STATE OF NORTH CAROLINA

v .                         Guilford County
                            No. 02 CRS 79461
MICHAEL RAY ALLEN

    Appeal by defendant from judgment entered 29 April 2004 by Judge Henry E. Frye Jr. in Superior Court, Guilford County. Heard in the Court of Appeals 18 October 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for the State.

    Richard E. Jester for defendant-appellant.

    McGEE, Judge.

    Michael Ray Allen (defendant) was convicted of first-degree murder on 29 April 2004. The trial court sentenced defendant to life in prison without parole.
    Jerome Green (Green) testified at trial that he had known defendant since they were children. Green said that he and defendant were selling drugs from the carport of Green's house at 2319 Willow Road in Greensboro, North Carolina early in the morning of 23 March 2002. Green testified that defendant had a .357 caliber pistol, which he showed to Green.
    Green said that David Bartley (Bartley) pulled up to Green's house in a truck and asked for twenty dollars worth of crack cocaine. Green testified that he approached Bartley's truck andhanded Bartley the crack cocaine. Green said that defendant walked up to Bartley's truck and stood next to Green. Bartley then tried to bite off a piece of the crack cocaine to see if it was real and Green reached his hand into the truck in an attempt to retrieve the crack cocaine. Green said that Bartley began "revving up the motor" of the truck as if he were about to drive away and defendant shot Bartley with defendant's .357 caliber pistol.
    Green testified that Bartley's truck rolled down the street, hit a fire hydrant, and then struck the side of a house. Green said that he and defendant rode their bicycles to a utility shed in the back yard of a house belonging to their friend, Avery. Green testified that he and defendant remained in the utility shed until 8:00 a.m. or 9:00 a.m. on 23 March 2002, when Anthony Hill (Hill) came by the utility shed.
    Green testified that defendant then left the utility shed and went to a liquor house, where defendant told everybody present that he had not killed anyone. Green said defendant returned to the utility shed, where defendant, Hill and Green remained until the next day, when police came and took defendant away.
    Hill testified that he had known defendant for many years. Hill said he was also selling drugs in the same neighborhood where defendant and Green were selling drugs in the early morning hours of 23 March 2002. Hill testified he saw Bartley's truck pull up to Green's house on Willow Road at about 3:30 a.m. or 4:00 a.m. Hill testified he saw defendant and Green walk up to Bartley's truck. Hill said he heard a gunshot and the sound of squealing trucktires, and then saw defendant and Green ride by on their bicycles. Hill testified that he went to the utility shed several hours later. Hill said that he asked defendant whether he had killed Bartley and that defendant said he had not.
    Monique Croom (Croom) testified that she had known defendant about a year at the time of Bartley's death. She further testified as follows:
        Q. Did you ever see --- Before this murder      took place, did you see . . . defendant with a gun?

        A. Yes.

        Q. When?
            [DEFENSE ATTORNEY]: Objection.

            THE COURT: Note your exception for the record. Ladies and gentlemen, this evidence is not being offered as evidence of . . . defendant's character, but only for purposes, if you so find, for the identification of the weapon used in this case.

            [DEFENSE ATTORNEY]: Your Honor, I'd ask for a line objection too.

            THE COURT: All right, note your line objection.
        Q. Tell the jury when you saw . . . defendant with a gun?

        A. No less than a week before, no more than a month before.

        Q. Before what?

        A. Before this happened.

        Q. The murder?

        A. Right.
        Q. Continue. Tell the jury how you came to see the gun. What happened?

        A. [Defendant] woke up one morning, we were at one of my girlfriend's apartments. He woke up. Some money was missing; so, he thought I took it. Smacked me twice and pulled the gun on me. Told me don't f--- with his money. So, I got scared; I ran and locked myself in the bathroom and then the money came back up. He told me --- So, I saw the gun.

        Q. How did [defendant] point the gun at you?

        A. He just (indicating).

        Q. Did you know - did [defendant] tell you what type of gun it was?

        A. Yes.

        Q. What did [defendant] say?

        A. Thirty-eight.

        Q. And it was a pistol?

        A. Yes.

    Linelle Lloyd (Lloyd) testified she had been friends with defendant for a year or two at the time of Bartley's death. Lloyd testified that she was on Willow Road in the early morning hours of 23 March 2002. She heard a gunshot and then saw defendant and Green ride by on their bicycles.
    Lloyd further testified regarding a statement defendant made to her later that morning. Defendant objected to Lloyd's testimony on the ground that the State had failed to timely disclose defendant's statement. The trial court overruled defendant's objection, and Lloyd testified as follows:
        Q. Ms. Lloyd, if you take us back to the date this murder occurred on March 23rd, 2002, later that morning did you call. . . defendant?

        A. Yes, I did.

        Q. On his cell phone?

        A. Yes.

        Q. Tell the jury what you said and what [defendant] said.

        A. I was calling [defendant] because I wanted some more dope, and I told him that everybody was looking for him. [Defendant] said, "Ain't nobody going to f--- with me now," and hung up on me.

    After the trial court noted defendant's line objection, Lloyd

also testified as follows:

        Q. Did you ever talk to [defendant] again      . . . ?

        A. Yeah. Monday night. Last Monday night.

        Q. Yesterday night?

        A. No. Last Monday.

        Q. A week ago yesterday?

        A. Uh-huh.

        Q. Tell the jury about that.

        A. [Defendant] asked me what I was doing. I said I was laying in bed. [Defendant] asked me did I want him to come and lay in the bed with me forever. I was like, what does, you know. [Defendant] said [he would] let [me] think about that.

        Q. Then what happened?

        A. Got off the phone.

        Q. What did you take that as?

        A. A threat.

        Q. Why?
        A. Because I know [defendant].

        Q. What did you do after you got that call?

        A. Shut down.

        Q. How did you shut down?

        A. I didn't go to work. I didn't let anybody know where I was. Don't too many people know where I live at anyway. You know, not anybody from the neighborhood. I don't live out in the neighborhood no more. I just shut myself up in the house. Didn't call anybody or let anybody know where I was.

        Q. Are you scared of [defendant]?

        A. Yes.

        Q. Do you want to be here today?

        A. No.

    William Phoenix, a crime scene investigator with the Greensboro police department, testified that he investigated the crime scene. He testified that a .357 caliber pistol and a .38 caliber pistol look similar to one another. The State and defendant stipulated that the bullet removed from Bartley had been fired from either a .357 caliber pistol or a .38 caliber pistol.
    During defendant's cross-examination, the State inquired into defendant's 1994 conviction for possession with intent to sell or deliver cocaine. The State also asked about defendant's imprisonment for a parole violation and defendant's release from prison shortly before Bartley's death. During this line of questioning, defendant objected to one question as having already been asked and answered, and the trial court sustained the objection.

    Defendant first argues the trial court erred in allowing, over defendant's objection, Croom's testimony regarding a gun she had seen in defendant's possession prior to the shooting. Defendant argues this testimony was irrelevant. Pursuant to North Carolina Rule of Evidence 401, "'[r]elevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2003). "'[I]n a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible.'" State v. Bruton, 344 N.C. 381, 386, 474 S.E.2d 336, 340 (1996) (quoting State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994)). The determination of the weight of such evidence is a matter properly left to the jury. State v. Smith, 357 N.C. 604, 614, 588 S.E.2d 453, 460 (2003), cert. denied, 542 U.S. 941, 159 L. Ed. 2d 819 (2004). Although a trial court's rulings on relevancy are not discretionary and we do not review them for an abuse of discretion, we give them great deference on appeal. State v. Streckfuss, ___ N.C. App. ___, ___, 614 S.E.2d 323, 328 (2005).
    In the present case, Croom testified she saw defendant with a gun not "less than a week before, [and] no more than a month before" Bartley's death. Croom testified defendant told her the gun was a .38 caliber pistol. The trial court gave the jury a limiting instruction, stating that Croom's testimony "[was] notbeing offered as evidence of . . . defendant's character, but only for [the] purpose[] [of] . . . the identification of the weapon used in [the murder]." The parties stipulated that the bullet removed from Bartley's chest had been fired from either a .357 caliber pistol or a .38 caliber pistol. Therefore, a .38 caliber pistol could have been the murder weapon. Because Croom's testimony tended to show that the gun defendant had shown to her was a .38 caliber pistol, Croom's testimony had some tendency to identify the murder weapon. Accordingly, the trial court did not err in admitting Croom's testimony.
    Defendant also argues Croom's testimony was unduly prejudicial, pursuant to N.C. Gen. Stat. § 8C-1, Rule 403. Relevant evidence is generally admissible in criminal cases. N.C. Gen. Stat. § 8C-1, Rule 402 (2003). However, relevant evidence may be excluded pursuant to Rule 403 "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." N.C. Gen. Stat. § 8C-1, Rule 403 (2003). A trial court has discretion whether or not to exclude evidence under Rule 403, and a trial court's determination will only be disturbed upon a showing of an abuse of that discretion. State v. Campbell, 359 N.C. 644, 674, 617 S.E.2d 1, 20 (2005).
    In the present case, the trial court gave the jury a limiting instruction that Croom's testimony should only be considered for the purpose of identification of the gun used to kill Bartley. There is a presumption that a jury has followed the trial court's instructions. State v. Watts, 357 N.C. 366, 375, 584 S.E.2d 740, 747 (2003), cert. denied, 541 U.S. 944, 158 L. Ed. 2d 370 (2004). In the present case, police never recovered the murder weapon. As a result, testimony concerning identification of the murder weapon was highly probative. Accordingly, the trial court did not abuse its discretion in determining that the probative value of Croom's testimony was not substantially outweighed by the danger of unfair prejudice pursuant to Rule 403. Because Croom's challenged testimony was relevant, and not unduly prejudicial, we overrule defendant's assignment of error.

    Defendant next argues the trial court erred by allowing Lloyd to testify concerning defendant's statement to her on the day of the shooting. Defendant argues this evidence was irrelevant. Specifically, Lloyd testified that after the shooting, defendant said "[a]in't nobody going to f--- with me now." However, in order to preserve an issue on appeal, "a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the [trial] court to make if the specific grounds were not apparent from the context." N.C.R. App. P. 10(b)(1). In the present case, defendant objected to the admission of the statement on the ground that the State did not give defendant timely notice of its intent to use defendant's statement at trial. Defendant did not challenge the relevance of the statement and therefore did not preserve the issuefor appellate review. We therefore do not address the issue and overrule defendant's assignment of error.

    Defendant also argues the trial court erred in allowing Lloyd to testify as to statements defendant made to Lloyd a week before trial in that defendant's statements were not relevant. Lloyd testified as follows: "[Defendant] asked me what I was doing. I said I was laying in bed. [Defendant] asked me did I want him to come and lay in the bed with me forever. . . . [Defendant] said [he would] let [me] think about that." "'[A]n attempt by a defendant to intimidate a witness in an effort to prevent the witness from testifying or to induce the witness to testify falsely in his favor is relevant to show the defendant's awareness of his guilt.'" State v. Mason, 337 N.C. 165, 171, 446 S.E.2d 58, 61 (1994) (quoting State v. Hicks, 333 N.C. 467, 485, 428 S.E.2d 167, 177 (1993), abrogated in part on other grounds by State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001)).
    Defendant argues that his statements were not threats and were therefore irrelevant. However, Lloyd also testified that because she knew defendant, she interpreted defendant's statements as a threat. She further testified that she was afraid of defendant after defendant made the statements to her and that she did not want to testify against defendant. Therefore, Lloyd's testimony tended to show that defendant intimidated Lloyd, and as a result, Lloyd's testimony had some tendency to show that defendant was aware of his guilt.
    Defendant next argues "the trial court erred in allowing, over . . . defendant's objection, the inquiry of the [State] into the criminal record of . . . defendant beyond what is permitted by North Carolina Rule[] of Evidence 609." However, even though defendant argues the trial court allowed the State's inquiry over objection, the record shows that defendant did not object on the ground that the inquiry exceeded the scope of Rule 609. Defendant only objected to the form of one of the State's questions. Accordingly, defendant did not preserve this issue for appellate review and we therefore do not address it. N.C.R. App. P. 10(b)(1). We overrule defendant's assignment of error.

    Finally, defendant argues "the trial court erred in not dismissing the indictment in that it fails to state the elements of the offense of first-degree murder." Essentially, defendant challenges the constitutionality of the short-form murder indictment under which defendant was charged. Defendant argues the indictment was insufficient because it failed to allege premeditation, deliberation, specific intent to kill, or that the offense was committed during the perpetration of a felony.
    However, defendant acknowledges that our Supreme Court has upheld the constitutionality of the short-form murder indictment. Indeed, in State v. Braxton, 352 N.C. 158, 173, 531 S.E.2d 428, 437 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001), the defendant argued the indictment under which he was charged wasunconstitutional in that it failed to allege "premeditation, deliberation, and specific intent to kill." Our Supreme Court upheld the constitutionality of the short-form murder indictment and concluded that "premeditation and deliberation need not be separately alleged in the short-form indictment." Id. at 174-75, 531 S.E.2d at 437-38. Therefore, we overrule this assignment of error.
    No error.
    Judges WYNN and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***