{ "id": 4103287, "name": "STATE OF NORTH CAROLINA v. W.D. HOPE, Defendant", "name_abbreviation": "State v. Hope", "decision_date": "2012-11-20", "docket_number": "No. COA12-659", "first_page": "468", "last_page": "480", "citations": [ { "type": "official", "cite": "223 N.C. App. 468" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "297 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572036 ], "opinion_index": -1, "case_paths": [ "/nc/297/0555-01" ] }, { "cite": "626 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635151 ], "weight": 2, "pin_cites": [ { "page": "286" }, { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/se2d/626/0271-01" ] }, { "cite": "651 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639565 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "292-93" }, { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/se2d/651/0291-01" ] }, { "cite": "609 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632461 ], "year": 2005, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/se2d/609/0231-01" ] }, { "cite": "363 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12643012, 12643013, 12643014 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/se2d/673/0866-04", "/se2d/673/0867-01", "/se2d/673/0867-02" ] }, { "cite": "661 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641082 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "49", "parenthetical": "citation and quotation marks omitted" }, { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/se2d/661/0046-01" ] }, { "cite": "308 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "498" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522320 ], "year": 1983, "pin_cites": [ { "page": "110-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0107-01" ] }, { "cite": "705 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "797", "parenthetical": "observing that \"the overwhelming evidence against Defendant would likely have led to the same jury verdicts of guilty on all charges.\"" } ], "opinion_index": 0 }, { "cite": "581 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "357 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491521, 491781, 491848, 491753, 491727, 491668, 491638, 491482, 491900 ], "opinion_index": 0, "case_paths": [ "/nc/357/0169-03", "/nc/357/0169-09", "/nc/357/0169-06", "/nc/357/0169-04", "/nc/357/0169-08", "/nc/357/0169-05", "/nc/357/0169-07", "/nc/357/0169-02", "/nc/357/0169-01" ] }, { "cite": "573 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "655", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248826 ], "year": 2002, "pin_cites": [ { "page": "18", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0001-01" ] }, { "cite": "163 L.Ed. 2d 80", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "546 U.S. 830", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5908388, 5877157, 5965639, 5991912, 5911081, 6017962, 5986893, 6006128, 5881009, 3806768, 5989878, 5985271, 3809625, 5970362 ], "opinion_index": 0, "case_paths": [ "/us/546/0830-10", "/us/546/0830-12", "/us/546/0830-03", "/us/546/0830-13", "/us/546/0830-06", "/us/546/0830-07", "/us/546/0830-02", "/us/546/0830-14", "/us/546/0830-04", "/us/546/0830-01", "/us/546/0830-11", "/us/546/0830-05", "/us/546/0830-09", "/us/546/0830-08" ] }, { "cite": "604 S.E.2d 850", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "881", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "359 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801733 ], "year": 2001, "pin_cites": [ { "page": "122-23", "parenthetical": "quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0077-01" ] }, { "cite": "166 L.Ed. 2d 116", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "549 U.S. 867", "category": "reporters:federal", "reporter": "U.S.", "year": 2006, "opinion_index": 0 }, { "cite": "360 N.C. 297", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3787721 ], "weight": 2, "pin_cites": [ { "page": "316" }, { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0297-01" ] }, { "cite": "230 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "291 N.C. 450", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558651, 8558604, 8558621, 8558638 ], "opinion_index": 0, "case_paths": [ "/nc/291/0450-04", "/nc/291/0450-01", "/nc/291/0450-02", "/nc/291/0450-03" ] }, { "cite": "228 S.E.2d 668", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "669", "parenthetical": "affirming trial court's refusal to instruct on assault with a deadly weapon, lacking the serious injury element, where the evidence of serious injury was uncontroverted" }, { "page": "669" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 111", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547813 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "112", "parenthetical": "affirming trial court's refusal to instruct on assault with a deadly weapon, lacking the serious injury element, where the evidence of serious injury was uncontroverted" }, { "page": "112" } ], "opinion_index": 0, "case_paths": [ "/nc-app/31/0111-01" ] }, { "cite": "186 N.C. App. 447", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8157729 ], "year": 2007, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0447-01" ] }, { "cite": "579 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511361, 1511431, 1511215, 1511548, 1511359 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0692-01", "/nc/356/0692-02", "/nc/356/0692-03", "/nc/356/0692-05", "/nc/356/0692-04" ] }, { "cite": "565 S.E.2d 727", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "732" }, { "page": "732", "parenthetical": "approving trial court's denial of the defendant's request for a lesser included lacking the serious injury element" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9080746 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "454" }, { "page": "454-55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0446-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-33", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "parenthetical": "a" }, { "page": "(c)(1)" } ], "opinion_index": 0 }, { "cite": "362 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "293" }, { "page": "290, 293", "parenthetical": "holding that it was error not to instruct on either simple assault or assault inflicting serious injury where there was conflicting evidence as to whether a deadly weapon was used and how the complainant's injuries arose" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 626", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358965 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "635" }, { "page": "629, 635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0626-01" ] }, { "cite": "679 S.E.2d 167", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "171", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 183", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4169160 ], "year": 2009, "pin_cites": [ { "page": "189", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0183-01" ] }, { "cite": "239 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1977, "pin_cites": [ { "page": "413" }, { "page": "411" }, { "page": "413" }, { "page": "413" } ], "opinion_index": 0 }, { "cite": "293 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566760 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "643-44" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0633-01" ] }, { "cite": "290 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570930 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0400-01" ] }, { "cite": "256 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "183" }, { "page": "183-84" }, { "page": "183-84" }, { "page": "183-84", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "711 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2011, "pin_cites": [ { "page": "781-82", "parenthetical": "citations, brackets, and quotation marks omitted" }, { "page": "784" }, { "page": "786" }, { "page": "785" }, { "page": "786-87" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8471887 ], "year": 2005, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0701-01" ] }, { "cite": "462 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "341 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793218, 793062, 793140, 793146, 793148 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/341/0655-04", "/nc/341/0655-05", "/nc/341/0655-02", "/nc/341/0655-01", "/nc/341/0655-03" ] }, { "cite": "459 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "9", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915332 ], "year": 1995, "pin_cites": [ { "page": "382", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0375-01" ] }, { "cite": "675 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "190 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4158744 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "574", "parenthetical": "citation and quotation marks omitted" }, { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/nc-app/190/0570-01" ] }, { "cite": "675 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "149", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166318 ], "year": 2009, "pin_cites": [ { "page": "466", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0458-01" ] }, { "cite": "318 S.E.2d 348", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "352", "parenthetical": "citations omitted" }, { "page": "352" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526932 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "707", "parenthetical": "citations omitted" }, { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0701-01" ] }, { "cite": "297 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572036 ], "weight": 5, "pin_cites": [ { "page": "566" }, { "page": "565-66" }, { "page": "566" }, { "page": "566" }, { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0555-01" ] } ], "analysis": { "cardinality": 917, "char_count": 28537, "ocr_confidence": 0.741, "pagerank": { "raw": 8.729237582914197e-08, "percentile": 0.4943077762448699 }, "sha256": "00c41c310e483162170e9aa2a970e6bb5fe74362022419e78317d53fe14a3703", "simhash": "1:4dfeee6fae3f8d50", "word_count": 4693 }, "last_updated": "2023-07-14T18:08:05.693184+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and BEASLEY concur." ], "parties": [ "STATE OF NORTH CAROLINA v. W.D. HOPE, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nI. Factual Background\nW.D. Hope (\u201cdefendant\u201d) was indicted on 13 September 2010 for assaulting Mr. Thomas Goddard with a deadly weapon with intent to kill inflicting serious injury. Defendant pleaded not guilty and the case went to jury trial.\nThe State\u2019s evidence presented at trial tended to show the following: On 23 April 2010, defendant went to Mr. Goddard\u2019s house. Defendant was angry with Mr. Goddard either because he believed that Mr. Goddard had made a move on his wife or because he believed that Mr. Goddard owed him money (the evidence was inconsistent on this point). When Mr. Goddard opened his front door, the defendant approached him, yelling, \u201cWhere\u2019s your money, I\u2019m gonna kill you.\u201d Defendant then began beating him in the face and body with a metal pipe. After beating Mr. Goddard with the pipe, defendant left Mr. Goddard\u2019s house and went to a neighbor\u2019s house covered in blood, carrying a pipe which also had blood on it. When defendant entered the neighbor\u2019s house he told the neighbors that \u201che had beat up and killed a man.\u201d\nMr. Goddard suffered a severely broken jaw, several lost teeth, lacerations on his face, arms, and legs, as well as a substantial amount of blood loss. When the first responders arrived, Mr. Goddard was \u201ccovered in blood from head to toe.\u201d He was airlifted to a trauma center, where the doctors stitched his lacerations, wired his jaw shut, and installed a metal plate in his jaw.\nThe only evidence presented in defendant\u2019s case-in-chief was from defendant\u2019s interactions with police. Defendant made the following statement to police:\nI went to Mr. Goddard\u2019s house on Glovinia Street to get 75 dollars he owed me for a table and TV. Also, he owed me for a hedge trimmer. When I got there, he said he didn\u2019t have my money. I told him I needed my money. We \u2014 we both were drinking and words were exchanged. He hit me in the mouth with his fist while I was standing at the door. We started fighting and went into the living room. He pulled a pipe from under the sofa and hit me on the left lower leg.\nWe continued to fight over the pipe and I got control of the pipe. I picked him up and \u2014 to body slam him, and his heads (sic) \u2014 his head hit the bedroom doorframe. He got up and stumbled to the bed. I seen (sic) lots of blood coming from his head, so I left. I never hit him with the pipe or while he was in the bedroom.\nDefendant also showed police what they described as \u201can old injury\u201d on his leg, implying that it was from Mr. Goddard\u2019s alleged assault on him.\nIn the charge conference, the trial judge and the attorneys discussed which self-defense instruction to use. The judge proposed that he instruct the jury using North Carolina Pattern Jury Instructions Crim. 308.45. N.C.P.I. \u2014 Crim. 308.45. Defendant\u2019s trial counsel objected and urged the judge to use N.C.P.I. \u2014 Crim. 308.40. The trial court noted that the instructions for assault with a deadly weapon with intent to kill inflicting serious injury cross-referenced 308.45, not 308.40. However, defendant\u2019s trial counsel persisted and opted to have no self-defense instruction rather than 308.45. Further, defense counsel requested that the trial court instruct as to the lesser included offense of simple assault, which the court denied. In its instructions to the jury, the trial court did not include any self-defense instruction, but did include the lesser offenses of assault with a deadly weapon inflicting serious injury and assault with a deadly weapon.\nThe jury returned a verdict of guilty as to the most serious charge. Defendant was then sentenced to 146 to 185 months imprisonment in the custody of the N.C. Department of Corrections. Defendant filed written notice of appeal on 11 October 2011.\nII. Jurisdiction\n\u201cWithout proper notice of appeal, this Court acquires no jurisdiction.\u201d Brooks v. Gooden, 69 N.C. App. 701, 707, 318 S.E.2d 348, 352 (1984) (citations omitted). In order for this Court to have jurisdiction to consider an appeal from a judgment or order entered in a criminal case, the appellant must give oral notice of appeal at trial or file written notice of appeal. N.C.R. App. P. 4. Defendant admits that his notice of appeal is flawed in that it does not indicate to which court the appeal is taken, in violation of Rule 4(b). Therefore, we would normally be without jurisdiction to hear defendant\u2019s appeal. See Brooks, 69 N.C. App. at 707, 318 S.E.2d at 352.\nDefendant filed a petition for writ of certiorari on 28 September 2012. The State filed no response to defendant\u2019s petition. In its discretion, the Court grants defendant\u2019s petition. Therefore, we will consider defendant\u2019s substantive arguments.\nIII. Jury Instructions\nA. Standard of Review\nWhere the defendant preserves his challenge to jury instructions by objecting at trial, we review \u201cthe trial court\u2019s decisions regarding jury instructions . . . de novo[.]\u201d State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009) (citation omitted). However, \u201c[a] defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct. N.C. Gen. Stat. \u00a7 15A-1443(3)(2005). Thus, a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.\u201d State v. Goodwin, 190 N.C. App. 570, 574, 661 S.E.2d 46, 49 (2008) (citation and quotation marks omitted), disc. rev. denied, 363 N.C. 133, 675 S.E.2d 664 (2009).\nB. Analysis\nDefendant argues that the trial court erred in not giving a self-defense instruction and in failing to give a simple assault instruction. Defendant contends that either the trial court should have given the requested 308.40 self-defense instruction or given the 308.45 self-defense instruction over the defendant\u2019s objection, rather than giving him the option of a 308.45 instruction or none. Defendant further contends that the trial court erred in denying his request for an instruction on the lesser included offense of simple assault because there was sufficient evidence to give the jury that option.\n1. Failure to Give N.C.P.I. \u2014 Crim. 308.40 or N.C.P.I. \u2014 Crim. 308.45 Self-Defense Instruction\nDefendant first argues that the trial judge erred in not giving the requested 308.40 pattern self-defense instruction, or, in the alternative, not giving the 308.45 pattern self-defense instruction over the defendant\u2019s objection. Defendant properly preserved this issue for our review by objecting in the instruction conference and again at trial, when the trial judge gave the parties an opportunity to. object to the instructions.\n\u201cThe trial court must give a requested instruction when supported by the evidence in the case.\u201d State v. Soles, 119 N.C. App. 375, 382, 459 S.E.2d 4, 9 (1995) (citation omitted), disc. rev. denied, 341 N.C. 655, 462 S.E.2d 523. However, it is not error for a judge to refuse to give an instruction that is an incorrect statement of the relevant law. See State v. Snider, 168 N.C. App. 701, 703, 609 S.E.2d 231, 233 (2005).\nOur Supreme Court has held when there is evidence from which it may be inferred that a defendant acted in self-defense, he is entitled to have this evidence considered by the jury under proper instruction from the court. Where there is evidence that defendant acted in self-defense, the court must charge on this aspect even though there is contradictory evidence by the State or discrepancies in defendant\u2019s evidence. . . . The evidence is to be viewed in the light most favorable to the defendant.\nState v. Whetstone, _N.C. App._, _, 711 S.E.2d 778, 781-82 (2011) (citations, brackets, and quotation marks omitted).\nThe two instructions at issue in the present case are self-defense instructions N.C.P.I. \u2014 Crim. 308.40 and N.C.P.I. \u2014 Crim. 308.45. N.C.P.I. \u2014 Crim. 308.40 states, in relevant part:\nEven if you find beyond a reasonable doubt that the defendant assaulted the victim, the assault would be justified by self-defense under the following circumstances:\n(1) If the circumstances, at the time the defendant acted, would cause a person of ordinary firmness to reasonably believe that such action was necessary or apparently necessary to protect that person from bodily injury or offensive physical contact, and\n(2) The circumstances created such belief in the defendant\u2019s mind. You determine the reasonableness of the defendant\u2019s belief from the circumstances appearing to the defendant at the time.\nN.C.P.I. \u2014 Crim. 308.45, by contrast, states in relevant part:\nIf the circumstances would have created a reasonable belief in the mind of a person of ordinary firmness that the assault was necessary or appeared to be necessary to protect that person from death or great bodily harm, and the circumstances did create such a belief in the defendant\u2019s mind at the time the defendant acted, such assault would be justified by self-defense.\nNOTE WELL: If the defendant used a weapon which is a deadly weapon \u201cper se, \u201d do not give the following paragraph. If the weapon is not a deadly weapon per se, give the following paragraph. State v. Clay, 297 N.C. 555, 566 (1979).\n(If the defendant assaulted the victim, but not with a deadly weapon or other deadly force, and the circumstances would create a reasonable belief in the mind of a person of ordinary firmness that the action was necessary or appeared to be necessary to protect that person from bodily injury or offensive physical contact, and the circumstances did create such belief in the defendant\u2019s mind at the time the defendant acted, the assault would be justified by self-defense \u2014 even though the defendant was not thereby put in actual danger of death or great bodily harm; however, the force used must not have been excessive.)\nThis Court, in State v. Whetstone, and our Supreme Court, in State v. Clay, have laid out which self-defense instructions are appropriate for charges of assault with a deadly weapon with intent to kill inflicting serious injury. This Court has stated that where a defendant is charged with assault with a deadly weapon, including where that deadly weapon is a deadly weapon per se or as a matter of law,\ntrial judges should, in the charge, instruct that the assault would be excused as being in self-defense only if the circumstances at the time the defendant acted were such as would create in the mind of a person of ordinary firmness a reasonable belief that such action was necessary to protect himself from death or great bodily harm.\nWhetstone,__ N.C. App. at__, 711 S.E.2d at 784 (quoting State v. Clay, 297 N.C. 555, 565-66, 256 S.E.2d 176, 183, overruled on other grounds by State v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982)) (quotation marks omitted). If, however, the weapon used by the defendant is not a deadly weapon per se, i.e., where the jury must determine whether the weapon used was a deadly weapon, the trial court\u2019s instructions must incorporate the possibility that the jury could find that he did not use a deadly weapon. Thus, in that situation, the trial judge should further instruct the jury\nthat if they find that defendant assaulted the victim but do not find that he used a deadly weapon, that assault would be excused as being in self-defense if the circumstances at the time he acted were such as would create in the mind of a person of ordinary firmness a reasonable belief that such action was necessary to protect himself from \u2018bodily injury or offensive physical contact.\u2019\nClay, 297 N.C. at 566, 256 S.E.2d at 183-84.\nIn Whetstone, this Court applied the above rules to pattern jury instructions 308.40 and 308.45 and concluded that it was error for the trial judge to instruct on self-defense using 308.40. The Court reasoned that when the deadly weapon element is not given to the jury to decide, 308.40 forces the jury to find that the defendant used excessive force. Whetstone,_N.C. App. at_, 711 S.E.2d at 786. In Whetstone, the trial court instructed the jury that \u201ca knife is a deadly weapon,\u201d but, using 308.40, also instructed that \u201cthe right to use force extends only to such force reasonably appearing to the defendant under the circumstances necessary to protect the defendant from bodily injury or offensive physical contact.\u201d Id. at_, 711 S.E.2d at 785. The Court observed that the combination of these two instructions lessened the State\u2019s burden of proof on self-defense by forcing the jury had to conclude that the use of a deadly weapon would never be necessary to protect the defendant from mere bodily injury or offensive contact, as opposed to death or great bodily harm. Id. at _, 711 S.E.2d at 786-87.\nThis case is distinguishable from Whetstone because the judge left the question of the deadly nature of the weapon to the jury and, under the facts of this case, the only feasible self-defense theory would have been under the lesser \u201cbodily injury or offensive contact\u201d standard. However, the language from Clay quoted above provides clear guidance on how to instruct the jury in a case like the one sub judice where the weapon is not a deadly weapon per se. See Clay, 297 N.C. at 566, 256 S.E.2d at 183-84.\nIn the present case, defendant\u2019s trial counsel noted that the evidence only supported a finding of self-defense if the jury believed defendant\u2019s statement that he assaulted Mr. Goddard with his hands in response to Mr. Goddard\u2019s initial punch, as opposed to with a deadly weapon. Under this version of the facts, one without a deadly weapon, the jury would have considered the self-defense claim under the \u201cbodily injury or offensive physical contact\u201d standard. This standard is incorporated into both 308.40 and, if the weapon is not a deadly weapon per se, 308.45.\nNevertheless, it would have been error for the court to give 308.40 as it does not contain language explaining how the self-defense claim relates to the jury\u2019s findings on the deadly weapon element. 308.45, by contrast, incorporates the key language from Clay that explains the relationship between the jury\u2019s finding on the deadly weapon element and self-defense:\nif they find that defendant assaulted the victim but do not find that he used a deadly weapon, that assault would be excused as being in self-defense if the circumstances at the time he acted were such as would create in the mind of a person of ordinary firmness a reasonable belief that such action was necessary to protect himself from bodily injury or offensive physical contact.\nClay, 297 N.C. at 566, 256 S.E.2d at 183-84 (emphasis added); see N.C.P.I.\u2014Crim. 308.45 (\u201cIf the defendant assaulted the victim, but not with a deadly weapon or other deadly force .. .\u201d). Therefore, the trial court did not err in denying defendant\u2019s request to include the 308.40 self-defense instruction in its jury charge.\nDefendant argues in the alternative that if 308.40 was not the correct instruction it was plain error for the trial court not to use 308.45 over the objections of his trial counsel. Specifically, defendant, citing Whetstone, argues that not using any self-defense instruction lessens the State\u2019s burden of proof. While, as the trial judge noted, defendant submitted sufficient evidence, taken in the light most favorable to the defense, to support a 308.45 instruction, \u201ca defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error.\u201d Goodwin, 190 N.C. App. at 574, 661 S.E.2d at 49. Here, defendant invited the failure to give a self-defense instruction by objecting to the correct instruction, requesting the incorrect instruction, and by choosing to forgo a self-defense instruction when given the option of 308.45 or none. Therefore, defendant has waived any right to appellate review concerning this alleged error. See id.\n2. Decision Not to Give Simple Assault Instruction\nDefendant next argues that he was entitled to a simple assault instruction, because as in State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977), if the jury did not find that he used a deadly weapon, the evidence would support a conviction for simple assault. We disagree.\nIt is well-settled that the trial court must submit and instruct the jury on a lesser included offense when, and only when, there is evidence from which the jury could find that defendant committed the lesser included offense.\nState v. Porter, 198 N.C. App. 183, 189, 679 S.E.2d 167, 171 (2009) (citation and quotation marks omitted).\nMisdemeanor \u201c[s]imple assault and assault inflicting serious injury are lesser included offenses of assault with a deadly weapon inflicting serious injury.\u201d State v. Bell, 87 N.C. App. 626, 635, 362 S.E.2d 288, 293 (1987). Simple assault under N.C. Gen. Stat. \u00a7 14-33 is an assault where there is neither serious injury nor a deadly weapon. N.C. Gen. Stat. \u00a7 14-33 (a) (2010); State v. Uvalle, 151 N.C. App. 446, 454, 565 S.E.2d 727, 732 (2002), disc. rev. denied, 356 N.C. 692, 579 S.E.2d 95 (2003). Because the defendant here only requested an instruction as to simple assault and has not argued the issue of misdemeanor assault inflicting serious injury on appeal, we only consider the issue of simple assault. N.C.R. App. P. 28(a).\nThis Court and our Supreme Court have had many opportunities to address the issue of lesser included offenses of assault with a deadly weapon inflicting serious injury. We have not, however, specifically decided whether a defendant is entitled to a simple assault instruction where the deadly weapon element is left to the jury, but there is uncontroverted evidence of serious injury.\nIn State v. Palmer, the Supreme Court found that the defendant was entitled to a jury instruction on simple assault where the defendant was charged with assault with a deadly weapon with intent to kill inflicting serious injury. Palmer, 293 N.C. at 643-44, 239 S.E.2d at 413. In that case, the evidence tended to show that the defendant hit the victim with a wooden stick, causing welts on his arm. Id. at 640, 239 S.E.2d at 411. Although there was evidence that the victim suffered serious injury from a subsequent assault by the same defendant without the stick, there was evidence of only minor injury from the use of the stick in the first assault. Id. at 640-41. The Court held that the stick in that case was not a deadly weapon per se and therefore the jury could find for the defendant on the issue of whether the stick was a deadly weapon. Id. at 643, 239 S.E.2d at 413. As a result, the Court concluded, the jury should have been instructed on simple assault. Id. at 643-44, 239 S.E.2d at 413.\nBy contrast, in State v. Tillery there was uncontroverted evidence of serious injury to the victim. 186 N.C. App. 447, 448, 651 S.E.2d 291, 292-93 (2007). As in Palmer, the weapon used \u2014 a 2x4 board \u2014 was not a deadly weapon per se. Id. at 451, 651 S.E.2d at 294. This Court held that under those facts, the jury should have been instructed on misdemeanor assault inflicting serious injury. Id. However, as it was apparently not raised, the Court did not specifically address whether the defendant in that case would have been entitled to an instruction on simple assault.\nIt is well established that where the State has presented uncontroverted evidence of serious injury, it is not error for a trial court to refuse instructions on lesser included offenses lacking that element. See State v. Williams, 31 N.C. App. 111, 112, 228 S.E.2d 668, 669 (1976) (affirming trial court\u2019s refusal to instruct on assault with a deadly weapon, lacking the serious injury element, where the evidence of serious injury was uncontroverted), disc. rev. denied, 291 N.C. 450, 230 S.E.2d 767; Uvalle, 151 N.C. App. at 454-55, 565 S.E.2d at 732 (approving trial court\u2019s denial of the defendant\u2019s request for a lesser included lacking the serious injury element); but see Bell, 87 N.C. App. at 629, 635, 362 S.E.2d at 290, 293 (holding that it was error not to instruct on either simple assault or assault inflicting serious injury where there was conflicting evidence as to whether a deadly weapon was used and how the complainant\u2019s injuries arose).\nHere, there was substantial evidence from the State that Mr. Goddard suffered serious injury caused by defendant, but no contradictory evidence offered by defendant. In fact, defendant\u2019s own statement to police was that Mr. Goddard had \u201clots of blood coming from his head\u201d after defendant had \u201cbody slammed\u201d him and his head hit the doorframe. Under the theories presented both by the State and the defense, defendant assaulted Mr. Goddard. Mr. Goddard suffered a severely broken jaw, requiring it to be wired shut and a metal plate to be installed, several lost teeth, lacerations on his face, arms and legs, as well as a substantial amount of blood loss. Indeed, one witness described Mr. Goddard as \u201ccovered in blood from head to toe.\u201d Mr. Goddard testified that after the assault he had, and continued to have at the time of trial, trouble concentrating and, even after treatment and surgery, has lost feeling on the side of his face. Thus, even if the jury found that defendant did not use a deadly weapon and fully believed his narrative of events, the evidence would not support a simple assault instruction and the trial court did not err in refusing defendant\u2019s request for an instruction lacking the serious injury element. See Williams, 31 N.C. App. at 112, 228 S.E.2d at 669.\n3. Conclusion\nThe trial court correctly denied defendant\u2019s request for self-defense instruction 308.40, did not err in failing to give self-defense instruction 308.45 over defendant\u2019s objection, and did not err in failing to give the defendant\u2019s requested simple assault instruction. Therefore, on the issues properly before us we find no error in the jury instructions as given by the trial court.\nIV. Ineffective Assistance\nA. Standard of Review\n\u201cTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense. Deficient performance may be established by showing that counsel\u2019s representation fell below an objective standard of reasonableness. Generally, to establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.\u201d\nState v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citations and quotation marks omitted), cert. denied, 549 U.S. 867, 166 L.Ed. 2d 116 (2006).\nB. Analysis\nThe only error made by trial counsel raised by defendant on appeal is his objection to the trial court\u2019s offer to instruct the jury using pattern jury instruction 308.45, thereby depriving defendant of any self-defense instruction. Since we conclude that the record on appeal \u201creveals that . . . [defendant\u2019s] claims . . . may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing\u201d we will decide his ineffective assistance claim on its merits. State v. Thompson, 359 N.C. 77, 122-23, 604 S.E.2d 850, 881 (2001) (quotation marks and citation omitted), cert. denied, 546 U.S. 830, 163 L.Ed. 2d 80.\nEven assuming trial counsel\u2019s error fell below an objective standard of reasonableness, defendant must show that \u201cthere is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d Allen, 360 N.C. at 316, 626 S.E.2d at 286. \u201cThis determination must be based on the totality of the evidence before the finder of fact.\u201d State v. Wade, 155 N.C. App. 1, 18, 573 S.E.2d 643, 655 (2002) (citation and quotation marks omitted), disc. rev. denied, 357 N.C. 169, 581 S.E.2d 444.\nHere, there was overwhelming evidence of defendant\u2019s guilt. The State offered the testimony of Mr. Goddard, who described the assault in detail, including defendant\u2019s demands for money, the substantial injuries he suffered, and their lasting after-effects. The State also offered the testimony of a pastor who stated that before the assault defendant said to him, \u201cI\u2019m going over there and kill him right now,\u201d and that of two neighbors who testified that defendant showed up at their house covered in blood, holding a bloody pipe, and told them that he had \u201cbeat up and killed a man.\u201d The State further presented evidence that there was blood spatter all over Mr. Goddard\u2019s living room.\nThe only evidence offered favorable to defendant was his statement to the police that he body-slammed Mr. Goddard after Mr. Goddard hit him in the mouth and in the leg, and that defendant had an old scab on his leg where he claimed Mr. Goddard hit him with the pipe. This evidence formed the whole basis of his self-defense claim. Given the overwhelming evidence against defendant, there is no reasonable probability that but for trial counsel\u2019s error the result would have been different. See State v. Whitted,_N.C. App._,_, 705 S.E.2d 787, 797 (2011) (observing that \u201cthe overwhelming evidence against Defendant would likely have led to the same jury verdicts of guilty on all charges.\u201d). Therefore, we hold that defendant received no prejudicial ineffective assistance of counsel.\nNO ERROR.\nJudges ELMORE and BEASLEY concur.\n. Defendant here requested an instruction on simple assault, but not misdemeanor assault inflicting serious injury.\n. Also included as misdemeanor assaultive crimes in \u00a7 14-33 are assault inflicting serious injury and assault with a deadly weapon. N.C. Gen. Stat. \u00a7 14-33(c)(1); State v. Owens, 65 N.C. App. 107, 110-11, 308 S.E.2d 494, 498 (1983).", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Jane L. Oliver, for the State.", "M. Alexander Chams, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. W.D. HOPE, Defendant\nNo. COA12-659\n(Filed 20 November 2012)\n1. Appeal and Error \u2014 notice of appeal \u2014 not sufficient \u2014 writ of certiorari\nDefendant\u2019s appeal was heard pursuant to a writ of certiorari where his notice of appeal did not indicate the court to which appeal was taken, which would normally deprive the Court of Appeals of jurisdiction.\n2. Assault Deadly weapon \u2014 self defense instructions\nThe trial court did not err in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury by denying defendant\u2019s request to include in its jury charge the self-defense instruction from the North Carolina Pattern Jury Instructions-Crim. 308.40. The language from State v. Clay, 297 N.C. 555, provided clear guidance on how to instruct the jury in a case like the one sub judice where the weapon is not a deadly weapon per se.\n3. Appeal and Error \u2014 self-defense instruction \u2014 waiver of appellate review\nDefendant waived any right to appellate review concerning the trial court\u2019s failure to give a self-defense instruction by objecting to the correct instruction, requesting the incorrect instruction, and choosing to forgo a self-defense instruction when given the option of the North Carolina Pattern Jury Instructions Crim. 308.45 or none.\n4. Assault \u2014 instructions\u2014simple assault not supported\nIn a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury, the evidence did not support a simple assault instruction and the trial court did not err in refusing defendant\u2019s request for an instruction lacking the serious injury element. Even if the jury found that defendant did not use a deadly weapon and fully believed his narrative of events, there was substantial evidence from the State that the victim suffered serious injury caused by defendant and there was no contradictory evidence from defendant. Defendant only requested an instruction on simple assault and did not argue the issue of misdemeanor assault inflicting serious injury on appeal.\n5. Constitutional Law \u2014 effective assistance of counsel\u2014 request for instructions \u2014 error not prejudicial\nDefendant did not receive ineffective assistance of counsel in a prosecution for assault with a deadly weapon with intent to kill inflicting serious injury from trial counsel\u2019s objection to the correct self-defense instruction, which resulted in no self-defense instruction being given. Given the overwhelming evidence against defendant, there was no reasonable probability of a different result but for trial counsel\u2019s error.\nAppeal by defendant from judgment entered on or about 6 October 2011 by Judge V. Bradford Long in Superior Court, Randolph County. Heard in the Court of Appeals 24 October 2012.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Jane L. Oliver, for the State.\nM. Alexander Chams, for defendant-appellant." }, "file_name": "0468-01", "first_page_order": 478, "last_page_order": 490 }