State v. Smart

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1231
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
STATE OF NORTH CAROLINA
v. Burke County
No. 12 CRS 20
DANIEL RAYMOND SMART
Appeal by defendant from judgment entered 22 February 2013
by Judge Eric L. Levinson in Burke County Superior Court. Heard
in the Court of Appeals 26 May 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Steven Armstrong, for the State.
Charlotte Gail Blake for defendant-appellant.
HUNTER, Robert C., Judge.
Defendant Daniel Raymond Smart appeals from a judgment
entered based upon jury verdicts finding him guilty of four
counts of discharging a weapon into occupied property. The
trial court arrested judgment with respect to three of the
convictions, and sentenced defendant to a term of 65 to 90
months imprisonment based on the remaining conviction.
Defendant gave notice of appeal in open court.
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Defendant argues the trial court erred in admitting into
evidence, for illustrative purposes only, a 7.62x39 rifle
cartridge. Defendant contends the cartridge was not relevant to
the issues before the jury because no bullets were recovered
from inside or around the residence into which shots were fired
and because the cartridge had no connection to the type of
weapon used in the shooting. Defendant further contends there
was nothing to link the cartridge to the size of any hole found
in the residence. Defendant’s arguments are misplaced.
“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 (citation and
quotation marks omitted), appeal dismissed and disc. review
denied, 351 N.C. 644, 543 S.E.2d 877 (2000); see also N.C. Gen.
Stat. § 8C-1, Rule 401 (2013) (“‘Relevant 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.”). “All relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, by
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the Constitution of North Carolina, by Act of Congress, by Act
of the General Assembly or by these rules. Evidence which is
not relevant is not admissible.” N.C. Gen. Stat. § 8C-1, Rule
402 (2013). In reviewing the trial court’s evidentiary rulings
relating to a question of relevancy, this Court has held:
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
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)
(citation and quotation marks omitted).
The evidence at trial established that on the evening of 27
December 2011, defendant fired both a shotgun and a 7-millimeter
sawed-off rifle from the porch of his home toward the victim’s
residence. Whether the defendant shot first with the shotgun or
with the rifle was contested at trial. However, the evidence
that he fired a 7-millimeter rifle was uncontroverted.
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Prior to introducing the 7.62x39 cartridge, the State
introduced without objection several photographs of the holes
made in the victim’s residence at the time of the shooting. The
photographs and a drawing made by the investigating officer
depicting the placement of the holes showed that a single bullet
appeared to have been fired through the victim’s residence from
the direction of defendant’s home. Additionally, in some of the
photos shown to the jury, the investigating officer had placed a
pen into or next to the holes to show the direction the bullet
took and to provide scale for the size of the hole.
We hold the 7.62x39 rifle cartridge was relevant for the
purpose of showing to the jury the diameter of a bullet fired by
a 7-millimeter rifle and the size of the hole it would have
created in the victim’s residence. Accordingly, we hold the
trial court did not err in allowing the cartridge to be admitted
into evidence for illustrative purposes.
NO ERROR.
Judges STEPHENS and ERVIN concur.
Report per Rule 30(e).