{ "id": 4181717, "name": "STATE OF NORTH CAROLINA v. RONNIE LEE ZIGLAR", "name_abbreviation": "State v. Ziglar", "decision_date": "2011-02-01", "docket_number": "No. COA10-839", "first_page": "461", "last_page": "466", "citations": [ { "type": "official", "cite": "209 N.C. App. 461" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "258 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "336", "parenthetical": "\"It is well settled in North Carolina that a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed.\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "298 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569878 ], "year": 1979, "pin_cites": [ { "page": "250", "parenthetical": "\"It is well settled in North Carolina that a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed.\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0246-01" ] }, { "cite": "402 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "150", "parenthetical": "requiring foundational evidence of witness's prior, actual perception of the circumstances posited in a hypothetical question before allowing lay witness's opinion as to those circumstances" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 156", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522842 ], "year": 1991, "pin_cites": [ { "page": "174", "parenthetical": "requiring foundational evidence of witness's prior, actual perception of the circumstances posited in a hypothetical question before allowing lay witness's opinion as to those circumstances" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0156-01" ] }, { "cite": "547 S.E.2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135841, 135938, 135760, 135894, 135895 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0396-04", "/nc/353/0396-05", "/nc/353/0396-03", "/nc/353/0396-01", "/nc/353/0396-02" ] }, { "cite": "540 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "395" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 354", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441303 ], "year": 2000, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0354-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-138.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "parenthetical": "\"A person commits the offense of impaired driving if he drives any vehicle upon any highway . . . [a]fter having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more . . . .\"" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-141.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(al)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 625, "char_count": 11931, "ocr_confidence": 0.738, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13740994166069143 }, "sha256": "72beb702ada3c85223a091d48b47f0000e4a1d6dbe8b0e1d6d5f54b0c0710c50", "simhash": "1:db6bf592f74e4d73", "word_count": 1976 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and HUNTER, JR., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RONNIE LEE ZIGLAR" ], "opinions": [ { "text": "STEPHENS, Judge.\nFactual and Procedural Background\nOn 4 August 2008, Defendant Ronnie Lee Ziglar (\u201cZiglar\u201d) was indicted on one count of felony death by vehicle pursuant to N.C. Gen. Stat. \u00a7 20-141.4(al). On 9 March 2009, the State notified Ziglar that it intended to prove the existence of two aggravating factors, specifically: (1) that Ziglar \u201cknowingly created a great risk of death to more than one person by means of a weapon or device which would normally be hazardous to the lives of more than one person[,]\u201d and (2) that Ziglar used a deadly weapon at the time of the crime.\nZiglar was tried before a jury at the 1 June 2009 Criminal Session of Rockingham County Superior Court, the Honorable John O. Craig, III presiding. The evidence presented by the State at trial tended to show that on 19 May 2008, beginning around 3:30 p.m., Ziglar and Chris Hamby (\u201cHamby\u201d), the victim in this case, were at Hamby\u2019s home drinking \u201chard liquor\u201d and \u201cworking on the cabinets[.]\u201d Around 5:00 p.m., Hamby and Ziglar left Hamby\u2019s home in Hamby\u2019s Camaro and drove \u201ctowards town[;]\u201d Ziglar was driving and Hamby was riding in the passenger seat. Hamby\u2019s wife observed the Camaro drive away from Hamby\u2019s home at a \u201cridiculous\u201d speed.\nAs Hamby and Ziglar drove along Lawsonville Avenue near Reidsville, North Carolina, three children observed the Camaro drive past them at a high rate of speed. When the Camaro went around a curve, the children lost sight of the Camaro, but moments later they heard a crash.\nAround 5:30 p.m., emergency personnel arrived at the scene of the crash and found the Camaro on fire, Ziglar bleeding but conscious, and Hamby \u201claying [sic] on his back . . . the upper half of his body in the backseat area . . . bleeding around the ears and the nose .... He did not have a pulse and was not breathing.\u201d At trial, Dr. Mark Jordan, a pathologist who conducted a postmortem examination of Hamby, testified that the cause of Hamby\u2019s death was \u201c[b]lunt force trauma to the head due to motor vehicle accident.\u201d\nShortly after the accident, Ziglar was taken to the hospital, where he had his wounds treated and blood drawn. Reidsville Police Department Officer William Gibson (\u201cOfficer Gibson\u201d) questioned Ziglar at the hospital and, based on his suspicion that Ziglar was driving the Camaro at the time of the accident, and based on his opinion that Ziglar was \u201cappreciably impaired mentally and physically with a substance that [he] associated] with alcohol[,]\u201d Officer Gibson charged Ziglar with driving while impaired.\nAnalyses of Ziglax\u2019s blood that evening revealed that at 6:14 p.m., Ziglar\u2019s blood alcohol concentration was 0.267, and at 9:42 p.m., Ziglar\u2019s blood alcohol concentration was 0.17; both of these measurements put Ziglar over the legal limit for alcohol impairment while driving. See N.C. Gen. Stat. \u00a7 20-138.1 (2007) (\u201cA person commits the offense of impaired driving if he drives any vehicle upon any highway . . . [a]fter having consumed sufficient alcohol that he has, at any relevant time after the driving, an alcohol concentration of 0.08 or more . . . .\u201d).\nAt trial, Sergeant John Pulliam (\u201cSergeant Pulliam\u201d) of the Reidsville Police Department, an expert in motor vehicle accident reconstruction, estimated that the car was traveling at \u201c75 miles per hour at the initial place where the tire impressions were found\u201d and also testified that at the accident site, he did not see anything on the road to indicate that the brakes had been applied.\nFollowing the close of the State\u2019s evidence, Ziglar took the stand and testified that he was driving roughly 60 miles per hour and that when he \u201cgot in the curve\u201d just before the accident, he attempted to apply the brakes, but nothing happened. Ziglar testified that he looked down at the brake pedal and \u201c[when] I looked back up[,] we were off the road, and that\u2019s when we hit the tree.\u201d\nFollowing the close of all evidence, the trial court instructed the jury on felony death by vehicle and the jury found Ziglar guilty.\nIn the trial\u2019s penalty phase, the State presented the testimony of Sergeant Pulliam, who testified that Lawsonville Avenue was a residential street with \u201cmedium to medium-high\u201d traffic conditions. Sergeant Pulliam also testified that Ziglar was the only other person injured. The trial court then instructed the jury on the following aggravating factor:\nDo you find from the evidence beyond a reasonable doubt the existence of the following aggravating factor? And that is, [Ziglar] knowingly created a great risk of death to more than one person by means of a device which would normally be hazardous to the lives of more than one person.\nThe jury returned a verdict finding the existence of the aggravating factor. The trial court found as a mitigating factor that the victim was more than 16 years of age and was a voluntary participant in Ziglar\u2019s conduct. The court determined that the aggravating and mitigating factors \u201cessentially cancel each other out\u201d and sentenced Ziglar to a term of 34 to 50 months imprisonment, which is at the upper end of the presumptive range of sentencing for the charged offense. Defendant gave notice of appeal of the judgment and sentence in open court.\nDiscussion\nOn appeal, Ziglar first argues that the trial court erred by precluding Ziglar from testifying as to whether he would have been able to stop the car had the brakes worked properly. During the direct examination of Ziglar, defense counsel asked, \u201cAnd had there been brakes that worked on the car, would you have been able to stop the car in your opinion?\u201d Before Ziglar answered, the State objected to the question and the trial court sustained the objection, reasoning \u201cthat\u2019s a little bit too speculative.\u201d\nZiglar concedes that he was not testifying as an expert on this subject such that the admissibility of his lay opinion testimony is governed, by North Carolina Rule of Evidence 701. Rule 701 provides that where a witness is not testifying as an expert, his testimony in the form of opinions is limited to those opinions which are \u201c(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.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 701 (2009). A trial court\u2019s determination of whether a lay witness may testify as to an opinion is reviewed for abuse of discretion. State v. Washington, 141 N.C. App. 354, 362, 540 S.E.2d 388, 395 (2000), disc. review denied, 353 N.C. 396, 547 S.E.2d 427 (2001).\nIn deciding this issue, we note that the question was targeted to a hypothetical situation, viz., under similar circumstances, but in the event that the brakes were working properly, would Ziglar be able to stop the car? Because a lay opinion must be rationally based on the perception of the witness, for Ziglar\u2019s opinion to be admissible, some foundational evidence was required to show that Ziglar had, at some point, perceived his ability, while highly intoxicated, to slow down Hamby\u2019s Camaro as it went through the curve on Lawsonville Avenue at between 60 and 70 miles per hour. Cf. Matheson v. City of Asheville, 102 N.C. App. 156, 174, 402 S.E.2d 140, 150 (1991) (requiring foundational evidence of witness\u2019s prior, actual perception of the circumstances posited in a hypothetical question before allowing lay witness\u2019s opinion as to those circumstances). However, no such foundational evidence was presented by Ziglar in this case. As there was no evidence that Ziglar had ever perceived his ability to stop the car under the hypothetical circumstances, the trial court was correct in refusing to admit Ziglar\u2019s testimony.\nNevertheless, Ziglar argues that his lay opinion about stopping the vehicle, like his lay opinion about the vehicle\u2019s speed, should have been admitted because, \u201c[l]ike his opinion about the speed, it was based on his perceptions while actually driving the car.\u201d We disagree. While Ziglar\u2019s opinion as to the car\u2019s speed was based on Ziglar\u2019s actual opportunity to observe the car\u2019s speed while driving the car and, therefore, satisfied the Rule 701 foundational requirement, see, e.g., Nationwide Mut. Ins. Co. v. Chantos, 298 N.C. 246, 250, 258 S.E.2d 334, 336 (1979) (\u201cIt is well settled in North Carolina that a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed.\u201d (emphasis added)), Ziglar\u2019s opinion as to the car\u2019s potential performance under hypothetical circumstances was never observed by Ziglar, or at least no evidence of such observation was offered by Ziglar. Accordingly, Ziglar\u2019s argument is without merit, and we conclude that the trial court did not abuse its discretion by precluding Ziglar from presenting his opinion on the hypothetical topic. Because this is the only error alleged by Ziglar with respect to the guilt phase of the trial, we find no error in the trial court\u2019s entry of judgment upon the jury\u2019s guilty verdict.\nAs for the penalty phase of the trial, Ziglar argues that the trial court erred \u201cwhen it overruled [Ziglar\u2019s] objection to proceeding on the alleged aggravating factor because . . . the aggravator was \u2018basically the same thing\u2019 that [Ziglar] was convicted of.\u201d While perhaps correct, Ziglar\u2019s argument overlooks N.C. Gen. Stat. \u00a7 15A-1444(al), which provides that a defendant who has been found guilty \u201cis entitled to appeal as a matter of right the issue of whether his or her sentence is supported by evidence introduced at the trial and sentencing hearing only if the minimum sentence of imprisonment does not fall within the presumptive range[.]\u201d N.C. Gen. Stat. \u00a7 15A-1444(al) (2009) (emphasis added).\nIn this case, Ziglar was convicted of felony death by vehicle, a Class E felony, and was sentenced as a record level III felony offender to an active sentence of 34 to 50 months. At the time of sentencing, in June 2009, the 34-month minimum sentence was within the presumptive range for Ziglar\u2019s prior record level and the class of offense. See N.C. Gen. Stat. \u00a7 15A-1340.17 (2007). Therefore, pursuant to section 15A-1444(al), Ziglar is not entitled to appeal as a matter of right the issue of whether his sentence is supported by evidence introduced at the trial. N.C. Gen. Stat. \u00a7 15A-1444(al). Moreover, Ziglar has not petitioned this Court to review the merits of his appeal by writ of certiorari. Therefore, we hold Ziglar\u2019s argument is not properly before us, and accordingly, this argument is dismissed.\nNO ERROR in judgment, DISMISSED in part.\nJudges STEELMAN and HUNTER, JR., concur.\n. The trial was bifurcated, with the penalty phase following the guilt phase.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State.", "Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RONNIE LEE ZIGLAR\nNo. COA10-839\n(Filed 1 February 2011)\n1. Evidence\u2014 hypothetical \u2014 lay witness \u2014 foundation for opinion absent\nThe trial did not abuse its discretion in a prosecution for felony death by vehicle by precluding defendant from testifying about whether he would have been able to stop his car had the brakes worked properly. The question was a hypothetical, but there was no foundational evidence of defendant\u2019s perception of his ability to stop the car under the hypothetical circumstances.\n2. Appeal and Error\u2014 sentencing within presumptive range\u2014 no appeal as of right\nA defendant convicted of felony death by vehicle was not entitled to appeal as a matter of right whether his sentence was supported by evidence introduced at trial where the sentence was within the presumptive range. Defendant did not petition for a writ of certiorari.\nAppeal by Defendant from judgment and sentence dated 3 June 2009 by Judge John O. Craig, III in Rockingham County Superior Court. Heard in the Court of Appeals 15 December 2010.\nAttorney General Roy Cooper, by Assistant Attorney General Tammera S. Hill, for the State.\nCheshire, Parker, Schneider, Bryan & Vitale, by John Keating Wiles, for Defendant." }, "file_name": "0461-01", "first_page_order": 471, "last_page_order": 476 }