench, and (4) by instructing the jury on flight. Based on our review of the record, we hold that defendant received a trial free of prejudicial error.

    The State's evidence tended to show the following. In March 2003, Kia Spears began dating a man with whom defendant hadpreviously had a relationship for a number of years. On one day in March, Spears arrived home to find defendant, who threatened Spears by "saying that she couldn't talk to me, that she would have to fight me." Defendant had to be escorted from the premises by the authorities.
    On 2 April 2003, Spears received a phone call and recognized the voice of defendant. The caller stated "April Fools bitch how do you like your new tires." The next morning, Spears discovered that all four of her tires had been slashed and that there was red spray paint on her front door.
    On 8 May 2003, Spears was driving with her 13-month-old child in the car. She observed defendant's car following her and tried unsuccessfully to locate her cell phone to call for help. She then decided to drive to the home of Christopher Brown, her child's godfather. When she stopped in front of Brown's home, she did not see defendant's car behind her.
    As she continued to look for her phone, Spears was suddenly "slashed across the face" with a blade. Defendant tried to reach in the car, but Spears opened the car door to push her back. Defendant kept swinging the blade while Spears tried to defend herself with her hands and by kicking. During the fight, Spears heard Kelly Black yell at defendant, "Freda stop, Freda stop, LaShonda she's cutting Kia, Freda is cutting Kia; please stop, Freda come on." Eventually, Spears grabbed the blade away from defendant, and defendant jumped into her own car and sped down the street.     As a result of the fight, Spears was cut across her face, chest, arm, hand, and the top of her ankle. Her injuries caused her to miss work for a month. Defendant was indicted with assault with a deadly weapon with intent to kill inflicting serious injury on 7 July 2003.
    The case was tried before Judge Michael E. Helms beginning 20 January 2004. At trial, defendant testified on her own behalf. She stated that, in early 2003, Spears agreed to meet defendant to discuss Spears' relationship with defendant's boyfriend, but, at the meeting, Spears pulled out a "blade" and threatened her. Defendant denied making a phone call to Spears about her tires and denied cutting Spears' tires.
    With respect to the incident on 8 May 2003, defendant testified that she was driving her children home when she noticed a car tailgating her so closely that it appeared as if the car was attempting to ram defendant's car. Although defendant tried to escape the other car, it eventually sped in front of her, pulled to the curb, and slammed on the brakes. The driver, who was Spears, jumped out of the car with something in her hand. Defendant got out of her car and the two began fighting. At some point during the fight, when Spears dropped her blade, defendant recovered it and cut Spears as they were struggling and kicking. Defendant testified that she was "scared for [her] life," but also stated that she did not know why she stopped her car rather than driving away when Spears got out of her car.     The jury found defendant guilty of assault with a deadly weapon with intent to kill inflicting serious injury on 22 January 2004. The trial court sentenced defendant to a term of 65 to 87 months imprisonment. Defendant gave notice of appeal in open court.
    Defendant first assigns error to the trial court's refusal to instruct the jury regarding self-defense. The trial court concluded that the defense was unavailable because the evidence established that defendant "voluntarily entered into the affray." We agree with the trial court.
    "In determining whether the self-defense instruction should have been given, the facts are to be interpreted in the light most favorable to the defendant." State v. Moore, 111 N.C. App. 649, 654, 432 S.E.2d 887, 889 (1993) (internal quotation marks omitted). Ordinarily, a defendant is entitled to an instruction on self- defense when there is evidence in the record from which a jury could find "'that it was necessary or reasonably appeared to be necessary for him to kill his adversary in order to protect himself from death or great bodily harm.'" State v. Nicholson, 355 N.C. 1, 30, 558 S.E.2d 109, 130 (quoting State v. Bush, 307 N.C. 152, 160, 297 S.E.2d 563, 569 (1982)), cert. denied, 537 U.S. 845, 154 L. Ed. 2d 71, 123 S. Ct. 178 (2002). Nevertheless, "[t]he right of self-defense is only available . . . 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 ofself-defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so." State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998) (quoting State v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977)). Thus, if a person voluntarily enters into a fight when he has the ability to avoid the confrontation, he is not entitled to rely upon the defense of self-defense. State v. Randolph, 228 N.C. 228, 232, 45 S.E.2d 132, 135 (1947).
When viewed in the light most favorable to defendant, the evidence indicates that Spears pulled her car in front of defendant's car, stopped abruptly, jumped out of the car, and then proceeded towards defendant's car while holding something in her hand. Instead of driving away, defendant chose to get out of her own car, even though she knew that there was going to be a fight. She testified: "I knew we were going to fight because [Spears] had her shoes off."
    Because "[t]his evidence indicates defendant was not without fault in bringing on the affray and voluntarily and aggressively took [herself] into [the] situation," State v. Hall, 89 N.C. App. 491, 494, 366 S.E.2d 527, 529 (1988) (internal quotation marks omitted), she was not entitled to argue self-defense. See Randolph, 228 N.C. at 232, 45 S.E.2d at 135 (holding that the trial court did not err in denying self-defense instruction when the victim left his car and approached the defendant with a tire iron, and the defendant responded by jumping out of his truck with a knife and meeting the victim in the street); State v. Stone, 104N.C. App. 448, 452, 409 S.E.2d 719, 721-22 (1991) (holding that refusal to instruct on self-defense was proper when "[d]efendant voluntarily joined the original fight in the bar and continued the fight outside the bar"), disc. review denied, 330 N.C. 617, 412 S.E.2d 94 (1992); Hall, 89 N.C. App. at 494, 366 S.E.2d at 529 (holding that the defendant was not entitled to an instruction on self-defense when the defendant was told the victim had a knife and wanted to hurt the defendant, but the defendant went back to his car, refused his wife's request to leave, and approached the victim with a shotgun). The trial court, therefore, did not err in refusing to give an instruction on self-defense.
Evidence of the Victim's Character
    In a related argument, defendant contends that the trial court should not have excluded testimony regarding the victim's violent character. Specifically, defendant asserts that "[t]he Court put the Defendant in a classic 'double bind.' The Court ruled that Defendant could not claim self defense because she was the aggressor, and the Court prohibited her from introducing competent evidence which would have shown that the victim was the aggressor."
    Defendant has mistaken the basis for the trial court's ruling. The trial court refused admission of the testimony based on its conclusion that self-defense was unavailable to defendant because she voluntarily entered into the fight. A finding that a person voluntarily entered into a fight is not necessarily equivalent to a finding that the same person initiated or was the aggressor in the fight. See State v. Watkins, 283 N.C. 504, 511, 196 S.E.2d750, 755 (1973) ("One who is an aggressor, or one who enters a fight voluntarily without lawful excuse, may not plead self-defense . . . .").
    With respect to evidence of the character of victims, this Court has explained:
    While evidence of character is generally inadmissible, N.C.R. Evid. 404(a)(2) provides that evidence of pertinent character traits of a victim offered by an accused is admissible. N.C.R. Evid. 405(b) allows for proof of character by evidence of specific instances of conduct in cases where character is an essential element of a charge, claim or defense. Where defendant argues he acted in self-defense, evidence of the victim's character may be admissible for two reasons: "to show defendant's fear or apprehension was reasonable or to show the victim was the aggressor."

State v. Ray, 125 N.C. App. 721, 725, 482 S.E.2d 755, 758 (1997) (quoting State v. Watson, 338 N.C. 168, 187, 449 S.E.2d 694, 706 (1994), cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569, 115 S. Ct. 1708, overruled on other grounds by State v. Richardson, 341 N.C. 585, 461 S.E.2d 724 (1995)).
    Defendant argues only that the testimony regarding the victim's violent character was relevant to the question of who was the aggressor. Since the trial court properly ruled that self- defense was not available to defendant as a defense because she voluntarily entered into the fight, the question whether the victim was the aggressor was no longer material. Evidence of Spears' character was, therefore, inadmissible under Rule 404(a)(2) and Rule 405(b) of the Rules of Evidence. Accordingly, this assignment of error is overruled.

The Trial Judge's Questioning of Witnesses
    Defendant also assigns error to the judge's questioning of witnesses in this case, arguing that he impermissibly conveyed his opinion as to the guilt of defendant through his questions. According to N.C. Gen. Stat. § 15A-1222 (2003), a trial 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 the jury." A trial judge may, however, "question a witness for the purpose of clarifying his testimony and promoting a better understanding of it." State v. Whittington, 318 N.C. 114, 125, 347 S.E.2d 403, 409 (1986).
    Questions by the judge to clarify a witness' testimony do not "constitute an expression of opinion unless a jury could reasonably infer that the questions intimated the court's opinion as to the witness's credibility, the defendants' guilt, or as to a factual controversy to be resolved by the jury." State v. Yellorday, 297 N.C. 574, 581, 256 S.E.2d 205, 210 (1979). Even if a remark or question is improper, the defendant "bears the burden of establishing that the trial judge's remarks [or questions] were prejudicial." State v. Summerlin, 98 N.C. App. 167, 174, 390 S.E.2d 358, 361, disc. review denied, 327 N.C. 143, 394 S.E.2d 183 (1990).
    Each of the questions asked by the trial judge followed repeated questioning on a particular issue by counsel _ both the prosecutor and defense counsel _ with counsel failing to obtain the answers he or she desired. The judge's questions clarified thequestions for the witness and clarified prior, not entirely responsive, testimony. The questions _ directed to the State's witnesses and occurring both during direct and cross-examination _ do not appear, upon review, to imply that the trial judge held a particular opinion. Moreover, defendant has failed to demonstrate any prejudice from these questions. This assignment of error is, therefore, overruled.
Flight Instruction
    Defendant's final assignment of error is that the trial court should not have instructed the jury on flight. As our Supreme Court stated in State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001):
        A trial court may properly instruct on flight where there is some evidence in the record reasonably supporting the theory that the defendant fled after the commission of the crime charged. However, mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension.

Id. at 119, 552 S.E.2d at 625-26 (internal citations and quotation marks omitted). Defendant argues that while there was evidence that defendant left the scene, no evidence was presented by either party that defendant took steps to avoid apprehension and, therefore, an instruction on flight was improper.
    When the evidence is viewed in the light most favorable to the State, however, the State presented more than just the fact that defendant left the scene of the crime. The victim testified that after the fight, "Alfreda she left in her car, she sped down the street." A witness testified that once the fight was over,defendant "jumped in the car" and left the scene "quickly." Defendant admitted in her own testimony that although she sought medical assistance for herself, she did not seek any help for Spears.
    Our Supreme Court has held that such evidence is sufficient to allow a jury to infer that a defendant fled the scene and, therefore, supports an instruction on flight. See, e.g., State v. Anthony, 354 N.C. 372, 425, 555 S.E.2d 557, 591 (2001) (trial court properly gave flight instruction when defendant "immediately entered his car and quickly drove away from the crime scene without rendering any assistance to the victims or seeking to obtain medical aid for them" and when defendant did not flag down a passing police officer); Lloyd, 354 N.C. at 119-20, 552 S.E.2d at 626 (trial court did not err in instructing jury on flight where defendant left crime scene hurriedly without providing medical assistance to the victim, even though he soon thereafter called the Burlington Police Department to turn himself in); State v. Reeves, 343 N.C. 111, 113, 468 S.E.2d 53, 55 (1996) ("In this case, there was evidence tending to show that defendant, after shooting the victim, ran from the scene of the crime, got in a car waiting nearby, and drove away. This is sufficient evidence of flight to warrant the instruction."). Defendant's final assignment of error is, therefore, overruled.

    No error.
    Judges MCGEE and TYSON concur.
    Report per Rule 30(e).

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