Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Cynthia M. Feland, Judge.
The opinion of the court was delivered by: Sandstrom, Justice.
This opinion is subject to petition for rehearing. [Go to Documents]
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Opinion of the Court by Sandstrom, Justice.
[¶1] Steven Schmidt appeals from a criminal judgment after a jury found him guilty of theft of property. We affirm, concluding the district court did not err in denying Schmidt's motion to suppress evidence and his proposed jury instruction, and the court did not abuse its discretion in denying his pre-trial motion.
[¶2] On November 1, 2010, after speaking with her financial institution, Capitol Credit Union, and noting suspicious withdrawals from her savings account, Heidi Blum notified the Mandan Police Department about two unauthorized uses of her automated teller machine ("ATM") card. Blum claimed someone used her ATM card on October 31, 2010, at two separate locations in Mandan--Central Market and Dakota Express, a grocery store and a gas station and convenience store, respectively--to withdraw $165 from her bank account without her consent. During her conversation with Capitol Credit Union, Blum learned that Capitol Credit Union had mailed a new ATM card to her address and that it had separately mailed to the same address a corresponding personal identification number. Blum, however, had moved and no longer lived at that address. As part of the investigation, a Mandan police officer learned Schmidt and his girlfriend resided at the address where Capitol Credit Union had mailed Blum's new ATM card and corresponding personal identification number.
[¶3] The police officer also investigated the two locations of the alleged unauthorized uses of Blum's ATM card. The police officer learned Central Market did not have video surveillance showing its ATM. The officer asked David Mees, the owner of Dakota Express, for a copy of in-store surveillance video showing the ATM at the time of one of the suspicious withdrawals. According to the police officer, Mees informed her the video showed a white male, approximately fifty years old, walk into the store, walk to the area of the ATM, and walk out of the store while putting something into his wallet. Mees also informed the police officer he printed a still photo of the man and left it at the gas station for her to pick up. The police officer picked up the photo, but never received the video from Mees before the video surveillance system recorded over the original video.
[¶4] The police officer arrested Schmidt after questioning him and his girlfriend about receiving mail not addressed to them at their residence, and after obtaining the still photo from Mees, which showed Schmidt leaving Dakota Express at approximately the same time a suspicious withdrawal was made using Blum's ATM card. The State charged Schmidt with theft of property. Before trial, Schmidt moved to suppress the still photo obtained from the Dakota Express surveillance video and any testimony based upon the photo or the video, arguing the State failed to collect and preserve material, exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The district court denied Schmidt's motion. Schmidt also moved to limit trial testimony of the still photo only to the testimony personally recalled by Mees or ascertainable from the photo and to exclude any testimony about the surveillance video. The court denied Schmidt's motion as well as his proposed jury instruction requiring an adverse inference about the absence of the video recording at trial. A jury found Schmidt guilty of theft of property.
[¶5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Schmidt timely appealed from the criminal judgment under N.D.R.App.P. 4(b). We have jurisdiction under N.D. Const. ...