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2008-UP-132 - Campagna v. Flowers

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Joyce G. Campagna and Donald C. Campagna, Appellants,

v.

George F. Flowers, Respondent.


Appeal From Charleston County
Thomas L. Hughston, Jr., Circuit Court Judge


Unpublished Opinion No. 2008-UP-132
Heard January 8, 2008 – Filed February 27, 2008


AFFIRMED


Desa Ballard and Christopher Smith, Jr., both of West Columbia and  Reese I. Joye, of N. Charleston, for Appellants.

William O. Sweeny, III, and William R. Calhoun, both of Columbia, for Respondent.

PER CURIAM:  In this personal injury action arising from a car accident in downtown Charleston, Plaintiffs Joyce G. Campagna (Campagna) and Donald C. Campagna appeal the verdict for Defendant George Flowers and the denial of their motion for a new trial absolute, arguing the trial court improperly admitted DVD evidence recorded several years after the incident.  We affirm.

FACTS

On September 19, 2001, after leaving work at 5:00 p.m., Campagna drove down Bee Street to the Lockwood Boulevard intersection, stopped at a red light, looked both ways, and then successfully made a right turn on red onto Lockwood Boulevard.  About the same time, Flowers was approaching the Lockwood Boulevard intersection from the opposite direction on an off-ramp from Highway 17.  He was stopped at the same red light across the same intersection and, when the light changed to the green arrow, turned left onto Lockwood Boulevard, thus preparing to travel in the same direction in which Campagna was proceeding.  After both Campagna and Flowers completed their turns, their vehicles collided.

On December 23, 2003, Campagna filed this action against Flowers for injuries she allegedly suffered from the accident.  Donald Campagna also sued for loss of consortium.  Flowers timely answered the Campagnas’ complaint, denying liability. 

The matter was tried before a jury from April 12 through April 14, 2006.  The primary factual dispute in the matter was whether the collision occurred in the curb lane or in the middle lane.[1]  Whereas Campagna contended Flowers improperly changed lanes and hit her vehicle while she was traveling in the curb lane, Flowers maintained Campagna improperly changed lanes and collided with his vehicle while he was driving in the middle lane. 

At trial, the Campagnas offered photographs taken a few days after the accident showing all directions of the accident scene.  To combat this testimony, Flowers offered a DVD of traffic moving in the intersection on October 26, 2006.  The Campagnas objected to this evidence, arguing (1) the DVD documented the intersection more than four years after the accident; (2) the accident scene was substantially different from what it had been at the time of the accident; and (3) the DVD showed cars repeatedly making illegal turns similar to what Flowers alleged Campagna had made.  Over these objections, the trial court allowed the jury to view the DVD. 

The jury returned a verdict for Flowers.  Following the denial of their post-trial motions, the Campagnas filed this appeal.

STANDARD OF REVIEW

“[T]he admission or exclusion of evidence in general is within the sound discretion of the trial court.”  Fields v. Reg’l Med. Ctr. of Orangeburg, 363 S.C. 19, 25, 609 S.E.2d 506, 509 (2005).  “The trial court has wide discretion in determining the relevancy of evidence.”  Wright v. Craft, 372 S.C. 1, 33, 640 S.E.2d 486, 503 (Ct. App. 2006).  For an appellate court to reverse a case based on the erroneous admission or exclusion of evidence, the appealing party must show prejudice.  Hanahan v. Simpson, 326 S.C. 140, 155-56, 485 S.E.2d 903, 911 (1997). 

“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the [complaining] party is affected.”  Rule 103, SCRE.  For a substantial right to be affected, there must be “a reasonable probability the jury’s verdict was influenced by the challenged evidence or the lack thereof.”  Fields, 363 S.C. at 26, 609 S.E.2d at 509.  “A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial.”  Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733, 735 (1997).

LAW/ANALYSIS

1.  The Campagnas first argue the DVD was not relevant because it “did not make any fact more or less probable.”  We disagree. 

The DVD was admitted as demonstrative evidence and shown to the jury just before the defense called the police officer who had responded to the accident.  Before it was played, the trial court explained to the jury that the purpose of showing it was “just so you can see and get a better feel and knowledge of the intersection from various angles.”  The court further cautioned the jury that the DVD was not made on the day of the accident and the intersection had changed since that time, but also noted the roadway itself was still substantially the same.  The DVD had secondary relevance to the case and, when considered with the officer’s testimony, enabled the jury to understand the officer’s description of various roads in and around the intersection.  We therefore find no abuse of discretion in the trial court’s decision to admit the DVD into evidence.  See Clark v. Cantrell, 339 S.C. 369, 383, 529 S.E.2d 528, 535 (2000) (noting demonstrative evidence “explains or summarizes other evidence and testimony,” “has secondary relevance to the issues at hand,” and “is not directly relevant, but must rely on other material testimony for relevance”); Davis v. Traylor, 340 S.C. 150, 156-57, 530 S.E.2d 385, 388-89 (Ct. App. 2000) (noting an “abuse of discretion” standard applies to a trial court’s decision regarding both the exhibiting and admission of demonstrative evidence).  The changes in the intersection between the time of the accident and the recording of the DVD would at most have affected the weight of the evidence, not its admissibility.

2.  The Campagnas next argue that admission of the DVD was unduly prejudicial, noting it showed numerous vehicles making illegal turns similar to the turn that Flowers alleged Campagna had made.  The Campagnas contend the prejudice was exacerbated by the likelihood that the vehicles depicted in the DVD were attempting to avoid striking a curb-edged covered walkway that was admittedly not in place on the day of the accident.  We find no error.  The DVD also depicted a number of vehicles intruding or going into the far right lane while making the same left turn that Flowers made from Highway 17 onto Lockwood Boulevard.  We therefore cannot say the DVD favored either side’s version of how the accident occurred. 

3.  We decline to address the Campagnas’ argument that the DVD was misleading because it did not contain a continuous representation of the intersection of traffic patterns or their allegation that, as evidenced by the constant changing of vantage points and sporadic time stamps, it was edited to characterize Campagna’s conduct as illegal.  We have found no indication in either the record or the briefs that these concerns were raised at trial, and Campagna’s attorney indicated during oral argument that they were first raised to the trial court during post-trial motions; therefore, they were not raised in a timely manner and were not preserved for appeal.  See Hickman v. Hickman, 301 S.C. 455, 456, 392 S.E.2d 481, 482 (Ct. App. 1990) (“A party cannot use Rule 59(e) to present to the court an issue the party could have raised prior to judgment but did not.”).

CONCLUSION

We hold the Campagnas failed to show the trial court committed reversible error in admitting the DVD evidence submitted by Flowers and are therefore not entitled to a new trial absolute.

AFFIRMED.

HEARN, C.J., KITTREDGE and THOMAS, JJ., concur.


[1]  As the Campagnas’ attorney explained during opening argument, the part of Lockwood Boulevard that both Campagna and Flowers entered had three lanes.  Both Campagna and Flowers acknowledged the lane closest to the center line was a left-turn only lane.