An unpublished opinion of the North Carolina Court of Appeals does not constitute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
                                       -2-
      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.
                                         -3-
    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.
                                          -4-
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.
                                               -5-
          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
                                               -6-
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
                                    -7-
            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
                               -8-
    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).
