State v. Hunt

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-890

Filed 15 October 2024

Robeson County, Nos. 19 CRS 50642; 22 CRS 1726

STATE OF NORTH CAROLINA

v.

GRANT LEE HUNT

Appeal by defendant from judgment entered 24 March 2023 by Judge James

G. Bell in Robeson County Superior Court. Heard in the Court of Appeals 14 August

2024.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Thomas

J. Campbell, for the State.

Daniel M. Blau for defendant-appellant.

THOMPSON, Judge.

Grant Lee Hunt (defendant) appeals from a judgment entered upon a jury’s

verdict finding him guilty of assault with a deadly weapon inflicting serious injury

without intent to kill and injury to personal property. On appeal, defendant contends,

inter alia, that the trial court committed plain error by allowing a lay witness to give

an expert opinion about how the accident happened and defendant’s intent at the

time of the accident. After careful review, we vacate and remand for a new trial.

I. Factual Background and Procedural History

STATE V. HUNT

Opinion of the Court

Defendant and Timothy Todd (Todd), the alleged victim in this case, have been

neighbors since defendant purchased his home in 2018. Testimony proffered at trial

established a great deal of animosity existed between defendant and Todd in the

interim period, which we will not exhaustively chronicle. Pertinent to the present

appeal, on 23 January 2019, defendant and his wife made a formal request to the

Robeson County Sheriff’s Department to conduct regular check-ins on their property

due to alleged harassment and trespassing onto their property by Todd, including

“coming onto the property at night with [a] [4-]wheeler and . . . throwing beer cans

and bottles in [defendant’s] yard[,] and watching [defendant’s] property.”

Two days later, on 25 January 2019, defendant was on his way home from

work, “on the phone with the wife, driving[,] [a]nd at this point that’s when I see an

object. You know, just out of - - out of the corner of my eye . . . it just happened so fast

. . . [i]t was instant . . . the impact.” Defendant testified that he “didn’t have time to

recognize anything at that point[,]” referring to the collision, but when he exited his

vehicle, defendant testified that he asked, “[w]here’s that son of a b[****][,]” and he

then realized “that there was an accident[,] [a]nd I s[aw] a 4-wheeler and [Todd].”

Defendant further testified that he attempted to check on Todd but was instructed to

leave the property by Todd’s sister, which defendant did. Defendant maintained that

he “did not go into [Todd’s] driveway to hit th[e] 4-wheeler[.]”

According to Todd, he had no recollection of the accident; he testified at trial

that he was “riding down the driveway . . . on the 4-wheeler . . . [to go to] the store to

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STATE V. HUNT

Opinion of the Court

get gas” when the accident occurred, and that he realized he had been in an accident

when he “woke up six weeks later.” It is uncontested that Todd suffered a broken leg,

ankle, jaw, and eye socket in the accident.

A law enforcement officer who responded to the scene of the accident testified

that he first noticed “a 4-wheeler or ATV that was off the roadway in a yard and a

pickup truck that was kind of partially in the roadway . . . .” After admitting

photographs taken at the scene into evidence, the State then asked the law

enforcement officer who, again, responded to the scene of the accident, whether he

had “form[ed] an opinion whether this was an accident or an intentional act[,]” to

which the law enforcement officer replied, “[m]y opinion is it was an intentional act.”

On 6 July 2020, defendant was indicted upon a true bill of indictment by a

Robeson County Grand Jury for injury to personal property and assault with a deadly

weapon with intent to kill inflicting serious injury. The matter came on for trial at

the 22 March 2023 Criminal Session of Robeson County Superior Court. Two days

later, on 24 March 2023, defendant was found guilty upon a jury’s verdict of assault

with a deadly weapon inflicting serious injury without intent to kill, and injury to

personal property. Pursuant to the jury’s verdict, defendant was sentenced to an

active term of 120 to 156 months in the custody of the North Carolina Department of

Adult Correction. Defendant entered timely oral notice of appeal at trial.

II. Discussion

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STATE V. HUNT

Opinion of the Court

On appeal, defendant contends, inter alia, that the trial court “committed plain

error by allowing a lay witness to give an expert opinion about how the accident

happened, and that [defendant] had intentionally hit [Todd].” We agree.

A. Standard of review

At the outset, we note that defense counsel failed to object to the testimony

proffered by the lay witness at trial; therefore, this issue is subject to plain error

review. Under plain error, “a defendant must demonstrate that a fundamental error

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

“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.” Id. (internal quotation marks and citation

omitted).

B. Law enforcement officer’s testimony

Generally, a law enforcement officer who does not witness an accident, but

later observes the scene of the accident is permitted to testify about physical facts

observed at the scene, including the condition of the vehicles after the accident and

their positioning. See State v. Wells, 52 N.C. App. 311, 314, 278 S.E.2d 527, 529 (1981)

(noting that our Supreme Court has held in several cases that “it is competent for an

investigating officer to testify as to the condition and position of the vehicles and other

physical facts observed by him at the scene of an accident”).

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STATE V. HUNT

Opinion of the Court

On the other hand, if the law enforcement officer did not personally observe the

accident, “[t]he jury is just as well qualified as the witness to determine what

inferences the facts will permit or require.” Shaw v. Sylvester, 253 N.C. 176, 180, 116

S.E.2d 351, 355 (1960). In fact, a law enforcement officer’s “testimony as to his

conclusions from those facts is incompetent.” Wells, 52 N.C. App. at 529, 278 S.E.2d

at 529.

In State v. Denton, this Court observed that, “we can find no instance of lay

accident analysis testimony in North Carolina.” State v. Denton, 265 N.C. App. 632,

636, 829 S.E.2d 674, 678 (2019) (emphasis in original). “Accident reconstruction by

its very nature requires expert analysis of the information collected from the scene of

the accident and falls under Rule of Evidence 702 . . . .” Id. Indeed, in State v.

Maready, this Court held that, “[a]ccident reconstruction opinion testimony may only

be admitted by experts, who have proven to the trial court’s satisfaction that they have

a superior ability to form conclusions based upon the evidence gathered from the

scene of the accident than does the jury.” Maready, 205 N.C. App. 1, 17, 695 S.E.2d

771, 782 (2010) (emphasis added).

Here, the State did not proffer the law enforcement officer who responded to

the scene of the accident as an expert witness in accident reconstruction, and upon

our careful review of the transcript, we conclude that the trial court did err in

allowing the law enforcement officer to testify about the cause of the accident and

defendant’s intent at the time of the accident despite the officer not having witnessed

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STATE V. HUNT

Opinion of the Court

the accident. The law enforcement officer testified that his “opinion is it was an

intentional act[;]” however, we must reiterate that our Supreme Court has long held

that “[t]he jury is just as well qualified as the witness to determine what inferences

the facts will permit or require[,]” when the lay witness has not actually observed the

accident, Shaw, 253 N.C. at 180, 116 S.E.2d at 355, and allowing a law enforcement

officer to proffer opinion testimony about defendant’s intent at the time of the

accident has long constituted reversible error. See Wells, 52 N.C. App. at 316, 278

S.E.2d at 530 (holding that the defendant in that case “is entitled to a new trial on

the manslaughter charge as a result of the court’s erroneous admission into evidence

of the incompetent opinion testimony” of the law enforcement officer); see also Cheek

v. Barnwell Warehouse & Brokerage Co., 209 N.C. 569, 183 S.E. 729 (1936) (affirming

the trial court’s exclusion of opinion testimony by a lay witness based upon his

examination of the scene of an accident where the lay witness had not personally

witnessed the accident).

Moreover, the law enforcement officer in the present case made no showing

which could be construed as “prov[ing] to the trial court’s satisfaction that [he] ha[s]

a superior ability to form conclusions based upon the evidence gathered from the

scene of the accident than does the jury[,]” Maready, 205 N.C. App. at 17, 695 S.E.2d

at 782. Therefore, we conclude that defendant was prejudiced and the trial court did

commit reversible error in allowing the law enforcement officer—who did not observe

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STATE V. HUNT

Opinion of the Court

the accident—to testify as if the law enforcement officer was an expert witness in

accident reconstruction.

However, although the trial court erred in allowing the lay witness to testify

as an expert, we review the issue for plain error, because defense counsel did not

object to the erroneously admitted testimony at trial. After careful review, we

conclude that defendant has satisfied this high bar. There was no dispute about

whether defendant had struck Todd with his vehicle; the dispute in this case was

about whether defendant had intended to hit Todd. We conclude that allowing the

law enforcement officer to testify that his “opinion is it was an intentional act” had a

probable impact on the jury and necessitates a new trial.

Finally, we note that defendant has filed a petition for writ of certiorari with

this Court seeking review of the trial court’s judgment sentencing defendant as a

habitual felon, although the issue was never submitted to the jury and defendant

never personally pled guilty to being a habitual felon. [PWC at 3] However, in light

of our disposition, we need not address defendant’s meritorious arguments on this

issue, as the errors committed below may not be repeated in a new trial. As a result,

defendant’s petition for writ of certiorari is dismissed as moot.

III. Conclusion

For the aforementioned reason, we conclude that the trial court committed

plain error in allowing a lay witness to give an expert opinion about the cause of the

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STATE V. HUNT

Opinion of the Court

accident and defendant’s intent at the time of the accident; consequently, we vacate

and remand for a new trial.

VACATED AND REMANDED FOR NEW TRIAL.

Judge TYSON concurs.

Judge STADING dissents by separate opinion.

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No. COA23-890 – State v. Hunt

STADING, Judge, dissenting.

I respectfully dissent from the majority’s opinion, which addresses only

defendant’s first argument. I do not believe that the admission of the law

enforcement officer’s testimony amounted to plain error.

[T]he plain error rule . . . is always to be applied cautiously

and only in the exceptional case where, after reviewing the

entire record, it can be said the claimed error is a

fundamental error, something so basic, so prejudicial, so

lacking in its elements that justice cannot have been done,

or where [the error] is grave error which amounts to a

denial of a fundamental right of the accused, or the error

has resulted in a miscarriage of justice or in the denial to

appellant of a fair trial or where the error is such as to

seriously affect the fairness, integrity or public reputation

of judicial proceedings or where it can be fairly said the

instructional mistake had a probable impact on the jury’s

finding that the defendant was guilty.

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (cleaned up). “Trial

errors not amounting to constitutional violations do not warrant awarding a new trial

unless there is a reasonable possibility that, had the error in question not been

committed, a different result would have been reached at the trial.” State v. Weldon,

314 N.C. 401, 411, 333 S.E.2d 701, 707 (1985) (cleaned up). “Erroneous admission of

evidence may be harmless where there is an abundance of other competent evidence

to support the state’s primary contentions, or where there is overwhelming evidence

of defendant’s guilt.” Id. (cleaned up).

Here, even if the admission of the officer’s testimony was in error, the record

contains abundant other evidence to support the jury’s verdict, which does not raise

STATE V. HUNT

STADING, J., dissenting

a reasonable possibility that a different result would have been reached at the trial.

See State v. Harshaw, 138 N.C. App. 657, 662, 532 S.E.2d 224, 227 (2000) (holding

admission of testimony was not prejudicial because there was plenary other evidence

at trial that supported the State’s theory of premeditation and deliberation). For

example, an eyewitness recounted the events surrounding the collision:

Q. All right. Did you see the collision between the

defendant and Mr. Todd?

A. Yes, sir.

Q. Can you tell the jury about that?

A. Okay. Well[,] I was on my 4-wheeler. [Mr. Todd] was

on his . . . 4-wheeler in front of me. We w[ere] about to

leave out of the driveway. That’s when that - - the white

truck comes by, crossed the . . . double yellow lines. Hits

the 4-wheeler. It ends up in the ditch.

Q. Did you hear any noise as he approached - - the

defendant approached?

A. I heard the truck rev up.

Q. Can you replicate that for the jury, how that sounded?

A. Whoo, pow. Like that. And . . . I was in shock at the

same time so I didn’t know . . . what to do. So I jumped off

my 4-wheeler and was looking for [Mr. Todd] and I heard

[Defendant] say, “Where’s that motherf[***]er at? Where’s

that motherf[***]er at?”

....

Q. All right. Now did the defendant get out of the truck at

some point and start fussing at you?

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STADING, J., dissenting

A. Well, when he . . . backed out of the driveway and

stopped for a little bit. He was hollering, “Y’all

motherf[***]ers w[ere] in my yard.”

....

Q. Okay. Did you ever hear the defendant ask if Mr. Todd

was okay?

A. No.

Q. Did he ever go check on him and see . . . .

A. No.

Other evidence showed a lack of brake marks on the road, but tire marks

existed leading towards the 4-wheeler in the ditch. See id.; see also State v. Buie, 194

N.C. App. 725, 734, 671 S.E.2d 351, 357 (2009) (concluding admission of law

enforcement officer’s testimony was a harmless error—not the higher plain-error

standard—since there was “sufficient evidence to support the jury’s decision,

independent from the testimony[.]”). Accordingly, Defendant has not shown a

fundamental error occurred at trial; he has not established prejudice such “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) (cleaned up).

Considering the lack of prejudice, I would also hold that defendant has not

established that he received ineffective assistance of counsel. To show that his trial

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STATE V. HUNT

STADING, J., dissenting

counsel’s assistance was so defective as to require reversal of his conviction,

defendant must satisfy two test components:

First, the defendant must show that counsel’s performance

was deficient. This requires showing that counsel made

errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This

requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is

reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Here,

defendant cannot meet the second prong because the outcome would remain the

same. See State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985) (citation

omitted) (“The fact that counsel made an error, even an unreasonable error, does not

warrant reversal of a conviction unless there is a reasonable probability that, but for

counsel’s errors, there would have been a different result in the proceedings.”).

Defendant also argues that it was incumbent upon the trial court to intervene

during the prosecutor’s closing argument, focusing on the statement that defendant

“gets back in the truck and he backs out over [Mr. Todd’s] legs[.]” But because

defendant did not object at trial, our review of the alleged error shows that he faces

too high of a hurdle. See generally State v. Parker, 377 N.C. 466, 474, 858 S.E.2d 595,

600 (noting the defense bar cannot “sit back in silence during closing arguments but

then claim error whenever a trial court fails to address or otherwise correct a

misstatement of the evidence.”); see State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97,

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STADING, J., dissenting

107 (2002) (holding the “standard of review for assessing alleged improper closing

arguments that fail to provoke timely objection from opposing counsel is whether the

remarks were so grossly improper that the trial court committed reversible error by

failing to intervene ex mero motu.”).

For a trial court to intervene during a closing argument without a timely

objection, the statement must be extreme and “grossly improper” to render the trial

“fundamentally unfair” to a defendant’s due process rights. Parker, 377 N.C. at 472,

858 S.E.2d at 599. That is, “[a] ‘trial court is not required to intervene ex mero motu

unless the argument strays so far from the bounds of propriety as to impede

defendant’s right to a fair trial.’” Id. (quoting State v. Smith, 351 N.C. 251, 269, 524

S.E.2d 28, 41 (2000)). Even if a particular argument were improper, we look to

whether a defendant was prejudiced by assessing “the likely impact of any improper

argument in the context of the entire closing.” State v. Copley, 374 N.C. 224, 230, 839

S.E.2d 726, 730 (2020) (cleaned up).

Here, the prosecutor’s statement during the closing argument was an improper

misstatement of the evidence. See Parker, 377 N.C. at 474, 858 S.E.2d at 601 (“The

misstatements by the prosecutor appear to be mistakes in arguing the evidence

admitted at trial for which defendant did not lodge an objection, and defendant has

failed to meet his heavy burden.”). Still, it was not grossly improper such that it

prejudiced defendant to warrant a new trial when measured against the entirety of

the closing. See id.; see also State v. Peterson, 361 N.C. 587, 606–07, 652 S.E.2d 216,

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STADING, J., dissenting

229 (2007) (“Because we assume the argument was improper, we must determine

whether the argument prejudiced defendant to the degree that he is entitled to a new

trial.”).

“This is not the case where an attorney engage[d] in name-calling, ma[de]

statements of opinion, intrude[d] upon constitutional rights, or reference[d] events

outside of the evidence.” Id. (citing Jones, 355 N.C. at 130, 558 S.E.2d at 106); see

Jones, 355 N.C. at 133, 558 S.E.2d at 107 (“[W]e hold that the trial court abused its

discretion when it allowed, over defendant’s objection, the prosecutor’s closing

argument linking the tragedies of Columbine and Oklahoma City with the tragedy of

the victim’s death in this case.”); see also State v. Ward, 354 N.C. 231, 266, 555 S.E.2d

251, 273 (2001) (holding the trial court erred in not intervening ex mero motu when

the prosecutor impermissibly commented on the defendant’s right to remain silent

during sentencing by stating, “he decided just to sit quietly. He didn’t want to say

anything that would ‘incriminate himself’”). “Absent extreme or gross impropriety in

an argument, a judge should not be thrust into the role of an advocate based on a

perceived misstatement regarding an evidentiary fact when counsel is silent.”

Parker, 377 N.C. at 474, 858 S.E.2d at 601.

Defendant next contends that the trial court erred by misstating North

Carolina Criminal Pattern Jury Instruction 101.20, Weight of the Evidence, which

reads:

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STATE V. HUNT

STADING, J., dissenting

You are the sole judges of the weight to be given any

evidence. If you decide that certain evidence is believable

you must then determine the importance of that evidence

in light of all other believable evidence in the case.

N.C.P.I.—Crim. 101.20 (June 2011 Replacement) (emphasis added). The parties

agreed to this instruction, but during the actual charge, the trial court rendered the

following:

Weight of the evidence. You are the sole judges of the

weight to be given any evidence -- to any evidence. You

must decide that certain evidence is believable. You must

then determine the importance of that evidence in light of

all the other believable evidence in the case.

If a trial court erred by deviating from the agreed-upon instructions, such “[a]n

error in jury instructions is prejudicial and requires a new trial only if there is a

reasonable possibility that, had the error in question not been committed, a different

result would have been reached at the trial out of which the appeal arises.” State v.

Castaneda, 196 N.C. App. 109, 116, 674 S.E.2d 707, 712 (2009) (cleaned up). And if

the instructions construed as a whole made “it sufficiently clear that no reasonable

cause exists to believe that the jury was misled or misinformed, any exception to it

will not be sustained even though the instruction could have been more aptly

worded.” State v. Williams, 299 N.C. 652, 660, 263 S.E.2d 774, 779-80 (1980)

(citations omitted).

The meaning of jury instructions derives from the

instructions’ totality:

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STATE V. HUNT

STADING, J., dissenting

It is well established in North Carolina that courts will not

find prejudicial error in jury instructions where, taken as

a whole, they present the law fairly and clearly to the jury.

Isolated expressions of the trial court, standing alone, will

not warrant reversal when the charge as a whole is correct.

State v. Graham, 287 N.C. App. 477, 486–87, 882 S.E.2d 719, 727 (2023) (cleaned up);

see also Odom, 307 N.C. at 661, 300 S.E.2d at 378–79 (“In deciding whether a defect

in the jury instruction constitutes ‘plain error,’ the appellate court must examine the

entire record and determine if the instructional error had a probable impact on the

jury’s finding of guilt.”).

While the trial court erroneously varied in its application of the instructions,

the impact failed to have a probable impact on defendant’s guilt when read in context.

See State v. Williams, 315 N.C. 310, 327-28, 338 S.E.2d 75, 86 (1986) (cleaned up)

(“We have recognized that every variance from the procedures set forth in the statute

does not require the granting of a new trial.”). In other words, given the charge

instructions in their entirety, the variance is not so fundamental that the jury would

have reached a different result. See Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.

Next, the State concedes defendant’s argument that the habitual felon

indictment was fatally defective since two of the referenced convictions fall outside

the purview of N.C. Gen. Stat. § 14-7.1 (2023). Both parties are correct on this point.

I would therefore remand the case for resentencing. This result renders defendant’s

petition for writ of certiorari moot.

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STATE V. HUNT

STADING, J., dissenting

Last, defendant argues that the trial court erred by ordering restitution for

$592,000 as unsupported by the evidence. “[T]he quantum of evidence needed to

support a restitution award is not high. When there is some evidence about the

appropriate amount of restitution, the recommendation will not be overruled on

appeal.” State v. Moore, 365 N.C. 283, 285, 715 S.E.2d 847, 849 (2011) (cleaned up).

Mr. Todd testified, “First bill I got was $525,000. Then I got an air flight bill. I think

it was $42,000. And I’m still going to doctors.” Hence, there was at least “some

evidence” supporting an award of restitution. Still, it does not provide the level of

specificity required to support the award. Id. at 286, 715 S.E.2d at 849. As a result,

remand is necessary “for the trial court to determine the amount of damage

proximately caused by defendant’s conduct and to calculate the correct amount of

restitution.” Id. at 286, 715 S.E.2d at 849-50.

Considering the foregoing, I would hold any error allowing the trooper’s

opinion testimony did not rise to the level of plain error and defendant’s trial counsel

did not provide ineffective assistance. Additionally, I would hold that the trial court

did not prejudicially err when it instructed the jury or failed to intervene ex mero

motu during the prosecutor’s closing argument. Therefore, I would affirm defendant’s

convictions for injury to personal property and assault with a deadly weapon with

intent to kill or inflict serious bodily injury. However, as conceded by the State, I

would reverse defendant’s habitual felon status conviction due to the fatally defective

indictment and remand this case for resentencing without the habitual felon

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STADING, J., dissenting

sentencing enhancement. Additionally, on remand, the trial court should review the

restitution award to determine the amount of damage proximately caused by

defendant.

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