                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA19-709

                                Filed: 18 February 2020

Mecklenburg County, No. 17 CRS 247380

STATE OF NORTH CAROLINA

               v.

CLAYTON JAMES KOWALSKI


         Appeal by defendant from judgment entered 14 February 2019 by Judge Carla

Archie in Mecklenburg County Superior Court. Heard in the Court of Appeals 21

January 2020.


         Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
         Hyde, for the State.

         William D. Spence for defendant-appellant.


         TYSON, Judge.


         Clayton James Kowalski (“Defendant”) appeals from judgment entered on the

jury’s verdict finding him guilty of misdemeanor assault on a female. We find no

error.

                                    I. Background

         Defendant and Katelyn Policke dated on-and-off for five years, from

approximately 2012 until 2017. They lived together in an apartment for a year and

a half until October 2017, when Policke moved out and into a house without
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Defendant. Defendant and Policke had drinks at his parents’ house on 23 December

2017. Defendant and Policke left around 11 p.m. Defendant drove Policke to her

house and then drove himself home.

         Policke called Defendant shortly after he returned home to discuss their

relationship. Policke believed their relationship was not progressing and asserted it

“was going backwards.” The conversation escalated and Defendant hung up the

phone. Policke repeatedly tried to call Defendant back, but he refused to speak with

her.

         Policke drove to Defendant’s house and rang the doorbell.       Policke and

Defendant presented differing versions of what happened at his house during the

trial.

                                  A. Policke’s Version

         Policke testified Defendant answered the door while holding a loaded shotgun.

Defendant allowed Policke to come inside and they spoke. At one point, Policke went

upstairs to gather her possessions and leave. Policke was sitting on Defendant’s bed

when he grabbed her head and tried to pull her off the bed. She fell and injured her

neck. Defendant dragged her down the hallway and pushed her down the stairs.

Defendant stood over Policke on the stairs, kicking and hitting her in the face.

         Policke screamed, hoping someone would eventually hear her.       Defendant

allegedly told her, “the louder you scream, the more [I’m] going to hit [you].”



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Defendant took Policke’s purse and keys from her and threw them out the front door

into a flower bed. Defendant threatened to call the police. Policke eventually got up

and walked out the front door. She found her purse and keys and drove herself home.

      Policke’s mother, Kathy, testified at trial. She said Policke called her between

12:30 and 1 a.m. as she drove from Defendant’s house. Policke was “in a panic” and

told her mother “she had been assaulted.” Kathy drove to meet her at her home as

Policke told her what happened. Kathy testified Policke gave a detailed account,

which was consistent with her own testimony at trial.

      Kathy called the police shortly before arriving at Policke’s home. Police and

emergency medics responded to Policke’s home. Policke went to the hospital. Policke

had bruises and scratches on her cheeks and neck and complained her eardrum had

burst and she could not hear.

                                B. Defendant’s Version

      Defendant testified he heard banging on his door as well as the doorbell

ringing. Defendant denied having a shotgun when he opened the door. Defendant

described Policke as “upset but not violent at that moment.”

      Defendant went upstairs and Policke followed.        They sat on his bed and

continued discussing the status of their relationship. Defendant testified he told

Policke, “until there’s no problems and you don’t have violent -- you know, end up

getting violent, I can’t give a ring to someone that acts like that.” Policke continued



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to question Defendant about their relationship until “she felt like [Defendant] was

ignoring her,” at which point she slapped Defendant in his face.

      Defendant told Policke she had to leave. Policke punched Defendant in the

arm. Defendant pushed her away onto his bed and went downstairs. Policke followed

Defendant down the stairs, but she stumbled and fell. Defendant opened the front

door and told Policke to leave his home. She was yelling loudly at him and did not

leave. Defendant closed the front door and called the police while Policke resumed

slapping and punching him. When Policke told Defendant she would leave, he hung

up the phone call. She did not leave.

      Defendant went into the kitchen and Policke followed.        Policke swung at

Defendant and fell into his stove. Defendant denied pushing her into his stove.

Policke tried to punch Defendant again after following him to the living room.

Defendant threatened to call the police again. He took her purse and threw it out the

front door. Policke left to look for it and Defendant closed and locked the door.

Defendant denied slapping, punching, or kicking Policke.

                                  C. Adjudication

      Defendant was charged with assault on a female on 24 December 2017, and

Policke obtained an ex parte domestic violence protective order (“DVPO”) that same

day. After Policke received a blank text message from Defendant on 26 December




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2017, he was charged with violating the DVPO on 3 January 2018. The State joined

both charges for trial.

        The jury found Defendant guilty of misdemeanor assault on a female on 14

February 2019. The jury found Defendant not guilty of violating the DVPO. The trial

court sentenced Defendant to a suspended sentence of 75 days’ imprisonment and

placed Defendant on supervised probation for 18 months. Defendant filed his written

notice of appeal on 27 February 2019.

                                    II. Jurisdiction

        This Court possesses jurisdiction over Defendant’s appeal from judgment as a

matter of right pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2019).

                                       III. Issues

        Defendant argues the trial court abused its discretion by prohibiting

Defendant from cross-examining Policke about her prior mental health history.

Defendant also argues the trial court committed plain error in its instruction to the

jury.

                                IV. Cross-Examination

        Policke and Kathy each testified for the State, along with an officer from the

Huntersville Police Department. During cross-examination of Policke, Defendant’s

counsel began a line of questioning by asking Policke if she gets aggressive “when

things don’t go your way[.]” Defendant’s counsel then asked about a previous incident



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in which Policke had allegedly attacked her mother. The State objected, and the trial

court excused the jury. The court heard arguments from both parties on the issue

and conducted a voir dire of Defendant’s line of questioning to “see where this leads.”

      Defendant’s counsel demonstrated the proposed cross-examination of Policke

in voir dire. Defendant’s counsel asked some questions about prior incidents of

Policke’s physical aggression, anger, and her mental health and treatment. The State

objected to the relevance of the questions, which the trial court overruled for the

purpose of taking the voir dire. The trial court heard arguments on the admissibility

of the proposed testimony at the conclusion of Defendant’s voir dire cross-

examination.

      The trial court ruled some of Defendant’s proposed line of questioning

admissible, but determined the questions concerning Defendant’s mental health and

treatment were not relevant and inadmissible. Additionally, the trial court ruled “to

the extent [the questions had] some attenuated relevance, [they are] more prejudicial

than [they are] probative.” Defendant did not attempt to elicit any of the proposed

testimony about Policke’s mental health when cross-examination resumed in front of

the jury.

                                    A. Preservation

      The State argues Defendant failed to preserve this issue for appellate review

by failing to elicit the contested testimony in the presence of the jury. The State cites



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State v. Coffey, 326 N.C. 268, 389 S.E.2d 48 (1990), to support its argument. The

State’s reliance on Coffey is misplaced.

      In Coffey, the State called a police officer to testify and the trial court conducted

a voir dire of his proposed testimony. Id. at 286-87, 389 S.E.2d at 59. The court ruled

most of the officer’s proposed testimony was inadmissible hearsay. Id. at 287, 389

S.E.2d at 59.

      During the voir dire, the defendant’s counsel asked if he could question the

officer about another possible culprit for the crime charged. Id. “The trial court

indicated that the defendant's counsel could do so, but that the trial court would

sustain an objection to such questions at that time.” Id. When the jurors returned,

the defendant’s counsel had no questions for the officer on cross-examination. Id.

The defendant’s counsel did not attempt to elicit and preserve the proposed testimony

from the officer, even during the voir dire. Id.

      One purpose of conducting a voir dire examination of contested evidence, when

a trial court determines its admissibility, is to preserve an offer of proof of the

evidence for appellate review.     See id. at 289-90, 389 S.E.2d at 61 (where “the

defendant never actually attempted to introduce [the contested] evidence . . . . the

defendant may not now be heard to complain on appeal that such evidence was not

before the jury or that the trial court did not allow him to cause the record to show

what any such evidence might have been.”) (emphasis supplied); see also State v.



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Chapman, 294 N.C. 407, 415, 241 S.E.2d 667, 672 (1978) (“A judge should be loath to

deny an attorney his right to have the record show the answer a witness would have

made when an objection to the question is sustained. In refusing such a request the

judge incurs the risk . . . that the Appellate Division may not concur in his judgment

that the answer would have been immaterial or was already sufficiently disclosed by

the record.”).

       Unlike the defendant’s counsel in Coffey, Defendant’s counsel elicited Policke’s

contested testimony in voir dire, secured a ruling from the trial judge, and preserved

the issue in the record for review on appeal.

                               B. Standards of Review

       “[A]lthough cross-examination is a matter of right, the scope of cross-

examination is subject to appropriate control in the sound discretion of the court.”

State v. Larrimore, 340 N.C. 119, 150, 456 S.E.2d 789, 805 (1995) (citations omitted);

see also N.C. Gen. Stat. § 8C-1, Rule 611(a) (2019). “In general, we review a trial

court’s limitation on cross-examination for abuse of discretion.” State v. Bowman,

372 N.C. 439, 444, 831 S.E.2d 316, 319 (2019).

       “Even though a trial court’s rulings on relevancy [under Rule 401] technically

are not discretionary and therefore are not reviewed under the abuse of discretion

standard applicable to Rule 403, such rulings are given great deference on appeal.”

State v. Muhammad, 186 N.C. App. 355, 360, 651 S.E.2d 569, 573 (2007) (citation and



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alterations omitted). “We review a trial court’s decision to exclude evidence under

Rule 403 for abuse of discretion.” State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388,

390 (2008).

                                     C. Analysis

      Defendant argues the trial court abused its discretion in limiting his trial

counsel’s cross-examination of Policke by ruling portions of his intended questioning

not relevant and more prejudicial than probative.

      “Relevant evidence” is defined as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” N.C. Gen. Stat. §

8C-1, Rule 401 (2019). “Relevant evidence, as a general matter, is considered to be

admissible. . . . Any evidence calculated to throw light upon the crime charged should

be admitted by the trial court.” State v. McElrath, 322 N.C. 1, 13, 366 S.E.2d 442,

449 (1988) (citations and internal quotation marks omitted). “Although relevant,

evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice” under Rule 403. N.C. Gen. Stat. § 8C-1, Rule 403 (2019).

      Defendant argues the proposed cross-examination of Policke was relevant

evidence for the purpose of impeaching her credibility. See State v. Williams, 330

N.C. 711, 723, 412 S.E.2d 359, 367 (1992) (“Where, as here, the witness in question

is a key witness for the State, this jurisdiction has long allowed cross-examination



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regarding the witness’ past mental problems or defects.”). “A witness may be cross-

examined on any matter relevant to any issue in the case, including credibility.” N.C.

Gen. Stat. § 8C-1, Rule 611(b) (2019). However, evidence that has no bearing on

truthfulness or untruthfulness is not proper impeachment evidence. State v. Call,

349 N.C. 382, 411, 508 S.E.2d 496, 514 (1998); N.C. Gen. Stat. § 8C-1, Rule 608(b)

(2019).

      The excluded testimony at issue concerned prior instances of Policke’s mental

health and treatment.    One instance involved treatment Policke had sought for

childhood trauma. The trial court noted Defendant’s counsel did not ask Policke

about nor attempt to introduce evidence of a mental health diagnosis or mental state

in the proposed cross-examination.

      Defendant has not shown the excluded testimony was relevant to Policke’s

truthfulness or untruthfulness to challenge her credibility before the jury. See Call,

349 N.C. at 411, 508 S.E.2d at 514.       Defendant has not shown the trial court

committed prejudicial error in ruling the proposed cross-examination was not

relevant under Rule 401. To the extent the excluded evidence may have had some

relevance, the trial court’s ruling that the proposed testimony was more prejudicial

than probative under Rule 403 was not an abuse of discretion. Defendant’s argument

is overruled.

                                V. Jury Instructions



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                                A. Standard of Review

      Defendant failed to proffer instructions or to object to the jury instructions

given by the trial court.

             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). To “specifically and distinctly” show plain error to challenge

instructions given to the jury, Defendant “must show that a fundamental error

occurred at his trial and that the error had a probable impact on the jury’s finding

that the defendant was guilty.” State v. Towe, 366 N.C. 56, 62, 732 S.E.2d 564, 568

(2012) (citations and internal quotation marks omitted).

                                      B. Analysis

      Defendant argues the trial court committed plain error in charging the jury

that the State needed to prove Defendant had intentionally assaulted Policke by

“grabbing, pushing, dragging, kicking, slapping, and/or punching” when the criminal

summons charged Defendant with “striking her neck and in her ear.”

      Defendant correctly argues: “It has long been the law of this State that a

defendant must be convicted, if convicted at all, of the particular offense charged in

the warrant or bill of indictment.” State v. Williams, 318 N.C. 624, 628, 350 S.E.2d

353, 356 (1986) (citations omitted). “[T]he failure of the allegations [in a warrant or


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indictment] to conform to the equivalent material aspects of the jury charge

represents a fatal variance, and renders the indictment insufficient to support that

resulting conviction.” Id. at 631, 350 S.E.2d at 357.

      However, “[a] criminal defendant will not be heard to complain of a jury

instruction given in response to his own request.” State v. McPhail, 329 N.C. 636,

643, 406 S.E.2d 591, 596 (1991). “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. § 15A-1443(c) (2019). “[A] defendant who invites error has waived his right to

all appellate review concerning the invited error, including plain error review.” State

v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001), disc. review denied, 355

N.C. 216, 560 S.E.2d 141 (2002).

      The trial court followed the pattern jury instruction for misdemeanor assault

on a female, which requires the court to describe the alleged assault. See N.C.P.I.--

Crim. 208.70 (2019).      During the charge conference, the trial court proposed

describing Defendant’s alleged assaultive conduct in its jury instructions as

“grabbing, pushing, dragging and/or kicking.” Defendant’s counsel replied: “I think

there was slapping and punching in there as well. I think that is what they are

alleging. So drag, punched, slapped, kicked.”

      The trial court incorporated Defendant’s counsel’s addition of “slapping and

punching” to its original proposed instruction, resulting in the final description in the



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jury instruction as Defendant: “grabbing, pushing, dragging, kicking, slapping,

and/or punching” Policke.

      Defendant’s counsel failed to object to the variance he now alleges to have been

plain error. Defendant’s counsel did not request the trial court include the specific

language of “striking her neck and in her ear” from the criminal summons. Rather,

Defendant’s counsel contributed to the variance by adding more descriptive words,

which were consistent with the evidence presented at trial by the State and not found

in the criminal summons.

      The variance, which Defendant now alleges is plain error, resulted in part from

his own conduct in the proposed instructions. Defendant cannot show prejudice. See

N.C. Gen. Stat. § 15A-1443(c). Defendant’s asserted error, if any, was invited and he

“will not be heard to complain” on appeal. See McPhail, 329 N.C. at 643, 406 S.E.2d

at 596. Defendant’s argument is overruled.

                                    VI. Conclusion

      Defendant preserved the excluded testimony and the issue of the trial court’s

limitation of his cross-examination of Policke for appellate review. Defendant has

not shown relevancy or that the trial court abused its discretion by limiting his cross-

examination of Policke to exclude certain testimony about her mental health and

treatment to challenge her credibility.




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      Defendant’s counsel did not object to the jury instruction as a fatal variance,

which he now alleges was plain error to warrant a new trial. The unpreserved error,

if any, was invited error, as Defendant’s counsel contributed to the variance.

Defendant received a fair trial, free from prejudicial errors he preserved and argued.

We find no reversible errors to award a new trial. It is so ordered.

      NO ERROR.

      Judges DIETZ and INMAN concur.




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