{
  "id": 6813531,
  "name": "JACKIE DALE JOINES, Plaintiff v. BRITTANY MOFFITT, Defendant",
  "name_abbreviation": "Joines v. Moffitt",
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    "judges": [
      "Judges STROUD and HUNTER, Jr. concur."
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    "parties": [
      "JACKIE DALE JOINES, Plaintiff v. BRITTANY MOFFITT, Defendant"
    ],
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      {
        "text": "DAVIS, Judge.\nJackie Dale Joines (\u201cplaintiff\u2019) appeals from the trial court\u2019s entry of judgment upholding a jury verdict denying him recovery from Brittany Moffitt (\u201cdefendant\u201d) based on contributory negligence. After careful review, we affirm the trial court\u2019s judgment.\nFactual Background\nThis case arises out of a motor vehicle collision that occurred at approximately 1:00 p.m. on 5 February 2008 at the intersection of Highway 115 and Plaza Drive in Mooresville, North Carolina. Plaintiff was traveling south on Highway 115 on his motorcycle when he moved into the left turn lane approaching the intersection. Defendant, in her car, was exiting a shopping center parking lot and waiting to enter onto Highway 115. Traffic was stopped, and a truck driver motioned for defendant to leave the parking lot so she could merge onto the highway. As she merged, defendant and plaintiff collided. Defendant\u2019s vehicle hit plaintiff in the leg and knocked him off his motorcycle. Plaintiff was hospitalized, and a portion of his right leg below the knee was ultimately amputated as k result of his injuries.\nOfficer Mike Allen (\u201cOfficer Allen\u201d) of the Mooresville Police Department investigated the accident and prepared an accident report after interviewing defendant and two witnesses, James Blackwelder (\u201cBlackwelder\u201d) and Sherri Jackson (\u201cJackson\u201d), at the scene. The accident report included a hand-drawn diagram and a narrative of the accident based upon the information he received from defendant, Blackwelder, and Jackson.\nOn 16 February 2010, plaintiff filed a complaint against defendant, alleging that defendant\u2019s negligence was the proximate cause of the injury to his leg. In her answer, defendant denied plaintiffs allegations and asserted the affirmative defense of contributory negligence. Specifically, defendant alleged that plaintiff had failed to obey traffic markings, improperly changed lanes, unlawfully passed stopped vehicles, unlawfully crossed over the double yellow line, and operated his vehicle left of center.\nThe case was tried before a jury, which returned a verdict finding defendant negligent but also finding plaintiff contributorily negligent. The Honorable Theodore S. Royster entered judgment on the jury\u2019s verdict, and plaintiff gave timely notice of appeal to this Court.\nAnalysis\nI. Admission of Accident Report\nPlaintiff initially argues that the trial court erred in admitting the accident report without first redacting Officer Allen\u2019s narrative or his hand-drawn diagram of the collision on the theory that these portions of the report contained inadmissible hearsay. We disagree.\nThe trial court\u2019s decision to admit or exclude evidence is generally reviewed under an abuse of discretion standard. Williams v. Bell, 167 N.C. App. 674, 678, 606 S.E.2d 436, 439 (2005). An abuse of discretion occurs when the trial judge\u2019s decision \u201clacked any basis in reason or was so arbitrary that it could not have been the result of a reasoned decision.\u201d Id. (internal quotations marks omitted).\nHearsay is \u201ca statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d N.C. R. Evid. 801(c). Although hearsay is generally inadmissible, records of regularly conducted business activities are admissible as an exception to the hearsay rule under Ride 803 of the North Carolina Rules of Evidence. N.C. R. Evid. 803(6). This Court has held that highway accident reports may be admitted under Rule 803(6) if properly authenticated. Wentz v. Unifi, Inc., 89 N.C. App. 33, 39, 365 S.E.2d 198, 201 (1988). Proper authentication requires a showing that the report was (1) \u201cprepared at or near the time of the act(s) reported\u201d; (2) prepared \u201cby or from information transmitted by a person with knowledge of the act(s)\u201d; and (3) \u201ckept in the course of a regularly conducted business activity, with such being a regular practice of that business activity.\u201d Id. If a document meets these criteria, it is admissible unless the circumstances surrounding the preparation of the report \u201cindicate a lack of trustworthiness.\u201d N.C. R. Evid. 803(6).\nHere, Officer Allen\u2019s testimony authenticated the accident report and laid the proper foundation for the report\u2019s admission into evidence under Rule 803(6). Specifically, he testified that: (1) he authored the accident report; (2) the report admitted into evidence was a copy of the report he completed; (3) the report was prepared near the place and time of the accident; (4) it was prepared in the regular course of business; and (5) it was the regular course of practice for the Mooresville Police Department to make such reports. He also testified that he obtained the information he used to prepare his report from defendant, Blackwelder, and Jackson.\nPlaintiff contends that the narrative and diagram sections were nevertheless inadmissible because the circumstances surrounding the preparation of those portions of the accident report indicated a lack of trustworthiness. Plaintiff asserts that the narrative was untrustworthy because it was not based on the officer\u2019s personal knowledge and did not include a statement from plaintiff. He further argues that the diagram lacked trustworthiness because it was not drawn to scale and incorrectly indicated where the turn lane began.\nThis Court addressed a similar argument in Nunnery v. Baucom, 135 N.C. App. 556, 521 S.E.2d 479 (1999). In Nunnery, the defendants conceded that the accident report was admissible as a record of regularly conducted activity, but objected to the introduction of the portion of the report regarding a description of a particular vehicle and the designation on a diagram of that vehicle\u2019s location. Id. at 565-66, 521 S.E.2d at 486. The defendants argued that these portions of the report were untrustworthy and should have been redacted because the driver of that vehicle was not present at the scene when the officer was preparing the report. Id.\nIn rejecting that argument, this Court noted that the hearsay exception for records of regularly conducted activity \u201cexpressly provides for the use of information from those having first-hand knowledge of the incident in question\u201d and found that the officer used information from \u201cseveral other witnesses \u2018with knowledge of the act(s)\u2019 \u201d to prepare his report. Id. The Court thus concluded that these portions of the report did not lack trustworthiness, and the trial court did not err in admitting the report in full. Id.\nIn the present case, the investigating officer prepared both the narrative and diagram using information he received from defendant, Blackwelder, and Jackson as permitted by Rule 803(6). Officer Allen explicitly stated both at trial and in his report that the hand-drawn diagram was not drawn to scale. Plaintiff has failed to demonstrate that either the narrative or the diagram lacked sufficient trustworthiness to warrant its exclusion.\nPlaintiffs attempt to rely on Wentz is misplaced. In Wentz, this Court held that a trooper\u2019s accident report was admissible under the Rule 803(6) business records exception where the trooper interviewed the plaintiff and the defendant at the scene, reported the information given to him by both parties, and did not express an opinion of fault. 89 N.C. App. at 40, 365 S.E.2d at 201-02. Plaintiff misinterprets Wentz as standing for the proposition that an accident report is trustworthy - and thus admissible \u2014 only in those limited circumstances. Wentz does not so hold.\nHere, as stated above, Officer Allen prepared the report near the time of the accident, using information from individuals who had personal knowledge of the accident. Accident reports of this type are, according to Officer Allen\u2019s testimony, prepared and kept in the regular course of business of the Mooresville Police Department. For these reasons, the report met the criteria required by Rule 803(6), and the fact that Officer Allen did not interview plaintiff \u2014 who was receiving medical attention at the scene \u2014\u25a0 does not render the report untrustworthy.\nNor does our decision in Seay v. Snyder, 181 N.C. App. 248, 638 S.E.2d 584 (2007), mandate a different result. In Seay, this Court held that a trooper\u2019s diagram of a collision was properly excluded by the trial court because the diagram improperly expressed a conclusion as to the point of impact based on the trooper\u2019s physical findings at the scene of the accident. Id. at 257-58, 638 S.E.2d at 590-91. The trooper in Seay prepared her report solely from the gouge marks in the road, the position of the cars after the collision, and the debris from the accident. Id.\nUnlike the diagram at issue in Seay, Officer Allen\u2019s diagram utilized information provided by witnesses who had personal knowledge of the accident. Instead of expressing an improper conclusion or opinion of his own based on physical evidence at the scene, Officer Allen\u2019s diagram merely visually depicted the information offered by witnesses who observed the accident. Thus, the diagram in the present case is distinguishable from the one excluded in Seay and was properly admitted under Rule 803(6).\nFinally, while plaintiff cites State v. Castor, 150 N.C. App. 17, 562 S.E.2d 574 (2002), for the proposition that the trial court erred by failing to make specific findings of fact and conclusions of law regarding the report\u2019s trustworthiness, that case is easily distinguishable. In Castor, the hearsay exception at issue was not the business records exception under Rule 803(6) but rather the catch-all exception set out in Rule 803(24). Id. at 25-27, 562 S.E.2d at 580-81. It is well established that the \u201cadmissibility of evidence under the catch-all exception is proper only after the trial court undertakes a particularized analysis and thereafter enter[s] appropriate statements, rationale, or findings of fact and conclusions of law... in the record to support his discretionary decision[.]\u201d State v. Thomas, 119 N.C. App. 708, 718, 460 S.E.2d 349, 356 (1995) (citation and quotation marks omitted).\nThus, pursuant to Rule 803(24), the trial court in Castor was required to make specific findings of fact and conclusions of law regarding the trustworthiness of the statement at issue. Admissibility of a business record under Rule 803(6), conversely, requires no such particularized findings, and the trial court in the present case was not obligated to make express findings as to why the report was trustworthy.\nFinally, even assuming arguendo that the accident report should have been redacted in the manner advocated by plaintiff, plaintiff cannot establish that he was actually prejudiced by the admission of the narrative or diagram because the same evidence was introduced at trial through other sources. Blackwelder and Jackson, the two eyewitnesses who provided the information upon which the narrative and diagram were based, both testified at trial. Although Blackwelder stated that he was checking his mirror and did not observe plaintiffs location before the collision, Jackson specifically testified that she saw plaintiff operating his motorcycle left of center and passing stopped vehicles before he collided with defendant\u2019s car. Moreover, photographs of the scene were introduced by both parties to show the jury the intersection where the accident occurred. Accordingly, plaintiff has failed to demonstrate reversible error.\nII. Statements During Closing Argument\nPlaintiff next argues that the trial court erred in overruling his objection to statements in defendant\u2019s closing argument in which defense counsel compared the present case to Fisk v. Murphy, _ N.C. App. _, 713 S.E.2d 100 (2011). Plaintiff correctly states that \u201c[i]t is not permissible argument for counsel to read, or otherwise state, the facts of another case, together with the decision therein, as premises leading to the conclusion that the jury should return a verdict favorable to his client in the case on trial.\u201d Wilcox v. Glover Motors, Inc., 269 N.C. 473, 479, 153 S.E.2d 76, 81 (1967). Unlike in Wilcox, however, the closing arguments in the present case were neither recorded nor transcribed.\nAppellate review is based solely upon the record on appeal; it is the duty of the appellant[] to see that the record is complete. This Court will not engage in speculation as to what arguments may have been presented.... It is not the role of this Court to fabricate and construct arguments not presented by the parties before it.\nMcKoy v. Beasley, _ N.C. App. _, _, 712 S.E.2d 712, 716-17 (2011) (internal citations and quotation marks omitted).\nHere, because the parties\u2019 closing arguments were neither transcribed in the record nor adequately set out in narrative form under Rule 9(c) of the North Carolina Rules of Appellate Procedure, plaintiff has failed to provide a complete record to this Court that is sufficient to permit meaningful review on this issue. N.C. R. App. P. 9(c). Plaintiff first submitted a proposed record on appeal to defendant containing a joint stipulation as to the statements made during the challenged portion of defendant\u2019s closing argument. Defendant objected to the proposed stipulation, asserting that the arguments were not recorded and that the attorneys\u2019 memories of the arguments would be inaccurate. Plaintiff then requested judicial settlement of the record under Rule 11(c). N.C. R. App. P. 11(c).\nThe trial court heard plaintiff\u2019s motion to settle the record and determined that both parties \u201cshall be allowed to submit a statement regarding the use of the case of Fisk v. Murphy in closing argument. In the alternative, the Defendant may submit a statement noting the objection to use of the statement in the record.\u201d\nIn accordance with the trial court\u2019s order, plaintiff submitted a narration of this portion of defendant\u2019s closing argument. Defendant, in turn, submitted a statement asserting the practical difficulty of accurately narrating the unrecorded argument and arguing that plaintiff had failed to properly preserve the issue for appeal.\nTherefore, although plaintiff attempted to narrate the relevant portion of defendant\u2019s closing argument pursuant to Appellate Rule 9(c) \u2014 which allows for narration of portions of the trial proceedings as an alternative to a verbatim transcript \u2014 there is no evidence that plaintiff\u2019s version of the argument \u201caccurately reflects] the true sense of... [the] statements made[.]\u201d N.C. R. App. P. 9(c)(1). Instead, the narration included in the record is based solely upon plaintiff\u2019s contentions as to what occurred during closing arguments.\nWhen the closing arguments of counsel are not transcribed and included in the record, an appellate court is precluded from addressing issues relating to the content of those arguments. See Heatherly v. Indus. Health Council, 130 N.C. App. 616, 624, 504 S.E.2d 102, 108 (1998) (finding that \u201cthe closing arguments are not transcribed in the record before this Court, and we are thereby precluded from addressing [the] plaintiff\u2019s contention\u201d); see also State v. Carver, _ N.C. App. _, _, 725 S.E.2d 902, 906 (2012) (\u201c[B]ecause the closing arguments were not transcribed and are not before this Court on appeal, [defendant] has failed to satisfy his burden of presenting an adequate record to support his contention.\u201d). Accordingly, this argument is dismissed.\nIII. Voir Dire of Officer Allen\nPlaintiff next contends that the trial court erred by limiting his voir dire of Officer Allen. Plaintiff alleges that the trial court abused its discretion by terminating the voir dire of Officer Allen before plaintiff had an opportunity to establish that the narrative and diagram in the accident report lacked trustworthiness. A trial court\u2019s rulings in connection with voir dire examinations are reviewed for abuse of discretion. State v. Ward, 354 N.C. 231, 253, 555 S.E.2d 251, 266 (2001) (stating that \u201cthe trial court is vested with broad discretion to regulate the extent and manner of questioning by counsel during voir dire.. . . [and] [i]n order to demonstrate reversible error in this respect, the defendant must show that the trial court committed a clear abuse of discretion\u201d).\n\u201cThere is ample authority to the effect that the judge presiding at the trial of a law suit may, in his sound discretion, limit the examination and cross-examination of a witness so as to prevent needless waste of the time of the court.\u201d State v. Wright, 274 N.C. 380, 395, 163 S.E.2d 897, 908 (1968). This case was first tried in July of 2011 and resulted in a mistrial. In the first trial (which was also presided over by Judge Royster) the trial court heard Officer Allen\u2019s testimony, admitted the accident report under Rule 803(6), and listened to plaintiff\u2019s cross-examination of Officer Allen.\nDuring the second trial, plaintiff sought to conduct a voir dire of Officer Allen to establish why the narrative and diagram sections of the report should not be admitted into evidence. After several questions were asked by plaintiff\u2019s counsel, Judge Royster stated that he remembered the officer\u2019s testimony from the first trial and did not need to hear the testimony a second time. He then ended the voir dire examination.\nPlaintiff was given a full opportunity to cross-examine Officer Allen in the jury\u2019s presence. During the cross-examination, plaintiff posed numerous questions to Officer Allen regarding the accuracy of the diagram and the reliability of the accident report. Thus, limiting plaintiff\u2019s voir dire under these circumstances was not an abuse of the trial court\u2019s discretion.\nIV. Admissibility of Testimony Regarding Whether Plaintiff Had the Right of Way\nIn his final issue on appeal, plaintiff argues that the trial court erred in sustaining defendant\u2019s objection to plaintiff\u2019s question to Officer Allen as to whether plaintiff would have had the right of way over a vehicle entering the highway from the shopping center. This contention is also without merit.\nA lay witness may testify in the form of opinions or inferences \u201cwhich are (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. R. Evid. 701. \u201c[Wjhether a lay witness may testify as to an opinion is reviewed for abuse of discretion.\u201d State v. Norman, _ N.C. App. _, _, 711 S.E.2d 849, 854 (2011) (citation and quotation marks omitted).\nPlaintiff\u2019s argument on this issue relies primarily on State v. Miller, 142 N.C. App. 435, 543 S.E.2d 201 (2001). In Miller, this Court held that an officer was properly permitted to testify as a lay witness regarding the condition of the tires of a towed vehicle following a collision. Id. at 443-44, 543 S.E.2d at 206-07. This Court determined that the officer\u2019s testimony was \u201crationally based on his perception gained through experience as a State Highway Patrolman.\u201d Id. Here, plaintiff argues by analogy that Officer Allen should have been permitted to testify regarding who had the right of way because such an opinion was \u201cbased on his perception gained through his experience as an officer with the Mooresville Police Department for eleven to twelve years.\u201d\nThe facts in Miller are distinguishable from those in the present case. In Miller, the investigating officer personally observed the tires of the vehicles following the accident and was, therefore, able to testify regarding the tires\u2019 condition in accordance with Rule 701. Id. at 443-44, 543 S.E.2d at 207 (stating that Rule 701 includes shorthand statements of fact which encompass \u201ca witness\u2019 conclusion as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time.\u201d) (internal quotation marks omitted).\nIn the present case, conversely, Officer Allen did not have the requisite personal knowledge to offer his opinion on which party had the right of way. Although plaintiff argues that Officer Allen \u201cpersonally observed the intersection, the location of the lanes, the lines marking the lanes, and the traffic patterns at the intersection,\u201d he did not personally witness the accident or observe the placement of the vehicles at the time of the accident.\n\u201cOur State Supreme Court has held in several cases that while 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 the accident, his testimony as to his conclusions from those facts is incompetent.\u201d\nBlackwell v. Hatley, 202 N.C. App. 208, 213, 688 S.E.2d 742, 746 (2010) (quoting State v. Wells, 52 N.C. App. 311, 314, 278 S.E.2d 527, 529 (1981)).\nOur Supreme Court expressly addressed the admissibility of an officer\u2019s statement regarding which party had the right of way in Jones v. Bailey, 246 N.C. 599, 99 S.E.2d 768 (1957). In Jones, the plaintiff testified that he heard a conversation between the officer and the defendant where the defendant asked if she had the right of way and the officer replied in the negative. Id. at 600-01, 99 S.E.2d at 769-70. The Court ruled that the testimony was inadmissible on two grounds: (1) it was improper hearsay evidence; and (2) \u201cit was a declaration of an opinion or conclusion which [the officer] would not have been permitted to state as a witness.\u201d Id. at 601, 99 S.E.2d at 770.\nThe Court determined that the testimony invaded the .province of the jury because \u201c[w]hether the plaintiff or the defendant had the right of way at the time they entered the intersection... was the crucial question to be resolved by the jury from the evidence before [the jury] could correctly and properly answer the issues submitted to [it].\u201d Id. at 602,99 S.E.2d 770. Therefore, we conclude that the trial court did not abuse its discretion in excluding Officer Allen\u2019s testimony regarding his opinion as to which party had the right of way.\nConclusion\nFor the reasons stated above, we affirm the trial court\u2019s judgment.\nAFFIRMED.\nJudges STROUD and HUNTER, Jr. concur.\n. The portion of the narrative stating that plaintiff \u201cwas charged with left of center\u201d was redacted before the accident report was admitted into evidence at trial.\n. In its order settling the record, the trial court stated that it \u201ccannot recall the details of the discussion of the case.\u201d In addition, defendant\u2019s appellate counsel stated in his objection to the narration that because he had not represented defendant at trial, he could not speak as to what had occurred during the closing argument.\n. Although the trial court\u2019s reliance upon personal memory of a prior proceeding can, in some circumstances, render meaningful appellate review impossible, such is not the case here. See Hensey v. Hennessy, 201 N.C. App. 56, 68, 685 S.E.2d 541, 549 (2009). (\u201cAppellate review of the sufficiency of the evidence to support the trial court\u2019s findings of fact is impossible where the evidence is contained only in the trial judge\u2019s memory.\u201d). Despite the trial court\u2019s reliance upon memory in making the decision to end the voir dire examination, Officer Allen\u2019s testimony at trial provides a sufficient record for our review of the trial court\u2019s ruling that the narrative and diagram in the accident report were admissible.",
        "type": "majority",
        "author": "DAVIS, Judge."
      }
    ],
    "attorneys": [
      "Homesley, Gaines & Dudley, LLP, by Edmund Gaines and Christina Clodfelter, for plaintiff-appellant.",
      "McAngus, Goudelock & Courie, by Colin E. Scott, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "JACKIE DALE JOINES, Plaintiff v. BRITTANY MOFFITT, Defendant\nNo. COA12-1027\nFiled 19 March 2013\n1. Evidence \u2014 accident report \u2014 admissible\nThe trial court did not err in an automobile accident case by admitting an officer\u2019s accident report without first redacting the officer\u2019s narrative or his hand-drawn diagram of the collision. The officer prepared the report near the time of the accident, using information from individuals who had personal knowledge of the accident, and accident reports of this type are, according to the officer\u2019s testimony, prepared and kept in the regular course of business of the police department. Moreover, plaintiff could not establish that he was actually prejudiced by the admission of the narrative or diagram because the same evidence was introduced at trial through other sources.\n2. Appeal and Error \u2014 preservation of issues \u2014 closing argument \u2014 not transcribed\nAn appellate argument concerning the closing argument in an automobile case was dismissed where the argument was not transcribed nor adequately set out in narrative form.\n3. Witnesses \u2014 voir dire limited \u2014 judge\u2019s memory of early testimony\nThe trial court did not abuse its discretion by limiting the voir dire of an officer concerning an accident report. The judge stated that he remembered the officer\u2019s testimony from the first trial and did not need to hear the testimony a second time.\n4. Evidence \u2014 officer\u2019s opinion \u2014 right of way \u2014 excluded\nThe trial court did not abuse its discretion in an action arising from an automobile accident by excluding an officer\u2019s testimony regarding his opinion as to which party had the right of way. The officer did not have the requisite personal knowledge to offer his opinion.\nAppeal by plaintiff from judgment entered 19 December 2011 by Judge Theodore S. Royster in Alexander County Superior Court. Heard in the Court of Appeals 10 January 2013.\nHomesley, Gaines & Dudley, LLP, by Edmund Gaines and Christina Clodfelter, for plaintiff-appellant.\nMcAngus, Goudelock & Courie, by Colin E. Scott, for defendant-appellee."
  },
  "file_name": "0061-01",
  "first_page_order": 71,
  "last_page_order": 81
}
