JOSEPH M. ELLIS, Judge.
Steven Bybee appeals from his convictions by jury of one count of involuntary manslaughter, § 565.024,1 and two counts of assault in the second degree, § 565.060. For the following reasons, the judgment is reversed, and the case is remanded for a new trial.
On the evening of November 24, 2004, sixteen-year-old Bybee and three other teenagers were involved in a high-speed single car accident along HH Highway in Vernon County. As a result of that accident, Ashli O’Dell died, and Bybee, Nathan Grice, and Dalton Howell were seriously injured.
Dale Carriker and Glen Roe noticed the car in a field off the side of the highway and stopped to help. When they arrived, Appellant was sitting in the front passenger seat and Grice was standing outside the car next to him. Howell and O’Dell were about 50 yards away lying on the ground. Carriker and Roe telephoned for help.
Corporal William Bush of the Missouri Highway Patrol arrived a short while later. When questioned by Corporal Bush, Grice initially stated that Bybee had been driving at the time of the accident. Upon hearing that comment, Bybee denied driving the car. Grice then claimed not to know who was driving but that he had been sitting in the front passenger seat. Howell claimed to have been in the back seat with O’Dell but not to know who had been driving. When talking to Bybee, Corporal Bush smelled alcohol on his breath. Corporal Bush eventually placed Appellant under arrest for driving while intoxicated.
When Corporal Edward Wilde arrived, Corporal Bush informed him that O’Dell was dead, Bybee had been driving the car, and Bybee was intoxicated. When questioned by Corporal Wilde, Bybee denied being the driver of the car, and Howell and Grice claimed not to know who was driving the car. Corporal Wilde reminded Bybee that he was under arrest and requested a blood sample. Subsequent testing of that sample indicated that Bybee’s blood alcohol level was .079%.
Later that evening, at the hospital, Grice told Corporal Wilde that Bybee had been driving the car. Two days later, he gave a written statement to that effect.
Sergeant Brown of the Missouri Highway Patrol conducted an accident reconstruction analysis of the crash. He determined that the car had been traveling at a minimum of 100 miles per hour when the right fees briefly went off the side of the [117] road, the driver steered abruptly left and then overcorrected to the right, the car began to spin off the right side of the road until it hit a driveway embankment, the car went airborne at 91 miles per hour, and the car then rolled over 300 feet. In his report, Brown repeatedly referred to Bybee as the driver of the car.
Bybee was subsequently charged by information in the Circuit Court of Vernon County with one count of involuntary manslaughter and two counts of assault in the second degree. Bybee was tried by jury and found guilty as charged. He was sentenced to concurrent terms of seven years on the manslaughter count and five years on each of the assault counts. Bybee appeals from those convictions.2
On appeal, Bybee challenges the admission into evidence of the accident reconstruction report. Since his defense at trial was to deny that he was the driver of the car, Bybee argues that the trial court erred in admitting the report over his objection to the report’s conclusive references to him as the driver of the car and its placement of him in the driver’s seat because that conclusion was based entirely on hearsay.
“Absent a clear abuse of discretion, an appellate court will not interfere with a trial court’s ruling on the admission or exclusion of evidence.” State v. Broussard, 57 S.W.3d 902, 911 (Mo.App. S.D.2001). “An abuse of discretion will be found when the trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id.
While the Dissent goes into great detail setting out the evidence and inferences drawn therefrom in the light most favorable to the jury’s verdict, the sufficiency of the evidence to support the verdict is not challenged on appeal. The sole issue before this Court is whether the trial court abused its discretion in admitting the accident reconstruction report in which the reconstruction expert set forth opinions based solely upon his assessment of hearsay statements offered by witnesses.
“It has long been the rule in this State that, with rare exception, an expert may not give an opinion based on hearsay.” Edgell v. Leighty, 825 S.W.2d 325, 328 (Mo.App. S.D.1992). Section 490.065.3 relaxes that rule, “but only to a limited extent.” Id. Under § 490.065.3, “[t]he facts or data which may be considered by an expert ‘must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.’” Id. (quoting § 4,90.065.3) (emphasis added). Accordingly, “[t]he first mandate under subsection (3) requires a court to determine whether the facts and data are reasonably relied upon by experts in the particular field.” Goddard v. State, 144 S.W.3d 848, 854 (Mo.App. S.D.2004). “The second mandate under section 490.065.3 requires the trial judge to look beyond the expert’s testimony that his or her reliance on certain facts and data are reasonable due to the general standard of the expert’s field ... [and] ensure that the facts and data are otherwise reasonably rehable.” Id.
Applying this statutory requirement, in Edgell v. Leighty, 825 S.W.2d 325, 328-29 (Mo.App. S.D.1992), the Southern District of this Court held that a police officer called to testify as an accident reconstruction expert should not have been allowed [118] to express an opinion that the driver made an improper turn when that opinion was based upon the hearsay statements of witnesses. In Goddard v. State, 144 S.W.3d 848, 854 n. 6 (Mo.App. S.D.2004), the holding of Edgell was cited as a textbook example of how the second requirement of § 490.065.3 should be applied. In a similar vein, “the Advisory Committee Notes to Fed.R.Evid. 703 specifically mention that observations of eyewitnesses do not satisfy this [reliability] criteria [in the context of the comparable federal rule of evidence] and cannot be used by experts in accident reconstruction.” Edgell, 825 S.W.2d at 329.
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JOSEPH M. ELLIS, Judge.
Steven Bybee appeals from his convictions by jury of one count of involuntary manslaughter, § 565.024,1 and two counts of assault in the second degree, § 565.060. For the following reasons, the judgment is reversed, and the case is remanded for a new trial.
On the evening of November 24, 2004, sixteen-year-old Bybee and three other teenagers were involved in a high-speed single car accident along HH Highway in Vernon County. As a result of that accident, Ashli O’Dell died, and Bybee, Nathan Grice, and Dalton Howell were seriously injured.
Dale Carriker and Glen Roe noticed the car in a field off the side of the highway and stopped to help. When they arrived, Appellant was sitting in the front passenger seat and Grice was standing outside the car next to him. Howell and O’Dell were about 50 yards away lying on the ground. Carriker and Roe telephoned for help.
Corporal William Bush of the Missouri Highway Patrol arrived a short while later. When questioned by Corporal Bush, Grice initially stated that Bybee had been driving at the time of the accident. Upon hearing that comment, Bybee denied driving the car. Grice then claimed not to know who was driving but that he had been sitting in the front passenger seat. Howell claimed to have been in the back seat with O’Dell but not to know who had been driving. When talking to Bybee, Corporal Bush smelled alcohol on his breath. Corporal Bush eventually placed Appellant under arrest for driving while intoxicated.
When Corporal Edward Wilde arrived, Corporal Bush informed him that O’Dell was dead, Bybee had been driving the car, and Bybee was intoxicated. When questioned by Corporal Wilde, Bybee denied being the driver of the car, and Howell and Grice claimed not to know who was driving the car. Corporal Wilde reminded Bybee that he was under arrest and requested a blood sample. Subsequent testing of that sample indicated that Bybee’s blood alcohol level was .079%.
Later that evening, at the hospital, Grice told Corporal Wilde that Bybee had been driving the car. Two days later, he gave a written statement to that effect.
Sergeant Brown of the Missouri Highway Patrol conducted an accident reconstruction analysis of the crash. He determined that the car had been traveling at a minimum of 100 miles per hour when the right fees briefly went off the side of the [117] road, the driver steered abruptly left and then overcorrected to the right, the car began to spin off the right side of the road until it hit a driveway embankment, the car went airborne at 91 miles per hour, and the car then rolled over 300 feet. In his report, Brown repeatedly referred to Bybee as the driver of the car.
Bybee was subsequently charged by information in the Circuit Court of Vernon County with one count of involuntary manslaughter and two counts of assault in the second degree. Bybee was tried by jury and found guilty as charged. He was sentenced to concurrent terms of seven years on the manslaughter count and five years on each of the assault counts. Bybee appeals from those convictions.2
On appeal, Bybee challenges the admission into evidence of the accident reconstruction report. Since his defense at trial was to deny that he was the driver of the car, Bybee argues that the trial court erred in admitting the report over his objection to the report’s conclusive references to him as the driver of the car and its placement of him in the driver’s seat because that conclusion was based entirely on hearsay.
“Absent a clear abuse of discretion, an appellate court will not interfere with a trial court’s ruling on the admission or exclusion of evidence.” State v. Broussard, 57 S.W.3d 902, 911 (Mo.App. S.D.2001). “An abuse of discretion will be found when the trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id.
While the Dissent goes into great detail setting out the evidence and inferences drawn therefrom in the light most favorable to the jury’s verdict, the sufficiency of the evidence to support the verdict is not challenged on appeal. The sole issue before this Court is whether the trial court abused its discretion in admitting the accident reconstruction report in which the reconstruction expert set forth opinions based solely upon his assessment of hearsay statements offered by witnesses.
“It has long been the rule in this State that, with rare exception, an expert may not give an opinion based on hearsay.” Edgell v. Leighty, 825 S.W.2d 325, 328 (Mo.App. S.D.1992). Section 490.065.3 relaxes that rule, “but only to a limited extent.” Id. Under § 490.065.3, “[t]he facts or data which may be considered by an expert ‘must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.’” Id. (quoting § 4,90.065.3) (emphasis added). Accordingly, “[t]he first mandate under subsection (3) requires a court to determine whether the facts and data are reasonably relied upon by experts in the particular field.” Goddard v. State, 144 S.W.3d 848, 854 (Mo.App. S.D.2004). “The second mandate under section 490.065.3 requires the trial judge to look beyond the expert’s testimony that his or her reliance on certain facts and data are reasonable due to the general standard of the expert’s field ... [and] ensure that the facts and data are otherwise reasonably rehable.” Id.
Applying this statutory requirement, in Edgell v. Leighty, 825 S.W.2d 325, 328-29 (Mo.App. S.D.1992), the Southern District of this Court held that a police officer called to testify as an accident reconstruction expert should not have been allowed [118] to express an opinion that the driver made an improper turn when that opinion was based upon the hearsay statements of witnesses. In Goddard v. State, 144 S.W.3d 848, 854 n. 6 (Mo.App. S.D.2004), the holding of Edgell was cited as a textbook example of how the second requirement of § 490.065.3 should be applied. In a similar vein, “the Advisory Committee Notes to Fed.R.Evid. 703 specifically mention that observations of eyewitnesses do not satisfy this [reliability] criteria [in the context of the comparable federal rule of evidence] and cannot be used by experts in accident reconstruction.” Edgell, 825 S.W.2d at 329.
Sergeant Brown’s conclusion that Bybee was the driver of the car was derived from hearsay statements made by witnesses. Appellant had denied driving and stated that Grice was the driver. Sergeant Brown chose to disbelieve Appellant and to accept as credible Grice’s assertion that Appellant was driving the car. The only other evidence tending to establish Appellant as the driver was a hearsay statement from Grice’s friend stating that Grice told him in a telephone call that Appellant was driving the car and witnesses’ statements that they had seen Appellant driving the car earlier in the evening.
Since it was based solely upon statements made by witnesses, Sergeant Brown’s repeated reference to his conclusion that Appellant was the driver within his report was improper. He simply made a credibility determination and accepted it as fact, and his expertise in accident reconstruction did not make him any more competent to judge the credibility of the witnesses and reach that conclusion than the trier of fact. “[A]n expert who consults and merely summarizes the content of a hearsay source without applying his own expertise is merely a hearsay witness.” Graves v. Atchison-Holt Elec. Coop., 886 S.W.2d 1, 7 (Mo.App. W.D.1994). Accordingly, the trial court abused its discretion in failing to exclude those statements from the record.
The prejudice resulting from Sergeant Brown’s conclusion that Appellant was the driver is readily apparent. In the first section of the report, providing a synopsis thereof, Sergeant Brown simply stated: “Vehicle # 1 was a Dodge Stratus. It was driven by Steven R. Bybee.” Aside from noting, in passing, in the middle of the report, that Bybee denied being the driver of the car, the report consistently, repeatedly, and conclusively referred to Bybee as the driver. Admitting Sergeant Brown’s opinion that Appellant was the driver of the car, based upon his assessment of the credibility of witness statements, serves to cloak the witnesses’ statements and Sergeant Brown’s conclusion based thereupon “with an undeserved authority that could unduly sway a jury.” Edgell, 825 S.W.2d at 329 (internal quotation omitted).
The judgment is reversed, and the case is remanded for a new trial.
ALL CONCUR.