                           This opinion will be unpublished and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
                                      A15-0924

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                               Sheldon James Armstrong, III,
                                        Appellant.

                                   Filed April 18, 2016
                                        Affirmed
                                       Kirk, Judge

                                Cass County District Court
                                 File No. 11-CR-14-1392

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General, St. Paul,
Minnesota; and

Christopher J. Strandlie, Cass County Attorney, Walker, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jessica Merz Godes, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

         Considered and decided by Jesson, Presiding Judge; Cleary, Chief Judge; and Kirk,

Judge.
                         UNPUBLISHED OPINION

KIRK, Judge

       Following his conviction for attempted first-degree murder, appellant argues that

the district court prejudicially erred by allowing a police investigator to provide opinion

testimony that appellant appeared in a surveillance video. We affirm.

                                         FACTS

       After a violent incident on August 1, 2014, respondent State of Minnesota charged

appellant Sheldon James Armstrong III with attempted first-degree murder, kidnapping,

second-degree assault, and motor-vehicle theft. The evidence presented at appellant’s

three-day jury trial is summarized as follows.

       J.H. and appellant met at a casino in approximately July 2014. Appellant gave J.H.

his contact information and asked him to keep in touch on Facebook. J.H. and a person

with a Facebook account in appellant’s name (“Sheldon Armstrong”) began

communicating periodically through Facebook’s instant messenger application. J.H. also

saw appellant once at a fair.

       On July 31, J.H. and appellant exchanged Facebook instant messages about getting

together that night. J.H. agreed to pick up appellant at a gas station. At 12:36 a.m., J.H.

messaged that he was arriving at the gas station and asked for appellant’s location.

Appellant responded with a telephone number at 12:42 a.m. J.H. called the number and

spoke to a person whom he understood to be appellant. The person said that he would

arrive shortly.




                                             2
       Approximately five to ten minutes later, appellant and another man arrived.

Appellant introduced the other man, who was later identified as Travis Paquette, as his

brother. After driving for a brief time, the three men exited J.H.’s truck and began walking

down a dirt road. Appellant and Paquette then brutally attacked J.H. Appellant repeatedly

stabbed him and bound his hands and feet. Later, appellant and Paquette attempted to run

over J.H. with the truck. Paquette took J.H.’s cell phone.

       Eventually, J.H. managed to escape. At about 2:30 a.m., he knocked on the cabin

door of G.H. and his wife, who called 911. J.H. told G.H. that he had been out with

appellant and “they” took his truck. J.H. told the responding deputy that appellant and

appellant’s brother were his assailants.

       At approximately 5:45 a.m., the police located J.H.’s truck approximately three-

quarters of a mile from G.H.’s cabin. They spotted Paquette walking a short distance away

from the truck and arrested him. Officers located appellant inside a nearby residence and

took him into custody. Inside appellant’s pocket, the police found a cell phone with a case

that did not fit the phone and that matched J.H.’s description of his missing cell phone case.

       The afternoon of August 1, a police investigator presented J.H. with a photographic

lineup. It took J.H. “just seconds” to identify appellant as his assailant. He also identified

Paquette from another lineup.

       J.H. told the investigator about his Facebook contact with appellant. Using J.H.’s

username and password to log into Facebook, the investigator reviewed the series of instant

messages between J.H. and “Sheldon Armstrong.” The investigator obtained a surveillance

video for the time period in question from the gas station where J.H. had met appellant.


                                              3
       At trial, the prosecutor asked the investigator to explain what he observed on the

video. The district court allowed the testimony over appellant’s objection, explaining that

it would be “his interpretation as an investigator as to what he’s got here and where he went

with this from here.”

       As the video was playing for the jury, the investigator testified that he believed one

of the suspects looked like “a Native American male that’s consistent with [appellant], with

the physical characteristics.” Thereafter, the following exchange took place between the

prosecutor and the investigator:

              Q: Okay. What exact characteristics are you talking about?
              A: The main characteristics I’m talking about . . . are the
              sideburns. They come down, and he’s got kind of a goatee-type
              facial hair. He has very dark hair and kind of dark eyes, and
              those are consistent with [appellant].
              Q: With the clarity of the video, it’s virtually impossible to tell
              for sure, is it not?
              A: Correct.
              Q: You can’t clearly see the face?
              A: Right.
              Q: But those are your observations; is that correct?
              A: Yes.

       The investigator also testified that he believed the physical characteristics of the

other male suspect shown on the video were consistent with Paquette. Later, the prosecutor

asked, “So this next frame shows in the same time period the same two individuals walking

through; is that correct?” The investigator responded, “Yes, it would be the same time

period, and that’s [appellant] or who I believe to be, and there’s Travis Paquette.” As the

video moved to the next frame, the investigator continued:




                                              4
              A: And this is all during the same time frame. That individual
              that was just in the edge of the frame there that should be
              [appellant].
              Q: The person at least that you believe is –
              A: I believe, yes. He’s wearing shorts.

In addition, the investigator testified that he reviewed the time and date stamps on the video

images and concluded that they were consistent with other information he had received

during the investigation.

       The investigator testified that, while logged into his personal Facebook account, he

searched for “Sheldon Armstrong” and found an account with a profile photograph

“consistent with what [he] had seen of [appellant] up to that point,” including through

photographs and personal contact. The investigator noted that Paquette was identified as

a “brother” on this Facebook page.

       At trial, J.H. identified appellant as one of his assailants in the courtroom. J.H. also

identified a screenshot of a Facebook profile photograph for “Sheldon Armstrong” as

depicting appellant, which was consistent with photographs of appellant at the time of his

arrest. When asked by the prosecutor if appellant appeared “exactly the same” at trial as

he did on August 1, J.H. noted that, on August 1, appellant had a goatee and sideburns, was

wearing different clothes, and was not wearing glasses.

       The jury found appellant guilty as charged. The district court entered judgment of

conviction and imposed a sentence on only attempted first-degree murder.

       This appeal follows.




                                              5
                                      DECISION

I.     The district court did not abuse its discretion in admitting the investigator’s
       identification of the men in the video.

       On appeal, a party who objects to the admission of evidence at trial bears the burden

of proving that the district court abused its discretion by admitting the evidence and that it

was prejudicial. State v. Amos, 658 N.W.2d 201, 203 (Minn. 2003). In State v. Ali, the

Minnesota Supreme Court held that the district court did not abuse its discretion in

permitting a police officer to testify that, based on review of surveillance videos, she and

her partner eliminated one murder suspect as an assailant and determined the identity of

the shooter’s accomplice. 855 N.W.2d 235, 247-50 (Minn. 2014).

       The Ali court explained that the testimony “was important context evidence

considering that [the] defense was centered on the contention that [the defendant] had been

misidentified.” Id. at 249. The supreme court also relied on the fact that the district court

gave a limiting jury instruction that the testimony was to provide context for the

investigation and that the jury must draw its own conclusions about who may be depicted

in the videos. Id.; see also State v. Griller, 583 N.W.2d 736, 743 (Minn. 1998) (holding

that the district court did not abuse its discretion in admitting evidence of events that

triggered an investigation and excavation of the defendant’s backyard 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




                                              6
for the defendant’s statement and to reveal to the jury why the police were conducting an

undercover investigation).

       Here, appellant argues that the district court erred in allowing the investigator’s

opinion testimony about who was depicted on the surveillance video, either as a lay or

expert witness. The state contends that the investigator’s testimony was properly admitted

as providing context for the investigation, akin to that in Ali, Griller, and Czech. We agree

with the state.

       As in Ali, appellant’s defense theory at trial was misidentification. 855 N.W.2d at

249. The investigator’s testimony regarding the surveillance video helped explain to the

jury why the investigation focused so quickly and intently upon appellant and Paquette,

but also why law enforcement continued efforts to conclusively identify these men as J.H.’s

assailants.

       The investigator explained his observations of the video, leading to his “belief” that

the video depicted appellant and Paquette, rather than simply declaring them to be the men

in the video. He stated that the appearance of one of the men in the video was “consistent

with” appellant’s, noting certain physical characteristics.           The investigator also

acknowledged that the video does not clearly show the man’s face.

       Ideally, in order to clarify the nature of the testimony for the jury, the district court

would have limited the investigator’s testimony to his past thoughts upon viewing the

video, provided a limiting jury instruction delineating that the testimony was to give

context to the investigation, and directed that the jury members draw their own conclusions.

See id. at 248. However, the district court did instruct the jury about how to evaluate


                                               7
identification testimony and asked them to do so “carefully.” See 10 Minnesota Practice,

CRIMJIG 3.19 (2015).

       On these facts, we conclude that the district court did not abuse its discretion in

admitting the investigator’s identification of the men in the video as context for the

investigation.

II.    The investigator’s testimony was also admissible as lay opinion under Minn. R.
       Evid. 701.

       Minn. R. Evid. 701 provides:

                        If the witness is not testifying as an expert, the
                 witness’[s] 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’[s] testimony or the
                 determination of a fact in issue.

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.” State v. Post, 512 N.W.2d 99, 101 (Minn. 1994). 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. For example, in

State v. Washington, where a 911-call recording was admitted into evidence, 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).




                                                8
       In arguing that the investigator’s testimony was inadmissible, appellant cites

caselaw under rule 701 of the Federal Rules of Evidence, which is very similar to Minn.

R. Evid. 701. For example, appellant relies on United States v. Farnsworth, 729 F.2d 1158,

1160 (8th Cir. 1984), which held that a lay witness’s opinion concerning the identity of a

person depicted in a surveillance photograph is admissible “where the witness is familiar

with the defendant’s appearance around the time the [] photograph was taken and the

defendant’s appearance has changed prior to trial.” See also United States v. Stormer, 938

F.2d 759, 762 (7th Cir. 1991) (affirming admission of officers’ lay opinion testimony

identifying the defendant from surveillance photographs, due to officers’ familiarity with

the defendant’s appearance, the defendant’s disguise during the crime, and the poor quality

of the photographs).

       Contrary to appellant’s assertions, these cases do not require contact with the

defendant prior to the offense, extensive contact with the defendant prior to the trial, or a

considerable change in appearance between the photograph or video and trial. Here, prior

to his testimony, the investigator had seen photographs of appellant and had personal

contact with him. Appellant had also made some noteworthy changes to his appearance,

as he was wearing glasses at trial and removed his facial hair. Further, the surveillance

video’s quality is not high, and the men appear only briefly on the video.

       It is true that 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).


                                              9
However, the investigator’s testimony was rationally based on his knowledge of

appellant’s appearance at the time of the offense and his perception of the video. The

record supports a conclusion that the investigator had personal knowledge relevant to the

content of the surveillance video and that the testimony was helpful to the jury. See Post,

512 N.W.2d at 101. Consequently, the testimony was also admissible as a lay person’s

opinion under rule 701.

      Because we conclude that the testimony was admissible as either context for the

investigation or lay opinion, we do not reach the question of whether it was admissible as

expert opinion under Minn. R. Evid. 702.1

      Affirmed.




1
  In Ali, the supreme court did not decide whether the testimony was admissible as lay or
expert opinion evidence, noting the rule of “multiple admissibility,” i.e., that even if
evidence is inadmissible under one rule, it may be “admissible if relevant and offered for
some other purpose not forbidden by the rules of evidence.” 855 N.W.2d at 250 n.13
(quotation omitted).

                                            10
