State v. Altman
| Decision Date | 05 March 2019 |
| Docket Number | No. COA18-544,COA18-544 |
| Citation | 824 S.E.2d 211 (Table) |
| Parties | STATE of North Carolina v. Richard Anthony ALTMAN, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth N. Strickland, for the State.
William D. Spence for the Defendant.
Defendant Richard Anthony Altman appeals from the trial court's judgment entering a jury verdict convicting him of felony death by vehicle and impaired driving. After thorough review, we find no error in the jury's verdict, but vacate the conviction and sentence for impaired driving because it is a lesser-included offense of felony death by vehicle.
This case arises from a motor vehicle accident on River Road in Chowan County. The evidence presented at trial tended to show as follows:
On 30 August 2014, Defendant and his two sons attended a pig picking. Defendant was seen drinking alcohol at the event. Around 7:00 p.m., Defendant and his sons left the event in a red truck and approached a curve in River Road. A tractor driven by a Mr. McMullen approached the curve from the opposite direction. As Defendant neared the curve, he swerved into the tractor's lane. The tractor swerved into Defendant's lane. Defendant then swerved swiftly back into his own lane, causing his truck to flip multiple times and land in a field neighboring the road.
Defendant's older son crawled out from under the truck and began walking around the field. Defendant's younger son was pinned under the truck and later died at the scene. When paramedics arrived, Defendant was uncooperative and belligerent, and eventually had to be airlifted to a hospital in Virginia. Paramedics reported smelling alcohol on Defendant and hearing Defendant admit to drinking.
Defendant was charged with a number of crimes associated with the accident. At the close of the State's evidence and again at the close of all the evidence, Defendant made motions to dismiss all charges against him. The trial court denied the motion each time.
The jury convicted Defendant of involuntary manslaughter, felony death by motor vehicle, and driving while impaired. The trial court arrested judgment on involuntary manslaughter and entered judgment on the remaining two offenses. The trial court sentenced Defendant separately for death by motor vehicle and for driving while impaired, with each sentence running consecutively.
Defendant gave notice of appeal in open court.
Defendant brings a number of arguments challenging each of his convictions, as well as the sentences entered upon them. We address each argument in turn.
Defendant first contends that the trial court erred in admitting hospital records detailing his blood alcohol content (BAC) following the accident. Defendant failed to object at trial when the State offered a disc containing the hospital records into evidence. Therefore, we review only for plain error, to determine whether a fundamental error occurred which had a probable impact on the jury's decision. State v. Maddux , ––– N.C. ––––, ––––, 819 S.E.2d 367, 370-71 (2018).
Prior to trial, the State acquired a compact disc containing Defendant's hospital records created by the hospital in the course of his treatment following the accident, along with an affidavit from the hospital's custodian of records affirming the authenticity of the records. After a pre-trial hearing on the matter, the trial court determined that a page from the records detailing the results of a test on Defendant's blood was admissible. The State introduced into evidence and published to the jury a page stating "Results for orders placed during the hospital encounter of 8/30/14 (from the past 24 hour(s)) ... ETHANOL SERUM 0.21[.]"
Out-of-court statements offered for the truth of the matter asserted within them are generally inadmissible as "hearsay." N.C. Gen. Stat. § 8C-1, Rules 801, 802 (2017). A business record is admissible as an exception to hearsay where it is made (1) at or near the time (2) by a person with knowledge (3) following the regular practice of the business and (4) kept in the regular course of business. N.C. Gen. Stat. § 8C-1, Rules 803(6) (2017). Business records must be supported by the testimony or affidavit of their custodian, or another qualified individual. Id. ; N.C. Gen. Stat. § 8C-1, Rule 902 (2017). "Notwithstanding any other provision of law, if a person is involved in a vehicle crash ... [a] certified copy of identifiable health information, if relevant, shall be admissible in any hearing or trial without further authentication." N.C. Gen. Stat. § 90-21.20B(a1), (c) (2017).
Defendant contends, specifically, that the affidavit offered in support of the hospital records does not satisfy the test for a business record's admissibility nor establish its authenticity. The parties each cite to our Supreme Court's decision in State v. Drdak , and we find that case instructive here.
In Drdak , the State did not order a test of the defendant's blood following a car accident, but later acquired the results of a routine blood test performed when the defendant was admitted to the hospital. State v. Drdak , 330 N.C. 587, 591, 411 S.E.2d 604, 607 (1992). Our Supreme Court held that the test results were admissible to show the defendant's BAC because the test was ordered less than an hour after the accident, trained and experienced staff conducted the test using reliable equipment pursuant to routine procedure, and the test was then added to the defendant's medical records to aid diagnosis and treatment. Drdak , 330 N.C. at 592, 411 S.E.2d at 607-08.
While the affidavit in this case does not rise to the same level of specificity as was testified to in Drdak , we cannot say that the trial court committed reversible error in allowing the medical records into evidence. The hospital ordered Defendant's blood tests as soon as he arrived at the hospital under its ordinary patient intake procedures. Those tests were then processed by medical personnel and the results were added to Defendant's records to assist in his treatment. The affidavit accompanying the records attests that they were "prepared and maintained in the ordinary course of business by authorized persons or personnel ... at or near the time of the ... events described in such records." The number corresponding to Defendant's blood ethanol level "constitute[s] a record made in the usual course of business, made contemporaneously with the events and recorded by one with authority to do so before litigation arose." State v. Miller , 80 N.C. App. 425, 429, 342 S.E.2d 553, 556 (1986). "This evidence meets the requirements necessary to provide a proper foundation for the admission of the blood alcohol test results." Drdak , 330 N.C. at 592, 411 S.E.2d at 607-08.
Defendant also contends that it was improper for the State to use the custodian's affidavit without giving advance notice of its intent to do so. N.C. Gen. Stat. § 8C-1, Rule 803(6) (). However, the record shows that the State served Defendant with notice of its intent to use the affidavit and filed the notice of intent with the court more than four weeks before the trial.
In conclusion, based on the foregoing, we cannot say that the trial court committed plain error by failing to exclude the hospital records.
Defendant makes multiple arguments assigning error to the trial court's denial of his motion to dismiss the charges against him. When deciding a motion to dismiss, the trial court is to determine whether, as a matter of law and in the light most favorable to the State, there is "substantial evidence of each essential element of the crime and that the defendant is the perpetrator." State v. Chekanow , 370 N.C. 488, 492, 809 S.E.2d 546, 549 (2018) (citation omitted). "Whether the State presented substantial evidence of each essential element of the offense is a question of law; therefore, we review the denial of a motion to dismiss de novo." State v. Melton , ––– N.C. ––––, ––––, 821 S.E.2d 424, 428 (2018).
To obtain a conviction for driving while impaired, the State must show that the defendant drove his vehicle:
N.C. Gen. Stat. § 20-138.1(a) (2013).
We conclude that the State presented substantial evidence as to this charge. First, the State presented substantial evidence that Defendant was under the influence of an impairing substance at the time of the accident. Defendant was seen consuming alcohol at the pig picking. Defendant's older son stated that there had been alcohol at the pig picking. Defendant sped into the curve on River Road with his children in the vehicle, swerved and was unable to control the truck before it flipped. Beer cans, full and empty, were discovered at the scene of the accident. The paramedics who treated Defendant following the accident stated that his behavior was uncooperative, that he smelled strongly of alcohol, and that Defendant admitted to drinking "a lot."
The officer who visited Defendant at the hospital stated that the room still smelled of alcohol, and Defendant's bloodwork showed he had a BAC of 0.21. The officer observed the scene of the accident and opined that the skid marks on the road evinced that Defendant swerved multiple times, including before he came within an appreciable distance of the tractor on the other side of the road.
Defendant cites to precedent that consumption of alcohol, State v. Parisi , 135 N.C. App. 222, 224, 519 S.E.2d 531, 533 (1999), and smelling of alcohol, State v. Harrington , 78 N.C. App. 39, 45, 336 S.E.2d 852, 855 (1985), "alone" are not substantial...
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