               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA14-1003

                               Filed: 1 September 2015

Buncombe County, Nos. 11 CRS 64670, 64673

STATE OF NORTH CAROLINA

              v.

CHRISTOPHER ADAM TURBYFILL


        Appeal by defendant from judgment entered 6 May 2014 by Judge Jeffrey P.

Hunt in Buncombe County Superior Court. Heard in the Court of Appeals 3 February

2015.


        Attorney General Roy Cooper, by Assistant Attorney General Matthew L. Boyatt,
        for the State.

        Mark Hayes for defendant-appellant.


        BRYANT, Judge.


        The trial court did not abuse its discretion by allowing a witness who

demonstrated specialized knowledge, experience, and training in blood alcohol

physiology, pharmacology, and related research on retrograde extrapolation to be

qualified and testify as an expert. Defendant cannot show plain error where, despite

improper blood alcohol level testimony, there was sufficient independent competent

evidence of defendant’s impairment to support the jury verdict.

        At about 10:15pm on 21 December 2011, Officers Jonathan Collins and Lucas

Lovelace of the Asheville Police Department responded to a single vehicle accident on

a public road where they found twenty year-old defendant Christopher Turbyfill near
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                                 Opinion of the Court



his Ford F-150 truck which had rolled over on its side. Officer Lovelace approached

defendant who was beside his truck crying and appeared to be upset, saying he was

going to lose his job. As he spoke with defendant, Officer Lovelace noticed that

defendant slurred his words, that his eyes were blood shot, that he was unsteady on

his feet and had an odor of alcohol on his breath. Defendant admitted he had been

drinking alcohol—a twenty-four ounce Smirnoff, and had taken prescription drugs

Xanax and Hydrocodone earlier that day. After defendant was checked by medics

and determined not to be injured, Officer Lovelace administered standard field

sobriety tests. Those tests included: horizontal gaze nystagmus [HGN]; walk-and-

turn; and one-legged stand.

      At trial, Officer Lovelace was qualified by the trial court as an expert in

administration of the HGN test. He testified without objection, that he observed six

of six clues of intoxication as to defendant, and that “[m]ost of the time four clues

would show a BAC [blood alcohol concentration] of point one.” Further, Officer

Lovelace elaborated that “[t]he onset of nystagmus prior to forty-five degrees,

anything prior to forty-five degrees is a point one or greater BAC.” Officer Lovelace

also observed six of eight clues of intoxication as defendant took the walk-and-turn

test, and one indicator of intoxication during the one-legged stand test. Based on

defendant’s performance on the tests and other signs of impairment Officer Lovelace

formed the “opinion that the defendant had consumed a sufficient quantity of



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impairing substance that his mental and physical faculties were appreciably

impaired.” Defendant was placed under arrest and asked to perform a breathalyzer

test on which he registered a BAC of .07 less than two hours after the accident.

      Anthony Burnette, a field technician in the Forensic Test of Alcohol Branch of

the North Carolina Department of Health and Human Services was tendered as an

expert witness. Following extensive voir dire, the trial court qualified Burnette as an

expert in blood alcohol physiology, pharmacology, and related research on retrograde

extrapolation. Burnette testified that he used retrograde extrapolation to determine

defendant’s BAC at the time of the vehicle crash. Burnette stated that, using an

alcohol elimination rate of .0165 per hour, in the 1.83 hours between the time

defendant crashed his truck and the time he took the breathalyzer test, defendant’s

body had eliminated .030 grams of alcohol. Accordingly, it was Burnette’s opinion

that defendant’s BAC at the time of the accident was .10.

      Defendant was convicted by a jury of Driving after Consuming Alcohol under

twenty-one years and Driving While Impaired. Defendant was sentenced as a Level

5 DWI offender and given a term of 45 days suspended, placed on probation for 24

months and ordered to serve eleven days active confinement. From this judgment

defendant appeals.

                          ______________________________________




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      On appeal, defendant argues that the trial court erred by (I) allowing Anthony

Burnette to testify as an expert witness and (II) committed plain error by allowing

Officer Lovelace to testify as to defendant’s blood alcohol level.

                                                 I

      Defendant argues that Burnette failed to demonstrate sufficient knowledge of

scientific and mathematical principles to qualify as an expert in blood alcohol

physiology, pharmacology, and related research on retrograde extrapolation, and as

a result the trial court abused its discretion in allowing his expert opinion testimony.

We disagree.

      “We review a trial court's ruling regarding the admission of expert testimony

for abuse of discretion.” Pope v. Bridge Broom, Inc., ___ N.C. App. ___, ___, 770 S.E.2d

702, 707 (2015) (citation omitted). “Abuse of discretion results where the Court’s

ruling is manifestly unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.” State v. Hennis, 323 N.C 279, 285, 372 S.E.2d

523, 527 (1988) (citation omitted). Accordingly, “the trial judge is afforded wide

latitude of discretion when making a determination about the admissibility of expert

testimony.” State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984).

      Rule 702 of the North Carolina General Statutes governs testimony by experts

and states, in pertinent part,

               [i]f scientific, technical or other specialized knowledge will
               assist the trier of fact to understand the evidence or to


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             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) (2013).

      Rule 702 was amended effective 1 October 2011. See 2011 N.C. Sess. Laws 283

§ 1.3. While our Supreme Court has not yet addressed the amendment to Rule 702,

our Court of Appeals has done so and recently noted that “[o]ur Rule 702 was

amended to mirror the Federal Rule 702, which itself ‘ “was amended to conform to

the standard outlined in Daubert [v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113

S.Ct. 2786, 125 L.Ed.2d 469 (1993) ].” ’ ” Pope, ___ N.C. App. ___, ___, 770 S.E.2d 702,

707 (2015) (citing State v. McGrady, ___ N.C. App. ___, ___, 753 S.E.2d 361, 365

(quoting Committee Counsel Bill Patterson, 2011–2012 General Assembly, House

Bill 542: Tort Reform for Citizens and Business 2–3 n. 3 (8 June 2011)), disc. review

allowed, 367 N.C. 505, 758 S.E.2d 864 (2014)).

      Defendant asserts that the amendment to Rule 702 “has increased the scrutiny

that judges must impose on purported experts.” Defendant challenges the reliability



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of Burnette’s testimony and urges this Court to determine that Burnette did not meet

the requirements for qualification as an expert under the more rigorous standard of

Daubert. Defendant would have us find that Burnette was not qualified to testify as

an expert and give opinion testimony on retrograde extrapolation. We disagree with

defendant’s assertions. While reasonable minds might agree that the gatekeeper

function of the trial court in determining whether to allow expert testimony is

perhaps now more clearly defined, it appears that the application of the principles in

amended Rule 702, consistent with Daubert, would not significantly change the trial

court’s analysis.1

       Federal courts traditionally grant “a great deal of discretion” to the trial court

in determining the admissibility of expert testimony under Daubert. McGrady, ___




       1  Prior to the 2011 amendment of Rule 702, our Supreme Court’s guidance on the admissibility
of expert testimony was provided in Howerton v. Arai Helmut, Ltd., 358 N.C. 440, 597 S.E.2d 674
(2004).

               “It is well-established that trial courts must decide preliminary
               questions concerning the qualifications of experts to testify or the
               admissibility of expert testimony.” Howerton v. Arai Helmet, Ltd., 358
               N.C. 440, 458, 597 S.E.2d 674, 686 (2004) (citing N.C.G.S. § 8C–1, Rule
               104(a) (2003)). In Howerton, our Supreme Court set out a three step
               inquiry governing the admissibility of expert testimony:

                       (1) Is the expert's proffered method of proof sufficiently reliable
                       as an area for expert testimony? [State v. Goode, 341 N.C. 513,
                       527–29, 461 S.E.2d 631, 639–40 (1995)]. (2) Is the witness
                       testifying at trial qualified as an expert in that area of
                       testimony? Id. at 529, 461 S.E.2d at 640. (3) Is the expert's
                       testimony relevant? Id. at 529, 461 S.E.2d at 641.

State v. Green, 209 N.C. App. 669, 673, 707 S.E.2d 715, 718 (2011).

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                                   Opinion of the Court



N.C. App. at ___, 753 S.E.2d at 369. “Daubert clearly contemplates the vesting of

significant discretion in the [trial] court with regard to the decision to admit expert

scientific testimony.” Id. (quoting Maryland Cas. Co. v. Therm–O–Disc, Inc., 137 F.3d

780 (4th Cir. 1998)). Therefore, to sustain a successful challenge to a trial court’s

ruling allowing expert testimony, a defendant must show that the trial court’s ruling

was so arbitrary, so lacking in reason as to constitute an abuse of its discretion. See

Hennis, 323 N.C. at 285, 372 S.E.2d at 527.

             Consistent with the application of Federal Rule 702 in
             federal courts, under North Carolina’s amended Rule 702,
             trial courts must conduct a three-part inquiry concerning
             the admissibility of expert testimony:

                    Parsing the language of the Rule, it is evident that a
                    proposed expert’s opinion is admissible, at the
                    discretion of the trial court, if the opinion satisfies
                    three requirements. First, the witness must be
                    qualified by “knowledge, skill, experience, training,
                    or education.” Fed. R. Evid. 702. Second, the
                    testimony must be relevant, meaning that it “will
                    assist the trier of fact to understand the evidence or
                    to determine a fact in issue.” Id. Third, the
                    testimony must be reliable. Id.

Pope, ___ N.C. App. at ___, 770 S.E.2d at 708.

             Rule 702 guides the trial court by providing general
             standards to assess reliability: whether the testimony is
             based upon “sufficient facts or data,” whether the
             testimony is the “product of reliable principles and
             methods,” and whether the expert “has applied the
             principles and methods reliably to the facts of the case.”
             Fed.R.Evid. 702. In addition, Daubert provides a
             nonexclusive checklist for trial courts to consult in


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                                         Opinion of the Court



                evaluating the reliability of expert testimony. The test of
                reliability is “flexible,” and the Daubert factors do not
                constitute a “definitive checklist or test,” but may be
                tailored to the facts of a particular case. Kumho [Tire Co.
                v. Carmichael], 526 U.S. 137, 150, 119 S.Ct. 1167, 1175,
                143 L.Ed.2d 238, 251 (1999).

Id. at ___, 770 S.E.2d at 708.

      In the instant case defendant does not challenge the science of retrograde

extrapolation.      In his brief to this court defendant readily acknowledges “[i]t is

undisputed that, generally speaking, courts accept as scientifically valid the

proposition that unknown blood levels can be extrapolated using known data,” and

that “blood alcohol extrapolation, generally speaking, is a viable scientific field.”

Instead, defendant challenges the reliability of Burnette’s testimony and the results

based thereon, and urges this court to determine that he was not qualified to testify

as an expert and give opinion testimony on retrograde extrapolation.                         Because

defendant does not directly contend on appeal that the requirements of 702(a)(1)2

and (a)(2)3 have not been met, we primarily review defendant’s challenges as they

regard Rule 702(a)(3)—whether “the witness has applied the principles and methods

reliably to the facts of the case.” N.C.G.S. § 8C-1, Rule 702(a)(3). “Although this case

is [one of the few times] our appellate courts have discussed the application of the

Daubert standard adopted by our amended Rule 702, federal courts and other state



      2   “The testimony is based upon sufficient facts or data.” N.C. R. Evid. 702(a)(1).
      3   “The testimony is the product of reliable principles and methods.” N.C. R. Evid. 702(a)(2).

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                                  Opinion of the Court



courts, of course, have been applying the Daubert analysis for more than two

decades.” Pope, ___ N.C. App. at ___, 770 S.E.2d at 709.

      In the instant case, Anthony Burnette was called to testify about retrograde

extrapolation of BAC. Burnette has been employed as a field technician for the North

Carolina Department of Health and Human Services in the “Forensic Test for Alcohol

Branch” since 2005. Prior to that, Burnett had been a police officer and has held a

chemical analyst certification since 1995. Burnett testified that to maintain his

certification as a chemical analyst, he studied the pharmacology of alcohol and how

alcohol is distributed through the body, and he has been recertified every two years.

“Basically I am responsible for training law-enforcement officers and to certify them

to be chemical analysts, and that is to perform the breath test on the Intox EC/IR II.”

Since 2006, Burnett has been an instructor/training officer in standardized field

sobriety covering the pharmacology of alcohol, pharmacokinetics, and the effects of

alcohol on the brain and body. Burnette also uses his training in blood alcohol,

pharmacology, and physiology to train officers in the western part of the state to

correctly perform breathalyzer tests.

      Burnett is a co-author of the pharmacology section of the current chemical

analyst training-manual for law-enforcement officers in North Carolina. Burnett

testified that he had attended approximately ten workshops with Paul Glover, “a

research scientist with our branch with regard to pharmacology of alcohol, retrograde



                                         -9-
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                                  Opinion of the Court



extrapolation.” Burnett testified that he had assisted in over 130 cases involving

blood alcohol, pharmacology, and related research in retrograde extrapolation and

had testified as an expert on retrograde extrapolation twenty-eight times. Based on

those qualifications, the Court accepted Burnette as an expert in blood alcohol

physiology, pharmacology, and related research and allowed him to give his opinion

on retrograde extrapolation.

      On appeal, defendant challenges the reliability of Burnett’s testimony first, on

the basis that Burnett did not know if he could sufficiently answer the question “to

what degree [was] [the theory of blood alcohol level extrapolation] accepted in the

scientific community?” and second, on the basis that Burnett used the term

“midpoint” and “average” interchangeably.

      At trial, Burnette described retrograde extrapolation and its manner of

acceptance in the scientific community as follows:

             A       Retrograde extrapolation is basically where we
                     know that alcohol eliminates from the body in
                     predictable rates, and extrapolation is where we
                     have a test at one point in time.

             ...

             Q       Have there been scientific studies in regard to
                     retrograde extrapolation?

             A       Yes there have.

             . . .



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Q     Is there an accepted rate at which alcohol leaves the
      body?

A     Yes.

Q     What is that rate?

A     .0165 per hour.

Q     And how has science arrived at that being an
      accepted rate?

A     The .0165 per hour originally came from a study that
      Dr. Ellis at the University of North Carolina had
      done years ago is where the .0165 has come from.

Q     And have there been subsequent studies done in
      regards to that elimination rate?

A     Yes. I have a reference list of publications. It’s
      attached to a worksheet that I would have provided
      the DA’s office with that has three and a partial
      pages [sic] of published reports involved in
      elimination rates.

...

Q     And, Mr. Burnette, is that retrograde extrapolation,
      is that a product of reliable principles?

A     Yes.

Q     Has it been tested and shown to be a reliable
      method?

A     Yes.

Q     And when you perform a retrograde extrapolation in
      regards to a defendant, what information do you
      need?


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                                         Opinion of the Court




               A       The time of an early event and then the time of a
                       later event, which would be the time that the test
                       was performed.

               Q       And if you have that information, you have sufficient
                       facts to perform a retrograde extrapolation?

               A       Yes.

               Q       And in the course of this case did you perform a
                       retrograde extrapolation?

               A       Yes, I did.

               Q       And did you use the same method and principles
                       that have been done through those studies?

               A       Yes.

               Q       Did you deviate in any way from those studies?

               A       No.

               Q       Did you use the accepted principle of retrograde
                       extrapolation in regards to this defendant?

               A       Yes.

               Q       And is that what’s reflected on the document that’s
                       been introduced as State’s Exhibit 4?

               A       Yes. [4]


       4  State’s Exhibit 4, the form Burnette provided to the trial court during voir dire showing the
calculation of defendant’s retrograde blood alcohol extrapolation, included a statement of “Principles
and Methods.” In pertinent part, the statement provides the following:
                In looking at drinking drivers[,] we see an average rate for males of
                0.018 BAC per hour, for females it is 0.020 BAC per hour. Chronic
                abusers are at a rate of about 0.03 BAC per hour. When considering



                                                - 12 -
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                                      Opinion of the Court




      Burnette’s testimony confirmed that blood alcohol extrapolation is a

scientifically valid field, which principles have been tested, subjected to peer review

and publication, and undisputedly accepted in the scientific community and in our

courts. This portion of defendant’s challenge is overruled.

      As to defendant’s second challenge to the reliability of Burnette’s testimony,

defendant points to Burnette’s use of the terms midpoint and average as synonymous.

Defendant acknowledges that BAC extrapolation can provide reliable and useful

results, but nevertheless contends that the State’s expert “omitted numerous factors

which any layman would recognize as critical to a credible conclusion” and

“demonstrated a gross misunderstanding of basic science and math.” Defendant

cross-examined Burnette on this concern.

             Q       The [alcohol elimination] rate you used, you used a
                     couple of different terms to talk about that rate. You
                     used “average” and “mid-point,” and I guess I’d like
                     to understand is there a distinction there?

             A       I think they’re synonymous.



             individuals with little or no experience with alcohol we see a rate of
             about 0.015 per hour. Because it’s been accepted by the North Carolina
             Court of Appeals as a reasonable rate, we use 0.0165 BAC per hour for
             everyone if we’ve not been able to calculate their actual rate. . . . By
             determining the elapsed time between the end of driving and the
             alcohol test and then multiplying that times the rate of elimination we
             can calculate the amount that the BAC decreased since the end of
             driving. By adding that value to the reported value we can calculate
             the BAC at the end of driving. The [thirty-nine] references that support
             these principles and methods are attached.


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...

Q     I’m doing an average the way I learned to do an
      average in sixth grade: add two numbers together
      and divide; correct?

A     Yes.

Q     And so even in that limited context an average is
      something different than a mid-point; correct?

A     In that context, yes.

Q     So in your scientific analysis here is there something
      different that’s happening that makes a mid-point
      and an average the same?

A     Yeah, . . . [i]t’s a bunch of people whose numbers are
      in close proximity to each other . . . .

Q     What is the range from the lowest to the highest?

A     From a [.]01 to a .06 is the lowest and highest rates
      I’ve ever seen in a study.

...

Q     And so when we’re applying an average rate we are
      not saying anything in particular about how
      [defendant] was; just multiplying by an average?

A     That is correct.

Q     And that’s different than a mid-point that half the
      people are above it and half below it?

      ...

      That means half eliminate it faster and half more
      slowly?


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              A     Than [.]0165, yes.

      Burnette testified that the alcohol elimination rate he used had been arrived

at as a result of a study performed at the University of North Carolina. Burnett

provided the trial court with a list of some thirty-nine articles, studies, or experiments

ranging mostly between 1993 and 2008 regarding blood alcohol research. Burnette

also provided the court with North Carolina cases in which this Court upheld the use

of retrograde extrapolation to establish blood alcohol content: State v. Catoe, 78 N.C

App. 167, 336 S.E.2d 691 (1985); State v. Taylor, 165 N.C. App. 750, 600 S.E.2d 483

(2004); State v. Fuller, 176 N.C. App. 104, 626 S.E.2d 655 (2006); State v. Teate, 180

N.C. App. 601, 638 S.E.2d 29 (2006); and State v. Davis, 142 N.C. App. 81, 542 S.E.2d

236 (2001).

      In State v. Taylor, 165 N.C. App. 750, 600 S.E.2d 483 (2004), this Court

acknowledged the testimony of Paul Glover, “a research scientist and training

specialist with the [F]orensic [T]ests for [A]lcohol [B]ranch of the North Carolina

Department of Health and Human Services, [who] testified as an expert in breath

and blood alcohol testing, blood alcohol physiology and pharmacology, and the effect

of drugs on human performance and behavior.” Id. at 752, 600 S.E.2d at 485.

              Glover admitted that elimination rates vary “depending on
              a person's experience with alcohol” but stated that “there
              are elimination rates that have been published for over 65
              years that have gained acceptance in the scientific
              community” which make extrapolation possible. Glover


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             elaborated on how rates can vary and then stated that a
             “very conservative rate” is used for calculations in North
             Carolina. Glover described the 0.0165 rate as a
             conservative rate which tends to “favor the final result
             because it's going to give you a smaller number.” When
             asked why he used this conservative rate, Glover
             responded, “because we don't know absolutely a person's
             alcohol history necessarily.” This testimony established
             that the elimination rate used by Glover was not
             defendant's actual rate but rather an average rate.

Id. at 755, 600 S.E.2d at 487.      This case, although decided in accordance with

Howerton, 358 N.C. 440, 597 S.E.2d 674, shows that the conservative alcohol

elimination rate of 0.0165 has been reliably used in North Carolina for decades.

      Taylor establishes a key point in the debate between an expert’s qualification

and his application of his expertise and resulting opinion. An expert can be qualified

but his application of a formula should be tailored to the facts of the case. Taylor can

be read to forecast a future objection to the particularization of the “average” of the

formula to the facts of a case such as this one. However, our review of the record does

not support such an objection by defendant. To be admissible under the heightened

Daubert standard the reviewing judge must not only rule that the expert is qualified

but that his math is correct as well. Here, no specific objection to the application of

the formula’s math was made and no other expert was proffered at voir dire to contest

the math or the application of the “average.” As a result, defendant in fact merely

invokes an objection to the expert’s qualification, not his reliability.




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      Thus, despite defendant’s contention and obvious concern as to the midpoint

and average terminology used, defendant presents no specific argument to explain

how the use of the terms average and midpoint in this manner should have

disqualified Burnette as an expert concerning his application of the formula. We

accept that Burnette’s testimony, by defendant’s standards, does not reach the level

of scrutiny under Daubert that defendant himself would require of an expert prior to

qualification; however, we also acknowledge that the ultimate determination is made

by the trial court. Herein, we hold that because the calculations themselves were

based on well-recognized and accepted scientific formula and applicable methodology,

the terminology (mis)used by the expert, while perhaps troubling from the standpoint

of basic mathematical concepts, was not critical to his qualification. On this record,

the specialized knowledge, skill, experience and training in the field of expertise

demonstrated by Burnette, was sufficient for the trial court to allow his testimony in

the form of an expert opinion. The trial court’s ruling to qualify Burnett as an expert

in blood alcohol physiology, pharmacology, and related research on retrograde

extrapolation was not a manifest abuse of discretion.

      Finally, it appears the trial court reviewed the five non-exclusive Daubert

factors suggested for use by trial courts in assessing the reliability of scientific

testimony. These factors include:

             1) whether the expert's scientific technique or theory can
             be, or has been, tested; 2) whether the technique or theory


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             has been subject to peer review and publication; 3) the
             known or potential rate of error of the technique or theory
             when applied; 4) the existence and maintenance of
             standards and controls; and 5) whether the technique or
             theory has been generally accepted in the scientific
             community.

Id. at ___, 770 S.E.2d at 708 (citing United States v. Beverly, 369 F.3d 516, 528 (6th

Cir. 2004)). The record supports a determination: that the techniques or theory has

been generally accepted in the scientific community (factor #5); that it has been tested

(factor #1); that it has been subjected to peer review and publication (factor #2); and

that it is subject to standards and controls (factor #4). Only factor #3, the error rate,

could be deemed to have been the subject of a successful cross examination by

defendant. Nevertheless, as the list is “non-exclusive”, it was not necessary for the

trial court to determine that all factors existed in order to adequately assess the

testimony’s reliability.   It is sufficient that the record supports the trial court’s

assessment of the factors. We reiterate that the test of reliability is flexible and the

Daubert factors “do not constitute a ‘definitive checklist or test,’ but may be tailored

to the facts of a particular case.” Kumho Tire Co., 526 U.S. at 150, 143 L.Ed.2d at

251.

       “[O]nce the trial court makes a preliminary determination that the scientific

or technical area underlying a qualified expert's opinion is sufficiently reliable (and,

of course, relevant), any lingering questions or controversy concerning the quality of

the expert's conclusions go to the weight of the testimony rather than its


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admissibility.” Taylor, 165 N.C. App. at 756, 600 S.E.2d at 488 (quoting Howerton,

358 N.C. at 460–61, 597 S.E.2d at 687). Most of defendant’s contentions, although

strongly stated, are arguments that go to the weight to be given the testimony, not

its admissibility. Based on the testimony of the expert as set forth in the record in

the instant case, defendant is unable to show an abuse of discretion by the trial court

in allowing the testimony of the expert witness, Burnette. Accordingly, defendant’s

argument is overruled.

                                          II

      Next, defendant argues that the trial court committed plain error in allowing

Officer Lovelace to testify to defendant’s blood alcohol level. We disagree.

      We apply the plain error standard of review where, as here, defendant fails to

object to testimony at trial, which leaves the alleged error unpreserved for review on

appeal, yet requests this court to grant plain error review. Such requires defendant

to bear the heavier burden of showing that the error rises to the level of plain error.

State v. Melvin, 364 N.C. 589, 593-94 (2010) (citation omitted).

             For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial. To
             show that an error was fundamental, a defendant must
             establish prejudice—that, after examination of the entire
             record, the error had a probable impact on the jury's
             finding that the defendant was guilty.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations omitted).

      Pursuant to Rule 702(a1) of our Rules of Evidence,


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             [a] witness, qualified under subsection (a) [of Rule 702] 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.G.S. § 8C-1, 702(a1)(1) (emphasis added).

      At trial, Officer Lucas Lovelace testified to his involvement in the investigation

of a motor vehicle accident occurring on 21 December 2011. Officer Lovelace observed

a Ford F-150 pickup truck resting on its side and defendant “outside the vehicle,

emotional, crying, upset.”

             I could tell that he was a little unsteady on his feet, slurring
             his words, had bloodshot eyes. I could smell an odor of an
             alcoholic beverage from his breath. . . . He stated that he’d
             had one -- I think a twenty-four-ounce Smirnoff, and also
             taken a prescription Xanax and hydrocodone for his hip
             that he’d had surgery on.

Officer Lovelace asked defendant to submit to a series of field sobriety tests. At trial,

Officer Lovelace was accepted as an expert on the horizontal gaze nystagmus (HGN)

test, a test requiring a subject to follow a stimulus with his or her eyes from side to

side on a horizontal plane. Officer Lovelace testified that during the course of the

HGN test defendant exhibited six “clues” of impairment: “a lack of smooth pursuit in

both eyes”; an involuntary jerking, or sustained nystagmus, in both eyes when

defendant moved his eyes to the maximum deviation point of the test; and “the onset



                                          - 20 -
                                 STATE V TURBYFILL

                                  Opinion of the Court



of nystagmus prior to forty-five degrees.” Officer Lovelace testified that the onset of

any nystagmus prior to forty-five degrees is a point one or greater BAC.” Officer

Lovelace further testified that “[m]ost of the time four clues would show a BAC of

point one.” Defendant exhibited six clues: three for each eye.

      Officer Lovelace’s testimony appears to have violated Rule 702(a1) on the issue

of defendant’s specific alcohol concentration level as it related to the results of the

Horizontal Gaze Nystagmus (HGN) Test defendant performed. However, we do not

believe that, given an examination of the entire record, the error had a probable

impact on the jury's finding that the defendant was guilty of Driving While Impaired

or Driving After Consuming Being Less Than 21. See Lawrence, 365 N.C. at 518, 723

S.E.2d at 334. Based on defendant’s admission to drinking alcohol and consuming

impairing substances prior to his one-vehicle crash, testimony by witnesses to

physical signs of defendant’s appreciable impairment as well as expert testimony

based on retrograde extrapolation that at the time of his accident defendant’s BAC

was 0.10, the jury heard significant competent evidence to allow it to reach its guilty

verdict as to Driving While Impaired and Driving after consuming alcohol under 21

years old, absent the testimony of BAC level based on HGN test results offered by

Officer Lovelace. Accordingly, defendant’s argument is overruled.




                                         - 21 -
                                  STATE V TURBYFILL

                                   Opinion of the Court



      We find no error in the trial court’s proper exercise of its discretion to allow the

expert testimony of Anthony Burnette, and no plain error as a result of the BAC level

testimony of Officer Lovelace.

      NO ERROR; NO PLAIN ERROR.

      Judges STROUD and HUNTER, Robert N., Jr., concur.




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