                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                September 27, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 09-1541
                                               (D.C. No. 1:06-CR-00374-WYD-1)
    LINDA L. WILLIAMS,                                     (D. Colo.)

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before TACHA, LUCERO, and MURPHY, Circuit Judges.



         Linda L. Williams appeals from the district court’s order affirming her

conviction following a trial before a magistrate judge for damaging property of

the National Forest Service. She argues that the testimony of a Forest Service

police officer identifying her as the person seen on a surveillance video

destroying a trailhead sign should not have been admitted at trial. We affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   B ACKGROUND

      Williams owns two unpatented mining claims comprising forty acres in the

Uncompahgre National Forest in Ouray County, Colorado. 1 Over the course of

several years, Williams and the Forest Service clashed over Williams’s resistance

to inspections of her mining claims and her repeated attempts to block public

access to the area, a popular hiking destination, including placing a locked gate

on an access road and threatening to set “booby-trap[s],” ROA, Vol. 5 at 97.

Williams also clashed with a private group that restores trails in the area,

threatening a citizen’s arrest of some of its members who were monitoring

vandalism to trailhead signs. Ultimately, Williams was arrested and charged in a

thirteen-count complaint with a variety of offenses, including damaging a

trailhead sign.

      During a jury trial conducted by a magistrate judge, Forest Service police

officer Jon Closson testified that he had interacted with Williams about six times

over the past three years. He indicated that in April 2004, he installed a


1
       “[U]npatented mining claims are subject to the right of the United States
and its permittees and licensees to manage surface resources and ‘to use so much
of the surface thereof as may be necessary for such purposes or for access to
adjacent land’ so long as such does not ‘endanger or materially interfere with
prospecting, mining or processing operations or uses reasonably incident
thereto.’” Manning v. United States, 146 F.3d 808, 813-14 (10th Cir. 1998)
(quoting 30 U.S.C. § 612(b)).




                                         -2-
surveillance camera to monitor a newly erected wooden sign at a trail near

Williams’s mining claims. When he returned to the site several days later, he

found the sign “smashed almost in half.” Id. at 106. The video from the camera

shows an individual wearing a baseball cap, bulky coat, and backpack smashing

the sign with a hammer and walking around the area. When the prosecutor asked

Officer Closson if he recognized the person on the video, defense counsel

objected, arguing that “[t]he videotape speaks for itself and [that identifying the

person is] a decision for the jurors to make.” Id. at 109. The court overruled the

objection, allowing Officer Closson to testify that he recognized the person on the

video as Williams based on her “style of walk,” “the backpack,” and her “short

dark hair.” Id.

      Williams testified, denying that it was her image on the surveillance video

seen destroying the trailhead sign. She insisted, however, that trail signs were

“not supposed to be there,” id., Vol. 6 at 239, 241, and she conceded that she had

written letters demanding that the signs be removed, id. at 240, 241.

      The jury convicted Williams on seven counts, including damaging the

trailhead sign. She was sentenced to one year of supervised probation, with three

months of incarceration suspended provided she complied with the terms of her

probation.

      Williams appealed her conviction and sentence to the district court.

Unsuccessful, she now appeals to this court.

                                          -3-
                                    D ISCUSSION

      A trial court’s decision to admit evidence is reviewed for an abuse of

discretion. United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008).

Thus, “we will not disturb an evidentiary ruling absent a distinct showing that it

was based on a clearly erroneous finding of fact or an erroneous conclusion of

law or manifests a clear error in judgment.” Id. (quotation and brackets omitted).

      A lay witness’s identification testimony is governed by Federal Rule of

Evidence 701. See id. To be admissible, the testimony must be (1) rationally

based on the witness’s perception; (2) “‘helpful to a clear understanding of the

witness’s testimony or the determination of a fact in issue’”; and (3) not covered

by Rule 702. Contreras, 536 F.3d at 1170 (quoting Fed. R. Evid. 701).

      Williams challenges only the second requirement, arguing that Officer

Closson’s testimony could not have been helpful to determining if she was the

person in the video. The helpfulness of identification testimony depends on

whether “there is some basis for concluding that the witness is more likely to

correctly identify the defendant from the [video] than is the jury. The witness’s

prior familiarity with the defendant’s appearance is the most critical factor to

determine if such a basis exists.” Id. (ellipsis, citations, and quotation omitted).

      Officer Closson’s familiarity with Williams is based on six encounters with

her over a three-year period. The First Circuit has noted that a witness’s “contact

with [the defendant] on six occasions within a few months is within the zone that

                                         -4-
courts have found acceptable to show that the witness was sufficiently familiar

with the defendant to provide a useful identification.” United States v. Kornegay,

410 F.3d 89, 95 (1st Cir. 2005) (collecting cases). Although Officer Closson’s

familiarity spans a period longer than a few months, the nature of his encounters

with Williams would have left a distinct mental impression. Specifically, at least

three of the encounters involved Williams angrily confronting Officer Closson.

For instance, when Officer Closson attempted to serve her with a notice that her

mining claims failed to conform to Forest Service rules, Williams refused to

accept the notice, and began kicking and stomping on the notice after he placed it

on her backpack on the ground. On another occasion, when Officer Closson was

investigating complaints that the public was being excluded from the area of

Williams’s claims, Williams approached him angrily and insisted that he was on

her private property; she temporarily relented and accompanied him as they

walked around the mining claims, and eventually engaged him in a lengthy

conversation about the property’s ownership. On yet another occasion, when

Officer Closson was speaking with two people on an access road, Williams

angrily intervened, repeatedly insisting he was on private property and could not

talk to the people.

      Moreover, this court has approved a witness’s familiarity on fewer

encounters than present here. In United States v. Bush, 405 F.3d 909, 917

(10th Cir. 2005), we concluded that a detective’s identification of the voice on an

                                         -5-
audiotape as belonging to the defendant was helpful to the jury because the

detective had spoken to the defendant “in person on three occasions.” We also

noted in Bush that “[c]ourts have . . . preferred to leave to juries any assessment

of the weight to be given to [identification] testimony when there exist questions

regarding the quantity or quality of perception.” Id. at 916. Likewise, in the

context of Officer Closson’s familiarity with Williams’s appearance, the jury was

free to assess the weight of his identification testimony based on the number of

encounters and the time period involved.

      Additionally, Officer Closson’s testimony would have been helpful because

the video footage is partially obscured by plants and does not provide a close-up

view of the perpetrator’s face. The “clarity of the surveillance [video] and the

quality and completeness with which the subject is depicted in the [video]” are

important factors bearing on the admissibility of lay opinion testimony. United

States v. Dixon, 413 F.3d 540, 545 (6th Cir. 2005). Also important is “whether

the defendant had disguised his appearance at the time of the offense.” Id.; see

also United States v. Towns, 913 F.2d 434, 445 (7th Cir. 1990) (concluding that

lay-witness identification testimony would have been helpful to the jury because

“the robber depicted in the photograph was wearing a stocking cap, sunglasses,

and a sweatsuit that potentially made him appear heavier than he really was”).

Here, the identity of the person on the video is obscured by a baseball cap and

bulky coat with the collar turned up.

                                          -6-
      Because Officer Closson had a variety of encounters with Williams,

including ones in which he observed her backpack and her walking in the forest,

he would have had an advantage over the jury in identifying her as the

perpetrator, especially considering the less-than-perfect video footage and the

person’s hidden appearance. Thus, Officer Closson’s testimony would have been

helpful to the jury in identifying the person shown on the surveillance video.

Accordingly, the magistrate judge did not abuse her discretion in admitting

Officer Closson’s testimony. 2




2
       Williams also contends that even if Officer Closson’s testimony was
admissible under Rule 701, the magistrate judge abused her discretion in
admitting the testimony because, under Rule 403, its probative value was
substantially outweighed by the danger of unfair prejudice. Specifically, she
questions the practice of allowing police officers to give identification testimony
and notes that there were other witnesses the prosecution could have called to
identify the person on the video. She rightly concedes, however, that there is no
per se bar to law-enforcement officers providing lay-witness identification
testimony. Cf. Contreras, 536 F.3d at 1171-72 (rejecting defendant’s argument
that probation officer’s identification testimony was unfairly prejudicial).
Further, Officer Closson set up the surveillance video camera and was familiar
with Williams’s appearance; thus, he was a logical person to testify about the
video and the person seen destroying the sign. The magistrate judge did not
abuse her “considerable discretion in performing the Rule 403 balancing test.”
United States v. Smalls, 605 F.3d 765, 787 (10th Cir. 2010) (quotation omitted).

                                         -7-
                          C ONCLUSION

The judgment of the district court is AFFIRMED.



                                          Entered for the Court


                                          Michael R. Murphy
                                          Circuit Judge




                               -8-
