State v. Biggs

Under OEC 901, witness testimony stating videos presented as evidence are a fair and accurate description of the events that occurred is sufficient to authenticate.

Defendant appealed his conviction of reckless endangerment. In the first assignment of error, Defendant argued that videos of his actions were not properly authenticated in accordance to OEC 901. In order to assess whether a piece of evidence has been sufficiently authenticated, courts consider seven factors: (1) if the recording device was “capable of taking testimony”; (2) the competency of the operator; (3) the accuracy of the recording; (4) the recording has not been altered; (5) the recording was adequately preserved; (6) those on the recording can be identified; and (7) the testimony was voluntary. State v. Sassarini, 300 OR App 106, 124, 452 P3d 457 (2019). The court concluded that a witness testimony stating the videos were a fair and accurate description of the events that occurred satisfied OEC 901 and was sufficient to authenticate the videos. In his second assignment of error, Defendant argued that the trial court abused its discretion in not excluding a photograph that was not disclosed by the state. The State rebutted that it had sent the photograph, and that records show Defendant’s counsel downloaded the photograph. The court ruled that trial court did not abuse its discretion because Defendant did not suffer any prejudice, and the State produced several other photographs containing similar images. In his final assignment of error, Defendant argued that trial court erred in failing to give a jury instruction relating evidence to a particular legal issue. The court found that the instruction was an impermissible comment on the evidence, and trial court did not err. AFFIRMED.