State v. Windseth, COA24-718, ___ N.C. App. ___ (Mar. 19, 2025)

In this Jackson County case, defendant appealed his convictions for felony obtaining property by false pretenses and felony identity fraud, arguing error in (1) admitting ATM videos of defendant that were not properly authenticated, and (2) allowing lay-opinion testimony from an officer identifying defendant in the videos. The Court of Appeals found no error.

When defendant’s mother went missing in January 2022, the sheriff’s office began investigating her disappearance, and they eventually obtained records from Wells Fargo containing videos from ATMs where withdrawals were made from her account. These videos showed defendant making withdrawals, and later when defendant was apprehended, his mother’s credit and debit cards were found on his person. At trial, the State showed stills from these videos, and an officer testified as to the videos and identifying defendant as the person appearing in them. Defense counsel did not object at trial to the admission of these videos or the identification of defendant.

Beginning with (1), the Court of Appeals explained that Rule of Evidence 901 governed admitting the videos, and here defendant only challenged the admission of the still images from these videos. Although this was a novel question, the court rejected the challenge, noting the State laid adequate foundation for the video extractions and “that the trial court properly authenticated the ATM videos as admissible evidence because their derivative photos were ‘nothing more than a series of static images appearing at a given frame rate.’” Slip Op. at 8 (quoting United States v. Clotaire, 963 F.3d 1288 (2020)).

In (2), the court noted that Rule of Evidence 701 governed the lay testimony, and under State v. Collins, 216 N.C. App. 249 (2011), the officer needed some superior level of familiarity with the defendant to justify his testimony identifying the defendant or the testimony would be invading the province of the jury. The court concluded that the evidence here supported the familiarity required by Collins, as the officer “had interacted with Defendant on multiple occasions as part of that preexisting investigation” into his mother’s disappearance. Slip Op. at 10.