State v. Norrington

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

LARRY NORRINGTON, Appellant.

No. 1 CA-CR 19-0171
FILED 3-24-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-147514-001
The Honorable John Christian Rea, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Scott L. Boncoskey
Counsel for Appellant

STATE v. NORRINGTON
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani
joined.

M c M U R D I E, Judge:

¶1 Larry Norrington appeals his convictions and sentences for
one count of taking the identity of another, and one count of theft of a credit
card or obtaining a credit card by fraudulent means. For the following
reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND1

¶2 In the summer of 2017, Norrington worked for a private
security company as a guard and was assigned to provide security-related
services to a residential community in Scottsdale. Norrington worked in a
guardhouse located at the entrance to the community, and his primary job
responsibilities included monitoring individuals entering and exiting the
community and supervising the company’s other employees. Because
Norrington worked the morning shift, he was also required to sort the
residents’ mail, which his supervisor delivered every morning.

¶3 In August 2017, J.T., a resident in the community where
Norrington worked, noticed charges on his bank account that he had not
made and reported the activity to the Scottsdale Police Department. He told
the police that he suspected Norrington of stealing his mail. The police
department referred the complaint to the United States Postal Service,
which had been receiving complaints of lost or stolen mail from the
community for some time. Traci Long, a Postal Inspector with United States
Post Office, was notified of J.T.’s report.

¶4 Long contacted Tracy Real, a fraud investigator working for
J.T.’s bank. After reviewing the bank’s internal records, Real confirmed that

1 We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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a replacement debit card sent by the bank had been successfully activated
on July 17, 2017. The records also showed that two withdrawals using the
card had been attempted, but denied, at a branch of a different bank located
near the residential community on the evening of July 20, 2017. Real
provided Long with the phone number used to activate the card and the
location of the branch where the attempted transactions occurred.

¶5 As she continued to investigate the circumstances
surrounding the theft and misuse of J.T.’s debit card, Long learned that the
phone number used to activate the card was connected to the guardhouse
where Norrington worked. Long also acquired images taken by a video
surveillance system in place at the bank branch where the July 20
transactions occurred. In the surveillance images, an individual wearing a
mask over his face, earrings, and a necklace can be seen approaching and
using the ATM. The man removed the mask while looking to the side and
looking down, revealing some of his facial features in profile. When Long
compared these images with Norrington’s driver’s license photograph,
Long concluded Norrington was the individual in the surveillance images.
She later reaffirmed this identification by observing Norrington while
driving past the guardhouse.

¶6 In October 2017, Long and two other law enforcement officers
contacted, detained, and questioned Norrington. During the interview,
Long showed Norrington the surveillance images. Norrington denied that
he was the individual shown in the images but acknowledged that the
individual looked like him. Norrington also confirmed that he was
responsible for sorting the mail received at the guardhouse when the debit
card was activated. At the end of the interview, Long arrested Norrington.
As part of the booking process, Long removed Norrington’s jewelry—a pair
of earrings and a necklace—and photographed him.

¶7 The State charged Norrington with three counts each of theft
of a credit card or obtaining a credit card by fraudulent means, class 5
felonies, and taking the identity of another, class 4 felonies, for the
attempted withdrawals and other incidents involving the use of J.T.’s debit
card. In July 2018, a four-day trial was held. After the State’s case,
Norrington moved for a judgment of acquittal. After hearing argument
from the parties, the court granted the motion on two of the counts. The
jury deadlocked on the remaining counts, and the court declared a mistrial.
The State elected to retry Norrington and dismissed the counts related to
other incidents, leaving only one count for each offense related to the July
20, 2017, attempted withdrawals.

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¶8 In February 2019, the court conducted a retrial. During the
retrial, the State admitted into evidence the surveillance images,
Norrington’s driver’s license photograph, the jewelry removed from him
during his arrest, and the photograph of Norrington taken after his arrest.
The State also called Long to testify. After discussing her investigation into
the theft and misuse of J.T.’s debit card, the State asked Long who she
believed was the individual shown in the surveillance images. Long
answered that she believed it was Norrington and explained how she
arrived at that conclusion. The State then asked Long again whether she
thought Norrington was the individual in the surveillance images.
Norrington objected, citing a lack of foundation. The court overruled the
objection and permitted Long to identify Norrington as the individual in
each of the surveillance images admitted into evidence by the State. During
the defense’s case, Norrington elected to testify and denied that he was the
individual in the surveillance images.

¶9 The jury found Norrington guilty as charged. At sentencing,
the court suspended the imposition of the sentences and placed Norrington
on concurrent probation terms totaling three years. Norrington appealed,
and we have jurisdiction under Arizona Revised Statutes sections
12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶10 Norrington argues the superior court erred by permitting
Long to offer her lay opinion identifying Norrington in the surveillance
images under Arizona Rule of Evidence (“Rule”) 701, which governs the
admissibility of opinion testimony by lay witnesses. Specifically,
Norrington contends Long’s opinion did not meet the second requirement
of the rule—that the opinion is “helpful to clearly understanding the
witness’s testimony or to determining a fact in issue,” Ariz. R. Crim. P.
701(b). In his view, Long was in no better position than the jury to identify
him in the images.

¶11 “The question of whether a lay witness is qualified to testify
as to any matter of opinion is a preliminary determination within the sound
discretion of the trial court whose decision must be upheld unless shown to
be clearly erroneous or an abuse of discretion.” State v. Fuentes, 247 Ariz.
516, 524, ¶ 28 (App. 2019) (quoting Groener v. Briehl, 135 Ariz. 395, 398 (App.
1983)).

¶12 Rule 701 provides that a lay witness may testify in the form of
an opinion if that opinion is:

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STATE v. NORRINGTON
Decision of the Court

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony
or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.

If the requirements of Rule 701 are met, a lay witness may offer an opinion
concerning the identity of a person in an image or photograph. See State v.
King, 180 Ariz. 268, 280 (1994).

¶13 Whether such lay witness identification testimony is
“helpful” within the meaning of Rule 701 “depends on the totality of the
circumstances,” including:

the witness’s familiarity with the defendant’s appearance at
the time the crime was committed, the witness’s familiarity
with the defendant’s customary manner of dress, insofar as
such information related to the clothing of the person
depicted in the surveillance photograph, whether the
defendant disguised his or her appearance during the offense
or altered his or her appearance before trial, and whether the
witness knew the defendant over time and in a variety of
circumstances, such that the witness’s lay identification
testimony offered to the jury a perspective it could not acquire
in its limited exposure to the defendant.

United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005) (citations omitted)
(quotations omitted); accord United States v. Fulton, 837 F.3d 281, 297 (3d Cir.
2016); United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008); see also
Fed. R. Evid. 701 (mirroring Arizona Rule of Evidence 701); State v.
Winegardner, 243 Ariz. 482, 485, ¶ 8 (2018) (“When an Arizona evidentiary
rule mirrors the corresponding federal rule, we look to federal law for
guidance.”). However, “[t]he absence of any single factor will not render
testimony inadmissible because cross-examination exists to highlight
potential weaknesses in lay opinion testimony.” Beck, 413 F.3d at 1015. In
other words, so long as “there is some basis for concluding that the witness
is more likely to correctly identify the defendant from the photograph than
is the jury,” the testimony is admissible. Contreras, 536 F.3d at 1170 (quoting
United States v. Allen, 787 F.2d 933, 936 (4th Cir. 1986), vacated on other
grounds, 479 U.S. 1077 (1987)); see also United States v. Jackman, 48 F.3d 1, 4–5
(1st Cir. 1995) (opinion testimony identifying defendant in photographs is
admissible when “witness possesses sufficiently relevant familiarity with

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STATE v. NORRINGTON
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the defendant that the jury cannot also possess, and when the photographs
are not either so unmistakably clear or so hopelessly obscure that the
witness is no better-suited than the jury to make the identification”).

¶14 Considering the totality of the circumstances, the superior
court did not abuse its discretion by concluding Long’s encounters with
Norrington provided a basis on which Long was more likely to identify
Norrington in the surveillance images than the jury. Long personally
encountered Norrington twice during her investigation, once while driving
by the guardhouse of the residential community where Norrington worked
and a second time while interviewing him just before his arrest. Although
these interactions were post-offense and for an unknown duration, they
were still much closer in time to the date of the crime than during trial when
the jurors observed Norrington.

¶15 Given these facts, Long’s opinion helped determine a core fact
at issue in this case—the identity of the individual in the surveillance
images. Accordingly, the court did not abuse its discretion by admitting
Long’s identification testimony.

¶16 Even assuming arguendo that Long was in no better position
to accurately identify Norrington than the jury and permitting the
testimony under Rule 701 was error, it was harmless beyond a reasonable
doubt in this case. Long’s identifications were cumulative of other evidence
offered by the State. See State v. Murray, 247 Ariz. 447, 452–53, ¶ 12 (App.
2019) (erroneous introduction of evidence harmless if cumulative of other
evidence). Before her testimony, the State called Norrington’s former
supervisor at the private security company, who testified that he interacted
with Norrington almost every day for several years, including when the
offenses occurred. The supervisor then also identified Norrington in some
of the same surveillance images and explained why he believed the
individual was Norrington. The State also introduced substantial
circumstantial evidence to support the identification testimony, including
evidence that the call activating J.T.’s debit card came from the guardhouse
during Norrington’s shift and Norrington was responsible for handling the
residents’ mail. Finally, Norrington himself even acknowledged that the
person in the images looked like him.

¶17 The alleged error here was also harmless because the jury
could compare the surveillance images with other photographs Long
utilized in her investigation and with its observations of Norrington at trial.
The jury was thus “permitted to reach its own conclusion as to the similarity
or dissimilarity” between the individual shown in the surveillance images

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STATE v. NORRINGTON
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and Norrington. State v. Amaya-Ruiz, 166 Ariz. 152, 168 (1990) (concluding
witness’ opinions of similarity between footprint and defendant’s shoe
were harmless because the jury could compare the print and shoe for
themselves). And although Norrington contends Long’s testimony could
have unduly influenced the jury because she was a law enforcement officer,
the jury was explicitly instructed that they were “to consider the testimony
of a police officer just as [they] would the testimony of any other witness,”
and we presume jurors follow their instructions. State v. Pandeli, 242 Ariz.
175, 189, ¶ 58 (2017).

CONCLUSION

¶18 We affirm Norrington’s convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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