State v. Cash

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .

NO. COA13-935
NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA
Onslow County
v. Nos. 12 CRS 50104
12 CRS 50106
CHRISTOPHER CASH, 12 CRS 50120-22
Defendant. 12 CRS 50124

Appeal by defendant from judgments entered 25 February 2013

by Judge W. Allen Cobb, Jr., in Onslow County Superior Court.

Heard in the Court of Appeals 5 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General
John W. Congleton, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Emily H. Davis, for defendant-appellant.

GEER, Judge.

Defendant Christopher Cash appeals from his conviction of a

number of charges arising out of a one-car accident, including

driving while license revoked, reckless driving to endanger, two

counts of felony death by vehicle, two counts of felony hit and

run causing serious injury or death, and felony serious injury

by vehicle. Defendant primarily contends on appeal that the
 -2-
trial court erred in allowing a highway patrol trooper to

testify regarding how the accident occurred when the trooper did

not witness the accident occur and was not qualified as an

expert in accident reconstruction. Based on our review of the

trooper's testimony, we hold that he did not express any

opinions that amounted to expert testimony. His testimony

either qualified as proper lay opinion testimony or amounted to

admissible shorthand statements of facts. Nonetheless, we agree

with defendant that the trial court committed error by

sentencing him based on a Class F hit and run felony when the

most serious hit and run offense of which he was convicted was a

Class H felony. We, therefore, remand for a new sentencing

hearing.

Facts

The State's evidence tended to show the following facts.

On the evening of 5 January 2012, defendant and his now-wife

Chauntelle Wann made plans to go to Anytime Billiards with

defendant's brother, Jeffrey Cash, and two of the Cash brothers'

coworkers, Jerry Jackson and Kevin Embler. Anytime Billiards

was located just a few miles from where defendant lived on Pony

Farm Road, in Jacksonville, North Carolina.

Before going to Anytime Billiards, defendant had already

begun to drink "heavily" with Mr. Embler that afternoon at
 -3-
Tobie's Gentleman's Club. At approximately 7:30 p.m. on 5

January 2012, defendant drove Ms. Wann, Mr. Cash, Mr. Jackson,

and Mr. Embler to Anytime Billiards in his Volkswagen Jetta.

While at Anytime Billiards, the group consumed pitchers of beer

over the course of several hours. While defendant, Mr. Cash,

Mr. Jackson, and Mr. Embler were drinking "heavily" at Anytime,

Ms. Wann was not.

Around 12:00 a.m. on 6 January 2012, defendant drove the

group in the Jetta from Anytime Billiards to a Trade Wilco Hess

where, at approximately 12:15 a.m., defendant purchased a case

of beer, put the beer in the Jetta, and continued driving on

Highway 53. Defendant then turned right onto Pony Farm Road.

Mr. Cash was sitting in the backseat with Mr. Embler and Mr.

Jackson. He "could feel" that defendant was driving "fast" and

told defendant to "slow down." Seconds later, at approximately

12:20 a.m., the Jetta wrecked in a ditch along Pony Farm Road.

Then, sometime between 12:20 a.m. and 12:40 a.m. local

resident Brian O'Hara and emergency first responders found

defendant's green Volkswagen Jetta overturned in a westbound

ditch on Pony Farm Road. First responders then discovered two

deceased men lying at different distances from the Jetta and

identified them as Mr. Embler and Mr. Jackson. Mr. O'Hara

rescued defendant and Ms. Wann from the overturned Jetta. Mr.
 -4-
Cash was lying on the ground outside of the overturned Jetta

unconscious, but he regained consciousness and rested with Ms.

Wann in Mr. O'Hara's truck bed.

Defendant moved about "look[ing] like he was in a daze and

like he was in a loss," cursing. When deputies from the Onslow

County Sheriff's Office arrived between 12:30 a.m. and 12:40

a.m., defendant had left the accident scene in a taxicab.

State Highway Patrol Trooper Timothy Silance arrived at the

accident scene at 12:44 a.m. Trooper Silance surveyed the scene

and learned from Ms. Wann that defendant had been driving.1 Mr.

Cash and Ms. Wann were then transported to the hospital. After

learning from Mr. O'Hara that defendant had left in a taxicab

having a particular description, Trooper Silance pursued

defendant's cab in his patrol car. Trooper Silance located and

pulled over defendant's cab between 3:00 a.m. and 3:30 a.m. He

ordered defendant out of the cab and noticed defendant had fresh

facial lacerations, shoulder and chest injuries that appeared to

have been made by a seatbelt, red glassy eyes, a strong odor of

alcohol, slurred speech, and a stumbling gait.

When asked where he was going, defendant told Trooper

Silance that he was on his way to the Onslow Memorial Hospital

1
The defense objected to this testimony from Trooper
Silance, but this objection was overruled, and defendant does
not challenge that ruling on appeal.
 -5-
to see Ms. Wann because she had been involved in a car wreck.

Trooper Silance then took defendant into custody and to the

hospital where a nurse drew defendant's blood. A chemical

analysis of defendant's blood revealed a blood alcohol

concentration of 0.10 grams per 100 milliliters of blood. At

around 6:30 a.m. Trooper Silance took defendant to jail.

At the close of the State's evidence, defendant made a

motion to dismiss all charges. The trial court denied the

motion generally but granted it with respect to one charge of

felony serious injury by motor vehicle with Ms. Wann being the

victim. Defendant then introduced several exhibits but

presented no witnesses. At the close of all the evidence,

defendant renewed his motion to dismiss, which the court granted

with respect to the charges of misdemeanor hit and run failing

to notify authorities and failing to report an accident.

The jury convicted defendant of one count of driving while

impaired, two counts of involuntary manslaughter, one count of

misdemeanor reckless driving to endanger, one count of

misdemeanor driving while license revoked, two counts of felony

death by motor vehicle, two counts of felony hit and run causing

injury, and one count of felony serious injury by motor vehicle.

The trial court arrested judgment on the driving while impaired

and involuntary manslaughter convictions and sentenced defendant
 -6-
in the following manner: two consecutive terms of 38 to 58

months for two counts of felony death by vehicle; three

consecutive terms of 25 to 39 months for one count of felony

serious injury by vehicle and two counts of felony hit and run

causing serious injury or death; and one concurrent term of 120

days for driving while license revoked and reckless driving to

endanger. Defendant timely appealed to this Court.

I

Defendant first contends that the trial court erred in

permitting Trooper Silance to testify that defendant refused to

make any post-arrest, post-Miranda statement to law enforcement.

He argues that evidence of defendant's post-arrest, post-Miranda

silence was inadmissible for any purpose. Because defendant did

not object to the testimony at trial, he asks that we review the

issue for plain error.

As our Supreme Court has observed:

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.
Moreover, because plain error is to be
applied cautiously and only in the
exceptional case, the error will often be
one that seriously affect[s] the fairness,
integrity or public reputation of judicial
proceedings[.]
 -7-

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

(internal citations and quotation marks omitted).

"'A criminal defendant's right to remain silent is

guaranteed under the Fifth Amendment to the United States

Constitution and is made applicable to the states by the

Fourteenth Amendment.'" State v. Richardson, ___ N.C. App. ___,

___, 741 S.E.2d 434, 440 (2013) (quoting State v. Moore, 366

N.C. 100, 104, 726 S.E.2d 168, 172 (2012)). "A defendant's

post-arrest, post-Miranda . . . silence . . . may not be used

for any purpose." State v. Mendoza, 206 N.C. App. 391, 395, 698

S.E.2d 170, 174 (2010).

When asked initially whether and when he had "a

conversation with Chris Cash what about [sic] he had been doing

the evening [of the wreck] or where he'd been," Trooper Silance

gave the following testimony:

A [My questioning defendant about the
accident] -- that did not occur until at the
jail, after I had advised him, at 6:34 a.m.

Q So you advised him of his Miranda
rights?

A Yes, which is when I intended to
question him formally on the events.

Q After you advised him of his rights,
did he make some statement about his
activities that evening?
 -8-
A He refused any comment at all about the
event.

Here, the admission of Trooper Silance's testimony about

defendant's post-arrest and post-Miranda refusal to speak was

error. See Moore, 366 N.C. at 105, 726 S.E.2d at 172 (holding

trial court committed error when it admitted officer's testimony

defendant "'refused to talk about the case at that time'" after

he had been arrested and read his Miranda rights). The State

also appears to concede as much.

The question remains whether the error had a probable

impact on the jury's verdicts. Defendant argues that, in the

absence of Trooper Silance's testimony, the jury would have

probably reached a different result because, according to

defendant, the evidence he was driving the Jetta when the

accident occurred was "hardly overwhelming." Defendant points

to the fact that there was no witness who testified to seeing

the accident occur, Mr. Cash did not provide a description of

how the accident occurred, and a swab of the cabin of the

wrecked Jetta did not reveal any evidence of defendant's DNA.

In summarizing the analysis our Supreme Court relied upon

in Moore to determine whether evidence of a defendant's post-

arrest, post-Miranda silence amounted to plain error, this Court

recently explained:
 -9-
[O]ur review of Moore suggests that the
following factors, none of which should be
deemed determinative, must be considered in
ascertaining whether a prosecutorial comment
concerning a defendant's post-arrest silence
constitutes plain error: (1) whether the
prosecutor directly elicited the improper
testimony or explicitly made an improper
comment; (2) whether the record contained
substantial evidence of the defendant's
guilt; (3) whether the defendant's
credibility was successfully attacked in
other ways in addition to the impermissible
comment upon his or her decision to exercise
his or her constitutional right to remain
silent; and (4) the extent to which the
prosecutor emphasized or capitalized on the
improper testimony by, for example, engaging
in extensive cross-examination concerning
the defendant's post-arrest silence or
attacking the defendant's credibility in
closing argument based on his decision to
refrain from making a statement to
investigating officers.

Richardson, ___ N.C. App. at ___, 741 S.E.2d at 441-42.

Here, the evidence is overwhelming that defendant was

driving the Jetta and caused the wreck that resulted in the

deaths of Mr. Embler and Mr. Jackson. Conditions on the night

of the accident were dry and clear. Mr. Cash testified that

defendant was in the driver's seat when they left the Wilco Hess

and recalls telling defendant to "slow down" as defendant drove

down Pony Farm Road. Mr. Cash also testified that defendant

typically did not let anyone else drive the Jetta because

"[i]t's his vehicle and he drives his own vehicles[,] [and that

is] how it's always been."
 -10-
Ms. Wann told both first responder Randi Barwick and

Trooper Silance that defendant was driving.2 In addition, Mr.

O'Hara testified that after he pulled Ms. Wann from the front

passenger side window of the Jetta, he also pulled defendant

through the same window, although defendant had been further

away from Mr. O'Hara than Ms. Wann.

Further, when the police arrived at the accident scene,

defendant abandoned his friends, who were either injured or

killed by the wreck, by riding off in a taxicab. Trooper

Silance testified that when he stopped defendant's taxicab

defendant appeared as if he had been in a car wreck and was

appreciably intoxicated, almost three hours after the wreck had

occurred. When defendant had his blood drawn at the hospital,

sometime after he was placed under arrest, his blood alcohol

level was 0.10.

In addition to the overwhelming evidence of defendant's

guilt, we also note that while the prosecutor directly elicited

Trooper Silance's testimony about defendant's post-arrest, post-

Miranda silence, there is no indication that the prosecutor made

an effort to emphasize or capitalize on that testimony.

2
The defense objected to this testimony from Ms. Barwick,
but the objection was overruled, and defendant does not
challenge that ruling on appeal.
 -11-
Additionally, defendant did not testify, so his credibility was

not at issue.

Under Moore, given the overwhelming evidence of defendant's

guilt, the lack of any emphasis by the State on the

impermissible testimony, and the fact that defendant did not

testify, we cannot conclude that the brief, passing mention of

defendant's post-arrest, post-Miranda refusal to comment about

the accident had a probable impact on the jury's verdicts. See

State v. Alexander, 337 N.C. 182, 196, 446 S.E.2d 83, 91 (1994)

(holding no plain error when evidence of defendant's guilt was

substantial, defendant "did not object to the line of

questioning at issue, the comments [on defendant's silence] were

relatively benign, and a review of the record indicates that the

prosecutor made no attempt to emphasize the fact that defendants

did not speak with them after having been arrested"). We,

therefore, hold that the trial court did not commit plain error

when it admitted the evidence of defendant's post-arrest, post-

Miranda silence.

II

Defendant next argues that the trial court erred in

admitting Trooper Silance's testimony regarding how the accident

occurred when Trooper Silance did not witness the accident occur

and was not qualified as an expert in accident reconstruction.
 -12-
In particular, defendant complains of Trooper Silance's

testimony that the Jetta flipped multiple times before resting,

that there were multiple points of impact in the ditch, and that

occupants of the car were ejected. Defendant contends that the

testimony amounted to Trooper Silance's improperly providing an

expert opinion in accident reconstruction. Because defendant

did not object to this testimony at trial, we review for plain

error.

Defendant cites State v. Maready, 205 N.C. App. 1, 695

S.E.2d 771 (2010), and State v. Wells, 52 N.C. App. 311, 278

S.E.2d 527 (1981), for the proposition that a trial court

commits error when it admits accident reconstruction testimony

of a witness who did not observe the accident occur and is not

qualified as an expert in accident reconstruction.

In Maready, the State presented testimony from officers who

"did not witness the accident, but gave their opinions

indicating Defendant was at fault based upon their examination

of the scene of the accident. The officers were not proffered

as experts in accident reconstruction." 205 N.C. App. at 17,

695 S.E.2d at 782. In holding that the testimony was

inadmissible, this Court explained that "[a]ccident

reconstruction opinion testimony may only be admitted by

experts, who have proven to the trial court's satisfaction that
 -13-
they have a superior ability to form conclusions based upon the

evidence gathered from the scene of the accident than does the

jury." Id.

In Wells, a highway patrol trooper, who apparently was not

an expert in accident reconstruction, testified at trial about

what he observed at the scene of a wreck after the wreck had

already happened. This Court explained: "Because of the

location of the gouge marks and the debris, [the trooper]

concluded that the impact had occurred in the center of the

eastbound lane" and gave testimony at trial to that effect. 52

N.C. App. at 312, 278 S.E.2d at 528. In concluding that

admission of this testimony was error, this Court explained: "By

testifying that his investigation revealed the point of impact

between the two cars to be in decedent's lane of travel, [the

trooper] stated an opinion or conclusion which invaded the

province of the jury." Id. at 314, 278 S.E.2d at 529. The

trial court, therefore, committed reversible error by admitting

the testimony. Id. at 316, 278 S.E.2d at 530.

At trial, Trooper Silance had the following exchange with

the prosecutor on direct examination:

Q How about the two deceased persons,
were their bodies still there at the scene
when you were doing the investigation?

A Yes. Any time there's a vehicle
accident and someone is killed instantly, at
 -14-
the time of the collision, . . . bodies
remain where they are for two purposes:
photos and measurements. I mean, you can
get more precise measurements when the
bodies are in the same exact place as they
are at the time of the collision.

Q So what investigative action did you
take, with regard to the bodies there at the
scene?

A They're important primarily because,
when someone is ejected, . . . it helps you
determine speed, because if someone is
ejected . . . a great distance from the
vehicle, it's easier to . . . form and
estimate a speed of that vehicle.

. . . .

Q You said the vehicle was upside down.

A Correct.

Q Did it have damage to the roof or to
the sides of the vehicle?

A Every part of the vehicle was damaged.

Q Based on your training and experience
and the observations you made at the scene,
did you form an opinion as to whether or not
the vehicle had rolled during the collision?

A I was positive it had.

Q Why do you say that?

A The vehicle was overturned on final
rest, and using that and the impact with the
ditch the manner that the ditch was
disturbed, it was obvious that the vehicle
got flipped over at least once.
 -15-
Q Did it appear as if the vehicle had
overturned or flipped or spun more than
once?

A Yes.

Q Why do you say that?

A . . . there was multiple impacts on the
ditch. It wasn't just one spot where the
ditch or the shoulder was disturbed, there
was multiple spots.

Trooper Silance also testified that car parts were lying on the

shoulder primarily but were also in the road, and there was

shattered glass around the Jetta.

Here, it is undisputed that Trooper Silance did not

personally witness the accident occur and was not an expert in

accident reconstruction even though he "had some training in

investigating collisions and looking for skid and yaw marks."3

Trooper Silance observed the damaged Jetta and its surroundings

and testified that he was "positive" the vehicle had flipped and

it was "obvious" that the vehicle "did . . . appear" to have

rolled "at least once" during the collision.

In the challenged portion of his testimony, Trooper Silance

was not acting as an accident reconstruction expert, testifying
3
A "yaw" mark is a pattern of skid mark made by a car that
indicates the car was traveling at a high speed and is caused by
the momentum of the car moving from side to side. Defendant
does not challenge this portion of Trooper Silance's testimony,
and nothing in the record reveals that Trooper Silance relied on
his training with skid and yaw marks in giving the challenged
testimony.
 -16-
as to who or what was the cause of the accident as the witness

testified in Maready, or deciphering from evidence at the scene

at what point on a road two vehicles had collided, as the

witness testified in Wells. Trooper Silance's observations and

testimony did not involve any specialized or technical

knowledge, that would fall within the province of Rule 702 of

the Rules of Evidence.

Instead, Trooper Silance's testimony fell within the scope

of Rule 701 of the Rules of Evidence:

If 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.

Trooper Silance testified to multiple observations with detailed

descriptions and that testimony reflected his lay conclusions

upon seeing a heavily damaged overturned car in proximity to two

dead bodies lying on the ground outside the car, shattered

glass, car parts, and significant disturbances in a roadside

ditch. By hearing the inferences Trooper Silance drew from his

observations of the scene, the jury was better able to

understand why Trooper Silance proceeded as he did, including

pursuing defendant's cab. The jury could also better understand
 -17-
the Trooper's testimony regarding what he saw when he arrived at

the scene.

Moreover, as this Court explained in State v. Graham, 186

N.C. App. 182, 195, 650 S.E.2d 639, 648 (2007) (quoting State v.

Lloyd, 354 N.C. 76, 109, 552 S.E.2d 596, 620 (2001)), "'[t]he

instantaneous conclusions of the mind as to the appearance,

condition, or mental or physical state of persons, animals, and

things, derived from observation of a variety of facts presented

to the senses at one and the same time, are, legally speaking,

matters of fact.'" These conclusions are commonly referred to

as "'shorthand statements of fact'" and are not subject to the

limits on lay opinion testimony in Rule 701. 186 N.C. App. at

195, 650 S.E.2d at 648-49. A "shorthand statement of facts" is

"a well recognized method of permitting a witness to describe an

incident or scene that can hardly be described in any other

manner." State v. Nichols, 268 N.C. 152, 154, 150 S.E.2d 21, 23

(1966). We hold that Trooper Silance's statements to the extent

they pertain to how the wreck occurred were a "shorthand

statement of fact" that described the accident scene as he

observed it and did not amount to a purported scientific or

technical opinion on accident reconstruction subject to Rule

702.
 -18-
In other cases, our appellate courts have similarly

designated as "shorthand statements of fact" witnesses'

impressions of the manner in which physical damage or

disturbance had been caused. In Graham, the defendant

challenged the admission of testimony from one officer who

stated, "'When I got there [to the crime scene], I noticed . . .

[t]hat the front door had been forced open . . . . It was clear

to me that the front door had been forced,'" and testimony from

another officer that "'somebody had kicked in the door . . . .

The door had actually been locked to where when the door was

kicked in, the deadbolt was still in the locked position but had

pushed through the doorframe.'" 186 N.C. App. at 195, 650

S.E.2d at 648. This Court held that the observations "were

simply instantaneous conclusions drawn by the witnesses upon

seeing the door standing ajar but still bolted, and the

splintered door frame. The testimony of each witness was a

shorthand statements [sic] of fact . . . ." Id. at 196, 650

S.E.2d at 649. See also, e.g., Alexander, 337 N.C. at 190-91,

446 S.E.2d at 88-89 (upholding admissibility as shorthand

statement of fact officer's testimony that photograph shown to

him at trial indicated "small openings that appeared to be

[caused by] buckshot" in victim's arm).
 -19-
Even if we were to find that admission of the testimony was

error, defendant has still failed to show that the omission of

this evidence would have probably produced a different result.

In addition to the ample evidence of defendant's guilt, the

State presented evidence from Mr. Cash regarding how fast

defendant was driving and from Trooper Silance and others

describing the scene of the accident. Various witnesses

testified that the Jetta was "overturned," and testimony and

photographs established that the Jetta was heavily damaged all

over. Ms. Barwick also testified that Mr. Embler and Mr.

Jackson were "ejected," testimony to which defendant did not

object and that Ms. Wann told her, "'I was the only one wearing

a seatbelt.'"4

Testimony further indicated that one deceased person was

located about 60 to 100 feet from the Jetta on the asphalt while

the other was about 30 to 40 feet from the Jetta, face down in

the ditch. Trooper Silance described the damage to the vehicle

as severe, and EMS first responders described the emergency as

one involving a rolled vehicle.

Thus, contrary to defendant's claim, Trooper Silance's

testimony was not "the only evidence suggesting how the accident

4
The defense also objected to this testimony from Ms.
Barwick, but the objection was overruled, and defendant does not
challenge that ruling on appeal.
 -20-
occurred." Evidence from other witnesses and exhibits suggested

a substantially similar description of the scene of the wreck

from which the jury could easily infer that defendant caused a

wreck consistent with the description provided by Trooper

Silance's challenged statements.

III

Lastly, we address the problem in sentencing that defendant

raises and which the State concedes. Defendant argues that "the

trial court entered judgment and sentence against [defendant]

for two counts of hit and run with serious bodily injury or

death -- a class F felony . . . . The jury, however, was only

instructed on and found [defendant] guilty of two counts of hit

and run with injury -- a class H felony . . . ." After

reviewing the record, we agree.

Under N.C. Gen. Stat. § 20-166(a1) (2013), hit and run with

injury is a Class H felony. Under N.C. Gen. Stat. § 20-166(a),

hit and run with serious bodily injury is a Class F felony.

Defendant was indicted on one count of hit and run causing

serious bodily injury to Mr. Cash and one count of hit and run

causing injury to Ms. Wann under N.C. Gen. Stat. § 20-166(a).

The trial court, however, did not give any instruction on

"serious bodily injury, as defined in G.S. 14-32.4," N.C. Gen.

Stat. § 20-166(a)(2), for either of the hit and run counts, and
 -21-
the verdict sheets identified the hit and run offenses as two

counts of "felonious hit and run with injury." (Emphasis

added.) Yet, the trial court sentenced defendant for each of

the hit and run offenses "in the presumptive range" for a Class

F felony, a minimum of 25 months and a maximum of 39 months

active punishment. We conclude that the trial court erred in

entering a judgment and sentence for two violations of N.C. Gen.

Stat. § 20-166(a) when the only hit and run crimes for which

defendant was convicted were under N.C. Gen. Stat. § 20-166(a1).

Consequently, we reverse and remand for resentencing on those

two convictions.

No error in part; reversed in part and remanded.

Judges ROBERT C. HUNTER and McCULLOUGH concur.

Report per Rule 30(e).