State v. Plotz

906 S.E.2d 57

STATE of North Carolina

v.Frederick PLOTZ, Defendant.

No. COA 23-749

Court of Appeals of North Carolina.

Filed August 20, 2024

Appeal by Defendant from Judgment entered 1 February 2023 by Judge Robert Broadie in Forsyth County Superior Court. Heard in the Court of Appeals 2 April 2024. Forsyth County, No. 20 CRS 59369

Attorney General Joshua H. Stein, by Assistant Attorney General A. Mercedes Restucha, for the State.

Daniel M. Blau, for Defendant-Appellant.

HAMPSON, Judge.

Factual and Procedural Background

Frederick Plotz (Defendant) appeals from a Judgment entered on a jury verdict convicting him of Misdemeanor Stalking. The Record—including the evidence presented at the jury trial—reveals the following:

In 2019, Julious Parker, a 65-year-old Black man, moved into his new residence, one half of a duplex in Winston-Salem. Defendant lived in the other half of the duplex. Parker and Defendant had no communication with each other from the time Parker moved in until the following interactions occurred.

One night in July 2020, at approximately 4 AM, Parker observed Defendant taking yard waste and placing it on an existing pile on Parker’s side of the yard. Parker went outside to confront Defendant, leading to the following exchange, as testified to by Parker:

Parker: Excuse me. You need to put that stuff on your side.

Defendant: You started that.

Parker: Started what?

Defendant: Boy.

Parker: You call me what?

Defendant: Nigga.

Defendant then returned to his house.

The next day, Parker found a letter from Defendant in his mailbox, addressed to "Occupant/Tenant" and indicating the owner of Parker’s half of the duplex had been copied. The letter begins:

Printed this out and hope it’s clear to you in terms of our city ordinance(s). At the law firm, we deal with both civil and local ordnance. (sic) It would benefit you to read this as I highlighted the most significant sections of our city’s sub code. Sec. 74-19 is for your review hoping your level of literacy lends itself to clear comprehension and the necessary expedience of your subsequent pending remedy.

The letter complains about a pile of debris in Parker’s yard and alleges that it obstructs visibility for vehicles. It continues:

Secondly, you may want to consider encroachment and destruction of property as it relates to trespassing. I will soon have to post NO TRESPASSING signs (no thanks to you). Do not cut or tamper the with (sic) survey line (again). Other than my recordation of said event(s) there are other means of surveillance employed. You’ve certainly made a huge statement about yourself based on the enormous junk & debris pile in front of YOUR RESIDENCE on our street. Not good! Not very bright, either. Complete disregard on many counts, but mostly for the safety of drivers to navigate a residential street, in the city of Winston-Salem, North Carolina.

(emphasis in original). The letter ends by quoting purportedly verbatim the majority of Section 74-19 of the Winston-Salem Code of Ordinances, which addresses the responsibility of residents to keep streets and sidewalks clear from vegetation.

Upon receiving this letter, Parker called the owner of his residence, who advised that he call the police. He did so, and officers arrived and spoke with Defendant.

Following this exchange, from July through August 2020, Defendant began placing milk jugs filled with water in his driveway. Some of these jugs had a letter written on them and were positioned such that Parker could read the letters from his bedroom window. Defendant would move the jugs around on his driveway and position them so that one jug at a time faced Parker’s window. Parker informed the owner and began to take pictures of the jugs. He noticed that the jugs spelled out different words, one letter each day spelling out "N" "I" "G" "G" "A" and later "H" "0" "M" "0". On other days the jugs displayed two letters at a time, "F. N." and "Q. N." Parker understood these to be abbreviations for homophobic and racist slurs.

On several occasions during this time period, Defendant would rev his truck’s engine with its taillights aimed at Parker’s bedroom window at around 2:00 AM. Parker placed video cameras at the front of his property, which captured video recordings of Defendant positioning milk jugs and running his truck in the early hours of the morning. It also captured Defendant pointing a flashlight at Parker’s floodlight sensor.

Parker testified at trial to multiple encounters he had with Defendant during July and August 2020. During one, Defendant "threw up his middle finger" at Parker and called him a racial slur. During another, Defendant, apparently speaking on the phone, spoke loudly enough while outside that Parker could hear him say: "Yeah they need to go back on his other side of town." During other telephone conversations Defendant would "talk about bullets, ammo, gun," at a volume Parker interpreted as intended to allow him to overhear. Defendant would also at night bang on the adjoining wall between their residences, which was Parker’s bedroom wall.

Following these events, Parker called the police a second time. Upon their advice, Parker went to the magistrate’s office to take out charges against Defendant. The State filed a Misdemeanor Statement of Charges on 28 June 2021 charging Defendant with Misdemeanor Stalking and Disorderly Conduct by Abusive Language. Defendant received a bench trial in District Court on 4 August 2021. At this bench trial, Defendant was found not guilty of Misdemeanor Disorderly Conduct by Abusive Language. However, Defendant was found guilty of Misdemeanor Stalking. Defendant appealed this conviction to Superior Court.

Defendant was tried de novo in Superior Court on 30 January 2023. At trial, Parker testified to the above. Defendant testified that he had lived in the residence for nearly 40 years and that his family was "the original anchor family in the neighborhood." He said that when Parker moved in during 2019 Defendant attempted to introduce himself, but Parker turned to the men helping him move and said "Look, a cracker neighbor." He denied calling Parker slurs or spelling out slurs with the milk jugs. He explained that he would fill the jugs with water to distribute to unhoused persons, and that he would label them with the initials of different individuals. He also testified that the jugs in Parker’s photographs were not placed where he had put them and appeared to have been moved. He denied banging on the adjoining wall and explained that the phone calls Parker overheard involving "ammo" and "gun" were likely conversations about varieties of coffee sold by the Black Rifle Coffee Company. He testified that he had not intended to intimidate or harass Parker.

On 1 February 2023, the jury returned its verdict finding Defendant guilty of Misdemeanor Stalking. The trial court sentenced Defendant to 18 months of supervised probation and a 15-day active sentence. Defendant gave written notice of appeal.

Issues

The multiple issues raised by Defendant on appeal are whether: (I) the trial court erred in instructing the jury on Misdemeanor Stalking without limiting its consideration to the course of conduct alleged in the charging instrument; (II) the trial court erred by failing to provide a limiting instruction regarding evidence of Defendant’s conduct not alleged in the charging instrument; (III) the trial court’s jury instruction as to the ele- merits of Misdemeanor Stalking was improper because it allowed the jury to consider the infliction of fear of death or bodily injury as an element, which was unsupported by the evidence and was not alleged in the charging instrument; (IV) Defendant received ineffective assistance of counsel because Defendant’s trial counsel failed to object at trial regarding any of those issues; and, (V) there was sufficient evidence to support his conviction for Misdemeanor Stalking.

Analysis

I. Jury instructions regarding course of conduct alleged in charging instrument

Defendant first argues the trial court erred by failing to instruct the jury as to the specific course of conduct alleged in the Misdemeanor Statement of Charges, allowing the jury to find him guilty of Misdemeanor Stalking upon a theory of conduct not alleged in the charging instrument.

Stalking is the (1) willful harassment on multiple occasions or (2) willful engagement in a course of conduct without legal purpose that the defendant knows or should know would cause a reasonable person (a) to fear for their safety or the safety of immediate family or close personal associates or (b) suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment. N.C. Gen. Stat. § 14-277.3A(c) (2023). The Statement of Charges filed against Defendant alleges he engaged in a course of conduct directed at Parker "by placing milk jugs outside of Mr. Parker’s home spelling the words ‘nigga’ and ‘homo.’ " During the jury charge, the trial court instructed the jury on the elements of stalking:

The Defendant has been charged with stalking. For you to find the Defendant guilty of this offense, the State must prove two things beyond a reasonable doubt.

First, that the Defendant willfully engaged in a course of conduct directed at the victim without legal purpose.

And second, that the Defendant at the time knew or should have known that the course of conduct would create a reasonable person to suffer substantial emotional distress by placing that person in fear of death, bodily injury, or continued harassment.

The trial court did not specify to the jury that it was required to find the course of conduct described in the Misdemeanor Statement of Charges—the placement of the milk jugs—as the basis for a stalking conviction. Defendant argues that, because evidence was presented at trial of additional conduct—including the first July 2020 confrontation, placing the letter in Parker’s mailbox, revving his truck’s engine at night, aiming a...