State v. Wager

2016 UT App 97, 372 P.3d 91, 812 Utah Adv. Rep. 34, 2016 WL 2772594, 2016 Utah App. LEXIS 97
CourtCourt of Appeals of Utah
DecidedMay 12, 2016
Docket20140812-CA
StatusPublished
Cited by4 cases

This text of 2016 UT App 97 (State v. Wager) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wager, 2016 UT App 97, 372 P.3d 91, 812 Utah Adv. Rep. 34, 2016 WL 2772594, 2016 Utah App. LEXIS 97 (Utah Ct. App. 2016).

Opinion

VOROS, Judge:

1 Tim G. Wager was convicted of possession of methamphetamine and marijuana. The principal issue on appeal concerns the authentication at trial of a photograph obtained from Wager's ex-girlfriend. The photograph appears to show Wager sitting in his bathroom smoking a meth pipe. Uncontro-verted trial testimony established that the person in the photograph was Wager and that the bathroom in the photograph was his bathroom. The trial court admitted the photograph. We affirm.

BACKGROUND

1 2 Wager testified during cross-examination that no one had used drugs at his residence. In rebuttal, the prosecution offered a photograph taken by an informant (Wager's ex-girlfriend) showing Wager sitting in a bathroom holding in one hand what appears to be a meth pipe to his mouth and in the other a small torch. Wager objected to the admission of the photograph and argued that it lacked sufficient authentication in violation of rule 901 of the Utah Rules of Evidence. Specifically, he argued that the State did not have a witness with personal knowledge of the contents of the photograph.

T8 The State proffered the testimony of a police detective who had taken a photograph of Wager's bathroom during his search of Wager's residence and would testify that the informant's photograph accurately depicted Wager in that bathroom. Wager argued that although the detective could accurately identify the bathroom, he could not testify to the activity depicted in the photograph. ~The trial court overruled the objection and admitted the photograph.

4 4 The jury convicted Wager of possession of methamphetamine, which was enhanced to a second-degree felony, and possession of marijuana, a class A misdemeanor,. ; See Utah Code Ann. $ 58-87-8(2) (LexisNexis 2012). He was sentenced to one to fifteen years for the methamphetamine possession and 865 days for the marijuana possession. The court suspended the sentence and ordered Wager to serve ten days in jail and three years on probation.

ISSUES ON APPEAL

15 First, Wager contends that the trial court erred by "admitting, without authentication, a prejudicial photograph purported to be [Wager] using drugs."

T6 Second, Wager contends that the trial court failed to address his objection to the photograph under rule 608 of the Utah Rules of Evidence. -

T7 Third, Wager contends that the trial court erred in admitting the photograph because, without evidence of the date it was taken, the photograph was irrelevant.

¶ 8 Fourth, Wager contends that the trial court erred by failing to mention, address, or follow rules 1002, 1004, and 1007 of the Utah Rules of Evidence.

19 Finally, Wager contends that the trial court erred because the photograph, "if indeed offered as a specific incident of criminal conduct, should have been handled by a Motion in Limine."

ANALYSIS

I. Authentication

110 Wager contends that the trial court erred by "admitting, without authentication, a prejudicial photograph purported to be [Wager] using drugs." This court grants *94 a trial court "broad discretion to admit or exclude evidence and will disturb its ruling only for abuse of discretion." Robinson v. Taylor, 2015 UT 69, ¶ 8, 356 P.3d 1230 (citation and internal quotation marks omitted).

T11 "To satisfy the requirement of authenticating or identifying an item of evi-denee, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Utah R. Evid. 901(a) Such evidence may include "testimony of a witness with knowledge." Id. R. 901(b)(1). "[Ilf a competent witness with personal knowledge of the facts represented by a photograph testifies that the photograph accurately reflects those facts, it is admissible" State v. Purcell, 711 P.2d 243, 245 (Utah 1985).

(12 "Proper authentication does not require conclusive proof but, instead, requires only that the trial court determine that there is evidence sufficient to support a finding of the fulfillment of [a] condition of fact." State v. Woodard, 2014 UT App 162, ¶ 17, 3300 P.3d 1283 (alteration in original) (citation and internal quotation marks omitted). Thus, the trial court performs a "screening function." Id. (citation and internal quotation marks omitted). If the evi-denee is admitted, it then falls to the jury to determine "whether the evidence is in fact authentic." Id, (citation and internal quotation marks omitted).

T 13 In State v. Bloomfleld, this court stated that "[the general rule in Utah is that when 'a competent witness with personal knowledge of the facts represented by a photograph ... testifies that the photograph accurately reflects those facts, it is admissible'" State v. Bloomfield, 2003 UT App 3, ¶ 24, 63 P.3d 110 (quoting Purcell, 711 P.2d at 245). A surveillance camera recorded Bloomfield robbing a restaurant. Id. 122. At trial, a detective testified that he had obtained the videotape from the restaurant employees the night of the robbery and that it accurately depicted the interior of the restaurant that night, Id. He also identified Bloomfield in the video, Id. His testimony of the restaurant's interior was "substantially corroborated" by an eyewitness of the robbery. Id. 124.

{14 On appeal, this court held that although the detective "lacked personal knowledge as to the actual events as they occurred," he knew the videotape had been given to him the night of the incident and that the interior of the restaurant shown on the video matched his knowledge of it. Id, The detective's knowledge sufficiently supported a finding that "the matter in question [was] what its proponent claim[ed]." Id. (alterations in original) (citation and internal quotation marks omitted). In addition, an eyewitness corroborated the activity depicted on the tape. Id.

{15 The case before us presents similar facts, though without the corroboration. The detective had not witnessed the event depict'ed in the photograph, but knew that the photograph had been given to him by an informant and that it depicted Wager and his bathroom. No trial witness saw the event depicted in the photograph. But we conclude that additional eyewitness testimony is not necessary for proper authentication The Washington Court of Appeals has held that photographs were adequately authenticated when a witness identified the individuals in the photographs, their approximate ages, and the location depicted. See State v. Sapp, 182 Wash.App. 910, 332 P.3d 1058, 1062 (2014) (interpreting the substantively similar Washington Rule of Evidence). Thus, Washington "does not require photographs and other recordings to be authenticated by a witness present for their creation." Id. Our supreme court tacitly followed the same rule in affirming the admission of photographs of stolen property based on testimony "that the photographs depicted furniture belonging to [the victim] and seized from defendant, and that they were taken after the seizure." Purcell, 711 P.2d at 245. 2

*95 4 16 Here, the detective was not the photographer and did not witness the events depicted in the photograph.

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Bluebook (online)
2016 UT App 97, 372 P.3d 91, 812 Utah Adv. Rep. 34, 2016 WL 2772594, 2016 Utah App. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wager-utahctapp-2016.