United States v. O'Dowd, 2:20-cr-00332

• Court: United States District Courts. 10th Circuit. United States District Court of Utah
• Writing for the Court: DAPHNE A. OBERG, UNITED STATES MAGISTRATE JUDGE.
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. PATIENCE O'DOWD and GARY MILES, Defendants.
• Docket Number: 2:20-cr-00332
• Decision Date: 25 September 2022

UNITED STATES OF AMERICA, Plaintiff,
v.
PATIENCE O'DOWD and GARY MILES, Defendants.

No. 2:20-cr-00332

United States District Court, D. Utah, Central Division

September 25, 2022

ORDER GRANTING IN PART AND DENYING IN PART MOTION IN LIMINE RE: BODYCAM VIDEO DATED AUGUST 4, 2020 (DOC. NO. 125)

DAPHNE A. OBERG, UNITED STATES MAGISTRATE JUDGE.

Defendant Gary Miles seeks an order prohibiting the United States from introducing a bodycam video at trial. (Mot. in Limine Re: Bodycam Video Dated August 4, 2020 (“Mot”), Doc. No. 125.) Mr. Miles seeks exclusion of the recording in full but, alternatively, seeks exclusion of the audio portion or limiting the evidence to still photographs. (Id. at 1.) The court held a hearing on this motion on September 20, 2022. (Min. Entry, Doc. No. 153.) The motion is granted in part. Where the statements are hearsay, the audio is excluded in full and must be muted if the video is used.

BACKGROUND

The video at issue is a recording of interactions between Ranger Karl Hilderbrand and Defendants Patience O'Dowd and Mr. Miles.^[1] (Mot. 1, Doc. No. 125.) In this video, Mr. Hilderbrand walks around a campsite, making observations about items and vehicles, and converses with Mr. Miles and Ms. O'Dowd. (Id. at 1-2.) Mr. Miles seeks exclusion on two

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grounds:^[2] (1) that the video is inadmissible hearsay, and (2) its probative value is outweighed by the danger of unfair prejudice. (Id. at 3-5.) The United States opposes the motion, except that it concedes the following statements should be muted: where Mr. Hilderbrand tells Mr. Miles “it was too late”; where he says “that's not how it works” to Mr. Miles and Ms. O'Dowd; and where he tells Mr. Miles and Ms. O'Dowd they received the ranger's letter. (United States' Opp'n to Mot. in Limine Re: Bodycam Video Dated August 4, 2020 (“Opp'n”) 3 n.2, Doc. No. 143.)

The remaining statements at issue are Mr. Hilderbrand's statements narrating the inventory of a campsite, statements comparing items at the campsite to those found elsewhere on the range, observations that items have been used for a while, observations that certain items indicated someone was living at the campsite, and statements that some trailers lacked license plates. (Opp'n 2-3, Doc. No. 143.)

LEGAL STANDARDS

Hearsay is a statement that “the declarant does not make while testifying at the current trial” and is offered “to prove the truth of the matter asserted.” Fed.R.Evid. 801(c). Unless otherwise provided by a federal statute or the rules of evidence, hearsay is inadmissible. Fed.R.Evid. 802. Rule 803(1) of the Federal Rules of Evidence provides an exception to the rule against hearsay for present sense impressions-“[a] statement describing an event or condition, made while or immediately after the declarant perceived it.” Fed.R.Evid. 803(1).

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ANALYSIS

Mr. Miles argues Mr. Hilderbrand's statements are inadmissible hearsay statements. (Mot. 3-4, Doc. No. 125.) He also argues the statements regarding the lack of license plates is unfairly prejudicial. (Id. at 4.) The United States opposes Mr. Miles' motion, arguing the defendants cannot dictate how the United States can present its case. (Opp'n 5, Doc. No. 143.) The United States does not assert the statements are offered for any purpose other than the truth of the matter asserted. See Fed. R. Civ. 801(c). However, the United States argues the statements are admissible nevertheless, as present sense impressions. (Opp'n 5, Doc. No. 143.)

Mr. Miles, as the party seeking to exclude evidence, has the initial burden of demonstrating the evidence is inadmissible. See Wheatridge Office, LLC v. Auto-Owners Ins. Co., 578 F.Supp.3d 1187, 1201 (D. Colo. 2022). He has met this burden by establishing the statements are...