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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 12-CM-2045 & 12-CM-2050

MYRON O‟NEAL GRAY, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeals from the Superior Court 

of the District of Columbia

(CMD-8279-12 & CMD-9183-12)

(Hon. Yvonne Williams, Trial Judge)

(Submitted January 7, 2014 Decided September 25, 2014)

Rose Mary Drake was on the brief for appellant.

Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman and 

Margaret E. Barr, Assistant United States Attorneys, were on the brief for 

appellee.

Before GLICKMAN and FISHER, Associate Judges, and RUIZ, Senior Judge.

RUIZ, Senior Judge: Gray appeals his convictions, after a bench trial, for 

threats,1contempt,

2

and unlawful entry.3 He contends that the trial court applied an 

incorrect legal standard in finding him guilty of threats and that the trial court erred 

 

1

 D.C. Code § 22-407 (2012 Repl.).

2

 D.C. Code § 23-1329 (2012 Repl.).

3

 D.C. Code § 22-3302 (2012 Repl.).
2

in considering videos that were not formally admitted into evidence in finding him 

guilty of unlawful entry and contempt. We conclude that the trial court did not 

commit any error warranting reversal and affirm appellant‟s convictions. 

I. Factual Background

The charges against appellant arose from incidents on May 12 and May 15, 

2012, at his workplace, a Home Depot store on Rhode Island Avenue in Northeast 

Washington, D.C. Appellant‟s supervisor testified that because of appellant‟s

“erratic” behavior in the store on May 11,

4

appellant was told to “go home” and 

that he would be called when he should return to work. Early the following 

morning, May 12, appellant returned to the store and made a hostile remark to a

coworker. Later that day, when appellant returned to the store with his dog, he 

was arrested and charged with having threatened the coworker that morning. At 

that time, appellant was told that he was barred from returning to the Home Depot

store. An order requiring appellant to stay away from the coworker and the Home 

Depot store and parking lot was issued on May 14. The following day, May 15, 

Home Depot store cameras recorded appellant entering and exiting the store and 

driving through the parking lot. 

 

4

 Specifically, the supervisor testified that appellant threatened a coworker, 

wore sunglasses in the store after being told not to, and gave his supervisor “the 

finger.” 
3

The coworker, Jonathan Lowery, had worked with appellant for 

approximately five months, and he considered appellant a casual friend with whom 

he normally talked about “sports, boxing, and stuff like that.” Lowery testified that 

on the morning of May 12,5appellant approached him and he “was threatening me, 

said he will kill me, I‟ll see you outside of work. He pointed his finger at me in my 

chest, I will kill you I see you outside of work.” Lowery said that he was not 

scared by appellant‟s remarks but surprised, because they were “kind of random. I 

didn‟t understand the whole reason why he was so angry towards me.” Lowery 

explained that he had had “no problems” with appellant in the past, and that 

appellant had no reason to threaten him. 

Lowery said he thought appellant‟s behavior that day was “kind of strange, 

erratic. . . . [H]e seemed upset but it wasn‟t with me, it was with others. And he 

just seemed frustrated, I would say, pretty upset.” Appellant spoke “calmly,”

Lowery testified, and seemed “impaired” because his eyes were “red, and they 

were jittery back and forth.”6 After appellant made these remarks, Lowery thought 

to himself, “yeah, whatever, and I walked away because I was in my workplace. I 

 

5

 Lowery could not remember the date that appellant approached him, but 

testimony from Officer Fabian Ferrera, to whom the incident was reported, 

indicated that it happened on May 12. 

6

 Lowery expressed uncertainty about whether appellant was actually 

impaired at the time, but was comfortable saying that he “appeared” impaired.
4

wanted to avoid confrontation, further confrontation.” He added that he 

understood that “everybody has problems, you know, but the incident happened 

and I left it at that[.]”

Appellant testified in his defense. He admitted that he visited the Home 

Depot with his dog on May 12, but said that he did so as a customer rather than as 

an employee. He denied having any contact with Lowery that day. Appellant 

recounted that he was arrested at Home Depot on May 12, released on May 14, and 

then went to Providence Hospital later that evening, where he was admitted in the 

early hours of May 15.

7 He woke up on May 15 to learn that he would be 

transferred to Seton House and, not wanting to go there, appellant left Providence 

Hospital at 12:00 or 1:00 p.m. He said he was re-arrested later that day at Emory 

Recreation Center and taken to Seton House. Appellant denied that he visited 

Home Depot on May 15, and said that his rental car was in the store‟s parking lot 

that day because he had parked it there on May 12 and it was left in the parking lot

when he was arrested. Appellant‟s mother also testified that she took her son to 

Providence Hospital at 9:00 p.m. on May 14, stayed overnight with him there, and 

then returned to Home Depot the next day to pick up appellant‟s rental car. 

 

7

 The defense submitted appellant‟s patient card from Providence Hospital 

which indicated that he was admitted on May 15. 
5

The judge explained her factual findings on the threats charge as follows:

With respect to the threats count . . . I‟ll find [appellant]

guilty. I understand that Mr. Lowery, maybe there‟s 

some—there‟s no reason for him to lie. He seemed to be 

a quite credible guy. He just said they were good friends 

and [appellant] made this threat toward him. . . . I don‟t 

know that Mr. Lowery necessar[ily] took it as a threat 

because I think he thought that [appellant] was having 

problems. But the standard is not what Mr. Lowery 

thought. I think it was what a reasonable person thought. 

Now, a reasonable person would assume that you say, 

I‟m going to kill you, and then do a gun motion, that a 

reasonable person would take that as a threat. . . . I just 

don‟t see a reason for why he would come in here and lie 

when there‟s no reason. He‟s got a perfectly fine 

relationship with [appellant]. It just seems [appellant]

was having whatever problems he was having that day 

and did what he did to Mr. Lowery. So I‟ll find 

[appellant] guilty on the threats count.

II. Threats

A person is guilty of the offense of threats under D.C. Code § 22-407 if he 

or she: (1) uttered words to another person, (2) those words “were of such a nature 

as to convey fear of serious bodily harm or injury to the ordinary hearer,” and (3) 

he or she “intended to utter the words that constitute the threat.” Carrell v. United 

States, 80 A.3d 163, 171 (D.C. 2013) (quoting Campbell v. United States, 450 

A.2d 428, 431 n.5 (D.C. 1982)).
6

Appellant claims that, in finding him guilty of threats, the trial court 

misapprehended the correct legal standard for the second element and, as a result, 

misunderstood the relevance of Lowery‟s testimony that he was not scared by 

appellant‟s words and disregarded Lowery‟s reaction.8 

An analysis of the evidence necessarily begins with the words the speaker 

used, the first element of threats. Whether a speaker makes a threat, however,

 

8

 Appellant also argues that there was no evidence that he intended to utter 

the words as a threat, relying on the definition of the third element as set out in 

Clark v. United States, 755 A.2d 1026, 1030 (D.C. 2000). But that is not the 

governing standard. In Carrell, a case decided after appellant‟s trial and 

submission of the parties‟ briefs on appeal, we resolved a tension in our earlier 

decisions on the third element of threats. In some cases, we had said that a person 

must intend to utter the words as a threat to be guilty of the offense. See, e.g., In 

re S.W., 45 A.3d 151, 155 (D.C. 2012); Jenkins v. United States, 902 A.2d 79, 86 

(D.C. 2006); Clark v. United States, 755 A.2d 1026, 1030 (D.C. 2000); United 

States v. Baish, 460 A.2d 38, 42 (D.C. 1983). In others, we had said that a person 

need only intend to utter the words themselves, and need not also intend those 

words as a threat. See, e.g., Evans v. United States, 779 A.2d 891, 894 (D.C. 

2001); Campbell v. United States, 450 A.2d 428, 431 n.5 (D.C. 1982); Postell v. 

United States, 282 A.2d 551, 553 (D.C. 1971). In Carrell, we concluded that the 

“intent-to-utter” interpretation of the third element was the earlier holding of the 

court and therefore binding, see Carrell, 80 A.3d at 170 (citing M.A.P. v. Ryan, 

285 A.2d 310, 312 (D.C. 1971)), and that the court‟s en banc decision in Holt v. 

United States, 565 A.2d 970, 971-72 (D.C. 1989), held that the threats statute 

requires only a “general intent.” Id. at 170-71. There is a petition for rehearing or 

rehearing en banc in Carrell pending before the court. 

We also note that the Supreme Court has granted certiorari in United States 

v. Elonis, 730 F.3d 321 (3d Cir. 2013), cert. granted, 134 S. Ct. 2819 (2014), 

which presents the following questions: (1) whether proof of subjective intent to 

threaten is required by the First Amendment and Virginia v. Black, 538 U.S. 343

(2003), for conviction of threatening another person under 18 U.S.C. § 875 (c); and 

(2) whether as a matter of statutory interpretation, 18 U.S.C. § 875 (c) requires 

proof of defendant‟s subjective intent to threaten.
7

depends not simply on the words the speaker uttered; the speaker‟s words “must be 

considered in the context in which they were used.” In re S.W., 45 A.3d 151, 155

(D.C. 2012) (quoting Jenkins, 902 A.2d at 85); see also Clark, 755 A.2d at 1031. 

The factfinder‟s task in considering the second element of threats is to determine 

whether the speaker‟s words, taken in context, were “of such a nature as to convey 

fear of serious bodily harm or injury to the ordinary hearer.” Carrell, 80 A.3d at 

171 (quoting Campbell, 450 A.2d at 431 n.5). Thus, the words the speaker has 

uttered are “just the beginning” of a threats analysis. In re S.W., 45 A.3d at 157.

9

In conducting this analysis, the factfinder must be guided by how an “ordinary 

hearer” would interpret those words taking into account the “full context in which 

the words are spoken.” Carrell, 80 A.3d at 169. 

Thus, the ordinary hearer10 we posit is one aware of all the surrounding 

circumstances, including what the actual hearer knew. This is because the ordinary 

 

9

 Similarly, words alone do not suffice for proof of threats “in a menacing 

manner” under § 22-404. In re D.W.J., Jr., 293 A.2d 268, 269 (D.C. 1972). 

10

 The law invokes the “ordinary hearer,” rather than the actual target of a 

threat, to eliminate personal idiosyncrasies or biases. The target‟s idiosyncratic 

response tells us little about what the speaker actually did, which is the basis for 

criminal liability. The ordinary hearer, like the “reasonable person” used in 

establishing a number of legal standards, is free from personal idiosyncrasies or 

biases. See, e.g., Michigan v. Chesternut, 486 U.S. 567, 574 (1988) (“This 

„reasonable person‟ standard also ensures that the scope of Fourth Amendment 

protection does not vary with the state of mind of the particular individual being 

approached.”); Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789, 816 (D.C. 

 (continued . . .)
8

hearer, like the often-used “reasonable person,” responds to a situation in view of 

the totality of the circumstances. See, e.g., Florida v. Bostick, 501 U.S. 429, 437 

(1991) (“We have said before that the crucial test is whether, taking into account 

all the circumstances surrounding the encounter, the police conduct „would have 

communicated to a reasonable person that he was not at liberty to ignore the police 

presence and go about his business.‟”) (quoting Michigan v. Chesternut, 486 U.S. 

567, 569 (1988)); 1901 Wyoming Ave. Co-op Ass’n v. Lee, 345 A.2d 456, 461 

(D.C. 1975) (“Where the court is faced with an integrated agreement which 

contains ambiguous terms, the standard of interpretation is what a reasonable 

person in the position of the parties would have thought it meant. The presumption 

is that the reasonable person knows all the circumstances before and 

contemporaneous with the making of the integration.”); Brown v. United States, 

584 A.2d 537, 542 (D.C. 1990) (“What is sufficient provocation [to kill another in 

the heat of passion] has not been exactly defined and is probably incapable of exact 

definition, for it must vary with the myriad shifting circumstances of men‟s temper 

and quarrels. It is . . . therefore to be considered in view of all circumstances.”) 

(quoting Commonwealth v. Pease, 69 A. 891, 892 (Pa. 1908)); Sinai v. Pollinger 

 

(. . . continued)

2011) (“An unusually susceptible person may not recover [for negligently inflicted 

emotional distress] if an ordinary person would not have suffered severe emotional 

disturbance.”). Whether words are “of such a nature” as to be considered threats 

under the circumstances, in other words, is not dependent on whether the actual 

hearer or target is unduly sensitive or oblivious to harm.
9

Co., 498 A.2d 520, 530-31 (D.C. 1985) (endorsing jury instruction on the 

“ordinary care” standard which said in part, “the standard is ordinary care under all 

the circumstances. Obviously, that‟s a relative concept. A reasonable person 

changes his conduct according to the circumstances . . .”). In sum, whether an 

ordinary hearer would understand words to be in the nature of a threat of serious 

bodily harm is a highly context-sensitive question. 

It is well-established that the government need not prove that the actual 

hearer felt fear or intimidation. See Postell v. United States, 282 A.2d 551, 554

(D.C. 1971) (“We do not ask whether appellant succeeded in frightening these 

police officers, but whether under the circumstances the language used by 

appellant when heard by the ordinary person would be understood as being spoken 

not in jest, but as carrying the serious promise of bodily harm or death.”). This

does not mean, however, that the actual hearer‟s response is irrelevant, as the 

actual hearer may well be, and frequently is, a reasonable person. A showing that 

a reasonable person in a particular situation would have, e.g., been aware of a 

certain risk, can be evidence that an actual person in that same situation was aware 

of it as well. See Thomas v. United States, 557 A.2d 1296, 1300 (D.C. 1989). 

Similarly, evidence about an actual person‟s response to a situation is evidence, 

sometimes the best evidence available, of how a reasonable person would have 

responded under the circumstances. Where, as here, there is evidence that words, 
10

though facially threatening, did not in fact “convey fear of serious bodily harm or 

injury” to the actual hearer, the factfinder should consider and evaluate the reasons 

given for that reaction as part of its inquiry into how an “ordinary hearer” informed 

of all the circumstances would have perceived the words. 

In sum, in considering the second element of the offense of threats, the 

factfinder must weigh not just the words uttered, but also the complete context in 

which they were used. The context of an utterance includes “facial expression,

tone, stress, posture, inflection, and like manifestations of the speaker.” Clark, 755 

A.2d at 1031. It also includes the factual circumstances in which the words were 

uttered, the relationship between the speaker and the hearer, and their shared 

knowledge and history.11 The context of an utterance can turn words that would be 

innocuous in most contexts into a threat.12 Similarly, context can make facially 

 

11 See, e.g., Carrell, 80 A.3d at 164 (affirming threats conviction against 

speaker who said “I could kill you right now, I could fucking kill you” to a 

girlfriend he had physically abused both in the past and while making those 

statements); Jenkins, 902 A.2d at 81, 84-86 (affirming threats conviction when 

speaker told someone who owed him money that he would “peel your girl‟s head 

back” if he wasn‟t paid).

12 See, e.g., Joiner v. United States, 585 A.2d 176, 178-79 (D.C. 1991) (“I 

will remember this,” “I will get you for this,” and “I don‟t forget faces” are threats 

when expressed to witnesses to the speaker‟s crime during which he fired a 

weapon in their direction). 
11

threatening words benign.13 A person can be guilty of threats without causing the 

target of the threats to fear serious bodily harm or injury, just as a person whose 

words actually cause fear can be innocent of threats.14 The actual hearer‟s 

response to the speaker‟s words and the actual hearer‟s reasons for that response

are relevant because they could reveal important evidence about the context of the 

speaker‟s utterance, including the relationship between the speaker and the actual 

hearer, that explains why that response was (or was not) objectively reasonable

under the circumstances. 

We turn to apply these principles to the case at hand. Here, the trial court 

found appellant guilty of threats based on Lowery‟s testimony that Gray said “I‟m 

going to kill you,” and made “a gun motion” with his fingers. The trial court 

 

13

 See, e.g., Lewis v. United States, No. 13-CM-321 Mem. Op. & J. at 4 - 6 

(D.C. July 31, 2014) (reversing threats conviction where remark by handcuffed 

suspect that “he would have blown [officer‟s] god-damned head off” was an 

“expression of frustration” that could not have induced fear of bodily injury); In re 

S.W., 45 A.3d at 155-60 (modified lyrics from a Lil Wayne song—“We will set 

this whole block on fire” and “we will set your house on fire”—did not express 

threats when sung to a neighbor with whom the speaker had a friendly 

relationship).

14 Compare Postell, 282 A.2d at 554 (“We do not ask whether appellant 

succeeded in frightening these police officers, but whether under the circumstances 

the language used by appellant when heard by the ordinary person would be 

understood as being spoken not in jest, but as carrying the serious promise of 

bodily harm or death.”), with In re S.W., 45 A.3d at 160 (“Certainly, as the fresh 

victim of apparent arson, it can be expected that [the witness‟s] sensitivities would 

be heightened. But every statement that causes a hearer fear or painful memories 

is not a threat[.]”).
12

credited Lowery‟s testimony that appellant uttered those words, a finding that is 

amply supported by the record. Therefore, the first element of threats is satisfied. 

These words are facially threatening. The court then needed to consider 

whether an ordinary hearer in Lowery‟s circumstances would have taken them at 

face value, i.e., as a “real” threat of serious bodily harm. As the trial court noted, 

Lowery did not “necessarily” take appellant‟s words as a threat, explaining that he

had a casual and friendly relationship with appellant; that he had had “no 

problems” with appellant in the past; and that appellant had no reason to threaten 

him. He described appellant‟s statement as “strange, erratic” and “kind of 

random” because Lowery “didn‟t understand the whole reason why [appellant] was 

so angry towards” him. He said that appellant seemed “upset but it wasn‟t with 

me, it was with others.” In describing appellant‟s demeanor, Lowery said 

appellant spoke calmly and appeared “impaired” because his eyes were “red” and 

“jittery.” Lowery‟s reaction was to say, “yeah, whatever” and to walk away. He 

testified that he was not “scared” or “shaken” by appellant‟s words. 

Evidence does not need to be all in favor of the prosecution in order to be

sufficient to convict. Here, notwithstanding Lowery‟s reaction, there was 

sufficient evidence that appellant‟s words to Lowery, viewed in context, were “of 

such a nature as to convey fear of serious bodily harm or injury to the ordinary 
13

hearer.” Carrell, 80 A.3d at 171. There was no evidence that appellant was 

joking; indeed, Lowery testified that appellant seemed “serious.” The words were 

accompanied by appellant making “a gun motion” pointed at Lowery‟s chest. 

There was evidence that appellant was told to go home the previous day because of 

“erratic” behavior which included threatening another coworker. Lowery‟s 

testimony that appellant appeared frustrated and upset, and that he walked away 

from appellant to avoid a “further confrontation” and reported the incident to his 

supervisor, suggest that even if Lowery did not feel personally threatened, he also 

did not dismiss the incident altogether. When the prosecutor asked whether 

Lowery thought appellant would act on the threat, Lowery answered “maybe, 

possibility,” before the court prevented him from answering any further.15 The 

evidence before the court, viewed as a whole, was sufficient to support a finding 

that appellant threatened Lowery. 

Appellant argues that “in considering only what a reasonable person would 

believe if he heard appellant‟s words” to Lowery, the court misapplied the law by 

“not taking into consideration the relationship between the parties, the context in 

 

15

 The court excluded relevant evidence in refusing to allow Lowery to 

answer the prosecutor when she asked whether Lowery thought appellant would 

act on the threat. But that ruling was invited by defense counsel‟s objection to the 

prosecutor‟s question as asking for a “speculative” response. Even if the ruling 

was erroneous, it did not constitute plain error because Lowery had already 

testified that he did not feel personally threatened. 
14

which [the incident] occurred” or the particular reaction of the alleged victim in the 

case.” Specifically, appellant contends that the trial court “disregarded” Lowery‟s 

testimony that he was “not shaken or scared” and the reason Lowery gave for his 

reaction. If appellant were correct, there would be cause to reverse and remand the 

case. See Lihlakha v. United States, 89 A.3d 479, 488-90 (D.C. 2014) (remanding 

because trial court “did not appear to recognize” the relevance of certain evidence);

Foster v. United States, 699 A.2d 1113, 1115-16 (D.C. 1997) (recognizing 

sufficiency of evidence presented but reversing and remanding because evidence 

was “insufficient on the precise grounds apparently relied upon by the trial court”). 

That is not, however, how we read the record. 

In reaching a verdict, the court made reference to the normally friendly 

workplace relationship between Lowery and appellant. Moreover, the trial court 

heard the defense argue in closing, without objection, that Lowery is a reasonable 

person and that his subjective response, viewed in context, was objectively 

reasonable. In rebuttal, the prosecutor responded that “[w]hether or not Mr. 

Lowery is a reasonable person,” a number of witnesses testified that appellant “was 

acting erratically that day, that he was agitated, that he was angry, that he was 

walking big.” On this record, we are confident that the trial court did consider the 

full context in which appellant‟s words were uttered, including the relationship 

between the two men and Lowery‟s subjective response. Because the evidence 
15

was sufficient to allow a reasonable factfinder to conclude beyond a reasonable 

doubt that appellant was guilty of the threats charge, we affirm that conviction.

III. Unlawful Entry and Contempt

Appellant challenges the unlawful entry and contempt convictions on the 

ground that the trial court based its factual findings on store surveillance videos 

that were not formally authenticated and admitted into evidence. Specifically, 

appellant notes that the trial court studied the videos and made findings that the 

license plate, make, and color of a car shown on the video entering the Home 

Depot parking lot were “the same” as for a car that appellant had leased. 

Although the trial court could not identify the person on the videos as appellant, it

relied on testimony from a store employee who also viewed the videos and who 

had known appellant as a coworker for over a year, that they showed appellant

parking his car in the lot, entering the store, and then leaving the store shortly 

afterwards. 

Immediately before trial, defense counsel notified the court that she had 

received surveillance videos from the government the previous afternoon, but had

been unable to view them until that morning; counsel had not seen all of them 
16

when the case was first called.

16

 After viewing the tapes, defense counsel 

announced that she was ready to proceed. Defense counsel objected when 

government witnesses testified about other surveillance videos that neither the 

defense nor the government had seen prior to trial.

17 Counsel, however, did not 

object when the government played the surveillance tapes at trial, or when the trial 

court mentioned them in announcing the verdict, even though these tapes were 

never formally admitted into evidence. 

For these reasons, we review the trial court‟s decision to rely on these tapes 

for plain error. “To prevail on a ground not presented to the trial court, the 

defendant must demonstrate plain error, which requires a showing both that the 

trial court‟s ruling was obviously wrong and that there has been a miscarriage of 

justice.” Foote v. United States, 670 A.2d 366, 369 (D.C. 1996). 

Basic principles of appellate review dictate that in deciding whether 

evidence is sufficient to support a conviction, appellate courts are limited to 

 

16

 The prosecutor said that she received the videos late, and provided copies 

to defense counsel within an hour of receiving them. Another video was received 

the morning of trial, but after it was viewed by both counsel, they jointly 

determined that it was not relevant to the case. 

17

 The court struck all testimony about videos that the parties didn‟t have, 

ruling that, “whatever we have, we can show. If there‟s testimony as to other 

videos, I‟m not considering it.” 
17

considering evidence in the trial court record. See D.C. App. R. 10 (a) (limiting 

the record on appeal to the original papers and exhibits filed in Superior Court, the 

transcript of the proceedings, and a certified copy of the docket entries); Fabrizio 

v. Anderson, 62 A.2d 314, 315 (D.C. 1948) (reversing judgment because certain 

exhibits were not introduced into evidence). An appellate court reviews the trial 

court‟s rulings for legal error; appeal is not a second opportunity to present 

evidence that was not presented to the trial court. An appeals court cannot 

meaningfully conduct its review of the sufficiency of the evidence unless the 

record actually contains the evidence that the factfinder relied on. See Fassett v. 

Delta Kappa Epsilon, 807 F.2d 1150, 1165 (3d Cir. 1986) (“The only proper 

function of a court of appeals is to review the decision below on the basis of the 

record before the trial court.”). 

Some courts have recognized an exception to the general principle that 

appellate review is confined to the record at trial where the evidence was presented 

at trial, discussed by witnesses, and was treated by all parties as if it had been 

admitted. See, e.g., United States v. Barrett, 111 F.3d 947, 951 (D.C. Cir. 1997) 

(“The exhibits were treated below, without objection, as if they were admitted into 

evidence; they are therefore deemed admitted.”). Here, the government received 

the surveillance videos late, and the defense did not object to the trial court‟s ruling 

that the government could present the videos that defense counsel had viewed that 
18

morning. The government played the videos in court, and witnesses discussed 

them. Defense counsel cross-examined witnesses about the store‟s camera systems 

and the particular videos that purported to show appellant. The prosecutor and 

defense counsel referred to the videos in closing arguments. Defense counsel did 

not object to the trial court‟s reliance on the videos in announcing the verdict. 

Under the circumstances, it was not plain error for the trial court to rely on the 

videos in reaching a verdict.18

We therefore affirm the judgment of conviction on all counts.

So ordered.

 

18

 The fact remains, however, that this court does not have the videos on 

which the trial court relied to identify appellant as the person who went to the 

Home Depot store in violation of the barring order. Both parties indicate that the 

videos have been lost. This court has an institutional interest in the maintenance of 

a complete record for purposes of appeal. We, therefore, emphasize the 

importance of preserving evidence until final disposition of a pending appeal.