Argued and Submitted May 29, 2014.
Multnomah County Circuit Court 090747614. Leslie M. Roberts, Judge.
Rond Chananudech, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Wollheim, Senior Judge.
[269 Or.App. 781] DUNCAN, P. J.
In this criminal case, defendant appeals the trial court's judgment convicting him of second-degree forgery, ORS 165.007, and second-degree theft, ORS 164.045. He assigns error to the court's denial of his motion to exclude a store security guard's testimony about what he saw while using the store's closed-circuit cameras and video monitors to visually track defendant in the store. Defendant argues that the guard's testimony was offered to prove the " content of a recording" and, therefore, was barred by OEC 1002, the " best evidence rule." The rule provides, in pertinent part, that, " [t]o prove the content of a writing, recording or photograph, the original writing, recording or photograph is required[.]" For the reasons explained below, we conclude that the officer's testimony
was not offered to prove the content of a recording and, therefore, was not subject to the best evidence rule. Accordingly, we affirm.
We begin with the historical facts relevant to defendant's motion, which we take from the evidence presented at the hearing on defendant's motion, viewed in a manner consistent with the trial court's ruling on the motion. See State ex rel OHSU v. Haas, 325 Or. 492, 498, 942 P.2d 261 (1997) (when reviewing a trial court's pretrial determination of the admissibility of evidence, the court views the record in a manner consistent with the trial court's ruling).
Defendant walked into a Walmart store, and a security guard, who was using the store's closed-circuit cameras and video monitors to observe activity in the store, recognized defendant as a member of a large theft ring. The guard then used the cameras and monitors to visually track defendant as he moved throughout the store. The guard saw defendant replace the price tag on an item with a fraudulent price tag, present the item for purchase, and purchase the item at the price on the fraudulent tag, which was lower than the store's price.
The guard watched defendant on the " live video feed" from the cameras, which is displayed on monitors in the store's security office. The guard did not make any in-person observations of defendant in the store's shopping areas.
[269 Or.App. 782] Video from the cameras is automatically recorded on the store's video recording system and saved for between three and six months. Video recorded on the system can be copied to a disc. After defendant was arrested, the guard watched the recorded video of defendant and copied it to a disc. At the motion hearing, the guard could not recall whether he had given the disc to the police or the district attorney's office, and, because he no longer worked for Walmart, he did not know whether the disc was still in the store's security office.
The trial court ruled that the guard could testify to what he saw on the " live video feed," but not to what he saw on the recorded video. After the court's ruling, defendant entered a conditional ...