State v. Williams

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-342 NORTH CAROLINA COURT OF APPEALS Filed: 7 October 2014 STATE OF NORTH CAROLINA v. Durham County Nos. 09CRS000894-97 RICHARD WILLIAM WILLIAMS, Defendant. Appeal by defendant from Judgments entered on or about 26 July 2013 County. by Judge Michael Morgan in Superior Court, Durham Heard in the Court of Appeals 26 August 2014. Attorney General Roy A. Cooper, III by Assistant Attorney General Laura Edwards Parker, for the State. Appellate Defender Staples Hughes by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant. STROUD, Judge. Richard William Williams ( defendant ) appeals from the judgments entered after a Durham County jury found him guilty of three counts of first-degree kidnapping and misdemeanor breaking or entering. Defendant complains that the trial court erred in not defining terrorizing in the jury charge. We find no error. I. Background -2At 11:45 p.m. on 15 January 2009, two masked men, later identified as defendant and defendant s brother, Bobby Matthews, kicked down the back door of Luis Mendoza s Durham apartment. Mendoza and his roommates, Rigoberto Cisneros Figueroa, were in the apartment at the time. and Fabio Defendant hit Mendoza on the head with a gun three times, and Matthews hit Cisneros. Mendoza Defendant demanded that Mendoza give him money. responded that he had no money, defendant When stabbed Mendoza s left arm three times. At one point, Mendoza picked up his wallet from a closet. One of the eighty-four assailants dollars then from Defendant and Matthews grabbed it, and next led demanded wallet, additional took money. Mendoza and Cisneros into a bedroom where Figueroa was located. hit Figueroa, and Mendoza s Defendant and Matthews then Matthews asked Figueroa for money. After Figueroa responded that he had none, Matthews fired a gun next to Figueroa s ear. Defendant legs, and and mouths Mendoza s left leg. Matthews with taped duct the tape. three victims Matthews then wrists, stabbed Cisneros sustained injuries to his head and stomach, and Figueroa sustained a cut on his arm. In response to a phone call, the police arrived and arrested defendant and -3Matthews. Mendoza received medical treatment at a hospital that night. Defendant was indicted for three kidnapping, among other charges. counts of first-degree Defendant pled not guilty. After a trial on 21 April 2011, a jury reported that it was deadlocked on the first-degree kidnapping charges. court declared a mistrial. 2012, a jury found kidnapping. trial found court After a second trial on 27 January defendant first-degree The trial guilty On 24 prejudicial of all February juror three 2012, counts of however, misconduct, the vacated the first-degree kidnapping convictions, and ordered a new trial. After a third trial on 26 July 2013, a jury found defendant guilty of all three counts of first-degree kidnapping, as well as misdemeanor kidnapping breaking offenses, or the entering. trial court For the sentenced first-degree defendant three consecutive terms of 135 to 171 months imprisonment. the breaking defendant to or a entering term of offense, 120 days the trial imprisonment concurrently with the last kidnapping sentence. notice of appeal in open court. II. court Jury Charge to to For sentenced be served Defendant gave -4Defendant complains that the trial court erred in omitting North Carolina Pattern Jury Instruction Criminal ( N.C.P.I. ) 210.20 s definition of terrorizing from the jury charge. See N.C.P.I. Crim. 210.20. 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) (2013). It is well established that a defendant who causes or joins in causing the trial court to commit error is not in a position to repudiate his action and assign it as ground for a new trial. Under the doctrine of invited error, a party cannot complain of a charge given at his request, or which is in substance the same as one asked by him. State v. Jones, 213 N.C. App. 59, 67, 711 S.E.2d 791, 796 (2011) (citations and quotation marks omitted). A defendant who invites error thus concerning has the waived invited his right error, to including all appellate plain error review review. State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001), disc. rev. denied, 355 N.C. 216, 560 S.E.2d 141 (2002). During the jury charge conference, the State and defendant requested that the trial court give first-degree kidnapping offenses. N.C.P.I. 210.20 for the See N.C.P.I. Crim. 210.20. The State and defendant requested the following language from N.C.P.I. 210.20: [T]he defendant did this for the purpose of . . . terrorizing that person or any other person. Terrorizing -5means more than just putting another in fear; it means putting that person in some high fright or apprehension. degree of fear a state of intense See id. The trial court ruled that it would include the language. The State and defendant, however, later requested that the trial court give N.C.P.I. 210.25, instead of N.C.P.I. 210.20. See N.C.P.I. Crim. 210.25. N.C.P.I. 210.25 does not include or define the element of terrorizing. The State and defendant additionally requested that the trial court incorporate certain language from N.C.P.I. 210.20: the purpose person. of . . add N.C.P.I. to this 210.20 Consequently, [T]he terrorizing that person or any other See N.C.P.I. Crim. 210.20. The trial court granted both joint requests. court . [T]he defendant did this for the defendant Defendant did not request that the trial instruction regarding relevant confined a any definition portion or additional of the restrained language of terrorizing. jury that from charge person read: for the purpose of facilitating his or another person s commission of robbery with a firearm and/or a dangerous terrorizing that person or any other person. weapon, and/or The trial court concluded the jury charge conference by asking if either party -6had any additional requests. Neither party made any additional requests. Because defendant requested that the trial court not give the jury trial instruction court specific had which intended language which defined to use, did not terrorizing, but later include which requested the the other definition of terrorizing, defendant invited any error in omitting it. See Jones, 213 N.C. App. at 67, 711 S.E.2d at 796. Defendant cannot complain of a jury charge given at his request. See id., 711 S.E.2d at 796; N.C. Gen. Stat. § 15A-1443(c). Defendant cites several cases for the proposition that once a trial court agrees to give a jury instruction, a defendant need not request it again in order to preserve error. See, e.g., State v. Jaynes, 353 N.C. 534, 556-57, 549 S.E.2d 179, 196 (2001), cert. denied, 535 U.S. 934, 152 L.Ed. 2d 220 (2002); State v. Keel, 333 N.C. 52, 56-57, 423 S.E.2d 458, 461 (1992). But all of these superseded his definition of cases request are for terrorizing inapposite, N.C.P.I. by later because 210.20 defendant along requesting with a its slightly modified version of N.C.P.I. 210.25 in its stead. Accordingly, we hold that defendant has waived this issue for all appellate review, including plain error review. See Jones, 213 N.C. App. -7at 67, 711 S.E.2d at 796; Barber, 147 N.C. App. at 74, 554 S.E.2d at 416; N.C. Gen. Stat. § 15A-1443(c). III. Conclusion Because defendant has failed to preserve error issue, we hold that the trial court did not commit error. NO ERROR. Judges MCGEE and BRYANT concur. Report per 30(e).- on this

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