STATE OF NORTH CAROLINA v. FRAN LYNETTE RODGERS

Where a witness was allowed to identity defendant’s image on a video

surveillance system, which itself was properly authenticated and admitted,

defendant is unable to show any error committed by the trial court.

On 19 May 2014, defendant Fran Lynette Rodgers was indicted on charges of

conspiracy to commit a felony. On 6 January 2015, she was indicted for felony

larceny. The matters were joined for trial. Trial commenced on 20 April 2015, in

Orange County Superior Court, the Honorable Michael R. Morgan, Judge presiding.

The evidence presented at trial tended to show that during the early morning

of 11 February 2014, Brenda Arnold, a Walmart employee working at the store in

Hillsborough, was in the store parking lot between 2:00 and 3:00 a.m., when she

observed a vehicle pull into the parking lot. Four people exited the vehicle and went

into the Walmart, but did not enter the store at the same time. Arnold testified that

later, two people exited the Walmart and went back to the vehicle. Arnold noticed

that another person exited the Walmart but did not return to the vehicle. Rather,

that person walked out of the Walmart parking lot away from the store. The fourth

individual soon returned to the vehicle, and the three vehicle occupants drove away.

Heather Williams, an Asset Protection Manager for Walmart Stores, Inc.,

testified that she guarded against internal and external theft and customer safety.

Williams arrived at work on 11 February, at 8:00 a.m. and found a shopping cart full

of iPods, an XBOX, shirts, and a tote bag. Over objection, a receipt found with the

items in the shopping cart, totaling $4,353.91 was admitted into evidence. After

conferring with the assistant manager who was on duty the previous night, Williams

viewed a video recording from the surveillance system operating inside the store.

Noting defendant’s objection, the trial court admitted the video surveillance recording

as both illustrative and substantive evidence of the events which occurred inside the

Walmart between 2:00 and 3:00 a.m., on 11 February 2014.

With the aid of the video recording, Williams testified to the events that

occurred inside the Walmart. Williams testified that defendant pushed a shopping

cart through Walmart picking up various items throughout the store in areas housing

iPods, XBOX gaming systems, men’s clothing, and tote bags. At 2:38 a.m.

surveillance cameras recorded a man (later identified as Kareem Bryant) who

bypassed the cash registers and exited the store with a cart full of merchandise.

Bryant was followed by Assistant Manager Alan Gardner. When Gardner confronted

Bryant in the parking lot, Bryant left the cart and walked away. Gardner brought

the cart and merchandise back into the store and directed that a receipt be generated

for the merchandise in the cart. Law enforcement officers responded to the scene and

viewed surveillance video of Bryant walking out of the store with the cart full of

merchandise. They also viewed footage of the vehicle that brought Bryant to the

store, but left without him. Bryant, as well as the occupants of the vehicle, were all

soon found in the vicinity and arrested. One of the officers testified that after their

arrest, defendant said to Bryant, “It’s your fault we are in this mess.”

Defendant did not present any evidence.

Following the close of all the evidence, the trial court instructed the jury on the

charge of felonious larceny1 and on the theory of acting in concert. The jury returned

a guilty verdict on the charge of felonious larceny. The trial court entered judgment

in accordance with the jury verdict and sentenced defendant to an active term of 9 to

20 months. Defendant appeals.

_______________________________________

On appeal, defendant raises two issues: whether the trial court (I) erred by

admitting the surveillance video and inventory receipt into evidence; and (II) abused

its discretion by allowing a witness to identify defendant and testify that she was

acting in concert.

I

Defendant argues that the trial court erred by admitting the surveillance video

and the inventory receipt of the items stolen into evidence. Defendant contends there

was insufficient evidence proffered to authenticate either the video or the receipt.

Defendant contends she was prejudiced because the video contained the only evidence

that she participated in a larceny and the receipt contained the only evidence of the

value of the items taken from Walmart, making the charge a felony. We disagree.

“A trial court's determination as to whether a document has been sufficiently

authenticated is reviewed de novo on appeal as a question of law.” State v. Crawley,

217 N.C. App. 509, 515, 719 S.E.2d 632, 637 (2011) (citation omitted).

named in the felonious larceny indictment—Walmart Stores, Inc.—was sufficient to support the larceny indictment.

STATE V. RODGERS

Opinion of the Court

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Pursuant to General Statutes, section 8C-1, Rule 901, “[t]he 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.” N.C. Gen. Stat. § 8C-1, Rule 901(a) (2015).

Proper authentication of video [recorded] evidence includes: (1) testimony that the motion picture or videotape fairly and accurately illustrates the events filmed (illustrative purposes); (2) proper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape; (3) testimony that the photographs introduced at trial were the same as those the witness had inspected immediately after processing (substantive purposes); or (4) testimony that the [video recording] had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area photographed.

State v. Prentice, 170 N.C. App. 593, 596, 613 S.E.2d 498, 501 (2005) (quoting State

v. Cannon, 92 N.C. App. 246, 254, 374 S.E.2d 604, 608–09 (1988), rev'd on other

grounds, 326 N.C. 37, 387 S.E.2d 450 (1990)). Defendant argues that the State failed

to present evidence that the video recording accurately presented the events depicted

and that there was an unbroken chain of custody.

In Cannon, this Court held that a video recording from a surveillance system

was properly authenticated where a store employee testified that the surveillance

system was operating properly and a law enforcement officer testified that he had

retained custody of the video recording since the night of the robbery. 92 N.C. App.

STATE V. RODGERS

Opinion of the Court

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at 254, 374 S.E.2d at 609. In State v. Mewborn, this Court held that a video recording

of a robbery recorded by a store surveillance system was properly admitted: two

witnesses had testified that the surveillance system was operating properly at the

time of the robbery; and the law enforcement officer who had viewed the video

recording on the day of the robbery testified that the video submitted at trial reflected

the same images as those observed on the day of the robbery. 131 N.C. App. 495, 499,

507 S.E.2d 906, 909 (1998).

Here, during Heather Williams’s testimony, defendant challenged the

admission of the video recording, alleging lack of foundation and authentication.

Williams testified during voir dire that as Asset Protection Manager, she was

responsible for maintaining the video surveillance system and having it fixed if it was

not operating properly. Williams testified that she visually checked the cameras in

the store every other day. Had the surveillance system not been operating properly,

she would not have been able to transfer the images onto a DVD. Based on her voir

dire testimony, the trial court determined that proper authentication was established

for admissibility of the video recording. At trial, Williams identified the DVD onto

which she had transferred the Walmart surveillance video recording by confirming

her handwriting on the DVD cover. She also testified that she had reviewed the

images on the DVD and the DVD was “the same in all respects as it was when [she]

created it on the morning of February 11, 2014[.]” Based on this record, there was

STATE V. RODGERS

Opinion of the Court

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sufficient evidence proffered to authenticate the video recording transferred from the

Walmart surveillance system and admitted at trial. On this point, we overrule

defendant’s argument.

Defendant also argues that the trial court erred in admitting into evidence the

receipt reflecting the items taken from the Walmart store, the value of each item

taken, and a total value of all items taken. Defendant contends that the State failed

to establish a chain of custody for the receipt.

Our Supreme Court has held that

[t]he trial court possesses and must exercise sound discretion in determining the standard of certainty that is required to show that an object offered is the same as the object involved in the incident and is in an unchanged condition. 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. . . . [A]ny weak links in a chain of custody relate only to the weight to be given evidence and not to its admissibility.

State v. Campbell, 311 N.C. 386, 388–89, 317 S.E.2d 391, 392 (1984) (emphasis added)

(citations omitted).

Andrea Tinnin was a door greeter, working at Walmart during the night of 10

February through the morning of 11 February 2014. At 2:43 a.m., Assistant Manager

Alan Gardner had Tinnin take a shopping cart full of merchandise and generate a

“training receipt,” “a receipt that [is done] when merchandise has been stolen.”

Tinnin generated the receipt at 3:01 a.m. and provided it to the manager. Heather

STATE V. RODGERS

Opinion of the Court

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Williams testified that the receipt provided at trial had an employee number

associated with it—that of Andrea Tinnin. Tinnin also testified that the training

receipt proffered at trial was the same training receipt she generated on 11 February

2014, at 3:01 a.m. This was sufficient evidence to authenticate the receipt as the

document Tinnin generated on 11 February 2014, which valued the merchandise in

question. The receipt was readily identifiable, and there was nothing to indicate the

receipt may have been altered. See id. Therefore, the trial court did not abuse its

discretion by admitting the training receipt into evidence. Defendant’s argument is

overruled.

II

Next, defendant argues that Police Officer Scott Chestnut and Heather

Williams gave improper lay opinion testimony. Defendant contends that Officer

Chestnut’s testimony that defendant was acting in concert to commit felonious

larceny was an improper ultimate legal conclusion and that Williams’s testimony

identifying defendant as the woman recorded by the video surveillance system was

likewise improper. We disagree.

“When reviewing a trial court's rulings on the admission or exclusion of lay

witness . . . testimony, we review for abuse of discretion.” State v. Buie, 194 N.C. App.

725, 730, 671 S.E.2d 351, 354 (2009) (citation and quotation marks omitted).

Pursuant to General Statutes, section 8C-1, Rule 701,

STATE V. RODGERS

Opinion of the Court

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[i]f the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

N.C. Gen. Stat. § 8C-1, Rule 701 (2015). “Testimony in the form of an opinion or

inference is not objectionable because it embraces an ultimate issue to be decided by

the trier of fact.” Id. § 8C-1, Rule 704.

Officer Chestnut testified that on 11 February 2014, he responded to a report

of a larceny in progress at 2:00 a.m., at 501 Hampton Pointe, Hillsborough, where the

Walmart store was located. After he viewed the video surveillance footage of the

incident, Officer Chestnut notified other officers in the vicinity to be on the lookout

for the suspects. Officer Chestnut provided a description of the suspect who pushed

the shopping cart out of the Walmart store, later identified as Kareem Bryant, as well

as the description of the vehicle in which that suspect had arrived at the store.

[Prosecutor:] Okay. And once you had that information, what did you do with it?

[Officer Chestnut:] At that time I advised [another law enforcement officer] by way of radio the description of the other parties that were involved and that I felt I had enough evidence at that time that those individuals were acting in concert with –

[Defense counsel]: Objection.

. . .

STATE V. RODGERS

Opinion of the Court

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Calls for legal conclusions.

. . .

THE COURT: Overruled. Just goes to show the rationale for what this witness did.

Officer Chestnut had viewed the video surveillance to identify the individuals

involved, and to determine they were acting together to commit the larceny. In fact,

he testified that after reviewing the video, he provided other officers in the vicinity

with a description of the three people, in addition to Kareem Bryant, suspected in the

larceny.

The evidence of record tends to support the trial court’s finding that the

officer’s testimony was intended to explain his course of conduct, i.e. the reason he

radioed other officers a description of the other people who appeared to be involved,

as opposed to attempting to give an improper legal conclusion. See generally State v.

Agee, 326 N.C. 542, 547, 391 S.E.2d 171, 174 (1990) (“This exception is known

variously as the ‘same transaction’ rule, the ‘complete story’ exception, and the ‘course

of conduct’ exception. Such evidence is admissible if it forms part of the history of the

event or serves to enhance the natural development of the facts.” (citations and

quotation marks omitted)). Thus, defendant’s contention that Officer Chestnut’s

testimony was improper is overruled.

Defendant also challenges the trial court’s admission of Williams’s testimony

that defendant was one of the suspects she observed on the recorded video

STATE V. RODGERS

Opinion of the Court

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surveillance. On direct examination, Williams was asked about the video recording

from the surveillance system:

Q. What do you see, now, ma'am?

A. I see [a suspect] and [defendant] pushing a cart through electronics.

Defendant objected to this testimony and, on appeal, argues that Williams’s

testimony invaded the province of the jury. We disagree.

As noted herein, the video recording was properly authenticated and admitted

for substantive and illustrative purposes. Therefore, Williams could properly testify

to what she observed on the video, including the identity of defendant. This testimony

did not invade the province of the jury. In order to convict defendant, the jury not

only had to determine defendant’s identity, but all twelve jurors had to be satisfied

beyond a reasonable doubt that defendant committed the crime of felonious larceny.

Ms. Williams’s testimony was not improper; it was simply a part of the State’s

evidence in the instant case. Moreover, we note the trial court’s instruction to the

jury following the close of all the evidence:

I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime charged beyond a reasonable doubt. This means that you the jury must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before you may return a verdict of guilty.

We find no error in the trial court’s admission of Williams’s testimony.

Accordingly, we overrule defendant’s argument.



NO ERROR