              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-268

                               Filed: 15 November 2016

Buncombe County, No. 14 CRS 52004

STATE OF NORTH CAROLINA

             v.

JAMES HOWARD KILLIAN


      Appeal by Defendant from judgment entered 8 July 2015 by Judge Alan Z.

Thornburg in Buncombe County Superior Court. Heard in the Court of Appeals 6

September 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Yvonne B. Ricci,
      for the State.

      Jeffrey William Gillette for Defendant.


      STEPHENS, Judge.


      Defendant appeals from the judgment entered upon his conviction of driving

while impaired. Defendant contends that the trial court committed plain error in

admitting testimony from the law enforcement officer who arrested him regarding

the officer’s interpretation of the results of a specific roadside sobriety test. Although

we agree with Defendant that the challenged testimony was admitted in error, we

conclude that, in light of the overwhelming unchallenged evidence of Defendant’s
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                                  Opinion of the Court



impairment, he was not prejudiced by admission of the challenged testimony.

Accordingly, Defendant is not entitled to a new trial.

                        Factual and Procedural Background

      The evidence at trial tended to show the following: This case arises from an

early-morning encounter on 29 June 2014 between Defendant James Howard Killian

and Corporal Jonathan Ray of the Weaverville Police Department. As Ray was

completing an unrelated traffic stop, Killian approached him, complaining that his

moped had been “run off the road” by a law enforcement vehicle. Ray immediately

detected a strong odor of alcohol emanating from Killian and asked Killian whether

he had been drinking and whether he would submit to an Alco-Sensor breath test.

Killian agreed to the breath test. The test registered positive for the presence of

alcohol. Killian acknowledged having consumed two beers, and Ray asked him to

submit to standard field sobriety testing. Killian agreed.

      The next test Ray administered was the Horizontal Gaze Nystagmus (“HGN”)

test. During this test, Ray observed the movement of Killian’s eyes for involuntary

jerking that may be caused by consumption of alcohol and/or drugs. Ray testified

that Killian exhibited signs of possible impairment.     Ray next asked Killian to

complete the “walk and turn” test, which Killian was unable to complete successfully.

Killian declined to attempt the one-leg-stand test, citing pain and swelling in his

knee. Ray then asked Killian to repeat the Alco-Sensor breath test, which again gave



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                                       Opinion of the Court



a positive result. On the basis of Ray’s observation of Killlian’s slurred speech and

glassy, red eyes, the odor of alcohol emanating from Killian, the two positive breath

test results, the HGN test results indicating impairment, and Killian’s failure to

successfully complete the walk and turn test, in conjunction with his admission to

consuming alcohol earlier, Ray determined that he had probable cause to arrest

Killian for impaired driving. The entire encounter was recorded by Ray’s dashboard

camera and was played for the jury at trial.

       As Ray took Killian into custody, Killian requested medical attention for his

injured knee. Ray called emergency medical services to examine Killian’s knee, after

which Ray transported Killian to a local hospital for X rays of the knee. At the

hospital, Ray read Killian his rights regarding submission of a blood sample to test

for alcohol or other impairment.              Killian signed a form acknowledging his

understanding of his legal rights and submitted a blood sample. When tested, that

sample indicated a blood alcohol content (“BAC”) of 0.10 milligrams of alcohol per 100

milliliters, a level indicating legal impairment.1 Once Killian was released from the

hospital into Ray’s custody, Killian was transported to the Buncombe County

Detention Facility.

       Killian was cited for driving while impaired and failure to comply with a

driver’s license restriction. On 11 June 2015, Killian was found guilty in Buncombe


1A BAC result of 0.08 or above is one way to establish that a defendant has committed the offense of
impaired driving. See N.C. Gen. Stat. § 20-138.1(a)(2) (2015).

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County District Court of driving while impaired. On the following day, Killian filed

his notice of appeal to superior court. On 2 July 2015, Killian filed several motions

in the trial court, including a motion to exclude Ray’s testimony about field sobriety

tests he administered, on the basis that Ray was not qualified as an expert in the

interpretation of the results of such tests. Those motions were denied by the superior

court, and Killian’s case came on for trial at the 6 July 2015 criminal session of

Buncombe County Superior Court, the Honorable Alan Z. Thornburg, Judge

presiding. At trial, Killian did not object to Ray’s testimony about his administration

of the HGN test and Killian’s results. The jury returned a guilty verdict, and the trial

court imposed a sentence of 24 months in prison, suspended the sentence, and ordered

24 months of supervised probation. From the judgment imposed upon his conviction,

Killian gave notice of appeal in open court.

                                      Discussion

      In his sole argument on appeal, Killian contends that the trial court plainly

erred in denying his motion to exclude Ray’s HGN testimony and in allowing Ray to

testify about the results of the HGN test without qualifying Ray as an expert

pursuant to North Carolina Rule of Evidence 702(a). While we agree that admission

of the HGN testimony was error, we conclude that the error did not have a probable

impact on the jury’s verdict.




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                                   Opinion of the Court



      As Killian acknowledges, because he did not object to the admission of the

testimony at trial that he now challenges on appeal, he is entitled only to plain error

review.

             In criminal cases, an issue that was not preserved by
             objection noted at trial and that is not deemed preserved
             by rule or law without any such action nevertheless may be
             made the basis of an issue presented on appeal when the
             judicial action questioned is specifically and distinctly
             contended to amount to plain error.

N.C.R. App. P. 10(a)(4). Our State’s appellate courts may “review unpreserved issues

for plain error when they involve either (1) errors in the judge’s instructions to the

jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580,

584, 467 S.E.2d 28, 31 (1996) (citations omitted). Plain error arises when the error is

“so basic, so prejudicial, so lacking in its elements that justice cannot have been done

. . . .” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citations and

internal quotation marks omitted). “Under the plain error rule, [a] defendant must

convince this Court not only that there was error, but that absent the error, the jury

probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440,

426 S.E.2d 692, 697 (1993) (citation omitted; emphasis added).

      Admission of Ray’s testimony about the results of Killian’s HGN test was

clearly erroneous. North Carolina Rule of Evidence

             702(a1) requires that, before a witness can testify as to the
             results of an HGN test, he must be qualified as an expert
             by knowledge, skill, experience, training, or education. If


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                                   Opinion of the Court



             the witness is so qualified and proper foundation is
             established, the witness may give expert testimony as to
             the HGN test results, subject to the additional limitations
             in subsection (a1). Namely, the expert witness may testify
             solely on the issue of impairment and not on the issue of
             specific alcohol concentration, and the HGN test must have
             been administered by a person who has successfully
             completed training in HGN.

State v. Godwin, __ N.C. App. __, __, 786 S.E.2d 34, 37 (2016) (citations and internal

quotation marks omitted), disc. review allowed, __ N.C. __, __ S.E.2d __ (2016),

available at 2016 WL 5344499. Here, it is undisputed that Ray was not tendered as

an expert in HGN interpretation and, accordingly, his testimony was not received as

an expert in that field. This was error. See id. at __, 786 S.E.2d at 37.

      Regarding prejudice, Killian argues that, but for the HGN testimony, the jury

“likely” or “very likely” would have acquitted him of driving while impaired and, in

support of this contention, Killian asserts that the remaining evidence against him

was similar to that in Godwin, where we granted the defendant a new trial. While

the additional, non-HGN evidence in Godwin bears some resemblance to that against

Killian, the defendant in Godwin objected to the admission of the HGN testimony

during his trial, thus preserving his right of appellate review on that issue. Id. at __,

786 S.E.2d at 36. Accordingly, in order to receive a new trial, the defendant in

Godwin only had to establish that there was a reasonable possibility that the HGN

testimony altered the jury’s verdict. See State v. Helms, 348 N.C. 578, 583, 504 S.E.2d

293, 296 (1998) (“In order to establish prejudicial error in the erroneous admission of


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                                   Opinion of the Court



. . . HGN evidence, [a] defendant must show only that had the error in question not

been committed, a reasonable possibility exists that a different result would have

been reached at trial.”) (citation omitted). In contrast,

             [t]he plain error rule applies only in truly exceptional
             cases. Before deciding that an error by the trial court
             amounts to plain error, the appellate court must be
             convinced that absent the error the jury probably would
             have reached a different verdict. In other words, the
             appellate court must determine that the error in question
             tilted the scales and caused the jury to reach its verdict
             convicting the defendant. Therefore, the test for plain
             error places a much heavier burden upon the defendant
             than that imposed . . . upon defendants who have preserved
             their rights by timely objection. This is so in part at least
             because the defendant could have prevented any error by
             making a timely objection.

State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986) (citations and internal

quotation marks omitted; emphasis added). See also State v. Pate, 187 N.C. App. 442,

448-49, 653 S.E.2d 212, 217 (2007) (“A reasonable possibility of a different result at

trial is a much lower standard than that a different result probably would have been

reached at trial, which is what this Court must find for there to be plain error.”)

(citations and internal quotation marks omitted; emphasis added).

      In light of the “much lower standard” of prejudice applied in Godwin, see id.,

Killian’s contentions that the non-HGN evidence of his impairment was similar to

the evidence in that case are inapposite.        We have found no precedential case

addressing plain error in the admission of HGN testimony. But see State v. Jackson,



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237 N.C. App. 183, 767 S.E.2d 149 (2014) (unpublished), available at 2014 WL

5587011 (finding no error in admission of HGN evidence and discussing the

overwhelming non-HGN evidence of the defendant’s impairment—several traffic

infractions, the odor of alcohol and marijuana, bloodshot and glassy eyes, admission

by the defendant of having consumed two beers and smoked marijuana earlier in the

day, and a blood alcohol level reading of 0.16 on an Intoxilyzer test—before noting in

dicta that, even had the admission of the evidence been error, the Court would not

have concluded the error likely altered the jury’s verdict).

       Here, even without the HGN testimony, the jury had before it the following

evidence of Killian’s impairment: Ray’s observations of Killian’s slurred speech,

glassy, red eyes, and strong odor of alcohol; two positive breath test results; Killian’s

failure to successfully complete the walk and turn test and inability to attempt the

one-leg stand; Killian’s admission to having consumed two beers; the blood alcohol

test results indicating legal impairment with a BAC of 0.10; and a recording from

Ray’s dashboard camera of his entire roadside encounter with Killian. In light of this

significant evidence of impairment, we are not persuaded that, had Ray’s testimony

about the HGN test results not been admitted, the jury probably would have reached

a different result. In our view, Killian’s is not the “truly exceptional case[]. . . . [where]

the error in question tilted the scales and caused the jury to reach its verdict




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convicting the defendant.” See Walker, 316 N.C. at 39, 340 S.E.2d at 83 (citations

and internal quotation marks omitted). Accordingly, he is not entitled to a new trial.

      NO PREJUDICIAL ERROR.

      Judges BYRANT and DILLON concur.




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