State v. Windseth

• Court: Court of Appeals of North Carolina
• Decided: March 19, 2025
• Docket: 24-718
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-718

Filed 19 March 2025

Jackson County, No. 23CRS264

STATE OF NORTH CAROLINA

v.

DAVID ADAM WINDSETH, Defendant.

Appeal by David A. Windseth from judgment entered 4 January 2024 by Judge

Gregory R. Hayes in Jackson County Superior Court. Heard in the Court of Appeals

11 February 2025.

Attorney General Jeff Jackson, by Assistant Attorney General Kristin Cook McCrary, for the State.

Attorney Stephen D. Fuller, for Defendant–Appellant

MURRY, Judge.

Defendant appeals from judgment entered upon jury verdicts finding him

guilty of felony obtaining property by false pretenses and felony identity fraud under

N.C.G.S. §§ 14-100 and 14-113.20, respectively. For the reasons below, we affirm.

I. Background

David A. Windseth (Defendant) appeals his jury convictions for one count of

felony obtaining property by false pretenses under N.C.G.S. § 14-100 and felony

identity fraud under N.C.G.S. § 14-113.20. N.C.G.S. § 14-100(a) (false pretenses); id.

§ 14-113.20(a) (identity fraud). STATE V. WINDSETH

Opinion of the Court

On or about January 2022, Defendant’s mother, Joanna Windseth, went

missing. Sergeant Ronald E. Ferris (“officer” or “Ferris”) of the Jackson County

Sheriff’s Office soon began investigating her disappearance. As part of the

investigation, Ferris reviewed visual information about her immediate family

(including Defendant) and went so far as to set up a camera just outside her driveway

in July 2022. The officer contemporaneously subpoenaed Ms. Windseth’s bank, Wells

Fargo, for her account information in the hopes of electronically tracking her possible

whereabouts. In response, Wells Fargo returned a “business records declaration”

detailing this information alongside certain relevant boilerplate language:

BUSINESS RECORDS DECLARATION

I, [internal authenticator], . . . declare that I am employed by Wells Fargo . . . and . . . certify that the attached records: A) Were prepared by personnel of Wells Fargo in the ordinary course of business at or near the time of . . . events described [there]in . . . ;[ ] B) [Were made in] the ordinary course of business [by] Wells Fargo employees . . . with knowledge of the . . . event[ ] . . . recorded . . . [; and] C) . . . [A]re true and correct copies of the business records as maintained by Wells Fargo.

The records produced are described as follows:

Document Type Account # .... Video ATM / DVD XXXXXX4130 .... Video ATM / DVD XXXXXX2831 ....

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I declare under penalty of perjury under the law(s) of the state of North Carolina that the foregoing is true and correct according to my knowledge and belief. Executed on . . . [1 September 2022][ ] in . . . Charlotte, [N.C.].

Upon reviewing the two ATM videos showing Defendant withdraw money

from his mother’s bank accounts, Ferris recognized and began searching for

Defendant. The Sheriff’s Office eventually found Defendant camping on 20 August

2022, at which point they discovered on his person multiple credit and debit cards

belonging to his mother.

At trial, the State offered as evidence several still-shots from the videos. Officer

Ferris identified Defendant as the individual withdrawing his mother’s funds in these

videos, both of which he testified to leaving unaltered. The officer also identified

Franklin, N.C. as their locations. Defendant’s counsel did not contemporaneously

object to either the evidentiary authentication or testimonial admission. On 1

January 2024, the jury found Defendant guilty on both felony counts. On 5 January

2024, Defendant timely appealed to this Court.

II. Jurisdiction

This Court has jurisdiction to hear Defendant’s appeal of his jury-trial

convictions because they arose after he first “entered . . . plea[s] of not guilty to [the]

criminal charge[s].” N.C.G.S. § 15A-1444(a) (2023).

III. Analysis

Defendant argues on appeal that the trial court plainly erred (1) by admitting

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ATM videos of Defendant even though the State failed to properly authenticate them

and (2) by permitting Officer Ferris to offer his own lay-opinion testimony as to

Defendant’s identity in those videos. In the alternative, Defendant argues that his

counsel’s failure to object to either alleged error amounted to ineffective assistance of

counsel (IAC) so egregious as to violate his right to counsel under the federal Sixth

Amendment. We hold the trial court did not err for the reasons discussed below. We

affirm the trial court on both counts and thus decline to reach the merits of his IAC

claim.

A. Video Authentication

First, Defendant argues that the trial court plainly erred by ruling that the

State properly authenticated the video evidence of his ATM usage mid-theft. We

disagree. Because the proper admission of a full evidentiary video impliedly admits

its constituent frames, this Court holds that the trial court did not err by admitting

the ATM video still-shots.1

1 We note an apparent conflict among our precedents on whether to review issues of evidence authentication de novo or for an abuse of discretion. State v. Hollis, 905 S.E.2d 265, 267 (N.C. App. Ct. 2024). Compare State v. Jones, 288 N.C. App. 175, 187 (2023) (reviewing de novo), and State v. Clemons, 274 N.C. App. 401, 409 (2020) (Murphy, J, unanimous in result only) (holding that “appropriate standard of review for authentication of evidence is de novo”), with In re Goddard & Peterson, PLLC, 248 N.C. App. 190, 198 (2016) (reviewing for abuse of discretion), and State v. Mobley, 206 N.C. App. 285, 288–89 (2010) (affirming trial court’s denial of defendant’s “objection to the evidence on the grounds . . . [of] authenticat[ion]” despite noting how our previous “cases . . . conflict[ ] as to the appropriate standard of review”). Because the trial court here did not err, however, we need not attempt to resolve that intra-panel split now. See In re Lucks, 369 N.C. 222, 231 (2016) (Hudson, J., concurring) (declining to further opine on “which standard of review should apply because the result would be the same under either standard”)

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Under N.C.G.S. § 8-97, the State may introduce a recorded video “as

substantive evidence” if it can first “lay[ ] a proper foundation and meet[ ] other

applicable evidentiary requirements.” N.C.G.S. § 8-97 (2023). It may lay a proper

foundation in relevant part by adducing “testimony that the videotape had not been

edited[ ] and that the picture fairly and accurately recorded the actual appearance of

the area photographed.” 14 N.C. Index 4th Evidence § 1635 (2024). The North

Carolina Rules of Evidence (Rules) specify certain types of evidence and procedures

that may satisfy any additional requirements. E.g., N.C. R. Evid. Rule 803(6)

(business records); id. 902 (self-authenticating documents).

Specifically, Rule 901 is a “main evidentiary requirement” that permits

admission with a showing of “evidence sufficient to support a finding that the matter

in question is what the proponent claims.” State v. Jones, 288 N.C. App. 175, 187

(2023) (quoting N.C. R. Evid. 901(a)). “Records of [r]egularly [c]onducted [a]ctivity,”

N.C. R. Evid. 803(6), “made under penalty of perjury” also “fulfill the purpose of

authentication,” State v. Hollis, 905 S.E.2d 265, 271 (N.C. App. Ct. 2024). Because

Rule 803 and 901’s languages match those of their federal counterparts in all material

respects, see N.C. R. Evid. 803 cmt.; id. 901 cmt., federal courts’ interpretations of the

latter may inform our interpretations of the former, see State v. Thompson, 332 N.C.

204, 219 (1992). Cf., e.g., State v. Collins, 216 N.C. App. 249 (2011) (finding certain

“federal court cases persuasive” because federal Rule 701 “is indistinguishable from

. . . [N.C. R. Evid.] Rule 701”).

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Faced with no controlling precedent for these facts, we instead look to an

analogous State v. Jackson, 229 N.C. App. 644 (2013), to better frame the issue here.

In Jackson, this Court addressed whether the trial court properly admitted a “video

file plotting the data from [an] electronic monitoring device” worn by the defendant

the night of his crimes. Id. at 650. At trial, the State introduced as unobjected

evidence both “the specific electronic monitoring device” “and the data [it] produced.”

Id. at 648. On appeal, the defendant argued that the State failed to “properly

authenticate[ ]” the derivative tracking data. Id. at 649. This Court rejected his claim

and affirmed the trial court’s admissions. Id. at 650. In so doing, we characterized the

video file as “merely an extraction of that data compiled in the device.” Id. (emphasis

added). The “extraction was admi[ssible] as a business record” so long as its

underlying “data was recorded in the regular course of business near the time of the

incident” and laid upon “a proper foundation.” Id. (emphasis added) (referencing N.C.

R. Evid. 803(6)). As a threshold matter of principle, we see little difference between

Jackson’s admission of specific location data points drawn from an unobjected GPS-

monitoring device and this case’s admission of specific still-shots drawn from an

unobjected security video.

We find persuasive the otherwise noncontrolling reasoning of United States v.

Clotaire, 963 F.3d 1288 (2020), which addressed this precise issue upon near-identical

facts. In Clotaire, the defendant regularly withdrew funds from various PNC Bank

ATMs with debit cards he fraudulently opened in the victims’ names. Id. at 1292.

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Noticing common traits between the identity thefts, the investigating officer

subpoenaed each card’s “ATM withdrawal history” and “surveillance from the bank

branches” to identify and arrest the defendant. Id. The trial court later admitted

“PNC Bank’s full surveillance videos a[s] business[-]records” evidence under Fed. R.

Evid. 803(6) without objection. Id. at 1293 (emphasis added). The defendant instead

challenged the discrete “photo stills pulled from the video” as “not business records

within the meaning” of that rule. Id. The Eleventh Circuit disagreed, holding that a

“format change[ ]from video to photograph” does not render “an otherwise-admissible

business record . . . a new, inadmissible record merely because [of] its . . . adapt[ation]

for trial display.” Id. at 1293. That appellate court reasoned that this “technical

format change” requires “little human discretion or judgment” and does not alter in

any way the data’s “communicative content” for the jury. Id. at 1294. “[A]s a general

rule, the format of an extracted dataset has nothing to do with whether it qualifies

as a business record. What matters is whether the original record met the

requirements of [federal] Rule 803(6).” Id. In reaching this conclusion, the Clotaire

Court articulates the presumption of “a foundation . . . laid for each individual frame”

of an “entire videotape . . . admitted into evidence” without objection. 44 Am. Jur.

Trials § 79.

Here, Defendant contests on appeal only the individual still-shots from the

ATM videos—not the videos themselves. We reject his challenge because those shots

are just “a subset of available data” found in the larger videos. Clotaire, 963 F.3d at

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1294. The State merely “extract[ed] . . . that data” from the Wells Fargo videos, which

the trial court “properly admitted as a business record” in accordance with Rule

803(6). Jackson, 229 N.C. App. at 650. First, the State laid the proper foundation for

the videos by introducing a formal “business records declaration” that the attached

ATM-video files “[we]re true and correct copies of the business records as maintained

by Wells Fargo.” (Capitalization omitted.) The State adduced Ferris’s testimony that

he “made [no] alterations to the[ ] [videos]” “since [he] received th[em].” Ferris also

located the ATMs seen in the video to their purported locations. Second, the State

adhered to its “main evidentiary requirement” by adducing without objection Wells

Fargo’s business-records declaration “made under penalty of perjury.” Hollis, 905

S.E.2d at 269. Black-letter law permits “the authentic[ation] of business records . . .

by a witness who is familiar with them and the system under which they were made.”

State v. Rupe, 109 N.C. App. 601, 611 (1993). Thus, this Court holds 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.” Clotaire, 963 F.3d at 1294.

B. Lay-Opinion Testimony

Second, Defendant argues that the trial court plainly erred by allowing Ferris

to testify as to Defendant’s identity in the ATM videos still-shots. To support this

assertion, Defendant analogizes his situation to the defendant in State v. Belk, 201

N.C. App. 412 (2009). There, this Court overturned a conviction on appeal because

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the testifying officer had “limited contact with” the defendant prior to his arrest, thus

violating Rule 701. Id. at 417. We review admissions of lay-opinion testimony only for

an abuse of discretion absent here. Id. Because this case is instead more analogous

to State v. Collins, 216 N.C. App. 249 (2011) (distinguishing State v. Belk), this Court

holds that the trial court did not err by admitting Ferris’s lay-opinion testimony.

Under Rule 701, an officer may testify as a layman only if his testimony is “(a)

rationally based on [his own] perception . . . and (b) help[s] to . . . determin[e] . . . a

fact in issue.” N.C. R. Evid. 701. Not so in Belk. There, this Court reversed a

defendant’s felony convictions after the trial court erroneously admitted the arresting

officer’s lay testimony. Id. at 414. The State indicted the defendant for several

robberies allegedly caught on camera. Id. At trial, the arresting officer identified the

defendant in the surveillance video despite having had “limited contact with [him]

and his ‘very distinctive profile’ ” prior to testifying. Id. at 417. Despite the jurors’

“opportunity to view the video footage on a [PC],” the officer further acknowledged

the video resolution’s qualitative decline from the “desktop computer in the police

station” to the “large projection screen [shown] to the[m].” Id. In remanding for a new

trial, we reasoned from these facts that the trial court had “no basis” to conclude that

the officer would be “more likely than the jury” to “correctly . . . identify [the]

[d]efendant as the individual in the surveillance footage.” Id. at 418.

In Collins, the defendant asserted plain error in the admission of the arresting

officer’s lay-opinion testimony that he “was the person depicted” in an incriminating

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videotape. Id. at 254. Comparing his situation to that in Belk, the Collins defendant

suggested that his own officer “was in no better position than the jury to identify

[him] as the person in the surveillance video.” Id. at 255 (quoting Belk, 201 N.C. App.

at 414). At trial, the arresting officer testified to “recogniz[ing] [the] defendant in the

video” as a direct result of “prior dealings with him.” Id. at 251. This Court rejected

the defendant’s argument and upheld the testimonial admission. Id. at 257. We

reasoned that the officer’s “ ‘dealings’ with [the] defendant . . . mean[t] more than

[the] minimal contacts” found in Belk. Much like those with Officer Ferris here, the

Collins officer’s multiple interactions with the defendant amounted to “a sufficient

level of familiarity with [his] appearance to aid the jury in its determination.” Id.

The superior pretrial knowledge of the Collins defendant’s personal

appearance cleared Rule 701’s testimonial threshold to the same degree as with

Defendant here. Officer Ferris had already dealt with Defendant prior to his

investigation because his mother had gone missing on or about January 2022 —six

months before Ferris received the ATM video from Wells Fargo . By the time he first

saw the ATM video, Ferris had interacted with Defendant on multiple occasions as

part of that preexisting investigation. These repeated interactions “mean more than

[the] minimal contacts” that would otherwise not “be helpful to the jury.” Collins, 216

N.C. App. at 257. Thus, this Court holds that the trial court did not abuse its

discretion by admitting Officer Ferris’s lay-opinion testimony because doing so did

not “invade the province of the jury” as factfinder. Id. at 255 (quoting State v. Fulton,

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299 N.C. 491, 494 (1980)).

C. Ineffective Assistance of Counsel

Finally, Defendant argues that he received constitutionally defective

assistance because his counsel failed to object to the trial court admitting ATM videos

of Defendant and permitting Officer Ferris to offer his own lay-opinion testimony as

to Defendant’s identity in those videos. Defendant argues that counsel’s failure to

object to either alleged error amounted to IAC so egregious as to violate his Sixth

Amendment right to counsel. Because the trial court did not err either by admitting

the ATM videos or allowing Officer Ferris to offer his lay opinion, this Court dismisses

Defendant’s IAC claim for lack of merit.

IV. Conclusion

For the reasons discussed above, this Court holds that the trial court did not

err either by holding as authenticated the ATM videos of Defendant or by admitting

Officer Ferris’s lay-opinion testimony as to his identity in them. This Court also

dismisses Defendant’s IAC claim as meritless.

NO ERROR.

Judges ZACHARY and CARPENTER concur.

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