Converted WP file 061416-1

Appeal by defendant from a judgment entered 15 September 2005 by Judge Forrest Donald Bridges in Lincoln County Superior Court. Heard in the Court of Appeals 10 May 2007.

Attorney General Roy Cooper, Special Deputy Attorney General William H. Borden, for the State.

Irving Joyner for defendant.

    BRYANT, Judge.

    Wendy Malinda Patterson (defendant) appeals from a 15 September 2005 judgment entered consistent with a jury verdict convicting her of assault with a deadly weapon inflicting serious injury. The trial court sentenced her to an active term of 37 to 54 months imprisonment.
    The State's evidence tended to show: on 13 March 2005 several people were gathered at the home of Charlie Laws (Laws) where they drank and played cards. At approximately 4:00 a.m., Laws heard defendant holler up the hallway at his house at 219 Newbold Street in Lincolnton. When he got up to investigate she was gone. Later that morning, between 9:00 and 9:30 a.m., Laws saw defendant, who had returned to the house. She told him that Grady Tucker (Tucker)had grabbed her in the hallway at 4:00 a.m. and that “If he do it again, I'm going to mess him up.” Defendant, Tucker and others started drinking liquor in the living room of Laws' house. Defendant and Tucker argued most of the morning. Then, according to Tucker, while standing in the hallway, defendant pushed Tucker and he pushed her back. Tucker further testified that defendant said “I'm going to kill this m*****f*****,” went into the kitchen, got a knife and put it in the sleeve of her jacket. As Tucker was walking down the hall back to the living room, defendant walked towards him and stabbed him in the chest. She pulled the knife out of Tucker's chest and ran outside.
    Bo Sherrill told Laws that Tucker had grabbed defendant. Defendant said she called an ambulance and called the police. She told Laws that “I did it. He grabbed me and jumped on me.” Laws did not see any bruises or marks on defendant and she did not complain of any injuries. Laws testified that nobody in his house was drunk.
    Lieutenant Cynthia Monday of the Lincolnton Police Department responded to the call to go to Laws' house at around 11:30 a.m. There were about twelve people there. Defendant, who was in the front yard, was defensive, agitated, irate and talking rapidly. She was crying and had been drinking. Defendant told Lieutenant Monday and Officer Bob Poteat that she caused Tucker's injuries and that the knife was in the kitchen sink. Spots of blood led from the front room through the hallway to the kitchen sink, where a hunting knife was found. Tucker was in a back bedroom,semi-conscious and very bloody. Lieutenant Monday called for EMS to proceed to the scene.
    Sergeant Matt Painter saw defendant at the police department. She was crying and upset. Defendant had no visible injuries, but complained that her right hand was swollen, stiff and hurting. Defendant gave a statement to Kameron Keener, a criminal investigator for the Lincolnton Police Department. In her statement, defendant said Tucker came up to her and started calling her names, calling her a “bitch” and “bum-rubbing” her, i.e., bouncing into her with his chest. She used her chest to push him away and told “him to get the f*** away.” Tucker pushed her into a chair and started beating her; she pushed him away with her foot but he came back at her. She said the two were separated by Peewee Shipp (who grabbed Tucker) and Bo Sherrill (who grabbed her). Defendant got away from Sherrill, ran to the kitchen and got a knife from the sink. Tucker and defendant were trying to get each other. Shipp was between defendant and Tucker. Defendant swung the knife, lost track of it, and thought she might have nicked Tucker. Defendant said that somehow the knife “got out of her hand” and she did not know how, but “somebody gave [her] the knife back.” Laws told defendant she “got him pretty good.” Defendant said that after getting the knife back, she washed the blood off and put it back in the sink. Tucker came out of the bathroom and bent over in the hallway with blood pouring out of his chest. Defendant called 911. She told Detective Keener that she could not have stabbed Tucker and that after she got the knife, Tucker “wastrying to get her” and “she was trying to get [Tucker].” Defendant's statement was introduced at trial, however defendant did not testify or otherwise put on direct evidence. From her assault with a deadly weapon inflicting serious injury conviction defendant appeals.

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    The dispositive issue on appeal is whether the trial court erred by failing to instruct the jury on self-defense. Specifically, defendant contends the State's evidence was sufficient to support a self defense instruction. We disagree.
    At trial, defendant did not request a jury instruction on self-defense, therefore we review for plain error. To reach the level of “plain error” the error must be so fundamental as to amount to a miscarriage of justice. State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). We examine the entire record and determine if the error had a probable impact on the jury's finding of guilt. State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983). “It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Id. at 661, 300 S.E.2d at 378 (citations omitted).
    Our Supreme Court has held that a defendant is entitled to a self-defense instruction “if there is any evidence in the record from which it can be determined 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. Bush,307 N.C. 152, 160, 297 S.E.2d 563, 569 (1982). “The right of self-defense is available only to a person who is without fault, and if a person voluntarily, that is, aggressively and willingly, without legal provocation or excuse, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight and withdraws from it and gives notice to his adversary that he has done so.” State v. Benton, 299 N.C. 16, 18, 260 S.E.2d 917, 919 (1980) (citations and quotations omitted); see also State v. Randolph, 228 N.C. 228, 232, 45 S.E.2d 132, 135 (1947) (because defendant “entered the fight voluntarily and without lawful excuse . . . there is no error in the refusal of the trial judge to submit this plea of self-defense to the jury”). In determining whether the trial court should have instructed the jury on self-defense, the Court is required to view the facts in the light most favorable to the defendant. State v. Moore, 111 N.C. App. 649, 654, 432 S.E.2d 887, 889 (1993).
    Here, the evidence, considered in the light most favorable to defendant, does not support her claim of self-defense. Defendant stated that after the initial pushing and shoving, she and Tucker were separated by Shipp and Sherrill, but that she broke away from Sherrill and ran to the kitchen and got the knife. In defendant's statement to the police, after she got the knife, she said Tucker “was trying to get her” and she said “she was trying to get [Tucker].” Further, defendant stated that Shipp was still separating her from Tucker at the time she swung the knife. In her statement, defendant also denied stabbing Tucker, stating: “There's no way in hell I could have stabbed that boy. I was too far back. I don't believe I done it. But I could have nicked him . . . .” Under these circumstances, with Tucker restrained and on the other side of Shipp, defendant could not have reasonably believed that deadly force was required to protect herself from death or serious bodily harm.
    The trial court did not err in failing to give a self-defense instruction to the jury. See State v. Williams, 342 N.C. 869, 874, 467 S.E.2d 392, 395 (1996) (“In light of the defendant's own testimony, it is apparent he could not have subjectively believed it necessary to kill the victim in order to save himself from death or great bodily harm. Nor could any such belief have been objectively reasonable.”). This assignment of error is overruled.
    No error.
    Judges MCCULLOUGH and STROUD concur.
    Report per Rule 30(e).

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