State v. Stangle

• Decision Date: 20 June 2014
• Docket Number: No. 2012–817,2012–817
• Citation: 97 A.3d 634,166 N.H. 407
• Parties: The STATE of New Hampshire v. Stephen STANGLE
• Court: New Hampshire Supreme Court

166 N.H. 407

97 A.3d 634

The STATE of New Hampshire

v.Stephen STANGLE

No. 2012–817

Supreme Court of New Hampshire.

Argued: January 16, 2014

Opinion Issued: June 20, 2014

Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State.

Stephanie Hausman, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

BASSETT, J.

After a jury trial in Superior Court (Bornstein, J.), the defendant, Stephen Stangle, was convicted on one count of theft by deception. RSA 637:4 (2007). On appeal, the defendant argues that the trial court erred in admitting a surveillance video without proper authentication. We affirm.

The following facts are drawn from the record or are otherwise undisputed. In January 2012, while shopping in a store in Woodsville, the defendant placed a vacuum cleaner in his shopping cart, passed through an unattended register line without paying, and proceeded to the customer service area to "return" the vacuum cleaner. Although the defendant lacked a receipt for the vacuum cleaner, a store employee accepted the exchange, recorded the number of the defendant's state-issued identification, and provided the defendant with a gift card for the value of the vacuum cleaner. The video surveillance system in the store recorded the defendant's actions.

Approximately one week later, an asset protection manager at the store viewed the surveillance video looking for any suspicious activity related to non-receipt returns. By "backtracking" through images from various surveillance cameras located throughout the store, the manager traced the defendant's movements from when he entered the store until he completed the exchange. After viewing the images, the manager downloaded a copy of the surveillance video onto her computer and transferred it to a compact disc (CD). She provided the CD to the police, together with the paperwork regarding the return.

A police officer subsequently matched the state-issued identification number recorded during the exchange to the defendant's driver's license number. The officer then contacted the defendant, who, after initially asserting that he had purchased the vacuum cleaner, later acknowledged that "he returned it for the money." The defendant was indicted on one count of theft by deception.

At trial, the State sought to introduce the surveillance video, authenticating it through the manager's testimony. The defendant objected to the admission of the video, arguing that the State failed to lay a proper foundation. The trial court disagreed, and admitted the video into evidence. The court concluded that the State had satisfied the requirements of New Hampshire Rule of Evidence 901(a), finding that the authentication requirement for the surveillance video had been satisfied by evidence sufficient to "allow a reasonable juror to find that the video is what the State claims it is." After a one-day jury trial, the defendant was convicted of theft by deception.

On appeal, the defendant argues that the trial court "erred in admitting the surveillance video where no witness testified that it accurately depicted the events at issue." The State disagrees and argues that the manager's testimony sufficiently authenticated the video. We agree with the State.

The decision to admit or exclude evidence is within the discretion of the trial court. State v. Furgal, 164 N.H. 430, 438, 58 A.3d 648 (2012). In determining whether a ruling is a proper exercise of judicial discretion, we consider whether the record establishes an objective basis sufficient to sustain the discretionary decision made. Id. To show an unsustainable exercise of discretion, the defendant must demonstrate that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id.

The authentication requirement for the admission of evidence is set out in Rule 901(a), which provides, "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.’’ "The bar for authentication of evidence is not particularly high.’’ State v. Ruggiero, 163 N.H. 129, 136, 35 A.3d 616 (2011) (quotation omitted). "The proof necessary to connect an evidentiary exhibit to a defendant may be made by circumstantial evidence.’’ Id. (quotation omitted). "The proponent need not rule out all possibilities inconsistent with authenticity, or ... prove beyond any doubt that the evidence is what it purports to be.’’ Id. (quotation omitted). Instead, "[t]he contested evidence, if otherwise relevant, should be admitted once a prima facie case has been made on the issue of authentication." State v. Reid, 135 N.H. 376, 383, 605 A.2d 1050 (1992) (quotation and brackets omitted). "Once the evidence is admitted, the rest is up to the jury.’’ Ruggiero, 163 N.H. at 136, 35 A.3d 616 (quotation omitted).

Although Rule 901(a) requires the proponent to present evidence of authenticity, the rule does not establish formal requirements as to the nature or quantum of proof. See State v. Caswell, 146 N.H. 243, 248, 769 A.2d 387 (2001) (discussing admissibility of radar results); State v. Lee, 134 N.H. 392, 395–96, 593 A.2d 235 (1991) (discussing admissibility of infrared spectrophotometer

test results). Rule 901(b), however, provides a non-exhaustive list of examples of authentication or identification methods that conform with the requirements of Rule 901(a), including:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

....

(9) Process or system. —Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

The defendant argues that the manager's testimony was insufficient to authenticate the video because she "was not involved in establishing or maintaining^" the surveillance cameras or the storage systems, and, therefore, could "offer[ ] no testimony that the cameras ‘produced an accurate result.’ " The defendant also asserts that the State offered insufficient evidence to establish the reliability of the surveillance video's "creation and handling" because it "was stored at an undisclosed location, and accessed by an undisclosed number of people" for approximately one week before the manager viewed the video and provided it to the police. The defendant contends that the State could have offered additional evidence to authenticate the video, such as testimony from the employees involved in the transaction or an employee with "knowledge about the storage of surveillance footage." The defendant also argues that in order to admit the video the State was required to call the witnesses to the return transaction.

We have not previously addressed the foundational requirements for admitting videos into evidence under Rule 901(a). See State v. Leroux, 133 N.H. 781, 785, 584 A.2d 778 (1990) (recognizing that proponent of video in criminal case must "lay a proper foundation showing that [it] accurately portrays the event in question’’). "When presented with authentication challenges to the admissibility of video tapes or other recordings, courts have typically admitted such evidence on one of two grounds." People v. Tuncap, No. CRA 12–032, 2014 WL 235471, *6 (Guam Jan. 16, 2014) (considering admissibility of surveillance video under Guam Rule of Evidence 901(a), which requires for authentication "evidence sufficient to support a finding that the matter in question is what its proponent claims"). "First, courts admit such evidence when it is introduced to illustrate the testimony of a witness who observed the same scene viewed by the recording equipment.’’ Id. "Second, where there is no first-hand witness, courts have adopted the ‘silent witness’ theory to admit video recordings.’’ Id . "The ‘silent witness’ theory allows for the introduction of the recording as primary, substantive evidence of the events depicted.’’ Id. "Under this theory, a witness need not testify to the accuracy of the image depicted in the photographic or videotape evidence if the accuracy of the process that produced the evidence is established with an adequate foundation.’’ People v. Taylor, 353 Ill.Dec. 569, 956 N.E.2d 431, 438 (Ill.2011). "In such a case, the evidence is received as a so-called silent witness or as a witness which speaks for itself." Id. (quotations omitted); see also 3 J. Wigmore, Evidence § 790, at 219–20 (Chadbourn rev.1970); 2 McCormick on Evidence § 215, at 23–24 ; § 216, at 28–29 (Kenneth S. Broun ed., 6th ed.2006). The State argues that the trial court properly admitted the surveillance video under the "silent witness’’ theory. We agree.

"Virtually all jurisdictions allow the introduction of recordings pursuant to ‘silent witness’ authentication, but jurisdictions differ on what evidentiary showing is required to satisfy the ‘silent witness’ standard.’’ Tuncap, 2014 WL 235471, at *7 (citation omitted). The approaches fall into two general categories. Id. Some jurisdictions adopt a flexible, less formulaic approach focusing on the facts of each case. Id. ; see, e.g., United States v. Rembert, 863 F.2d 1023, 1028 (D.C.Cir.1988) (determining that photographic evidence "can be admitted as evidence independent of the testimony of any witness as to the events depicted, upon a foundation sufficient to meet the requirements of Federal Rule of Evidence 901(a)"); State v. Haight–Gyuro, 218 Ariz. 356, 186 P.3d 33, 37 (Ariz.Ct.App.2008) (adopting flexible approach, "allowing a trial court to consider the unique facts and circumstances in each case"); State v. Anglemyer, 269 Neb. 237, 691 N.W.2d 153, 161–62 (2005) (noting that photographic evidence may be authenticated "by any evidence that bears on whether [it] correctly depicts what it purports to represent"); cf. Dept. of Safety v. Cole, 342 Md. 12, 672 A.2d 1115, 1122 (1996) ...