Opinion
No. 07-484.
Filed January 15, 2008.
Orange County No. 05 CRS 8513.
Appeal by defendant from an order and judgment entered 31 October 2006 by Judge Paul L. Jones in Orange County Superior Court. Heard in the Court of Appeals 14 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. James N. Freeman, Jr. for defendant.
Lisa Renee Jordan (defendant) appeals from an order denying her motion to suppress and a judgment entered 31 October 2006 consistent with a guilty jury verdict of driving while impaired and sentencing her to a term of twelve months imprisonment. For the reasons stated, we find defendant received a trial free from prejudicial error.
At the motion to suppress hearing, Trooper Oxendine testified that on 13 October 2005 he was called to an accident scene in Orange County and found defendant sitting beside a damaged vehicle. EMS was on the scene providing her with medical assistance. The trooper observed defendant could not seem to focus on him as he spoke to her and that she did not know where she had been, where she was going or on which road she had been traveling. Defendant was issued a citation for driving while subject to an impairing substance and operating a motor vehicle at a speed greater than was reasonable under the conditions that existed on 13 September 2005. The trooper went to the hospital and observed defendant moaning while the medical staff tended to her. Without reading defendant her rights, the trooper requested that a nurse draw a blood sample from her for chemical analysis.
At the motion to suppress hearing, defendant testified she did not remember anything for a week and a half after the accident. Defendant testified that on the morning of the accident she left Oxford with a person named "Nicole" who was driving the vehicle and whom she has not seen since that day. During the hearing defendant admitted she was using crack cocaine on the day of the accident. At the conclusion of the suppression hearing, the trial court denied defendant's motion to suppress the evidence, concluding defendant was in a condition that rendered her incapable of refusing and therefore defendant's blood sample was taken in accordance with N.C. Gen. Stat. § 20-16.2(b).
Defendant's case was heard during the 30 October 2006 session of Orange County Criminal Superior Court before the Honorable Paul L. Jones. On 31 October 2006, the jury returned a verdict finding defendant guilty of driving while impaired and the trial court sentenced defendant to twelve months imprisonment. Defendant appeals from the order denying her motion to dismiss and the judgment consistent with a guilty jury verdict of driving while impaired.
On appeal defendant argues the trial court erred by: (I) denying her motion to suppress the results of her blood test; (II)
denying defendant's motion for additional discovery; (III) admitting Trooper Oxendine's accident report into evidence; (IV) admitting Trooper Oxendine's opinion as to the speed of defendant's vehicle at the time of the accident; and (V) denying defendant's motion to dismiss for insufficiency of the evidence.
I
Defendant argues the trial court erred by denying her motion to suppress the results of her blood test because the trooper did not have her consent to conduct the test. We disagree.
"Generally, an appellate court's review of a trial court's order on a motion to suppress `is strictly limited to a determination of whether its findings are supported by competent evidence, and in turn, whether the findings support the trial court's ultimate conclusion.'" State v. Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735 (quoting State v. Allison, 148 N.C. App. 702, 704, 559 S.E.2d 828, 829 (2002)), disc. review denied, 358 N.C. 240, 594 S.E.2d 199 (2004).
This deference is afforded the trial judge because he is in the best position to weigh the evidence, given that he has heard all of the testimony and observed the demeanor of the witnesses. . . . [W]here the evidence is conflicting, . . . the judge must resolve the conflict. He sees the witnesses, observes their demeanor as they testify and by reason of his more favorable position, he is given the responsibility of discovering the truth. The appellate court is much less favored because it sees only a cold, written record.
State v. Hughes, 353 N.C. 200, 207-08, 539 S.E.2d 625, 631 (2000) (internal citations and quotations omitted). "The trial court's conclusions of law, however, are fully reviewable on appeal." Id., 353 N.C. at 208, 539 S.E.2d at 631.
This Court has previously held that when a driver is unconscious, and the charging officer has reasonable grounds to believe defendant has committed an implied-consent offense, evidence obtained pursuant to N.C. Gen. Stat. § 20-16.2 ("Implied consent to Chemical Analysis") is admissible without the officer advising defendant of his rights pursuant to that statute. State v. Garcia-Lorenzo, 110 N.C. App. 319, 430 S.E.2d 290 (1993); State v. Hollingsworth, 77 N.C. App. 36, 334 S.E.2d 463 (1985). However, evidence obtained through N.C.G.S. § 20-16.2 may also be admitted without consent in other circumstances without a specific finding that defendant is unconscious. North Carolina General Statutes, Section 20-16.2(b) provides as follows:
(b) Unconscious Person May Be Tested. — If a law enforcement officer has reasonable grounds to believe that a person has committed an implied-consent offense, and the person is unconscious or otherwise in a condition that makes the person incapable of refusal, the law enforcement officer may direct the taking of a blood sample or may direct the administration of any other chemical analysis that may be effectively performed. In this instance the notification of rights set out in subsection (a) and the request required by subsection (c) are not necessary.
Both cases defendant cites in support of her argument involve defendants who were conscious and capable of refusing chemical analysis, but were not informed of their rights and therefore, granted new trials. See State v. Shadding, 17 N.C. App. 279, 194 S.E.2d 55, cert. denied, 283 N.C. 108, 194 S.E.2d 636 (1973) and State v. Fuller, 24 N.C. App. 38, 209 S.E.2d 805 (1974).
In this case, Trooper Oxendine observed defendant at the accident scene and attempted to speak to her. Defendant could not tell him where she was, where she was coming from, or where she was traveling. The trooper observed defendant's pupils were dilated and she could not focus. He then stopped questioning her to allow medical personnel to transport her to the hospital. Upon arrival, the trooper observed defendant from about one to two feet away while she was in the emergency room. Defendant was moaning loudly and moving around and could not be understood. The nurses could not get defendant to cooperate with their instructions. Defendant did not respond to questions or directions from anyone while the trooper was at the hospital. Defendant testified she woke up in the hospital a week and a half after the accident and has no memory of the accident. Further, defendant admitted she was using crack cocaine. There was substantial evidence which tended to support Trooper Oxendine's actions in taking defendant's blood sample without advising her of her rights where defendant was in a such a condition that she was incapable of responding to his instructions or requests. The trial court properly denied defendant's motion to suppress. This assignment of error is overruled.
II
Defendant argues the trial court erred by denying defendant's motion for additional discovery where the State provided defendant with notice, one week prior to trial, of the intention to call SBI Agent Stark as an expert witness. However, defendant did not object to Agent Stark's testimony at trial. Our Supreme Court has stated that "[a] party may not, after trial and judgment, comb through the transcript of the proceedings and randomly insert an exception notation in disregard of the mandates of Rule 10(b)." State v. Oliver, 309 N.C. 326, 335, 307 S.E.2d 304, 312 (1983). "Failure to except or object to errors at trial constitutes a waiver of the right to assert the alleged error on appeal." Id. at 334, 307 S.E.2d at 311. Therefore defendant's assignment of error is dismissed. N.C. R. App. P. 10(b)(1).
III IV
Defendant argues the trial court erred by admitting Trooper Oxendine's accident report and his opinion testimony as to the speed of the vehicle into evidence and that such error was prejudicial. We disagree.
If 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 (2005). A non-expert may not testify as to the speed of a vehicle involved in an accident if that individual did not actually witness the accident. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124 (2003), cert. denied, 357 N.C. 169, 581 S.E.2d 447 (2003). A defendant has the burden to show error and "a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises." N.C. Gen. Stat. § 15A-1443 (a) (2005). "Where evidence is admitted over objection and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost." State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995). If there is overwhelming evidence of defendant's guilt or an abundance of other evidence to support the State's contention, the erroneous admission of evidence is harmless." State v. Crawford, 104 N.C. App. 591, 410 S.E.2d 499 (1991).
At trial, Trooper Oxendine was not qualified as an expert. In addition to repeating his voir dire testimony offered at the suppression hearing, Trooper Oxendine gave his lay opinion that defendant was traveling sixty-five miles an hour in a forty-five-mile-an-hour zone. The trooper admitted he did not witness the accident. Because Trooper Oxendine neither observed the accident nor was qualified as an expert to testify as to the vehicle's speed at trial, we agree with defendant's argument that it was error to admit Trooper Oxendine's testimony as to the vehicle's speed.
Nonetheless, defendant incorrectly argues the admission of the vehicle's speed evidence was prejudicial in that it allowed the jury to infer defendant was driving while impaired. See State v. Harper, 96 N.C. App. 36, 41, 384 S.E.2d 297, 300 (1989) (police summaries inadmissible as substantive evidence but not prejudicial error). Defendant objected to the admission of the accident report into evidence on the grounds that it contained hearsay. The benefit of defendant's objection was lost where the information contained within the trooper's report, aside from the alleged speed of defendant's vehicle, was also introduced without objection through the direct testimony of Trooper Oxendine. Furthermore, even if the accident report were hearsay, "the erroneous admission of hearsay is not always so prejudicial as to require a new trial." State v. Locklear, 322 N.C. 349, 360, 368 S.E.2d 377, 384 (1988). The accident report (aside from the estimated speed) was properly admitted as it included the trooper's observations of defendant and of the accident scene. This was a driving while impaired case. Trooper Oxendine testified the vehicle went off the right side of the road in a curve, defendant overcorrected, and then went off the opposite side of the highway and crashed into the woods. Defendant was the only person found at the scene of the accident and while being questioned at the accident scene, she could not tell Trooper Oxendine where she was coming from or where she was going. The trooper observed defendant's pupils were dilated and she could not focus. Based on these observations and conversations with defendant at the scene, the trooper formed an opinion defendant was impaired. Moreover, SBI Agent Stark tested defendant's blood and found her blood samples contained cocaine. Notwithstanding the erroneous admission of evidence of speed, there is ample other evidence arising from the accident and surrounding circumstances to support the jury verdict that defendant was driving while impaired. Although we conclude admission of the evidence of estimated speed was error, defendant was not prejudiced such that she is entitled to a new trial. Locklear, 322 N.C. at 360, 368 S.E.2d at 384. Therefore, from the evidence presented, we cannot say that a reasonable possibility exists that a different result would have been obtained had the estimated speed evidence not been admitted. See N.C. Gen. Stat. Sec. 15A-1443(a) (2005). These assignments of error are overruled.
V
Defendant argues the trial court erred by denying defendant's motion to dismiss for insufficiency of the evidence. Defendant argues insufficient evidence was presented at the trial that defendant was the driver of the vehicle, which is an element of the offense of driving while impaired pursuant to N.C.G.S. § 20-138.1.
In ruling on a motion to dismiss, the trial court must determine that the State presented substantial evidence as to every essential element of the crime. State v. Munoz, 141 N.C. App. 675, 684, 541 S.E.2d 218, 224 (2001); State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Earnhardt, 307 N.C. at 66, 296 S.E.2d at 652 (quotation omitted). The trial court's must determine whether the evidence allows a "`reasonable inference' to be drawn as to the defendant's guilt of the crimes charged." Id. Any inference should be drawn in the light most favorable to the prosecution, and "contradictions and discrepancies do not warrant dismissal of the case, they are for the jury to resolve." Id. The State may establish that defendant was driving through circumstantial evidence. See State v. Riddle, 56 N.C. App. 701, 704, 289 S.E.2d 598, 599 (1982) (The "defendant was observed immediately following the collision exiting from the car which collided with decedent's car. No one other than defendant was observed in, at, or near that car at any time.").
Defendant relies on State v. Ray, 54 N.C. App. 473, 283 S.E.2d 823 (1981). In Ray, this Court found insufficient evidence to support a charge for driving while impaired where the only evidence offered by the State to show defendant was driving was that defendant was sitting "halfway [in] the front seat." Id. at 475, 283 S.E.2d at 825. The officer responded to an accident call and observed the defendant seated in a car which had hit two parked cars. Id. at 474, 283 S.E.2d at 824. There was no evidence the car had been operated recently, nor evidence that the motor was running. Having no other evidence, circumstantial or otherwise, that defendant had been driving, the Court was unable to support a conclusion that defendant was the driver. Id. at 475, 283 S.E.2d at 825.
However, in State v. Dula, the State's circumstantial evidence conflicted with the defendant's direct evidence, yet was sufficient to withstand a motion to dismiss. 77 N.C. App. 473, 474-75, 335 S.E.2d 203, 204 (1985). In Dula, the only question was whether the defendant was operating the vehicle. Id. at 474, 335 S.E.2d at 204. A witness testified observing black tire marks on the highway and a car "with its headlights on, lying on its top in a field near the highway." Id. at 474, 335 S.E.2d at 204. When the witness went to the vehicle, defendant was inside with the windows rolled up and the car doors closed. Id. The Court held:
This evidence is clearly sufficient, in our opinion, to justify the inference that defendant was driving the car before it left the public highway; and its sufficiency is not affected by the fact that other evidence tended to show that defendant was not driving. The other evidence consisted of an admission extracted from the investigating patrolman that defendant told him he was not the driver, and testimony by a witness for the defendant to the effect that: He drove the car, was thrown out through a door which opened while the car was turning over, and left the scene quickly because he was afraid. The State was not required to disprove this version of the matter; nor did it have to prove to a scientific certainty that defendant was the driver of the car; it only had to present evidence from which that fact could be deduced by reasonably minded people. And it matters not that the State's evidence was entirely circumstantial, while the defendant's evidence was direct and by a professed participant and eyewitness. The weight of all evidence is for the jury, which often finds physical circumstances more reliable than the testimony of eyewitnesses, as our courts have noted many times.
Dula, 77 N.C. App. at 474-75, 335 S.E.2d at 204.
The case sub judice is more like the Dula case than the Ray case. Here, the State presented evidence from Elbert Johnson who testified that on 1 August 2005, he heard tires squealing and saw a flash and a vehicle going into the woods. Mr. Johnson called 911 and proceeded to the accident scene. Mr Johnson saw defendant, alone, lying next to the vehicle that landed in an embankment near the highway. He did not see anyone else in or around the vehicle. Mr. Johnson testified defendant appeared to be "kind of out of it," confused and in pain. Within minutes, EMS arrived and the recently operated vehicle "burst into flames." The EMS technician who treated defendant testified defendant's bruising underneath her right armpit and abdominal injuries were caused by seatbelt usage. William Bullock, owner of the vehicle driven by defendant, testified that on the day of the accident, he saw defendant and Nicole leave Oxford at 9:00 a.m. At the time, Nicole was driving and defendant was in the passenger seat. Approximately nine to nine and a half hours later the accident occurred. Testimony that another individual was seen driving the vehicle nine hours prior to the accident, without more, does not prevent a rational juror from inferring from the physical evidence that defendant was the driver at the accident scene. Dula, 77 N.C. App. at 474-75, 335 S.E.2d at 204. There was substantial evidence presented here to show that the vehicle had been operated by defendant. Accordingly, this assignment of error is overruled.
No prejudicial error.
Judges McGEE and HUNTER concur.
Report per Rule 30(e).