Third District Court of Appeal
State of Florida
Opinion filed November 18, 2020.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-2354
Lower Tribunal No. 19-593
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Shane Kopp,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jose L.
Fernandez, Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant
Public Defender, for appellant.
Ashley Moody, Attorney General, and Kseniya Smychkouskaya, Assistant
Attorney General, for appellee.
Before EMAS, C.J., and HENDON and GORDO, JJ.
GORDO, J.
Shane Kopp appeals his conviction and sentence following a jury trial. We
have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A). Kopp argues the trial court
abused its discretion in allowing identification testimony that the person depicted in
video footage of the underlying crime was Kopp. The State argues the trial court
properly admitted the testimony because the video was of poor quality and the
witness was in a better position than the jury to identify Kopp. We agree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 2, 2019, a vehicle was burglarized in Jackson Memorial Towers’
parking garage. A firearm, which was under the passenger seat of the vehicle, was
taken. The incident was captured on Jackson’s surveillance cameras throughout the
garage. The State subsequently charged Kopp by information with several offenses,
including unlawful possession of a firearm or weapon by a violent career criminal.
Prior to trial, the defense moved to exclude any testimony or identification of
Kopp by Nixon Reyes, a security guard at Jackson. The defense asserted that any
testimony from Reyes “would be opinion testimony which invades the province of
the jury.” The court denied the motion and the case proceeded to trial.
The State’s first witness was Reyes who testified he worked at Jackson and
had seen Kopp on numerous occasions, both in person and on video. Reyes further
testified that in 2016, he had a forty-minute, face-to-face conversation with Kopp at
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a distance of about two to three feet. Reyes never identified himself as a security
guard.
The State introduced the surveillance footage from several cameras during
Reyes’s testimony. The footage shows a person wearing a white t-shirt, dark pants,
and a red drawstring backpack approaching the vehicle at issue in this case. The
identity of the person, however, is not ascertainable because of the poor quality of
the footage. Reyes stated that he had reviewed the footage four or five times before
trial and identified Kopp as the person depicted in the footage based on his prior
interaction with Kopp. He also stated that Kopp appeared the same on the footage
as he had during their conversation in 2016.
LEGAL ANALYSIS
The sole issue before us is whether Reyes’s opinion testimony identifying
Kopp as the individual in the videos was properly admitted in evidence. “The trial
court’s ruling on the admissibility of evidence is reviewed under the abuse of
discretion standard.” Mathieu v. State,
258 So. 3d 528, 532 (Fla. 3d DCA 2018)
(citing Bearden v. State,
161 So. 3d 1257, 1263 (Fla. 2015)).
“In general, a witness may testify as to the identification of persons depicted
in photographs or on video when the witness is in a better position than the jurors to
make that identification.” Bentley v. State,
286 So. 3d 912, 914 (Fla. 2d DCA 2019)
(citations omitted); see also Day v. State,
105 So. 3d 1284, 1286–87 (Fla. 2d DCA
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2013) (In a criminal prosecution, the State may present identification witnesses who
are “capable of independently identifying the individual from photographs, tape
recordings, or similar evidence . . . or simply to support other identification evidence
when that might be subject to challenge.” (internal citations and quotations
omitted)). This identification testimony is inadmissible and invades the province of
the jury, however, when the witness is in no better position than the jurors to make
the identification. See, e.g., Alvarez v. State,
147 So. 3d 537, 542–43 (Fla. 4th DCA
2014).
Prior to asking Reyes to identify Kopp on the surveillance footage, the State
laid the foundation by eliciting testimony that Reyes had previously interacted with
Kopp for a lengthy period of time in person, had seen Kopp on video, and had viewed
the video footage at issue several times before trial.
Further, the video footage at issue was of poor quality. “The State may
introduce . . . identification testimony when a videotape does not provide clear
images of the perpetrators . . . .”
Day, 105 So. 3d at 1287 (citing Hardie v. State,
513 So. 2d 791, 792 (Fla. 4th DCA 1987)). The face of the person in the video was
not clearly visible and zooming in only worsened the quality of the image. Reyes’s
testimony was permissible to assist the jury in its independent analysis of the video
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footage and did not invade the province of the jury.1 We therefore find the trial court
did not abuse its discretion in admitting Reyes’s testimony to support the State’s
other evidence on the issue of identity.
Affirmed.
1
We note this case is distinguishable from cases cited by Kopp that found
identification testimony to be harmful and, therefore, improper. See, e.g., Bentley,
286 So. 3d 912; Day,
105 So. 3d 1284; Hardie,
513 So. 2d 791. In those cases, the
appellate court reversed because the identification testimony insinuated to the jury
that the defendant had been involved in prior criminal conduct, which was harmful
error. In this case, the jury never learned Reyes was a security guard at Jackson or
that his interactions with Kopp occurred during his patrols as a security guard.
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