State v. McNear
2011 Mo. App. LEXIS 878
| Mo. Ct. App. | 2011Background
- McNear was convicted of assault and armed criminal action in Missouri.
- State introduced a surveillance video (State's Exhibit 23) of the incident during the victim's direct examination.
- Victim testified he reviewed the video and it fairly and accurately reflected relevant events.
- Defense objected to foundation; objections were overruled; no contemporaneous objection to subsequent testimony by store owner.
- On appeal, McNear challenged the video; the court addressed preservation and plain-error review, ultimately affirming admission.
- Court held the video was properly admitted based on the victim's testimony, with store owner corroboration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the video was properly admitted without full foundation. | McNear argues lack of proper foundation for the video. | McNear contends the witness lacked knowledge of recording equipment and process. | No error; foundation adequate for admissibility. |
| Whether any preserved objection required reversal under preservation rules. | State argues no preserved error despite belated objections. | McNear asserts objections were not preserved for review. | Plain-error review applicable; no reversible error found. |
| Whether principles for admitting photographs apply to videos. | Video admissible if accurately represents what it purports to show, via a competent witness. | Foundation concerns extend to videos as with photographs. | Videos may be admitted based on witness familiar with subject; foundation satisfied. |
Key Cases Cited
- State v. Minner, 256 S.W.3d 92 (Mo. banc 2008) (photos and videos foundation principle applicable)
- State v. Powers, 148 S.W.3d 830 (Mo. App. 2004) (admission based on familiar competency)
- Phiropoulos v. Bi-State Dev. Agency, 908 S.W.2d 712 (Mo. App. 1995) (photographs foundation standards apply to related media)
- State v. Daly, 798 S.W.2d 725 (Mo. App. 1990) (no objection doctrine and review impact)
- State v. Zelinger, 873 S.W.2d 656 (Mo. App. 1994) (affirmative waiver of appellate review when no objection)