State v. Minton

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

-26-

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).