THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Petitioner,

v.

Cody Roy Gordon, Respondent.

Appellate Case No. 2014-001337

ON WRI T OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Oconee County The Honorable Alexander S. Macaulay, Circuit Court Judge

Opinion No. 27554 Heard June 3, 2015 – Filed August 5, 2015

AFFIRMED AS MODIFIED

Attorney General Alan McCrory Wilson and Assistant Attorney General John Benjamin Aplin, both of Columbia, for Petitioner.

Keith G. Denny, of Keith G. Denny, P.A., of Walhalla, for Respondent.

JUSTICE BEATTY: The State appeals the Court of Appeals' affirmation of the circuit court's interpretation of section 56-5-2953 of the South CarolinaCode. The Court of Appeals found that section 56-5-2953 requires officers to
record the head of the motorist when administer ing the Horizontal Gaze Nystagmus (HGN) field sobriety test and that Cody Gordon's head was not sufficiently visible. The State posits that a plain reading of the statute makes no
mention of the motorist's "head." We affi rm the Court of Appeals' conclusion that the statute requires that the motorist's head be recorded in the video; however, we
vacate the mandate to remand to the magistrate court for fu rther consideration. We
reinstate Gordon's conviction as we find th at the officer complied with the statute in recording Gordon's HGN test.

I. Factual/Procedural History

On October 29, 2011, Gordon was stoppe d at a license and registration checkpoint by a South Carolina Highway Patr ol Officer. The o fficer administered several field sobriety tests. The test at issue in this case is the HGN test. The dashboard camera on the officer's patrol car recorded the entire incident, including all field sobriety tests, with continuous recording. The stop occurred at night, so the lighting was not perfect, but the office r had Gordon stand in the light of his patrol car's headlights and further illuminated Gordon by shining a flashlight directly on his face.

Following the tests, Gordon was plac ed under arrest. Gordon was charged with driving under the influence (DUI) for violating section 56- 5-2930. The case was presented to a magistrate judge and a jury. The jury found Gordon guilty as charged. Gordon timely a ppealed his conviction.

Using still-shot photos of the video, Gordon argued that the video violated section 56-5-2953(A) because he was out of sight and in the dark during the HGN
test. The circuit court concluded that s ection 56-5-2953(A) requi res the motorist's head to be visible during the administration of the HGN field sobriety test. Section 56-5-2953(A) reads in pertinent part:

(A) A person who violates Secti on 56-5-2930, 56-5-2933, or 56-5-
2945 must have his conduct at the incident site and breath test site
video recorded. (1)(a) The video recording at the incident site must: (i) not begin later than the activa tion of the officer's blue lights; (ii) include any field sobriety tests administered ; and (iii) include the arrest of a pers on for violation of Section 56-5-2930 or Section 56-5-2933, or a probable cause determination in that the person violated Section 56-5-2945, and show the person being advised of his Miranda rights.

S.C. Code Ann. § 56- 5-2953(A) (Supp. 2011) (emphasi s added). The circuit court found Gordon's head was not "sufficiently visible through the entire administration of the [HGN] test." The circuit court reversed his conviction and dismissed the DUI charge. The State ti mely appealed to the Court of Appeals.

The Court of Appeals affirmed in pa rt, vacated in part, and remanded the case to the magistrate court. State v. Gordon , 408 S.C. 536, 759 S.E.2d 755 (Ct. App. 2014). The court concluded that "the circuit court correctly found the head must be shown during the HGN test in order for that sobriety test to be recorded, and we affirm that finding." Gordon , 408 S.C. at 543, 759 S.E.2d at 758. The Court of Appeals remanded the case to the ma gistrate court with the instruction to "make factual findings in light of the circ uit court and our determination that the test must be recorded on the camera; speci fically for the HGN test, the head has to be visible on the recording." Gordon , 408 S.C. at 543-44, 759 S.E.2d at 759.

The Court of Appeals denied the State's petition for a rehearing. 1 This Court granted the State's petition for a writ of cer tiorari to review the Court of Appeals'
decision.

II. Standard of Review

In criminal cases, the appellate court sits to review errors of law only. State

v. Baccus , 367 S.C. 41, 48, 625 S.E.2d 216, 220 (20 06). Thus, an appellate court is bound by the trial court's factual findings unless they are clearly erroneous. Id

.

"The cardinal rule of statutory interpre tation is to ascertain and effectuate the intention of the legislature." Sloan v. Hardee, 371 S.C. 495, 498, 640 S.E.2d 457, 459 (2007). "When a statute' s terms are clear and unambi guous on their face, there is no room for statutory construction and a court must apply the statute according to its literal meaning." Id. In interpreting a statute, "[ w]ords must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation." Id. at 499, 640 S.E.2d at 459.

1 Additionally, the Court of Appeals withdr ew its original opinion and substituted a new published one. Gordon , 408 S.C. at 536, 759 S.E.2d at 755.III. Discussion

Whether the Court of Appeals erred in affirming the circuit court's decision to reverse Gordon's magistrate court conviction for driving under the
influence?

A. Argument

The State argues the Court of Appeal s misconstrued the decision of the magistrate as lacking sufficient findings of fact. Specifically, the State contends that the Court of Appeals "misappr ehended or overlooked the clear and unambiguous language of the statute, which does not include any requirement that
'the head must be visible on the record ing' of an HGN field sobriety test."

B. Analysis

The State would have us review this case using the analytical framework of Murphy v. State, 392 S.C. 626, 709 S.E.2d 685 (Ct. App. 2011). The court in Murphy held that section 56-5-2953 only requi res that the conduct of the motorist
be recorded. Murphy , 392 S.C. at 631, 709 S.E.2d at 688. The Court of Appeals and the circuit court correctly distinguished Murphy from Gordon's case. In Murphy , the prior version of the statute at i ssue in this case was in effect. The prior version of the statute did not in clude the explicit requirement that the videotape include "any field sobriety tests administered." S.C. Code Ann. § 56-5

- 2953(A)(1)(a)(ii)(Supp. 2011). Th e current version of the statute, which applies to Gordon, specifically requires that the o fficer record "any field sobriety tests administered." Based on this distinction, the magistrate erred as a matter of law in finding that the officer's recording was only required to show Gordon's conduct generally.

The statute at issue in th is case is clear and unambiguous and, therefore, this Court must give its words their ordinary me aning. The statute states that the video recording "must include any field sobriety test administered," which necessarily includes the HGN test. Considering the f act that the HGN te st focuses on eye movement, common sense dictat es that the head must be visible on the video. Accordingly, the circuit court's finding th at the head must be visible does not amount to a hyper-technicality, but merely states the obvious. The Court of Appeals did not err in affirming this requirement.Here, the officer's administration of th e HGN test is visible on the video recording. It is undisputed that Gordon's face is depicted in the video; it is
axiomatic that the face is a part of the head. The officer's flashlight and arm are visible as he administers the test. Also, the officer's instructio ns were audible. Thus, the requirement that the head be vi sible on the video is met and the statutory requirement that the administration of the HGN field sobriety test be video recorded is satisfied. Therefore, the per se dismissal of the charge as discussed in Town of Mount Pleasant v. Roberts , 393 S.C. 332, 713 S.E.2d 278 (2011), and City of Rock Hill v. Suchenski , 374 S.C. 12, 646 S.E.2d 879 (2 007) is not appropriate.

Even if we assume that the video of a field sobriety test is of such poor quality that its admission is more prejudici al than probative, the remedy would not be to dismiss the DUI charge. Instead, the remedy would be to redact the field sobriety test from the video and exclude testimony about the test. 2 If that remedy is applied here, there is still sufficient ev idence to present this case to a jury for
resolution. The evidence included the br eath alcohol analysis report, video of other field sobriety tests, and Gordon's stat ement that he had consumed four beers.

Neither Gordon nor the State would have been prejudiced by the exclusion of the HGN test video or testimony becau se of the alleged poor quality of the
video. Since the focus of the HGN test is the movement of the eyes, the jury
would not have been able to determine if Gordon passed or failed by simply looking at this video. Moreover, the viewing of a video of an HGN field sobriety test has very little probative value to a jury because the eyes of the motorist are rarely, if ever, seen. 3

The remaining issues raised by Gor don concerning discrepancies with the
breath test site video's date a nd time stamp are without merit.

IV. Conclusion

The Court of Appeals' decision is affirm ed as to the requirements for video

2 It appears the solicitor unintentionally le d the circuit court to believe that the HGN test was the only evidence against Gordon.

3 Of course, this would not be the case if actual eye movement is recorded.recording the HGN field sobriety te st. The mandate to remand to the magistrate court for further consideration is vacated. Gordon's conviction is
reinstated.

TOAL, C.J., HEARN, J., and Acting Ju stice Allison Rene e Lee, concur. PLEICONES, J., concu rring in result only.