State v. Sassarini
| Decision Date | 16 October 2019 |
| Docket Number | A162811 |
| Citation | 300 Or.App. 106,452 P.3d 457 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Kelly Suzette SASSARINI, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Jesse Wm. Barton, Salem, argued the cause and filed the briefs for appellant.
Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
Defendant appeals a judgment of conviction for harassment that arose out of a confrontation with a neighbor who was recording some of the incident with a video camera. The neighbor provided police with a DVD that included what he represented to be digital recordings from the confrontation. The issues on appeal involve the digital copies on the DVD, which was eventually admitted at trial and played for the jury. Defendant argues that the trial court committed two errors: first, denying her motion for a continuance to allow her forensic expert to examine the camera and its memory card, to compare the metadata of the files on the memory card with those on the DVD; and, second, admitting the digital recordings on the DVD over her objection that the state had failed to demonstrate their authenticity. For the reasons explained below, we hold that, under the circumstances, the trial court did not abuse its discretion in denying the motion for a continuance, and that the state presented evidence sufficient to support a finding that the DVD included authentic copies of the camera’s digital recordings. We therefore affirm.
We begin with a summary of the historical context in which the charges and the procedural and evidentiary questions arose. Defendant and Walker were neighbors in a rural area. Their relationship soured over several months, first because of disputes about dogs running loose on defendant’s property, and then about defendant’s effort to construct a fence, which Walker believed was violating deed restrictions and being built on land that was not defendant’s.
Those disputes culminated in a physical altercation between the two on the morning of June 10, 2014, over the dismantling of an old gate at the site where the new fencing was being built. Deputy McAllister responded to a disturbance call and found Walker at home. Walker was bleeding from his lower right leg, and he reported that defendant had come from behind him, kicked him in the leg, and knocked him to the ground; while he was on the ground, defendant grabbed his hair and shoved his face into the dirt. He further reported that, after the assault, defendant’s partner, Johnson, had reached inside Walker’s car, removed the keys from the ignition, and thrown them into the brush, which required Walker to crawl through the brush back to his home. Walker told McAllister that he had a video camera with him during the incident, but McAllister did not seize the camera at that time.
McAllister got a different story from defendant. Defendant told him that Walker was yelling in her face, that she felt threatened, and that she grabbed Walker by the hair and "laid" him down to the ground. She denied causing any injuries and surmised that he injured his leg while returning home. Defendant said that Johnson had taken Walker’s keys and thrown them out of fear that Walker would use the car as a weapon.
The next day, Walker told McAllister that he had camera recordings of the assault to show him. McAllister returned to Walker’s home, and Walker played three digital files on his home computer (through another machine, which we will discuss later). The first file was a 34-second video that shows Walker approaching a closed gate on a road, and defendant to the right of her truck with a gun. The second file was a video less than a second long, which shows little of anything. The third file was a video that shows only color bars and 20 seconds of audio.
After playing the files for McAllister, Walker provided him with a DVD that purportedly contained digital copies that Walker had made of those files. That DVD was defective, however, and the video was distorted when police attempted to play it. Four days later, Walker provided McAllister with a second DVD, again purportedly copies of the same three files that Walker had played for McAllister. McAllister booked that DVD into evidence.
Defendant was eventually charged with fourth-degree assault and harassment. During discovery, the state provided defendant with a copy of the digital files on the DVD that McAllister booked. On July 10, 2016, four days before the scheduled trial date, defendant filed a motion in limine to exclude the recordings on the DVD, "on the grounds that the state cannot prove an adequate foundation to establish the chain of custody, and on the further grounds that the state cannot adequately authenticate the recordings as required by OEC 901." In a memorandum in support of her motion, defendant explained that five days passed between the incident and when Walker provided the DVD, that there were three files rather than the single video of the incident that one would expect, and that the state could not establish a chain of custody for the videos. Defendant also explained that she had sent the files to an expert in analyzing the authenticity of audio and video files, Edward Primeau, who "concluded that the three files are not authentic, original digital video recordings." Defendant attached Primeau’s report, which stated, "Because no information was given about the device or the handling of the evidence, I cannot determine the authenticity of the chain of custody."
The motion in limine was heard on the day scheduled for trial. To establish the chain of custody, the state called Walker as its first witness and elicited testimony identifying the Sony XD Cam he used to record the videos. The state then sought to admit the camera as an exhibit, but defendant objected on the ground that only the DVD—and not the camera itself—had been produced by the state during discovery:
The trial court overruled the objection and admitted the exhibit for the purposes of the hearing. Nonetheless, the prosecutor at that point interjected,
The prosecutor then handed Walker the DVD that McAllister had booked into evidence, which was marked as Exhibit 1. Walker testified that he had viewed the contents of that DVD and that it was "an accurate representation of what happened" on the day of the altercation, both "visually" and "audibly." When the state then offered Exhibit 1, defendant asked that it first be played in court so that she could decide whether to object to it being received.
After Exhibit 1 was played in court, defendant voiced a concern that it was not the same as the DVD she had received during discovery. She explained that, whereas all three videos on Exhibit 1 played continuously, the videos on her copy did not. The court then asked the prosecutor about the creation of the copy provided to defendant, and he explained that the sheriff’s office had combined the videos from Walker and a separate video from the deputy’s in-car camera onto a single DVD to provide to defendant. At that point, the trial court surmised that some of the authenticity issues identified in Primeau’s report could be attributed to the process used by the sheriff’s office to copy the files, and that those concerns could be put to rest by comparing the three versions of the videos: the state’s DVD (Exhibit 1), defendant’s DVD, and the version on the memory card of the camera.
After defendant again pointed out that her expert had not had an opportunity to review "whatever the sheriff’s department received before they put it through their software," the court stated:
(Emphasis added.)
Defendant reiterated that her expert had not had a chance to examine the "metadata underneath" the files and that she was only learning now, "at this late date that there was actually *** a file that was created in there [the camera] that was somehow transferred to another DVD that was transferred several times." The court again dismissed that concern based on the fact that defendant should have been aware of the existence of an original recording device but never pursued the discovery issue:
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