DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ALANA KOERBER,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D2022-3025

[February 21, 2024]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; John J. Murphy, III, Judge; L.T. Case No. 16-

10937CF10A.

Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort 

Lauderdale, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Jeanine M. 

Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, J.

Alana Koerber (“Defendant”) challenges her convictions and sentences 

for: 1) violating the Florida Money Laundering Act; 2) criminal use of 

personal identification information; 3) grand theft; and 4) defrauding a 

financial institution. Defendant claims the trial court committed multiple 

reversible errors during trial.

Defendant argues her convictions for both grand theft and defrauding 

a financial institution violate double jeopardy principles. See Pizzo v. 

State, 945 So. 2d 1203, 1207 (Fla. 2006) (holding that grand theft is a 

lesser included offense of organized fraud for double jeopardy purposes). 

We agree and reverse the conviction and sentence for grand theft and 

remand for resentencing on the remaining charges for which Defendant

was convicted.

We affirm on the remaining issues raised on appeal and write only to 

address whether the trial court committed reversible error by admitting 
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surveillance photographs from the financial institution’s security cameras 

showing Defendant depositing an altered check. The surveillance 

photographs were crucial to Defendant’s convictions, and Defendant 

argues the State did not lay a proper foundation before introducing them.

Photographs and videos from unmanned cameras, such as the 

surveillance photographs at issue here, are tested for admissibility under 

the “silent witness” theory, which provides that “photographic evidence 

may be admitted upon proof of the reliability of the process which

produced the photograph or videotape.” Wagner v. State, 707 So. 2d 827, 

830 (Fla. 1st DCA 1998). In Wagner, the First District set forth five factors 

for a trial court to consider in determining whether evidence is admissible 

under the “silent witness” theory:

(1) evidence establishing the time and date of the 

photographic evidence;

(2) any evidence of editing or tampering;

(3) the operating condition and capability of the equipment 

producing the photographic evidence as it relates to the 

accuracy and reliability of the photographic product;

(4) the procedure employed as it relates to the preparation, 

testing, operation, and security of the equipment used to 

produce the photographic product, including the security of 

the product itself; and

(5) testimony identifying the relevant participants depicted in 

the photographic evidence.

Id. at 831.1

In order to authenticate the photographs, the State presented 

testimony of the branch manager at the financial institution where the 

check was deposited. The manager testified that he “assist[s] in the 

process” of maintaining the security cameras from which the photographs 

were generated, and described the process that the staff performs for 

testing the accuracy of the time stamps. While the manager did not 

personally pull the surveillance footage, he testified that the footage is 

1 This Court cited Wagner with approval in Cirillo v. Davis, 732 So. 2d 387, 388 

(Fla. 4th DCA 1999), and Dolan v. State, 743 So. 2d 544, 546 (Fla. 4th DCA 1999).
3

made in the normal course of business and the employee who normally 

pulls the footage did so in this case. Finally, the manager testified the 

footage accurately represented the financial institution’s branch location 

on the date the time stamps indicated. As for the time stamps’ accuracy, 

the staff regularly tests the cameras to make sure the time stamps are 

accurate.

Applying the Wagner factors, the State established: evidence of the 

photographs’ time and place via the time stamps; no evidence of 

tampering; the cameras’ accuracy; and normal procedures were followed 

in pulling the footage. See Wagner, 707 So. 2d at 831. Accordingly, we 

hold the court properly admitted the surveillance photographs showing 

Defendant depositing the altered check.

Affirmed in part, reversed in part, and remanded for a new sentencing 

hearing.

FORST, J., concurs.

WARNER, J., concurs in part and dissents in part with opinion.

WARNER, J., concurring in part and dissenting in part.

Defendant was charged and convicted of an elaborate scheme, in which 

a substantial check was altered and deposited at a bank and then most of 

that money was transferred into Defendant’s various accounts. A few 

surveillance photos from the bank’s video system admitted into evidence 

were crucial to the State’s case because the photographs purported to 

show Defendant at the teller window when the altered check was 

deposited. Defendant objected to the still photos’ admission, arguing that

the State failed to sufficiently authenticate the photos. I agree and would 

reverse for lack of proper authentication.

“Authentication or identification of evidence is required as a condition 

precedent to its admissibility.” § 90.901, Fla. Stat. (2021). For 

photographs and video evidence, two methods are used to establish 

authenticity. The first method is through testimony of a person with 

knowledge that the photograph fairly and accurately depicts what is 

reflected in it. The second method is the “silent witness” theory, under 

which “photographic evidence may be admitted upon proof of the reliability 

of the process which produced the photograph or videotape.” Wagner, 707 

So. 2d 827, 830 (Fla. 1st DCA 1998).
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In Wagner, the court reviewed case law across the country to determine 

the factors that a trial court should evaluate in determining whether a 

videotape or photograph is admissible, and held that “relevant 

photographic evidence may be admitted into evidence on the ‘silent 

witness’ theory when the trial judge determines it to be reliable, after 

having considered the following:”

(1) evidence establishing the time and date of the 

photographic evidence;

(2) any evidence of editing or tampering;

(3) the operating condition and capability of the equipment 

producing the photographic evidence as it relates to the 

accuracy and reliability of the photographic product;

(4) the procedure employed as it relates to the preparation, 

testing, operation, and security of the equipment used to 

produce the photographic product, including the security of 

the product itself; and

(5) testimony identifying the relevant participants depicted in 

the photographic evidence.

Id. at 831.

We have relied on Wagner in evaluating admissibility of video evidence. 

See, e.g., Richardson v. State, 228 So. 3d 131 (Fla. 4th DCA 2017). In 

Richardson, the general manager of a donut shop was called to testify as 

to a video from her store showing the suspect at the shop. Id. at 132. We 

approved the video’s admission based upon Wagner, noting the facts 

supporting authentication:

Here, there is a date and time stamp that can be seen on the 

video. There was also no evidence of tampering, and to the 

contrary, the general manager testified that the video had not 

been altered, edited, or superimposed upon. She also stated 

that there was only one other person with access to the video, 

and although she did not “see with her own eyes” that the loss 

prevention employee did not give anyone else access to the 

video, to the best of her knowledge, it was only that employee 

that accessed the video. Importantly, the general manager 
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also testified that the recording could not be altered by the 

recording device.

There was not much testimony regarding the condition and 

capability of the equipment in relation to accuracy and 

reliability, but the general manager did testify that she was 

never notified of any malfunction of the equipment. Finally, 

there was testimony that the video equipment was kept in a 

locked office, which only one manager, besides the witness, 

had access to enter. This establishes a level of security 

protecting the recording, as opposed to equipment in the open 

for anyone to have access.

Id. at 134.

In this case, the State maintained that all it needed to show was that 

the photos fairly and accurately depicted the scene. The State called the 

bank’s manager as a witness, but he did not testify that he was present at 

the time of the transaction. Instead, the manager testified that the photos

accurately depicted the bank on the date in question, and that the writing 

on the same page as the photos was made in the normal course of 

operations by persons with knowledge. That writing supplied data about 

the check deposited and the digital video snapshot dates and time. The 

State then moved the photos into evidence.

At that point, the court allowed the defense to ask further questions 

regarding authenticity. The manager testified that he was not responsible 

for maintaining the video cameras but assisted in the process. He 

explained, “[w]hen they’re setting up cameras we check time stamp 

transactions, we do test interactions to make sure that cameras match 

with the time transactions are completed.” The manager also 

acknowledged that he was not responsible for the video equipment. The 

bank has an employee who can view and pull data but does not control 

the equipment. Defense counsel then asked, “[s]ince this other employee 

pulled the data and pulled it off the equipment you can’t swear as to when 

how that was done?” At that point the State objected, and the question 

was never answered. In a sidebar, the parties argued as to what was 

required to admit the photographs. Defense counsel provided the court 

with Lerner v. Halegua, 154 So. 3d 445 (Fla. 3d DCA 2014), which relied 

on the Wagner factors, but the court found Lerner factually 

distinguishable. The court admitted the photos without considering the 

Wagner criteria.
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No evidence was offered on most of the Wagner factors. No date and 

time stamp appears on the photos, only writing above the photos which 

states the date, time, and teller number, as well as check information. The 

manager did not testify as to the security of the video from which the 

photos were pulled, or whether the video had been or could have been 

edited or altered. The manager also did not provide any evidence as to the 

equipment or its condition. Most importantly, the State presented minimal 

evidence about the cameras’ accuracy, with the manager only testifying 

about procedures to test the cameras’ time stamps when the cameras are 

first set up. The State did not present any testimony about the regularity 

of the testing. Not only did the State present minimal evidence of the 

cameras’ accuracy, but the photograph itself disclaims it. At the top of the 

page, the photograph states:

This photograph has been processed and printed by Wells 

Fargo Bank using its best efforts to properly identify the 

photograph with the transaction in question. However, Wells 

Fargo makes no representation that the photograph is, beyond 

any doubt, a depiction of the person making the transaction in 

question. Wells Fargo assumes no responsibility for, or liability 

to, any person for the use or accuracy of this photograph.

In this case, evidence of the Wagner factors is mostly non-existent and 

woefully deficient, even when compared to the evidence in Richardson. The

trial court simply admitted the photos because the manager testified, 

without evaluating the Wagner factors. Where the trial court simply fails 

to apply the correct law on authentication, this constitutes a legal error to 

be reviewed de novo.

As a general rule, “[a] trial judge’s ruling on the admissibility 

of evidence will not be disturbed absent an abuse of 

discretion.” Blanco v. State, 452 So. 2d 520, 523 (Fla.1984). 

“However, a court’s discretion is limited by the evidence code 

and applicable case law. A court’s erroneous interpretation of 

these authorities is subject to de novo review.” McCray v. 

State, 919 So. 2d 647, 649 (Fla. 1st DCA 2006).

Pantoja v. State, 59 So. 3d 1092, 1095 (Fla. 2011).

What was so important in this case was whether the person depicted 

in the photos deposited the suspect check, which required matching the 

time on the check’s deposit to the time on the video. The trial court’s error 
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in admitting the photos which were lacking in authentication is not 

harmless error.

Because the trial court did not apply the correct law, and the evidence 

did not support the admission of these photographs on the “silent witness” 

theory, I would hold that the photographs’ admission was error and 

reverse and remand for a new trial. I agree in all other respects with the 

majority opinion.

* * *

Not final until disposition of timely filed motion for rehearing.