Opinion
No. COA04-255
Filed 5 April 2005 This case not for publication
Appeal by Defendant from judgment entered 23 July 2003 by Judge Napoleon B. Barefoot in Superior Court, Columbus County. Heard in the Court of Appeals 1 March 2005.
James R. Caviness for plaintiff-appellee. William L. Davis, III for defendant-appellant.
Columbus County No. 00 CVD 1770.
Section 8-50.1(b1) of the North Carolina General Statutes provides the foundation needed to admit the genetic results of a court-ordered paternity test. When the documents comply with section 8-50.1(b1), additional foundation evidence is unnecessary to establish chain of custody. For the reasons stated herein, we find no error by the trial court.
The evidence in this matter tended to show that Madeana Collins engaged in sexual relations with Defendant Marion Davis and another man in late-June and early-July 1992 — the period of conception for the child in this matter born in April 1993. Initially, Madeana Collins named the other man as the child's father; but, in 1999, she named Davis as the father.
The child resides with his legal guardian who is his maternal grandmother — Vernis Collins. The Columbus County Department of Social Services (DSS), which provides public assistance funds to assist in the support of the child, brought this action on behalf of Vernis Collins to assist in child support enforcement and collection. Thereafter, the trial court ordered Davis to submit to genetic testing for the purpose of establishing or disproving parentage.
During the jury trial, over Davis's objection, Dr. Gary Stuhlmiller, director of the Department of DNA Identity Testing of Laboratory Corporation of America, testified that based on the deoxyribonucleic acid ("DNA") test results, Davis could not be excluded from paternity, and that there was a 99.99 percent probability that he was the child's father. By his objection, Davis took issue with whether there had been a proper showing of the chain of custody for the blood specimens. In offering his opinion, Dr. Stuhlmiller relied on the following exhibits:
Exhibit 1 — DNA test results.
Exhibit 2 — Affidavits of Receipt of Genetic Specimens Chain of Custody for A.D.C., the mother, and Defendant.
Exhibit 3 — Client Authorization form for blood sample collection and testing for paternity evaluation for Davis.Over Davis's objections all of these documents were admitted into evidence.
The jury returned a verdict of "Yes" to the question, "Is the defendant, MARION A. DAVIS, the father of [the child]?" From the resulting judgment, Davis appealed.
On appeal, Defendant argues that the trial court erred by (1) admitting exhibits one and two relating to the DNA testing procedure into evidence; (2) admitting testimony by an expert witness regarding exhibits one and two; and (3) denying his motions for directed verdict and judgment not withstanding the jury verdict. We disagree.
First, Defendant contends that the trial court erred by admitting the exhibits relating to the DNA testing procedure because the chain of custody for the evidence was not established. While Davis contends that the trial court should have followed the procedures for admitting DNA evidence set out in Lombroia v. Peek, 107 N.C. App. 745, 421 S.E.2d 784 (1992), we hold that because the DNA test in this case was court-ordered upon motion by Plaintiff, the trial court correctly followed the procedures set forth under section 8-50.1(b1) of the North Carolina General Statutes. N.C. Gen. Stat. § 8-50.1(b1) (2004); see Catawba County, ex. rel Kenworthy v. Khatod, 125 N.C. App. 131, 135, 479 S.E.2d 270, 272 (1997). Section 8-50.1(b1) provides:
Verified documentary evidence of the chain of custody of the blood specimens obtained pursuant to this subsection shall be competent evidence to establish the chain of custody. Any party objecting to or contesting the procedures or results of the blood or genetic marker tests shall file with the court written objections setting forth the basis for the objections and shall serve copies thereof upon all other parties not less than 10 days prior to any hearing at which the results may be introduced into evidence. . . . If no objections are filed within the time and manner prescribed, the test results are admissible as evidence of paternity without the need for foundation testimony or other proof of authenticity or accuracy.
N.C. Gen. Stat. § 8-50.1(b1) (emphasis added). "Verification by affidavit requires that the verification be `sworn to before a notary public or other officer of the court authorized to administer oaths.'" Rockingham County Dep't of Soc. Servs., ex. rel. Shaffer v. Shaffer, 126 N.C. App. 197, 199, 484 S.E.2d 415, 416-17 (1997) (citing 1 G. Gray Wilson, North Carolina Civil Procedure § 11-7, at 196 (2d ed. 1995)).
Exhibit one is the DNA test result and exhibit two is an affidavit of receipt of genetic specimens chain of custody. Both were verified and sworn to before a notary public. Further, both documents qualify under section 8-50.1(b1) of the North Carolina General Statutes as competent evidence to establish a chain of custody for the blood specimens. As Defendant did not file written objections to the procedures or results of the blood tests prior to ten days before the hearing, no further foundation needed to be laid to admit the test results as evidence of paternity. N.C. Gen. Stat. § 8-50.1(b1). Therefore, the trial court did not err in admitting the exhibits, as they are verified documents of a court ordered DNA test to which Defendant did not object prior to trial.
Defendant next argues that the trial court erred in admitting testimony by Dr. Stuhlmiller, an expert witness, regarding the chain of custody and paternity. We disagree.
"If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion." N.C. Gen. Stat. § 8C-1, Rule 702(a) (2004). "[A]n expert's testimony is admissible only where it informs the jury about matters not within the full understanding of lay persons." State v. Jackson, 320 N.C. 452, 460, 358 S.E.2d 679, 683 (1987).
Dr. Stuhlmiller testified to the different types of genetic tests that can be useful to determine paternity, the underlying scientific and genetic principles for a DNA test, and the "probability of exclusion calculation." His testimony on the scientific principles behind DNA testing and the interpretation of the "probability of exclusion calculation" was helpful to the jury. See Jackson, 320 N.C. at 460, 358 S.E.2d at 683. At no time did Dr. Stuhlmiller testify as to his opinion of whether Defendant was the father. Id. Since Dr. Stuhlmiller's testimony was helpful to the jury and did not express an opinion on whether Defendant was the father, the ultimate issue in the case, it was properly admitted. Finally, Defendant argues that the trial court erred in denying his motion for a directed verdict and motion for judgment notwithstanding the verdict. We disagree.
"On a motion by a defendant for a directed verdict in a jury case, the court must consider all the evidence in the light most favorable to the plaintiff and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict for the plaintiff." Creasman v. First Fed. Sav. Loan Ass'n, 279 N.C. 361, 366, 183 S.E.2d 115, 118 (1971) (citation omitted). The only question for this Court is whether Plaintiff's evidence was sufficient to withstand Defendant's motion for a directed verdict. Id.
Defendant argues that viewing the evidence in the light most favorable to Plaintiff, the evidence was insufficient to go to the jury because Plaintiff "failed to establish a sufficient period of gestation for the child to be the biological child of Marion Davis." (Appellant's Brief p. 18-19). However, Defendant stated no specific grounds in support of his motion for a directed verdict at trial. Section 1A-1, Rule 50(a) of the North Carolina General Statutes expressly requires that "specific grounds" shall be stated in a motion for a directed verdict. N.C. Gen. Stat. § 1A-1, Rule 50(a) (2004). Defendant, having failed to state "specific grounds," is not entitled on appeal to question the insufficiency of the evidence to support the verdict. Wheeler v. Denton, 9 N.C. App. 167, 169, 175 S.E.2d 769, 770 (1970). Regardless of Defendant's failure to state specific grounds, there was ample evidence supporting the conclusion that Defendant was the father: (1) results of a DNA test that Defendant had a 99.99 percent probability of paternity; and (2) the mother's testimony that she had sexual intercourse with Defendant approximately nine to ten months before the birth of the child. Considering this evidence in the light most favorable to Plaintiff, there was more than sufficient evidence to send the case to the jury. Creasman, 279 N.C. at 366, 183 S.E.2d at 118. Therefore, the trial court did not err in denying Defendant's motions for a directed verdict and judgment not withstanding the verdict.
No error.
Judges HUDSON and STEELMAN concur.
Report per Rule 30(e).