Converted WP file 061074-1

    In February 1999, Marshall McRae (“McRae”) resided with his wife, Charlene, and three children, Deanna McRae (“Deanna”), Marsha McRae (“Marsha”), and Marshall Lee McRae, Jr. (“Lee”), on Daniel McLeod Road in Red Springs, North Carolina. McRae worked full-time for BellSouth. McRae also bred and sold dogs with his brother-in-law, Larry Bethea (“Bethea”) and Raymond Wall (“Wall”).     On 9 February 1999, Wall testified he and McRae drove to Fort Lauderdale, Florida to deliver a dog to its owner. They stayed overnight in Florida and returned to North Carolina on 10 February 1999. On 11 February 1999, McRae telephoned Wall and informed him some of their dogs had been stolen.
    Gerald Leroy Cobb (“Cobb”) resided near McRae on McLeod Road. Cobb testified that on 11 February 1999 he saw McRae standing in his yard and walked over to talk with him. While Cobb spoke with McRae, Charles Campbell (“Charles”), defendant's uncle, and two other men arrived at McRae's residence. Defendant also arrived in another vehicle and informed McRae, “he needed his money.” Cobb heard Charles tell McRae that he: (1) needed his $48,000.00; (2) would give him three days to get it; and (3) would kill for the money.
    Henry McRae, Jr. (“Henry”), no relation to McRae, also resided near McRae on McLeod Road. Henry testified that on 12 February 1999, Cobb was present at his residence. At approximately noon, Charles visited Henry's residence. Charles entered Henry's residence and spoke briefly with Henry and Cobb. Charles informed them he would be right back and exited Henry's residence.
    Later in the afternoon, Charles returned to Henry's residence with Gaylon Leak (“Leak”), defendant, James Walker (“Walker”), and Richard Campbell (“Richard”). While Leak and Walker remained outside, defendant and his two uncles, Charles and Richard, entered Henry's house, all carrying handguns. Each pointed their handguns at Cobb. Charles also carried a hand grenade and threatened to putit in Cobb's mouth. Charles and defendant asked Cobb about money and cocaine and defendant referring to money stated, “someone got to give up my paper today.”
    Prior to leaving Henry's residence: (1) Charles forced Cobb to remove all his clothes; (2) Richard took Cobb's clothes and his money outside; (3) defendant fired a shot into Henry's telephone, after Henry indicated he would call the police; and (4) defendant took a gold necklace worth $200.00 from around Cobb's neck.
    After defendant, Charles, and Richard exited Henry's residence, Cobb observed defendant driving away in a black Yukon sport utility vehicle and Leak driving away in a gray automobile. Henry started to cross the street to use a telephone when he heard gunshots fired further down McLeod Road where McRae lived.
    On 12 February 1999, McRae's sixteen-year-old daughter, Deanna, and five-year-old son, Lee, were home when McRae arrived from work. McRae backed his Jeep automobile into his driveway. The front of the Jeep faced the road. McRae and Lee fed the dogs. At approximately 4:30 p.m. Bethea, the dogs' other owner, arrived at McRae's house. McRae and Bethea talked for ten minutes. Deanna sat in the driver's seat of the Jeep automobile waiting to drive McRae and Lee to pick up her sister, Marsha, at basketball practice at 5:00 p.m. Deanna noticed a black Yukon sport utility vehicle pass by McRae's house as she waited in the Jeep. Bethea left McRae's house in his automobile.
    Deanna testified as she, McRae, and Lee prepared to leave, the black Yukon vehicle came “really fast in our driveway.” At thispoint, McRae was walking towards the driver's side of the Jeep, Deanna was seated in the driver's seat, and Lee was standing beside the passenger side of the Jeep. As the black Yukon vehicle entered the driveway, defendant stood on the rail of the vehicle pointing a gun and “yelling don't nobody move, don't nobody f'ing move.” Defendant yelled at McRae, “where's my papers.” McRae responded that he did not know what defendant was talking about.
    Three other men exited the Yukon vehicle and also pointed their guns at McRae. McRae requested a couple of times to allow the children, Deanna and Lee, to go into the house. Defendant pointed his gun at McRae's head and followed McRae as he walked toward Lee and placed him inside the Jeep automobile on Deanna's lap. As McRae placed Lee on Deanna's lap, defendant and Richard placed their hands on McRae's arms and started pulling and pushing him toward the Yukon vehicle. Walker was beside the Yukon and pushed McRae. Another automobile arrived and a man exited that vehicle with a gun.
    Charles, while holding a gun in one hand and a grenade in the other, entered the Jeep automobile with Deanna and Lee and held the grenade to Deanna's face. Charles said he was going to kill the children. McRae spun and ran in the opposite direction in front of the Yukon vehicle and toward the house. Charles exited McRae's Jeep and ran after McRae, pointing and firing his gun. Richard ran along side Charles also pointing and shooting his gun. Defendant was running behind Charles. Deanna testified she saw defendant fire his gun. Five or six shots were fired. Walker testified hedid not have a gun and did not shoot McRae. McRae was shot in the chest and fell near a tree in the yard. When law enforcement officers arrived, a .380 caliber handgun was found three feet away from McRae's body.
    On 13 February 1999, an autopsy was performed by Dr. Richard Johnson (“Dr. Johnson”). Dr. Johnson observed a single gunshot wound to McRae's right upper chest. The bullet perforated the large artery coming from the heart and caused McRae to bleed to death.

    Defendant testified and presented evidence in his defense. In February 1999, defendant resided in Parkton, North Carolina. Defendant lived on disability benefits and on money he received from selling drugs near a barbershop in the Green Acres Community.
    In September 1998, defendant was introduced to McRae by Roosevelt McNair at a barbershop. Defendant purchased over one ounce of cocaine from McRae for approximately $1,000.00. Between September 1998 and February 1999, defendant made four or five cocaine purchases from McRae, each valued between $7,000.00 to $12,000.00.
    On 8 February 1999, defendant attempted to purchase cocaine from McRae. Defendant took $48,000.00 to McRae at his home expecting to obtain a large quantity of cocaine, but was told he would receive the drugs on 10 February 1999.
    On 10 February 1999, defendant telephoned McRae and was told to come by McRae's house. Defendant drove to McRae's house atapproximately 5:30 p.m. McRae informed defendant the “guy,” whose name McRae did not know and to whom he had given defendant's money, “got busted” by the police. Defendant did not believe McRae and without asking for the money he left. Defendant informed his uncle, Charles, about these events.
    On 11 February 1999, Charles, Leak, and Howard Ray drove to McRae's house. After receiving a telephone call from Charles, defendant drove to McRae's house. McRae called and Charles spoke with someone on the telephone about getting “busted.” Charles did not believe what either McRae or the man on the telephone told him. McRae told defendant the man had been “busted” on the way to get the drugs and the police had confiscated the money. The man on the telephone stated he had been “busted” on the way back from buying the drugs and the police had confiscated the drugs. McRae told the men to return to his home on 12 February 1999 after work hours and he would have the drugs. Defendant walked over to Charles and said, “[L]et's go. I said [it] looked like . . . Cobb had a gun. That's what I whispered to Charles. None of us have any guns or anything.”
    During the afternoon hours of 12 February 1999, Charles went to Henry's house and bought a half-ounce of cocaine. Charles observed an additional nine ounces of cocaine at Henry's house. Henry stated the cocaine had been provided by McRae. Charles informed defendant about the cocaine he had seen at Henry's house. Defendant replied, “[W]ell, that's mine, help me get it back.”    Defendant decided to drive to Henry's house and obtain the cocaine. Charles, Richard, and Walker each carried a gun. Defendant had provided Charles and Richard with guns earlier in the week. Defendant drove his black Yukon vehicle to Henry's house with Richard and Walker. Leak drove another automobile to Henry's house with Charles as a passenger.
    Upon arriving at Henry's house, Charles and Richard entered through the front door and defendant entered through the back door. Henry and Cobb were present in the house. Defendant, Richard, and Charles all began yelling at Cobb. Defendant asked, “[M]an, where's my sh**, where's my dope, where's my money.” Cobb repeatedly responded he did not know what defendant was talking about. Richard and Charles forced Cobb to remove his clothing. Defendant “snatched” a pendant off Cobb's neck. Defendant also fired a gunshot through Henry's telephone to prevent Henry or Cobb from calling the police. Charles and Richard also fired their guns. Defendant testified he never saw Charles with a hand grenade. Defendant, Charles, Richard, Leak, and Walker drove the short distance to McRae's house.
    Defendant drove his Yukon vehicle into McRae's driveway and stopped. Defendant saw McRae standing beside the Jeep automobile and Deanna sitting behind the steering wheel of a truck nearby. Defendant exited his vehicle with his gun in his hand and “accosted” McRae. Defendant instructed McRae to get into defendant's vehicle. Defendant stated, “[G]et in my truck, let's go back to [Henry's] house and let's straighten this sh** out.” McRae responded, “all right, [defendant], all right.” Defendant testified that at this point Walker was standing outside defendant's vehicle. Walker held McRae's arm as he escorted McRae to a rear door of the defendant's vehicle. Defendant testified:
        [McRae] tore away from [Walker] when he got by me, he tore away from [Walker] like this and spun. I seen him spin, and when he was spinning, his right hand went down like in his coveralls, and as he was spinning, he come around to face [Walker]. . . . When [McRae] come to spin around to face [Walker], [Walker] yelled he got a gun, and he shot. Pow.”

Defendant stated McRae was shot “in the chest somewhere.” McRae began running away and Walker fired two more gunshots. Richard also fired shots and Charles fired his gun once into the ground. Defendant and Charles testified Charles never entered the Jeep automobile or any other automobile with Deanna or Lee. Charles also denied having possessed a hand grenade. Defendant, Charles, Richard, Walker, and Leak returned to their vehicles and left McRae's house.
    On 10 May 1999, defendant was indicted for first-degree murder and robbery with a dangerous weapon. On 24 February 2006, defendant was convicted of first-degree murder based upon the felony murder rule. The predicate felonies were the first-degree kidnapping of McRae and the second-degree kidnappings of Deanna and Lee. The jury found defendant not guilty of premeditated and deliberate murder. The jury also found defendant guilty of robbery with a dangerous weapon. Defendant was sentenced to life without parole for the murder and a consecutive sentence of 103 to 133 months for the robbery. Defendant appeals.

    This Court has stated:
        The standard of review for a motion to dismiss in a criminal trial is:

        Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.

        Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion. If substantial evidence, whether direct, circumstantial, or both,supports a finding that the offense charged has been committed and that the defendant committed it, the motion to dismiss should be denied and the case goes to the jury. But, if the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed.

        In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence. The trial court must also resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness's credibility. It is concerned only with the sufficiency of the evidence to carry the case to the jury. Ultimately, the court must decide whether a reasonable inference of defendant's guilt may be drawn from the circumstances.

State v. Ellis, 168 N.C. App. 651, 656-57, 608 S.E.2d 803, 807 (2005) (emphasis supplied) (internal citations and quotations omitted). “Defendant's evidence which clarifies the state's evidence or rebuts inferences favorable to the state may be considered favorably to defendant if it does not contradict and is not inconsistent with the state's evidence.” State v. Stokes, 319 N.C. 1, 18, 352 S.E.2d 653, 662 (1987) (emphasis supplied) (citing State v. Bates, 309 N.C. 528, 308 S.E.2d 528 (1983); State v. Bruton, 264 N.C. 488, 142 S.E.2d 169 (1965)).

    “First-degree murder by reason of felony murder is committed when a victim is killed during the perpetration or attempted perpetration of certain enumerated felonies or a felony committedor attempted with the use of a deadly weapon.” State v. Gibbs, 335 N.C. 1, 51, 436 S.E.2d 321, 350 (1993) (citation omitted), cert. denied, 512 U.S. 1246, 129 L. Ed. 2d 881 (1994). The enumerated felonies are set forth in N.C. Gen. Stat. § 14-17 (2005) as, “any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon.”
    The State had to present evidence tending to show defendant, Richard, and Charles acted in concert to kidnap McRae, Deanna, or Lee and either defendant, Richard, or Charles shot and killed McRae. Defendant concedes the State's evidence tended to show defendant, Richard, and Charles acted in concert to commit the alleged kidnappings.
    Defendant argues the State's evidence was inconclusive regarding who shot McRae because the State's evidence showed the bullet that killed McRae came from a revolver and defendant, Charles, and Richard each carried automatic or semiautomatic handguns. Defendant asserts his evidence that Walker was carrying a revolver when he shot McRae clarifies the evidence offered by the State. Defendant argues the evidence taken in the light most favorable to the State shows Walker, who was not acting in concert with defendant, shot and killed McRae. We disagree.
    The State presented “substantial evidence” that during the kidnappings defendant, Charles, or Richard while acting in concert, shot and killed McRae. Ellis, 168 N.C. App. at 656, 608 S.E.2d at 807. Deanna testified: (1) three men exited defendant's Yukonvehicle and pointed their guns at her father, McRae; (2) defendant pointed his gun at McRae's head and followed him as McRae walked toward Lee and placed him inside the Jeep on Deanna's lap; (3) defendant and Richard placed their hands on McRae's arms and started pulling and pushing him toward defendant's Yukon vehicle; (4) Charles entered McRae's Jeep with her and Lee, while holding a gun in one hand and a grenade in the other; (5) Charles held the grenade to Deanna's face; (6) after Charles stated he was going to kill the children, McRae spun and ran in the opposite direction, in front of the Yukon vehicle and toward his house; (7) Charles exited the Jeep and ran after McRae, while pointing and firing his gun; (8) Richard ran along side Charles, while pointing and firing his gun toward McRae; and (9) defendant ran behind Charles and also fired his gun. Walker testified he: (1) never at any time possessed a gun; (2) witnessed Charles and Richard shoot at McRae; and (3) witnessed defendant “with [a] gun in his hand . . . pointing it” at McRae.
    Defendant's evidence that Walker was carrying a revolver when he shot McRae does not clarify the evidence offered by the State. This evidence contradicts Walker's testimony for the State at trial and should not have been considered by the trial court in ruling on his motion to dismiss. Ellis, 168 N.C. App. at 656-57, 608 S.E.2d at 807; Stokes, 319 N.C. at 18, 352 S.E.2d at 662.
    Viewed in the light most favorable to the State, substantial evidence shows defendant or those he acted in concert with, Charles and Richard, shot and killed McRae. The State's evidence showed “areasonable inference of defendant's guilt [that] may be drawn from the circumstances.” Ellis, 168 N.C. App. at 657, 608 S.E.2d at 807. The trial court properly denied defendant's motion to dismiss at the close of all of the evidence. This assignment of error is overruled.

    Defendant argues the trial court erred by denying his motion in limine to exclude the testimony of Marsha, one of McRae's daughters. Defendant asserted Marsha's testimony: (1) was irrelevant; (2) showed no personal knowledge of the events for which he was prosecuted; and (3) was inadmissible victim impact evidence. We disagree.
    Our Supreme Court has stated:
        Generally, all relevant evidence is admissible. Relevant evidence is evidence that has 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. In a criminal case, every circumstance calculated to throw any light upon the supposed crime is admissible and permissible.

State v. Augustine, 359 N.C. 709, 721, 616 S.E.2d 515, 525 (2005) (internal citations and quotations omitted), cert. denied, ___ U.S. ___, 165 L. Ed. 2d 988 (2006). “[A] trial court's rulings on relevancy . . . are not discretionary and therefore are not reviewed under the abuse of discretion standard[.]” State v. Wallace, 104 N.C. App. 498, 502, 410 S.E.2d 226, 228 (1991), disc. rev. denied, 331 N.C. 290, 416 S.E.2d 398 (1992). However, “such rulings are given great deference on appeal.” Id.    Marsha testified: (1) on 12 February 1999, she was in seventh grade and played basketball; (2) basketball practice ran from 3:30 p.m. until 5:00 p.m.; (3) her father, McRae, would normally pick her up from basketball practice at 5:00 p.m.; (4) she would normally arrive home with McRae between 5:10 p.m. and 5:15 p.m.; and (5) one day during the week of 8 February 1999, her sister Deanna drove to pick her up from practice while McRae sat in the passenger seat. Marsha's testimony was relevant because it showed: (1) McRae's custom or pattern of daily activity after work in February 1999; (2) why McRae was standing outside his home, with Deanna and Lee nearby, at the time defendant arrived on 12 February 1999; and (3) McRae was not waiting for defendant to come by to conduct a drug deal.
    Also, defendant failed to object when similar evidence was later presented of McRae's custom or pattern of daily activity after work in February 1999. Deanna also testified to events that were similar to Marsha's testimony about McRae picking Marsha up after basketball practice at 5:00 p.m. “Where evidence is admitted without objection, the benefit of a prior objection to the same or similar evidence is lost, and the defendant is deemed to have waived his right to assign as error the prior admission of the evidence.” State v. Wilson, 313 N.C. 516, 532, 330 S.E.2d 450, 461 (1985) (internal citations omitted).
    Defendant also argues Marsha's testimony was inadmissible victim impact evidence. “[V]ictim-impact evidence is generally inadmissible during the guilt/innocence phase of a trial.” Statev. Davis, 177 N.C. App. 98, 104, 627 S.E.2d 474, 478 (2006) (citing State v. Maske, 358 N.C. 40, 50, 591 S.E.2d 521, 528 (2004)). Victim impact evidence includes, “A description of the nature and extent of any physical, psychological, or emotional injury suffered by the victim as a result of the offense committed by the defendant.” N.C. Gen. Stat. § 15A-833(a)(1) (2005). Marsha's testimony concerned McRae's after work routine or custom at the time of his murder. She did not testify to the impact of McRae's murder had on her or her family.
    Marsha's testimony was relevant and was not inadmissible victim impact evidence. The trial court did not err by denying defendant's motion in limine to exclude Marsha's testimony. This assignment of error is overruled.

    Defendant argues the trial court erred by allowing the State to cross-examine and impeach him by exploring the circumstances surrounding his prior convictions. We disagree.
    On cross-examination, the State attempted to impeach defendant and inquired about his conviction for “possession with intent to sell and deliver cocaine and some gun charges” in 2001. The following exchange occurred:
        The State: Now, those [offenses] were all actually committed while you were on bail in this case, weren't they?

        Defendant: Yes, sir.

        The State: So, in other words, you continued even after being arrested and charged with this offense with your drug trafficking?
        Defense Counsel: Objection.

        The Court: Basis?

        Defense Counsel: He is using impeachment with a prior conviction to sift another case.

        The Court: Overruled. You may answer.

        Defendant: Could you repeat the question, sir?

        The State: At the time you were on bail in this case, you continued with your drug trafficking?

        Defendant: Yes, sir.

    Our Supreme Court stated:
        When a defendant chooses to testify, evidence of prior convictions is admissible for the purpose of impeaching his credibility under Rule 609(a). . . . The permissible scope of inquiry into prior convictions for impeachment purposes is restricted, however, to the name of the crime, the time and place of the conviction, and the punishment imposed.

State v. Lynch, 334 N.C. 402, 408-09, 432 S.E.2d 349, 352 (1993) (internal citations omitted).
    This Court has stated:
        Whether cross-examination is unfair is generally a matter in the sole discretion of the trial judge, and his ruling thereon will not be disturbed absent a showing of gross abuse of discretion. The trial judge sees and hears the witnesses, knows the background of the case, and is in a favorable position to control the proper bounds of cross-examination. Since it is in the discretion of the trial judge to determine the limit of legitimate cross-examination, his rulings thereon are not prejudicial error absent a showing that the verdict was improperly influenced by the ruling.
State v. Little, 163 N.C. App. 235, 242, 593 S.E.2d 113, 117 (2004) (internal quotations and citations omitted), disc. rev. denied, 358 N.C. 736, 602 S.E.2d 366.
    Here, the transcript shows defendant was not cross-examined about the underlying facts and circumstances of his conviction for “possession with intent to sell and deliver cocaine and some gun charges” in 2001. Defendant was arrested and charged with murder on 16 February 1999. The State questioned defendant about the timing of his prior conviction, a permissible inquiry. Lynch, 334 N.C. at 408-09, 432 S.E.2d at 352.
    The trial court did not abuse its discretion when it allowed the State to cross-examine defendant on the timing of his prior conviction. This assignment of error is overruled.