Opinion
No. COA09-853.
Filed March 2, 2010.
Mecklenburg County No. 08 CRS 207490.
Appeal by defendant from judgment entered 15 January 2009 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Kathryne E. Hathcock, for the State.
Ryan McKaig for defendant-appellant.
Defendant Angela Grace England appeals from her conviction of driving while impaired ("DWI"), contending the trial court erred in allowing the arresting officer to give his opinion that defendant was appreciably impaired based upon his observation of her completion of field sobriety tests. In light of the overwhelming evidence of defendant's guilt — in particular, the evidence that she recorded a .09 blood alcohol concentration — we hold that any error committed by the trial court was harmless.
Facts
The State's evidence tended to show the following. On 13 February 2008, Officer Jonathan Cerdan of the Charlotte-Mecklenburg Police Department was on patrol when he observed "the defendant's vehicle accelerating, pulling away from the other vehicles." He estimated her speed at 50 miles per hour, and the radar clocked her speed at 46 miles per hour. Because the speed limit was 35 miles per hour, Officer Cerdan initiated a traffic stop for speeding. He activated his blue lights and siren, but defendant continued driving for approximately 18 seconds before activating her turn signal. Then, she continued driving for an additional 30 seconds before finally stopping. Officer Cerdan approached defendant's car and asked her for her driver's license and registration. Officer Cerdan observed that defendant's eyes were "bloodshot" and "glossy," and he noticed a strong odor of alcohol coming from the vehicle. When Officer Cerdan asked defendant if she had been drinking, defendant admitted to drinking two beers.
Officer Cerdan asked defendant to step out of the vehicle and to perform several field sobriety tests: the one-leg stand test, the walk and turn test, and an alcosensor test. Officer Cerdan first instructed defendant to stand on one leg and count. Defendant counted to 49, at which point Officer Cerdan instructed her to stop. Defendant continued counting for an additional 40 seconds. Defendant was then instructed how to perform the walk and turn test. Defendant lost her footing on the first two steps, "continued down the line and made an improper turn." Defendant completed the remainder of the test satisfactorily. When Officer Cerdan asked defendant to submit to further field sobriety tests, she became "agitated" and refused to do so. Officer Cerdan placed her under arrest for impaired driving and transported her to the Mecklenburg County Intake Center for a chemical analysis of her breath. Defendant submitted to the test and recorded an alcohol concentration of .09.
Defendant was cited with driving while impaired. On 14 October 2008, defendant pled guilty in district court and was given a suspended sentence of 30 days and placed on unsupervised probation for a period of 12 months. Defendant appealed to superior court. On 15 January 2009, a jury found defendant guilty of driving while impaired. Defendant was sentenced to a term of 30 days imprisonment, that sentence was suspended, and defendant was placed on unsupervised probation for 12 months. Defendant timely appealed to this Court.
Discussion
The sole issue raised by this appeal is whether the trial court erred in allowing Officer Cerdan to give his opinion that defendant was appreciably impaired based upon his observation of the field sobriety tests. At trial, the State asked Officer Cerdan:
Based on observation of the defendant while she was performing the field sobriety tests, did you have an opinion satisfactory to yourself as to whether she had consumed a sufficient quantity of some impairing substance so that she was appreciably impaired.
Defendant objected, after which the following colloquy occurred:
THE COURT: Basis.
[DEFENDANT'S COUNSEL]: In order to give an opinion, it has to be based on specific knowledge.
THE COURT: Any authority for that?
[DEFENDANT'S COUNSEL]: Yes, Your Honor.
THE COURT: Tell me what the authority is.
[DEFENDANT'S COUNSEL]: Basis of opinion testimony by expert Rule 703.
THE COURT: You are telling me that a person can't give an opinion unless that person is an expert.
[DEFENDANT'S COUNSEL]: Your Honor, I believe a person can give a lay opinion if it's anything that is not based on technical training, Your Honor, based on normal observation. I believe the question is also based on the knowledge, which does require specific and technical training.
THE COURT: What is the indication this witness does not have that?
[DEFENDANT'S COUNSEL]: I would just like for him to be tendered as an expert before he gives that opinion.
THE COURT: The objection is overruled. That request is denied.
Officer Cerdan then testified that he had "developed the opinion that defendant consumed a sufficient quantity of some impairing substance where I deemed that she was impaired."
Defendant contends that it is unclear from the record whether the trial court admitted Officer Cerdan's testimony as lay opinion testimony or expert testimony, but that, in either event, the trial court erred. According to defendant, if the testimony was admitted as lay opinion, it was improperly admitted because the opinion was based on conclusions drawn from specialized knowledge of scientific tests. See State v. Helms, 348 N.C. 578, 581, 504 S.E.2d 293, 295 (1998) (holding that horizontal gaze nystagmus test, a field sobriety test, is scientific test requiring proper foundation and must be presented to jury by qualified expert). On the other hand, if admitted as expert testimony, defendant argues that it was improper because the State failed to lay the necessary foundation that Officer Cerdan was qualified to administer and interpret the field sobriety tests. See State v. Goode, 341 N.C. 513, 529, 461 S.E.2d 631, 640 (1995) (explaining that in determining admissibility of expert testimony, trial court must determine "whether the witness testifying at trial is qualified as an expert to apply this method to the specific facts of the case").
Even assuming, without deciding, that the trial court erred by allowing Officer Cerdan to testify as to his opinion, we conclude that it was harmless error in light of the overwhelming evidence of defendant's guilt. "The erroneous admission of evidence requires a new trial only when the error is prejudicial." State v. Chavis, 141 N.C. App. 553, 566, 540 S.E.2d 404, 414 (2000). "To show prejudicial error, a defendant has the burden of showing that `there was a reasonable possibility that a different result would have been reached at trial if such error had not occurred.'" Id. (quoting N.C. Gen. Stat. § 15A-1443(a) (1999)).
Officer Cerdan testified without objection that defendant was speeding and that she continued driving, without pulling over, for several seconds after he activated his blue lights and siren. He also testified that defendant's eyes were glossy and bloodshot and there was a strong odor of alcohol coming from defendant's car. Defendant admitted to drinking two beers and twice registered on an Intoxilyzer test a .09 alcohol concentration, which is .01 above the legal limit. See N.C. Gen. Stat. § 20-138.1(a)(2) (2009) ("A person commits the offense of impaired driving if he drives any vehicle upon any highway, any street, or any public vehicular area within this State . . . [a]fter having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more. The results of a chemical analysis shall be deemed sufficient evidence to prove a person's alcohol concentration[.]").
In light of this evidence, we conclude that defendant has failed to demonstrate any prejudice resulting from the admission of Officer Cerdan's testimony. See State v. Grant, 178 N.C. App. 565, 576, 632 S.E.2d 258, 266 (2006) ("`Erroneous admission of evidence may be harmless where there is an abundance of other competent evidence to support the state's primary contentions, or where there is overwhelming evidence of [the] defendant's guilt.'" (quoting State v. Weldon, 314 N.C. 401, 411, 333 S.E.2d 701, 707 (1985))), appeal dismissed and disc. review denied, 361 N.C. 223, 642 S.E.2d 712 (2007). Accordingly, we find no error.
No error.
Judges McGEE and ROBERT HUNTER, JR. concur.
Report per Rule 30(e).