State of North Carolina v. Durward Wilson Leggett (COA25-288) is a Wake County case in which Mr. Leggette III was convicted by a jury of second-degree rape. On appeal, he argued that the trial court erred by admitting unauthenticated videos and by placing him on lifetime satellite-based monitoring (SBM). In its decision, the North Carolina Court of Appeals found no error in part and reversed in part. This case presents another appellate decision that can offer trial practitioners valuable insight into presenting and challenging evidence.
Mr. Leggett had been in a long-term relationship with AT. They were married in June of 2014 but met in 2007. In between their meeting and their marriage, the two lived together in an apartment, a townhouse, and a house in Wake Forest, North Carolina. The two knew the passwords to each other’s electronic devises which included Mr. Leggett’s iPad. The events surrounding this case occurring in 2009, and at that time the two were living in the townhouse in Raleigh, North Carolina. During the trial, AT reported her relationship with Mr. Leggett was marked by lots of drinking and passive-aggressive and moody behavior by Mr. Leggett. AT testified that after the two were married, tension between them worsened.
AT testified that at some point she began to feel different in the mornings because of what she had consumed the night before. This feeling occurred about once a month. She also experienced bruising, scars on her legs and nose, red marks around her throat, an injured hip, and an irregular EKG. She discussed these experiences with her mother and a friend and then she decided to “do things differently.” She accidentally ended up taking a screenshot of Mr. Leggett’s iPad when trying to restart it. AT unlocked the iPad in an attempt to delete the screenshot. When she went into the photos, she saw a video in which she was asleep on her couch. In the video, she hears her alarm clock playing her alarm song. She testified hearing herself “waking up, and it sounded really, really bad” like she “was moaning, and it sounded like [she] was in pain.”
She then opened the email app to see if Mr. Leggett had sent the video to anyone. She initially did not see that the video had been sent to anyone. She noticed a tab to another email address of Mr. Leggett’s. The account name of this email address was similar to another email account used by Mr. Leggett. She was able to access this email account and discovered graphic pictures of her in compromising positions. She testified that she had never seen or consented to these pictures. She logged into this email account on her own computer and forwarded “as much as [she] could to [her] email.” She deleted the email that she sent to herself from Mr. Leggett’s sent folder.
She later logged into Mr. Leggett’s email account from her computer and discovered videos depicting sexual acts. She recognized herself in the videos lying on a bed and based on the scenery in the video identified the location as their townhouse in Raleigh. She testified that the hands, penis, and ejaculation in the video were Mr. Leggett’s. She testified that she was unaware that these acts were being recorded, she did not know of their existence, and she did not give consent to the recording of the acts. She also testified that she had never been unfaithful to Mr. Leggett. She testified that the videos had not been altered by her and that she did not know how to alter them. She only forwarded them to herself.
In February of 2016, AT went to the Wake Forest Police Department where she met with a lieutenant. AT brought her laptop with her and pulled up the forwarded emails. Upon the lieutenant’s request, she transferred the emails to a thumb drive. The lieutenant kept the thumb drive, packaged it, and placed it into evidence at the Wake Forest Police Department. The thumb drive was only accessible by an evidence technician or an officer upon making a request and providing a signature. In April of 2017, after unsuccessfully attempting to access the videos on the thumb drive, the lieutenant sent the thumb drive to the Raleigh/Wake City-County Bureau of Identification (CCBI).
Mr. Leggett was ultimately indicted and tried on three counts of second-degree rape and one count of second-degree forcible sex offense. A count of misdemeanor sexual battery was dismissed by the trial court prior to trial. Also prior to trial, Mr. Leggett filed a motion in limine to exclude the videos. The trial court deferred its ruling on Mr. Leggett’s motion. During the trial, an employee with the digital evidence unit of the CCBI provided expert testimony regarding the thumb drive and the videos. The expert testified that the videos were created in June of 2009 but he could not determine the device that was used to record the videos. He further testified to the approximate time that the videos were placed on the thumb drive. However, he later testified that the videos were uploaded on the thumb drive at time that was later than he initially stated. After hearing the testimony from the expert, the trial court denied Mr. Leggett’s motion in limine. In doing to, the trial court found that the videos had been authenticated. Mr. Leggett objected to the trial court’s ruling.
In late September of 2024, Mr. Leggett was convicted of three counts of second-degree rape and found not guilty of second-degree forcible sex offense. Sentencing was continued until early October 2024. Mr. Leggett was sentenced to 44 months minimum to 113 months maximum. At sentencing, the State requested that Mr. Leggett be ordered lifetime SBM. The Static 99R risk form found Mr. Leggett to have a score of 0 which classified him as “Below Average Risk.” Because Mr. Leggett was convicted of an aggravated offense, the trial court ordered Mr. Leggett to enroll in lifetime SBM and to register as a sex offender. These requirements constitute the highest possible level of supervision and monitoring. Mr. Leggett gave oral notice of appeal.
On appeal, Mr. Leggett challenged the authentication of the admitted videos and the trial court’s order imposing lifetime SBM. These issues are important in that they may give us insight into the Court’s view of proper evidentiary foundations in the future and the continued importance of appellate Courts in general.
Mr. Leggett argued that the trial court’s admission of the videos was erroneous because “no evidence was presented regarding the recording process.” The lack of this foundational evidence rendered the videos unauthenticated and their admission deprived Mr. Leggett of a fair trial. Furthermore, Mr. Leggett argued that “no evidence was presented asserting the videos produced at trial were the same produced by the recording process,” “no one testified that the videos accurately depicted what they observed,” and “discrepancies in the State’s theory and trial testi[]mony cast additional doubt on the videos’ authenticity.”
The appellate Court reviewed the issue of the authenticity of the videos de novo and applied Rule of Evidence 901 in its analysis. Photographs and video tapes can be admitted as substantive evidence however a proper foundation must be laid in order for them to be admitted. Rule 901 lists ways in which evidence can be authenticated. The appellate Court relies on State v. Davenport, 297 N.C. App. 605, 611, 910 S.E.2d 750, 754-55 in pointing out “Importantly, the burden to authenticate under Rule 901 is not high—only a prima facie showing is required.”
Mr. Leggett argued that the trial court erred in authenticating the videos because the State presented insufficient evidence regarding the recording device or the recording process that produced the videos. The appellate Court concedes that the State did not produce evidence regarding the production process of the videos, however the Court also noted that presenting such evidence is not the only way to authenticate videos. The Court points out that Rule of Evidence 901(b) provides a list of ways in which authentication can be satisfied. Therefore, authentication is not limited to providing evidence of the production process. Authentication can also be accomplished through the testimony of witnesses with knowledge of the matter, or knowledge of the surrounding circumstances, or knowledge of characteristics of the matter that is being depicted.
During her testimony, AT recognized herself in the video and identified the location depicted in the videos. She was also able to identify the date the videos were made based on the location depicted. This date corresponded to the date estimated by the State’s expert witness. AT was very familiar with Mr. Leggett and recognized parts of his body in the videos. AT also first observed the videos by accessing an email account that belonged to Mr. Leggett. AT testified that she had not altered the videos and had no knowledge of how to alter them. AT’s testimony provided sufficient evidence that the videos were what they were purported to be.
The appellate Court found that the testimony provided by AT was sufficient to support the trial court’s ruling that the videos had been properly authenticated. Mr. Leggett suggested that the videos could have been altered however Court found no evidence in the record that would support this claim.
The appellate Court succinctly addresses the issue raised concerning the trial court’s order for lifetime SBM. Here, Mr. Leggett argued that the “State failed to present sufficient evidence to place [Defendant] on lifetime [SBM], and the order must be reversed without remand.” In reviewing the trial court’s order, the appellate Court applied the standards outlined in State v. Barton, 295 N.C. App. 182, 187, 905 S.E. 2d 230, 234 (2024) and State v. Harding, 258 N.C. App. 306, 321, 813 S.E.2d 254, 265 (2018) where we learn such review is based on ”the trial court’s finding of fact to determine whether they are supported by competent record evidence, and we review the trial court’s conclusions of law for legal accuracy and to ensure that those conclusions reflect a correct application of law to the facts found.”
Whether lifetime SBM should be imposed involves a straightforward application of the relevant statutory provisions. N.C.G.S. §14-208.6(4) and N.C.G.S. §14-208.40A govern how a trial court should properly address this issues. When a defendant is convicted of a reportable conviction, during the sentencing phase, the State shall present any evidence to the trial court that the convicted offense was an aggravated offense. If the trial court finds that the defendant has committed an aggravated offense, then a risk assessment of the defendant is conducted by the Department of Adult Correction (DAC). This assessment is commonly referred to as a Static-99 risk assessment. After receiving the risk assessment, the trial court is to determine if the defendant requires the highest possible level of supervision and monitoring. This determination is to be based on the risk assessment and all relevant evidence. Lifetime SBM is required when the trial court determines that the defendant requires the highest possible level of supervision and monitoring.
When the trial court orders the highest possible level of supervision and monitor, the State must have presented additional evidence to support this determination. This determination cannot be solely based on the defendant’s underlying offense or issues that have been addressed in the Static-99. When the Static-99 does not return a “high risk” score, the trial court must make additional findings to support lifetime SBM. Here, Mr. Leggett concedes that the convicted offense is an aggravated offense. However, the Static-99 reported a “Below Average Risk” of zero. This result required that the State present evidence supporting a higher level of risk and the State did not present such evidence. In State v. Green, 211 N.C. App. 599, 601, 710 S.E. 2d 292, 294 (2011), that Court determined that a risk assessment of “moderate” standing alone was insufficient to support a finding that a defendant requires the highest possible level of supervision and monitoring. Per the DAC risk assessment, Mr. Leggett was determined to be a below average risk and the State did not provide additional evidence to support a higher level of risk. Therefore, the trial court’s decision to place Mr. Leggett on lifetime SBM was reversed by the appellate Court.
Although not completely successful, Mr. Leggett did raise useful and insightful issues on appeal. Authentication of videos appears to have evolved somewhat over time. Although the technical language of the statute has remained unchanged, the way courts view the requirements for laying a proper foundation may be evolving. Referencing Rule of Evidence 901, particularly Rule 901(b) should become standard for practitioners in the future when seeking to admit video, audio, emails, social media posts, text messages, or similar digital materials. The need for forensic experts in this area should grow in importance throughout the coming years. As technology evolves, the capacity to alter digital data will most likely increase possibly making it more difficult to detect when manipulation or alteration of data has occurred. This is where forensic analysis from the criminal defense perspective comes into play. The future should undoubtedly see a need for more experienced and better trained experts in this field. The issue raised by Mr. Leggett concerning the trial court’s order of lifetime SBM is a puzzling one. The statute is unambiguously clear on this matter. It appears that the trial court was either unfamiliar with the governing statute or chose to ignore it completely. Regardless of the reasoning for the trial court’s decision, it is good to see that appellate review accomplished exactly what it was designed to accomplish.
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