             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-742

                                Filed: 4 June 2019

Madison County, No. 15CRS000352

STATE OF NORTH CAROLINA

            v.

TIMOTHY CALVIN DENTON, Defendant.


      Appeal by defendant from judgment entered on or about 22 September 2017

by Judge Mark E. Powell in Superior Court, Madison County. Heard in the Court of

Appeals 13 March 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Kathryne E.
      Hathcock, for the State.

      Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals his conviction for felony death by vehicle. The trial court

erred by admitting lay opinion testimony identifying defendant as the driver of the

vehicle at the time of an accident in which an occupant of the car was killed where

the expert accident reconstruction analyst was unable to form an expert opinion

based upon the same information available to the lay witness. We therefore reverse

defendant’s conviction and grant defendant a new trial.

                                   I.     Background
                                  STATE V. DENTON

                                  Opinion of the Court



      On 1 August 2014, defendant and Danielle Mitchell were both in a car when it

ran off the road and wrecked; both were ejected from the car and Ms. Mitchell died at

the scene from her injuries. Defendant was indicted for felony death by vehicle. The

primary factual issue at trial was whether defendant was driving at the time of the

accident.

      The State’s evidence showed that on the morning of 1 August 2014, defendant

and Ms. Mitchell decided to go to Asheville to find some “[w]hite lightning” liquor in

a “[k]ind of an old and red, burgundy looking” car that “might’ve been a Dodge” that

defendant drove. Defendant and Ms. Mitchell spent time together often during the

year preceding the wreck, either at her home or the home of Ms. Mitchell’s father,

Mr. Daniel Seay, where they would “hang out, talk . . . drink, smoke, watch football

games, baseball games.” Ms. Mitchell and her father lived about a quarter of a mile

from each other, and defendant’s understanding was that Ms. Mitchell did not have

her own car.

      On 1 August 2014, defendant and Ms. Mitchell left before lunch and defendant

was driving as they left Mr. Seay’s house, and Mr. Seay testified that he had “never

seen nobody else ever drive [defendant’s] car.” Mr. Seay recalled that “[defendant]

wouldn’t let nobody behind the wheel of that car[,]” and “[t]here was a few times that

he, he had to move to let somebody out, and he would always move the car. Nobody




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                                  Opinion of the Court



touched his car.” Mr. Seay testified that his daughter, Ms. Mitchell, had ridden in the

car before but she always sat in the front passenger seat.

      Shortly before 10:00 p.m. that evening, defendant and Ms. Mitchell called Mr.

Seay from a gas station and told him that the car was overheating. Defendant told

Mr. Seay, “She’s flipping out,” and reassured Mr. Seay they were all right and would

“be there in a few minutes.” Shortly thereafter, Mr. Seay heard sirens close to the

house. Around 10:10 p.m., Trooper Jason Fox of the North Carolina State Highway

Patrol received a dispatch call regarding a vehicle crash at US 25-70 near the Brush

Creek area. After arriving at 10:22 p.m., Trooper Fox spoke with EMS who advised

that two occupants had been ejected from the vehicle. One of the occupants, later

identified as Ms. Mitchell, was already deceased. Defendant suffered from a severe

head injury in the accident and had no memory of what happened on the day of the

accident.

      Defendant was also seriously injured, and EMS called for a helicopter to

transport him to the hospital. EMS stabilized defendant’s neck in a “C” collar and

placed him on a backboard.      While EMS was working with defendant, he was

screaming, hyperventilating, and combative; he was ultimately sedated for flight.

      Since the crash resulted in a fatality, Trooper Fox notified his supervisor.

Trooper Fox also found a witness to the wreck, Mr. David Martin. Mr. Martin

reported that he was traveling on the highway toward Hot Springs when an “orange-



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                                     STATE V. DENTON

                                     Opinion of the Court



ish, reddish” car came up behind him “extremely fast” such that Mr. Martin “did not

see it coming before it was basically on top of [him].” Mr. Martin estimated that the

car was traveling twice as fast as he was. The car passed Mr. Martin on the left side

in a no-passing zone, “started . . . a left turn and . . . ran off the right side of the road,

and when it did, dust and rocks and stuff started flying.” At that point, Mr. Martin

saw “just headlights and taillights. Looked like [the car] was rolling, flipping.” Mr.

Martin stopped immediately to help and call 911.              Mr. Martin saw a woman,

apparently deceased, and a man further up the road, moving a little but incoherent.

       Troopers Sorrells and Carver, along with First Sergeant Bray, went to the

scene to assist Trooper Fox with his investigation and completion of the field sketch.

Trooper Fox took photographs of the scene. The vehicle involved in the crash, a red

or burgundy 2001 Dodge Neon registered to defendant’s mother, was off the left

shoulder of the roadway facing towards Hot Springs. Trooper Fox found a sealed beer

bottle by Ms. Mitchell’s body, a Miller Highlife can and an empty Corona box in the

debris path, and Corona beer bottle caps inside the vehicle and near Ms. Mitchell’s

body. Trooper Fox believed the crash involved alcohol use because of “the bottle caps

located in the vehicle, the still-closed beer bottle that was located in the debris path .

. . there was a strong odor of alcohol coming from the vehicle itself.” Based upon a

blood test from the hospital, Defendant’s blood alcohol level was .182, and

benzodiazepine and cannabinoid were present in his urine.



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                                   STATE V. DENTON

                                   Opinion of the Court



      Trooper Fox determined that the Neon had been traveling north at a high rate

of speed in a forty-five mile per hour zone, lost control and ran off the right shoulder

of the roadway, struck a road sign, proceeded into a ditch and struck a rock which

caused it to overturn and roll four or five times, traveled across the highway and back

off the other side, and came to rest on all four wheels after striking a small block

building. Neither defendant nor Ms. Mitchell had been wearing a seatbelt prior to

being ejected, as each seatbelt was in a locked position near the respective door

frames. The airbags did not deploy. Long strands of “brown[] or dark colored” hair

were trapped in the passenger side of the vehicle and in windshield glass. Ms.

Mitchell’s hair was dark brown.

      Trooper Fox measured the distance from the front edge of the driver’s seat to

the acceletor pedal as 1 foot 9 inches; from the back of the driver’s seat to the pedal

as 3 feet 6 inches; and from the top edge of the driver’s seat to the center of the

steering wheel as 2 feet 8 inches. Defendant is 5’11” tall according to the DMV

database, and Ms. Mitchell was measured at approximately 5’2” by the medical

examiner. Over defendant’s objection, Trooper Fox testified he believed defendant

was driving at the time of the crash because “the seating position was pushed back

to a position where I did not feel that Ms. Mitchell would be able to operate that

vehicle or reach the pedals.”




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                                  STATE V. DENTON

                                  Opinion of the Court



      But Trooper Fox acknowledged that he was not an expert in accident

reconstruction, although one was called to the investigation. Trooper Daniel Souther

of the North Carolina Highway Patrol was the accident reconstruction expert who

analyzed the accident. He could not reach a conclusive expert opinion about who was

driving at the time of the accident, although he had three different theories of how

the accident happened, one of which he deemed the most plausible in which defendant

was the driver.

      Trooper Souther testified “the only way it makes sense to me is that Theory 1”

in which defendant was the driver of the vehicle, but Trooper Souther clarified “I’m

not saying 100 percent this is right, but this makes the most sense to me[,]” and

ultimately he testified that he could not “conclusively state [defendant] was operating

th[e] vehicle.” Later Trooper Souther was asked, “And so you are telling us that as

an expert in the field of accident reconstruction you do not have an opinion

satisfactory to yourself within any reasonable degree of certainty as to who was

driving this car on August 1st, 2014?” to which he responded, “Not [that] I can prove.”

Ultimately, defendant was found guilty by a jury, sentenced accordingly, and now

appeals.

                                 II.    Opinion Testimony

      Defendant’s only argument on appeal is that “the trial court erred by

overruling defendant’s objections to testimony from State Trooper Jason Fox, who



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                                  STATE V. DENTON

                                  Opinion of the Court



admittedly was not an expert, that it was his opinion that defendant . . . was driving

the car at the time of the collision.” (Original in all caps.) “[W]hether a lay witness

may testify as to an opinion is reviewed for abuse of discretion.” State v. Washington,

141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000). The trial court abused its

discretion in allowing Trooper Fox to testify, over defendant’s objections, to his

opinion as to who was driving the vehicle. See, e.g., Shaw v. Sylvester, 253 N.C. 176,

179–80, 116 S.E.2d 351, 354–55 (1960).

      North Carolina Rule of Evidence 701 provides that

             [i]f 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 (2017).

                    Opinion evidence is generally inadmissible
             whenever the witness can relate the facts so that the jury
             will have an adequate understanding of them and the jury
             is as well qualified as the witness to draw inferences and
             conclusions from the facts. If either of these conditions is
             absent, the evidence is admissible.
                    Although a lay witness is usually restricted to facts
             within his knowledge, if by reason of opportunities for
             observation he is in a position to judge of the facts more
             accurately than those who have not had such
             opportunities, his testimony will not be excluded on the
             ground that it is a mere expression of opinion.




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                                  STATE V. DENTON

                                  Opinion of the Court



State v. Lindley, 286 N.C. 255, 257–58, 210 S.E.2d 207, 209 (1974) (citations and

quotaiton marks omitted).

      Accident reconstruction analysis requires expert opinion testimony; we can

find no instance of lay accident reconstruction analysis testimony in North Carolina.

See State v. Maready, 205 N.C. App. 1, 17, 695 S.E.2d 771, 782 (2010) (“Accident

reconstruction opinion testimony may only be admitted by experts, who have proven

to the trial court’s satisfaction that they have a superior ability to form conclusions

based upon the evidence gathered from the scene of the accident than does the jury.”).

Accident reconstruction by its very nature requires expert analysis of the information

collected from the scene of the accident and falls under Rule of Evidence 702,

                    Subsection (a)(1) of Rule 702 calls for a quantitative
             rather than qualitative analysis. That is, the requirement
             that expert opinions be supported by sufficient facts or data
             means that the expert considered sufficient data to employ
             the methodology.
                    Consequently, as a general rule, questions relating
             to the bases and sources of an expert’s opinion affect only
             the weight to be assigned that opinion rather than its
             admissibility. In other words, this Court does not examine
             whether the facts obtained by the witness are themselves
             reliable-whether the facts used are qualitatively reliable is
             a question of the weight to be given the opinion by the
             factfinder, not the admissibility of the opinion.
                    Additionally, experts may rely on data and other
             information supplied by third parties even if the data were
             prepared for litigation by an interested party. Unless the
             expert’s opinion is too speculative, it should not be rejected
             as unreliable merely because the expert relied on the
             reports of others. An expert may rely on deposition
             statements made by other witnesses in developing the


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                                  STATE V. DENTON

                                  Opinion of the Court



             factual basis of his opinion.

Pope v. Bridge Broom, Inc., 240 N.C. App. 365, 374, 770 S.E.2d 702, 710 (2015)

(citations, quotation marks, ellipses, and brackets omitted).

      Trooper Fox was not a witness to the accident; he assisted in collecting the

measurements and information regarding the scene used by the accident

reconstruction expert, Trooper Souther, to try to determine who was driving the car.

Although he had three theories of who was driving the vehicle, Trooper Souther

admitted he did not have the necessary information to come to an expert opinion to a

sufficient degree of certainty and he could not identify the driver of the car. Trooper

Fox was basing his lay opinion upon the very same information used by Trooper

Souther, but without the benefit of expert analysis.

      This case is similar to Shaw in that the facts about the accident and

measurements available were simply not sufficient to support an expert opinion —

as Trooper Souther testified — and lay opinion testimony on this issue is not

admissible under Rule 701. See Shaw v. Sylvester, 253 N.C. 176, 179–80, 116 S.E.2d

351, 354–55 (1960). As explained in Shaw,

                   The known facts in this case leave too many
             unknowns and imponderables to permit anyone to say with
             any degree of certainty who was the driver. This case
             furnishes a good illustration why courts look with disfavor
             upon attempts to reconstruct traffic accidents by means of
             expert testimony, owing to the impossibility of establishing
             with certainty the many factors that must be taken into
             consideration.


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                                   STATE V. DENTON

                                   Opinion of the Court



                    As a general rule, a witness must confine his
             evidence to the facts. . . . The jury is just as well qualified
             as the witnesses to determine what inferences the facts will
             permit or require.
                    The qualified expert, the nonobserver, may give an
             opinion in answer to a proper hypothetical question in
             matters involving science, art, skill and the like. The
             plaintiff contends Sgt. Etherage placed himself in this
             expert category by having investigated more than 400
             wrecks. There is no evidence that wrecks follow any set or
             fixed pattern. An automobile, like any other moving object,
             follows the laws of physics; but which door came open first
             during the movement would depend upon the amount and
             direction of the physical forces applied, and the place of
             their application. There was no evidence the witness ever
             investigated an accident when both doors were open and
             both occupants thrown out. In this case neither the
             nonobserver nor the jury could tell who was the driver.
                    The ruling of the trial court that Sgt. Etherage was
             not qualified to testify that Becker was thrown through the
             left door and, therefore, was the driver is in accordance
             with our decisions. The evidence at the trial was
             insufficient to raise a jury question.

Id. at 179–80, 116 S.E.2d at 354–55 (citations and quotation marks omitted); see also

Maready, 205 N.C. App. at 17, 695 S.E.2d at 782 (“We hold that the admission of the

officers’ opinion testimony concerning their purported accident reconstruction

conclusions was error.    Accident reconstruction opinion testimony may only be

admitted by experts, who have proven to the trial court’s satisfaction that they have

a superior ability to form conclusions based upon the evidence gathered from the

scene of the accident than does the jury.”); State v. Wells, 52 N.C. App. 311, 314, 278

S.E.2d 527, 529 (1981) (“Our State Supreme Court has held in several cases that



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                                   STATE V. DENTON

                                   Opinion of the Court



while it is competent for an investigating officer to testify as to the condition and

position of the vehicles and other physical facts observed by him at the scene of an

accident, his testimony as to his conclusions from those facts is incompetent. A case

almost directly on point is Cheek v. Barnwell Warehouse and Brokerage Co., 209 N.C.

569, 183 S.E. 729 (1936). In that case the Supreme Court upheld the trial court’s

exclusion of opinion testimony by a nonexpert witness as to where a collision occurred

based upon his examination of the scene sometime after the accident on the ground

that its admission would invade the province of the jury. In the present case, the

most crucial question for the jury on the manslaughter charge was whether defendant

caused the collision which resulted in decedent’s death by crossing the center line into

decedent’s lane of travel. By testifying that his investigation revealed the point of

impact between the two cars to be in decedent’s lane of travel, Trooper Parks stated

an opinion or conclusion which invaded the province of the jury.” (citations omitted)).

      The State’s brief addresses the general law on opinion testimony and cites to

only State v. Ray, 149 N.C. App. 137, 560 S.E.2d 211 (2002), aff’d per curiam, 356

N.C. 665, 576 S.E.2d 327 (2003), and an unpublished case to support its argument on

appeal. An unpublished opinion “does not constitute controlling legal authority[,]”

and we need not address it because other cases do address the issues presented here.

N.C.R. App. P. 30(e)(3). Ray does not support the State’s argument, since there was

expert testimony to the same opinion as presented by the lay witness, and the court



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                                  STATE V. DENTON

                                  Opinion of the Court



assumed that “[e]ven if inclusion of [the lay opinion testimony] was erroneous” it was

harmless based upon the expert testimony. 149 N.C. App. at 145, 560 S.E.2d at 217.

In Ray, defendant argued

             the trial court erred in overruling his objection to Detective
             Hendricks’ opinion testimony that the lacerations on
             Harrington’s hand were not consistent with a traffic
             accident, because Detective Hendricks was not qualified as
             a medical expert under Rule 702 of the North Carolina
             Rules of Evidence. The State, however, did not tender
             Detective Hendricks as an expert witness. Detective
             Hendricks offered a lay witness opinion based on his
             personal observations at the scene and his investigative
             training background as a police officer. See N.C. Gen. Stat.
             § 8C-1, Rule 701 (1999) (lay witness may testify as 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). Even if inclusion of Detective Hendricks’
             opinion testimony was erroneous, it would be harmless
             error in light of Dr. Butts’ expert testimony that the
             lacerations on Harrington's hand were consistent with
             defensive wounds and could have been caused by the utility
             knife. Thus, the trial court properly overruled defendant's
             objection to Detective Hendricks’ testimony.

Id.

      The circumstances of this case are basically the opposite of Ray because in Ray

the expert opinion confirmed the testimony of the lay witness, rendering any

potential error harmless; here, the expert was unable to form an opinion. See id. For

the same reason, we cannot agree with the State’s contention that Trooper Fox’s

testimony was harmless. Trooper Souther was the expert in accident reconstruction



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                                   STATE V. DENTON

                                   Opinion of the Court



and while he believed that his theory which placed defendant as the driver made the

“most sense[,]” he admitted this case was very challenging and he simply did not

have sufficient information regarding the many variables involved to come to a

conclusive determination.

      Trooper Fox was in no better position than the jury to consider the evidence

the State directs us to indicating defendant was the driver, including witness

testimony that the car was owned by defendant’s mother and only defendant drove

that vehicle, the location of Ms. Mitchell’s hair in the glass, and the position of the

driver’s seat. See Wells, 52 N.C. App. at 314, 278 S.E.2d at 529. The State’s expert

accident reconstruction analyst could not testify to a reasonable degree of certainty

as to an opinion of who was driving. The only issue in serious contention at trial was

who was driving the car; if Ms. Mitchell was driving, defendant could not be guilty.

If defendant was driving, the evidence regarding speeding, reckless driving, alcohol

consumption, defendant’s high blood alcohol level, and evidence of other impairing

substances in his blood at the time of the accident would essentially guarantee a

guilty verdict. In this context, Trooper Fox’s opinion testimony was not harmless.

Therefore, defendant must receive a new trial. We also note that the State filed a

motion for appropriate relief or alternatively a petition for a writ of certiorari asking

us to review defendant’s sentence, but because we are granting defendant a new trial,

we need not address this issue.



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                          STATE V. DENTON

                          Opinion of the Court



                          III.   Conclusion

We conclude defendant must receive a new trial.

NEW TRIAL.

Judges INMAN and ZACHARY concur.




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