State v. Norton

THIS OPINION HAS NO
PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY
PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State, Respondent,

v.

James Arthur Norton, Appellant.

Appeal From Chesterfield County

 John M. Milling, Circuit Court Judge

Unpublished Opinion No. 2011-UP-586

Heard December 7, 2011 – Filed December
21, 2011   

AFFIRMED

Assistant Appellate Defender Breen Stevens, of Columbia, for
Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John
W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant
Attorney General Deborah R. J. Shupe, all of Columbia; and Solicitor William B.
Rogers, Jr., of Bennettsville, for Respondent.

PER CURIAM:  James
Arthur Norton was convicted of criminal domestic violence of a high and
aggravated nature (CDVHAN) and assault and battery of a high and aggravated
nature (ABHAN).  He received concurrent ten-year sentences, suspended upon the
service of five years' imprisonment and five years' probation.  Norton appeals, arguing the trial court erred in
permitting Captain Thomas to testify to medical observations and conclusions
beyond the scope of his expertise.  We affirm.

1. Error in
Admitting Testimony

We find the trial court erred
in admitting Captain Thomas's testimony that TPI[1] appeared in the photographs without first requiring
him to be qualified as an expert witness or to establish his firsthand
knowledge of the facts upon which his opinion was based.  Lay witnesses are
permitted to offer testimony in the form of opinions or inferences if the
opinions or inferences are rationally based on the witness's perception, will
aid the jury in understanding testimony, and do not require special knowledge. 
Rule 701, SCRE.  Our supreme court has confirmed that "a lay witness may
only testify as to matters within his personal knowledge and may not offer opinion
testimony which requires special knowledge, skill, experience, or
training."  Watson v. Ford Motor Co., 389 S.C. 434, 446, 699 S.E.2d
169, 175 (2010) (emphasis added).  Testimony from an expert witness instead of
a lay witness "is required where a factual issue must be resolved with
scientific, technical, or any other specialized knowledge.  Expert testimony
differs from lay testimony in that an expert witness is permitted to state an
opinion based on facts not within his firsthand knowledge."  Id. at
445-46, 699 S.E.2d at 175.  Here, Captain Thomas's testimony indicates he
applied specialized knowledge he gained from his training and experience to
photographs of Victim.  The content and dates of the photographic exhibits
indicate the pictures were taken on either four or five different occasions
during the week following the incident.  Aside from testimony that Captain
Thomas interviewed Victim the day after the incident and accompanied her to her
home to view the initial crime scene, no evidence suggested Captain Thomas
viewed Victim's injuries during that week.  When he viewed the photographs at
trial, Captain Thomas concluded his testimony on direct examination by stating,
"And in these photographs there is evidence of [TPI]."  We find the
development and appearance of TPI, as described by Captain Thomas, required
special medical knowledge.  To render this opinion, Captain Thomas applied special
knowledge of TPI to photographs of Victim in varying conditions that he did not
personally observe.  This testimony from a lay witness is inadmissible under
Rule 701.  Accordingly, the trial court erred in admitting it. 

2. Harmless Error

Nonetheless, any error in
admitting this testimony was harmless.  "[O]ur appellate courts have
consistently held that a trial court should only be reversed when an error is
prejudicial and not harmless."  State v. White, 371 S.C. 439, 447,
639 S.E.2d 160, 164 (Ct. App. 2006).  "The determination of prejudice must
be based on the entire record[,] and the result will generally turn on the
facts of each case."  State v. Sweat, 362 S.C. 117, 128-29, 606
S.E.2d 508, 514 (Ct. App. 2004) (internal citation and quotation marks
omitted).  An error is harmless if it could not have reasonably affected the
result of the trial.  State v. Key, 256 S.C. 90, 93-94, 180 S.E.2d 888,
889-90 (1971).  However, the admission of a lay witness's opinion testimony
concerning the ultimate issue in a case is not harmless.  State v. Ellis,
345 S.C. 175, 178, 547 S.E.2d 490, 491 (2001).  Here, the jury convicted Norton
of CDVHAN and ABHAN.  To secure these convictions, the State had to prove
Norton assaulted and seriously injured Victim.  See S.C. Code Ann. §
16-25-65 (Supp. 2010) (indicating CDVHAN consists of either "(1) an
assault and battery which involves the use of a deadly weapon or results in
serious bodily injury to the victim; or (2) an assault, with or without an
accompanying battery, which would reasonably cause a person to fear imminent
serious bodily injury or death"); State v. Geiger, 370 S.C. 600, 605-06,
635 S.E.2d 669, 672 (Ct. App. 2006) (stating ABHAN is "an unlawful act of
violent injury accompanied by circumstances of aggravation" such as the infliction
of serious bodily injury or a difference in gender).  We find that, even had
the trial court excluded Captain Thomas's TPI testimony, the State presented overwhelming
evidence of Norton's guilt of both offenses.  As to strangulation specifically,
Victim identified the pictures, which contained graphic images of Victim's
bruises blooming and beginning to fade during the week following the attack, as
showing her injuries from strangulation.  Victim testified Norton punched or choked
her into unconsciousness at least twice.  The cashier recalled hearing
"hitting" noises from inside the bathroom after Norton followed
Victim into that room.  She and a police officer described Victim as hysterical
and crying when they discovered her cowering on the bathroom floor.  Furthermore,
we find Captain Thomas did not express an opinion concerning the ultimate issue
in this case.  Captain Thomas opined only that the bruising evident in the
photographs was TPI.  Although he related facts supporting the State's theory
that Victim was strangled, he never expressed an opinion as to whether Norton
assaulted and seriously injured Victim, either by strangling or by other
means.  Accordingly, Norton suffered no prejudice from Captain Thomas's
testimony, and any error in admitting it was harmless. 

AFFIRMED.

FEW, C.J.,
THOMAS, J., and CURETON, A.J., concur. 

[1] The term "TPI" appears to be a typographical
error or misunderstanding of the term "petechiae."  For continuity,
we use the term in the record.