State v. Biggs

314                  February 28, 2024              No. 150

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
             CHRISTOPHER RYAN BIGGS,
      aka Chris Ryan Biggs, aka Christopher R. Biggs,
                   Defendant-Appellant.
               Jackson County Circuit Court
                   20CR38532; A179510

   Paul D. Moser, Judge.
   Argued and submitted January 10, 2024.
  Jamie L. Hazlett argued the cause and filed the briefs for
appellant.
   Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
   JOYCE, J.
   Affirmed.
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           JOYCE, J.
         Defendant appeals from a judgment of conviction
for reckless endangerment. He raises three assignments
of error. In his first, defendant argues that the trial court
erred in ruling that videos of the events underlying defendant’s conviction were properly authenticated by a witness
who, although he had not taken the videos, testified that
the videos accurately described the events that he was
present for and observed. In his second assignment of error,
he argues that the trial court abused its discretion in not
excluding a photograph that, in defendant’s view, was not
disclosed by the state. In his third and final assignment
of error, he argues that the trial court erred in denying a
special jury instruction to address the absence of evidence
that, in his view, the state should have presented at trial.
We affirm.
          I. AUTHENTICATION UNDER OEC 901
A.   Factual Background
         Defendant’s first claim of error involves the trial
court’s ruling that videos of defendant’s actions on the day
that he was arrested were properly authenticated. The
facts giving rise to that claim of error are relatively few.
Defendant drove his truck to a part of Medford where several hundred protestors had gathered to protest the death
of George Floyd and racial inequality. Defendant, while still
in his truck, ended up in the middle of a group of protesters.
He initially slowly accelerated through the crowd and then
increased his speed, accelerating “rather rapidly.” People
present at the protest captured defendant’s actions by videotaping them on their cellphones.
         Before defendant’s trial, he moved to exclude three
cellphone videos that the state sought to introduce (each of
which lasted 10-15 seconds).1 The first video depicted the left
side and front of defendant’s truck and within a few feet of
it. The second video depicted the right side of the front of
the truck, again within a few feet. The third video appears
to have been taken from a greater distance, and as the trial
    1
      No witness provided testimony about how the state came into possession of
the videos.
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court described it, was similar to the first but from “a wider
angle.” As defendant framed the issue, the state intended
to authenticate the videos not by offering the testimony of
those who took the videos but rather through someone who
was present at the protest. In defendant’s view, showing
the videos to the witness and asking that witness, “Is this
how you recall the events?” did not meet the standard for
authentication under OEC 901. Defendant maintained that
the state would need the individuals who took the videos
to testify as to their authenticity. The state responded that
evidence that the “matter in question is what the proponent
claims” satisfies OEC 901.
         The state then offered the testimony of Davis,
who was present at the protest. Davis testified that he had
reviewed each of the videos and that each was a “true and
accurate depiction” of what had happened when defendant
drove his truck through the protestors. He testified that as
to the first two videos, he was near the front of the truck
depicted in the videos (“slightly right of the middle” of the
front) and that he was, at least with respect to the second
video, “probably very close” to whoever took the video. He
explained that he did not see any differences between the
videos and his recollection of events that would have made
him believe that any of the videos were “edited or inaccurate
or otherwise, misleading.” He believed that “all three videos
are of the exact same incident.” Davis testified that he did
not know on what device the videos had been made, who had
filmed them, or how the police got them.
        The court concluded that Davis’s testimony that
the videos were fair and accurate descriptions of what he
had seen was sufficient to authenticate the videos. The
court noted that Davis testified that he was close to the
area depicted in the videos and that Davis had “sufficient
grounds to authenticate that as being a fair and accurate
representation of what happened.”
         Following the trial court’s ruling, the state offered
the three videos and Davis again testified that they accurately depicted the events that he witnessed.
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B.   The testimony that the videos were an accurate depiction
     of the events met the standard for authentication under
     OEC 901.
         On appeal, defendant contends that the trial court
erred when it concluded that the state had properly authenticated the videos.
          The parties agree that the question of authenticity
is governed by OEC 901, which provides that a piece of evidence is authenticated “by evidence sufficient to support a
finding that the matter in question is what its proponent
claims.” OEC 901(1). Subsection 2 then provides a nonexclusive list of “examples of authentication or identification conforming with the requirements of subsection (1),” including
“[t]estimony by a witness with knowledge that a matter is
what it is claimed to be.” OEC 901(2)(a). The rule sets forth
the “well-accepted requirement that whenever a piece of evidence is offered there must be certain minimum assurances
that the evidence is what it purports to be, what it is offered
as being[,] and what its value depends on.” Legislative
Commentary to OEC 901, reprinted in Laird C. Kirkpatrick,
Oregon Evidence § 901.02, 947 (7th ed 2023). We review a
trial court’s OEC 901 ruling to determine whether there
was sufficient evidence for the court to have submitted the
issue of authenticity to the finder of fact. State v. Park, 

, 

, rev den, 

 (1996).
          We have often described the analysis under OEC
901 as embracing a “flexible” approach to authentication.
See, e.g., State v. Sassarini, 

, 

 (2019) (observing that “[the] more flexible approach
to authentication is codified in OEC 901”). In applying that
flexible approach, and in assessing whether a piece of evidence has been sufficiently authenticated, courts consider
whether: (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
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
318                                                          State v. Biggs

without any kind of inducement. 

, 126 (citing State
v. Miller, 

, 

 (1971)).2
         Yet those factors are “not a catechism. To meet
the prima facie requirements of authentication, the Miller
factors are not ‘irrelevant,’ but they are also not ‘rigid’ or
‘demanding.’ ” State v. Barden, 

, 

, rev den, 

 (2021). What is more, the requirements for authentication will depend on the particular circumstances and the nature of the evidence that is offered.
Sassarini, 

. As we explained in Barden,
    “[A]lthough the legislature intended for courts to consider
    these requirements, it did not intend proponents to have to
    satisfy each one. Rather, the traditional requirements serve
    as factors for a court to consider in assessing the totality
    of whether a proponent has made out a prima facie case of
    authenticity. The standard is not whether the proponent
    has conclusively proven authenticity, but rather whether
    the proponent has presented some ‘evidence sufficient to
    support a finding that the matter in question is what its
    proponent claims’ so as to admit the evidence to the jury—
    for the jury remains the ultimate arbiter on authenticity,
    veracity, and reliability of evidence.”

 (quoting OEC 901(1); internal citation
omitted).
          With that legal framework in mind, we turn to the
videos at issue here. For his part, defendant contends that
Davis’s testimony did not “excuse the state [from] having to
introduce some evidence as to the Miller factors.” Ultimately,
defendant contends that, absent any testimony about how
the videos were taken or where they came from, Davis’s testimony cannot meet enough of the Miller factors to satisfy
OEC 901. For its part, the state counters that, under the
flexible approach that OEC 901 embraces, Davis’s testimony
that the videos accurately depicted the events and had not,
in his view, been altered in any way is sufficient. Perhaps
more simply framed, the parties’ dispute reduces to the
    2
      In Sassarini, we explained that those factors derived from Miller, which
predated the enactment of OEC 901, but that in approving OEC 901, the legislature “intended for courts to consider” those traditional requirements. State v.
Barden, 

, 

 (2021) (citing Sassarini, 

).
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question whether—although the proponent of the evidence
is not required to meet all of the Miller factors—Davis’s testimony satisfies them sufficiently to allow the jury to make
the ultimate determination on the videos’ authenticity.
          We conclude that the answer to that question, on
the facts of this case, is yes. As noted above, the Miller factors are neither rigid nor demanding. Sassarini, 

. Although courts are to consider the factors, they simply serve to enable a court to assess, in the totality of the circumstances, whether the proponent of the evidence has set
out a prima facie case of authenticity. In other words, does
the evidence with respect to authenticity “support a finding
that the matter in question is what its proponent claims?”
OEC 901(1). If so, then it is for the jury to be the “ultimate
arbiter on [the evidence’s] authenticity, veracity, and reliability ….” Barden, 

.
         Evidence like Davis’s testimony here—that the videos accurately and fairly depicted the events that he was
a witness to, and that he saw no deletions or alterations—
supports a finding that the matter in question is what the
proponent (here, the state) claimed.3 Indeed, that evidence
satisfies two of the Miller factors. As described above, Davis
testified that he was at the protests and close to defendant’s
truck, the subject of each of the three videos, and he saw
it move as depicted in the videos. He also believed that he
was likely “very close” to whoever filmed the second video.
Based on his recollection of the events at the protest, particularly the movement of defendant’s truck, when compared
to the videos, he believed that the videos were accurate. See
Miller, 

 (one factor is whether a party has
established the “authenticity and correctness of the recording”). He also testified that he did not think that any content had been edited or was inaccurate. See 

 (another factor is whether a party can show that “changes, additions, or
    3
      Of course, defendant can attack the weight of the evidence “by questioning
foundation witnesses or by offering counterproof indicating the ways or manner in which [the evidence] is misleading or inaccurate. A significant safeguard
against the deceitful use of … technology [such as digitalization] remains the
fact that normally an authenticating witness must testify under oath that the
photograph accurately represents what it purports to depict and faces potential
perjury liability for falsely doing so.” Laird C. Kirkpatrick, Oregon Evidence
§ 901.04, 962 (7th ed 2023).
320                                                                 State v. Biggs

deletions have not been made”). And in Davis’s view, again
as someone who was present and close to defendant’s truck,
each of the videos showed the “exact same incident.” That
evidence supports a finding under OEC 901(1) that “the
matter in question is what its proponent claims.”
         Miller, in particular, informs our conclusion. There,
the defendant made two tape-recorded statements. 

. At trial, the state offered the recordings into evidence
through an officer who was present while the statements
were made and who testified that the recordings “accurately
related what was said.” 

 We rejected the defendant’s
argument that the recordings were not adequately authenticated. We began by noting that it “has long been established
that a photograph is entitled to be received in evidence when
a witness testifies that the photograph accurately depicts
the object. We see no reason why the same rule should not
be applied here.” 

. We went on to conclude that
the “testimony of the detective that the tapes are accurate”
sufficiently authenticated them.4 

. So here too—
Davis’s testimony that the videos were accurate and had not
been altered was sufficient to authenticate them.
         It bears noting that because videos are becoming
increasingly used in litigation, we are not the only court
addressing the question of authenticity in that context.
Nearly uniformly, and under rules that are similar if not
identical to OEC 901, courts have concluded that testimony
that a video accurately depicts an event is sufficient for
authentication purposes. See, e.g., Keene v. Rosas, 

, 

 (NY App Div 2023) (“It is wellsettled that a video recording may be authenticated by the
testimony of a witness to the recorded events … that the
video[ ] accurately represents the subject matter depicted”
(internal citation and quotation marks omitted)); Mooney
v. State, No 1561-2022, 

 (Md App Oct
13, 2023) (testimony by a witness present at the event captured by video that video was a true and accurate depiction
of the events was sufficient to authenticate); Webb v. State,
339 So 3d 118, 128 (Miss 2022) (observing, in the context of

   4
     Indeed, the court observed that that testimony alone was “sufficient evidence for fulfillment of the first five of the seven” Miller factors. Miller, 6 Or at 371.
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a photograph, that “there is no requirement that a photograph be authenticated or sponsored by the photographer”
but that “any person with the requisite knowledge of the
facts represented in the photograph may authenticate it”);
People v. Alston, 

, 5, 

 (NY App Div
2019) (cellphone recording of security footage was admissible because “an eyewitness authenticated [the recording] to
the extent it depicted the relevant events”); Louis Vuitton
S.A. v. Spencer Handbags Corp., 765 F2d 966, 973-74 (2d
Cir 1985) (testimony that the tape accurately depicted the
events sufficient to authenticate video recording (citing FRE
901(a)).
          To be sure, and as we have acknowledged, “[w]ith
modern technology, particularly digitalization, it has become
easier to manipulate, distort and fabricate all forms of photographic imagery. Enlargements, filtered lenses, cropping,
varied focal length, and changed lighting conditions provide
opportunities for manipulation which may be detectable, if at
all, only by a sophisticated viewer.” Sassarini, 

 (citing Laird C. Kirkpatrick, Oregon Evidence § 901.04[2]
[e] at 956-57 (6th ed 2013)). For that reason, some have
called for more stringent foundations for digital evidence.
E.g. Kirkpatrick, Oregon Evidence, § 901.04 at 962 (arguing
that authentication for digital images introduced as “pictorial testimony” should demonstrate the absence of enhancements and “trustworthiness” of camera’s operating process
(citing Witkowski, Can Juries Really Believe What They See?
New Foundational Requirements for the Authentication of
Digital Images, 10 Wash U J L & Pol’y 267 (2002).). However,
as we noted in Sassarini, after acknowledging that reality and calls for change in the rules, our analysis “must be
grounded in the Oregon Rules of Evidence.” 

. As explained above, Davis’s testimony here satisfies the
standard under those rules.
II. ADMISSION OF PHOTOGRAPH OF DEFENDANT’S
                    TRUCK
         We turn to defendant’s second claim of error. Police
stopped defendant after he drove through the protest. During
the encounter, an officer took photographs of the truck. One
of those photographs was labeled as Exhibit 4 and showed
322                                                         State v. Biggs

the back of defendant’s truck. Defendant argued below that
the state did not properly disclose that exhibit to him in
discovery and as a result it should have been excluded at
trial. The state explained that it had sent the photograph,
along with other documents, to defendant’s counsel and that
its records showed that the exhibit had been downloaded.5
The trial court denied defendant’s motion to exclude the
photograph as a discovery sanction, concluding that it was
uncertain whether there had been any discovery violation
and that in any event, it was unlikely that defendant would
be surprised by the contents of the photograph. On appeal,
defendant reprises his argument that the photograph should
have been excluded as a discovery violation sanction.
         We review the trial court’s ruling as to a discovery
violation sanction for abuse of discretion, State v. Wesley, 

, 

, rev den, 

 (2023), and
affirm. To justify the sanction that defendant sought below
and on appeal—exclusion—the trial court must find that
defendant suffered actual prejudice and that no other sanction short of exclusion would remedy that prejudice. State v.
Moss, 

, 

, rev den, 

(1997). We agree with the court that it is unlikely that the
photograph would have surprised defendant and thereby
prejudiced him. See State v. King, 

, 

 (1977), rev den, 

 (1978) (the degree of prejudice turns primarily on “the extent of surprise”). The state
produced several other photographs that showed the truck—
including one of the back of the truck—and defendant did
not claim that those photographs were not produced in discovery. Moreover, as the state notes, other remedies short
of exclusion would have been appropriate, including a short
continuance to provide defendant with time to investigate
the exhibit. Defendant’s suggestion that the photograph
“undermined the defense” and “impaired” his ability to prepare for trial, thereby necessitating exclusion of the exhibit,
simply is not supported by the record. The trial court did not
abuse its discretion.

    5
      Defense counsel acknowledged having received discovery of photographs
but said he was unable to open them and therefore determine whether Exhibit 4
was one of the photographs received. Defense maintained that “we simply just do
not have this photo.”
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           III.   SPECIAL JURY INSTRUCTION
         In his third assignment of error, defendant contends
that the trial court erred in failing to give a variation of the
less-satisfactory evidence jury instruction. Both parties and
the trial court agreed on giving the uniform less-satisfactory evidence jury instruction but defendant requested that
the court give an additional instruction, to which the state
objected. We review for legal error, State v. Payne, 

, 

 (2020), and affirm.
         The instruction related to additional photographs
of defendant’s truck that a responding officer took. A different officer testified at trial that the state no longer “ha[s]
those pictures.” The officer who took the photographs did
not testify at trial, apparently as a result of the trial having
been continued several times and confusion over whether
the officer had been subpoenaed for the new trial dates.
Based on those facts, defendant sought, and the court gave,
the uniform less-satisfactory evidence jury instruction that
instructed the jury that
       “[t]he state has the burden to establish the guilt of the
   defendant beyond a reasonable doubt. When you evaluate
   the state’s evidence, you may also consider the power of
   the state to gather and produce evidence. If the evidence
   offered by the state was weaker and less satisfactory than
   other stronger or more satisfactory evidence that the state
   could have offered, then you should view the weaker and
   less satisfactory evidence with distrust.”
        In addition to the uniform instruction, defendant
sought an additional instruction:
      “In this matter, you have seen evidence indicating that
   the police at one time possessed photographs showing the
   condition of [defendant’s] vehicle in the immediate aftermath of the incident that occurred on or about June 1,
   2020. You have also seen evidence that the police no longer
   possess these photographs. The police had an obligation to
   preserve this evidence once they obtained it, and because
   they failed to preserve these photographs, you are permitted to infer that these photographs would have been favorable to the defense if they had been available to present as
   evidence.
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       “Similarly, the State failed to make available for testimony a key witness in this proceeding, Officer Christine
   Bryant of the Medford Police Department. Officer Bryant
   took the above-mentioned lost photographs of [defendant’s]
   vehicle on or about June 1st, 2020, and he would have had
   relevant and important testimony in this matter.
       “Officer Bryant was under subpoena to appear and testify in this matter, but the State failed to make him available. Because of this failure, you are permitted to infer that
   Officer Bryant’s testimony would have been favorable to
   the Defense if he had been available.”
         The state objected to those additional instructions,
arguing that those instructions were a comment on the evidence. The trial court agreed and declined to give defendant’s requested instruction beyond the uniform less-satisfactory evidence instruction.
         The trial court did not err. Axiomatically, a trial
court cannot “tel[l] the jury how specific evidence relates
to a particular legal issue.” State v. Hayward, 

, 

 (1998); see also State v. Naudain, 

, 

 (2012), rev den, 

 (2013)
(reasoning that an instruction may not “implicitly direct[ ]
the jury’s attention” to particular evidence and suggest that
the jury should draw an inference about a party’s credibility or defense); ORCP 59 E (“The judge shall not instruct
with respect to matters of fact, nor comment thereon.”); ORS
136.330(1) (applying ORCP 59 E (to criminal trials)). Indeed,
that risk is itself inherent in the less-satisfactory evidence
instruction, which is why “the instruction should rarely be
given.” State v. McDonnell, 

, 

(1992); see also 

 (noting that the instruction “is perhaps as
close to a comment on the evidence as any presently allowed
and it is not appropriate in most cases”).
         The instructions that defendant sought would have
instructed the jury that the evidence—the photographs and
officer testimony—would have been favorable to defendant
and, in the case of the officer’s testimony, “relevant and
important.” That constitutes an impermissible comment on
the evidence.
         Affirmed.