              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-766

                                Filed: 19 April 2016

Mecklenburg County, No. 11 CRS 202887

STATE OF NORTH CAROLINA

             v.

WILLIAM EDWARD GODWIN, III, Defendant.


      Appeal by defendant from judgment entered 15 November 2013 by Judge Gary

M. Gavenus in Mecklenburg County Superior Court. Heard in the Court of Appeals

27 January 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Teresa L.
      Townsend, for the State.

      Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse Jr., for defendant.


      ELMORE, Judge.


      William Edward Godwin, III (defendant), appeals his conviction for driving

while impaired following a jury trial in superior court. The question for decision is

whether Rule 702(a1) of the North Carolina Rules of Evidence requires a witness to

be qualified as an expert before he may testify to the issue of impairment related to

HGN test results. We hold that it does.

                                  I. Background
                                   STATE V. GODWIN

                                   Opinion of the Court



        The State’s evidence at trial tended to show the following: On 18 January 2011,

at approximately 10:14 p.m., Daniel Kennerly, an officer with the Charlotte

Mecklenburg Police Department, observed defendant driving fourteen miles per hour

over the posted speed limit and executed a traffic stop. When he approached the

vehicle, Officer Kennerly noticed that defendant’s eyes were red and glassy, and he

detected a strong odor of alcohol coming from defendant’s breath. Officer Kennerly

asked defendant where he was coming from and how much alcohol, if any, he had

consumed that evening.       In response, defendant stated that he had just left a

restaurant where he had consumed three beers.             Officer Kennerly then asked

defendant to step out of his vehicle and began an investigation for impaired driving.

        As part of his investigation, Officer Kennerly administered three field sobriety

tests: the Horizontal Gaze Nystagmus (HGN) test, the walk-and-turn, and the one-

leg stand. He observed four out of six possible indicators of impairment during the

HGN test, six out of eight possible indicators during the walk-and-turn, and two out

of four possible indicators during the one-leg stand. At that time, Officer Kennerly

placed defendant under arrest for driving while impaired and transported him to the

Mecklenburg County Sheriff’s Office’s Intoximeter site to perform a EC/IR II breath

test.    The results of the Intoximeter showed that defendant’s blood-alcohol

concentration was .08.




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                                  Opinion of the Court



      On 20 December 2011, defendant was convicted in Mecklenburg County

District Court of driving while impaired. He appealed to superior court, and the

matter came to trial at the 12 November 2013 Criminal Session of the Superior Court

for Mecklenburg County. At trial, defendant objected to Officer Kennerly’s HGN

testimony, arguing that the officer had to be qualified as an expert under Rule 702 of

the North Carolina Rules of Evidence before such testimony could be admitted. Over

defendant’s objections, the trial court allowed Officer Kennerly to testify, based on

his training and experience, as to his administration of the HGN test, the indicators

of impairment, and his opinion regarding defendant’s impairment based on the

indicators which he observed. At the conclusion of the trial, the jury found defendant

guilty of driving while impaired. Defendant gave notice of appeal in open court.

                                   II. Discussion

      Defendant first argues that the trial court erred in admitting Officer

Kennerly’s testimony regarding the HGN test results.          Specifically, defendant

maintains that Rule 702(a1) requires a party offering testimony about the results of

an HGN test to do so through a properly qualified witness who has been accepted as

an expert by the trial court. Defendant contends, therefore, that in overruling his

objection and allowing Officer Kennerly to offer such testimony as a lay witness, the

trial court acted under a misapprehension of the law.




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                                  Opinion of the Court



      “Issues of statutory construction are questions of law, reviewed de novo on

appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010) (citing

Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 264, 664 S.E.2d 569, 575 (2008)).

“ ‘Under a de novo review, the court considers the matter anew and freely substitutes

its own judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628,

632–33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P’ship,

356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

      The North Carolina Supreme Court first addressed the admissibility of HGN

evidence in State v. Helms, 348 N.C. 578, 580, 504 S.E.2d 293, 294 (1998). On

discretionary review, the Court agreed with our conclusion that “the HGN test does

not measure behavior a lay person would commonly associate with intoxication, but

rather represents specialized knowledge that must be presented to the jury by a

qualified expert.” Id. at 581, 504 S.E.2d at 295 (emphasis added); see also State v.

Helms, 127 N.C. App. 375, 379, 490 S.E.2d 565, 568 (1997) (“[The HGN test] is based

upon a scientific principle that the extent and manner in which one’s eye quivers can

be a reliable measure of the amount of alcohol one has consumed.” (citation omitted)),

rev’d on other grounds, 348 N.C. 578, 504 S.E.2d 293. This meant that under the

prior version of Rule 702, the State had to show, inter alia, that the methodology

underlying the test was “sufficiently reliable,” State v. Pennington, 327 N.C. 89, 98,

393 S.E.2d 847, 852 (1990) (citations omitted), and that it “can be properly applied to



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                                  Opinion of the Court



the facts in issue,” State v. Goode, 341 N.C. 513, 527, 461 S.E.2d 631, 639 (1995)

(citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469

(1993)).   Where no evidence was admitted, and no inquiry conducted, as to the

reliability of HGN testing, the Court held that it was error to admit an officer’s

testimony regarding the results of the HGN test administered on the defendant.

Helms, 348 N.C. at 582, 504 S.E.2d at 295.

      After Helms was decided, the North Carolina General Assembly passed House

Bill 1048, which added subsection (a1) to Rule 702. 2006 Sess. Laws ch. 253, § 6.

Rule 702(a1) provides, in pertinent part, as follows:

             (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(a1) (2015). The first sentence of this subsection

contemplates that testimonial evidence concerning HGN test results be offered by an

expert witness. Although the prior version of Rule 702(a) was still in effect when

subsection (a1) was added, the bases on which a witness may be qualified as an expert

are the same under the current version. Rule 702(a), as amended, provides as follows:

             (a) If scientific, technical or other specialized knowledge
             will assist the trier of fact to understand the evidence or to


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                                   Opinion of the Court



             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.

N.C. Gen. Stat. § 8C-1, Rule 702(a) (2015) (emphasis added); cf. N.C. Gen. Stat. § 8C-

1, Rule 702(a) (2009) (“[A] witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of an opinion.”).

      In accordance with Helms, therefore, Rule 702(a1) requires that before a

witness can testify as to the results of an HGN test, he must be “qualified as an expert

by knowledge, skill, experience, training, or education.” See Helms, 348 N.C. at 580–

81, 504 S.E.2d at 294–95. If the witness is so qualified and “proper foundation” is

established, the witness may “give expert testimony” as to the HGN test results,

subject to the additional limitations in subsection (a1). N.C. Gen. Stat. § 8C-1, Rule

702(a1) (emphasis added). Namely, the expert witness may testify “solely on the issue

of impairment and not on the issue of specific alcohol concentration,” and the HGN

test must have been “administered by a person who has successfully completed

training in HGN.” Id. (emphasis added).




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                                   STATE V. GODWIN

                                   Opinion of the Court



      In the case sub judice, although Officer Kennerly completed a training course

in DWI detection and standardized field sobriety tests, there was never a formal offer

by the State to tender him as an expert witness. In fact, after conducting its own voir

dire, the trial court rejected defendant’s contention that Officer Kennerly must be

qualified as an expert before testifying as to the results of the HGN test:

             THE COURT: I will allow this officer to testify that he
             administered the HGN test, the walk-and-turn test, and
             the one-legged test. He will be allowed to testify as to the
             indicators of impairment he observed of this defendant in
             giving these tests. Anything else?

             MR. POWERS: I’d ask the Court to note my exception. Is
             the Court disqualifying him as an expert on the HGN?

             THE COURT: I’m not—he doesn’t have to be qualified as
             an expert. I’m not going to make that requirement.

Thereafter, over defendant’s objection, Officer Kennerly testified that he “observed

four out of six” possible clues during the HGN test, which “indicates a probability that

the person could be impaired as a result of the consumption of alcohol.” Furthermore,

based on his interactions with defendant and defendant’s performance on all of the

field sobriety tests, including the HGN test, Officer Kennerly opined that defendant’s

“mental and physical faculties were appreciably impaired as a result of the

consumption of some impairing substance, that substance in this case being alcohol.”

Our application of Rule 702(a1) to the facts of this case leads us to conclude that the




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                                   Opinion of the Court



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.

      The State, relying on our decision in State v. Smart, 195 N.C. App. 752, 674

S.E.2d 684 (2009), disc. review denied, 363 N.C. 810, 692 S.E.2d 874 (2010),

nevertheless argues for an interpretation of Rule 702(a1) that would not require an

arresting officer who administered the HGN test to be qualified as an expert before

testifying as to the HGN test results and the issue of impairment related thereto.

Unlike this case, however, the arresting officer in Smart was qualified as an expert

under Rule 702 before she testified as to her administration of the test. Id. at 755–

56, 674 S.E.2d at 685–86. And although the defendant’s argument, as it was initially

phrased, attacked the officer’s qualifications as an expert witness, the defendant’s

actual challenge went toward the testimony itself: “[The defendant] in fact specifies

that his argument pertains to whether the officer’s ‘method of proof’—that is, the

nystagmus testing—is sufficiently reliable as a basis for expert testimony.” Id. at

755, 674 S.E.2d at 685; see also Goode, 341 N.C. at 529, 461 S.E.2d at 640 (“Once the

trial court has determined that the method of proof is sufficiently reliable as an area

for expert testimony, the next level of inquiry is whether the witness . . . is qualified

as an expert to apply this method to the specific facts of the case.” (citing N.C. Gen.

Stat. § 8C-1, Rule 702 (1992)). Addressing this argument, we explained that, at least

under the prior version of Rule 702(a), before admitting expert opinion testimony the



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                                   STATE V. GODWIN

                                   Opinion of the Court



trial court had to make “a preliminary assessment of whether the reasoning or

methodology underlying the testimony is sufficiently valid.” Id. at 756, 674 S.E.2d at

686 (quoting Goode, 341 N.C. at 527, 461 S.E.2d at 639); see also N.C. Gen. Stat. § 8C-

1, Rule 104(a) (2015) (“Preliminary questions concerning the qualification of a person

to be a witness . . . or the admissibility of evidence shall be determined by the court,

subject to the provisions of subdivision (b).”). At that time, we interpreted subsection

(a1) “as obviating the need for the State to prove that the HGN testing method is

sufficiently reliable.” Id. Our holding in Smart went no further, and it has no

application here.   While some may even question whether Smart survives the

amendment to Rule 702(a), that issue is not the one presently before us.

      Having concluded that the trial court erred in admitting Officer Kennerly’s

testimony, we must now determine whether the error was prejudicial so as to warrant

a new trial. “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.” Helms, 348 N.C. at 583, 504 S.E.2d at 296 (citing N.C. Gen. Stat. §

15A-1443(a) (1997)).

      The remaining evidence presented at trial shows the following: (1) Officer

Kennerly stopped defendant for speeding; (2) when Officer Kennerly initiated the

stop, defendant activated his turn signal, pulled onto the next side street, and came



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                                   Opinion of the Court



to a stop at roadside in a safe location; (3) defendant was not weaving, and he made

no sharp or sudden turns to avoid the traffic stop; (4) two experts testified that they

would have expected to see some indicators of impairment which defendant did not

exhibit while operating the vehicle; (5) defendant had no problem retrieving his

license or registration; (6) defendant did not tilt his head away from Officer Kennerly

or otherwise try to avoid contact with him; (7) Officer Kennerly noticed that

defendant’s eyes were red and glassy, and he smelled a “strong odor of an alcoholic

beverage coming from his breath”; (8) one expert testified that “the odor of alcohol is

simply an indicator of presence of alcohol” and that there is “no basis for an opinion

that correlates the strength of an odor to . . . blood alcohol concentration in the body”;

(9) defendant told Officer Kennerly that he had just left a restaurant where he had

consumed three beers that evening; (10) when asked to step out of the vehicle,

defendant removed his seatbelt without difficulty, he did not use the doorframe or

the vehicle for support while exiting, and he did not stagger or sway once he was out

of the vehicle; (11) Officer Kennerly observed six out of eight possible clues during

the walk-and-turn test, and two out of four possible clues on the one-leg stand test;

(12) defendant repeatedly told Officer Kennerly that he had to use the restroom, and

two experts agreed that defendant’s need to urinate could have adversely affected his

performance on the tests; (13) one of the experts, who reviewed the video from Officer

Kennerly’s dash camera, testified that Officer Kennerly should not have counted



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                                    Opinion of the Court



three of the six clues he observed during the walk-and-turn test; that the steep grade

of the road where defendant performed the one-leg stand could have adversely

affected defendant’s performance on the test; and that the presence of traffic on the

narrow road where the tests were administered, along with the cold weather that

evening, could also have affected defendant’s performance on the tests; (14) Helen

Godwin, defendant’s mother, testified that when she saw defendant at the police

station, his eyes were not red or glassy, he did not smell of alcohol, his speech was

normal, and she did not believe he was impaired; (15) after being placed under arrest

and transported to the Intoximeter site, defendant registered a .08 on the

Intoximeter. Based on the foregoing, particularly the conflicting evidence regarding

defendant’s performance on the other field sobriety tests, we conclude a reasonable

possibility exists that, had the HGN test results not been admitted, a different result

would have been reached at trial.

B. Jury Instructions

      Defendant also contends that trial court erred in denying his request for the

following jury instruction concerning the results of the Intoximeter:

             A chemical analysis of defendant’s breath obtained from an
             EC/IR-II, which shows an alcohol concentration of 0.08 or
             more grams of alcohol per 210 liters of breath, is deemed
             sufficient to prove defendant’s alcohol concentration.
             However, such chemical analysis does not compel you to so
             find beyond a reasonable doubt. You are still at liberty to
             consider the credibility and/or to give such chemical
             analysis when considering whether the defendant’s guilt


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                                  Opinion of the Court



             has been proven beyond a reasonable doubt.

According to defendant, the requested instruction was necessary to inform the jury

that the Intoximeter results were sufficient to support a finding of impaired driving

but did not compel such a finding beyond a reasonable doubt. By charging the jury

using Pattern Jury Instruction 270.20A, defendant claims the trial court impressed

upon the jury that it could not consider evidence which showed that defendant was

not impaired.

      “When a defendant requests a special jury instruction, ‘the trial court is not

required to give [the] requested instruction in the exact language of the request.

However, when the request is correct in law and supported by the evidence in the

case, the court must give the instruction in substance.’ ” State v. Beck, 233 N.C. App.

168, 171, 756 S.E.2d 80, 82 (alteration in original) (quoting State v. Monk, 291 N.C.

37, 54, 229 S.E.2d 163, 174 (1976)), writ of supersedeas denied, disc. review denied,

367 N.C. 508, 759 S.E.2d 94 (2014). To establish error, therefore, the defendant “must

show that the requested instructions were not given in substance and that

substantial evidence supported the omitted instructions.” State v. Garvick, 98 N.C.

App. 556, 568, 392 S.E.2d 115, 122 (citing State v. White, 77 N.C. App. 45, 52, 334

S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985)), aff’d per curiam,

327 N.C. 627, 398 S.E.2d 330 (1990). “The defendant also bears the burden of showing

that the jury was misled or misinformed by the instructions given.” Beck, 233 N.C.



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                                  Opinion of the Court



App. at 171, 756 S.E.2d at 82 (citing State v. Blizzard, 169 N.C. App. 285, 297, 610

S.E.2d 245, 253 (2005)).

      As defendant acknowledges in his brief, we have previously rejected his

argument concerning Pattern Jury Instruction 270.20A. In Beck, we concluded that

             the trial court’s use of the pattern jury instruction
             [270.20A] informed the jury that in order to return a
             verdict of guilty, it must be convinced beyond a reasonable
             doubt that Defendant’s alcohol concentration was .08 or
             more. This instruction informed the jury, in substance,
             that it was not compelled to return a guilty verdict based
             simply on the chemical analysis results showing a .10
             alcohol concentration.

Beck, 233 N.C. App. at 171–72, 756 S.E.2d at 83. The trial court also “informed the

jury that it possessed the authority to determine the weight of any evidence offered

to show that Defendant was—or was not—impaired.” Id. at 172, 756 S.E.2d at 83

(citations omitted). Despite defendant’s attempt to distinguish Beck from the case

sub judice, we are unable to do so.       Accordingly, we reject defendant’s second

argument. See In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)

(“Where a panel of the Court of Appeals has decided the same issue, albeit in a

different case, a subsequent panel of the same court is bound by that precedent,

unless it has been overturned by a higher court.”).

                                  III. Conclusion

      Although the trial court’s jury instructions were proper, we conclude that the

trial court erred in admitting Officer Kennerly’s testimony regarding the HGN test


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                                 Opinion of the Court



results and the issue of defendant’s impairment related thereto, without requiring

him to be qualified as an expert under Rule 702(a). Based on the remaining evidence

presented at trial, we further conclude a reasonable possibility exists that, had the

error not occurred, the jury would have reached a different result. Defendant is

entitled to a new trial.

      NEW TRIAL.

      Judges STROUD and DIETZ concur.




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