State v. Parker ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1381
NORTH CAROLINA COURT OF APPEALS
Filed: 29 July 2014
STATE OF NORTH CAROLINA
v. Durham County
No. 11 CRS 51676
RAYMOND PARKER
Appeal by defendant from judgment entered 18 May 2012 by
Judge Donald W. Stephens in Durham County Superior Court. Heard
in the Court of Appeals 7 April 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jay L. Osborne, for the State.
Farber Law Firm, P.L.L.C., by Sarah Jessica Farber, for
defendant-appellant.
CALABRIA, Judge.
Raymond Parker (“defendant”) appeals from a judgment
entered upon a jury verdict finding him guilty of two counts of
robbery with a dangerous weapon (“RWDW”) and one count of
conspiracy to commit RWDW. We find no error.
I. Background
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Shortly before 9:00 p.m. on 1 March 2011, two men wearing
dark masks entered the Dollar General Store located at 2000
Chapel Hill Road, in Durham, North Carolina (“the Dollar
General” or “the store”). One of the men was wearing a
turquoise and blue jacket with a Reebok emblem on the back. At
that time, employees Raquel Harris (“Harris”) and William Adams
(“Adams”) and customer Shelton Henderson (“Henderson”) were the
only other individuals in the store.
One of the men held a silver revolver to Henderson’s head
and demanded that Henderson give him all of his money. Henderson
complied. The men then forced Harris and Adams to empty the
store’s cash registers and safe before exiting the store on
foot.
At the time of the robbery, Curtis Little (“Little”) was
sitting at a bus stop near the Dollar General. Little, who knew
defendant, recognized defendant’s red Cadillac (“the Cadillac”)
drive in front of the bus stop a few minutes before 9:00 p.m.
and park near the Dollar General. Several minutes later, Little
observed two men run from the front of the store, enter the
Cadillac, and drive away. Little reported his observations to
law enforcement officers and informed them where defendant
lived.
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Later that evening, several officers from the Durham Police
Department (“DPD”) went to defendant’s apartment where they
observed a burgundy Cadillac parked outside. A man later
identified as Alonzo Greene (“Greene”) was sitting in the
passenger seat of the Cadillac and a dark mask was on the ground
beside the passenger door. Greene was taken into custody.
The officers encountered defendant as he was exiting his
apartment. Although defendant denied owning the Cadillac, he
had a GM key in his possession which started the vehicle. In
addition, defendant’s wallet was discovered inside the
Cadillac’s console and dark gloves were found between the
console and the seat.
DPD officers then obtained and executed a search warrant on
defendant’s apartment. In the bedroom, officers seized a
turquoise and blue jacket with a Reebok emblem, a large amount
of cash found between two mattresses, and plastic rolls of coins
found under a pillow. A search of the kitchen revealed a bundle
of items hidden under the refrigerator. The bundle included two
off-white sleeves, a black toboggan cap and a black sleeve, both
with hand-cut eye holes, a silver .38 caliber revolver, and a
camouflage sleeve also containing two hand-cut eye holes.
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Subsequent DNA testing determined that defendant’s DNA was found
on the camouflage sleeve.
Defendant was arrested and indicted for two counts of RWDW
and one count of conspiracy to commit RWDW. The first count of
RWDW in the indictment listed the victims’ names as “Raquel
Harris” and “William Davis.” Prior to trial, the State moved to
amend the indictment to change the name from William “Davis” to
William Adams, the victim’s actual name. Defendant objected to
the amendment and the trial court denied the State’s motion to
amend. However, the court noted that the indictment was not
defective as to the issue of whether Raquel Harris, the other
victim, was robbed. Based on the trial court’s ruling, neither
the name William Davis nor the name William Adams appeared on
the jury verdict sheet.
Defendant also made a pretrial motion to exclude the
camouflage sleeve which DPD officers found in defendant’s
apartment on the grounds that this evidence was unduly
prejudicial and irrelevant. The trial court determined that the
camouflage sleeve was relevant for the purpose of showing that
defendant may have exercised dominion and control over the other
items officers found bundled together under defendant’s
refrigerator and denied defendant’s motion.
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Beginning 14 May 2012, defendant was tried by a jury in
Durham County Superior Court. At the close of the State’s
evidence and at the close of all the evidence, defense counsel
made a motion to dismiss for insufficient evidence. Both
motions were denied. On 18 May 2012, the jury returned verdicts
finding defendant guilty of all charges. The trial court
sentenced defendant to a minimum of 90 months to a maximum of
117 months for the two RWDW offenses and a minimum of 38 months
to a maximum of 55 months for the conspiracy offense. The
sentences were to be served consecutively in the North Carolina
Division of Adult Correction. Defendant appeals.
II. Fatal Variance
Defendant argues that the trial court erred in denying his
motion to dismiss for insufficient evidence because there was a
fatal variance between the indictment and the evidence produced.
We disagree.
A “‘defendant may raise the question of variance between
the indictment and the proof by a motion’ to dismiss, but
defendant must also state this at trial as the grounds for the
motion to dismiss.” State v. Curry, 203 N.C. App. 375, 384, 692
S.E.2d 129, 137 (2010) (citation omitted). In the instant case,
defendant made motions to dismiss the charges against him on the
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basis of insufficient evidence. Specifically, defendant argued
that the State presented insufficient evidence that he was the
perpetrator of the alleged offenses. However, defendant never
argued that the charges should have been dismissed on the basis
of a fatal variance. Accordingly, he has waived appellate review
of this issue. See id. at 385, 692 S.E.2d at 138. This
argument is overruled.
III. Admission of Camouflage Sleeve
Defendant argues that the trial court erred by denying his
motion to exclude the camouflage sleeve. Specifically,
defendant contends that there was no legitimate purpose for
admitting this evidence. We disagree.
“The admissibility of evidence is governed by a threshold
inquiry into its relevance. In order to be relevant, the
evidence must have a logical tendency to prove any fact that is
of consequence in the case being litigated.” State v. Griffin,
136 N.C. App. 531, 550, 525 S.E.2d 793, 806 (2000) (internal
quotations and citation omitted).
Although the trial court’s rulings on
relevancy technically are not discretionary
and therefore are not reviewed under the
abuse of discretion standard applicable to
Rule 403, such rulings are given great
deference on appeal. Because the trial court
is better situated to evaluate whether a
particular piece of evidence tends to make
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the existence of a fact of consequence more
or less probable, the appropriate standard
of review for a trial court’s ruling on
relevancy pursuant to Rule 401 is not as
deferential as the “abuse of discretion”
standard which applies to rulings made
pursuant to Rule 403.
Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004)
(internal quotations and citation omitted).
In the instant case, defendant argues that the camouflage
sleeve was irrelevant because there was no evidence to prove
that it was used during the robbery. However, the camouflage
sleeve, which contained defendant’s DNA, was found under
defendant’s refrigerator bundled together with, inter alia, a
black mask and a silver revolver. Eyewitnesses had described
both a black mask and a silver revolver as items which were used
in the commission of the robbery. In light of these facts, the
camouflage sleeve was relevant because it provided some evidence
of a connection between defendant and all of the items under the
refrigerator, such that the sleeve could be used to establish
that defendant exercised dominion and control over items
matching the description of items used in the commission of the
robbery. Consequently, the trial court properly admitted this
evidence. This argument is overruled.
IV. Conclusion
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Defendant failed to preserve the issue of a fatal variance
between the indictment and proof at trial. The trial court did
not err by determining that the camouflage sleeve was relevant.
Defendant received a fair trial, free from error.
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).