                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Huff and Athey
              Argued at Norfolk, Virginia
UNPUBLISHED




              AARON LOUIS GOLDBERG
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0007-19-1                                      JUDGE GLEN A. HUFF
                                                                                NOVEMBER 19, 2019
              COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                            H. Thomas Padrick, Jr., Judge

                               Roger A. Whitus, Assistant Public Defender, for appellant.

                               Kelsey M. Bulger, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     Following a jury trial, Aaron Louis Goldberg (“appellant”) was convicted of driving

              under the influence (“DUI”), third conviction within ten years, in violation of Code §§ 18.2-266

              and -270. In accordance with the jury verdict, the trial court sentenced appellant to four years’

              incarceration and imposed a fine of $1,000.

                     On appeal, appellant contends that the trial court erred by denying his motion to exclude

              evidence of a horizontal gaze nystagmus (“HGN”) test performed by the officer who pulled him

              over. Appellant argues that HGN tests are scientific yet lack sufficient reliability for admission

              into evidence. Even assuming, without deciding, that appellant is correct, any error in the

              admission of HGN testing was harmless in light of the facts and circumstances of this case.

              Therefore, this Court affirms the trial court.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         I. BACKGROUND

        On appeal, this Court “consider[s] the evidence and all reasonable inferences flowing

from that evidence in the light most favorable to the Commonwealth, the prevailing party at

trial.” Williams v. Commonwealth, 49 Va. App. 439, 442 (2007) (en banc) (quoting Jackson v.

Commonwealth, 267 Va. 666, 672 (2004)). So viewed, the evidence is as follows:

        On the evening of April 22, 2017, Officer Travis Aicher was on patrol in Virginia Beach.

At approximately 11:44 p.m., he was driving on a two-lane highway. The two lanes were

separated by double yellow lines, and each lane had a narrow shoulder that was separated from

the lane of travel by a solid white line. Officer Aicher came up behind appellant’s vehicle,

which was traveling on the shoulder, entirely outside the solid white line. Shortly thereafter, the

shoulder abruptly ended and appellant merged into the actual lane of traffic. Appellant’s vehicle

then crossed the double yellow lines and entered the opposing lane of traffic three times. The

road then split into two lanes: one to make a left turn and one to travel straight. Appellant drove

half in one lane and half in the other before making a left turn. Officer Aicher then activated his

lights and initiated a traffic stop.

        As Officer Aicher approached the vehicle he observed appellant in the driver’s seat and a

second, unidentified male in the passenger seat. Upon request, appellant provided Officer Aicher

with his New York driver’s license. Appellant could not, however, locate the vehicle’s

registration card. During this interaction, Officer Aicher detected a strong odor of alcohol

emanating from the driver’s side window and, seemingly, appellant’s breath. Appellant’s eyes

were bloodshot, and he occasionally slurred individual words. Appellant also admitted that he

drank one beer earlier in the evening.

        Based on these observations, Officer Aicher asked appellant to step out of his vehicle and

walk to his patrol vehicle with him; appellant complied. This request was designed to allow

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Officer Aicher to make further observations about appellant’s level of intoxication. During this

interaction, Officer Aicher continued to smell the odor of alcohol emanating from appellant’s

breath. Appellant also swayed slightly while walking. After reaching the patrol vehicle, Officer

Aicher continued to engage appellant in conversation while standing still. Despite standing still,

appellant continued to sway slightly.

       During the conversation, appellant explained that he had been involved in a serious car

accident in 1996 in which he injured his right knee and left hip. Appellant claimed that these

injuries rendered him fully disabled. Appellant, however, did not use a cane or a walker as a

result of these injuries. Officer Aicher also asked appellant a second time how much he drank

that evening. This time, appellant admitted that he drank “one tall boy Mickey’s Malt Liquor”

and one beer. Appellant stated that his first drink was a few hours prior to the traffic stop and his

last drink approximately thirty minutes before the stop.

       At this point, Officer Aicher decided to administer standardized field sobriety tests to

appellant. Appellant agreed to voluntarily take an HGN test. Appellant opted not to voluntarily

participate in the other two standardized tests—the walk and turn test and the one-legged stand

test—because he was concerned that his earlier injuries could affect their results. During the

HGN test, appellant displayed all six of the potential “clues” which indicate intoxication. Officer

Aicher then administered the “alphabet test” by asking appellant to recite the alphabet beginning

at D and ending at S as fast as he could. Appellant stumbled over the letter F and progressed

through the alphabet very slowly. Otherwise, appellant recited the alphabet from D to S

correctly.

       Based on the totality of these circumstances, Officer Aicher placed appellant under arrest

for driving while intoxicated. Appellant responded by stating that “[he] knew this was going to

happen.” Officer Aicher then transported appellant to the jail, where a breathalyzer was located.

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During the drive to the jail, appellant told Officer Aicher that “this [was his] third strike, [he has]

two other DUIs.” He also told Officer Aicher that he guessed that “the higher alcohol content of

the malt liquor got [him].” At 1:20 a.m.—approximately 96 minutes after this encounter

began—a breathalyzer test was conducted. The test showed that appellant’s breath contained .09

grams of alcohol per 210 liters of breath.1

       On July 17, 2017, appellant was indicted for DUI, third conviction within ten years.2 The

trial court denied appellant’s motion in limine seeking to exclude any testimony or evidence

regarding the HGN test administered by Officer Aicher, and the matter proceeded to trial. The

jury returned a guilty verdict and, following evidence related to sentencing, recommended a term

of incarceration of four years. At a subsequent hearing, the trial court adopted the jury’s

recommendation. This appeal followed.

                                           II. ANALYSIS

       Appellant argues that the trial court erred in denying his motion in limine to exclude

evidence of the HGN test performed by Officer Aicher. Appellant contends that the test is


       1
          Per standard procedures, appellant’s breath is tested twice and a more accurate
three-digit test result was generated for both tests. To favor defendants, standard procedure is to
select the lower of the two test results and remove the third digit. Here, appellant’s two tests
both showed .097 grams of alcohol per 210 liters of breath.
       2
          Appellant was also charged by warrant for driving on a suspended license in violation
of Code §§ 21-1 and 46.2-301 as well as by summons for illegal possession of an inspection
sticker in violation of Code § 46.2-802 and failure to maintain his lane while driving a motor
vehicle in violation of Code § 46.2-804. Prior to trial, the trial court granted the
Commonwealth’s motion to nolle prosequi the inspection sticker charge and appellant pled
guilty to failure to maintain his lane while driving. Neither of these charges are at issue in this
appeal.
        The charge for driving on a suspended license was tried to the jury, which found
appellant guilty. Appellant’s opening brief indicates that he appeals from that conviction and
concludes by praying that conviction be reversed. However, the only assignment of error
granted for appeal by this Court relates to the admission of evidence of HGN testing. This
assignment of error has no bearing on the charge of driving with a suspended license.
Accordingly, there is no basis to reverse that conviction. Therefore, for clarity, this opinion
refers only to the DUI charge.
                                                 -4-
scientific in nature yet lacked sufficient evidence of reliability for admission. Alternatively, he

argues that even if the evidence is sufficiently reliable to justify admission, it is unfairly

prejudicial as compared to its limited probative value.

        The Commonwealth disagrees with the appellant’s premise—that HGN testing is

scientific in nature. The Commonwealth contends that HGN testing amounts to mere

observations of a person’s ocular movements which are no different than observations in other

field sobriety tests. Alternatively, the Commonwealth asserts that there is sufficient evidence of

its reliability to justify its admission as scientific evidence and support the ruling that its

probative value outweighs any prejudice. Lastly, the Commonwealth avers that even if HGN

testing is scientific and unreliable, its admission was harmless because there was sufficient

alternative evidence to find appellant guilty beyond a reasonable doubt.

        Even assuming, without deciding, that the evidence of HGN testing was scientific, lacked

sufficient foundational evidence of reliability, and was unfairly prejudicial compared to its

probative value in this case, this Court holds that any error in the admission of the HGN testing

evidence was harmless when considered in light of the totality of the evidence of guilt.

        Evidentiary errors are analyzed under the standard for non-constitutional harmless error.

Salahuddin v. Commonwealth, 67 Va. App. 190, 211-12 (2017). A non-constitutional error is

harmless “[w]hen it plainly appears from the record and the evidence given at the trial that the

parties have had a fair trial on the merits and substantial justice has been reached.” Code

§ 8.01-678. “In a criminal case, it is implicit that, in order to determine whether there has been

‘a fair trial on the merits’ and whether ‘substantial justice has been reached,’ a reviewing court

must decide whether the alleged error substantially influenced the jury.” Clay v.

Commonwealth, 262 Va. 253, 259 (2001) (quoting Code § 8.01-678). “Consequently, under

Code § 8.01-678, a criminal conviction must be reversed unless ‘it plainly appears from the

                                                  -5-
record and the evidence given at the trial that’ the error did not affect the verdict.” Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005 (1991) (en banc) (quoting Code § 8.01-678). “An

error does not affect a verdict if a reviewing court can conclude, without usurping the jury’s fact

finding function, that, had the error not occurred, the verdict would have been the same.”

Campos v. Commonwealth, 67 Va. App. 690, 717 (2017) (quoting Lavinder, 12 Va. App. at

1006).

         Appellant was originally seen driving along the shoulder of the road in lieu of a legal lane

of traffic. After merging into a legal lane of traffic, appellant drifted repeatedly in and out of the

oncoming lane of traffic. He then drove in the middle of two lanes before being pulled over by

Officer Aicher. During the ensuing interaction, there was a strong odor of alcohol emanating

from appellant, his eyes were bloodshot, he occasionally slurred words, and he was unable to

walk or stand without swaying. Appellant originally reported having one beer earlier that

evening, but later admitting he had “one tall boy Mickey’s Malt Liquor” and a beer, with his last

drink just thirty minutes before being stopped. Appellant was able to recite the alphabet from D

to S only at a slow speed and with some difficulty. After his arrest, he told Officer Aicher that

this charge would be his “third strike” because of two prior DUIs and that he guessed “the higher

alcohol content of the malt liquor got [him].” A breathalyzer test conducted over an hour and a

half after the traffic stop registered a blood alcohol content that was still over the legal limit.

         On these facts, this Court concludes that substantial justice was reached. There is

overwhelming evidence of guilt in this case. Therefore, this Court holds that any error in

admitting the HGN evidence was harmless.

                                         III. CONCLUSION

         This Court assumes, without deciding, that the evidence of HGN testing was scientific,

not supported by sufficient foundational evidence of reliability, and unfairly prejudicial

                                                  -6-
compared to its probative value in this case. Any error in its admission, however, was harmless

in light of the overwhelming evidence of appellant’s guilt.

                                                                                      Affirmed.




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