                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                          STATE OF ARIZONA,
                              Petitioner,

                                   v.

HON. ROLAND J. STEINLE, JUDGE OF THE SUPERIOR COURT OF THE STATE OF
         ARIZONA, IN AND FOR THE COUNTY OF MARICOPA,
                          Respondent Judge,

                    ALEJANDRA MONSERAT MORAN,
                         Real Party in Interest.

                          No. CV-15-0263-PR
                          Filed June 13, 2016

       Special Action from the Superior Court in Maricopa County
                The Honorable Roland J. Steinle, III, Judge
                          No. CR2012-165657
                     VACATED AND REMANDED

             Opinion of the Court of Appeals, Division One
                   237 Ariz. 531, 354 P.3d 408 (2015)
                              VACATED

COUNSEL:

William G. Montgomery, Maricopa County Attorney, Lisa Marie Martin
(argued), Deputy County Attorney, Phoenix, Attorneys for State of Arizona

Law Office of the Public Defender, Lindsay P. Abramson (argued), Deputy
Public Defender, Phoenix, for Alejandra Monserat Moran

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE PELANDER and JUSTICES BRUTINEL, TIMMER, and
BOLICK joined.

CHIEF JUSTICE BALES, opinion of the Court:

¶1          We here consider the admissibility of an excerpt from a cell-
phone video recorded by a witness to a stabbing. Because the trial court
                       STATE V. STEINLE (MORAN)
                          Opinion of the Court

erred in excluding this evidence on the grounds the court identified, we
vacate the lower courts’ rulings but remand to allow the trial court to
consider, in the first instance, whether the excerpt should be excluded
under Arizona Rule of Evidence 403.

                                      I.

¶2             A house party ended with a street fight. Witnesses said that
Alejandra Moran and L.U. fought verbally and physically for several
minutes before L.U. was stabbed. Another guest at the party, Hector Ponce,
used his cell phone to record an approximately five-minute video of the
fight, culminating with the stabbing. Ponce edited the video by cropping
the first four and one-half minutes, sent the remaining thirty-one second
excerpt to his friend Bassam Mahfouz, and then deleted the video from his
cell phone. The video excerpt purportedly shows Moran stabbing L.U. in
the chest.

¶3            L.U. died from the stab wounds, and the State charged Moran
with first-degree murder. Detectives seized Mahfouz’s phone to preserve
the video evidence. They also unsuccessfully attempted to recover the full-
length version of the video from Ponce’s phone. Moran moved to exclude
the video excerpt on the grounds that it was inadmissible under Arizona
Rules of Evidence 106, 1002, 801, and 901. The trial court granted Moran’s
motion.

¶4            The State sought special action relief, arguing in the court of
appeals that the trial court had erred in excluding the excerpt because the
State was not responsible for the absence of the complete video recording.
Relying on Evidence Rules 106 and 403, a divided panel of the court of
appeals affirmed the trial court’s ruling. State v. Steinle (Moran), 237 Ariz.
531, 534 ¶ 14, 354 P.3d 408, 411 (App. 2015).

¶5              We granted review to determine if the trial court erred by
excluding the video excerpt, as the admissibility of such evidence presents
a recurring legal issue of statewide importance. We have jurisdiction under
article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.




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                       STATE V. STEINLE (MORAN)
                          Opinion of the Court

                                      II.

¶6            We review a trial court’s evidentiary rulings for an abuse of
discretion. State v. Leteve, 237 Ariz. 516, 523 ¶ 18, 354 P.3d 393, 400 (2015).
But we review de novo the interpretation of the Arizona Rules of Evidence.
State v. Payne, 233 Ariz. 484, 502 ¶ 49, 314 P.3d 1239, 1257 (2013). Our
interpretation is guided, but not determined, by federal court decisions
when our evidence rules mirror the federal rules. See State v. Bernstein, 237
Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015).

                                      A.

¶7             Relevant evidence is generally admissible unless it is
otherwise precluded by court rules, statutes, or constitutional provisions.
Ariz. R. Evid. 402. A video excerpt depicting a fatal stabbing is plainly
relevant in a related criminal prosecution. The issue here is whether any of
the rules of evidence identified by Moran preclude admission of the
excerpt. We first consider the rules relied upon by the court of appeals –
Rules 106 and 403.

¶8            Rule 106, the rule of completeness, provides “if a party
introduces all or part of a writing or recorded statement, an adverse party
may require the introduction, at that time, of any other part -- or any other
writing or recorded statement -- that in fairness ought to be considered at
the same time.” A “recorded statement” may include electronic recordings
of conduct, such as the cell-phone video here. See United States v. Yevakpor,
419 F. Supp. 2d 242, 252 (N.D.N.Y. 2006) (applying Federal Rule 106 to video
recordings by a government agency); see also Brewer v. Jeep Corp., 724 F.2d
653, 657 (8th Cir. 1983) (applying Federal Rule 106 to a film commissioned
by the defendant).

¶9            In ruling that Rule 106 supports excluding the excerpt from
Ponce’s video, the court of appeals reasoned that “the deleted portion of the
video is ‘necessary to qualify, explain or place into context the portion
already introduced.’” 237 Ariz. at 534 ¶ 12, 354 P.3d at 411 (quoting State v.
Prasertphong, 210 Ariz. 496, 499 ¶ 15, 114 P.3d 828, 831 (2005)). The court of
appeals also relied on Yevakpor, a district court decision that precluded the
government from introducing three one-minute video segments from a
longer recording of a border stop and search. 237 Ariz. at 533 ¶ 9, 354 P.3d
at 410. The court in Yevakpor noted that the segments portrayed “a small

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                       STATE V. STEINLE (MORAN)
                          Opinion of the Court

clip of the entire time the defendant was recorded,” and did not show
events before the defendant was stopped or the results of the search. 419
F. Supp.2d at 244.

¶10           Rule 106, however, is a rule of inclusion rather than exclusion.
The rule provides that if one party introduces part of a recorded statement,
an adverse party may require the concurrent introduction of other parts
when fairness demands, thereby “secur[ing] for the tribunal a complete
understanding of the total tenor and effect of the utterance.” Beech Aircraft
Corp. v. Rainey, 488 U.S. 153, 171–72 (1988). Rule 106 does not by its terms
address situations when all that remains is a fragment of a once longer
statement (for example, if only a few pages have survived an author’s
unsuccessful attempt to completely destroy a diary); nor does it direct the
exclusion of evidence in any circumstance.

¶11            Yevakpor is also inapposite. That case did not turn on Rule
106. The district court instead precluded the video segments as a sanction
for government misconduct. 419 F.Supp.2d at 251. In Yevakpor, the
government agency recorded a video, selected portions it deemed relevant
(or incriminating), and then deleted or recorded over nearly 90 percent of
the rest of the recording. Id. at 245–47. Such action was inappropriate, the
district court found, because the agents knew the selected footage would be
used in prosecuting the case, and the defendant was potentially harmed by
the destruction of the rest of the video. Id. at 246–47.

¶12           In contrast to Yevakpor, here the State was not involved in
recording or editing Ponce’s video. Indeed, the State had no control over
what Ponce did with the video after he recorded it on his cell phone. The
State sought to introduce the complete version of the only video it ever
possessed – the thirty-one second recording recovered from Mahfouz’s cell
phone. Because Ponce destroyed the longer version he initially recorded,
there are no additional portions to admit. Neither Rule 106 nor Yevakpor
provides a basis for excluding the video segment at issue here.

¶13           The court of appeals also based its analysis on Rule 403, which
allows the exclusion of relevant evidence if its probative value is
substantially outweighed by the danger, among other things, of unfair
prejudice. Steinle, 237 Ariz. at 534 ¶ 13, 354 P.3d at 411. Rule 403 might
warrant excluding evidence of a remnant of a longer recorded statement,
but the court of appeals erred by addressing this issue in the current

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                       STATE V. STEINLE (MORAN)
                          Opinion of the Court

procedural posture of this case. Although Moran briefly argued to the trial
court that admitting the video would prejudice her because it omitted
events leading to the altercation, she did not raise Rule 403 in her motion to
preclude the video’s admission. Nor did the trial court identify Rule 403 in
granting Moran’s motion.

¶14             Appellate courts generally should not decide Rule 403 issues
in the first instance because such rulings are highly contextual – they
necessarily depend on assessments of not only the evidence in question, but
also the other evidence in the case. See Crackel v. Allstate Ins. Co., 208 Ariz.
252, 266 ¶ 53, 92 P.3d 882, 896 (App. 2004) (“The balancing of factors under
Rule 403 is peculiarly a function of trial courts, not appellate courts.”); see
also State v. Cooperman, 232 Ariz. 347, 351–52 ¶¶ 17–19, 306 P.3d 4, 8–9 (2013);
Readenour v. Marion Power Shovel, 149 Ariz. 442, 449–50, 719 P.2d 1058, 1065–
66 (1986).

¶15             These observations apply to video evidence. Such evidence,
while perhaps highly probative, may also potentially be unfairly prejudicial
or misleading, whether or not the video has been cropped or otherwise
edited. See, e.g., 2 McCormick on Evidence § 216 (7th ed. 2013) (“[C]ameras
do not record everything, and do record only from the perspective of where
they are situated. Enhancing and editing add a human element of
subjectivity which should also be examined and understood by the jury.”);
see also Snead v. Am. Exp.-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 150 (E.D. Pa.
1973) (Noting that “[t]he editing and splicing of films may change the
chronology of events. . . . Thus, that which purports to be a means to reach
the truth may be distorted, misleading, and false.”). Such dangers,
however, might be mitigated by testimony that explains the circumstances
in which the video was made or by cautionary instructions. Here, for
example, the State argues that Moran will not be unfairly prejudiced by
admitting the video segment because Ponce will be available to testify
about its preparation, and he and other witnesses can describe surrounding
events that are not depicted on the video.

¶16          In these circumstances, the court of appeals erred by
addressing the Rule 403 issue in the first instance. Instead, the trial court
should have the first opportunity to consider, in light of other evidence in
the case, whether the probative value of the video excerpt is substantially
outweighed by the danger of unfair prejudice to Moran.


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                       STATE V. STEINLE (MORAN)
                          Opinion of the Court

                                      B.

¶17             Moran also argues that the trial court’s ruling is supported by
other evidence rules cited in the ruling and identified in her motion to
preclude. We consider these arguments as alternative grounds for
affirming the decision below. See State v. Romero, 239 Ariz. 6, 11–12 ¶¶ 25–
28, 365 P.3d 358, 363–64 (2016) (addressing alternative grounds relied on by
trial court to exclude evidence).

¶18            First, Moran argues that Rule 1002, the “best evidence rule,”
requires introduction of the entire five-minute video as originally recorded
by Ponce. But this contention misunderstands Rule 1002, which provides
that “[a]n original writing, recording, or photograph is required in order to
prove its content unless these rules or an applicable statute provides
otherwise.” Rule 1002 applies when a witness seeks to testify about the
contents of a writing, recording, or photograph without producing the item
itself. See 6 Weinstein’s Federal Evidence § 1002.05[1] (2d ed. 2016).

¶19            Rule 1002 does not require an original writing, recording, or
photograph to prove an event that existed independently of its description
in such items. Whether the rule applies depends on whether the content of
the original is at issue. As the Advisory Committee Notes to Federal Rule
1002 explain:

       The usual course is for a witness on the stand to identify the
       photograph or motion picture as a correct representation of
       events which he saw or of a scene with which he is familiar
       [and] . . . he adopts the picture as his testimony, or . . . uses
       the picture to illustrate his testimony.         Under these
       circumstances, no effort is made to prove the contents of the
       picture, and the rule is inapplicable.

¶20           Here, the State intends to call Ponce, and other witnesses, to
identify the video as a representation of the altercation that unfolded
between Moran and L.U. Thus, the video excerpt will illustrate the
witnesses’ testimony rather than prove the contents of the original video.
Because the best evidence rule is inapplicable here, the trial court erred by
excluding the video on Rule 1002 grounds.



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                        STATE V. STEINLE (MORAN)
                           Opinion of the Court

¶21          Rule 801, the hearsay rule, likewise is not a basis for
precluding the video. Hearsay is defined by Rule 801(c)(1) and (2) as a
statement “the declarant does not make while testifying at the current trial
or hearing” that is offered “in evidence to prove the truth of the matter
asserted.” See State v. Forde, 233 Ariz. 543, 564 ¶ 78, 315 P.3d 1200, 1221
(2014). Moran argues that the cell-phone video contains multiple levels of
hearsay because Ponce and his companion can be heard making statements
in response to the stabbing and because Mahfouz “retold” the hearsay he
learned from Ponce when he gave the video to the police.

¶22             A “statement” for purposes of the hearsay rule includes not
only verbal but also nonverbal conduct, provided the latter is intended to
be an assertion. See Ariz. R. Evid. 801(a). Conduct can only be deemed an
assertion if there is specific evidence or circumstances indicating the actor
intended the conduct to be an assertion of the fact sought to be proved. See
State v. Ellison, 213 Ariz. 116, 132 ¶ 56, 140 P.3d 899, 915 (2006); see also Fed.
R. Evid. 801 advisory committee note to subdivision (a) (“[t]he effect of the
definition of ‘statement’ is to exclude from the operation of the hearsay rule
all evidence of conduct, verbal or nonverbal, not intended as an assertion”).
The conduct captured by Ponce’s video – the altercation and subsequent
stabbing – was not conduct intended as an assertion of any fact; thus, the
video is not hearsay and should not have been precluded as such.

¶23            In addition to depicting non-assertive conduct, the video also
recorded some verbal statements by Ponce or other witnesses. These
statements, however, qualify as “excited utterances” or “present sense
impressions” and thus are not precluded by the hearsay rule. See Ariz. R.
Evid. 803(1), (2). (As the State acknowledged before this Court, any hearsay
issue regarding the verbal statements could also be obviated by muting the
sound on the video excerpt.) An excited utterance is a “statement relating
to a startling event or condition, made while the declarant was under the
stress of excitement that it caused.” Rule 803(2); see State v. Whitney, 159
Ariz. 476, 482–84, 768 P.2d 638, 644–46 (1989). For a statement to qualify as
a present sense impression, the statement “must describe or explain an
event or condition while the viewer is perceiving it or immediately
thereafter.” State v. Payne, 233 Ariz. 484, 503 ¶ 50, 314 P.3d 1239, 1258 (2013)
(internal quotations and citations omitted). Ponce and his companion’s
recorded statements are either a witness’s shocked reactions upon seeing a
stabbing or descriptions made by witnesses while observing events as they
occurred.

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                        STATE V. STEINLE (MORAN)
                           Opinion of the Court

¶24           Moran also identifies Rule 901 as a basis for excluding the
video. That rule requires the proponent to authenticate or identify an item
of evidence by producing “evidence sufficient to support a finding that the
item is what the proponent claims it is.” Ariz. R. Evid. 901(a); State v. Lavers,
168 Ariz. 376, 386, 814 P.2d 333, 343 (1991). Such a foundation may be laid
by evidence either identifying the item or establishing chain of custody.
State v. Amaya Ruiz, 166 Ariz. 152, 169, 800 P.2d 1260, 1277 (1990); State v.
Ashelman, 137 Ariz. 460, 465, 671 P.2d 901, 906 (1983).

¶25            Moran argues that the State cannot satisfy Rule 901 because it
cannot show continuity of possession and, thus, a proper chain of custody.
See State v. Hurles, 185 Ariz. 199, 206, 914 P.2d 1291, 1298 (1996) (“an exhibit
may be admitted when there is evidence that strongly suggests the exact
whereabouts of the exhibit at all times and which suggests no possibility of
substitution or tampering”) (internal quotations and citations omitted).
This argument founders because Rule 901 does not invariably require chain
of custody testimony, but instead may be satisfied if the proponent
produces “evidence sufficient to support a finding that the item is what the
proponent claims it is.” See Ariz. R. Evid. 901(a); see also State v. Emery, 141
Ariz. 549, 551, 688 P.2d 175, 177 (1984) (reasoning that a party can lay
sufficient foundation for evidence by having a “witness . . . testify that the
item is what it is claimed to be”).

¶26           Generally, “the requirements for admission of a video
recording should be the same as for a photo, that it fairly and accurately
depicts that which it purports to show.” State v. Haight-Gyuro, 218 Ariz.
356, 358 ¶ 7, 186 P.3d 33, 35 (App. 2008). Thus, even if the State cannot
establish chain of custody, Ponce or other witnesses present when the video
was made can lay a sufficient foundation by testifying that it fairly and
accurately depicts events perceived by the witness. Accordingly, Rule 901
does not preclude admission of the video excerpt into evidence.

                                      III.

¶27            The trial court erred by precluding the video excerpt based on
Evidence Rules 106, 1002, 801, and 901. We therefore vacate its suppression
order, vacate the opinion of the court of appeals, and remand the case to the
trial court so it may consider, in the first instance, whether this evidence
should be precluded under Rule 403.


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