State v. Snead

IN THE SUPREME COURT OF NORTH CAROLINA
No. 90PA15
Filed 15 April 2016
STATE OF NORTH CAROLINA
v.
DEMARIO LAMONT SNEAD
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 768 S.E.2d 344 (2015), finding no error in
part, affirming in part, and vacating and remanding for entry of judgment and
resentencing in part, judgments entered on 13 March 2014 by Judge Christopher W.
Bragg in Superior Court, Cabarrus County. Heard in the Supreme Court on 15
February 2016.
Roy Cooper, Attorney General, by Joseph L. Hyde, Assistant Attorney General,
for the State-appellant.
C. Scott Holmes for defendant-appellee.
NEWBY, Justice.
This case is about whether the State properly authenticated a surveillance
video showing defendant stealing shirts from a Belk Department Store (Belk) and
whether a witness’s lay opinion testimony based on that video was admissible. By
presenting evidence that the video surveillance system was reliable and that the
video presented at trial had not been altered, the State properly authenticated the
STATE V. SNEAD
Opinion of the Court
video. Moreover, because defendant failed to make a timely objection to the witness’s
testimony, he failed to preserve that issue for appellate review. Accordingly, we
reverse the decision of the Court of Appeals on those issues.
Defendant was indicted for felony larceny and conspiracy to commit felony
larceny after he and another man stole shirts from Belk. The indictment alleged that
on 1 February 2013, defendant stole and conspired to steal “clothing including but
not limited to Ralph Lauren Polo shirts” worth more than one thousand dollars. See
N.C.G.S. §§ 14-2.4, -72(a) (2015). Belk’s surveillance system captured the theft on
video, and defendant admitted that he committed the act depicted therein. The only
contested issue at trial was the value and quantity of the stolen shirts. Specifically,
the State argued that defendant stole twenty to thirty Ralph Lauren shirts worth
more than one thousand dollars, while defendant claimed he only stole seven, non-
brand-name shirts worth less than one thousand dollars.
At trial the State called Toby Steckler, a regional loss prevention manager for
Belk, to authenticate the surveillance video for admission into evidence and to offer
his opinion about the contents of the video. Steckler testified that he was familiar
with how Belk’s video surveillance system works. He testified that the Belk store in
question operates surveillance cameras connected to a digital video recorder, which
stores between thirty and sixty days of video. The video recorder is “industry
standard” and has safeguards to prevent tampering, including a watermark and a
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time and date stamp. When an incident occurs in the store, such as a theft, it is
“common business practice” for Belk to copy the video from the digital video recorder
to a compact disc (CD). Steckler testified that on 1 February 2013, the digital video
recorder captured a person later identified as defendant and another man stealing
shirts from Belk. Steckler viewed the incident after the fact on the digital video
recorder, and he later reviewed the incident after it was burned onto a CD. Steckler
testified that the video copied to the CD and presented as evidence at trial was the
same as that on the digital video recorder.
Defendant objected to introduction of the video into evidence, arguing the State
failed to properly authenticate it. Outside the presence of the jury, defense counsel
argued that because Steckler was not at Belk on the date of the theft, he could not
properly testify that the video “captured fairly and accurately what occurred on that
date.” The trial court overruled defendant’s objection. Before the jury returned to
the courtroom, however, the State played the video, which showed defendant
grabbing stacks of shirts from a table while a second man grabbed sweatshirts
hanging on a rack. The video also showed both men run out of the store with the
merchandise and jump into a vehicle, driven by a third person. At the conclusion of
the video, defendant stated that he had no further objections to admission of the
video.
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Opinion of the Court
Before the jury returned to the courtroom, defendant objected to any testimony
by Steckler regarding the value of the stolen shirts, arguing that this information had
not been provided in discovery and was not based on Steckler’s personal knowledge.
During voire dire, Steckler testified that he knew defendant stole Ralph Lauren Polo
shirts because the shirts were located in the Ralph Lauren section of the store and
the table from which defendant took shirts was specifically designated for Ralph
Lauren Polo shirts. Steckler further testified that although he did not know
specifically what was on the table on 1 February 2013, or the exact quantity of shirts
that were stolen, he estimated that defendant stole twenty to thirty shirts based on
the fact that Ralph Lauren typically requires Belk to pile six to eight shirts per stack
and defendant took multiple stacks of shirts.
The trial court ruled that Steckler could not testify that the shirts on the table
were Ralph Lauren shirts, but he could testify that the shirts were located in the
Ralph Lauren Polo section of the store, that if they were Ralph Lauren Polo shirts,
they would have been stacked a certain way to meet Ralph Lauren’s standards, and
that Ralph Lauren Polo shirts were priced at “X number of dollars” on 1 February
2013.
The jury then returned to the courtroom and the State played the video.
Steckler testified that “[y]ou can see [defendant] stacking shirts” while “the other
gentleman grab[s] the armful of sweatshirts.” Steckler testified that he is “familiar
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Opinion of the Court
with the merchandise” in Belk stores and that both the table and the rack of
sweatshirts were located in the Ralph Lauren Polo section. He explained that Ralph
Lauren Polo shirts are uniformly folded in a specific fashion and are stacked six to
eight shirts per pile. Based on the video, Steckler estimated that defendant stole
twenty to thirty polo shirts and that the second man stole five to eight sweatshirts.
According to Steckler’s testimony, on 1 February 2013, the fair market value of one
Ralph Lauren Polo shirt was between eighty-five and eighty-nine dollars and fifty
cents, and the value of each sweatshirt was ninety-five dollars. Defendant did not
object to Steckler’s estimate of the value or number of shirts stolen at the time the
State elicited this testimony before the jury. The jury convicted defendant of felony
larceny and conspiracy to commit felony larceny.
In a unanimous opinion, the Court of Appeals held, inter alia, that the trial
court erred by admitting the video of defendant shoplifting because the video was not
properly authenticated, State v. Snead, ___ N.C. App. ___, ___, 768 S.E.2d 344, 347
(2015), and abused its discretion by admitting Steckler’s estimate of the value of the
stolen shirts because the testimony was not based on Steckler’s firsthand knowledge
or perception, id. at ___, 768 S.E.2d at 349-50. The Court of Appeals concluded that
these errors were prejudicial because the State presented no other evidence to
establish that the value of the stolen property exceeded one thousand dollars. Id. at
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___, 768 S.E.2d at 348-50.1 Accordingly, the Court of Appeals vacated defendant’s
conviction for felony larceny and remanded for entry of judgment and resentencing
on the lesser included offense of misdemeanor larceny.2 Id. at ___, 768 S.E.2d at 350.
We allowed the State’s petition for discretionary review.
We agree with the State that Steckler’s testimony was sufficient to
authenticate the surveillance video under North Carolina Rule of Evidence 901. Rule
901(a) requires that evidence be authenticated by showing “that the matter in
question is what its proponent claims.” N.C.G.S. § 8C-1, Rule 901(a) (2015). Rule
901(b) lists ten examples of authentication that meet the requirements of subsection
(a). Id., Rule 901(b) (2015). “Recordings such as a tape from an automatic
surveillance camera can be authenticated as the accurate product of an automated
process” under Rule 901(b)(9). 2 Kenneth S. Broun et al., McCormick on Evidence
§ 216, at 39-40 (7th ed. 2013).3 Evidence that the recording process is reliable and
that the video introduced at trial is the same video that was produced by the recording
1 The Court of Appeals also found no error in defendant’s conviction for conspiracy to
commit felony larceny and affirmed his conviction of having attained habitual felon status.
Snead, ___ N.C. App. at ___, 768 S.E.2d at 351. These matters are not before this Court.
2 The State and defendant agree that the Court of Appeals ordered the wrong remedy.
Because we conclude that the trial court did not err in admitting the video or lay opinion
testimony, however, we need not reach that issue.
3 McCormick on Evidence refers to Federal Rule of Evidence 901; however, North
Carolina Rule of Evidence 901 “is identical to [the federal rule] except that in [subdivision
(b)(10)] the word ‘statute’ is inserted in lieu of the phrase ‘Act of Congress or by other rules
prescribed by the Supreme Court pursuant to statutory authority.’ ” N.C.G.S § 8C-1, Rule
901 cmt. (2015).
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process is sufficient to authenticate the video and lay a proper foundation for its
admission as substantive evidence. See N.C.G.S. § 8-97 (2015); see also State v.
Campbell, 311 N.C. 386, 388, 317 S.E.2d 391, 392 (1984) (“[R]eal evidence is properly
received into evidence” if it is “identified as being the same object involved in the
incident and it [is] shown that the object has undergone no material change.”); State
v. Kistle, 59 N.C. App. 724, 726, 297 S.E.2d 626, 627 (1982) (“If the offered item
possesses characteristics which are fairly unique and readily identifiable, and if the
substance of which the item is composed is relatively impervious to change, the trial
court is viewed as having broad discretion to admit merely on the basis of testimony
that the item is the one in question and is in a substantially unchanged condition.”
(quoting Edward W. Cleary et al., McCormick on Evidence § 212 (2d ed. 1972))), disc.
rev. denied, 307 N.C. 471, 298 S.E.2d 694 (1983); United States v. Pinke, 614 F. App’x
651, 653 (4th Cir. 2015) (per curiam) (concluding that a witness’s explanation of “the
manner in which the . . . video system operates, the means by which he obtained the
video, and that he downloaded it onto the DVD that was played for the jury” was
sufficient to authenticate the video).
“A detailed chain of custody need be established only when the evidence offered
is not readily identifiable or is susceptible to alteration and there is reason to believe
that it may have been altered.” Campbell, 311 N.C. at 389, 317 S.E.2d at 392; Kistle,
59 N.C. App. at 726, 297 S.E.2d at 627 (“[T]he State need not establish a complete
chain of custody [when a] witness who had inspected the film immediately after
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processing testified that the photographs introduced at trial were the same as those
he had inspected immediately after processing.”); accord United States v. Van Sach,
No. 1:09CR03, 2009 WL 3232989, at *3 (N.D. W. Va. Oct. 1, 2009) (unpublished order)
(“Establishing a formal chain of custody of evidence is no longer required [to support
a finding that evidence is authentic]. Rather, it is sufficient for the party offering the
[videotape] simply to satisfy the trial court that the item is what it purports to be and
has not been altered.” (citation omitted)). “[A]ny weak links in a chain of custody
relate only to the weight to be given evidence and not to its admissibility.” Campbell,
311 N.C. at 389, 317 S.E.2d at 392 (citations omitted).
Given that defendant freely admitted that he is one of the two people seen in
the video stealing shirts and that he in fact stole the shirts, he offered the trial court
no reason to doubt the reliability or accuracy of the footage contained in the video.
Regardless, Steckler’s testimony was sufficient to authenticate the video under Rule
901. Steckler established that the recording process was reliable by testifying that
he was familiar with how Belk’s video surveillance system worked, that the recording
equipment was “industry standard,” that the equipment was “in working order” on 1
February 2013, and that the videos produced by the surveillance system contain
safeguards to prevent tampering. Moreover, Steckler established that the video
introduced at trial was the same video produced by the recording process by stating
that the State’s exhibit at trial contained exactly the same video that he saw on the
digital video recorder. Because defendant made no argument that the video had been
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altered, the State was not required to offer further evidence of chain of custody.
Steckler’s testimony, therefore, satisfied Rule 901, and the trial court did not err in
admitting the video into evidence.
Furthermore, we agree with the State that defendant failed to preserve the
issue of whether Steckler’s estimate of the value of the stolen shirts was admissible
lay opinion testimony. “In order to preserve an issue for appellate review, a party
must have presented to the trial court a timely request, objection, or motion . . . .”
N.C. R. App. P. 10(a)(1). “To be timely, an objection to the admission of evidence must
be made ‘at the time it is actually introduced at trial.’ ” State v. Ray, 364 N.C. 272,
277 & n.1, 697 S.E.2d 319, 322 & n.1 (2010) (quoting and discussing State v.
Thibodeaux, 352 N.C. 570, 581, 532 S.E.2d 797, 806 (2000) (emphasis omitted), cert.
denied, 531 U.S. 1155 (2001)). An objection made “only during a hearing out of the
jury’s presence prior to the actual introduction of the testimony” is insufficient. Id.
at 277, 697 S.E.2d at 322 (citing Thibodeaux, 352 N.C. at 581-82, 532 S.E.2d at 806);
State v. Brent, 367 N.C. 73, 76, 743 S.E.2d 152, 154 (2013) (same); accord State v.
Gladden, 315 N.C. 398, 414, 340 S.E.2d 673, 684 (“[A] defendant is not entitled to
relief where there was no objection made at the time the evidence was offered.”
(citation omitted)), cert. denied, 479 U.S. 871 (1986).
Here defendant objected to testimony related to the value of the shirts only
outside the presence of the jury. He did not subsequently object when the State
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elicited Steckler’s testimony before the jury. Therefore, defendant failed to preserve
the alleged error for appellate review, and “the Court of Appeals erred by reaching
the merits of defendant’s arguments on this issue.” Ray, 364 N.C. at 278, 697 S.E.2d
at 322.
Because the State properly authenticated the surveillance video under Rule
901 and defendant failed to make a timely objection to Steckler’s lay opinion
testimony, the trial court did not err in admitting either at trial. Accordingly, we
reverse the decision of the Court of Appeals on those issues and instruct that court to
reinstate defendant’s conviction for felony larceny and the trial court’s resulting
judgment thereon. The remaining issues addressed by the Court of Appeals are not
before this Court, and its decision as to these matters remains undisturbed.
REVERSED.
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