COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Malveaux, Athey and Senior Judge Petty
DANNY EDWARD FERGUSON, III MEMORANDUM OPINION* v. Record No. 1894-23-3 PER CURIAM APRIL 1, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG F. Patrick Yeatts, Judge
(Mark T. Stewart, on brief), for appellant.1
(Jason S. Miyares, Attorney General; Linda R. Scott, Senior Assistant Attorney General, on brief), for appellee.
Danny Edward Ferguson (“Ferguson”) appeals his conviction for defying a court order,
in violation of Code § 16.1-292. On appeal, Ferguson contends that the Circuit Court of the City
of Lynchburg (“circuit court”) erred when it “failed to first make a threshold finding of fact with
respect to the reliability of the scientific method offered and the reliability of the particular HEM
[home electronic monitoring] device by a qualified expert witness.” He also contends that the
circuit court erred when it allowed Nicki Rivers to testify about technical matters outside her
personal knowledge and when it admitted a photograph containing GPS plot points of
Ferguson’s movements. Even if we assume that the circuit court erred, we find that any error
would be harmless. Thus, we affirm the circuit court’s judgment.2
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Appellant filed a motion to seal his opening brief, which the panel unanimously grants. 2 Having examined the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). I. BACKGROUND3
On March 28, 2023, the Lynchburg Juvenile and Domestic Relations District Court
(“JDR court”) sentenced Ferguson to a suspended commitment to the Department of Juvenile
Justice for violating Code §§ 18.2-91 (statutory burglary) and 18.2-95 (grand larceny).4 As a
condition of suspending the commitment, the JDR court ordered Ferguson to remain on HEM for
60 days and further to comply with all services recommended by the Court Services Unit
(“CSU”).
On April 10, 2023, Ferguson’s probation officer filed a petition alleging that Ferguson
had violated the March 28, 2023 JDR court order. As a result, a detention order was issued for
Ferguson by the JDR court. On May 22, 2023, the JDR court subsequently held that Ferguson
had, in fact, violated its March 28, 2023 order and committed him to the Department of Juvenile
Justice for an indeterminate period. Ferguson appealed to the circuit court.
During the hearing before the circuit court, Megan Neal (“Neal”) testified that she was
the juvenile probation officer with the CSU assigned to monitor Ferguson. She testified that on
March 28, 2023, Ferguson was placed on HEM with Elite Watch for 60 days. Neal explained
that Elite Watch is the HEM subcontractor and is responsible for connecting the GPS units,
tracking coordinates, and conducting home checks. She further explained that Elite Watch sends
3 We recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Cady, 300 Va. at 329. Additionally, resolving this appeal requires unsealing certain sealed portions of the record and briefs. “To the extent that we mention facts found only in the sealed record, we unseal only those specific facts, finding them relevant to our decision in this case. The remainder of the previously sealed record remains sealed.” Minh Duy Du v. Commonwealth, 292 Va. 555, 560 n.3 (2016). 4 Ferguson failed to timely note his appeal of these underlying adjudications and thus they are not part of this appeal. -2- the probation office updates three times a week regarding whether the juvenile has complied with
HEM. She added that if a violation occurs, Elite Watch notifies the probation office as soon as
possible and that juveniles placed on HEM are required to remain at home unless Neal gives
them permission to leave.
Here, on April 7, 2023, Elite Watch informed Neal that Ferguson had gone beyond the
permissible boundary of 100 feet outside of his home between 1:30 a.m. and 2:00 a.m. on April
6, 2023. When Neal asked Ferguson if he had gone outside the HEM boundary on April 6, 2023,
Ferguson admitted that his brother was in a vehicle across the street and that he had gone over to
speak with him. Neal had not authorized Ferguson to leave his home between 1:30 a.m. and
2:00 a.m. on April 6, 2023.
An Elite Watch caseworker, Nicki Rivers (“Rivers”), also testified that on March 28,
2023, she met with Ferguson and his grandmother, Jackie Ferguson (“Jackie”), at the Lynchburg
Detention Center. The trio discussed what HEM meant, the GPS device that would be attached
to his ankle, and the rules associated with HEM. Rivers reviewed rule number six which
“state[d] that unless otherwise noted . . . [Ferguson] would remain inside his residence at all
times.” Rivers testified that she emphasized this particular rule because Ferguson had issues
complying with the rules when he had been on HEM previously. Both Ferguson and Jackie
signed the contract acknowledging that they understood the terms and conditions of HEM.
Rivers further testified that GPS monitoring information from Elite Watch indicated that
Ferguson was across the street and outside the HEM boundary from 1:30 a.m. until 2:00 a.m. on
April 6, 2023.
Ferguson objected to the admissibility of the GPS data on the basis of reliability. He
argued that the trial court must first make a threshold finding that the scientific method offered is
reliable and that finding required the testimony of an expert witness. Ferguson contended that
-3- Rivers could not provide the technical testimony necessary for the court to make the threshold
finding. The court took Ferguson’s objection under advisement, believing the objection was
premature.
Rivers testified that Elite Watch was a private firm that contracted with the state to
provide HEM service to individuals. Rivers stated that Elite Watch works with a company called
BI Technology, which compiles the technical data and alerts Elite Watch when an individual is
outside his HEM boundary. Rivers noted that she can log into BI Technology’s computer system
and watch individuals in real time. The HEM unit consists of a GPS tracker, an anti-tampering
system, a motion sensor, and a battery to charge the device that is strapped onto the wearer’s
ankle. The unit triangulates between 3 types of devices: satellites, cell phone towers, and open
WiFi, and has 95% accuracy within 30 feet and 100% accuracy outside 30 feet.
Rivers added that in Ferguson’s case, BI Technology calibrated Ferguson’s HEM unit
before Rivers placed it on Ferguson’s ankle. At the detention center, Rivers checked the unit for
any signs of damage and ensured that the unit was accurately transmitting its location so that
Ferguson would not violate the conditions of HEM as long as he remained within the 100-foot
boundary outside his house. Rivers observed Ferguson’s locations between March 28, 2023, and
April 6, 2023. On April 6, 2023, Ferguson’s GPS was 83 feet beyond the HEM boundary.
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Malveaux, Athey and Senior Judge Petty
DANNY EDWARD FERGUSON, III MEMORANDUM OPINION* v. Record No. 1894-23-3 PER CURIAM APRIL 1, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG F. Patrick Yeatts, Judge
(Mark T. Stewart, on brief), for appellant.1
(Jason S. Miyares, Attorney General; Linda R. Scott, Senior Assistant Attorney General, on brief), for appellee.
Danny Edward Ferguson (“Ferguson”) appeals his conviction for defying a court order,
in violation of Code § 16.1-292. On appeal, Ferguson contends that the Circuit Court of the City
of Lynchburg (“circuit court”) erred when it “failed to first make a threshold finding of fact with
respect to the reliability of the scientific method offered and the reliability of the particular HEM
[home electronic monitoring] device by a qualified expert witness.” He also contends that the
circuit court erred when it allowed Nicki Rivers to testify about technical matters outside her
personal knowledge and when it admitted a photograph containing GPS plot points of
Ferguson’s movements. Even if we assume that the circuit court erred, we find that any error
would be harmless. Thus, we affirm the circuit court’s judgment.2
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Appellant filed a motion to seal his opening brief, which the panel unanimously grants. 2 Having examined the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). I. BACKGROUND3
On March 28, 2023, the Lynchburg Juvenile and Domestic Relations District Court
(“JDR court”) sentenced Ferguson to a suspended commitment to the Department of Juvenile
Justice for violating Code §§ 18.2-91 (statutory burglary) and 18.2-95 (grand larceny).4 As a
condition of suspending the commitment, the JDR court ordered Ferguson to remain on HEM for
60 days and further to comply with all services recommended by the Court Services Unit
(“CSU”).
On April 10, 2023, Ferguson’s probation officer filed a petition alleging that Ferguson
had violated the March 28, 2023 JDR court order. As a result, a detention order was issued for
Ferguson by the JDR court. On May 22, 2023, the JDR court subsequently held that Ferguson
had, in fact, violated its March 28, 2023 order and committed him to the Department of Juvenile
Justice for an indeterminate period. Ferguson appealed to the circuit court.
During the hearing before the circuit court, Megan Neal (“Neal”) testified that she was
the juvenile probation officer with the CSU assigned to monitor Ferguson. She testified that on
March 28, 2023, Ferguson was placed on HEM with Elite Watch for 60 days. Neal explained
that Elite Watch is the HEM subcontractor and is responsible for connecting the GPS units,
tracking coordinates, and conducting home checks. She further explained that Elite Watch sends
3 We recite the facts “in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Cady, 300 Va. at 329. Additionally, resolving this appeal requires unsealing certain sealed portions of the record and briefs. “To the extent that we mention facts found only in the sealed record, we unseal only those specific facts, finding them relevant to our decision in this case. The remainder of the previously sealed record remains sealed.” Minh Duy Du v. Commonwealth, 292 Va. 555, 560 n.3 (2016). 4 Ferguson failed to timely note his appeal of these underlying adjudications and thus they are not part of this appeal. -2- the probation office updates three times a week regarding whether the juvenile has complied with
HEM. She added that if a violation occurs, Elite Watch notifies the probation office as soon as
possible and that juveniles placed on HEM are required to remain at home unless Neal gives
them permission to leave.
Here, on April 7, 2023, Elite Watch informed Neal that Ferguson had gone beyond the
permissible boundary of 100 feet outside of his home between 1:30 a.m. and 2:00 a.m. on April
6, 2023. When Neal asked Ferguson if he had gone outside the HEM boundary on April 6, 2023,
Ferguson admitted that his brother was in a vehicle across the street and that he had gone over to
speak with him. Neal had not authorized Ferguson to leave his home between 1:30 a.m. and
2:00 a.m. on April 6, 2023.
An Elite Watch caseworker, Nicki Rivers (“Rivers”), also testified that on March 28,
2023, she met with Ferguson and his grandmother, Jackie Ferguson (“Jackie”), at the Lynchburg
Detention Center. The trio discussed what HEM meant, the GPS device that would be attached
to his ankle, and the rules associated with HEM. Rivers reviewed rule number six which
“state[d] that unless otherwise noted . . . [Ferguson] would remain inside his residence at all
times.” Rivers testified that she emphasized this particular rule because Ferguson had issues
complying with the rules when he had been on HEM previously. Both Ferguson and Jackie
signed the contract acknowledging that they understood the terms and conditions of HEM.
Rivers further testified that GPS monitoring information from Elite Watch indicated that
Ferguson was across the street and outside the HEM boundary from 1:30 a.m. until 2:00 a.m. on
April 6, 2023.
Ferguson objected to the admissibility of the GPS data on the basis of reliability. He
argued that the trial court must first make a threshold finding that the scientific method offered is
reliable and that finding required the testimony of an expert witness. Ferguson contended that
-3- Rivers could not provide the technical testimony necessary for the court to make the threshold
finding. The court took Ferguson’s objection under advisement, believing the objection was
premature.
Rivers testified that Elite Watch was a private firm that contracted with the state to
provide HEM service to individuals. Rivers stated that Elite Watch works with a company called
BI Technology, which compiles the technical data and alerts Elite Watch when an individual is
outside his HEM boundary. Rivers noted that she can log into BI Technology’s computer system
and watch individuals in real time. The HEM unit consists of a GPS tracker, an anti-tampering
system, a motion sensor, and a battery to charge the device that is strapped onto the wearer’s
ankle. The unit triangulates between 3 types of devices: satellites, cell phone towers, and open
WiFi, and has 95% accuracy within 30 feet and 100% accuracy outside 30 feet.
Rivers added that in Ferguson’s case, BI Technology calibrated Ferguson’s HEM unit
before Rivers placed it on Ferguson’s ankle. At the detention center, Rivers checked the unit for
any signs of damage and ensured that the unit was accurately transmitting its location so that
Ferguson would not violate the conditions of HEM as long as he remained within the 100-foot
boundary outside his house. Rivers observed Ferguson’s locations between March 28, 2023, and
April 6, 2023. On April 6, 2023, Ferguson’s GPS was 83 feet beyond the HEM boundary.
The circuit court overruled Ferguson’s objection to the GPS units’ accuracy and Rivers’s
testimony. The court then admitted photographs that depicted Ferguson’s HEM GPS plot points
on April 6, 2023.
Jackie testified in Ferguson’s defense. She admitted that she was present when Rivers
put the HEM device on Ferguson’s ankle and that she had signed the contract with Elite Watch.
At first, Jackie said she could not recall discussing what Ferguson was permitted and prohibited
from doing with Rivers. Later, she remembered that Ferguson could not walk the dog because
-4- he would be outside his HEM boundary. When Jackie learned that Ferguson may have violated
the court order and left the home without permission, she asked him about it. At first, Ferguson
denied leaving the home but later admitted that he had gone to see the woman who lived across
the street but her home was vacant. Then his brother arrived and Ferguson talked with him while
across the street.
Following closing arguments from counsel, the circuit court found that Ferguson had
violated the March 28, 2023 JDR court order. In finding Ferguson violated the March 28, 2023
order, the circuit court noted that
[w]e’re talking a whole lot about the accuracy of these devices and how accurate they are but ultimately, what is not in dispute is he’s admitted to no less than two people that he was at another home across the street which is . . . more than sufficient to find him guilty of the violation.
The circuit court sentenced Ferguson to commitment at the Department of Juvenile Justice for an
indefinite period. Ferguson appealed.
II. ANALYSIS
On appeal, Ferguson contends that the circuit court erred when it failed to make a threshold
finding that the GPS information that the Commonwealth introduced was reliable. He also asserts
that the circuit court erred when it allowed Rivers to testify about how the HEM device functioned
and in admitting a photograph of GPS data that purported to show Ferguson’s movements.
Assuming without deciding that the circuit court erred when it admitted the challenged testimony
and evidence, we find any error in those rulings was harmless.
“[I]n determining whether an error is harmless, ‘we must review the record and the evidence
and evaluate the effect the error may have had on how the finder of fact resolved the contested
issues.’” Becker v. Commonwealth, 64 Va. App. 481, 497 (2015) (quoting Lavinder v.
Commonwealth, 12 Va. App. 1003, 1007 (1991) (en banc)). “A non-constitutional error is harmless
-5- when ‘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.’” Davis v. Commonwealth, 79
Va. App. 123, 146 (2023) (quoting Code § 8.01-678). “This Court may uphold a decision on the
ground that any error involved is harmless only if it can conclude, without usurping the jury’s
fact-finding function, ‘that the error did not influence the jury[] or had but slight effect.’” Id.
(alteration in original) (quoting Graves v. Commonwealth, 65 Va. App. 702, 712 (2016)).
Here, the record reflects that on March 28, 2023, the JDR court sentenced Ferguson to 60
days of HEM. The terms of his HEM detention required that he remain inside his residence at all
times except to attend school. Any other schedule change had to first be approved by Neal.
Notwithstanding, Ferguson admitted to both his grandmother and Neal that he left his home on
April 6, 2023, and was across the street looking at the vacant home and talking to his brother. Neal
did not approve Ferguson leaving his home on April 6, 2023. Indeed, the circuit court noted that
Ferguson “admitted to no less than two people that he was at another home across the street” and
that this was “more than sufficient to find him guilty” of violating Code § 16.1-292. Thus, the
circuit court did not rely on the GPS information, Rivers’s testimony, or the photograph of the GPS
data in finding the evidence sufficient to support Ferguson’s violation of the JDR court order.
Based on Ferguson’s admission, a reasonable fact finder could have concluded that
Ferguson violated the March 28, 2023 JDR court order without any reference to the GPS data.
Thus, any error in considering the challenged testimony or evidence had “but slight effect.”
Commonwealth v. Kilpatrick, 301 Va. 214, 216 (2022) (quoting Clay v. Commonwealth, 262 Va.
253, 260 (2001)). Accordingly, we need not consider the potential merits of Ferguson’s
arguments on appeal concerning the admissibility of testimony and evidence. See Dietz v.
Commonwealth, 294 Va. 123, 134 (2017) (noting that an appellate court decides cases on “the
-6- best and narrowest grounds available” (quoting Commonwealth v. White, 293 Va. 411, 419
(2017))).
III. CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed.
Affirmed.
-7-