An unpublished opinion of the North Carolina Court of Appeals does not constitute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