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State v. Sassarini

Court of Appeals of Oregon

October 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
KELLY SUZETTE SASSARINI, Defendant-Appellant.

          Argued and submitted December 21, 2017.

          Curry County Circuit Court 15CR0292; Jesse C. Margolis, Judge.

          Jesse Wm. Barton argued the cause and filed the briefs for appellant.

          Jeff 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.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case 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.

         [300 Or.App. 108] JAMES, J.

         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. 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.

         BACKGROUND

         We 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 defendant's.

         Those 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 time.

         McAllister 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 weapon.

         The 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.

         After 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 evidence.

         Defendant 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 custody."

         The 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 discovery:

"[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."

         The 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."

         The 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.

         After 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.

         After 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 court stated:

"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."

(Emphasis added.)

         [300 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."

         After 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.

         After 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.

         Eventually, 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.

         [300 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."

         The 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."

         Defendant 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.

         Defendant 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.

         Two 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."

         Primeau 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 ...

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