              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-949

                                Filed: 19 April 2016

Macon County, No. 13CRS051142

STATE OF NORTH CAROLINA

             v.

BURL RAVON TORRENCE, Defendant.


      Appeal by defendant from Judgment entered 4 February 2015 by Judge Alan

Z. Thornburg in Macon County Superior Court. Heard in the Court of Appeals 10

February 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill,
      for the State.

      Richard J. Costanza for defendant.


      ELMORE, Judge.


      Burl Ravon Torrence (defendant) was found guilty of driving while impaired

under N.C. Gen. Stat. § 20-138.1. On appeal, defendant argues that the trial court

erred in admitting lay opinion testimony on the results of the Horizontal Gaze

Nystagmus (HGN) test. After careful review, and consistent with our opinion in State

v. Godwin, ___ N.C. App. ___, ___ S.E.2d ___ (Apr. 19, 2016) (No. COA15-766), we

agree and conclude defendant is entitled to a new trial.

                                  I. Background
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                                   Opinion of the Court



      The State’s evidence tended to show the following: Deputy Jonathan Phillips

with the Macon County Sheriff’s Office was working as part of the traffic safety unit

on the morning of 4 August 2013. He was on patrol around 1:00 a.m. on Route 64, or

Highlands Road, when he observed a silver car, driven by defendant, in front of him.

Phillips testified that defendant was driving around twenty miles per hour, and the

speed limit was fifty miles per hour. He stated that he observed defendant “slow

down to 20” and then “speed back up” approximately three times. Phillips “also

observed him weaving within his lane, the white line to the yellow line, never

breaking those lines but just weaving within the lane.”

      After following defendant for a few miles, Phillips initiated a stop when

defendant began to exit off Route 64, then “all of a sudden made an abrupt lane

change,” and drove back onto Route 64. When defendant lowered the car window

Phillips noticed a strong odor of alcohol, which prompted him to ask defendant to step

out of the vehicle. Phillips stated that he detected a strong odor of alcohol coming

from defendant’s breath, defendant’s eyes were red and glassy, defendant “had a little

bit of trouble getting out of the vehicle[,]” and defendant’s speech was slow. As a

result, Phillips offered defendant two portable breath tests and conducted several

field sobriety tests, including the HGN test, the vertical gaze nystagmus test, the

“one-leg stand test,” the “walk-and-turn test,” and the “finger-to-nose test.”

      Afterward, Phillips placed defendant under arrest for driving while impaired



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and transported him to the Macon County Detention Center to test his breath for

alcohol using the Intox EC/IR II device. Phillips administered the test three times

but was unable to obtain a breath sample. Phillips indicated that defendant refused

the test and presented defendant to a magistrate.

      On 16 April 2014, defendant pleaded guilty to driving while impaired under

N.C. Gen. Stat. § 20-138.1 in Macon County District Court. The Honorable Donna F.

Forga suspended defendant’s sentence of sixty days imprisonment and ordered twelve

months unsupervised probation. Defendant appealed to Macon County Superior

Court for a trial by jury where he was found guilty of driving while impaired on 4

February 2015. The Honorable Alan Z. Thornburg suspended defendant’s sentence

of sixty days imprisonment and ordered twelve months supervised probation.

Defendant appeals.

                                    II. Analysis

      Defendant argues that the trial court erred in admitting Phillips’s testimony

on the issue of impairment relating to the results of the HGN test, and in accepting

the State’s argument that Phillips was simply reporting his observations, not giving

expert testimony. Defendant claims that the trial court erred in failing to evaluate

the admissibility of the testimony under Rule 702.

      Where the appellant “contends the trial court’s decision is based on an incorrect

reading and interpretation of the rule governing admissibility of expert testimony,



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                                   Opinion of the Court



the standard of review on appeal is de novo.” Cornett v. Watauga Surgical Grp., 194

N.C. App. 490, 493, 669 S.E.2d 805, 807 (2008) (citing Smith v. Serro, 185 N.C. App.

524, 527, 648 S.E.2d 566, 568 (2007); FormyDuval v. Bunn, 138 N.C. App. 381, 385,

530 S.E.2d 96, 99 (2000)).

A. Testimony on the HGN Test Results
      Expert witness testimony is governed by Rule 702, which provides,
             (a) 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, or otherwise, if all
             of the following apply:

                    (1) The testimony is based upon sufficient facts or
                    data.
                    (2) The testimony is the product of reliable principles
                    and methods.
                    (3) The witness has applied the principles and
                    methods reliably to the facts of the case.

             (a1) A witness, qualified under subsection (a) of this section
             and with proper foundation, may give expert testimony
             solely on the issue of impairment and not on the issue of
             specific alcohol concentration level relating to the
             following:

                    (1) The results of a Horizontal Gaze Nystagmus
                    (HGN) Test when the test is administered by a
                    person who has successfully completed training in
                    HGN.

N.C. Gen. Stat. § 8C-1, Rule 702 (2015).
      Accordingly, if an officer is going to testify on the issue of impairment relating

to the results of an HGN test, the officer must be qualified as an expert witness under

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Rule 702(a) and establish proper foundation. Id.; see State v. Godwin, ___ N.C. App.

___, ___ S.E.2d ___ (Apr. 19, 2016) (No. COA15-766) (“Our application of Rule 702(a1)

to the facts of this case leads us to conclude that the trial court erred in allowing a

witness who had not been qualified as an expert under Rule 702(a) to testify as to the

issue of impairment based on the HGN test results.”). Moreover, the officer may not

testify to a specific alcohol concentration level relating to the results of an HGN test.

N.C. Gen. Stat. § 8C-1, Rule 702(a1).

       On appeal, the State argues that although Phillips was not tendered as an

expert witness, he was qualified to give expert testimony on the HGN test because he

“provided substantial evidence of his training, knowledge and skill[.]”           At trial,

however, the State specifically argued that Phillips was not being offered as an expert

witness and that he was “just showing what he saw regarding the test and that’s it.”

       Phillips testified to the meaning of nystagmus, resting nystagmus, lack of

smooth pursuit, distinct and sustained nystagmus at maximum deviation, and onset

of nystagmus prior to forty-five degrees. Over objection Phillips stated that defendant

did not present resting nystagmus, which indicated that defendant did not have a

head injury. Phillips also testified, over objection, “if four or more clues exist that it’s

a 77 percent chance that they are at a .10 or higher blood alcohol level.” He explained

that a person may exhibit six clues during the HGN test and that defendant

presented with all six clues, as follows:



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                     Opinion of the Court



Q. Let’s talk about the lack of smooth pursuit in the left
eye. Did you see a lack of smooth pursuit in the left eye?

A. Yes.

Q. And how about the right eye?

A. Yes.

Q. And describe that you saw a lack of smooth pursuit in
the defendant’s left and right eye.

A. As the eye moves horizontally towards the side of his
face, I saw that bouncing motion where his—the pupil
would bounce instead of just like it was moving smooth. It
would bounce as it heads to the side.

Q. Now the distinct and sustained nystagmus at maximum
deviation. Again, what does maximum deviation mean?

A. Maximum deviation is where the pupil is at the corner
of the eye without any white showing.

Q. So when you saw the defendant perform this standard
field sobriety test, the distinct and sustained nystagmus at
maximum deviation, describe his left and right eye?

A. When it was in the corner—

MS. LEPRE: Your Honor, I’m going to renew my objection
simply because State v. Helms has said that the result of
this test is scientifically founded and it does refer then to
Rule 702 due to this. And so they are presenting scientific
evidence even though he has training in it, there still needs
to be a scientific foundation. I have State v. Helms here if
Your Honor would like to see it.

THE COURT: Mr. Hess?

MR. HESS: Again, we’re not asking him to state like the


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             results of the test were. [sic] It’s just a standard field
             sobriety test that he’s received training in. So he can
             testify to what he observed.

             THE COURT: Overruled.
             ....

             A. Both eyes it [sic] was in the corner and it was bouncing
             there.

             Q. And then what was referred to as the onset of nystagmus
             prior to 45 degrees, what if anything did you notice in the
             left and right?

             A. In both eyes I observed nystagmus prior to 45 degree
             [sic] angle.

      As a lay witness, Phillips effectively informed the jury that, based on the

results of the HGN test, there was more than a 77% chance that defendant’s blood

alcohol level was .10 or higher. Phillips’s testimony violated Rule 702(a1) because he

testified on the issue of impairment relating to the results of the HGN test without

first being qualified under subsection (a), and because he testified on the issue of

specific alcohol concentration level relating to the results of the HGN test. N.C. Gen.

Stat. § 8C-1, Rule 702(a1). For the reasons discussed below, the error was prejudicial.

B. Prejudicial Error

      Because defendant objected to Phillips’s testimony at trial, we analyze whether

the error was prejudicial under N.C. Gen. Stat. § 15A-1443(a). Defendant has the

burden of showing that “there is a reasonable possibility that, had the error in

question not been committed, a different result would have been reached at the trial


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out of which the appeal arises.” N.C. Gen. Stat. § 15A-1443(a) (2015).

      In State v. Helms, 348 N.C. 578, 583, 504 S.E.2d 293, 296 (1998), our Supreme

Court concluded that the admission of testimony regarding the results of an HGN

test administered to the defendant constituted prejudicial error. In reversing this

Court’s holding that such error was harmless, the Supreme Court explained,

             The evidence presented at trial was clearly sufficient to
             send the case to the jury and to support a jury finding of
             guilty of driving while impaired. However, that is not the
             question before us. The question is not one of sufficiency of
             the evidence to support the jury verdict. In order to
             establish prejudicial error in the erroneous admission of
             the HGN evidence, defendant must show only that had the
             error in question not been committed, a reasonable
             possibility exists that a different result would have been
             reached at trial. N.C.G.S. § 15A-1443(a) (1997). We
             conclude that, in light of the heightened credence juries
             tend to give scientific evidence, there is a reasonable
             possibility that had evidence of the HGN test results not
             been erroneously admitted a different outcome would have
             been reached at trial.

Id.

      Here, the State points to the following additional evidence to support its

argument that any error was harmless: (1) Defendant was driving thirty miles per

hour below the speed limit; (2) he was weaving within his lane of travel and made a

suspiciously wide left-hand turn into a shopping center after an abrupt lane change;

(3) a strong odor of alcohol emanated from his person; (4) he was unsteady on his feet;

(5) his speech was slow; (6) his eyes were red and glassy; (7) he performed poorly on



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the “walk-and-turn test” and the “finger-to-nose test;” (8) the jury watched the video

of defendant’s driving and sobriety testing; (9) the jury could use the evidence of

defendant’s refusal with the Intoxilyzer test as evidence of impairment; and (10) the

jury deliberated for only forty-two minutes.

      Defendant, on the other hand, argues that the State’s other evidence did not

overwhelming establish defendant’s guilt and does not prevent him from meeting his

burden of showing prejudice under N.C. Gen. Stat. § 15A-1443(a). Defendant shows

the following: (1) The jury heard conflicting evidence about defendant’s driving with

some testimony showing he was lost; (2) he maintained travel in his own lane and

never weaved between different lanes; (3) he promptly pulled over in response to the

patrol car’s lights; (4) he informed Phillips that he had a medical condition—

sciatica—which prevented him from performing some physical dexterity tests, such

as the “walk-and-turn test” and the “one-leg stand test;” (5) he walked with a slight

limp; and (6) the State failed to obtain a sample of his breath or blood for alcohol

concentration testing.

      Based on the foregoing and “in light of the heightened credence juries tend to

give scientific evidence, there is a reasonable possibility that had evidence of the HGN

test results not been erroneously admitted a different outcome would have been

reached at trial.” Helms, 348 N.C. at 583, 504 S.E.2d at 296.

                                   III. Conclusion



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                                   Opinion of the Court



      The trial court erred in admitting Phillips’s testimony on the issue of

impairment relating to the results of the HGN test without first determining if he

was qualified to give expert testimony. The trial court also erred in admitting

Phillips’s testimony on the specific alcohol concentration level relating to the results

of the HGN test. Defendant is entitled to a new trial.

      NEW TRIAL.

      Judges STROUD and DIETZ concur.




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