This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-1646

State of Minnesota,

Respondent,

vs.

Jean Clarice Clement,

Appellant.

Filed July 20, 2015

Affirmed

Kirk, Judge

Koochiching County District Court

File No. 36-CR-14-348

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

Steven M. Shermoen, International Falls City Attorney, International Falls, Minnesota 

(for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Chelsie M. Willett, Assistant 

Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Connolly, Judge; and Chutich, 

Judge. 

U N P U B L I S H E D O P I N I O N

KIRK, Judge

Appellant challenges her misdemeanor theft conviction, arguing that the district 

court erred by admitting a copy of a surveillance video that violated the best-evidence 
2

rule and was not properly authenticated, and by allowing officer opinion testimony about

the contents of the video. Because the district court did not abuse its discretion in 

admitting the video or commit plain error in admitting the officer’s testimony, we affirm.

FACTS

On the evening of May 1, 2014, the manager at the Verizon Wireless retailer in 

International Falls, Minnesota, determined that a purple phone charger was missing from 

the store. He suspected that appellant Jean Clement had stolen the charger, as it had been 

present that morning, she had spent several minutes in its area that afternoon, and he did 

not recall any other customers spending time in its area that day. He notified the 

corporate office and law enforcement of the suspected theft.

After a delay in receiving video-surveillance evidence from the corporate office, 

the manager personally downloaded the video directly from the system and delivered it

on a flash drive to law enforcement. Law enforcement made a copy onto a DVD. At 

trial, appellant’s counsel objected to the video’s introduction on the basis that it was “not 

the best evidence.” The district court allowed the state to play law enforcement’s copy of 

the video for the jury. A police officer later testified regarding the contents of the video.

The jury found appellant guilty of theft, as charged. This appeal follows.

D E C I S I O N

I. In admitting the surveillance video, the district court did not abuse its 

discretion because the video complied with the best-evidence rule and was 

properly authenticated.

“Evidentiary rulings rest within the sound discretion of the [district] court and will 

not be reversed absent a clear abuse of discretion. On appeal, the appellant has the 
3

burden of establishing that the [district] court abused its discretion and that appellant was 

thereby prejudiced.” State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003) (citation 

omitted). If the district court erroneously admitted evidence, the reviewing court 

determines “whether there is a reasonable possibility that the wrongfully admitted 

evidence significantly affected the verdict.” State v. Post, 512 N.W.2d 99, 102 n.2 

(Minn. 1994). If there is a reasonable possibility that the verdict might have been more 

favorable to the defendant without the evidence, then the error is prejudicial. Id.

A. The Best-Evidence Rule

Appellant argues that the best-evidence rule required the state to present “the 

video from the [recording] device directly, or an official copy made by the corporate 

office.”

Under the best-evidence rule, an “original writing, recording, or photograph is 

required” to prove its contents. Minn. R. Evid. 1002; see State v. Carney, 649 N.W.2d 

455, 463 (Minn. 2002). A video or motion picture is considered a “photograph” for 

purposes of the rule. Minn. R. Evid. 1001(2). “If data are stored in a computer or similar 

device, any printout or other output readable by sight, shown to reflect the data 

accurately, is an ‘original.’” Minn. R. Evid. 1001(3). The best-evidence rule “simply 

prohibits the introduction of secondary evidence to establish the contents of a writing 

where the writing itself is available.” State v. DeGidio, 277 Minn. 218, 220, 152 N.W.2d 

179, 180 (1967); see Carney, 649 N.W.2d at 463 (holding that the district court did not 

abuse its discretion in excluding testimony concerning contents of a videotape that was 

not shown in court, applying the best-evidence rule).
4

However, “[a] duplicate is admissible to the same extent as an original unless 

(1) a genuine question is raised as to the authenticity of the original or (2) in the 

circumstances it would be unfair to admit the duplicate in lieu of the original.” Minn. R. 

Evid. 1003. “A ‘duplicate’ is a counterpart produced by the same impression as the 

original, or from the same matrix, or by means of photography, including enlargements 

and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, 

or by other equivalent techniques which accurately reproduce the original.” Minn. R. 

Evid. 1001(4). “Re-recordings of audio tapes or videotapes should be accepted as 

duplicates when shown to have been made by a technique designed to ensure accurate 

reproduction of the original.” State v. Brown, 739 N.W.2d 716, 722 (Minn. 2007) 

(quotation omitted). 

Appellant argues that the manager lacked authorization to “cut and copy” the 

video, and that the manager’s copy is unreliable because he “is not a video expert and 

does not copy such videos on a regular basis.” Further, she contends, an employee at the

corporate headquarters would not have known to focus on appellant and “would likely 

have copied the video from the entire day.” These arguments are unavailing. 

The manager testified that he received permission from his district manager to 

retrieve the data directly from the recording device. He described the location of the 

video cameras, and knew “the length of time in question” to download because he was 

present in the store that day. The manager copied a continuous period of approximately 

15 minutes when appellant was in the store, denied altering the video in any way or 

knowing how to do so, immediately brought the flash drive to law enforcement, and 
5

confirmed that what he viewed on the monitor in the store was consistent with the video 

played in court.

Although there is no evidence that the manager and the police officer are “video 

experts,” there also is no indication that they do not retrieve or copy videos on a regular 

basis, nor legal authority requiring a video expert to perform these straightforward tasks. 

With more than two years of experience managing a store selling electronics, it would be 

reasonable to conclude that the manager was familiar with recording equipment,

particularly that used in the store, and could thus competently download the video. 

Likewise, it would be reasonable to conclude that the experienced officer was capable of 

competently copying data from a flash drive onto law-enforcement computer equipment

without making any inadvertent alterations. Further, the chain of custody is quite clear, 

as the manager delivered the flash drive directly to law enforcement, which made the 

copy admitted at trial.

The choice to retrieve only the portion of the video showing appellant does not 

raise an issue as to the reliability of the video shown under the best-evidence rule, but 

rather goes to the weight of the evidence. See Buffalo Ins. Co. v. United Parking 

Stations, Inc., 277 Minn. 134, 139, 152 N.W.2d 81, 84 (1967) (“The best-evidence rule 

goes only to the competency of evidence, not to its relevancy, materiality, or 

weight . . . .”). When only part of the video was offered, appellant could have invoked 

Minn. R. Evid. 106 to “require the introduction . . . of any other part . . . which ought in 

fairness to be considered contemporaneously with it.” Instead, in closing argument, 
6

defense counsel twice alluded to other customers in the store as potential alternative 

perpetrators.

Appellant does not argue, and there is no reason to find, that there is a genuine 

question as to the authenticity of what she describes as the “original” video from the 

corporate office, nor the data on the recording device at the store. See Minn. R. Evid. 

1003. Because the data were stored in a computer or similar device and the video 

downloaded onto the manager’s flash drive was shown to reflect the data accurately, the

manager’s video constitutes an “original” under Minn. R. Evid. 1001(3). For the reasons 

stated above, it was not unfair to admit law enforcement’s duplicate in lieu of an original

video at trial. See Minn. R. Evid. 1003. Therefore, the district court did not abuse its 

discretion in concluding that the video met the requirements of the best-evidence rule.

B. Authentication of the Video

Appellant also argues that the district court erred by admitting the video because it 

was not properly authenticated.

“The [district] court has considerable discretion under Minn. R. Evid. 901(a) in 

deciding whether evidence has been adequately authenticated or identified . . . .” State v. 

Dulak, 348 N.W.2d 342, 344 (Minn. 1984). “The requirement of authentication or 

identification as a condition precedent to admissibility is satisfied by evidence sufficient 

to support a finding that the matter in question is what its proponent claims.” Minn. R. 

Evid. 901(a). Minn. R. Evid. 901(b) provides examples of authentication methods “[b]y 

way of illustration only, and not by way of limitation.”
7

Two methods for authenticating a video are the pictorial-witness theory and the 

silent-witness theory. In re Welfare of S.A.M., 570 N.W.2d 162, 164-65 (Minn. App. 

1997); see Minn. R. Evid. 901(b)(1), (9). Under the pictorial-witness theory, a video is 

authenticated by a witness who observed the events depicted on the video. S.A.M., 570 

N.W.2d at 164. Under the silent-witness theory, a proponent offers evidence of the 

reliability of the process by which the video was made. Id. at 165.

S.A.M. involved the admissibility of a surveillance video from a bus. Id. at 163. 

The state offered the testimony of a video technician, who explained how the video was 

made, stated that the video produced an accurate result, and provided some evidence on 

the chain of custody. Id. at 166. The bus driver “partially authenticated” the video by 

testifying “that a large portion of it . . . was a fair and accurate representation of what he 

had witnessed” that day, and there was additional evidence on chain of custody from a 

police sergeant. Id. This court concluded that “[t]he videotape was properly admitted 

because it was authenticated according to a method listed in 901(b) and consistent with 

the broad guideline for authentication set out in [r]ule 901(a): that is, evidence was 

produced showing that the tape is what its proponent claimed.” Id. at 166-67.

Here, the manager, the person who retrieved and redacted the video from the 

surveillance system, testified at trial and thoroughly described the process. The manager

explained that he copied only the portion of the video showing appellant because he had 

been present at the store all day and no one else had spent so much time in the area of the 

missing phone charger. He also confirmed that the video delivered to law enforcement,

and the copy played at trial, were consistent with what he viewed on the monitor 
8

connected to the recording device. Further, the police officer testified as to the process of 

copying the data from the manager’s flash drive onto the DVD that was played at trial 

and confirmed that the video he received from the manager was consistent with the DVD. 

This testimony provides significant silent-witness testimony about the reliability of the 

process that created the DVD. In addition, as in S.A.M., the video was “partially 

authenticated” by the manager’s testimony that he selected the portion of the recording

that represented his recollection of the time period that appellant was in the store that day, 

during which the behavior arousing his suspicions occurred. See 570 N.W.2d at 166. 

Therefore, the district court did not abuse its discretion in finding that the DVD was what 

the state claimed and in admitting it into evidence. See Minn. R. Evid. 901(a).

II. The district court did not plainly err in permitting the officer’s opinion

testimony that the video showed appellant concealing store merchandise.

Appellant argues that the district court erred in allowing the police officer’s 

opinion testimony about her behavior on the surveillance video, either as a lay or expert 

witness. The officer testified that he observed appellant concealing merchandise on the 

video. He later testified that he observed nothing indicating that any other patron in the 

video should be considered a suspect, and that nothing in his viewing of the video at trial 

altered his decision that appellant should be prosecuted for theft of the phone charger. 

Appellant did not object to this testimony at trial.

Where an appellant fails to make an evidentiary objection on specific grounds at

trial, the objection is generally not preserved for appeal. State v. Brown, 792 N.W.2d

815, 820 (Minn. 2011) (citing Minn. R. Evid. 103(a)(1)); see State v. Abraham, 338 
9

N.W.2d 264, 266 (Minn. 1983) (deciding not to address an issue on appeal in part 

because defense counsel did not state precisely his objection on the record). But an 

appellate court has discretion to consider the issue for plain error, which requires an 

appellant to demonstrate that (1) there was an “error”; (2) the error was “plain”; and 

(3) the error affected substantial rights. State v. Griller, 583 N.W.2d 736, 740 (Minn. 

1998); see Minn. R. Crim. P. 31.02 (providing that “[p]lain error affecting a substantial 

right can be considered” even if the error was not brought to the district court’s attention). 

An error is plain if it is clear or obvious under current law, State v. Strommen, 648 

N.W.2d 681, 688 (Minn. 2002), and an error is clear or obvious if it “contravenes case 

law, a rule, or a standard of conduct,” State v. Ramey, 721 N.W.2d 294, 302 (Minn. 

2006). An error affects substantial rights where there is a “reasonable likelihood” that the 

absence of the error would have had a “significant effect” on the jury’s verdict. State v. 

MacLennan, 702 N.W.2d 219, 236 (Minn. 2005) (quotation omitted). If the first three 

requirements of the plain-error test are satisfied, we then consider the fourth requirement, 

whether the error “seriously affects the fairness, integrity or public reputation of judicial 

proceedings.” State v. Washington, 693 N.W.2d 195, 204 (Minn. 2005) (quotation 

omitted).

Minn. R. Evid. 701 provides:

If the witness is not testifying as an expert, the witness’

testimony in the form of opinion or inferences is limited to 

those opinions or inferences which are (a) rationally based on 

the perception of the witness and (b) helpful to a clear 

understanding of the witness’ testimony or the determination 

of a fact in issue.
10

Under this rule, “the emphasis is not on how a witness expresses himself or herself—

[i.e.], whether in the form of an opinion or a conclusion—but on whether the witness 

personally knows what he or she is talking about and whether the testimony will be 

helpful to the jury.” Post, 512 N.W.2d at 101. Further, “[t]estimony in the form of an 

opinion or inference otherwise admissible is not objectionable because it embraces an 

ultimate issue to be decided by the trier of fact.” Minn. R. Evid. 704; see Post, 512 

N.W.2d at 101-02, 104 (holding that the district court erred in excluding testimony that 

the victim was the aggressor in a prosecution for attempted murder and assault). For 

example, in State v. Washington, where a 911 call recording was admitted, we held that 

the 911 operator’s testimony that she believed the caller was being assaulted was 

admissible lay opinion testimony under rule 701. 725 N.W.2d 125, 137 (Minn. App. 

2006), review denied (Minn. Mar. 20, 2007).

Appellant argues that the officer’s testimony did not assist the jury in 

understanding the video and was prejudicial. Courts should be cautious about the 

influence of a law enforcement officer’s opinion on ultimate issues. See State v. 

Hogetvedt, 623 N.W.2d 909, 915 (Minn. App. 2001) (stating that, “[g]iven [the officer]’s 

status as a police officer,” his opinion as to guilt “may have unduly influenced the jury”), 

review denied (Minn. May 29, 2001). However, the officer’s testimony here was 

rationally based on his perception of the video, and was helpful to the jury’s clear 

understanding of his testimony regarding the investigation and the decision to charge 

appellant. See Griller, 583 N.W.2d at 743 (holding that the district court did not abuse its 

discretion in admitting evidence of events that triggered an investigation and excavation 
11

as “context for an investigation”); State v. Czech, 343 N.W.2d 854, 856-57 (Minn. 1984) 

(upholding admission of the defendant’s taped statement in which he implicated himself 

in other crimes, concluding that the whole tape was necessary to give the jury the proper 

context for the defendant’s statement and to reveal to the jury why the police were 

conducting an undercover investigation). Notably, appellant’s counsel not only failed to 

object to the testimony, but also elicited further testimony about the contents of the video 

on cross-examination of the officer. Consequently, the district court did not plainly err in 

allowing the testimony.

Even if the district court plainly erred by admitting the challenged testimony, 

appellant’s argument nonetheless would fail because she cannot demonstrate that any 

error affected her substantial rights. The jury viewed the video multiple times and was 

able to reach its own conclusions about the video’s contents. See State v. Breeden, 374 

N.W.2d 560, 561-62 (Minn. App. 1985) (stating that the district court erred in 

suppressing a video of a defendant who claimed to have a balance problem performing 

sobriety tests on the ground that the video was unfairly prejudicial because “the jury is 

capable of viewing the real evidence of intoxication together with any proof of a balance 

problem and reaching their own conclusion as to the facts”). Therefore, the testimony did 

not affect the verdict. See Strommen, 648 N.W.2d at 688.

Because we conclude that the officer’s testimony regarding the video was 

admissible lay opinion testimony, we do not reach appellant’s argument that it was 

inadmissible as expert opinion testimony.

Affirmed.