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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 13-CM-307

                         MARVIN HOLMES, APPELLANT,

                                        v.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                (CMD-21847-12)

                     (Hon. Juliet J. McKenna, Trial Judge)

(Argued April 17, 2014                                    Decided June 5, 2014)

      Edward E. Schwab for appellant.

      Sandra Talbott, Assistant United States Attorney, for appellee. Ronald C.
Machen, Jr., United States Attorney, Elizabeth Trosman, Elizabeth H. Danello,
and SuzAnne C. Nyland, Assistant United States Attorneys, were on the brief for
appellee.

      Before THOMPSON and MCLEESE, Associate Judges, and KING, Senior Judge.

      KING, Senior Judge: On December 24, 2012, Marvin Holmes was charged

by criminal information with theft of two shirts from a Saks Fifth Avenue men‟s

clothing store in the Friendship Heights neighborhood of Northwest Washington,

D.C., in violation of D.C. Code §§ 22-3211, -3212 (b) (2012 Repl.). Following a
                                        2

February 21, 2013 bench trial, Holmes was found guilty of that charge and

sentenced to sixty days of incarceration, all suspended, and supervised probation

for one year. He argues on appeal that the store detective‟s testimony about what

he saw on the store‟s surveillance video was inadmissible hearsay, and that

admitting that evidence was not harmless error. As we reject Holmes‟ assumption

that a video camera can make statements as understood in the rule against hearsay,

we affirm.



                                        I.



      The surveillance system at the Saks Fifth Avenue men‟s clothing store in

Friendship Heights includes several cameras that can follow individuals as they

move throughout the store. A store detective, Abiden Adekunle, testified that he

was monitoring the security cameras, noticed appellant when he entered the store

with two other individuals, and trained the camera on appellant and one of his

companions.    Through the live video feed, Detective Adekunle saw Holmes‟

companion select two shirts from a display table and place them in Holmes‟ bag.1

Holmes was facing his associate at the time. Holmes then zipped his bag and both


      1
        Photos of the shirts found in Holmes‟ bag were introduced into evidence.
The store priced the shirts at two hundred and seventy five dollars each.
                                          3

men walked away, browsing briefly in the shoe department before exiting the store

onto Wisconsin Avenue. Holmes was still holding the bag and had not paid for the

shirts. Detective Adekunle then alerted a colleague on the sales floor by walkie-

talkie, who detained Holmes on the street a few steps from the door. The video

about which Detective Adekunle testified was also entered into evidence.



      During trial, Holmes objected to Detective Adekunle‟s testimony about what

he observed on the surveillance video, saying that “the problem is that he‟s not

viewing it with his own eyes. It‟s sort of like I watched Scandal tonight and . . .

come back and tell you . . . what happened on Scandal. It‟s not necessarily what

happened on Scandal, it‟s my interpretation of what happened . . . on the TV.” The

trial court overruled this objection and allowed the detective to testify “based on

what he observed, not his interpretation of the actions.”



      The trial court credited Detective Adekunle‟s testimony that he observed

Holmes throughout his visit to the store through a surveillance camera, and

observed specifically that a man with Holmes took two items from a table and

placed them into Holmes‟ bag. The court also found it “apparent” from the video

that “Mr. Holmes is directly facing the individual as the individual deposits the

items in his bag.”
                                         4

                                         II.



      We review evidentiary rulings for abuse of discretion, Williams v. United

States, 77 A.3d 425, 431 (D.C. 2013), and we assume without deciding that we

review de novo a conclusion that a particular statement falls under a hearsay

exception.2




      2
        Many of our cases distinguish review of an evidentiary ruling itself, which
is for abuse of discretion, with review of a legal conclusion about the scope of a
rule of evidence, which is de novo. See, e.g., Smith v. United States, 26 A.3d 248,
257 (D.C. 2011) (“We review a trial court‟s decision to admit hearsay evidence for
abuse of discretion; however, the determination of whether a statement falls under
an exception to the hearsay rule is a legal conclusion, which we review de novo.”)
(quoting Dutch v. United States, 997 A.2d 685, 688 (D.C. 2010)); Jenkins v.
United States, 80 A.3d 978, 989 (D.C. 2013) (“We review the court‟s rulings on
admissibility for abuse of discretion; in so doing, we accept the factual findings on
which the rulings rest so long as they are not clearly erroneous, while we accord de
novo consideration to the legal issue of whether the hearsay exceptions were
available.”). In other cases, however, we have reviewed a conclusion that a
statement falls under a hearsay exception for abuse of discretion. See, e.g., Bridges
v. Clark, 59 A.3d 978, 985 n.3 (D.C. 2013) (citing Obelisk Corp. v. Riggs Nat’l
Bank, 668 A.2d 847, 855 n.7 (D.C. 1995) (“[T]he decision to exclude the memo
[as inadmissible hearsay], therefore, was within the broad discretion normally
afforded to the evidentiary rulings of trial courts.”)). We need not decide the issue
here because we can uphold the trial court‟s ruling even under the least deferential
standard of review.
                                           5

      Detective Adekunle‟s testimony about Holmes‟ conduct in the store was

based exclusively on what he saw on the store‟s surveillance cameras. Even

though his observation of Holmes was indirect, and mediated by the surveillance

system, his report of what he saw using that system was not hearsay. Hearsay is an

out-of-court statement, not made by the declarant while testifying at the current

trial or hearing, that is offered in support of the truth of the matter asserted. Little

v. United States, 613 A.2d 880, 882 (D.C. 1992). A statement is either an oral or

written assertion or nonverbal conduct intended as an assertion. Id. A person‟s

out-of-court statement is not always reliable evidence, since it can be informed by

bias or misperception, or it can be an outright lie. Accordingly the primary point

of the rule against hearsay is to generally exclude a person‟s assertions from

evidence unless that person testifies, which allows the other party to probe for any

possible bias, misperception, or inconsistency in the witness‟s account of events

through cross-examination.



      A surveillance system, however, is not a person. Rather, it is a tool to aid

perception, much like binoculars, a telescope, or glasses. When a witness uses a

tool to make an observation, the opposing party may challenge the reliability of the

tool or the witness‟s ability to use the tool, as Holmes‟ trial counsel did here. But a

tool is not like another person who makes an “assertion” to the witness. When
                                         6

Detective Adekunle testified about what he saw on the screen of the store‟s

surveillance camera, he was not reporting any other person‟s out-of-court

statement. Thus his testimony was not hearsay.3 Because his testimony was not

hearsay, the admissibility of the detective‟s statements about what he saw on the

surveillance system does not depend on the admission of the video feed itself into

evidence.



      Courts considering this question invariably reach the same conclusion we

have reached here. See, e.g., United States v. McKenzie, 505 Fed App‟x 843, 845

(11th Cir. 2013) (unpublished) (agent‟s testimony that he observed appellant

selling cocaine on a live video feed was not hearsay because the agent testified

about his perceptions of the video and not about what anyone said in the video);

United States v. Munoz-Mosquera, 101 F.3d 683, at *2 (2d Cir. 1996)

(unpublished) (“[V]isual images on the videotapes at issue were not oral or written

assertions or nonverbal conduct of a person intended by the person as an assertion .

. . .”) (internal quotation marks and ellipses omitted); Ostalaza v. People, 58 V.I.

531, at *17 n.32 (2013) (rejecting argument that testimony about what the witness


      3
        Holmes‟ suggestion that the video feed was a statement because the store
detective was able to train the camera on him and follow him throughout the store
is unavailing. If anyone could be said to have made a statement by moving the
camera, it would have been Detective Adekunle, who testified and was available
for cross-examination.
                                         7

saw on a video was hearsay, and citing cases drawing the same conclusion from

state appeals courts in California, Michigan, Illinois, Wisconsin, Florida, Indiana,

Illinois, Pennsylvania, Kentucky, and Georgia, and the Second Circuit); State v.

Schmidt, 817 N.W.2d 332, 338-39 (N.D. 2012) (witness‟s statement that he saw

appellant on surveillance video using an in-store ATM was not hearsay); People v.

Tharpe-Williams, 676 N.E.2d 717, 720 (Ill. App. Ct. 1997) (“[T]he underlying

basis for excluding hearsay evidence does not apply to „out-of-court statements‟

made by a video camera.”); Commonwealth v. Capeles, 950 N.E.2d 84 at *1

(Mass. App. Ct. 2011) (unpublished) (“Witnesses may testify to things they have

seen even when visual aids are employed.”); Pritchard v. State, 810 N.E.2d 758,

760-61 (Ind. Ct. App. 2004) (testimony recounting what witnesses saw on a jail

surveillance system is “no different than if they had been standing on cell block E-

5 observing the incident”).



      Finally, we note that if a witness testifies about the content of an out-of-

court statement, and that statement is offered in support of its truth, then the

testimony is hearsay, whether or not the witness observed the other person live or

on camera. See, e.g., United States v. Martinez, 588 F.3d 301, 310-11 (6th Cir.

2009) (a video of a person describing and demonstrating the proper way to perform

a medical procedure was inadmissible hearsay because the person made statements
                                         8

which were offered in support of the truth of the matter asserted); see also

Pritchard, 810 N.E.2d at 761 (testimony about what witnesses observed on video

was not hearsay because the video images only showed the non-verbal conduct of

the persons depicted and included nothing that those persons intended as an

assertion). But that is not what occurred here. That the detective observed the

matters he testified about through a video surveillance system rather than with his

naked eyes is simply immaterial to the operation of the rule against hearsay.



      For the foregoing reasons, we affirm the judgment of the trial court.



                                             So ordered.
