State v. Ford , 245 N.C. App. 510 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-75
Filed: 16 February 2016
Person County, No. 12 CRS 51505
STATE OF NORTH CAROLINA
v.
ANTONIO DELONTAY FORD
Appeal by defendant from judgment entered 29 July 2014 by Judge W. Osmond
Smith, III, in Person County Superior Court. Heard in the Court of Appeals 22
September 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General David L.
Elliot, for the State.
Gilda C. Rodriguez for defendant-appellant.
BRYANT, Judge.
Where the admission of a “rap song” was not substantially more prejudicial
than probative, we overrule defendant’s argument that he is entitled to a new trial.
The trial court’s admission of “screenshots” from an internet website was not error.
The admission of opinion testimony of an expert in forensic pathology, that the
victim’s injuries were caused by dog bites, was not in violation of Rules 702 or 704
and did not amount to plain error.
On 10 September 2012, a grand jury in Person County indicted defendant
Antonio Delontay Ford on charges of involuntary manslaughter and obstruction of
STATE V. FORD
Opinion of the Court
justice, in regard to the death of Eugene Cameron. The matter came on for trial on
23 July 2014 in Person County Superior Court, the Honorable W. Osmond Smith, III,
Judge presiding.
The evidence presented at trial tended to show that on 27 May 2012, at 11:00
a.m., Deputy Adam Norris, of the Person County Sheriff’s Department, responded to
a residence located at 1189 Semora Road in Roxboro, based on a report of a possibly
deceased person. At the residence, under a carport, Deputy Norris observed the body
of an adult male, later identified as Eugene Cameron, lying face up in a pool of blood.
The victim’s clothes had been ripped off and there were “severe lacerations to the
[victim’s] inner right arm and the biceps [sic] area, between that and the triceps.”
Most of the blood appeared to have come from lacerations to the victim’s inner biceps.
Also, there were paw prints in the blood pool surrounding the body. The victim had
no pulse, and the body exhibited partial rigidity.
Detective Michael Clark and other deputies with the Person County Sheriff’s
Department, also reported to the scene on 27 May 2012. Detective Clark spoke with
the homeowner, John Paylor, by cell phone. When informed that the victim appeared
to have been killed in a dog attack, Paylor suggested that Detective Clark look at the
dog next door.
Detective Clark and other law enforcement officers walked to the next door
residence and observed a “pretty heavy” chain around a light pole in the back yard.
-2-
STATE V. FORD
Opinion of the Court
They spoke with defendant, who acknowledged owning a dog named DMX. DMX was
removed from defendant’s home and turned over to Animal Control. Dried blood,
observed on areas of DMX’s body including his chest and muzzle (mouth) area, was
collected and samples sent for DNA testing. DNA samples were also taken from the
victim’s pants, shirt, belt, and cell phone case. DNA taken from punctured cloth from
the victim’s pants confirmed the presence of DMX’s DNA.
During the course of the investigation it was revealed that DMX had been
allowed to run freely in the neighborhood and that there had been at least three other
dog-bite incidents involving DMX. Kennard Graves, who lived at 1253 Semora Road,
testified that he was a life-long resident of Person County and that he had known
defendant “all my life.” Graves had been familiar with defendant’s dog, DMX, for
“[a]bout 6 or 7 years.” Graves had five dogs of his own. Graves testified that he had
observed DMX running loose in the neighborhood plenty of times, and in the month
prior to Eugene Cameron’s death, DMX had attacked one of Graves’s dogs in Graves’s
backyard.
Tyleik Pipkin, who was 23 years old at the time of trial, testified that on 20
October 2007, he was talking with defendant, whom he knew by the nickname “Flex.”
Defendant was holding his dog, but the dog got loose. Pipkin and an acquintance ran
and tried to hop on top of a car. When Pipkin fell off, defendant’s dog tried to reach
Pipkin’s neck, and while they struggled, the dog bit Pipkin under his left bicep.
-3-
STATE V. FORD
Opinion of the Court
Pipkin described the dog as “very aggressive.” Pipkin identified the dog pictured in
one of the State’s exhibits (Exhibit 60) as looking like the same dog that attacked him.
State’s Exhibit 60 was a picture of DMX.
Michael Wix was employed with the Durham County Department of Animal
Control. On 20 October 2007, he responded to a 9-1-1 call reporting multiple people
on Piper Street bitten by a dog. Upon arrival, Officer Wix “met [defendant] there who
at the time was trying to secure DMX, who was running loose on Piper Street.”
Defendant identified the dog as DMX, which Officer Wix noted was a red and white
male pit bull. In his report on the incident, Officer Wix wrote that defendant had let
his dog loose, the dog bit two people, after which defendant was able to capture the
dog. But thirty minutes later, defendant’s dog was again running loose on Piper
Street. Officer Wix reported that defendant appeared to be intoxicated and that when
Officer Wix informed defendant that DMX would have to be quarantined, defendant
became “very angry and aggressive.”
John Paylor, Jr., the homeowner of the residence located at 1189 Semora Road
where Eugene Cameron’s body was found, testified that he had lived at that address
for twelve years. Paylor, a Vietnam veteran, who had worked with the recreations
department, had been a corrections officer, and recently retired from the Department
of Transportation, testified that he and Cameron had been friends “most of my life.”
“We came up together through school[, high school and elementary].” Cameron would
-4-
STATE V. FORD
Opinion of the Court
usually come to Paylor’s house on Saturdays after male choral practice at church. On
26 May 2012, Paylor spoke with Cameron by cell phone at 5:16 p.m. Paylor was at
Myrtle Beach, and Cameron was checking on Paylor’s house. Paylor testified that
under his carport was a table and chairs, and that it was common for him and
Cameron to sit outside in the shade. Defendant was Paylor’s next door neighbor, and
Paylor was familiar with defendant and defendant’s dog, DMX.
The night before trial began, Detective Clark discovered a webpage hosted by
www.myspace.com, with the screen name Flexugod/7.1 On the webpage, Detective
Clark observed photos of defendant and videos of defendant’s dog, DMX. Detective
Clark captured a “screenshot” of a video link entitled “DMX the Killer Pit.” The
caption associated with the video stated “After a Short Fight, he killed that mut” [sic];
the description read, “Undefeated.” The videos themselves were neither admitted
into evidence nor played for the jury; however, “screenshots” of the video links were
admitted into evidence and published to the jury. Detective Clark testified that the
“screenshots” of the dog depicted in the videos was the same dog seized during the
investigation. Detective Clark also discovered a song “posted [online] by [defendant]
Antonio Ford” about the incident under investigation, the lyrics denying that the
victim’s death was caused by a dog. Over defendant’s objection, the song was played
for the jury. Detective Clark testified that he recognized the voice on the recording
1In crime scene photos of defendant’s residence, Detective Clark observed an award given to
defendant that referred to him by the nickname “Flex.”
-5-
STATE V. FORD
Opinion of the Court
as defendant’s. Paylor also recognized the song played for the jury. Paylor testified
that defendant often played his music loudly, and Paylor had heard that song coming
from defendant’s residence.
The evidence also consisted of testimony from Dr. Samuel David Simmons, a
forensic pathologist employed by the North Carolina Office of the Chief Medical
Examiner at the time Eugene Cameron’s body was autopsied. Dr. Simmons testified,
without objection, to his forensic examination and his opinion as to cause of death.
He related his initial observations of the victim’s body. “[A] lot of the clothing
appeared to be torn and blood soaked. . . . He had a pair of blue jeans which were
partially pulled down his legs.” As to the victim’s injuries, Dr. Simmons testified that
“the pattern is consistent with animal bites. These would also be consistent with dog
bites as well.”
Q. Based upon your, um, overall examination of Mr.
Cameron and the various injuries he had, do you
have an opinion as to which of those injuries would
have been the fatal wound or fatal injury?
A. [Mr. Cameron’s right upper arm] is the area of fatal
injury, and again from the complexity, it’s hard to
tell if this was just one single bite in this particular
area or multiple bites in the same area, but there
were multiple perforations of his brachial artery and
the vein that accompanies that artery.
-6-
STATE V. FORD
Opinion of the Court
“The brachial artery is the main vessel that supplies blood down from your heart to
your hand, essentially. So, all of the blood passes through your brachial artery.” “My
opinion is the cause of death is exsanguination due to dog bites.”
Elizabeth Wictum was admitted without objection as an expert in nonhuman
forensic science and DNA analysis. Wictum, the director of the forensic unit within
the Veterinary and Genetics Lab at the University of California Davis, testified that
she compared the DNA profiles obtained from the punctured area of the victim’s pants
with a swab taken from the dog. “I got an exact match.” Wictum testified that,
according to her calculations, the number of times this profile comes up in the dog
population is about 1 in five quadrillion.
Jessica Posto, a forensic biologist working for the North Carolina State Crime
Laboratory during the time of the investigation of the death of Eugene Cameron, was
admitted to testify as an expert in the field of forensic science, including body fluid
identification. Posto testified that she examined hair taken from the right side of the
dog’s belly, hair from under the dog’s chest, hair from the left side of the dog’s muzzle,
and hair from the upper left side of the dog’s neck. All four samples “revealed the
presence for human blood.” A forensic DNA analyst working in the biology section of
the Raleigh Crime Lab testified that the DNA profile from Cameron’s body matched
the blood samples taken from DMX’s fur.
-7-
STATE V. FORD
Opinion of the Court
At the conclusion of the evidence, the jury returned a guilty verdict against
defendant on the charge of involuntary manslaughter both on the basis of unlawfully
allowing his dog, which was over six months old, to run at large, unaccompanied, in
the nighttime, and of acting in a criminally negligent way. The jury found defendant
not guilty of the charge of obstruction of justice. In accordance with the jury verdict,
the trial court entered judgment against defendant on the charge of involuntary
manslaughter, sentencing defendant to an active term of 15 to 27 months. Defendant
appeals.
_________________________________________
On appeal, defendant raises the following issues: the trial court (I) erred in
admitting a “rap” song recording; (II) erred in admitting evidence taken from the
internet; and (III) committed plain error in admitting opinion testimony.
I
Defendant argues the trial court erred in admitting a “rap” song recording
alleged to be defendant’s. Defendant contends that the song was not relevant as it
“did not have any tendency to make the existence of any fact that [was] of consequence
to the determination of the action more probable or less probable” and further, was
admitted in violation of Rule 403. We disagree.
Pursuant to North Carolina General Statutes, section 8C-1, Rule 402, “[a]ll
relevant evidence is admissible, except as otherwise provided by the Constitution of
-8-
STATE V. FORD
Opinion of the Court
the United States, by the Constitution of North Carolina, by Act of Congress, by Act
of the General Assembly or by these rules. Evidence which is not relevant is not
admissible.” N.C. Gen. Stat. § 8C-1, Rule 402 (2013). “ ‘Relevant evidence’ means
evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be
without the evidence.” Id. § 8C-1, Rule 401 (2013). “Although relevant, evidence
may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.” Id.
§ 8C-1, Rule 403 (2013). “[T]he term ‘unfair prejudice’ contemplates evidence having
‘an undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, as an emotional one.’ ” State v. McDougald, 336 N.C. 451, 457, 444 S.E.2d
211, 214 (1994) (citation omitted) (quoting N.C.G.S. § 8C-1, Rule 403 official
commentary).
Whether to exclude evidence under Rule 403 is a matter
within the sound discretion of the trial court. This Court
will find an abuse of discretion only upon a showing that
the trial court's ruling was manifestly unsupported by
reason and could not have been the result of a reasoned
decision.
State v. Jackson, ___ N.C. App. ___, ___, 761 S.E.2d 724, 732 (2014) (citation and
brackets omitted).
A defendant is prejudiced by errors relating to rights
-9-
STATE V. FORD
Opinion of the Court
arising other than under the Constitution of the United
States when 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.
N.C. Gen. Stat. § 15A-1443(a) (2013).
Defendant moved to suppress admission of the song. However, his motion was
denied, and the song was played during trial. Defendant now argues that the song,
which contains profanity and racial epithets, served to offend and inflame the jury’s
passions and allowed them to “disregard holes in the State’s case.”
Defendant attempts to point to the “holes in the State’s case” and minimize the
State’s evidence by contending that the evidence presented did not inextricably tie
his dog to the death of the victim. Defendant points to what was lacking in the
testimony (e.g., no blood on DMX’s paws, no paw prints or impressions leading to
defendant’s residence, and the difference between the span of the average canine bite
impression on the victim’s body and DMX’s bite span). Other than his argument of
the facts, which set forth his defense, defendant cannot show that the jury
disregarded what he terms “holes in the State’s case.” His main argument is that
admission of the song written, recorded, and published on social media and played
from defendant’s home to the observation of his neighbor, resulted in unfair prejudice
to him.
- 10 -
STATE V. FORD
Opinion of the Court
The State, on the other hand, asserts that the song was relevant and
admissible to prove that the www.myspace.com page on which the song and other
information was found was defendant’s page (see also Issue II) and to prove, not only
defendant’s knowledge that his dog was vicious, but that defendant himself was
proud of the viciousness of his dog. Videos posted to defendant’s page on myspace.com
were titled “dmx tha killa FLEXUGOD7” and “DMX THA KILLA PIT Flexugod7.”
Turning our attention to the lyrics of the song, we note that while the song does
contain profanity and racial epithets, it also carries a message consistent with
defendant’s claim that the victim was not killed by a dog; that defendant and DMX
were scapegoats and had nothing to do with the victim’s death; and that defendant’s
dog, having been held “hostage” for almost two years, should be freed.
Notwithstanding the message in the lyrics as to the lack of culpability of
defendant and DMX in the death of the victim—a message that supported defendant’s
defense, we hold defendant has failed to show the trial court abused its discretion in
ruling that the evidence was relevant for the purposes stated. Further, the trial court
did not err in determining that the probative value was not substantially outweighed
by the prejudicial effect. While the song’s use of profanity and accusatory language
may have inflamed the passions of the jury, the song itself was relevant and
probative, outweighing any prejudicial effect. Other relevant evidence may have done
the same: For example, photos of the crime scene—showing bite marks and blood—
- 11 -
STATE V. FORD
Opinion of the Court
may inflame passions, but such evidence is relevant and necessary to show not only
a death but, depending on the jury’s view, a death due to bite marks caused by a dog.
Viewing the evidence before the jury, including prior unprovoked attacks by
DMX against people and other dogs, the physical condition of Cameron’s clothes and
body, evidence of DNA from defendant’s dog around punctures on Cameron’s clothes,
evidence as to cause of death—exsanguination due to dog bites, and Cameron’s blood
found on DMX’s fur, there is no reasonable possibility that, had the song not been
admitted, a different result would have been reached at trial. Defendant is unable to
establish any prejudicial error. Accordingly, we overrule defendant’s argument.
II
Next, defendant argues that the trial court erred by admitting as evidence two
exhibits taken from the internet. Defendant contends that the evidence was not
properly authenticated under Rule 901. Specifically, defendant contends that the
trial court erred in admitting into evidence the State’s proffer of two screenshots
taken from a webpage hosted by www.myspace.com with only pictures of defendant
and his dog and the publication of defendant’s nickname for authentication. We
disagree.
“A trial court's determination as to whether a document has been sufficiently
authenticated is reviewed de novo on appeal as a question of law.” State v. Crawley,
217 N.C. App. 509, 515, 719 S.E.2d 632, 637 (2011) (citation omitted); see generally
- 12 -
STATE V. FORD
Opinion of the Court
Phillips v. Fin. Co., 244 N.C. 220, 92 S.E.2d 766 (1956) (per curiam) (holding that
where documents are not properly identified for admission into evidence, they are
properly excluded).
“Any party may introduce a photograph, video tape, motion picture, X-ray or
other photographic representation as substantive evidence upon laying a proper
foundation and meeting other applicable evidentiary requirements.” N.C. Gen. Stat.
§ 8–97 (2013). Pursuant to North Carolina General Statutes, section 8C-1, Rule 901
(Requirement of authentication or identification), “[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” N.C. Gen. Stat. § 8C-1, Rule 901(a) (2013).
Defendant cites Rankin v. Food Lion, 210 N.C. App. 213, 706 S.E.2d 310 (2011),
in support of his argument, strongly stated on appeal, but barely raised at trial. In
Rankin, the plaintiff appealed an order granting summary judgment in favor of the
defendants on the plaintiff’s negligence claim. Plaintiff alleged that the defendant
was the owner of the store in which she was injured. To establish ownership, the
plaintiff presented two documents, printouts from internet web pages. The Rankin
Court held that the trial court properly excluded the two internet webpage printouts
from evidence: Where plaintiff made no effort to authenticate them, they could not
serve as proper evidence to challenge the defendant’s motion for summary judgment.
- 13 -
STATE V. FORD
Opinion of the Court
Id. at 220, 706 S.E.2d at 315. The Rankin Court affirmed the trial court’s grant of
summary judgment. Id. at 222, 706 S.E.2d at 316.
Rankin is distinguishable from the instant case. In Rankin, the Court noted
the plaintiff’s failure to offer “any evidence tending to show what the documents in
question were . . . and [failure to] make any other effort to authenticate these
documents.” Id. at 219, 706 S.E.2d at 315. On the other hand, in the instant case,
the State presented substantial evidence, which tended to show that the website was
what it was purported to be—defendant’s webpage.
We look to Hassan for guidance as to authentication of exhibits taken from
websites. In United States v. Hassan, the Fourth Circuit Court of Appeals considered
whether exhibits taken from internet websites hosted by Facebook and YouTube,
submitted in the prosecution of two defendants, were properly authenticated. 742
F.3d 104, 132 (4th Cir.), cert. denied sub nom. Sherifi v. United States, ___ U.S. ___,
189 L. Ed. 2d 774, and cert. denied, ___ U.S. ___, 190 L. Ed. 2d 115 (2014), and cert.
denied sub nom., Yaghi v. United States, ___ U.S. ___, 190 L. Ed. 2d 115 (2014). “The
court . . . required the government, pursuant to Rule 901, to prove that the Facebook
pages were linked to [the defendants].” Id. at 132–33.
Turning to Rule 901, subdivision (a) thereof provides that,
to “establish that evidence is authentic, the proponent need
only present ‘evidence sufficient to support a finding that
the matter in question is what the proponent claims.’ ” See
United States v. Vidacak, 553 F.3d 344, 349 (4th Cir.2009)
(quoting Fed. R. Evid. 901(a)). Importantly, “the burden to
- 14 -
STATE V. FORD
Opinion of the Court
authenticate under Rule 901 is not high—only a prima facie
showing is required,” and a “district court's role is to serve
as gatekeeper in assessing whether the proponent has
offered a satisfactory foundation from which the jury could
reasonably find that the evidence is authentic.” Id.
Id. at 133 (emphasis added). The U.S. Court of Appeals for the Fourth Circuit, upheld
the trial court’s determination “that the prosecution had satisfied its burden under
Rule 901(a) by tracking the Facebook pages and Facebook accounts to [the
defendant’s] mailing and email addresses via internet protocol addresses.” Id. at 133.
Cf. Vidacak, 553 F.3d at 350 (“[T]he burden of authentication is not as demanding as
suggested by [the defendant]—a proponent need not establish a perfect chain of
custody or documentary evidence to support their admissibility. United States v.
Cardenas, 864 F.2d 1528, 1531 (10th Cir.1989) (‘deficiencies in the chain of custody
go to the weight of the evidence, not its admissibility; once admitted, the jury
evaluates the defects and, based on its evaluation, may accept or disregard the
evidence.’). Indeed, the prima facie showing may be accomplished largely by offering
circumstantial evidence that the documents in question are what they purport to be.
See, e.g., United States v. Dumeisi, 424 F.3d 566, 575–76 (7th Cir. 2005) (holding that
documents of the Iraqi Intelligence Service were properly authenticated by
circumstantial evidence and witness testimony); United States v. Elkins, 885 F.2d
775, 785 (11th Cir. 1989) (‘Use of circumstantial evidence alone to authenticate a
document does not constitute error.’).” (emphasis added)) (citing United States v.
- 15 -
STATE V. FORD
Opinion of the Court
Safavian, 435 F. Supp. 2d 36, 38 (D.D.C.2006) (“[t]he Court need not find that the
evidence is necessarily what the proponent claims, but only that there is sufficient
evidence that the jury ultimately might do so”) in its discussion of the threshold
requirements for a proffer of evidence to satisfy Fed. R. Evid. 901(a));2 see also State
v. Taylor, 178 N.C. App. 395, 413, 632 S.E.2d 218, 230 (2006) (holding the text
messages admitted were properly authenticated pursuant to Rule 901 where a
telecommunications employee, who kept track of all incoming and outgoing text
messages, testified that the messages were stored on the company server and
accessible via the company’s website with the proper access code, and the manager of
a cellphone store testified that the text messages he retrieved were accessed from the
telecommunication company’s server with the access code for the phone the manager
issued to the victim).
In the instant case, the record reflects the trial court’s synopsis of a meeting
conducted out of the presence of the jury, during which the trial court was notified
that the State sought to introduce evidence discovered the previous night by a law
enforcement officer on a social media website. The prosecutor contended that “[t]he
actual page that shows pictures of the defendant and his name, so that we can
2 N.C. Rule of Evidence 901 (N.C. Gen. Stat. § 8C-1, Rule 901) “is identical to Fed. R. Evid. 901
except that in example 10 [(under subsection (b) ‘Illustrations’)] the word ‘statute’ is inserted in lieu
of the phrase ‘Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory
authority.’ ” N.C.G.S. § 8C-1, Rule 901, official commentary (2015).
- 16 -
STATE V. FORD
Opinion of the Court
authenticate for the jury that this is his myspace page. It also includes the dog in
question, DMX.”
Also, within the myspage page, there is a short video of
DMX on a chain being called, although chained up, pulling
against the chain, and also a posting of a song, which the
[c]ourt has previously previewed, but talks about this case
and the defendant’s denial that his dog did this, but also a
lot of other references, your Honor, that would fit the
State’s theory of the case that the defendant has a careless
disregard for life and for the safety of others.
In response, defendant first moved to suppress the recently discovered evidence based
on the late notice, then defendant argued
that with regard to authentication, simply because it has
been said that this page or these pages are in my client’s
name, do not necessarily mean that he posted any of this
material. I don’t know if there has been, um, what would
need to be done to trace this back to a particular IP address
or whatever at this time. So, I think authentication would
certainly be an issue that we would raise.
To the extent defendant’s objection was based on insufficient authentication, it was
not clearly a part of his suppression motion. The trial court overruled defendant’s
objections reasoning that the State had stated a forecast of the foundation and a valid
evidentiary purpose for the evidence and had a good faith basis to expect the evidence
to be admitted at trial. The court noted further foundation would need to be provided
when witnesses were called. Defendant took no exception to the trial court’s ruling,
and failed to raise a further objection either during direct or cross-examination of
witness testimony regarding the newly discovered evidence.
- 17 -
STATE V. FORD
Opinion of the Court
At trial, Detective Clark testified that while investigating this case he came
across a “myspace page with the name of Flexugod/7.” On that page he found photos
of defendant and videos. Detective Clark testified that the dog depicted on the
webpage was the dog held in custody, DMX. Detective Clark testified that during the
course of his investigation he photographed a certificate awarded to defendant, on
which defendant is referred to as “Flex.” In the course of Detective Clark’s search on
www.myspace.com, he found a video posted to another social media website,
www.youtube.com, depicting defendant’s dog, DMX. The video was not played for the
jury. Detective Clark also introduced a song that he found as a result of his internet
search but did not indicate on what website the song was found. Detective Clark
testified he recognized the voice in the song as that of defendant’s.3 This song is the
same “rap” song we reviewed in Issue I and determined the trial court did not err in
admitting the song as relevant and not unduly prejudicial.
On this record, the evidence is sufficient to support a prima facie showing that
the myspace webpage at issue was defendant’s webpage. While tracking the webpage
directly to defendant through an appropriate electronic footprint or link would
provide some technological evidence, such evidence is not required in a case such as
this, where strong circumstantial evidence exists that this webpage and its unique
content belong to defendant.
3Detective Clark interviewed defendant prior to trial and testified that he was familiar with
defendant’s voice.
- 18 -
STATE V. FORD
Opinion of the Court
The webpage contained content unique to defendant, whose nickname was
“Flex” and webpage name was “Flexugod/7”: it contained pictures of defendant;
pictures of his dog, DMX; it contained video captioned “DMX tha Killer Pit” and
another video captioned “After a Short Fight, he killed that mut.” Not only was the
content distinctive and unique to defendant and DMX, it was directly related to the
facts in issue—whether defendant had been criminally negligent in allowing his
dangerous dog to attack and kill a man. Thus, the trial court did not err in admitting
the screenshots of the webpage hosted by www.myspace.com as defendant’s webpage.
Further, we note for defendant and for the record that even assuming arguendo
the trial court erred, given the evidence before the jury regarding prior unprovoked
attacks by defendant’s dog against both people and other dogs, the cause of Cameron’s
death, the physical condition of Cameron’s clothes and body, evidence of DNA from
defendant’s dog found around punctures on Cameron’s clothes, and Cameron’s blood
found on the dog’s fur, there is no reasonable possibility that, had the webpage
screenshots not been admitted, a different result would have been reached at the
trial. Accordingly, we overrule defendant’s argument.
III
Lastly, defendant argues that the trial court committed plain error by allowing
a pathologist to opine that Cameron’s death was due to dog bites. Defendant, who
did not object to this testimony at trial, now contends that pathologist, Dr. Samuel
- 19 -
STATE V. FORD
Opinion of the Court
Simmons, was in no better position than the jurors “to speculate that the source of
the puncture wounds was specifically a dog.” We disagree.
In criminal cases, an issue that was not preserved
by objection noted at trial and that is not deemed preserved
by rule or law without any such action nevertheless may be
made the basis of an issue presented on appeal when the
judicial action questioned is specifically and distinctly
contended to amount to plain error.
N.C. R. App. P. 10(a)(4) (2015). “To show plain error, a defendant must demonstrate
that a fundamental error occurred at trial.” State v. Brown, 221 N.C. App. 383, 389,
732 S.E.2d 584, 589 (2012) (citation and quotations omitted).
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
affects the fairness, integrity or public reputation of
judicial proceedings.
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and
quotations omitted).
Pursuant to North Carolina General Statutes, section 8C-1, Rule 702,
[i]f scientific, technical or other specialized knowledge will
assist the trier of fact to understand the evidence or to
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:
- 20 -
STATE V. FORD
Opinion of the Court
(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) (2015). Further, pursuant to Rule 702,
“[t]estimony in the form of an opinion or inference is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.” Id. § 8C-1, Rule 704.
In interpreting Rule 704, this Court draws a distinction
between testimony about legal standards or conclusions
and factual premises. An expert may not testify regarding
whether a legal standard or conclusion has been met at
least where the standard is a legal term of art which carries
a specific legal meaning not readily apparent to the
witness. Testimony about a legal conclusion based on
certain facts is improper, while opinion testimony
regarding underlying factual premises is allowable.
State v. Trogdon, 216 N.C. App. 15, 20–21, 715 S.E.2d 635, 639 (2011) (citation
omitted).
Here, Dr. Samuel Simmons, a medical doctor, was admitted to testify as an
expert in the field of forensic pathology. Prior to the trial court’s ruling to admit Dr.
Simmons’s testimony as that of an expert, Dr. Simmons testified that “[f]orensic
pathology [was] a subspecialty of pathology, and it’s specifically the area that looks
at things that causes death in the human body whether that be natural disease or
- 21 -
STATE V. FORD
Opinion of the Court
some external force.” As to the wounds on Cameron’s body, Dr. Simmons gave the
following testimony.
Q. Dr. Simmons, you just testified that there was [sic]
a number of puncture wounds and abrasions or
excoriations found on Mr. Cameron at the time of the
autopsy. Based upon the pattern and the nature of
these items or wounds, do you have an opinion as to
the source of these wounds?
A. I think overall the patter is consistent with animal
bites. These would also be consistent with dog bites
as well.
Pictures of the wounds on Cameron’s body were shown to the jury during Dr.
Simmons’ testimony. Dr. Simmons pointed out impressions that he interpreted as
teeth impressions from canine teeth, “which are the two pointiest teeth inside a
person’s mouth or an animal’s mouth.” Dr. Simmons testified that based on his
autopsy, he formed the opinion that the cause of Cameron’s death was exsanguination
due to dog bites.
On cross-examination, Dr. Simmons was presented with a photograph of
defendant’s dog’s mouth and teeth. Dr. Simmons testified that “in my experience and
from reading about these cases, you very seldom see a case where every single bite
mark looks the same regardless of whether it’s one dog or multiple dogs.” He could
not say that all the wounds on the victim’s body had been definitely caused by one
animal.
- 22 -
STATE V. FORD
Opinion of the Court
Nevertheless, Dr. Simmons’s expert opinion on the victim’s cause of death was
based on his autopsy of Cameron’s body, including his observation of the bite marks
on the body, as well as from “[his] experience and from reading about these cases.”
Therefore, the admission of Dr. Simmons’s opinion testimony was proper under Rule
702 (“a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion,” N.C.G.S. § 8C-1, Rule 702)
and was also in accordance with Rule 704 (“[t]estimony in the form of an opinion or
inference is not objectionable because it embraces an ultimate issue to be decided by
the trier of fact[,]” Id. § 8C-1, Rule 704). Defendant cannot establish that the
admission of Dr. Simmons’ testimony that Cameron’s wounds were the result of dog
bites amounted to plain error. Accordingly, we overrule this argument.
NO ERROR; NO PLAIN ERROR.
Judges DIETZ and TYSON concur.
- 23 -