State v. Denton , 265 N.C. App. 632 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-742
Filed: 4 June 2019
Madison County, No. 15CRS000352
STATE OF NORTH CAROLINA
v.
TIMOTHY CALVIN DENTON, Defendant.
Appeal by defendant from judgment entered on or about 22 September 2017
by Judge Mark E. Powell in Superior Court, Madison County. Heard in the Court of
Appeals 13 March 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E.
Hathcock, for the State.
Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant.
STROUD, Judge.
Defendant appeals his conviction for felony death by vehicle. The trial court
erred by admitting lay opinion testimony identifying defendant as the driver of the
vehicle at the time of an accident in which an occupant of the car was killed where
the expert accident reconstruction analyst was unable to form an expert opinion
based upon the same information available to the lay witness. We therefore reverse
defendant’s conviction and grant defendant a new trial.
I. Background
STATE V. DENTON
Opinion of the Court
On 1 August 2014, defendant and Danielle Mitchell were both in a car when it
ran off the road and wrecked; both were ejected from the car and Ms. Mitchell died at
the scene from her injuries. Defendant was indicted for felony death by vehicle. The
primary factual issue at trial was whether defendant was driving at the time of the
accident.
The State’s evidence showed that on the morning of 1 August 2014, defendant
and Ms. Mitchell decided to go to Asheville to find some “[w]hite lightning” liquor in
a “[k]ind of an old and red, burgundy looking” car that “might’ve been a Dodge” that
defendant drove. Defendant and Ms. Mitchell spent time together often during the
year preceding the wreck, either at her home or the home of Ms. Mitchell’s father,
Mr. Daniel Seay, where they would “hang out, talk . . . drink, smoke, watch football
games, baseball games.” Ms. Mitchell and her father lived about a quarter of a mile
from each other, and defendant’s understanding was that Ms. Mitchell did not have
her own car.
On 1 August 2014, defendant and Ms. Mitchell left before lunch and defendant
was driving as they left Mr. Seay’s house, and Mr. Seay testified that he had “never
seen nobody else ever drive [defendant’s] car.” Mr. Seay recalled that “[defendant]
wouldn’t let nobody behind the wheel of that car[,]” and “[t]here was a few times that
he, he had to move to let somebody out, and he would always move the car. Nobody
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STATE V. DENTON
Opinion of the Court
touched his car.” Mr. Seay testified that his daughter, Ms. Mitchell, had ridden in the
car before but she always sat in the front passenger seat.
Shortly before 10:00 p.m. that evening, defendant and Ms. Mitchell called Mr.
Seay from a gas station and told him that the car was overheating. Defendant told
Mr. Seay, “She’s flipping out,” and reassured Mr. Seay they were all right and would
“be there in a few minutes.” Shortly thereafter, Mr. Seay heard sirens close to the
house. Around 10:10 p.m., Trooper Jason Fox of the North Carolina State Highway
Patrol received a dispatch call regarding a vehicle crash at US 25-70 near the Brush
Creek area. After arriving at 10:22 p.m., Trooper Fox spoke with EMS who advised
that two occupants had been ejected from the vehicle. One of the occupants, later
identified as Ms. Mitchell, was already deceased. Defendant suffered from a severe
head injury in the accident and had no memory of what happened on the day of the
accident.
Defendant was also seriously injured, and EMS called for a helicopter to
transport him to the hospital. EMS stabilized defendant’s neck in a “C” collar and
placed him on a backboard. While EMS was working with defendant, he was
screaming, hyperventilating, and combative; he was ultimately sedated for flight.
Since the crash resulted in a fatality, Trooper Fox notified his supervisor.
Trooper Fox also found a witness to the wreck, Mr. David Martin. Mr. Martin
reported that he was traveling on the highway toward Hot Springs when an “orange-
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STATE V. DENTON
Opinion of the Court
ish, reddish” car came up behind him “extremely fast” such that Mr. Martin “did not
see it coming before it was basically on top of [him].” Mr. Martin estimated that the
car was traveling twice as fast as he was. The car passed Mr. Martin on the left side
in a no-passing zone, “started . . . a left turn and . . . ran off the right side of the road,
and when it did, dust and rocks and stuff started flying.” At that point, Mr. Martin
saw “just headlights and taillights. Looked like [the car] was rolling, flipping.” Mr.
Martin stopped immediately to help and call 911. Mr. Martin saw a woman,
apparently deceased, and a man further up the road, moving a little but incoherent.
Troopers Sorrells and Carver, along with First Sergeant Bray, went to the
scene to assist Trooper Fox with his investigation and completion of the field sketch.
Trooper Fox took photographs of the scene. The vehicle involved in the crash, a red
or burgundy 2001 Dodge Neon registered to defendant’s mother, was off the left
shoulder of the roadway facing towards Hot Springs. Trooper Fox found a sealed beer
bottle by Ms. Mitchell’s body, a Miller Highlife can and an empty Corona box in the
debris path, and Corona beer bottle caps inside the vehicle and near Ms. Mitchell’s
body. Trooper Fox believed the crash involved alcohol use because of “the bottle caps
located in the vehicle, the still-closed beer bottle that was located in the debris path .
. . there was a strong odor of alcohol coming from the vehicle itself.” Based upon a
blood test from the hospital, Defendant’s blood alcohol level was .182, and
benzodiazepine and cannabinoid were present in his urine.
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STATE V. DENTON
Opinion of the Court
Trooper Fox determined that the Neon had been traveling north at a high rate
of speed in a forty-five mile per hour zone, lost control and ran off the right shoulder
of the roadway, struck a road sign, proceeded into a ditch and struck a rock which
caused it to overturn and roll four or five times, traveled across the highway and back
off the other side, and came to rest on all four wheels after striking a small block
building. Neither defendant nor Ms. Mitchell had been wearing a seatbelt prior to
being ejected, as each seatbelt was in a locked position near the respective door
frames. The airbags did not deploy. Long strands of “brown[] or dark colored” hair
were trapped in the passenger side of the vehicle and in windshield glass. Ms.
Mitchell’s hair was dark brown.
Trooper Fox measured the distance from the front edge of the driver’s seat to
the acceletor pedal as 1 foot 9 inches; from the back of the driver’s seat to the pedal
as 3 feet 6 inches; and from the top edge of the driver’s seat to the center of the
steering wheel as 2 feet 8 inches. Defendant is 5’11” tall according to the DMV
database, and Ms. Mitchell was measured at approximately 5’2” by the medical
examiner. Over defendant’s objection, Trooper Fox testified he believed defendant
was driving at the time of the crash because “the seating position was pushed back
to a position where I did not feel that Ms. Mitchell would be able to operate that
vehicle or reach the pedals.”
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STATE V. DENTON
Opinion of the Court
But Trooper Fox acknowledged that he was not an expert in accident
reconstruction, although one was called to the investigation. Trooper Daniel Souther
of the North Carolina Highway Patrol was the accident reconstruction expert who
analyzed the accident. He could not reach a conclusive expert opinion about who was
driving at the time of the accident, although he had three different theories of how
the accident happened, one of which he deemed the most plausible in which defendant
was the driver.
Trooper Souther testified “the only way it makes sense to me is that Theory 1”
in which defendant was the driver of the vehicle, but Trooper Souther clarified “I’m
not saying 100 percent this is right, but this makes the most sense to me[,]” and
ultimately he testified that he could not “conclusively state [defendant] was operating
th[e] vehicle.” Later Trooper Souther was asked, “And so you are telling us that as
an expert in the field of accident reconstruction you do not have an opinion
satisfactory to yourself within any reasonable degree of certainty as to who was
driving this car on August 1st, 2014?” to which he responded, “Not [that] I can prove.”
Ultimately, defendant was found guilty by a jury, sentenced accordingly, and now
appeals.
II. Opinion Testimony
Defendant’s only argument on appeal is that “the trial court erred by
overruling defendant’s objections to testimony from State Trooper Jason Fox, who
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STATE V. DENTON
Opinion of the Court
admittedly was not an expert, that it was his opinion that defendant . . . was driving
the car at the time of the collision.” (Original in all caps.) “[W]hether a lay witness
may testify as to an opinion is reviewed for abuse of discretion.” State v. Washington,
141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000). The trial court abused its
discretion in allowing Trooper Fox to testify, over defendant’s objections, to his
opinion as to who was driving the vehicle. See, e.g., Shaw v. Sylvester, 253 N.C. 176,
179–80, 116 S.E.2d 351, 354–55 (1960).
North Carolina Rule of Evidence 701 provides that
[i]f the witness is not testifying as an expert, his testimony
in the form of opinions or inferences is limited to those
opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a
fact in issue.
N.C. Gen. Stat. § 8C-1, Rule 701 (2017).
Opinion evidence is generally inadmissible
whenever the witness can relate the facts so that the jury
will have an adequate understanding of them and the jury
is as well qualified as the witness to draw inferences and
conclusions from the facts. If either of these conditions is
absent, the evidence is admissible.
Although a lay witness is usually restricted to facts
within his knowledge, if by reason of opportunities for
observation he is in a position to judge of the facts more
accurately than those who have not had such
opportunities, his testimony will not be excluded on the
ground that it is a mere expression of opinion.
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STATE V. DENTON
Opinion of the Court
State v. Lindley, 286 N.C. 255, 257–58, 210 S.E.2d 207, 209 (1974) (citations and
quotaiton marks omitted).
Accident reconstruction analysis requires expert opinion testimony; we can
find no instance of lay accident reconstruction analysis testimony in North Carolina.
See State v. Maready, 205 N.C. App. 1, 17, 695 S.E.2d 771, 782 (2010) (“Accident
reconstruction opinion testimony may only be admitted by experts, who have proven
to the trial court’s satisfaction that they have a superior ability to form conclusions
based upon the evidence gathered from the scene of the accident than does the jury.”).
Accident reconstruction by its very nature requires expert analysis of the information
collected from the scene of the accident and falls under Rule of Evidence 702,
Subsection (a)(1) of Rule 702 calls for a quantitative
rather than qualitative analysis. That is, the requirement
that expert opinions be supported by sufficient facts or data
means that the expert considered sufficient data to employ
the methodology.
Consequently, as a general rule, questions relating
to the bases and sources of an expert’s opinion affect only
the weight to be assigned that opinion rather than its
admissibility. In other words, this Court does not examine
whether the facts obtained by the witness are themselves
reliable-whether the facts used are qualitatively reliable is
a question of the weight to be given the opinion by the
factfinder, not the admissibility of the opinion.
Additionally, experts may rely on data and other
information supplied by third parties even if the data were
prepared for litigation by an interested party. Unless the
expert’s opinion is too speculative, it should not be rejected
as unreliable merely because the expert relied on the
reports of others. An expert may rely on deposition
statements made by other witnesses in developing the
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STATE V. DENTON
Opinion of the Court
factual basis of his opinion.
Pope v. Bridge Broom, Inc., 240 N.C. App. 365, 374, 770 S.E.2d 702, 710 (2015)
(citations, quotation marks, ellipses, and brackets omitted).
Trooper Fox was not a witness to the accident; he assisted in collecting the
measurements and information regarding the scene used by the accident
reconstruction expert, Trooper Souther, to try to determine who was driving the car.
Although he had three theories of who was driving the vehicle, Trooper Souther
admitted he did not have the necessary information to come to an expert opinion to a
sufficient degree of certainty and he could not identify the driver of the car. Trooper
Fox was basing his lay opinion upon the very same information used by Trooper
Souther, but without the benefit of expert analysis.
This case is similar to Shaw in that the facts about the accident and
measurements available were simply not sufficient to support an expert opinion —
as Trooper Souther testified — and lay opinion testimony on this issue is not
admissible under Rule 701. See Shaw v. Sylvester, 253 N.C. 176, 179–80, 116 S.E.2d
351, 354–55 (1960). As explained in Shaw,
The known facts in this case leave too many
unknowns and imponderables to permit anyone to say with
any degree of certainty who was the driver. This case
furnishes a good illustration why courts look with disfavor
upon attempts to reconstruct traffic accidents by means of
expert testimony, owing to the impossibility of establishing
with certainty the many factors that must be taken into
consideration.
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STATE V. DENTON
Opinion of the Court
As a general rule, a witness must confine his
evidence to the facts. . . . The jury is just as well qualified
as the witnesses to determine what inferences the facts will
permit or require.
The qualified expert, the nonobserver, may give an
opinion in answer to a proper hypothetical question in
matters involving science, art, skill and the like. The
plaintiff contends Sgt. Etherage placed himself in this
expert category by having investigated more than 400
wrecks. There is no evidence that wrecks follow any set or
fixed pattern. An automobile, like any other moving object,
follows the laws of physics; but which door came open first
during the movement would depend upon the amount and
direction of the physical forces applied, and the place of
their application. There was no evidence the witness ever
investigated an accident when both doors were open and
both occupants thrown out. In this case neither the
nonobserver nor the jury could tell who was the driver.
The ruling of the trial court that Sgt. Etherage was
not qualified to testify that Becker was thrown through the
left door and, therefore, was the driver is in accordance
with our decisions. The evidence at the trial was
insufficient to raise a jury question.
Id. at 179–80, 116 S.E.2d at 354–55 (citations and quotation marks omitted); see also
Maready, 205 N.C. App. at 17, 695 S.E.2d at 782 (“We hold that the admission of the
officers’ opinion testimony concerning their purported accident reconstruction
conclusions was error. Accident reconstruction opinion testimony may only be
admitted by experts, who have proven to the trial court’s satisfaction that they have
a superior ability to form conclusions based upon the evidence gathered from the
scene of the accident than does the jury.”); State v. Wells, 52 N.C. App. 311, 314, 278
S.E.2d 527, 529 (1981) (“Our State Supreme Court has held in several cases that
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STATE V. DENTON
Opinion of the Court
while it is competent for an investigating officer to testify as to the condition and
position of the vehicles and other physical facts observed by him at the scene of an
accident, his testimony as to his conclusions from those facts is incompetent. A case
almost directly on point is Cheek v. Barnwell Warehouse and Brokerage Co., 209 N.C.
569, 183 S.E. 729 (1936). In that case the Supreme Court upheld the trial court’s
exclusion of opinion testimony by a nonexpert witness as to where a collision occurred
based upon his examination of the scene sometime after the accident on the ground
that its admission would invade the province of the jury. In the present case, the
most crucial question for the jury on the manslaughter charge was whether defendant
caused the collision which resulted in decedent’s death by crossing the center line into
decedent’s lane of travel. By testifying that his investigation revealed the point of
impact between the two cars to be in decedent’s lane of travel, Trooper Parks stated
an opinion or conclusion which invaded the province of the jury.” (citations omitted)).
The State’s brief addresses the general law on opinion testimony and cites to
only State v. Ray, 149 N.C. App. 137, 560 S.E.2d 211 (2002), aff’d per curiam, 356
N.C. 665, 576 S.E.2d 327 (2003), and an unpublished case to support its argument on
appeal. An unpublished opinion “does not constitute controlling legal authority[,]”
and we need not address it because other cases do address the issues presented here.
N.C.R. App. P. 30(e)(3). Ray does not support the State’s argument, since there was
expert testimony to the same opinion as presented by the lay witness, and the court
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STATE V. DENTON
Opinion of the Court
assumed that “[e]ven if inclusion of [the lay opinion testimony] was erroneous” it was
harmless based upon the expert testimony. 149 N.C. App. at 145, 560 S.E.2d at 217.
In Ray, defendant argued
the trial court erred in overruling his objection to Detective
Hendricks’ opinion testimony that the lacerations on
Harrington’s hand were not consistent with a traffic
accident, because Detective Hendricks was not qualified as
a medical expert under Rule 702 of the North Carolina
Rules of Evidence. The State, however, did not tender
Detective Hendricks as an expert witness. Detective
Hendricks offered a lay witness opinion based on his
personal observations at the scene and his investigative
training background as a police officer. See N.C. Gen. Stat.
§ 8C-1, Rule 701 (1999) (lay witness may testify as to those
opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a
fact in issue). Even if inclusion of Detective Hendricks’
opinion testimony was erroneous, it would be harmless
error in light of Dr. Butts’ expert testimony that the
lacerations on Harrington's hand were consistent with
defensive wounds and could have been caused by the utility
knife. Thus, the trial court properly overruled defendant's
objection to Detective Hendricks’ testimony.
Id.
The circumstances of this case are basically the opposite of Ray because in Ray
the expert opinion confirmed the testimony of the lay witness, rendering any
potential error harmless; here, the expert was unable to form an opinion. See id. For
the same reason, we cannot agree with the State’s contention that Trooper Fox’s
testimony was harmless. Trooper Souther was the expert in accident reconstruction
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STATE V. DENTON
Opinion of the Court
and while he believed that his theory which placed defendant as the driver made the
“most sense[,]” he admitted this case was very challenging and he simply did not
have sufficient information regarding the many variables involved to come to a
conclusive determination.
Trooper Fox was in no better position than the jury to consider the evidence
the State directs us to indicating defendant was the driver, including witness
testimony that the car was owned by defendant’s mother and only defendant drove
that vehicle, the location of Ms. Mitchell’s hair in the glass, and the position of the
driver’s seat. See Wells, 52 N.C. App. at 314, 278 S.E.2d at 529. The State’s expert
accident reconstruction analyst could not testify to a reasonable degree of certainty
as to an opinion of who was driving. The only issue in serious contention at trial was
who was driving the car; if Ms. Mitchell was driving, defendant could not be guilty.
If defendant was driving, the evidence regarding speeding, reckless driving, alcohol
consumption, defendant’s high blood alcohol level, and evidence of other impairing
substances in his blood at the time of the accident would essentially guarantee a
guilty verdict. In this context, Trooper Fox’s opinion testimony was not harmless.
Therefore, defendant must receive a new trial. We also note that the State filed a
motion for appropriate relief or alternatively a petition for a writ of certiorari asking
us to review defendant’s sentence, but because we are granting defendant a new trial,
we need not address this issue.
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STATE V. DENTON
Opinion of the Court
III. Conclusion
We conclude defendant must receive a new trial.
NEW TRIAL.
Judges INMAN and ZACHARY concur.
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