State v. Stuebe

• Decision Date: 30 June 2020
• Docket Number: No. 1 CA-CR 19-0032,1 CA-CR 19-0032
• Citation: 467 P.3d 252,249 Ariz. 127
• Parties: STATE of Arizona, Appellee, v. Jerry L. STUEBE, Appellant.
• Court: Arizona Court of Appeals

249 Ariz. 127

467 P.3d 252

STATE of Arizona, Appellee,

v.Jerry L. STUEBE, Appellant.

No. 1 CA-CR 19-0032

Court of Appeals of Arizona, Division 1.

FILED June 30, 2020

Arizona Attorney General's Office, Phoenix, By Casey D. Ball, Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix, By Jennifer Roach, Counsel for Appellant

Judge James B. Morse Jr. delivered the opinion of the Court, in which Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined.

MORSE, Judge:

¶1 Jerry L. Stuebe appeals his convictions and sentences for burglary in the third degree and possession of burglary tools. In this opinion, we hold that an automated email and a "machine-produced" video recording attached to the email are not hearsay because they were not made by a "person." For the reasons that follow, and the reasons stated in a separately filed memorandum decision, we affirm Stuebe's convictions and sentences but vacate the portion of the superior court's sentencing order requiring Stuebe to pay the costs of deoxyribonucleic acid ("DNA") testing and the assessment fees imposed on count two.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the jury verdicts and resolve all reasonable inferences against Stuebe. State v. Payne , 233 Ariz. 484, 509, ¶ 93, 314 P.3d 1239, 1264 (2013). Before dawn one morning in February 2018, law enforcement responded to a 911 call from a security company concerning a silent alarm at a mostly vacant commercial property called Zanjero Falls West. Upon arrival, a law enforcement officer saw two individuals running toward an SUV. The officer stopped the vehicle as someone started to drive it away. Stuebe was a passenger in the SUV. Afterwards, officers retraced the SUV's path and discovered two large bags containing copper wire. The officers also found a two-way radio, bolt cutters, a hacksaw, a flashlight, and other burglary tools. Triggered by a motion detector, a security camera at the property recorded the burglary.

¶3 The State charged Stuebe with burglary in the third degree, a class 4 felony, and possession of burglary tools, a class 6 felony. Following an eight-day trial, a jury convicted Stuebe as charged. The superior court sentenced Stuebe as a repetitive offender to concurrent terms of 10 years in prison for burglary in the third degree and 3.75 years for possession of burglary tools. Stuebe timely filed a notice of appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶4 Stuebe argues that the superior court erred by admitting in evidence an email¹ and attached video, generated and sent by the surveillance system. Stuebe contends that the email and video were inadmissible hearsay and introducing that evidence violated the Confrontation Clause of the Sixth Amendment. We generally review the superior court's evidentiary rulings for abuse of discretion. State v. Ellison , 213 Ariz. 116, 129, ¶ 42, 140 P.3d 899, 912 (2006). "Evidentiary rulings that implicate the Confrontation Clause, however, are reviewed de novo ." Id.

¶5 Before trial, Stuebe moved to preclude testimony concerning ownership and security monitoring of the property. The State opposed the motion, arguing that the property manager had "personal knowledge" of the disputed evidence and his anticipated testimony would not involve hearsay. The superior court denied the motion, ruling that the testimony was not hearsay under Arizona Rules of Evidence ("Rules") 801(d)(2)(D). The email and video were not specifically discussed in the motion or during oral argument on the motion.

¶6 At trial, the Zanjero Falls West property manager testified that he received an automated, computer-generated, email from the security company after a motion-sensor security camera was activated. A video file was attached to the email and the email specified the date and time that the video was recorded. The property manager relied solely upon the email in identifying the date and time of the video. Over Stuebe's hearsay objection, the superior court admitted the email and the video in evidence.

¶7 As the State concedes, the superior court incorrectly applied Rule 801(d)(2)(D). That rule addresses statements made by an opposing party's agent or employee and offered against the opposing party. Because the property manager was not Stuebe's agent or employee, the manager's statements do not fall with within Rule 801(d)(2)(D). See Shuck v. Texaco Refining & Marketing Inc. , 178 Ariz. 295, 298, 872 P.2d 1247, 1250 (App. 1994) (describing requirements of Rule 801(d)(2)(D) ). Additionally, the property manager testified as a representative of the business victim, and a victim is not a party to criminal proceedings in Arizona. Lynn v. Reinstein , 205 Ariz. 186, 191, ¶ 15, 68 P.3d 412, 417 (2003). The disputed evidence, therefore, was not admissible under Rule 801(d)(2)(D).

¶8 We may, however, affirm the superior court's ruling if it is legally correct for any reason based upon the record before us. State v. Perez , 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984). In doing so, we first determine whether the contested evidence—the automatically generated email and attached video—constitutes hearsay. We must also determine whether admission of the evidence violates the Confrontation Clause. As noted by the State, these precise issues have not been directly resolved by Arizona's courts. See State v. Gomez , 226 Ariz. 165, 167, ¶ 12, 244 P.3d 1163, 1165 (2010) (assuming, without deciding, that machine-generated DNA profiles were hearsay statements).

A. Hearsay.

¶9 In general, hearsay evidence is inadmissible unless an exception applies. Ariz. R. Evid. 801, 802. Hearsay is "a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Ariz. R. Evid. 801(c). A "statement" is "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." Ariz. R. Evid. 801(a). A "declarant" is "the person who made the statement." Ariz. R. Evid. 801(b).

¶10 Because the rule against hearsay applies to "a person's" statements and "the person who made the statement," Ariz. R. Evid. 801(a) and (b), we must determine whether a machine that generates information may qualify as a "person" under the Rules. The Rules do not define "person." See Ariz. R. Evid. 101. Therefore, we may interpret the word according to its common definition.

A.R.S. § 1-213 (2002) ("Words and phrases shall be construed according to the common and approved use of the language."); State v. Wise , 137 Ariz. 468, 470 n.3, 671 P.2d 909, 911 n.3 (1983) (stating that unless the legislature expressly defines a statutory term, courts give the word its plain and ordinary meaning, which may be taken from the dictionary). "In interpreting rules, we apply the same principles we use in interpreting statutes." State v. Harden, 228 Ariz. 131, 132, ¶ 6, 263 P.3d 680, 681 (App. 2011) (quoting State v. Petty , 225 Ariz. 369, 372, ¶ 7, 238 P.3d 637, 640 (App. 2010) ); see also Sheridan v. Superior Court , 91 Ariz. 211, 214 n.7, 370 P.2d 949 (1962) (citing statutory definition section when interpreting rules of criminal procedure). Our aim is to "determine and give effect to our supreme court's intent in promulgating the rule ... keeping in mind that the best reflection of that intent is the plain language of the rule." Id. (citing Osterkamp v. Browning , 226 Ariz. 485, 489, ¶ 14, 250 P.3d 551, 555 (App. 2011) ).

¶11 Arizona's "Dictionary Act" defines "person" as "a corporation, company, partnership, firm, association or society, as well as a natural person." A.R.S. § 1-215(28) ; see also Person , Black's Law Dictionary (11th ed. 2019) (defining "person" as "a human being"). Similarly, the Arizona Criminal Code defines "person" to include "a human being," and, "as the context requires," associations, societies, business formations, and government entities. A.R.S. § 13-105(30). Neither statute supports the proposition that a machine can legally be considered a "person." Additionally, because "Arizona's evidentiary rules were modeled on the federal rules[,]" we may consider federal precedent to interpret them. State v. Winegardner , 243 Ariz. 482, 485, ¶ 8, 413 P.3d 683, 686 (2018). The federal circuit courts have repeatedly held that a "person" referenced in the rules of evidence does not include a "machine" or "machine-produced" content. See United States v. Lizarraga-Tirado , 789 F.3d 1107, 1110 (9th Cir. 2015) ("[W]e join other circuits that have held that machine statements aren't hearsay.") (collecting federal circuit court cases); United States v. Washington , 498 F.3d 225, 231 (4th Cir. 2007) (holding that for hearsay purposes "raw data generated by the machines were not the statements of technicians" who operated the machines); United States v. Khorozian , 333 F.3d 498, 506 (3d Cir. 2003) (holding that neither header nor date and time information automatically generated by a facsimile machine was hearsay because they were not statements made by a person).

¶12 Applied to the facts here, the motion-activated security camera automatically recorded the video after a sensor was triggered. The automated security system then produced an email and immediately sent it to the property manager. No "person" was involved in the creation or dissemination of either. The email only contained the date, time, client ID, serial number, camera location code, and language that read "Automated message – please do not reply to this address." Because the email and video were "machine produced," they were not made by a "person" and are not hearsay.

¶13 Machine-produced statements may present other evidentiary concerns. See Washington , 498 F.3d at 231 (noting that concerns about machine-generated statements should be "addressed through the process of authentication...