State of New Hampshire v. Danielle T. Walker

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0574, State of New Hampshire v. Danielle
T. Walker, the court on November 13, 2023, issued the following
order:

The court has reviewed the written arguments and the record submitted on
appeal, and has determined to resolve the case by way of this order. See Sup. Ct.
R. 20(2). The defendant, Danielle T. Walker, appeals her conviction, following a
bench trial in Circuit Court (Greenhalgh, J.), on one misdemeanor count of willful
concealment theft. See RSA 637:3-a, II (2016). She argues that the trial court
erred by admitting a surveillance video as evidence without proper
authentication. See N.H. R. Ev. 901. We affirm.

“We review a trial court’s decision on the admissibility of evidence under
our unsustainable exercise of discretion standard.” State v. Letarte, 169 N.H.
455, 461 (2016). “In applying our unsustainable exercise of discretion standard
of review, we determine only whether the record establishes an objective basis
sufficient to sustain the discretionary judgment made.” Id. (quotation omitted).
“Our task is not to determine whether we would have found differently, but is
only to determine whether a reasonable person could have reached the same
decision as the trial court on the basis of the evidence before it.” Id. (quotations
omitted). “For the defendant to prevail under this standard, [she] must
demonstrate that the trial court’s decision was clearly untenable or unreasonable
to the prejudice of [her] case.” Id. (quotation omitted).

“To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.” N.H. R. Ev. 901(a). This
requirement may be satisfied by, for example, offering “[t]estimony that an item is
what it is claimed to be,” by a witness with knowledge of the item. N.H. R. Ev.
901(b)(1). Additionally, when the proffered item relates to a process or system, it
may also be authenticated by, for example, offering “[e]vidence describing [the]
process or system and showing that it produces an accurate result.” N.H. R. Ev.
901(b)(9). “The bar for authentication of evidence is not particularly high.” State
v. Stangle, 166 N.H. 407, 409 (2014) (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 and ellipses omitted). “Instead,
the contested evidence, if otherwise relevant, should be admitted once a prima
facie case has been made on the issue of authentication.” Id. (quotation and
brackets omitted).

In this case, the surveillance video at issue showed the defendant failing to
scan several items at a store’s self-checkout register. An asset protection
investigator employed by the store noticed the defendant’s actions in-person,
observing that while the defendant scanned some items, she failed to scan others
— by, for example, orienting the barcodes such that they would not be detected
when passed through the scanner, by manually entering the wrong quantity of
produce items, or by simply not removing an item from her cart to be scanned.
Thereafter, when the defendant departed the store without paying for the items
that had not been scanned, the asset protection investigator approached and
detained her until police arrived.

In addition to his testimony regarding his direct observation of these
events, the asset protection investigator also offered testimony to authenticate
the surveillance video. He explained, among other things, that he is familiar with
the store’s surveillance system and how it operates; that it records what is
occurring in the store to a “DVR unit” which is only accessible to him and
members of management; that he accessed and made a copy of the surveillance
video in connection with this case; that he submitted that copy, along with a
report, to the local police department; that the disc containing the surveillance
video which was offered as evidence is the same disc that he had prepared and
submitted to the police; and that the video depicted the defendant, and was a
true and accurate representation of the events involving the defendant that he
had investigated that day. Additionally, the responding police officer testified
that, among other things, when she arrived at the store she spoke with both the
asset protection investigator and the defendant; that, within a few days, the asset
protection investigator provided her with a disc containing a copy of the
surveillance video; that she reviewed the video shortly after receiving it; and that,
when she reviewed it again the day before trial, the disc and video were the same
as those initially provided to her by the asset protection investigator.

Although the defendant argues that the surveillance video was not properly
authenticated because the asset protection investigator “did not offer any
testimony describing the maintenance, operation, or viewing process related to
the security system,” and because “he did not explain how the security system
created the original video before transferring it to a disc,” we disagree. As set
forth above, “[t]he bar for authentication of evidence is not particularly high,”
Stangle, 166 N.H. at 409 (quotation omitted), and the State need only “produce
evidence sufficient to support a finding that the item is what the [State] claims it
is,” N.H. R. Ev. 901(a). Here, the State adduced ample evidence demonstrating
that the surveillance video is what the State claimed it to be, including,
especially, the testimony of the asset protection investigator who not only had
knowledge of the video and the store’s surveillance system, see N.H. R. Ev.

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901(b)(1), but also directly observed and independently testified to the
defendant’s actions that had been captured on the video. “Any concerns that the
defendant had regarding the surveillance procedures, and the method of storing
and reproducing the video material, were properly the subject of cross-
examination and affected the weight, not the admissibility, of the video.” Stangle,
166 N.H. at 413 (quotation omitted). Here, as in Stangle, the defendant was
given the opportunity on cross-examination to explore any potential technical
problems with the surveillance system and video, but she declined to do so.
Accordingly, based upon our review of the record, we conclude that the trial court
did not unsustainably exercise its discretion when it ruled that the surveillance
video had been properly authenticated, and admitted it as evidence. See Letarte,
169 N.H. at 461.

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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