State v. Haight-Gyuro

• Decision Date: 18 June 2008
• Docket Number: No. 2 CA-CR 2007-0218.,2 CA-CR 2007-0218.
• Citation: 218 Ariz. 356,186 P.3d 33
• Parties: The STATE of Arizona, Appellee, v. Timothy Christopher HAIGHT-GYURO, Appellant.
• Court: Arizona Court of Appeals

186 P.3d 33

218 Ariz. 356

The STATE of Arizona, Appellee, v. Timothy Christopher HAIGHT-GYURO, Appellant.

No. 2 CA-CR 2007-0218.

Court of Appeals of Arizona, Division 2, Department A.

June 18, 2008.

Terry Goddard, Arizona Attorney General By Randall M. Howe and Jonathan Bass, Tucson, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Stephan J. McCaffery, Tucson, Attorneys for Appellant.

OPINION

BRAMMER, Judge.

¶ 1 Appellant Timothy Haight-Gyuro appeals his convictions for theft by control and/or by misrepresentation, theft of a credit card, forgery, and theft by controlling stolen property. He argues the trial court abused its discretion by admitting into evidence a copy of a videotape recorded by a retail store's surveillance cameras. Finding no error, we affirm.

Factual and Procedural Background

¶ 2 On appeal, we view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the jury's verdicts. State v. Cropper, 205 Ariz. 181, ¶ 2, 68 P.3d 407, 408 (2003). On May 23, 2006, Haight-Gyuro used a stolen credit card to purchase various items at a retail store. A store surveillance camera recorded him purchasing merchandise at a cash register and signing the credit card slip.

¶ 3 The following day, Oro Valley Police Department Detective Doug Hamblin received information that Tucson Police Department officers had found items taken in the same burglary in which the credit card had been stolen. After arriving at the location where the property had been found, Hamblin spoke with Haight-Gyuro's wife, S., who showed him property "piled up outside" a car S.'s mother had rented for S. and Haight-Gyuro to use. The property included items taken during the burglary and items purchased from the retail store with the stolen credit card. Haight-Gyuro's wallet and identification were found in the car. Haight-Gyuro was arrested that day and charged with theft by control, trafficking in stolen property, forgery, theft of a credit card, and theft by control and/or misrepresentation. The trafficking count was subsequently dismissed.

¶ 4 Before trial, Haight-Gyuro moved to suppress a copy of the surveillance videotape, arguing admission of the video recording into evidence violated Rules 704 and 403, Ariz. R. Evid., because a computer cursor appeared on the copy that pointed to a specific individual "alleged to be" Haight-Gyuro in the video recording. The trial court denied the motion. During the suppression hearing, however, Haight-Gyuro additionally had argued the state would be unable to provide a proper foundation for the video recording because the retail store's loss-prevention investigator, B., had not recalled placing the computer cursor on the copy or giving the recording to Hamblin.¹ The court sua sponte raised the additional question whether the state could demonstrate the video recording "accurately reflects the situation at the time it's purported to reflect." After argument, the court took the matter under advisement.

¶ 5 On the first day of trial,² the court granted Haight-Gyuro's motion in limine requesting that the state initially establish foundation for the video recording outside the jury's presence. B. then testified, and the court again took the motion under advisement. After further argument, the court ruled that the state had provided "sufficient foundation [for the video recording]" and that it would "allow the recording in." The court admitted it into evidence, over Haight-Gyuro's objection, after B. testified in the jury's presence on the second day of trial.

¶ 6 After a three-day trial, the jury convicted Haight-Gyuro of the remaining counts. The trial court sentenced Haight-Gyuro to concurrent, presumptive prison terms, the longest of which was 6.5 years. This appeal followed.

Discussion

¶ 7 We review the trial court's ruling on the admissibility of evidence for a clear abuse of discretion. State v. King, 213 Ariz. 632, ¶ 7, 146 P.3d 1274, 1277 (App.2006). Haight-Gyuro asserts the state "failed to present the trial court with testimony that the video recordings were accurate depictions of the events recorded," relying on Lohmeier v. Hammer, 214 Ariz. 57, 148 P.3d 101 (App.2006), and State v. Paul, 146 Ariz. 86, 703 P.2d 1235 (App.1985). Paul states that "the requirements for admission of a videorecording should be the same as for a photo, that it fairly and accurately depicts that which it purports to show." 146 Ariz. at 88, 703 P.2d at 1237. In Lohmeier, Division One of this court stated, "To be admissible, a photograph must be a reasonably faithful representation of the object depicted and aid the jury in understanding the testimony or evaluating the issues." 214 Ariz. 57, ¶ 8, 148 P.3d at 105. And, although "the individual who took the photographs need not be the person who verifies them at trial, and the verifying witness is not required to have been present when the photographs were taken," the verifying witness must "attest that the photographs accurately portray the scene or object depicted." Id.

¶ 8 It is undisputed that the procedure described in Lohmeier was not used here. There was no testimony by a witness who saw the recorded transaction occur and, therefore, no witness who could testify from firsthand knowledge that the video recording accurately portrayed that event. The state contends, however, that the recording was properly authenticated pursuant to Rule 901(b)(9), Ariz. R. Evid. Rule 901(a) states that, "as a condition precedent to admissibility," evidence must be authenticated or identified by evidence "sufficient to support a finding that the matter in question is what its proponent claims." Rule 901(b) describes several methods by which this requirement may be met, and subsection (b)(9) states that authentication may be accomplished by presenting "[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result." For evidence to be properly authenticated, the trial court "must be satisfied that the record contains sufficient evidence to support a jury finding that the offered evidence is what its proponent claims it to be. The [court] does not determine whether the evidence is authentic, but only whether evidence exists from which the jury could reasonably conclude that it is authentic." State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991).

¶ 9 We first address Haight-Gyuro's argument that, even if the video recording were properly authenticated under Rule 901(b)(9), there must be an additional showing the recording is accurate, on the theory that "authentication ... differs from accuracy." Haight-Gyuro misapprehends both Rule 901 and Lohmeier. Although Lohmeier does not explicitly discuss Rule 901, its discussion of the admissibility of photographic evidence does nothing more than explain the authentication method described in Rule 901(b)(1), which allows authentication by "[t]estimony that a matter is what it is claimed to be." For photographic or video evidence, the authenticating evidence frequently takes the form of witness testimony that the photograph or video accurately portrays whatever it purportedly depicts. That is, authentication is achieved by evidence establishing the photograph or video is what its proponent claims—an accurate depiction of a particular person, place, object, or event.

¶ 10 Thus, in these circumstances, accuracy is more appropriately regarded as a component of authentication. See, e.g., United States v. Rembert, 863 F.2d 1023, 1026 (D.C.Cir.1988) (authentication under Rule 901(b)(1), Fed.R.Evid., requires testimony by person "who has personal knowledge of the scene depicted" that "photograph fairly and accurately portrays that scene"); Guam v. Ojeda, 758 F.2d 403, 408 (9th Cir.1985) (citing Rule 901(b)(1), Fed.R.Evid., for proposition that "witness identifying the item in a photograph need only establish that the photograph is an accurate portrayal of the item in question").³ As we will explain, if a party seeks to admit into evidence a video recording it asserts is an accurate recording of a particular event, to authenticate that video recording under Rule 901(a), it must provide some evidence from which a jury could conclude the recording in fact accurately depicts that event.

¶ 11 We now turn to the state's argument the video recording was properly authenticated under Rule 901(b)(9). The authentication of evidence under that rule is also known as the "silent witness" theory of authentication.⁴ See 2 John W. Strong et al., McCormick on Evidence, § 214, at 15 (5th ed.1999). Under this theory, "photographic evidence may draw its verification, not from any witness who has actually viewed the scene portrayed on film, but from other evidence which supports the reliability of the photographic product." Id. at 15-16. Although Arizona has not explicitly adopted this method of authentication, it is accepted, in one form or another, "in virtually all jurisdictions." Id. at 16.

¶ 12 Jurisdictions differ, however, in how they have articulated authentication requirements under the silent witness theory. For example, Alabama has adopted a seven-part standard for authentication that includes: (1) showing that the system used "was capable of recording what a witness would have seen or heard had a witness been present at the scene or event recorded"; (2) showing that the operator was competent; (3) "establish[ing] ... the authenticity and correctness of the resulting recording"; (4) showing no alterations had been made; (5) showing the manner by which the "recording ... was preserved"; (6) "identif[ying] ... the speakers, or persons pictured"; and (7) in criminal cases, showing any statements made were voluntary. Ex Parte Fuller, 620 So.2d 675, 678 (Ala.1993); see also Calhoun v. State, 932 So.2d 923, 954 (Ala.Crim.App.2005). The Florida Court of Appeals similarly affirmed a trial court's decision to admit...