State v. Norton ( 2011 )

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

James Arthur Norton, Appellant.

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Appeal From Chesterfield County
John M. Milling, Circuit Court Judge

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Unpublished Opinion No. 2011-UP-586
Heard December 7, 2011 – Filed December 21, 2011   

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AFFIRMED

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Assistant Appellate Defender Breen Stevens, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Deborah R. J. Shupe, all of Columbia; and Solicitor William B. Rogers, Jr., of Bennettsville, for Respondent.

PER CURIAM:  James Arthur Norton was convicted of criminal domestic violence of a high and aggravated nature (CDVHAN) and assault and battery of a high and aggravated nature (ABHAN).  He received concurrent ten-year sentences, suspended upon the service of five years' imprisonment and five years' probation.  Norton appeals, arguing the trial court erred in permitting Captain Thomas to testify to medical observations and conclusions beyond the scope of his expertise.  We affirm.

1. Error in Admitting Testimony

We find the trial court erred in admitting Captain Thomas's testimony that TPI[1] appeared in the photographs without first requiring him to be qualified as an expert witness or to establish his firsthand knowledge of the facts upon which his opinion was based.  Lay witnesses are permitted to offer testimony in the form of opinions or inferences if the opinions or inferences are rationally based on the witness's perception, will aid the jury in understanding testimony, and do not require special knowledge. Rule 701, SCRE.  Our supreme court has confirmed that "a lay witness may only testify as to matters within his personal knowledge and may not offer opinion testimony which requires special knowledge, skill, experience, or training."  Watson v. Ford Motor Co., 389 S.C. 434, 446, 699 S.E.2d 169, 175 (2010) (emphasis added).  Testimony from an expert witness instead of a lay witness "is required where a factual issue must be resolved with scientific, technical, or any other specialized knowledge.  Expert testimony differs from lay testimony in that an expert witness is permitted to state an opinion based on facts not within his firsthand knowledge."  Id. at 445-46, 699 S.E.2d at 175.  Here, Captain Thomas's testimony indicates he applied specialized knowledge he gained from his training and experience to photographs of Victim.  The content and dates of the photographic exhibits indicate the pictures were taken on either four or five different occasions during the week following the incident.  Aside from testimony that Captain Thomas interviewed Victim the day after the incident and accompanied her to her home to view the initial crime scene, no evidence suggested Captain Thomas viewed Victim's injuries during that week.  When he viewed the photographs at trial, Captain Thomas concluded his testimony on direct examination by stating, "And in these photographs there is evidence of [TPI]."  We find the development and appearance of TPI, as described by Captain Thomas, required special medical knowledge.  To render this opinion, Captain Thomas applied special knowledge of TPI to photographs of Victim in varying conditions that he did not personally observe.  This testimony from a lay witness is inadmissible under Rule 701.  Accordingly, the trial court erred in admitting it. 

2. Harmless Error

Nonetheless, any error in admitting this testimony was harmless.  "[O]ur appellate courts have consistently held that a trial court should only be reversed when an error is prejudicial and not harmless."  State v. White, 371 S.C. 439, 447, 639 S.E.2d 160, 164 (Ct. App. 2006).  "The determination of prejudice must be based on the entire record[,] and the result will generally turn on the facts of each case."  State v. Sweat, 362 S.C. 117, 128-29, 606 S.E.2d 508, 514 (Ct. App. 2004) (internal citation and quotation marks omitted).  An error is harmless if it could not have reasonably affected the result of the trial.  State v. Key, 256 S.C. 90, 93-94, 180 S.E.2d 888, 889-90 (1971).  However, the admission of a lay witness's opinion testimony concerning the ultimate issue in a case is not harmless.  State v. Ellis, 345 S.C. 175, 178, 547 S.E.2d 490, 491 (2001).  Here, the jury convicted Norton of CDVHAN and ABHAN.  To secure these convictions, the State had to prove Norton assaulted and seriously injured Victim.  See S.C. Code Ann. § 16-25-65 (Supp. 2010) (indicating CDVHAN consists of either "(1) an assault and battery which involves the use of a deadly weapon or results in serious bodily injury to the victim; or (2) an assault, with or without an accompanying battery, which would reasonably cause a person to fear imminent serious bodily injury or death"); State v. Geiger, 370 S.C. 600, 605-06, 635 S.E.2d 669, 672 (Ct. App. 2006) (stating ABHAN is "an unlawful act of violent injury accompanied by circumstances of aggravation" such as the infliction of serious bodily injury or a difference in gender).  We find that, even had the trial court excluded Captain Thomas's TPI testimony, the State presented overwhelming evidence of Norton's guilt of both offenses.  As to strangulation specifically, Victim identified the pictures, which contained graphic images of Victim's bruises blooming and beginning to fade during the week following the attack, as showing her injuries from strangulation.  Victim testified Norton punched or choked her into unconsciousness at least twice.  The cashier recalled hearing "hitting" noises from inside the bathroom after Norton followed Victim into that room.  She and a police officer described Victim as hysterical and crying when they discovered her cowering on the bathroom floor.  Furthermore, we find Captain Thomas did not express an opinion concerning the ultimate issue in this case.  Captain Thomas opined only that the bruising evident in the photographs was TPI.  Although he related facts supporting the State's theory that Victim was strangled, he never expressed an opinion as to whether Norton assaulted and seriously injured Victim, either by strangling or by other means.  Accordingly, Norton suffered no prejudice from Captain Thomas's testimony, and any error in admitting it was harmless. 

AFFIRMED.

FEW, C.J., THOMAS, J., and CURETON, A.J., concur. 

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[1] The term "TPI" appears to be a typographical error or misunderstanding of the term "petechiae."  For continuity, we use the term in the record.