                              COURT OF APPEALS DIV                •

                               STATE OF WASHINGTON
                               20180C1 -1 Ml 8:32


 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                     DIVISION ONE
STATE OF WASHINGTON,                     )       No. 76534-5-1
                                         )
                     Respondent,         )
                                         )
       v.                                )
                                         )
HELEN JOLENE NELSON,                     )       UNPUBLISHED OPINION
                                         )
                     Appellant.          )       FILED: October 1, 2018
                                         )
       SMITH, J. — Helen Jolene Nelson appeals her jury conviction for

attempted theft of a motor vehicle. Ms. Nelson argues that the trial court abused

its discretion by admitting an officer's testimony describing the contents of a

surveillance video, and by admitting five still photographs of the surveillance

video, the original of which was not produced. Because it was not unfair under

the circumstances to admit the photographs, which were otherwise admissible

under ER 1003, the trial court did not abuse its discretion by admitting them.

Furthermore, admitting the officer's testimony was harmless error. We affirm.

                                      FACTS

       The State charged Ms. Nelson by information with attempted theft of a

motor vehicle. At trial, the State presented evidence that during the early

morning hours of October 11, 2015, a woman tried to steal a car from the parking

lot of a Tesoro station in Anacortes; that this woman left two bags in the car when
No. 76534-5-1/2

r . he ran away after being ehasedty the station clerk; and that these bags were
e

later recognized by police officers as the same bags that Ms. Nelson had been

carrying with her when officers had contact with her earlier that morning.

      The State also presented the testimony of Officer Edwin Scheepers, who

visited the Tesoro station later in the day to view surveillance footage of the

suspect. Officer Scheepers explained that the surveillance video was not

available to download at the store, that he assumed that he would not be able to

get a copy of the whole video, and that he understood that "for a lot of the stores

it's a real difficult process for them to reproduce the footage."1 Officer Scheepers

described what he saw on the surveillance video, and the trial court admitted five

still photographs that Officer Scheepers took of the video.

       The jury convicted Ms. Nelson as charged, and the trial court sentenced

Ms. Nelson to 12 months and one day of confinement. Ms. Nelson appeals.

                                   ANALYSIS

                         Admissibility of Still Photographs

       Ms. Nelson argues that the trial court erred by admitting the five still

photographs that Officer Scheepers took of the surveillance video. We disagree.

       Under the "best evidence rule,"2 to prove the content of a videotape, the

original videotape is ordinarily required, unless an exception applies.3 One such




       1 Report of Proceedings(RP)(Jan. 23-24, 2017) at 139-40, 151-52.
       2 ER 1001 et seq.
       3 ER 1002("To prove the content of a writing, recording, or photograph,
the original writing, recording, or photograph is required, except as otherwise
provided in these rules or by rules adopted by the Supreme Court of this state or
by statute."); ER 1001(b)("photograph" includes videotape).
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No. 76534-5-1/3

exception is found in ER 1003, which provides:"A duplicate is admissible to the

same extent as an original unless(1) a genuine question is raised as to the

authenticity of the original or (2) in the circumstances it would be unfair to admit

the duplicate in lieu of the original." We review challenges to a court's decision

to admit evidence for abuse of discretion.5 A trial court abuses its discretion if its

ruling is manifestly unreasonable or exercised on untenable grounds or for

untenable reasons.6

       Ms. Nelson does not contest the authenticity of the original videotape.

But, she argues that the still photographs are not "duplicates" under ER 1001(d)

because they were not produced "through some technique that 'accurately

reproduce[s] the original.'"7 We disagree. ER 1001(d) provides that "[a]

'duplicate' is a counterpart produced by the same impression as the original, . . .

or by means of photography. . . ."8 Officer Scheepers' uncontroverted testimony

is that he created the still photographs from the surveillance video by means of

photography. Therefore, the still photographs are duplicates.9

       Ms. Nelson next argues that it was "unfair" to admit the still photographs

because they constituted only a partial duplicate of the original videotape, citing




       4 ER    1003.
         5 State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967(1999).
         6 Id.
         7 Brief of Appellant at 12(quoting ER 1001(d)).
         8 ER 1001(d)(emphasis added)).
         9 ER 1001(d); see also U.S. v. Perry, 925 F.2d 1077, 1082 (8th Cir. 1991)
(a still photographic image made from a videotape recording is a duplicate under
Fed. R. Evid. 1001(4)); Cf. State v. Andrews, 172 Wn. App. 703, 707-708, 293
P.3d 1203(2013)(photographs of text messages admissible under ER 1003).
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No. 76534-5-1/4

Amoco Production Co. v. United States,1° Toho Bussan Kaisha, Ltd. v. American

President Lines, Ltd.,11 and United States v. Alexander.12 These cases are not

persuasive here. In Alexander, the court concluded that secondary evidence of

the terms of a check was not admissible where the government failed to give any

explanation of the failure to produce the check itself.13 And in Toho Bussan

Kaisha, the court concluded that the trial court did not abuse its discretion by

refusing to admit photostats of a document, observing that the original document

was in Japan and no reason was given for not producing it.      Neither Alexander

nor Toho Bussan Kaisha was analyzed under ER 1003, which permits the

admission of a duplicate to the same extent as the original, regardless whether

the original is accounted for.16 Accordingly, Alexander and Toho Bussan Kaisha

do not contro1.16

       Ms. Nelson's reliance on Amoco Production is also misplaced. There, the

issue in dispute was whether a 1942 deed contained a reservation of certain

mineral rights.17 The original deed was lost, and the appellate court upheld the

trial court's refusal to admit a duplicate conformed copy of the deed "because the

most critical part of the original conformed copy (the reservation clause) is not



       10 619  F.2d 1383(10th Cir. 1980).
       11 265 F.2d 418 (2d Cir. 1959)
       12 326 F.2d 736 (4th Cir. 1964).
       13 Id. at 739.
       14 Toho Bussan Kaisha, 265 F.2d at 424.
       15 ER 1003.
       16 The Toho Bussan Kaisha court also concluded that photostats of a
document made at some later time were not duplicates, but, as discussed above,
a "duplicate" is now expressly defined in the Evidence Rules to include a
counterpart produced by means of photography.
       17 Amoco Production, 619 F.2d at 1389.

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No. 76534-5-1/5

completely reproduced in the tluplicate."19 Here, in contrast, Ms. Nelson's

argument that the still photographs may have omitted something exculpatory is

entirely speculative. There is no evidence that Officer Scheepers "cherry-picked"

the images he took from the videotape, as Ms. Nelson contends. Officer

Scheepers' uncontroverted testimony was that he did not know Ms. Nelson, was

not involved in the earlier contact with Ms. Nelson that occurred a short time

before the incident at the Tesoro station, and was simply "looking for somebody

who had a couple bags with him, distinctive bags."19 Furthermore, when

describing the still photographs, Officer Scheepers did not offer any opinions as

to the identity of the subject in the photographs. The trial court did not abuse its

discretion by admitting the still photographs.

                    Admission of Officer Scheepers' Testimony

       Ms. Nelson also argues that the trial court erred by admitting Officer

Scheepers' testimony describing what he recalled seeing on the surveillance

video. We agree, but hold that the error was.harmless.

       ER 1004(a) sets forth another exception to the general rule that an original

is required to prove the content of a videotape. It provides: "The original is not

required, and other evidence of the contents of a writing, recording, or

photograph is admissible if: . . .[41 originals are lost or have been destroyed,

unless the proponent lost or destroyed them in bad faith[J"2° By its terms, ER

1004(a) requires a showing that the original videotape was unavailable because



       18 Id. at 1391
       19 RP (Jan. 23-24, 2017) at 140, 143.
       20 ER 1004(a).

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No. 76534-5-1/6

it was lost or destroyed without bad faith.21 On this point, federal case law is

instructive because ER 1004(a) mirrors Fed. R. Evid. 1004(1),22 regarding which

one federal court observed:

      [I]n order for secondary evidence of the contents of the writings to be
      admissible, the proponent must make a threshold showing that those
      two elements, loss or destruction of the documents and the absence
      of bad-faith, have been met.... In order to prove that the documents
      have been lost or destroyed the proponent may use circumstantial
      evidence such as evidence of a diligent but unsuccessful search for
      the document.[23]

       Here, Officer Scheepers testified that his understanding was "that for a lot

of the stores it's a real difficult process for them to reproduce the footage" and

that he could not reproduce the surveillance video at the store.24 He also

testified that downloading the surveillance video was not, to the best of his

recollection, a possibility at the time that he visited the Tesoro station, and that

"[a] lot of the stores in Anacortes take a very long time to get back to us, so we

just take still photographs. . . ."25 He further confirmed that it was his assumption

that he was not able to get a copy or reproduction of the whole surveillance

video, and that nothing in his report indicated that he tried. Officer Scheepers did



        21 ROBERT H. ARONSON 8, MAUREEN A. HOWARD,THE LAW OF EVIDENCE IN
WASHINGTON § 4.05[1](rev. 5th ed. Supp. 2016)("Once the original is shown to
be unavailable under ER 1004, any form of proof is permissible. . . ."(emphasis
added)); see also 5C KARL B. TEGLAND, WASHINGTON PRACTICE, EVIDENCE LAW
AND PRACTICE § 1004.2 (6th ed. 2016).
        22 In re Det. of Pouncy, 168 Wn.2d 382, 392, 229 P.3d 678(2010)("Where
our evidence rules mirror their federal counterparts, we may look to federal case
law interpreting the federal rules as persuasive authority in interpreting our own
rules.").
        23 Remington Arms Co. v. Liberty Mut. Ins. Co., 810 F. Supp. 1420, 1426
(D. Del. 1992).
        24 RP (Jan. 23-24, 2017) at 139-40.
        25 RP (Jan. 23-24, 2017) at 144.

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No. 76534-5-1/7

not testify, as the State contends, that he "could not obtain a copy of the video."26

Rather, he testified that he assumed that he would not be able to, or that it would

be difficult. Because the State made no showing that the original was lost or

destroyed, and presented no evidence of a diligent but unsuccessful search, the

trial court abused its discretion by admitting Officer Scheepers' testimony of the

contents of the surveillance video.

       That said, under the "harmless error" standard, we will not reverse due to

an error in admitting evidence "unless, within reasonable probabilities, the

outcome of the trial would have been materially affected had the error not

occurred."27 Here, the State presented evidence that the station clerk recognized

the woman who attempted to take the car as the same woman who had been in

the Tesoro store earlier, and that this woman left two bags in the car. The State

also presented evidence that two officers recognized these bags as the same

bags that Ms. Nelson had been carrying a short time before the incident at the

Tesoro station, and that the officers' contact with Ms. Nelson ended at the police

station, which is very close to the Tesoro station. The State also presented

testimony from the station clerk that the woman who attempted to take the car

was a little shorter than the clerk, about 125-130 pounds, with dark hair—a

description that apparently matches Ms. Nelson. Furthermore, Officer

Scheepers, when describing what he had seen on the surveillance video, never

identified the subject in the video as Ms. Nelson—or even as a woman. In light



       26 See
            Brief of Respondent at 10.
     27 State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981)(citing State v.
Cunningham, 93 Wn.2d 823,613 P.2d 1139(1980)).
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No. 76534-5-1/8

of the foregoing, any error in admitting Officer Scheepers' testimony describing

the contents of the surveillance video was harmless.

       We affirm.




WE CONCUR:




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