and submitted December 21, 2017.
County Circuit Court 15CR0292; Jesse C. Margolis, Judge.
Wm. Barton argued the cause and filed the briefs for
J. Payne, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: Defendant appeals a judgment of conviction for
harassment that arose out of a confrontation with a neighbor
who was recording some of the incident with a video camera.
The neighbor provided police with a DVD that included what he
represented to be digital recordings from the confrontation.
The issues on appeal involve the digital copies on the DVD,
which was eventually admitted at trial and played for the
jury. Defendant argues that the trial court committed two
errors: first, denying her motion for a continuance to allow
her forensic expert to examine the camera and its memory
card, to compare the metadata of the files on the memory card
with those on the DVD; and, second, admitting the digital
recordings on the DVD over her objection that the state had
failed to demonstrate their authenticity. Held:
Under the circumstances, where defendant made a tactical
decision to attack the state's inability to establish a
chain of custody for copies of the recordings rather than
obtain the memory card or camera, the trial court did not
abuse its discretion in denying the motion for a continuance.
Nor did the court err in concluding that the state met the
threshold to send the question of authentication to the jury.
The state presented sufficient evidence about the
circumstances of the recordings that a factfinder could
believe that they were accurate and reliable depictions of
the incident and had not been edited by the neighbor who took
them; defendant's expert's testimony, although [300
Or.App. 107] raising certain irregularities in the metadata,
did not so seriously discredit the authenticity of the
recordings that no factfinder could have confidence in them.
Or.App. 108] JAMES, J.
appeals a judgment of conviction for harassment that arose
out of a confrontation with a neighbor who was recording some
of the incident with a video camera. The neighbor provided
police with a DVD that included what he represented to be
digital recordings from the confrontation. The issues on
appeal involve the digital copies on the DVD, which was
eventually admitted at trial and played for the jury.
Defendant argues that the trial court committed two errors:
first, denying her motion for a continuance to allow her
forensic expert to examine the camera and its memory card, to
compare the metadata of the files on the memory card with
those on the DVD; and, second, admitting the digital
recordings on the DVD over her objection that the state had
failed to demonstrate their authenticity. For the reasons
explained below, we hold that, under the circumstances, the
trial court did not abuse its discretion in denying the
motion for a continuance, and that the state presented
evidence sufficient to support a finding that the DVD
included authentic copies of the camera's digital
recordings. We therefore affirm.
begin with a summary of the historical context in which the
charges and the procedural and evidentiary questions arose.
Defendant and Walker were neighbors in a rural area. Their
relationship soured over several months, first because of
disputes about dogs running loose on defendant's
property, and then about defendant's effort to construct
a fence, which Walker believed was violating deed
restrictions and being built on land that was not
disputes culminated in a physical altercation between the two
on the morning of June 10, 2014, over the dismantling of an
old gate at the site where the new fencing was being built.
Deputy McAllister responded to a disturbance call and found
Walker at home. Walker was bleeding from his lower right leg,
and he reported that defendant had come from behind him,
kicked him in the leg, and knocked him to the ground; while
he was on the ground, defendant grabbed his hair and shoved
his face into the dirt. He further reported that, after the
assault, defendant's partner, [300 Or.App. 109] Johnson,
had reached inside Walker's car, removed the keys from
the ignition, and thrown them into the brush, which required
Walker to crawl through the brush back to his home. Walker
told McAllister that he had a video camera with him during
the incident, but McAllister did not seize the camera at that
got a different story from defendant. Defendant told him that
Walker was yelling in her face, that she felt threatened, and
that she grabbed Walker by the hair and "laid" him
down to the ground. She denied causing any injuries and
surmised that he injured his leg while returning home.
Defendant said that Johnson had taken Walker's keys and
thrown them out of fear that Walker would use the car as a
next day, Walker told McAllister that he had camera
recordings of the assault to show him. McAllister returned to
Walker's home, and Walker played three digital files on
his home computer (through another machine, which we will
discuss later). The first file was a 34-second video that
shows Walker approaching a closed gate on a road, and
defendant to the right of her truck with a gun. The second
file was a video less than a second long, which shows little
of anything. The third file was a video that shows only color
bars and 20 seconds of audio.
playing the files for McAllister, Walker provided him with a
DVD that purportedly contained digital copies that Walker had
made of those files. That DVD was defective, however, and the
video was distorted when police attempted to play it. Four
days later, Walker provided McAllister with a second DVD,
again purportedly copies of the same three files that Walker
had played for McAllister. McAllister booked that DVD into
was eventually charged with fourth-degree assault and
harassment. During discovery, the state provided defendant
with a copy of the digital files on the DVD that McAllister
booked. On July 10, 2016, four days before the scheduled
trial date, defendant filed a motion in limine to
exclude the recordings on the DVD, "on the grounds that
the state cannot prove an adequate foundation to establish
the chain of custody, and on the further grounds that [300
Or.App. 110] the state cannot adequately authenticate the
recordings as required by OEC 901." In a memorandum in
support of her motion, defendant explained that five days
passed between the incident and when Walker provided the DVD,
that there were three files rather than the single video of
the incident that one would expect, and that the state could
not establish a chain of custody for the videos. Defendant
also explained that she had sent the files to an expert in
analyzing the authenticity of audio and video files, Edward
Primeau, who "concluded that the three files are not
authentic, original digital video recordings." Defendant
attached Primeau's report, which stated, "Because no
information was given about the device or the handling of the
evidence, I cannot determine the authenticity of the chain of
motion in limine was heard on the day scheduled for
trial. To establish the chain of custody, the state called
Walker as its first witness and elicited testimony
identifying the Sony XD Cam he used to record the videos. The
state then sought to admit the camera as an exhibit, but
defendant objected on the ground that only the DVD- and not
the camera itself-had been produced by the state during
"[W]e object in that this is the first time we've
known this camera actually exists. We-I did have a
communication with [the prosecutor] some months ago to
determine that the three files that we had was all that was
in the-in the State's evidence. We-we were never
informed, as you've read my-my expert's report, is
that having the camera, uh, and knowing what type of camera
it is, is an essential part of doing his analysis, uh, so I
would object to the admission of the camera simply because we
haven't had an opportunity to examine it or to have my
expert examine it."
trial court overruled the objection and admitted the exhibit
for the purposes of the hearing. Nonetheless, the prosecutor
at that point interjected, "And, Your Honor, just for
the record, *** today is the first time the State has seen
this camera. I asked that it be brought in today, given the
nature of the hearing."
prosecutor then handed Walker the DVD that McAllister had
booked into evidence, which was marked as [300 Or.App. 111]
Exhibit 1. Walker testified that he had viewed the contents
of that DVD and that it was "an accurate representation
of what happened" on the day of the altercation, both
"visually" and "audibly." When the state
then offered Exhibit 1, defendant asked that it first be
played in court so that she could decide whether to object to
it being received.
Exhibit 1 was played in court, defendant voiced a concern
that it was not the same as the DVD she had received during
discovery. She explained that, whereas all three videos on
Exhibit 1 played continuously, the videos on her copy did
not. The court then asked the prosecutor about the creation
of the copy provided to defendant, and he explained that the
sheriffs office had combined the videos from Walker and a
separate video from the deputy's in-car camera onto a
single DVD to provide to defendant. At that point, the trial
court surmised that some of the authenticity issues
identified in Primeau's report could be attributed to the
process used by the sheriffs office to copy the files, and
that those concerns could be put to rest by comparing the
three versions of the videos: the state's DVD (Exhibit
1), defendant's DVD, and the version on the memory card
of the camera.
defendant again pointed out that her expert had not had an
opportunity to review "whatever the sheriffs department
received before they put it through their software," the
"Well, that's a different issue. I guess-I don't
recall seeing a motion to compel or any discovery issue
coming up before. The camera is here now. We can look at
what's on the camera.
My concern-my concern is whether or not what the State wants
to show to be authenticated for purposes of this hearing and
the chain of custody issue is important too but if the
video that's on the camera and the video that's on
the DVD, visually to me it looks the same, there's
probably not a lot to argue about. If it's different then
your point will be well taken."
Or.App. 112] Defendant reiterated that her expert had not had
a chance to examine the "metadata underneath" the
files and that she was only learning now, "at this late
date that there was actually *** a file that was created in
there [the camera] that was somehow transferred to another
DVD that was transferred several times." The court again
dismissed that concern based on the fact that defendant
should have been aware of the existence of an original
recording device but never pursued the discovery issue:
"[That file creation/transfer process] is common and
I'm quite certain that you are aware that some sort of
device recorded this video and there's no discovery or
motion to compel regarding getting your hands on the device
that's in the court file. So, I'm not really
concerned with the fact that that wasn't provided to you
before-even if you asked the DA's office for it, you
didn't deal with that prior to trial."
further colloquy about whether defendant had asked the state
for the "video file itself that came out of the
camera," the court adhered to its view that it would not
"deal with your discovery issues at this point" and
that they would play defendant's DVD to compare it to the
state's Exhibit 1.
defendant's DVD was played, the court asked whether the
prosecutor could also "play what's on the
camera" and encouraged him to ask Walker about that
possibility. The prosecutor then returned to his examination
of Walker, beginning with questions about what had just been
played in court. Walker testified that the recording
"absolutely" matched the original recordings on his
video camera. According to Walker, the camera was broken
during the assault, and he removed the memory card from the
camera on the night of the assault or early the next day. He
then transferred the three files from the memory card to his
computer through "Sony XD cam transfer," which he
was able to play for McAllister. Walker testified that he
took the "original"-meaning the memory card-to
someone named Jason Lefebvre to transfer to a DVD for the
sheriffs office, and that Walker then kept the memory card.
the state played in court the video clips on the memory card
through the camera's screen. Walker testified that he had
not "in any way altered the digital images or vocal
images that are recorded" on the camera.
Or.App. 113] Before cross-examining Walker, defendant asked
for a recess to speak with her expert. After that break,
defendant renewed her request for a longer recess-a week to
allow her expert to examine the camera. After the court
denied that motion, defendant asked for a recess for the rest
of the morning. The court denied that request as well,
stating that "[h]e can look at it during a break."
The parties then had another extended discussion about what
defendant had requested during discovery. The court asked,
"Did you specifically ask for the metadata or the
recording device?" Defense counsel responded, "Uh,
no. We have the meta-we got the metadata because we-from the
file-that's what my expert does."
prosecutor acknowledged that defendant may have asked for the
original recording but reiterated that he had never
understood defendant to have requested the memory card or
camera, which were not in the state's possession until
that morning. He explained:
"And-and had I understood that they wanted to actually
examine the-the camera and the original memory thing that we
could have made some sort of an arrangement, but I-at least I
didn't understand that. Maybe that's-maybe that's
my fault. I don't know."
also asserted that she had requested "all exhibits and
this is now become a-this will be an exhibit at the trial.
So, certainly, I asked for those things in my initial request
for discovery." The prosecutor responded that he was not
intending to offer the camera and memory card at trial, but
only the recordings on Exhibit 1, the state's DVD.
then cross-examined Walker. During that examination, Walker
testified that the color bars, which appear on the third of
the files, occurred when the camera was somehow jarred.
Walker admitted that he could not explain the mechanism by
which the color bars appeared.
other witnesses testified at the hearing on the motion in
limine: McAllister and defendant's expert, Primeau.
McAllister testified about observing the recordings at
Walker's home as they were played through the Sony
machine, and he testified that "the imagery that [he]
observed then was the same as what was observed on [300
Or.App. 114] State's Exhibit 1 today." On
cross-examination, he testified that he had no personal
knowledge of what happened to the recordings between the time
that he watched them at Walker's home on June 11 and when
a disc was delivered to the sheriffs department on June 15.
However, on redirect, McAllister testified that he had viewed
the video delivered on June 15 and that it was "the same
as the one [he] saw on the 11th" and "the same as
State's Exhibit 1 today."
then testified about his review of defendant's DVD. He
explained that, after watching the three videos on that DVD,
he was suspicious that the color bars in the third video had
been added through a menu on the camera or through an editing
program. He was asked whether it was possible for color bars
to automatically appear when a camera is dropped, and he
responded, "I have not seen that before, no." This
exchange with the court followed:
"THE COURT: So-hold on. You say you haven't seen
that before or is it not possible? You answered both. Is ...