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State v. Moyle

Court of Appeals of Missouri, Western District, Fourth Division

October 31, 2017

SHANNON K. MOYLE, Appellant.


          Before: Mark D. Pfeiffer, Chief Judge, Gary D. Witt, Judge and Edward R. Ardini, Jr., Judge


         Shannon K. Moyle (Moyle) appeals her conviction for one count of the class D felony of stealing by deceit. She argues that the trial court abused its discretion by admitting a security surveillance video without a proper foundation. Finding no error, we affirm.

         Factual and Procedural Background[1]

         On December 27, 2013, Brittany Stotts (Stotts) was working the customer service desk at a Walmart when she was approached by two women. Stotts recognized one of the women as Ronnisa Lee (Lee), who she had gone to school with, and the other as Moyle. The two women indicated they wished to return a case of beer and a hair trimmer. This aroused Stotts's suspicion, as she noted that the women had come from the merchandise section of the store and not the front entrance, the direction from which most customers with returns approached. She also noted that the beer felt cold or "fresh." Lee handed Stotts two receipts and she proceeded to process the return. Moyle wandered away from the counter briefly during the return process but returned by the time Stotts refunded $27.79 in cash to Lee. The last step of the return process required the customer to sign a receipt. Stotts observed Lee sign the receipt with a false name, "Ashley Smith."

         After the return was completed and the two women had left, Stotts set the returned items aside and contacted the assistant manager, Lori Flax (Flax). Flax reviewed the store's video surveillance system which showed Lee and Moyle enter the store and proceed to the alcohol and soda aisle where Moyle took a case of beer and placed it in a cart being pushed by Lee. The two women then went to the store's health and beauty section where Moyle placed a hair trimmer in the cart. Finally, the two women could be seen approaching the customer service desk where they presented the items in their cart for a refund. After reviewing the surveillance video, Flax contacted the police.

         Moyle was arrested and charged with one count of stealing by deceit. The surveillance video from the store was admitted at trial, over defense counsel's objection, and played for the jury. The jurors also requested and received the video during its deliberations before returning its verdict finding Moyle guilty of the offense. The trial court, having found Moyle to be a prior and persistent offender, sentenced her to seven years in the Department of Corrections. Moyle now appeals.


         Moyle's sole point on appeal argues that the trial court erred in overruling her objection to the admission of the surveillance video. She asserts that the State failed to lay a proper foundation authenticating the video. The question of whether a sufficient foundation has been established to support the admission of evidence is subject to the trial court's broad discretion. State v. Hosier, 454 S.W.3d 883, 899 (Mo. banc 2015). We review the trial court's decision only for an abuse of that discretion. Id. "A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration." State v. Lemasters, 456 S.W.3d 416, 420 (Mo. banc 2015) (quoting State v. Taylor, 134 S.W.3d 21, 26 (Mo. banc 2004)). We view the evidence presented at trial in a light most favorable to the verdict. State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009).

         "The party offering a videotape in evidence must show that it is an accurate and faithful representation of what it purports to show." State v. Minner, 256 S.W.3d 92, 97 (Mo. banc 2008) (quoting Phiropoulos v. Bi-State Development Agency, 908 S.W.2d 712, 714 (Mo. App. E.D. 1995)). Our courts have previously held that the foundation for the admission of a videotape "may be established through the testimony of any witness who is familiar with the subject matter of the tape and competent to testify from personal observation." Id. For example, the foundation for the admission of a video depicting an assault, taken from a store's surveillance system, may be laid by the victim of the assault testifying that the video is "a fair and accurate recording" of the relevant event. State v. McNear, 343 S.W.3d 703, 704 (Mo. App. S.D. 2011). This is true even if the witness is unfamiliar with how the store's surveillance system works. Id. However, in this case, there was no individual available who witnessed Moyle place the beer and hair trimmer in the cart. Thus, the

         State was not able to call a witness to establish, based on personal observation, that the store's surveillance video was "a fair and accurate recording" of the depicted event under the traditional standard.[2] Instead, the State argues that the video was admissible under what is commonly known as the "silent witness" theory of authentication.

         Under the "silent witness" theory, the video or photograph being offered as evidence is considered "a silent witness which speaks for itself, and is substantive evidence of what it portrays independent of a sponsoring witness." Tracy Bateman Farrell, Construction and Application of Silent Witness Theory, 116 A.L.R. 5th 373, 383 (2004); see also 3 Wigmore, Evidence § 790 at 220 (Chadbourn rev. 1970) ("[E]ven though no human is capable of swearing that he personally perceived what a photograph purports to portray . . . there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness who 'speaks for itself.'"); 2 McCormick, On evidence §216, at 39-40 (Bourn ed., 7th ed. 2013) ("Recordings such as a tape from an automatic surveillance camera can be authenticated as the accurate product of an automated process . . . . Courts acknowledge that theses videotapes are independent sources of substantive evidence; indeed they seem to treat these tapes as unimpeachable eyewitnesses 'testifying' to the true version of what happened."). The foundation for admitting a video under the "silent witness" theory is drawn, "not from any witness who actually viewed the scene portrayed on film, but from other evidence which supports the reliability of the photographic product." Farrell, supra, at 383. In this regard the evidence necessary to lay the foundation "closely resemble[s] that required for the admission of the products of other scientific processes." Id.; 23 C.J.S. Criminal Law §1042 ("[T]he foundation requirements for the admission of photographs as substantive evidence require a strong showing of the photographs' competency and authenticity, and they should not be admitted unless the trial court is convinced of their competency and authenticity to a relative certainty.").

         This Court is not aware of any Missouri case addressing the "silent witness" theory. However, we note that this method of authentication has been adopted by a large number of other jurisdictions.[3] We have reviewed the decisions of these courts, and we find their logic to be persuasive.[4] We therefore hold that where a reasonable foundation indicating the accuracy of the process producing a video or photograph is established, the video or photograph may be received as evidence having inherent probative value ...

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