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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 1 May 2007
STATE OF NORTH CAROLINA
Nos. 99 CRS 003304 - 003305
TIMOTHY JOSHUAR CAMPBELL,
Appeal by defendant from judgments entered 24 February 2006 by
Judge Robert F. Floyd, Jr., in Robeson County Superior Court.
Heard in the Court of Appeals 11 April 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Francis W. Crawley, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by Joseph B.
Cheshire V and John Keating Wiles, for defendant-appellant.
Timothy Joshuar Campbell (defendant) appeals from judgments
entered after a jury found him to be guilty of first-degree murder
and robbery with a firearm. We find no error.
A. State's Evidence
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
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
B. Defendant's Evidence
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
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
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
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.
Defendant argues the trial court: (1) erred by denying his
motion to dismiss the first-degree murder charge under the felony
murder rule at the close of all evidence; (2) erred by denying his
motion in limine to prohibit the testimony of Marsha; and (3)
abused its discretion by permitting the prosecutor to impeach by
exploring the circumstances of his prior convictions.
III. Motion to Dismiss
Defendant moved to dismiss the charges against him for
insufficient evidence at the close of the State's case-in-chief and
at the close of all the evidence. The trial court denied both
motions. Defendant contends the State's evidence failed to prove
either he or those acting in concert with him, Charles and Richard,
shot and killed McRae. Defendant asserts the evidence shows
Walker, who the State stipulates was not acting in concert with
defendant, shot and killed McRae.
A. Standard of Review
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
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
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
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
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
IV. Motion in Limine
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
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.
V. Impeachment by Prior Convictions
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
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.
Viewed in the light most favorable to the State, substantial
evidence showed defendant or those with whom he acted in concert,
Charles and Richard, shot and killed McRae. The State's evidence
showed a reasonable 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.
Marsha's testimony was relevant and not inadmissible victim
impact evidence. The trial court properly denied defendant's
motion in limine
to exclude her testimony.
The trial court did not abuse its discretion when it permitted
the State to cross-examine defendant on the timing of his priorconvictions. Defendant received a fair trial, free from
prejudicial errors he preserved, assigned, and argued.
Judges HUNTER and JACKSON concur.
Report per Rule 30(e).
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