Baker v. State

• Decision Date: 08 September 2022
• Docket Number: S-22-0022
• Citation: 2022 WY 106
• Parties: BRENNAN THOMAS BAKER, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2022 WY 106

BRENNAN THOMAS BAKER, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-22-0022

Supreme Court of Wyoming

September 8, 2022

Appeal from the District Court of Campbell County The Honorable John R. Perry, Judge

Representing Appellant: Office of the State Public Defender Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan Chief Appellate Counsel; H. Michael Bennett, Senior Assistant Appellate Counsel of Corthell and King, P.C., Laramie Wyoming.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames ^[*], Senior Assistant Attorney General; Kristin R. Jones, Senior Assistant Attorney General; Catherine M. Mercer ^[**], Assistant Attorney General.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

FOX CHIEF JUSTICE.

[¶1] Brennan Thomas Baker was convicted of aggravated assault and battery and adjudicated a habitual criminal. On appeal, he challenges the district court's admission of the State's cell phone recording of surveillance footage showing the altercation that led to his conviction. We affirm.

ISSUE

[¶2] Mr. Baker presents one issue on appeal, which we restate as:

Did the district court abuse its discretion when it admitted the State's cell phone recording of surveillance footage that captured the altercation between Mr. Baker and his victim?

FACTS

[¶3] In July 2019, Mr. Baker pled guilty to two counts of burglary in separate dockets for acts committed in Gillette, Wyoming. In February 2020, the district court sentenced him to three to five years in prison for each count, suspended in favor of four years of probation.

[¶4] On October 11, 2020, Mr. Baker attacked Jesse Heppner in the parking lot of a coffee shop in Gillette. He struck him eight to ten times with an object that appeared to be a tire iron or crowbar.^[1] The altercation ended when an employee of the coffee shop stepped outside and yelled at the two men.

[¶5] Officer Austin Baumberger of the Gillette Police Department responded to the scene. By that time, Mr. Baker had left the area, but Officer Baumberger was able to interview Mr. Heppner and photograph his injuries. He also viewed footage of the incident recorded by the shop's surveillance camera. The employee who showed him the footage agreed to make a copy for him.

[¶6] The next day, Detective Eric Small of the Gillette Police Department contacted the shop's manager regarding the copy of the surveillance footage. The manager said her tech people were going to work on the copy, but when he contacted her again, she reported that they were having a difficult time transferring the footage. Detective Small asked for help from Officer Jeremiah Wagner, a computer forensic analyst for the department. Officer Wagner attempted a download but found that the system would not recognize a thumb drive, and he was unable to find a command in the operating system itself that would extract the video to a thumb drive or other digital format. Because these efforts failed, Detective Small used his department-issued cell phone to make a video recording of the surveillance footage. He submitted that recording as evidence.

[¶7] The State charged Mr. Baker with aggravated assault and battery, and later amended the charge to add a habitual criminal enhancement. It also petitioned to revoke Mr. Baker's probation on the two burglary convictions. At Mr. Baker's request, the district court postponed the hearing on the probation revocations until the aggravated assault and battery charge was resolved.

[¶8] Before trial on the aggravated assault and battery charge, Mr. Baker moved in limine to exclude Detective Small's recording of the surveillance footage. He asserted that although the video quality was adequate, the audio was tainted by background noise picked up by Detective Small's cell phone recording. The State responded that Detective Small's video was a true and accurate depiction of what law enforcement observed on the surveillance video and that the possibility of the original footage containing clear and discernible audio was minimal. It further asserted that law enforcement attempted but was unable to obtain the original footage, and the footage was not preserved.^[2]

[¶9] At the hearing on Mr. Baker's motion, Officer Wagner testified to his efforts to download the surveillance footage and the reasons those were unsuccessful. He also testified that nothing prevented him from asking the business to turn over its device and there was a high likelihood that had he done so, he would have eventually been able to extract the original footage. He explained why he opted not to seize the device.

The business was very cooperative with us. Seizing that device would remove their capable - their security capability for a significant amount of time. With a DVR, it's not - is something I would be able to take back and just remove the data within a couple of hours; it would have been a long-term project and they would have been without security for that time period.

[¶10] The district court concluded the evidence was admissible under Wyoming Rule of Evidence 1004 and denied Mr. Baker's motion in limine. The court emphasized that a third party, not law enforcement, captured the original surveillance footage. It found that law enforcement tried to obtain the original, short of confiscating the coffee shop's equipment, and that the State's recording was not incomplete or distorted in a way that would be prejudicial. It concluded the parties could argue the quality of the evidence to the jury, and the jury could decide the weight it should be given. Finally, the court added:

I feel that I'm almost obligated to make the observation that there in no way is any evidence that was presented here today that would lead me to believe that law enforcement proceeded in bad faith; that is just completely unfounded, and I say that not in a criticism for the defense, but rather in an analysis of the testimony here.

[¶11] A jury found Mr. Baker guilty of aggravated assault and battery. The district court entered an order adjudicating him guilty of the offense, with a habitual criminal sentencing enhancement. The court also revoked Mr. Baker's probation for his two burglary convictions. It reinstated Mr. Baker's sentences of three to five years in prison for the burglary charges, to be served concurrently. It sentenced him to thirty to forty-five years in prison on the aggravated assault and battery conviction, with that sentence to run consecutive to the burglary sentences. Mr. Baker timely appealed to this Court.

STANDARD OF REVIEW

[¶12] "We review evidentiary rulings for abuse of discretion." Klingbeil v. State, 2021 WY 89, ¶ 32, 492 P.3d 279, 286 (Wyo. 2021) (quoting Mitchell v. State, 2020 WY 142, ¶ 17, 476 P.3d 224, 231 (Wyo. 2020)). "An abuse of discretion occurs when the deciding court could not have reasonably concluded as it did." Gilbert v. State, 2022 WY 62, ¶ 15, 509 P.3d 928, 932 (Wyo. 2022) (quoting Royball v. State, 2009 WY 79, ¶ 12, 210 P.3d 1073, 1076 (Wyo. 2009)). "A trial court's rulings on the admissibility of evidence are entitled to considerable deference, and, as long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal. The appellant bears the burden of showing an abuse of discretion." Putnam v. State, 2020 WY 133, ¶ 29, 474 P.3d 613, 621-22 (Wyo. 2020) (quoting Swett v. State, 2018 WY 144, ¶ 11, 431 P.3d 1135, 1140 (Wyo. 2018)); see also Klingbeil, 2021 WY 89, ¶ 32, 492 P.3d at 286 ("We will not disturb the trial court's determination of the admissibility of evidence unless the court clearly abused its discretion.") (citing Spence v. State, 2019 WY 51, ¶ 42, 441 P.3d 271, 282 (Wyo. 2019)).

DISCUSSION

[¶13] In their briefing, the parties address the admissibility of the State's recording of the surveillance footage under W.R.E. 1003 (admissibility of duplicates) and W.R.E. 1004 (admissibility of other evidence of contents). Because we find the district court did not abuse its discretion in admitting the evidence under Rule 1004(1), we need not address the parties' contentions concerning Rule 1003 or the other subsections of Rule 1004.

[¶14] W.R.E. 1002 specifies that "[t]o prove the content of a writing, recording, or photograph, the original writing recording, or photograph is required, except as otherwise provided in these rules or by statute." Rules 1003 and 1004 set forth exceptions to the requirement of an original. "Basically, the rule requiring the production of the original as proof of contents has developed as a rule of preference: if failure to produce the original is satisfactorily explained, secondary evidence is admissible." Fed.R.Evid. 1004 (comment); see also 31 Charles A. Wright et al., Fed. Prac. &Proc. Evid. § 8012 (2d ed., April 2022 update) ("Rule 1004(a) establishes that the best-evidence doctrine merely states a preference for the original when it can be obtained but does not treat as intolerably unreliable all evidence that exists outside the preferred category.") (footnote omitted).^[3]

[¶15] The exception with which we are concerned is Rule 1004(1) which provides that "[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if . . . [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith." W.R.E. 1004(1). Before admitting secondary evidence under Rule 1004(1), a court "must inquire: (i) whether the original was actually lost or destroyed; and (ii) whether the party offering the evidence of the original's contents has acted in bad faith." Gardner v. Schumacher, 547 F.Supp.3d 995, 1036 (D.N.M...