An unpublished opinion of the North Carolina Court of Appeals does not constitute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