An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-585

NORTH CAROLINA COURT OF APPEALS

Filed: 1 February 2005

STATE OF NORTH CAROLINA

         v.                        Caldwell County
                                No. 02 CRS 52949
CHARLES EDWIN PEARSON                        

    Appeal by defendant from judgment entered 21 January 2004 by Judge Christopher M. Collier in Caldwell County Superior Court. Heard in the Court of Appeals 18 January 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Lisa C. Glover, for the State.

    James N. Freeman, Jr., for defendant-appellant.

    
    MARTIN, Chief Judge.

    Defendant Charles Edwin Pearson was indicted for assault with a deadly weapon inflicting serious injury. He pled not guilty. The evidence presented at trial tended to show the following: On 28 September 2002, Sherilyn Berry and defendant, who was her boyfriend, were at defendant's parent's house in Caldwell County. Berry and defendant were “hanging out” and using crack cocaine. Berry testified that their relationship revolved around drugs. Defendant sent Berry out to get more crack, but she came back empty-handed because she had no money. Berry stated that defendant called her a “lying bitch” and accused her of smoking the crack herself. Berry testified that defendant then picked up a half-gallon Mason jar and started hitting her in the head with it, knocking her unconscious. When she came to, she covered her face with her arm. Defendant hit her again, and the jar broke on her arm, the glass cutting her arm “all the way to the bone” and causing nerve and tissue damage. Defendant took Berry to the hospital and told the receptionist Berry had fallen through a window.
    Berry testified that she did not immediately report the assault, but waited approximately one month, because she loved the defendant and did not want to hurt him. Berry stated that she filed the report after defendant beat her again in October 2002. She conceded that she had smoked crack that day, but stated that she could still remember defendant beating her.
    Defendant was convicted of assault with a deadly weapon inflicting serious injury and appeals from the judgment entered upon the verdict.
    Defendant first argues the trial court erred by allowing into evidence testimony of a subsequent bad act. Berry testified that in October 2002, defendant hit her and broke the windshield of her car. Officer Tracey Pyle then gave corroborating testimony, stating that Berry told her defendant slapped her and broke her windshield because she “made him” lose a dollar, and thus he could not buy any crack cocaine. Defendant asserts that the evidence was inadmissible because it was for the improper purpose of showing that he had a propensity for violence. Defendant further argues that the trial court erred by failing to give a limitinginstruction.
    After careful review of the record, briefs and contentions of the parties, we find no error. Rule 404(b) of the North Carolina Rules of Evidence provides:
        Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

N.C. Gen. Stat. 8C-1, Rule 404(b) (2003). Our Court has stated that:
        This rule is a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.

State v. Washington, 141 N.C. App. 354, 366, 540 S.E.2d 388, 397 (2000)(emphasis & citation omitted), disc. review denied, 353 N.C. 396, 547 S.E.2d 427-28 (2001). “The list of permissible purposes for admission of 'other crimes' evidence is not exclusive, and such evidence is admissible as long as it is relevant to any fact or issue other than the defendant's propensity to commit the crime.” State v. White, 340 N.C. 264, 284, 457 S.E.2d 841, 852-53, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995).
    In this case, Berry's testimony was elicited to explain why she waited a month to report the assault. Thus, we conclude that its purpose was not to show that defendant had a propensity for violence, and the trial court did not abuse its discretion byadmitting the testimony. We additionally note that defendant did not request a limiting instruction. State v. Stager, 329 N.C. 278, 310, 406 S.E.2d 876, 894 (1991)(“The defendant, having failed to specifically request or tender a limiting instruction at the time the evidence was admitted, is not entitled to have the trial court's failure to give limiting instructions reviewed on appeal.”). Furthermore, Officer Pyle's testimony was admitted not pursuant to Rule 404(b), but was for corroborative purposes only. The trial court instructed the jury that the testimony was not elicited for its truth, but was being offered to corroborate Berry's testimony. Accordingly, we find no error.
    Defendant next argues that the trial court erred by failing to instruct the jury on self-defense. Defendant cites Officer Pyle's testimony that defendant told her that Berry had attacked him and that he hit her to get her off of him. Defendant notes that Berry was at least an inch taller than he and outweighed him by more than seventy pounds. Defendant argues that these facts warranted an instruction on self-defense.
    We find no error. This Court has stated:
        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. 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.” Furthermore, when confronted with a nonfelonious assault, a party is required to retreat “if there is any way of escape open tohim.” We consider the facts in the light most favorable to Defendant in determining whether the trial court should have instructed the jury on self-defense.

State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d 204, 206 (1998) (citations omitted).
    In the instant case, even when viewing the evidence in the light most favorable to the defendant, he was not entitled to an instruction on self-defense. The only evidence suggesting that Berry initiated the fight was defendant's self-serving statement to Officer Pyle. However, even if Berry initiated the fight, there was no evidence that Berry was armed, and thus defendant was required to retreat rather than repeatedly assault her with a glass jar. See id. (“[r]egardless of who started the altercation, . . . [d]efendant was required to retreat from the nonfelonious assault rather than escalate the incident through the use of a weapon.”). Accordingly, the assignment of error is overruled.
    Defendant finally argues that the trial court erred by not allowing him to make a statement on his own behalf at the sentencing hearing. Defendant cites N.C. Gen. Stat. 15A-1334(b) and argues that while the trial court initially offered him the opportunity to speak, he was cut off. Defendant contends that he is entitled to a new sentencing hearing. We are not persuaded.
    “N.C. Gen. Stat. § 15A-1334(b) expressly gives a non-capital defendant the right to 'make a statement in his own behalf' at his sentencing hearing if the defendant requests to do so prior to the pronouncement of sentence.” State v. Miller, 137 N.C. App. 450, 461, 528 S.E.2d 626, 632 (2000)(internal citations omitted). “Thepurpose of allocution is to afford defendant an opportunity to state any further information which the trial court might consider when determining the sentence to be imposed.” State v. Rankins, 133 N.C. App. 607, 613, 515 S.E.2d 748, 752 (1999). Here, defendant was given the opportunity to make a statement. However, rather than address issues related to sentencing, defendant complained about the performance of his attorney. Thus, we conclude that the trial court did not abuse its discretion by refusing to allow defendant to continue his statement. See State v. Jackson, 119 N.C. App. 285, 288-289, 458 S.E.2d 235, 238 (1995)(“a judgment will not be disturbed because of sentencing procedures unless there is a showing of abuse of discretion, procedural conduct prejudicial to the defendant, circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.”). Accordingly, we find no error.
    No error.
    Judges McCULLOUGH and CALABRIA concur.
    Report per Rule 30(e).

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