State v. Minton ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-218
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
Orange County
v.
Nos. 08 CRS 930-31, 512
BRIAN GREGORY MINTON
Appeal by defendant from judgments entered 8 May 2012 by
Judge Orlando F. Hudson in Orange County Superior Court. Heard
in the Court of Appeals 12 September 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Derrick C. Mertz, for the State.
Megerian & Wells, by Franklin E. Wells, Jr., for Defendant.
ERVIN, Judge.
Defendant Brian Gregory Minton appeals from judgments
sentencing to him to a term of life imprisonment without the
possibility of parole based upon his conviction of first degree
murder, to a consecutive term of 116 to 149 months imprisonment
based upon his conviction of first degree kidnaping, and to a
consecutive term of 220 to 273 months based upon his conviction
of conspiracy to commit first degree murder. On appeal,
Defendant contends that the trial court erred by allowing the
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admission of evidence concerning the commission of certain other
criminal acts that took place prior to and after the murder and
kidnaping for which Defendant was convicted; evidence
identifying Defendant as having been seen in proximity to the
location at which a theft had been committed; and evidence that
two witnesses had not disclosed information in their possession
as a result of their fear of Defendant. After careful
consideration of Defendant’s challenges to the trial court’s
judgments in light of the record and the applicable law, we
conclude that the trial court’s judgments should remain
undisturbed.
I. Factual Background
A. Substantive Facts
Jack Johnson had been Defendant’s schoolmate and long-time
friend. During 2008, Defendant and Jack Johnson began
committing crimes together, including a breaking or entering
during which Defendant, Jack Johnson, and Jacob Maxwell stole a
sound system and television.
Matt Johnson, who had heard about Defendant and wanted to
go into business with him, was introduced to Defendant on or
about 20 July 2008. Subsequently, Matt Johnson concocted a plan
with his long-time friend, Joshua Bailey, to sell drugs in order
to raise money for use in obtaining in-patient drug treatment.
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In the following days, Sarah Krombach, Matt Johnson’s
girlfriend; Matt Johnson; Defendant; and Mr. Maxwell began
spending time together. During this period, items began to go
missing, with two checks and two guns having been stolen from
Ms. Krombach’s home and jewelry and medication having been
stolen from Defendant’s mother.
A week prior to the murder and kidnaping at issue in this
case, Ms. Krombach informed Matt Johnson that she knew of an
individual who lived in Greensboro from whom the two could
purchase marijuana and took Matt Johnson to that person’s
residence. Later that week, Mr. Maxwell; Matt Johnson; Jack
Johnson; Defendant; Mr. Maxwell’s girlfriend, Chelsea Lipson;
and Defendant’s friend, Garry Bright, went to the Greensboro
residence to rob those who were present at that location.
After the group arrived at the Greensboro residence, Jack
Johnson and Mr. Maxwell stood by the front door while Ms. Lipson
asked to use the telephone. Once the door to the residence had
been opened, Jack Johnson and Mr. Maxwell entered the residence,
armed, and demanded to be given certain items, eventually taking
a PlayStation 3, an iPod, marijuana, and cash. In the course of
this robbery, Mr. Maxwell struck a resident in the head with a
nine-millimeter pistol and Jack Johnson struck another
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individual with a .38 caliber revolver, both of which had been
brought to the scene of the robbery from Defendant’s home.
On 29 July 2008, Jack Johnson, Matt Johnson, Brandon
Greene, Mr. Bailey, Mr. Bright, and Mr. Bright’s cousin, Ryan
Lee, were socializing at Mr. Bright’s home. In the early
afternoon, Defendant and Mr. Maxwell arrived at the Bright home
and invited everyone to go to Defendant’s home in order to
consume alcohol and drugs. At the time that Mr. Maxwell, Mr.
Bright, and Jack Johnson arrived at Defendant’s home, Ms. Lipson
was already present, while Ms. Krombach arrived a short time
later.
After an initial period of socializing, Defendant and Ms.
Krombach went outside for a brief period of time. Upon their
return, the group began discussing the items that had previously
been stolen and realized that Defendant, Ms. Krombach, and Jack
Johnson were all missing items, including the PlayStation 3
which had been acquired during the Greensboro robbery. In
addition to the guns and checks that had been stolen from the
Krombach home and the jewelry and medication that had been
stolen from Defendant’s mother, Jack Johnson was missing
marijuana and the iPod that had been stolen from the Greensboro
residence and Defendant’s father was missing a pair of
sunglasses.
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Initially, the members of the group suspected that Matt
Johnson had stolen the missing items. After Ms. Krombach
suggested that the group confront Matt Johnson, Defendant stated
that he could arrange such a confrontation. At that point,
Defendant and Jack Johnson returned to Mr. Bright’s residence to
pick up Matt Johnson, having told him that they were just going
to “hang” at Defendant’s home. Although Matt Johnson asked Mr.
Lee for a ride to the store prior to his departure for
Defendant’s residence, Ms. Lipson stopped Mr. Lee from complying
with this request, telling Mr. Lee that Matt Johnson was a
“snitch” and indicating that she would give Matt Johnson a ride.
At that point, Defendant drove everyone except Mr. Lee and Mr.
Bailey to his residence.
Before arriving at Mr. Bright’s house, Defendant and Jack
Johnson had already decided that, if Matt Johnson was guilty of
the thefts in question, he deserved to be assaulted. After Matt
Johnson reached Defendant’s residence, the group interrogated
him vigorously, asking him if he was working with the police and
accusing him of stealing the missing items. According to Jack
Johnson, Defendant handed Mr. Greene a .38 caliber revolver
during the questioning.
In response to this questioning, Matt Johnson indicated
that Mr. Bailey was the real culprit. At that point, Defendant
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had Mr. Bailey come to his residence. In addition, Mr. Lee
honored a request that he accompany Mr. Bailey to the garage.
As soon as Mr. Bailey arrived at the garage, Mr. Bright attacked
him before being restrained by Jack Johnson and Mr. Greene. Mr.
Bright claimed to have attacked Mr. Bailey because he was scared
and did not want the group to think of him as an informant.
After having been beaten and questioned about being a
“snitch,” Mr. Bailey denied having given the police any
information. He did, however, admit that he knew about the
theft of the guns and checks from the Krombach residence and
indicated that this theft had been Matt Johnson’s idea.
Although Defendant did not directly question either Mr. Bailey
or Matt Johnson, he was upset by the fact that both men
maintained their innocence. As a result, after pulling out a
nine-millimeter pistol and stating that, if the group’s
questions were not answered, someone would be shot and taken out
into the country,1 Defendant proposed that Mr. Bailey and Matt
Johnson should fight each other, with the loser “tak[ing] a long
ride to the country.” Although Mr. Bailey and Matt Johnson
“wrestled” for a brief period of time, nothing much came of
their struggle. However, because Mr. Bailey was confused and
1
Mr. Lee denied having witnessed Defendant waving a gun in
the air or hearing any discussion to the effect that Mr. Bailey
would be killed.
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disconcerted and Matt Johnson defended himself more effectively
than Mr. Bailey during interrogation, the group focused on Mr.
Bailey instead of Matt Johnson.
In an attempt to bring this dispute to a conclusion, Ms.
Krombach invited everyone to return to her residence and left,
along with Ms. Lipson and Mr. Bright, to make an apple pie at
that location. After Ms. Krombach, Ms. Lipson, and Mr. Bright
departed, Defendant told Mr. Maxwell to duct tape both Mr.
Bailey and Matt Johnson. As a result, Mr. Bailey’s hands were
zip tied and duct taped, his wrists were taped together and he
was placed inside a sport utility vehicle owned by Defendant’s
mother. Defendant drove the vehicle, with Mr. Maxwell riding in
the front seat and Jack Johnson, Matt Johnson, who carried a
nine millimeter handgun, and Mr. Bailey riding in the rear seat.
Mr. Greene and Mr. Lee followed Defendant in a separate vehicle.
After the group traveled to the cul-de-sac in the vicinity
of Mr. Maxwell’s residence, they walked down a path into the
woods. During that time, Jack Johnson asked Defendant what the
group was going to do. In response, Defendant stated that the
group was going to force Matt Johnson to kill Mr. Bailey and
that, if Matt Johnson failed to act in accordance with these
instructions, the group would hurt Matt Johnson. As the group
traveled through the wooded area, Defendant was carrying a .38
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caliber revolver while Matt Johnson was carrying the nine-
millimeter handgun.
After the group arrived at the desired location, Mr.
Maxwell volunteered to kill Mr. Bailey. In response, Defendant
stated that Matt Johnson should kill Mr. Bailey because Matt
Johnson was suspected of being a police informant. At that
point, Matt Johnson shot Mr. Bailey in the head and then, after
being prompted to do so by Defendant, shot Mr. Bailey in the
body. At Defendant’s request, the group buried Mr. Bailey.
Subsequently, Defendant and Jack Jackson returned to the
site at which Mr. Bailey had been killed and buried to cover his
body with additional dirt. In addition, they spread muriatic
acid in the area in which Mr. Bailey had been killed. As they
improved the manner in which Mr. Bailey’s body had been buried,
Defendant and Jack Johnson discussed the fact that Matt Johnson
was missing and that he was rumored to be in a rehabilitation
facility. A number of individuals, including Defendant and Mr.
Bright, eventually moved Mr. Bailey’s body to a second burial
site out of concern about Matt Johnson’s disappearance, which
had caused his trustworthiness to come into question.
On 17 August 2008, Defendant approached Mr. Bright with a
suggestion that they go to Pittsboro to “deal with Matt” Johnson
given Defendant’s concern that Matt Johnson knew too much about
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the group’s activities and could not be trusted. As a result of
his belief that Defendant had no regard for human life, Mr.
Bright had, by this time, begun to fear Defendant. In addition,
Defendant contacted Ms. Krombach, told her that he wanted to
speak with Matt Johnson, and obtained Ms. Krombach’s agreement
that she would tell him if she heard anything from Matt Johnson.
As a result of her irritation about the fact that Matt Johnson
had made contact with a former girlfriend, Ms. Krombach agreed
to Defendant’s request.
After meeting with Matt Johnson at a local restaurant, Ms.
Krombach persuaded him to accompany her to her uncle’s garage in
Pittsboro. Once she had made this arrangement with Matt
Johnson, Ms. Krombach contacted Defendant and told him that she
was taking Matt Johnson to the garage, where she was instructed
to keep him until everyone else arrived. At the time that
Defendant, who was accompanied by Jack Johnson, Mr. Maxwell, and
an individual named “Keys,” arrived at the garage, he was
carrying the same .38. caliber pistol that he had had in his
possession on the day that Mr. Bailey had been killed.
Upon entering the garage, the group began to question Matt
Johnson about their concerns that he was a police informant and
about the items that had been stolen from various group members.
After Matt Johnson’s hands had been duct taped, Defendant beat
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him with a metal object. In addition, other members of the
group assaulted Matt Johnson. For example, Jack Johnson wrapped
a chain around Matt Johnson’s neck. Eventually, Matt Johnson
confessed that he had the PlayStation 3 gaming system that had
been taken in the Greensboro robbery in his possession, that the
system was currently located at his mother’s house, and that he
was willing to retrieve it.
Although the group had Matt Johnson ride with Jack Johnson
and Ms. Krombach to his mother’s residence for the purpose of
retrieving the PlayStation, Matt Johnson was unable to enter the
house because his mother was out of town. As a result, Matt
Johnson stated that he would get the PlayStation on the
following day after his mother returned home. Matt Johnson
spent the night at Ms. Krombach’s residence so that she and Jack
Johnson could keep an eye on him.
On the following day, Defendant and Mr. Maxwell accompanied
Matt Johnson to his mother’s place of employment in an attempt
to retrieve the stolen items that they wished Matt Johnson to
return. Although Matt Johnson entered the office building in
which his mother worked, he left after hearing that she was
meeting with a client and might be occupied for as long as two
hours. When he eventually made contact with his mother, Matt
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Johnson told her that he needed to get out of town because
Defendant was trying to kill him.
In the meantime, Mr. Bailey’s father, Steve Bailey, had
become concerned about the whereabouts of his son after Mr.
Bailey missed seeing his grandmother before her departure for
Florida and failed to acknowledge his mother’s birthday, which
occurred on 3 August 2008, with even a phone call. On 5 August
2008, Mr. Bailey’s parents went to the Chapel Hill Police
Department for the purpose of filing a missing person report.
However, they were not allowed to file such a report on the
grounds that Mr. Bailey was an adult. After being contacted by
Evelyn Giddens, a family friend, who told him about the efforts
that the Baileys had made to file a missing person report
relating to Mr. Bailey, Investigator Tim Horne of the Orange
County Sheriff’s Department made contact with Steve Bailey and
helped him to file a report concerning his son with the Orange
County Sheriff’s Department on 20 August 2008.
After the filing of this report, Investigator Horne
gathered certain items of information concerning Mr. Bailey and
entered that information into the National Crime Information
Center database so that any law enforcement officer who made
contact with Mr. Bailey would be aware that he had been reported
missing. In addition, Investigator Horne collected the names of
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certain of Mr. Bailey’s friends for the purpose of speaking with
them and obtained the issuance of a silver alert relating to Mr.
Bailey based on the fact that Mr. Bailey had certain cognitive
impairments.
As he attempted to locate Mr. Bailey, Investigator Horne
came across an incident report contained in the P2P law
enforcement information sharing system that had been filed by
Ms. Krombach and her father concerning the theft of firearms and
certain other items from their home. According to the report in
question, Defendant had aided Ms. Krombach in recovering the
stolen firearms while Mr. Bailey had been listed as a suspect in
the theft. At the time that she spoke with Investigator Horne
on 22 August 2008, Ms. Krombach told Investigator Horne that she
believed that Mr. Bailey and Matt Johnson had stolen the weapons
and that Defendant assisted her in obtaining their return. On
the same date, Investigator Horne spoke with Defendant, who
stated that he had become involved in the return of the stolen
weapons after Matt Johnson and Mr. Bailey had approached him
with the stolen weapons and asked if he wanted to go use them to
engage in recreational shooting.
After hearing these references to Matt Johnson during his
conversations with Ms. Krombach and Defendant, Investigator
Horne spoke with Matt Johnson’s mother, who told Investigator
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Horne that her son had recently been assaulted and kidnaped and
was currently “on the run.” At the time that Investigator Horne
was able to speak with Matt Johnson, Matt Johnson told
Investigator Horne that Defendant had claimed to have killed Mr.
Bailey at a time when Matt Johnson was not present. On 10
September 2008, however, Matt Johnson informed Investigator
Horne that he had been present when Mr. Bailey was killed, that
Jack Johnson had actually killed Mr. Bailey, and that he could
show Investigator Horne the location at which Mr. Bailey’s body
had been buried. On the same date, Matt Johnson took
Investigator Horne to the original burial site. DNA consistent
with Defendant’s DNA was recovered from a latex glove found at
the original burial site. After Matt Johnson admitted that he
had killed Mr. Bailey, Mr. Bright showed investigating officers
where Mr. Bailey’s body was located.
B. Procedural History
On 15 September 2008, warrants for arrest charging
Defendant with first degree murder and first degree kidnaping
were issued. On 29 September 2008, the Orange County grand jury
returned bills of indictment charging Defendant with first
degree murder and first degree kidnaping. On 4 May 2009, the
Orange County grand jury returned a bill of indictment charging
Defendant with conspiring to commit first degree murder and
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first degree kidnaping. On 6 February 2012, the Orange County
grand jury returned a superseding indictment in the first degree
kidnaping case. On 18 February 2009, the State filed a notice
that it intended to proceed non-capitally.
The charges against Defendant came on for trial before the
trial court and a jury at the 2 April 2012 criminal session of
the Orange County Superior Court. On 8 May 2012, the jury
returned verdicts convicting Defendant of first degree murder on
the basis of malice, premeditation, and deliberation and on the
basis of the felony murder rule, with first degree kidnaping
serving as the predicate felony; first degree kidnaping; and
conspiracy to commit first degree murder and first degree
kidnaping. On 8 May 2012, the trial court entered judgments
sentencing Defendant to a term of life imprisonment without the
possibility of parole based upon his conviction of first degree
murder, to a consecutive term of 116 to 149 months imprisonment
based upon his conviction of first degree kidnaping, and to a
consecutive term of 220 to 273 months imprisonment based upon
his conviction of conspiracy to commit first degree murder. The
trial court arrested judgment in the case in which Defendant was
convicted of conspiracy to commit first degree kidnaping.
Defendant noted an appeal to this Court from the trial court’s
judgments.
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II. Legal Analysis
A. Admission of “Other Crimes” Evidence
1. Greensboro Robbery
In his first challenge to the trial court’s judgments,
Defendant argues that the trial court erred by allowing the
admission of evidence concerning the Greensboro robbery.
According to Defendant, the trial court’s decision to allow the
admission of this evidence violated N.C. Gen. Stat. § 8C-1, Rule
404(b) and N.C. Gen. Stat. § 8C-1, Rule 403 and prejudiced his
chances for a more favorable outcome at trial. We do not find
Defendant’s argument persuasive.
After describing another robbery committed by members of
the group involved in the various activities underlying the
charges that had been lodged against Defendant, Jack Johnson
testified concerning the events that occurred at the time of the
Greensboro robbery. At that point, Defendant’s trial counsel
objected to the admission of this testimony, adequately
preserving his right to challenge the admission of this portion
of Jack Johnson’s testimony for purposes of appellate review.
See, e.g., State v. Ray, 364 N.C. 272, 277, 697 S.E.2d 319, 322
(2010) (alteration in original) (quoting State v. Thibodeaux,
352 N.C. 570, 581-82, 532 S.E.2d 797, 806 (2000), cert. denied,
531 U.S. 1155, 121 S. Ct. 1106, 148 L. Ed. 2d 976 (2001))
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(stating that, “to preserve for appellate review a trial court’s
decision to admit testimony, ‘objections to [that] testimony
must be contemporaneous with the time such testimony is offered
into evidence’ and not made only during a hearing out of the
jury’s presence prior to the actual introduction of the
testimony”). Subsequently, however, Mr. Bright also testified
concerning the events that took place at the time of the
Greensboro robbery without drawing any objection from Defendant.
“It is well established that the admission of evidence without
objection waives prior or subsequent objection to the admission
of evidence of a similar character.” State v. Campbell, 296
N.C. 394, 399, 250 S.E.2d 228, 231 (1979). As a result,
Defendant is not entitled to relief from the trial court’s
judgments based upon the admission of Jack Johnson’s testimony
concerning the events that occurred at the time of the
Greensboro robbery.
In an attempt to avoid the problem created by the fact that
he did not object to the admission of the “same or similar”
evidence at trial, Defendant argues that the trial court’s
decision to overrule his objection to the admission of Jack
Johnson’s testimony concerning the Greensboro robbery
constituted plain error. “In criminal cases, an issue that was
not preserved by objection noted at trial and that is not deemed
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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 also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875
(2007), cert. denied, 555 U.S. 835, 129 S. Ct. 59, 172 L. Ed. 2d
58 (2008). “For error to constitute plain error, a defendant
must demonstrate that a fundamental error occurred at trial,”
which means that the reviewing court, “after examination of the
entire record,” has to conclude that “the error ‘had a probable
impact on the jury’s finding that the defendant was guilty.’”
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)
(quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983)). As a result, given that “plain error” analysis
involves the use of a heightened prejudice standard and given
that the admission of the “same or similar” evidence precludes
an award of appellate relief based upon the admission of
allegedly inadmissible evidence, a determination that the “same
or similar” evidence was admitted during another portion of a
defendant’s trial precludes a determination that the admission
of the challenged testimony constituted “plain error.” See
State v. Taylor, 344 N.C. 31, 47, 473 S.E.2d 596, 605 (1996).
Thus, Defendant is not entitled to relief from the trial court’s
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judgments on the basis of the decision to admit into evidence
Jack Johnson’s testimony concerning the events that occurred at
the time of the Greensboro robbery.
2. Pittsboro Incident
Secondly, Defendant contends that the trial court erred by
denying his motion in limine seeking the exclusion of testimony
concerning the events that occurred at the time of the group’s
assault upon Matt Johnson in the garage owned by Ms. Krombach’s
uncle. In support of this assertion, Defendant contends that
the admission of this evidence violated N.C. Gen. Stat. § 8C-1,
Rule 404(b) on the grounds that the events described in the
challenged testimony were not sufficiently similar to the events
that occurred at the time of the kidnaping and murder of Mr.
Bailey. Defendant’s argument lacks merit.
Although Defendant filed a motion in limine in which he
asserted that evidence concerning the assault upon Matt Johnson
should not be admitted, the filing and litigation of such a
motion is not sufficient to properly preserve an issue for
appellate review. On the contrary, “‘[a] motion in limine is
not sufficient to preserve for appeal the question of
admissibility of evidence if the defendant does not object to
that evidence at the time it is offered at trial.’” State v.
Brown, 178 N.C. App. 189, 192, 631 S.E.2d 49, 51-52 (2006)
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(quoting State v. Grooms, 353 N.C. 50, 65, 540 S.E.2d 713, 723
(2000), cert. denied, 534 U.S. 838, 122 S. Ct. 93, 151 L. Ed. 2d
54 (2001)). After an oral motion in limine seeking the
exclusion of any evidence concerning the assault upon Matt
Johnson, Defendant failed to renew this objection when the
challenged evidence was presented before the jury through the
testimony of Jack Johnson. As a result, Defendant failed to
preserve his challenge to the admission of evidence concerning
the assault upon Matt Johnson for purposes of appellate review,
a fact which precludes us from granting Defendant any relief
from the trial court’s judgments stemming from the admission of
this evidence.2
B. Contents of P2P Report
2
Although Defendant alleged that the admission of evidence
concerning the Greensboro robbery constituted plain error, he
failed to advance a similar argument with respect to the
evidence concerning the assault upon Matt Johnson. As a result,
given that a party is only entitled to relief under the “plain
error” doctrine if he or she “specifically and distinctly
contended [the alleged error in question] to amount to plain
error,” N.C.R. App. P. 10(a)(4), we will not address the issue
of whether the admission of the testimony that is the subject of
this portion of our opinion constituted “plain error.” E.g.,
State v. Roache, 358 N.C. 243, 292, 595 S.E.2d 381, 413 (2004)
(quoting Grooms, 353 N.C. at 65-66, 540 S.E.2d at 723) (stating
that, since “a motion in limine is not sufficient to preserve
for appeal the question of admissibility of evidence if the
defendant does not object to that evidence at the time it is
offered at trial” and since the defendant “neither assigned nor
argued plain error as to the admission of [the] evidence,” the
issue in question was “not properly before the Court”).
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Thirdly, Defendant argues that the trial court erred by
admitting evidence contained in a police report that tended to
show that Defendant was in the vicinity at approximately the
same time that certain items were stolen from the Krombach
residence. According to Defendant, the evidence in question
constituted inadmissible hearsay and was admitted in violation
of his rights under the Confrontation Clause of the Sixth
Amendment to the United States Constitution. Once again, we are
not persuaded by Defendant’s argument.
On redirect examination, Investigator Horne testified that
a P2P report indicated that, at the time of a theft that took
place at the Krombach residence, a neighbor reported having seen
Defendant walking with four other men in the vicinity of the
neighbor’s home. At trial, Defendant argued that the evidence
in question constituted inadmissible hearsay, involved a
description of the contents of a report that had not been
admitted into evidence,3 and violated the confrontation-related
principles enunciated in the decision of the United States
3
As a result of the fact that the report in question was
admitted into evidence and the fact that Defendant has not
advanced this aspect of the argument that he made in the court
below on appeal, we need not address the extent to which the
admission of the challenged testimony allowed the presentation
of information contained in a document that had not been
admitted into evidence.
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Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004).
According to well-established state and federal law, even
errors of constitutional dimension are, in most instances,
subject to a harmless error analysis. State v. Thomas, 134 N.C.
App. 560, 570-71, 518 S.E.2d 222, 229-30, disc. review denied,
351 N.C. 119, 541 S.E.2d 468 (1999). A careful review of the
record presented for our consideration convinces us that, even
if the trial court erred by admitting evidence that Defendant
was in the vicinity of the Krombach residence at the time of the
theft in question, any such error would have been harmless
beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b).
In seeking to persuade us that the admission of the
challenged evidence constituted prejudicial error, Defendant
argues that this evidence amounted to an attack upon his
character. Although the report made reference to a statement by
a neighbor to the effect that Defendant was in the area at the
time of the theft in question, nothing in the report suggested
that Defendant was suspected of having been involved in the
theft itself. Instead, the record developed at Defendant’s
trial consistently indicated that Mr. Bailey and Matt Johnson
were responsible for stealing the firearms that were taken from
the Krombach residence and that Defendant had actually aided in
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the recovery of the firearms. As a result, in light of the
incidental nature of the reference to Defendant in the report in
question, the fact that the remainder of the record tends to
show that Defendant was not involved in the theft in question,
and the overwhelming evidence of Defendant’s guilt, we conclude
that any error that the trial court might have committed by
allowing the admission of testimony to the effect that Defendant
had been seen in the vicinity of the Krombach residence at the
time that certain items were stolen from that location was
harmless beyond a reasonable doubt.
C. Opinion Testimony
Finally, Defendant contends that the trial court erred by
allowing the admission of testimony by Jack Johnson and Ms.
Lipson to the effect that they were afraid of Defendant and that
Defendant and his family had a reputation for engaging in
violent conduct. According to Defendant, the evidence in
question constituted impermissible hearsay and improperly
attacked Defendant’s character.4 We do not believe that
Defendant’s argument has any merit.
4
Although Defendant’s brief contains an initial reference to
his belief that the challenged statements constituted
inadmissible hearsay, he has failed to make any hearsay-related
argument in his brief directed to the testimony at issue in this
section of our opinion. As a result of that fact, we will
refrain from commenting any further upon this issue.
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On direct examination, Jack Johnson was asked to explain
why he had initially lied to investigating officers about his
role in the murder and kidnaping of Mr. Bailey and testified
that he had lied to protect himself and other people given
Defendant’s statements that, since his family was connected with
the “Hell’s Angels,” he could always “get his hands on guns.”
Similarly, Ms. Lipson testified that she had failed to notify
investigating officers after learning of Mr. Bailey’s murder
because of her fear of Defendant and his family in light of
Defendant’s assertions that he would harm Ms. Lipson’s unborn
child and that his father, who had connections with the “Hell’s
Angels,” would not let him “go down” for any crimes.
In seeking to establish that the trial court erred by
allowing the admission of testimony by Jack Johnson and Ms.
Lipson to the effect that they were afraid of him, Defendant
relies on two cases decided by this Court. In State v. Ward, 93
N.C. App. 682, 683, 379 S.E.2d 251, 252-53, disc. review denied,
325 N.C. 276, 384 S.E.2d 528 (1989), a witness asserted that she
remained afraid of the defendant at the time of trial after
testifying that he had threatened to kill her and sell her
child. On appeal, this Court held that the admission of the
challenged testimony was erroneous on the grounds that this
evidence had “no apparent relevance to this case other than to
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imply the defendant was a violent person.” 93 N.C. App. at 685,
379 S.E.2d at 253. Similarly, in State v. Bell, 87 N.C. App.
626, 636, 362 S.E.2d 288, 294 (1987) we held that the trial
court erred by allowing a witness to testify that she was still
afraid of the defendant “on the day she testified” on the
grounds that “the only apparent relevance of [the] evidence was
to imply that [the] defendant was a violent person.” Neither of
these cases supports the position that Defendant has asserted in
this case, however.
Unlike the situations at issue in Ward and Bell, neither
Ms. Lipson nor Jack Johnson testified that they were currently
scared of Defendant. In addition, their testimony was relevant
for a purpose other than portraying Defendant as a violent
person. For example, Jack Johnson had initially lied to
investigating officers about his involvement in the kidnaping
and murder of Mr. Bailey. For that reason, testimony concerning
his fear of Defendant was relevant to the issue of why the jury
should credit his testimony despite his initial prevarication.
Similarly, the challenged portion of Ms. Lipson’s testimony was
admissible to explain why she had failed to come forward and
provide the information in her possession concerning the
kidnaping and murder of Mr. Bailey at an earlier time. State v.
Bynum, 111 N.C. App. 845, 849, 433 S.E.2d 778, 781 (holding that
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the trial court did not err by admitting evidence that a child
was afraid of her father on the grounds that the challenged
evidence was “probative on the issue of her hesitancy in telling
her mother of the alleged abuse”), disc. review denied, 335 N.C.
239, 439 S.E.2d 153 (1993); State v. Barnes, 77 N.C. App. 212,
216, 334 S.E.2d 456, 458 (1985) (holding that the trial court
did not err by admitting evidence that a child’s father was
“mean” on the grounds that the challenged evidence was
admissible “to explain why [the child] had not told her mother
about” the sexual abuse that she had suffered at her father’s
hands), disc. review denied, 315 N.C. 392, 338 S.E.2d 881(1986). As a result, we do not believe that the trial court
erred by allowing Jack Johnson and Ms. Lipson to testify
concerning their fear of Defendant and the reasons that led them
to be afraid of him.
In addition, we question whether Defendant has properly
preserved this issue for appellate review or whether the
admission of the challenged portions of the testimony of Jack
Johnson and Ms. Lipson impermissibly prejudiced Defendant’s
chances for a more favorable outcome at trial. A number of
other witnesses also testified that they were scared of
Defendant. For example, Mr. Lee testified, without objection,
that he had not provided information to investigating officers
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out of fear of what the members of the group involved in the
murder and kidnaping of Mr. Bailey, a collection of individuals
which included Defendant, might do to him. Similarly, Mr.
Bright described the connections between Defendant and the
“Hell’s Angels.” Finally, Chris Manley, who helped Defendant at
the time of the second burial of Mr. Bailey’s body, testified
that he participated in this activity because he was scared. As
we have already noted, “the admission of evidence without
objection waives prior or subsequent objection to the admission
of evidence of a similar character.” Campbell, 296 N.C. at 399,
250 S.E.2d at 231. Moreover, even if the admission of the “same
or similar” evidence does not operate to preclude any
consideration of the merits of Defendant’s challenge to the
admission of the challenged portions of the testimony of Jack
Johnson and Ms. Lipson, its presence in the record coupled with
the overwhelming evidence of Defendant’s guilt satisfies us that
there is no reasonable possibility that the outcome at
Defendant’s trial would have been different in the event that
the trial court had sustained Defendant’s objection to the
testimony at issue in this section of our opinion. Thus,
Defendant is not entitled to any relief from the trial court’s
judgments based upon the admission of testimony by Jack Johnson
and Ms. Lipson concerning their fear of Defendant.
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III. Conclusion
Thus, for the reasons set forth above, we conclude that
none of Defendant’s challenges to the trial court’s judgments
have merit. As a result, the trial court’s judgments should,
and hereby do, remain undisturbed.
NO ERROR.
Judges ROBERT N. HUNTER, JR. and DAVIS concur.
Report per Rule 30(e).