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THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Christopher Clarke Horton, Appellant.

Appeal From Spartanburg County
 Gary E. Clary, Circuit Court Judge

Opinion No. 3787
Submitted April 6, 2004 – Filed May 3, 2004

AFFIRMED

William G. Rhoden, of Gaffney, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

ANDERSON, J.:   Christopher Clarke Horton was indicted for felony driving under the influence causing death (felony DUI) and reckless homicide.  The jury returned a verdict of guilty of reckless homicide and not guilty of felony DUI.  The trial judge sentenced Horton to ten years imprisonment.  We affirm. [1]

FACTUAL/PROCEDURAL BACKGROUND

On September 26, 2001, Gregory Thomas, fourteen years old, was struck and killed while walking with his family.  Horton was driving the vehicle that struck Thomas.

At trial, the State presented the testimony of Suzie Thomas (Gregory's mother) and Geoffrey Thomas (Gregory's nineteen-year-old brother).  Suzie stated that she, Gregory, and Geoffrey were walking down the left-hand side of a road near their home shortly after 6:30 p.m.  Suzie professed that, as they saw a green car approaching, the three crossed the road.  According to Suzie, even though all three of them looked both ways before crossing, Gregory was struck by a white car that was coming down the road "very fast."  Suzie stated that, when she "looked to go across the road," she did not see the white car.  Suzie and Geoffrey "made it to the side of the . . . road."  Suzie said Gregory was "almost on the side of the road on the grass, but he had not made it to the side of the road."  Suzie declared:

And when I saw the car coming, I screamed "Gregory, get out of the road.  Go to the side."  And as I said that, Gregory's right leg went up like he was going to step on the grass.  And when he did that, the car hit him and he flew up.

After striking Gregory, the white car proceeded down the street for approximately 275 feet.  When Horton stopped and exited the vehicle, Suzie asked: "'Why did you hit my son?'"  Horton responded: "'[B]ecause he wouldn't get out of my way.'"

On cross-examination, Suzie admitted she did not "tell any of the police officers about" the green car.  When queried as to whether she told the officers about Horton's statement that her "son wouldn't get out of the way," Suzie answered: "I don't remember.  I don't think so . . . ."  Suzie acknowledged she did not see Horton's car until it hit Gregory.  The following colloquy occurred on cross-examination:

Q. Well, I believe you said that you never saw the white car.
A. No, I never saw the white car until we stepped over, but he was-that's how fast he came up on us.
Q. So you only saw the white car just a split second before it hit your son?
A. Right when it hit my son.
Q. So that's the only time that you saw the white car?
A. Yes.  I heard him.  I heard it and that's when I, you know, screamed for Gregory, and then he-before Gregory could step over onto the grass, he hit him.

Geoffrey corroborated Suzie's testimony regarding the facts leading up to the accident.  Geoffrey testified he did not see the white car when they began to cross the road and did not "hear any brakes" or see any skid marks after the accident.  Geoffrey did not testify that Horton made a statement after exiting the white car. 

Officer David H. Burgess, with the South Carolina Highway Patrol, was the responding officer.  Officer Burgess testified that, upon reaching the accident scene, he noticed there were no skid marks on the road.  While sitting beside Horton in his patrol vehicle, Officer Burgess detected "an odor of alcohol."  Although the officer did not perform any field sobriety tests and noted that Horton did not slur his speech or stagger, he opined that Horton was under the influence.  Officer Burgess stated that Horton's attitude after the accident was unusual, commenting that Horton was "unemotional."  The officer admitted he did not know "anything about [a] green car" until the day of trial.

Horton was given a Datamaster test at the Spartanburg County Detention Center.  Horton registered a 0.03.  Highway Patrol Officer Russell Joye, who administered the test, testified Horton was cooperative, and that he did not smell an odor of alcohol on Horton's person. After the Datamaster test, Officer Joye drove Horton to the hospital for a urine test.  Horton signed an implied consent form before a urine sample was collected.  On direct examination, Sue Mobley, a nurse at the hospital who participated in the urine test, was asked if she smelled any alcohol on Horton.  Mobley answered: "A slight smell."

Robert Michael Sears, a forensic toxicologist with SLED, later analyzed the urine sample.  The results of the urine test indicated the presence of a tetrahydrocannabinol metabolite, hydrocodone, dihydrocodeine, and benzoylecgonine.  Tetrahydrocannabinol, more commonly known as THC, is the "pharmacologically active component of marijuana."  Hydrocodone and dihydrocodeine are opiates.  Benzoylecgonine is a "major metabolite" of cocaine.  A blood test was not performed.  Sears declared that "what [he] found in the urine test, plus the alcohol that was in [Horton's] system," would "affect a person's ability to drive."  According to Sears, urine tests show "a history of use," but "not necessarily [the] presence of drugs in the blood."  On cross-examination, defense counsel posited the following question to Sears: "So without the blood test, we don't know whether or not Mr. Horton was under the effects of those drugs at the time of this accident, do we?"  Sears answered: "That's correct."  The following exchange occurred between defense counsel and Dr. David H. Eagerton, chief toxicologist at SLED:

Q. All right.  So by looking at this evidence here, this urine test, it doesn't tell you anything about what was in Mr. Horton's blood at the time of this accident, does it?
A. At exactly the time of the accident, no, it doesn't.  It only tells you what was in his blood within that three-day window.

The State presented evidence reasonably tending to prove Horton’s guilt of the offense of reckless homicide.  Accordingly, the trial judge did not err in denying Horton’s motion for a directed verdict on the charge of reckless homicide. 

II.  Urine Test 

Horton contends the trial judge erred in admitting the results of his urine test.  We disagree. 

An in camera hearing was held to determine the admissibility of the urine test.  Officer Joye testified that, after administering the Datamaster, he asked Horton to submit to a urine test.  The officer drove Horton to the emergency room (ER) at Spartanburg Regional Medical Center.  He filled out the implied consent form at the hospital.  Horton signed the implied consent form.  Because a male nurse was not available to go in the bathroom with Horton while he was giving the sample, Officer Joye went into the “one unit bathroom” with Horton and observed him give the urine sample.  The bathroom had a toilet but no stall.  Horton handed the urine sample to Officer Joye.  The officer then passed the sample to an ER staff nurse, Sue Mobley, who had observed from outside the partially open door.  Mobley “labeled the kit, as far as putting the tape over the urine sample” and “put[ting] the identification information . . . on it.”  After Mobley signed, sealed, and labeled the urine sample, she returned the sample to Officer Joye.  Officer Joye gave the urine sample to Officer Burgess for transport. 

Officer Burgess witnessed Mobley sign the “specimen seal.”  Officer Burgess signed the outside of the box indicating that he had received the urine sample.  The officer “kept the sample in his possession until [he] turned it in to the evidence locker at the patrol office.”  Officer Burgess stated he did not sign the sample in to the evidence locker until September 27.  He could not recall at what time he placed the sample in the evidence locker.  Further, he did not remember whether he stored the sample in his personal refrigerator prior to placing it in the evidence locker.  When he placed the sample in the evidence locker, “[t]he bottle [was] sealed and [was] in plastic.  And on the outside . . . of the box there [are] tabs . . . that are sealed and initialed.” 

Sergeant William Eugene Williford removed the urine sample from the evidence locker and transported it to SLED headquarters in Columbia.  When Sergeant Williford arrived at SLED, the evidence technician removed the sample from the box and placed it in a plastic bag.  Sergeant Williford sealed the bag, initialed it, and placed it in the SLED drop box.  When asked on cross-examination what type of container the sample was contained in when he removed it from the evidence locker, Sergeant Williford responded: “A styrofoam-type container.”  He stated the urine sample was in a plastic container which was inside a sealed box which was inside a second sealed box.  Robert Michael Sears, the SLED forensic toxicologist, confirmed that he removed Horton’s sample from a sealed plastic bag prior to conducting his analysis of the urine sample.  The trial judge denied Horton’s motion to suppress the results of the urine test. 

The admission or exclusion of evidence is left to the sound discretion of the trial judge.  State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct. App. 2003).  A court’s ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion or the commission of legal error which results in prejudice to the defendant.  State v. Hamilton, 344 S.C. 344, 543 S.E.2d 586 (Ct. App. 2001); State v. Mansfield, 343 S.C. 66, 538 S.E.2d 257 (Ct. App. 2000).  An abuse of discretion occurs when the trial court’s ruling is based on an error of law.  State v. Foster, 354 S.C. 614, 582 S.E.2d 426 (2003); State v. McDonald, 343 S.C. 319, 540 S.E.2d 464 (2000). 

A.      Collection of Urine Sample 

Horton maintains the results of the urine test should have been suppressed because the urine sample was improperly collected. 

“Blood and urine samples must be obtained by physicians licensed by the State Board of Medical Examiners, registered nurses licensed by the State Board of Nursing, and other medical personnel trained to obtain the samples in a licensed medical facility.”  S.C. Code Ann. § 56-5-2950(a) (Supp. 2003). 

Horton claims section 56-5-2950 was violated because Officer Joye was the individual who collected the urine sample.  We find this argument is without merit.  Because there were no male nurses available that evening to personally witness the production of the sample and immediately collect it, Mobley followed hospital policy and did not accompany Horton into the bathroom.  However, while Mobley did not stand next to Horton while he gave his sample, she observed the situation from the partially open bathroom door.  The only role played by Officer Joye was to place a lid on the sample and hand it to Mobley, who then signed the appropriate labels on the container and sealed it. 

We find the trial judge did not err in finding that, as Mobley was in the “immediate proximity” of the test, the procedure followed was appropriate under the circumstances. 

B.      Chain of Custody