Opinion
NO. COA11-316
11-15-2011
STATE OF NORTH CAROLINA v. ARMIEN FLEMING
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State. Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
New Hanover County
Nos. 07 CRS 63253
08 CRS 3912
On writ of certiorari to review judgments entered 6 February 2009 by Judge Phyllis M. Gorham in New Hanover County Superior Court. Heard in the Court of Appeals 17 October 2011.
Attorney General Roy Cooper, by Assistant Attorney General John W. Congleton, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for defendant-appellant.
McCULLOUGH, Judge.
Defendant seeks review of judgments entered upon his convictions of felony serious injury by vehicle, driving while impaired, driving while license revoked, reckless driving to endanger, assault with a deadly weapon inflicting serious injury, driving the wrong way on a dual lane highway and failing to burn headlamps. He contends the trial court erred in admitting irrelevant evidence over his objection. We find no error.
The State's evidence at trial tends to show that between 6:30 and 7:00 a.m. on 20 October 2007, Felicia Somers was driving home from work in her Honda Civic when she was hit by a Dodge Durango driven by defendant. Ms. Somers was traveling eastbound and defendant was traveling westbound on a city street with a posted speed limit of 35 miles per hour. A witness who saw the collision occur right in front of him first heard tires screeching, and then observed defendant's westbound Durango "cross traffic into the eastbound lanes" and hit Ms. Somers' car. The Durango bounced off the other car, traveled back across the two westbound lanes, hit an oak tree, bounced off the tree, spun around, and came to rest in the westbound lanes. Defendant climbed out of the driver's side window. Prior to the collision, several witnesses noticed that the Durango had no headlights on, that defendant was driving at a high rate of speed, approximately 55 to 60 miles per hour, and that he was driving erratically, including changing lanes multiple times.
Police officers, paramedics, and firefighters responded to the scene. Although defendant was out of his car when the first officer arrived, it took responders almost an hour to extricate Ms. Somers from her car, which had been crushed against her body. She sustained serious injuries as a result of the crash, including fourteen fractures and multiple lacerations. She spent a few days in intensive care, and then about nine days in acute care before beginning rehabilitation. By trial, she had undergone six surgeries to repair damage from her injuries, but she was expecting at least one more surgery to repair her left leg.
When the police initially questioned defendant immediately following the collision, he admitted to being the driver of the Durango, but he was confused and unable to say what happened. Defendant admitted to drinking earlier, but stated that he had stopped drinking around 12:30 a.m. or 1:00 a.m. After defendant was transported to a hospital for evaluation, Corporal Ray Metcalf of the Wilmington Police Department observed that defendant smelled of alcohol. Corporal Metcalf performed a field sobriety test on defendant called a horizontal gaze nystagmus ("HGN"), which indicated defendant was impaired. Defendant voluntarily submitted to a blood test, which showed defendant had a blood alcohol concentration of 0.19.
Defendant did not present any evidence. The jury returned verdicts of guilty of felony serious injury by vehicle, driving while impaired, driving while license revoked, reckless driving to endanger, and assault with a deadly weapon inflicting serious injury. The jury also found defendant responsible for driving the wrong way on a dual lane highway and for failure to burn headlights. The trial court consolidated the offenses into two judgments and sentenced defendant to consecutive terms of 19 to 23 months' imprisonment and 29 to 44 months' imprisonment. On 13 October 2010, this Court granted certiorari to review defendant's judgments.
By his sole argument on appeal, defendant contends the trial court erred by admitting irrelevant evidence over objection. First, defendant argues the trial court erred by allowing testimony by Corporal Joe Fitzgerald regarding his training and experience with field sobriety tests, particularly the HGN test. Defendant contends the testimony was irrelevant and only served to confuse and mislead the jury, since Corporal Fitzgerald did not administer the HGN test to defendant, nor was there any evidence that Corporal Fitzgerald trained Corporal Ray Metcalf, the person who did administer the test. Defendant asserts that the testimony improperly bolstered the credibility of Corporal Metcalf.
Defendant also challenges the admission of Officer Carrie Hunter's testimony that she discovered a large amount of money near the scene of the collision after speaking to a witness. Defendant contends the testimony improperly implied that he had a bad character and that he might have been involved with illegal drug activity. Defendant further argues that the money found near the scene had no probative value for any issue in contention at trial.
With regard to both challenged pieces of testimony, defendant asserts that he was harmed by their admission, because the lengthy jury deliberations and the jury's questions to the court during deliberations indicate it was a "close" case, and without the improper evidence, a different result may have been obtained. Defendant contends he is entitled to a new trial. We do not agree.
"Evidence is admissible at trial if it is relevant and its probative value is not substantially outweighed by, among other things, the danger of unfair prejudice." State v. Wallace, 104 N.C. App. 498, 501-02, 410 S.E.2d 226, 228 (1991); N.C. Gen. Stat. § 8C-1, Rules 402, 403 (2009). Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." N.C. Gen. Stat. § 8C-1, Rule 401 (2009). While a trial court's rulings on relevancy are not subject to an abuse of discretion analysis, "such rulings are given great deference on appeal." Wallace, 104 N.C. App. at 502, 410 S.E.2d at 228. Irrelevant evidence is deemed harmless unless a defendant can show that he was prejudiced by its admission. State v. Harper, 96 N.C. App. 36, 42, 384 S.E.2d 297, 300 (1989).
Without deciding whether the challenged evidence was irrelevant, we conclude that defendant has failed to show he was prejudiced by its admission given the overwhelming evidence of his guilt. Incontrovertible evidence was admitted that defendant was operating the vehicle that hit Ms. Somers' car resulting in severe injuries to Ms. Somers; that driving erratically defendant's rate of speed was far in excess of the posted speed limit; and that he had a blood alcohol concentration of 0.19. Given the positive evidence of defendant's guilt, there is no reasonable possibility that a different result would have been attained if the challenged evidence had not been admitted. See N.C. Gen. Stat. § 15A-1443(a) (2009); Harper, 96 N.C. App. at 42, 384 S.E.2d at 300. Accordingly, the trial court did not err in overruling defendant's objections.
No error.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).