262
Submitted October 15, 2019, affirmed May 13, petition for review denied
October 1, 2020 (367 Or 115)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAMES EARL SPENCER,
Defendant-Appellant.
Multnomah County Circuit Court
17CR84441, 17CR08972;
A167273 (Control), A167274
467 P3d 73
Defendant appeals a judgment of conviction for second degree theft, ORS
164.045, and a judgment revoking his probation as a result of that conviction in
a separate case. He argues that the trial court erred by admitting surveillance
footage of the theft without requiring the state to satisfy the traditional seven-part test for authenticating recording evidence. Held: The trial court did not err
in admitting the surveillance footage. Under State v. Sassarini, 300 Or App 106,
452 P3d 457 (2019), the state was not required to satisfy each of the seven traditional requirements to authenticate a recording. Instead, those requirements
serve as factors to aid in assessing whether a proponent has made out a prima
facie case of authenticity. Here, although the state did not present evidence on
every factor, the state still presented sufficient evidence to establish a prima facie
case that the surveillance video was authentic.
Affirmed.
Jerry B. Hodson, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and Mooney, Judge, and
Kamins, Judge.
KAMINS, J.
Affirmed.
Cite as 304 Or App 262 (2020) 263
KAMINS, J.
Defendant appeals from a judgment of conviction
for theft in the second degree, ORS 164.045, and a judgment
revoking his probation as a result of that conviction in a
separate case. He assigns error to the trial court’s rulings
admitting security camera footage that depicted him stealing car batteries from a freight hauling facility. Defendant
argues that the state did not present sufficient evidence to
authenticate the video recording in accordance with OEC
901(1). Because we conclude that the state presented sufficient evidence to satisfy the requirements of OEC 901(1), we
affirm both judgments.
We review a trial court’s OEC 901 ruling to determine whether there was sufficient evidence to support sending the issue of authenticity to the finder of fact. State v.
Park, 140 Or App 507, 511,
916 P2d 334, rev den,
323 Or 690
(1996). Thus, we summarize the testimony and other evidence presented to the trial court to establish the security
footage’s authenticity.
Defendant was charged with one count of seconddegree theft for his role in stealing several car batteries
from trucks parked outside a facility operated by Soniq
Transportation, a freight hauling company operating in
Portland. Before trial, defendant moved to exclude security
camera footage that depicted him and another man taking batteries from the trucks and loading them into a van.
Defendant argued that the state was unable to authenticate
the security footage as required by OEC 901(1) because it
had been edited to include only the relevant portions, and
the state did not offer a witness who had personally observed
the events to verify the video’s accuracy. Without such a witness, defendant argued that the state must satisfy the traditional requirements for authenticating a recording, and it
failed to do so. See State v. Miller, 6 Or App 366, 369-70,
487
P2d 1387 (1971) (applying “strict foundation requirements”
in the form of a seven-part test to admit an audio recording).
The trial court denied defendant’s motion, reasoning that the state would be able to lay a sufficient foundation at trial and the issues defendant raised went more to
the weight of the evidence than its admissibility. At trial,
264 State v. Spencer
defendant again objected to the introduction of the footage,
but the trial court overruled his objection. The jury found
defendant guilty, and, in a separate case, the court revoked
his probation.
On appeal, defendant challenges his conviction and
probation revocation. He renews his argument that the state
must satisfy each of the traditional requirements to authenticate the security camera recording. In response, the state
contends that OEC 901 superseded those requirements in
favor of a more flexible approach.
Our recent decision in State v. Sassarini, 300 Or
App 106,
452 P3d 457 (2019), resolves that debate. In evaluating whether a proponent has offered sufficient evidence
to authenticate a video, the legislature intended for courts
to consider the traditional requirements for authenticating
a recording, but not to require proponents to rigidly satisfy each one.
Id. at 126 (citing Miller,
6 Or App at 369-70).
Rather, the factors serve as “apt considerations” in assessing whether a proponent has made out a prima facie case
of authenticity.
Id. Sassarini clarified that the approach to
establishing authenticity under OEC 901 is flexible.
Id. The
requirements depend on the circumstances presented in any
given case and the nature of the evidence that is offered.
Id.
Against that backdrop, we conclude that the state
presented sufficient evidence to support a finding that the
security footage was authentic. The factors to consider in
assessing the authenticity of a recording include that (1) the
recording device was capable of taking testimony; (2) the
operator of the device was competent; (3) the recording is
accurate; (4) the recording has not been materially changed,
added to, or deleted from; (5) the recording was adequately
preserved; (6) the actors or speakers can be identified; and
(7) the testimony elicited was voluntarily made without any
kind of inducement. Miller, 6 Or App at 369-70. Crediting
the testimony of the state’s witnesses, the jury could have
found that the state satisfied most of those factors.1
1
Because the camera did not record any audio, we need not address factor (7)—whether the state offered evidence that the statements on the recording
were made voluntarily and without inducement.
Cite as 304 Or App 262 (2020) 265
First, the state submitted evidence sufficient to
show that Soniq’s camera was capable of producing a reliable recording. Soniq’s operations manager, Westberry, testified that the camera was working on the day of the theft
and recorded the footage at issue in response to the men
activating its motion sensor.
Westberry’s testimony also satisfied the second factor by providing evidence from which the jury could infer
that the operator of the device was competent. Although
Soniq’s camera did not have a human “operator” in the traditional sense, the camera’s automated, motion-activated
system played an analogous role. Westberry’s testimony
that the camera was working and recorded security footage
in response to motion, as it was designed to, supported an
inference that the automated system was functioning properly and operating the camera competently.
The state’s next witness, Portland Police Officer
Feist, provided evidence to support the third factor, that
the recording was accurate. Feist testified that, when viewing the security footage, he was able to identify the license
plate on the van that the men were loading the car batteries into. Using that information, he located a van bearing
that license plate at a nearby motel. He noted that, in addition to the license plate, the van had the same body type
as the van in the security footage. A search of the vehicle
revealed a number of car batteries, at least one of which was
later identified as one stolen from Soniq. The fact that Feist
later found one of Soniq’s batteries in the same van seen
in the security footage suggests that the footage accurately
depicted that portion of the theft.
The state also offered sufficient evidence to support
the fourth factor, that there had been no material additions,
changes, or deletions to the footage. Before playing the edited
security footage for the jury, the state asked Westberry
whether he had previously viewed that footage. Westberry
responded that he had watched the edited version the day
before and that it was a “fair and accurate” representation
of the original footage from the day of the theft. Crediting
that testimony, the jury could have concluded that, although
forensic technicians had edited the footage, those edits did
266 State v. Spencer
not materially alter the footage’s content. See Sassarini, 300
Or App at 112, 127 (witness’s testimony that the recording
played in court matched the original recorded with his camera was sufficient for the jury to conclude that he had not
altered the video before trial).
There was also sufficient evidence to meet the sixth
factor—the identification of the actors in the recording. Feist
testified that defendant admitted that he was one of the two
men in the security footage, a fact defendant stipulated to at
trial. Defendant’s admission that he was one of the men in
the footage would have afforded the jury an ample basis to
at least identify him as one of the individuals depicted.
Admittedly, the state presented little evidence to
support the fifth factor, a demonstration that the recording
was adequately preserved. The evidence showed only that
the camera recorded the footage to a hard drive which was
then transferred to DVD. As previously noted, however,
OEC 901(1) takes a flexible approach to authentication. Even
though the state presented scant evidence regarding preservation, it satisfied each of the other factors in the analysis.
That, coupled with the absence of any evidence or other reason to question whether the security footage was adequately
preserved, persuades us that the state carried its burden
under OEC 901(1). Accordingly, we conclude that the trial
court did not err in admitting the security footage, and we
affirm both judgments.
Affirmed.
