State v. Lee, ___ N.C. App. ___, 811 S.E.2d 233 (Feb. 20, 2018)

In a case where the defendant was charged with attempted murder and assault, the trial court did not err by instructing the jury that the defendant could not receive the benefit of self-defense if he was the aggressor. The incident in question involved a shooting; the defendant argued that he shot the victim in self-defense. The two sides presented differing evidence as to what occurred. During the charge conference, defense counsel objected to the inclusion of the aggressor doctrine in the pattern jury instruction for self-defense. The defendant argued that because the victim had approached his car before the defendant said anything, the victim initiated the fight. The State contended that because its evidence showed only that the victim told the defendant to step out of his vehicle, the question should go to the jury as to who was the aggressor. The trial court overruled the defendant’s objection and gave the aggressor instruction. The jury found the defendant guilty on the assault charge. The court noted that the law does not require that a defendant instigate a fight to be considered an aggressor. Rather, even if his opponent starts a fight, a defendant who provokes, engages in, or continues an argument which leads to serious injury or death may be found to be the aggressor. Where there is conflicting evidence as to which party was the aggressor, the jury should make the determination. Here, the State’s evidence tended to show that the defendant was the aggressor. The victim testified that he told the defendant to step out of his car so they could talk, he did not threaten the defendant, touch the defendant’s car or approach the defendant. And the victim was unarmed. After speaking with the defendant, the victim testified that he stepped into the yard to allow the defendant to exit his car, only to be shot by the defendant. Although the defendant’s testimony materially differed from the State’s evidence, the issue was one for the jury.