State v. Leavitt , 2015 N.D. LEXIS 164 ( 2015 )

KAPSNER, Justice.

[¶ 1] Heather Leavitt appeals from a criminal judgment entered after a jury found, her guilty of attempted murder. We affirm the criminal judgment.

I

[¶ 2] On February 1, 2014, Timothy Leavitt woke up to being stabbed by an assailant in his home in Minot; he sustained serious injuries during the ensuing struggle, but was ultimately able to flee to safety. Although he was unable to positively identify his attacker, he described the assailant to authorities as “having a pony-tail, the same stature as his wife [Heather Leavitt].” He described the knife used in the attack as having a black handle with metal dots and a long silver blade and noted it was identical to a set of knives he and his wife owned, which were no longer in his home, but were in his wife’s possession. He also informed officers he lived in the house alone, he and his wife were separated, and they were sharing custody of their children. Officers observed evidence of an attack at the home and “bloody footprints (stocking feet)” throughout the home and adjacent yards. A black stocking hat with darker blonde hair was found under the bed and a ponytail band was also found in his home.

[¶ 3] Based on the authorities’ investigation, Sergeant David Goodman applied for a search warrant to search Heather Leavitt’s person, home, and vehicle, and Goodman provided an affidavit in support of his application. A search warrant was issued, officers executed 'the warrant, and evidence was collected. During the search of Heather Leavitt’s home, officers seized her cell phone. Officers later applied for and received a warrant to search the phone’s contents. Heather Leavitt was charged with attempted murder, and before trial, she moved to suppress evidence obtained from the two search warrants. At the hearing on the motion, the State conceded that any evidence obtained from Heather Leavitt’s cell phone should be suppressed. The district court granted Heather Leavitt’s motion to suppress as to the search of her cell phone, but denied it as to the search of her person, home, and vehicle. A jury ultimately convicted Heather Leavitt of attempted murder.

II

[¶ 4] On appeal, Heather Leavitt argues the district court erred by failing to suppress evidence obtained through a search warrant lacking probable cause and lacking a nexus to support a search of her vehicle and home. She also argues the district court erred by admitting a photograph into evidence, which she alleged had been improperly altered by the State and lacked proper foundation and authentication.

[¶ 5] This Court will affirm a district court’s decision on a motion to suppress if there is “sufficient competent evidence fairly capable of supporting the trial court’s findings,” and it is not contrary to the manifest weight of the evidence. State v. Doohen, 2006 ND 239, ¶ 8, 724 N.W.2d 158 (citation omitted). “Questions of law are fully renewable on appeal, and whether a finding of fact meets a legal standard is a question of law.” Id. (citation omitted). “Whether probable cause exists to issue a search warrant is a question of law.” State v. Roth, 2004 ND 23, ¶ 5, 674 N.W.2d 495. This Court generally defers to a magistrate’s probable cause determination if there is a substantial basis for the conclusion. Id. at ¶ 6.

III

[¶ 6] Before a search warrant may be issued, the Fourth Amendment to the United States Constitution and Article 1, Section 8, of our state’s constitution require probable cause to be established. State v. Duchene, 2001 ND 66, ¶ 11, 624 N.W.2d 668. “Probable cause exists when the facts and circumstances relied upon by the judge who issues the warrant would lead a person of reasonable caution to believe the contraband or evidence sought probably will be found in the place to be searched.” State v. Schmalz, 2008 ND 27, ¶ 11, 744 N.W.2d 734. In order to establish probable cause, a nexus between the place to be searched and the evidence sought must be found, and circumstantial evidence may be used to establish such a nexus. State v. Ebel, 2006 ND 212, ¶ 13, 723 N.W.2d 375. “The Fourth Amendment does not require an unbroken trail of evidence.” State v. Damron, 1998 ND 71, ¶ 24, 575 N.W.2d 912 (citation omitted). While each piece of information, on its own, may be insufficient to establish probable cause and some information may have an innocent explanation, “probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.” State v. Guthmiller, 2002 ND 116, ¶ 10, 646 N.W.2d 724 (citation omitted). Probable cause to search does not require the same standard of proof that is used to establish guilt at trial. Duchene, at ¶ 13. This Court resolves “doubt about the sufficiency of an affidavit in support of a request for a search warrant in favor of sustaining the search.” State v. Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861.

[¶ 7] On appeal, this Court reviews the sufficiency of the information that was before the magistrate, independent of the trial court’s decision, and employs the totality-of-the-circumstances test. Roth, 2004 ND 23, ¶5, 674 N.W.2d 495. In making an independent decision of whether or not probable cause exists, a reviewing court “may not look beyond the four corners of the affidavit” for the issuance of the search warrant. State v. Lunde, 2008 ND 142, ¶ 12, 752 N.W.2d 630 (citation omitted).

[¶ 8] The affidavit noted: 1) Timothy Leavitt told law enforcement he woke up to someone attacking him with a knife in his home in Minot, 2) he could not specifically identify the attacker as his wife, except to say the assailant had a pony-tail and was “the same stature as his wife,” 3) he and his wife were in the process of getting a divorce and were sharing custody of their children, 4) Timothy Leavitt described the knife as having a black handle with metal dots and a long silver blade, the knife was “identical” to a set of knives he and his wife had owned, and the knife set was no longer in the marital home, but in his wife’s possession, 5) his wife still had an ownership interest in the marital home, where the attack took place, but he lived alone and no one should have been in his home, 6) “bloody footprints (stocking feet)” were found at his home and throughout adjacent yards, 7) a black stocking hat, darker blonde hair, and a pony-tail band were found at his home, and 8) a description of Heather Leavitt’s vehicle and her residential address at the Minot Air Force Base.

[¶ 9] Heather Leavitt argues the affidavit only contains three statements actually relating to her, namely that she and Timothy Leavitt were “in the process of getting a divorce,” that Timothy Leavitt described his attacker as being “the same stature as his wife,” and the knife used “was identical to a set of knives he and his wife had, which were no longer in the marital residence, but rather in this wife’s possession.” Heather Leavitt maintains her marital status is immaterial, the affidavit was inaccurate because neither had filed for divorce, and the affidavit did not indicate there was any unusual animosity between her and Timothy Leavitt. Heather Leavitt also stresses “stature” only refers to a person’s height, not their build or body type. She argues the described knife is a very common model, and the affidavit failed to provide a temporal link between herself and the ownership of such a knife. Heather Leavitt contends the only two facts tying her to the attacker are the description of the attacker’s height and the use of a common knife of the same type that was in her possession at some unknown point in time, and these facts are insufficient to rise to the level of probable cause. She also argues the affidavit lacked the necessary information to provide a nexus to search her vehicle and her home. .

[¶ 10] The State argues the affidavit established probable cause that the attacker tracked blood out of the home and through the neighborhood and resembled Heather Leavitt. In addition, the State argues there was probable cause that Heather Leavitt’s person may contain evidence of the attack, including footprints and DNA for comparison purposes. The State also contends the affidavit established probable cause that the attacker used a weapon “identical to one in the defendant’s possession at her home some 15 miles away,” and “[i]t is logical for the magistrate to conclude from the affidavit that the defendant’s only vehicle may contain evidence of this crime.” The State argues, “giving due weight to the deference accorded a magistrate’s finding, the affidavit establishes probable cause for the issuance of the search warrant for [Heather] Leavitt’s person, residence and vehicle.”

[¶ 11] The affidavit notes Timothy Leavitt described the attacker as being “the same stature as his wife,” he and his wife were “in the process of getting a divorce,” “bloody footprints (stocking feet)” were found at the scene, and the knife used in the attack was “identical” to a set of knives that were in Heather Leav-itt’s possession. However, the affidavit contains no mention of Heather Leavitt’s hair color or length to link her to the description of the attacker’s pony-tail or the darker blonde hair and pony-tail band found at the scene. We acknowledge the facts alleged in the affidavit supporting this search warrant constitute a marginal case; however, in light of all the evidence presented to the magistrate, we conclude there was a fair probability that evidence would be found on Heather Leavitt’s person, in her vehicle, or in her home. See Thieling, 2000 ND 106, ¶ 8, 611 N.W.2d 861 (noting this Court resolves “doubt about the sufficiency of an affidavit in support of a request for a search warrant in favor of sustaining the search”); see also Schmalz, 2008 ND 27, ¶21, 744 N.W.2d 784 (“[D]oubtful or marginal cases should be resolved in favor of the magistrate’s determination.”) (citation omitted).

[¶ 12] Combining the time of year, the distance between Minot and the Minot Air Force Base, and the “bloody footprints (stocking feet)” found at the scene, we conclude there was a sufficient nexus , to search Heather Leavitt’s vehicle. It is a reasonable inference that the assailant did not intend to leave the area on foot in stocking feet in the winter. The affidavit indicates the crime scene had “bloody footprints (stocking feet),” making clothing evidence pertinent to the investigation. See Damron, 1998 ND 71, ¶23, 575 N.W.2d 912 (“When the object of the search is clothing worn at the time of the crime, the inference that the items are at the offender’s residence may be compelling.”). Two sources mentioned in the affidavit provide a nexus to Heather Leavitt’s home — the knives in her possession matching those used by the assailant and the clothing worn at the time of the attack. Under the totality of the circumstances, we conclude the magistrate had sufficient probable cause to issue a search warrant for Heather Leavitt’s person, home, and vehicle.

IV

[¶ 13] Heather Leavitt argues the district court erred by allowing Exhibit 15, a photograph, into evidence, which she alleges had been improperly altered and lacked proper foundation and authentication. This Court reviews a district court’s evidentiary ruling under the abuse of discretion standard of review. State v. Streeper, 2007 ND 25, ¶11, 727 N.W.2d 759. “A trial court abuses its discretion in evidentiary rulings when it acts arbitrarily, capriciously, or unreasonably or if it misinterprets or misapplies the law.” Id. (citation omitted).

[¶ 14] Here, the State offered Exhibit 14, a photograph of a bloody footprint taken from inside Timothy Leavitt’s home, into evidence, and the exhibit was admitted without objection from the defense. The State then offered Exhibit 15, which was testified as being the “same photo [as Exhibit 14] cropped and resized to true size.” The defense objected to the admission of Exhibit 15, arguing it was “[p]hoto-crop-ping of evidence.” The district court ultimately admitted Exhibit 15 into evidence over the defense’s objection.

[¶ 15] “Photographs are generally admissible to establish or clarify evidence of physical facts and to aid the jury in arriving at an understanding of the evidence.” State v. Engel, 289 N.W.2d 204, 209 (N.D.1980). To be admitted into evidence, a photograph must not give a wrong impression or create undue prejudice. Id. The admission and use of photographs in criminal trials is largely within the trial court’s discretion. Streeper, 2007 ND 25, ¶ 13, 727 N.W.2d 759.

[¶ 16] In order to satisfy the requirement of authenticating or identifying evidence, “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is,” and one of the ways this may be accomplished is by introducing testimony of a witness with knowledge “that an item is what it is claimed to be.” N.D.R.Ev. 901. “If the court decides evidence is what its proponent claims it to be, the court may admit the evidence and the question of its weight is for the trier-of-fact.” State v. Thompson, 2010 ND 10, ¶ 23, 777 N.W.2d 617.

[¶ 17] Here, Allison Elder, an administrative clerk for the investigations division, at the Minot Police Department, testified she “took a photo and changed the coloring on it to make it easier to see, and cropped it down and resized it to actual size.” Elder testified she “took the photo and referenced the ruler in the photo with the ruler in the computer program, which is what the actual ruler size would be, so that way we could print it actual size.” Elder also testified the proportions of the image were locked in by a computer function, she is trained in the operation of the computer program, and the photograph was cropped for the purpose of comparing it to a rolled footprint from Heather Leavitt.

[¶ 18] In determining whether to admit Exhibit 15 into evidence, the district court noted:

In terms of listening to the argument and having reviewed it, also I took into account I have here in terms of a ruler which has centimeters and I measured it out. And counsel can certainly look at that. But I am going to receive it. I will overrule the objection that was made by [Heather Leavitt], and that, from the standpoint it can go in.... And I am taking into account the indications made by the witness [Elder], in terms of the process that she went through, the programs that she utilized. I recognize this is the first time that she has testified as to one of her work products. But in terms of the ability to blow up part of a picture, it can be done, no doubt, and it can be done proportionately. It can also be distorted. By distorted I mean you can be able to blow up just the width in a disproportionate manner as to the height. And that can make things obviously distort items. The ruler with the measurement to be able to put that against it certainly takes that concern aside. And one can be able to compare the two, [Exhibits] 14 and 15. So from that standpoint, I am allowing it.

[¶ 19] Heather Leavitt argues Exhibit 15 lacked proper foundation because Elder did not observe the scene, and the photograph was not a true and accurate representation of the footprint as it had been significantly altered. Heather Leavitt also argues it lacked proper authentication because Elder never testified the process she used provided an accurate result, and there was insufficient testimony that Elder had the necessary training and expertise with the computer program to ensure the manipulation of the photograph would produce an accurate result. In addition, Heather Leavitt maintains admitting Exhibit 15 into evidence was prejudicial because changing the color of the photograph made the blood more pronounced and seemed to change the footprint’s size; therefore, it improperly influenced the jury.

[¶ 20] The State argues Elder provided sufficient testimony to show her familiarity with the computer program and to prove Exhibit 15 is what she claimed it was. The State emphasizes the original photograph was also offered and received so that the fact finder could compare the two.

[¶ 21] Here, the original photograph, Exhibit 14, was entered into evidence without objection, and a ruler to provide a reference to the size of the footprint was in both photographs. In addition, Elder testified she had received training in the particular computer program she used, and she testified regarding the process she used to alter the image. Because the admission of photographs in criminal trials is largely within the trial court’s discretion, we conclude the trial court did not abuse its discretion in admitting Exhibit 15.

[¶ 22] Other issues raised by Heather Leavitt do not need to be addressed because they are unnecessary for resolving this appeal. Martin v. Berg, 2005 ND 108, ¶ 15, 697 N.W.2d 723 (“We need not address questions, the answers to which are unnecessary for the determination of an appeal.”).

V

[¶ 23] We conclude the magistrate had sufficient probable cause to issue a search warrant for Heather Leavitt’s person, home, and vehicle, and the district court did not abuse its discretion in admitting Exhibit 15. We affirm the criminal judgment.

[¶ 24] GERALD W. VANDE WALLE, C.J., and LISA FAIR McEVERS, J., concur.