State v. Williams

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedure.

NO. COA14-754
NORTH CAROLINA COURT OF APPEALS

Filed: 31 December 2014

STATE OF NORTH CAROLINA

v. Wake County
No. 09 CRS 025171
DAVID LARRY WILLIAMS

Appeal by defendant from judgment entered 19 July 2013 by

Judge R. Allen Baddour in Wake County Superior Court. Heard in

the Court of Appeals 3 December 2014.

Attorney General Roy Cooper, by Assistant Attorney General
Linda Kimbell, for the State.

Leslie C. Rawls, for defendant.

ELMORE, Judge.

On 19 July 2013, a jury found defendant guilty of felony

stalking. The trial court sentenced defendant to 34-41 months

of active imprisonment. After careful consideration, we find no

prejudicial error.

I. Facts
 -2-
On 6 May 2013, a grand jury indicted defendant on two

counts of felony stalking. The date of offense listed on the

indictment for the first charge was between 1 December 2008 and

9 February 2009, and the date of offense for the second charge

was between 24 September 2008 and 30 November 2008.

At trial, the trial court dismissed the first charge for

insufficient evidence. The trial court did not subsequently

instruct the jurors that they could not consider the events

between 1 December 2008 and 9 February 2009 (the post-December

evidence) as substantive evidence of the remaining charge.

During closing arguments, both the State and defendant referred

to the post-December evidence in support of their legal

theories.

Following closing arguments, the trial court gave jury

instructions but did not explicitly specify the time period

between 24 September 2008 and 30 November 2008 as the relevant

dates for the jury’s consideration of guilt on the remaining

charge: “If you find from the evidence beyond a reasonable doubt

that on or about the alleged dates the defendant [committed the

crime of felony stalking]. . . it would be your duty to return a

verdict of guilty.” (emphasis added). The jury returned with a
 -3-
unanimous guilty verdict on the remaining charge, and defendant

appealed the trial court’s judgment in open court.

II. Analysis

a.) Closing arguments
Defendant contends the trial court erred by allowing the

State, without limitation, to refer to post-December evidence

during closing arguments. We disagree.

Pursuant to N.C. Gen. Stat. § 15A-1443(c) (2013), “[a]

defendant is not prejudiced by the granting of relief which he

has sought or by error resulting from his own conduct.”

Accordingly, “a defendant who invites error has waived his right

to all appellate review concerning the invited error, including

plain error review.” State v. Hope, ___ N.C. App. ___, ___, 737

S.E.2d 108, 111 (2012), review denied, 366 N.C. 438, 736 S.E.2d

493 (2013) (citation and internal quotation marks omitted).

Even if the trial court erred by allowing the State,

without limitation, to argue post-December evidence during

closing arguments, defendant invited such error. After

defendant’s motion to dismiss the first charge was granted, the

following colloquy occurred:

PROSECUTOR: If I may just inquire to the
facts
past December 1st, while you’ve dismissed
[the first charge], is the State still able
to argue those acts to the relevance of --
 -4-

THE COURT: Sure.

PROSECUTOR: Okay.

DEFENDANT’S ATTORNEY: Yeah.

PROSECUTOR: I just did not want to --

THE COURT: Sure. That’s fine.

PROSECUTOR: -- did not want to overstep any
boundaries in closing arguments.

The trial court clarified that the prosecutor would be

permitted to argue post-December evidence during closing

arguments and defendant’s attorney openly acquiesced to the

trial court’s ruling.

During the charge conference (before closing arguments) the

trial court, without any objection, or request for clarification

from either party, stated:

THE COURT: Okay. Then let me also tell you
all that what I would do after I’ve removed
[the dismissed charge] is probably at the
very beginning of page 3 . . . it said the
defendant has been charged with two counts
of stalking. It would say charged with
stalking, and I would remove the [dismissed
charge] and the dates. You all can argue --
the dates aren’t ordinarily in an
instruction. It was just to give them
bookends. But you’re certainly welcome to
mention and argue the dates that, you know,
things had happened or didn’t happen between
those relevant dates, but I don’t think
they’re necessary for the instruction. So I
just want to make sure you all knew that.
 -5-

Moreover, defendant’s attorney argued post-December

evidence in the first portion of his closing argument (before

the prosecutor gave his closing argument) and in the second

portion of his closing argument (after the prosecutor gave his

closing argument):

Now, the next time [the victim] called the
detective was December 15, 2008. This was
two days after the second car scratching.
And when she talked to the detective on
December 15, she told -- you know, that’s
six weeks’ gap between the last conversation
she had. And she told the detective that on
moving day that she thought [defendant] was
following her, she turned the car around and
followed him. That’s what she told him. But
she left out that terrifying event that she
described it [sic] when [defendant] was
supposed to come out to her new apartment at
10:45 or 11:00 in the evening[.] . . . She
didn’t tell him about that. She told him
about [defendant] following her the day
before. And she left off the North Hills
scratching, the car scratching incident
where North Hills was supposed to have been
scratched in the side of the car. It
happened two days before that, if
it happened.

. . .

The latest stretch that you all heard was
the North Hills scratching on the car,
scratching the words “North Hills” into her
car door. That happened here in court, and
it is a big detail. Now, that would have
been significant, scratching the word “North
Hills” into the car. That was not said to
the officer to whom she reported the
 -6-
scratching. The car vandalism on December
13, 2008, not reported. Didn’t say a word
about it in the report. She
talked to the detective two days later,
December 15, ’08. Not a word about that
scratching North Hills into the car.
Nothing. She testified -- she and her father
both testified in April 2011. Neither one of
them mentioned North Hills being scratched
into the car.

Defendant’s attorney also told the jury that although a GPS

tracking device may have been found on the victim’s car on 25

January 2009, “[there] [was] no evidence that [the] GPS was ever

working [or] was ever activated.”

Defendant cannot now contend on appeal that the trial court

committed reversible error by allowing the State to argue about

post-December evidence, when his trial attorney agreed that the

prosecutor should be allowed to discuss post-December evidence

during closing arguments and the attorney referred to such

evidence during defendant’s own closing argument. Accordingly,

we dismiss this issue on appeal.

b.) Jury Instructions

Defendant’s remaining arguments all relate to the trial

court’s jury instructions. He argues that the trial court erred

by failing to provide limiting instructions regarding post-

December evidence, giving the jury overbroad instructions that

encompassed the dates and evidence of the dismissed charge,
 -7-
failing to instruct the jury on the dates to consider in its

deliberations, and failing to instruct the jury that post-

December evidence could not be considered substantive evidence

in reaching its verdict. We disagree.

“In criminal cases, an issue that was not preserved by

objection noted at trial and that is not deemed preserved by

rule or law without any such action nevertheless may be made the

basis of an issue presented on appeal when the judicial action

questioned is specifically and distinctly contended to amount to

plain error.” N.C. R. App. P. 10(a)(4); see State v. Gregory,

342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996) (“This Court has

elected to review unpreserved issues for plain error when they

involve either (1) errors in the judge’s instructions to the

jury, or (2) rulings on the admissibility of evidence.”).

Plain error is an error “so basic, so prejudicial, so

lacking in its elements that justice cannot have been done[.]”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)

(citations and quotation marks omitted). “Under the plain error

rule, defendant must convince this Court not only that there was

error, but that absent the error, the jury probably would have

reached a different result.” State v. Jordan, 333 N.C. 431,

440, 426 S.E.2d 692, 697 (1993).
 -8-
At trial, defendant’s attorney did not ask for a limiting

instruction regarding the jury’s consideration of post-December

evidence nor did he object to any of the other jury

instructions. Thus, we review such unpreserved issues for plain

error.

The offense date for the remaining charge was between 24

September 2008 and 30 November 2008. During this time period,

the controlling statute was N.C. Gen. Stat. § 14-277.3 (2007),

which has been subsequently repealed by N.C. Gen. Stat. § 14-

277.3A (2009). The trial court correctly tracked the language

of the former statute in its jury instructions, and instructed

the jury that the State must prove:

First, that the defendant willfully on more
than one occasion followed, was in the
presence of, or otherwise harassed the
victim without legal purpose. Second, that
the defendant at that time had the intent to
place the victim in reasonable fear for the
victim’s
safety or the safety of the person’s
immediate family or close personal
associates. One is placed in reasonable fear
when a person of reasonable firmness under
the same or similar
circumstances would fear death or bodily
injury or caused the victim to suffer
substantial emotional distress by placing
the
victim in fear of death, bodily injury, or
continued harassment. And, third, that the
defendant’s actions did, in fact, cause the
victim substantial emotional distress.
 -9-

The evidence presented by the State showed that between 24

September 2008 and 30 November 2008, the following occurred:

The victim and defendant were in a relationship for about five

weeks, until she broke up with defendant. Defendant had been to

the victim’s apartment on at least one occasion. After the

victim ended the relationship, defendant continually called her

phone, despite the victim repeatedly telling him to stop

contacting her.

On 28 September 2008, the victim and a friend were leaving

a local bar at approximately midnight, and defendant followed

the victim in his car, ultimately parking his car behind the

friend’s vehicle. Defendant exited his vehicle, argued with the

victim for a few minutes, and left. After this encounter with

defendant, the victim did not feel safe sleeping at her

apartment and stayed with her friend. The next day, the victim

returned to her apartment and found that someone had broken in,

although nothing was taken from the apartment. Feeling “scared”

and “terrified[,]” the victim reported the incident to the local

police department.

On 14 October 2008 at approximately 8:30 a.m., the victim

was the first person to arrive to work. When she exited her
 -10-
vehicle and walked towards her work building, defendant came out

of a nearby wooded area, attempting to speak with her. The

victim was “scared” and “startled” and threatened to call 911.

Defendant immediately left the area.

On the night of 19 October 2008, the victim was asleep when

she heard a knock on her door. When she looked through the

door’s peephole, she saw defendant. The victim did not answer

the door and went back to sleep. At approximately 2:00 a.m.,

the victim awoke to a clinking sound on the balcony outside her

bedroom window. She looked through the window and saw defendant

climbing up a ladder. Fearful of defendant’s conduct, the

victim called 911, “yelling at the top of [her] lungs to the

operator, ‘[p]lease send help.’” As the victim was on the

phone, defendant climbed back down the ladder and ran away.

On 21 October 2008, the victim spent the night at a

friend’s residence. The next morning, she received a call from

the Raleigh Police Department. In response, she drove to her

apartment and found dead rose petals around her door and the

stairs leading to her door. Later that day, the victim received

a phone call at work from a woman purporting to be a member of

“Victim Services.” The woman provided the victim with a phone

number to call if she needed any assistance with her situation
 -11-
involving defendant. The victim called the following day, but

defendant answered the phone and said, “[g]otcha.”

Too afraid to sleep in her own apartment, the victim stayed

with her father. At 6:00 a.m. on 24 October 2008, she went to

the gym in her father’s apartment complex. When she walked

backed to her father’s apartment it was still dark outside, and

defendant appeared from underneath the stairs. Defendant

stopped the victim and attempted to talk to her, stating, “[d]o

not believe what the police have told you.” The victim

screamed, activated her car alarm and ran up the stairs.

Defendant immediately left the area, and the victim’s father

unsuccessfully attempted to pursue him on foot. The victim

reported this incident to the police.

Based on these events, the victim moved to a new apartment

complex about five miles away and only told her father, uncle,

grandmother, and some residents of her former apartment complex.

Two days after the victim moved to the new apartment, and while

she was walking towards the apartment entrance, defendant

emerged and stated, “I know it wasn’t cheap for you to move into

this apartment. Why don’t you come to my truck on the side of

the building, and I’ll give you some money?” Defendant

screamed, told him to leave her alone, and he walked away. The
 -12-
victim subsequently obtained a domestic violence protective

order that was served on defendant on 7 November 2008.

The post-December evidence was far less substantial.

Although property crimes were committed against the victim and a

possible GPS tracking device discovered on her car, there was no

evidence linking defendant to those events.

Given the overwhelming evidence to support each essential

element of felony stalking occurring between 24 September 2008

and 30 November 2008 and the lack of post-December evidence

directly attributable to defendant, we reject defendant’s

argument that had the trial court provided specific jury

instructions addressing the post-December events and the

dismissed charge, the jury would have probably reached a

different verdict.

III. Conclusion

In sum, we dismiss defendant’s contention that the trial

court erred by allowing the State, without limitation, to argue

post-December evidence during closing arguments because

defendant invited such error, if any. Moreover, the trial court

did not commit plain error in its jury instructions because

defendant has failed to show that absent the purported errors,

the jury probably would have reached a different result.
 -13-
No prejudicial error.

Judges CALABRIA and DAVIS concur.

Report per Rule 30(e).