                                                                           FILED
                                                                        JUNE 19, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 35233-1-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
JAMIE LYNNE HUGDAHL,                          )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — Jamie Hugdahl appeals her convictions for second degree theft and

first degree trafficking in stolen property, challenging the foundation for a video

recording that was admitted at trial. Finding no abuse of discretion, we affirm.

                                          FACTS

       This appeal arises from the theft and subsequent transfer of a new iPhone 6S,

valued at $700 to $900, from the Verizon store in Ellensburg. The missing phone was

part of a shipment of new iPhones left on a store counter while the clerk waited on a

customer. Part of the theft was captured by a security video. The security contractor

provided a copy of the video to Amy Hittinger, the district manager for Verizon.

       Ms. Hugdahl was arrested after she traded the iPhone to a man, Michael Aldridge,

who subsequently activated the device. He named Hugdahl as the person he had traded
No. 35233-1-III
State v. Hugdahl


with. A store clerk later testified that Ms. Hugdahl had been in the Verizon store in order

to make a return an hour or two before the theft was discovered. When questioned by an

officer, Ms. Hugdahl claimed to have obtained the iPhone from a third party and did not

know it had been stolen.

       The noted charges were filed and the case proceeded to jury trial. Ms. Hittinger

and the investigating officer, Clayton Self, provided the foundation testimony for the

video. The Ellensburg store was one of six stores that Ms. Hittinger supervised. She

testified that the interior of the store depicted in the video appeared to be the Ellensburg

store. Officer Self, who also was familiar with the store, testified that the video was of

the Ellensburg store. The video also showed from the back a woman approaching the

counter where the stolen phone had been sitting. Familiar with Ms. Hugdahl’s stature

and her dressing habits, the officer believed the woman in the video was “consistent”

with Ms. Hugdahl. The date and time stamps on the video were of the time period when

the phone went missing. The court admitted the video, Exhibit 4, over defense objection

to the foundation.

       The defense argued the case to the jury on the theory that the video did not depict

Ms. Hugdahl and that Mr. Aldridge, who had a criminal record, was probably the thief.

The jury, however, found Ms. Hugdahl guilty on the noted counts. She timely appealed

to this court. A panel considered the matter without argument.



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No. 35233-1-III
State v. Hugdahl


                                        ANALYSIS

       Ms. Hugdahl presents a single issue in this appeal. She argues that the court erred

in concluding that a sufficient foundation was offered to admit Exhibit 4. The prosecutor

argues that there was no error and that any error would have been harmless. Although a

better foundation could have been offered, we conclude that the trial court did not abuse

its discretion. We do not address the harmless error argument.

       The decision to admit or exclude evidence at trial is reviewed for manifest abuse

of discretion. State v. Wittenbarger, 124 Wn.2d 467, 490, 880 P.2d 517 (1994); Boyd v.

Kulczyk, 115 Wn. App. 411, 416, 63 P.3d 156 (2003). Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971). Any error in the admission of evidence is

harmless if “within reasonable probabilities” it did not affect the outcome of the trial.

State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d 1101 (1986).

       The authentication of evidence is governed by ER 901. That rule provides:

               (a) General Provision. The requirement of authentication or
       identification as a condition precedent to admissibility is satisfied by
       evidence sufficient to support a finding that the matter in question is what
       its proponent claims.
               (b) Illustrations. By way of illustration only, and not by way of
       limitation, the following are examples of authentication or identification
       conforming with the requirements of this Rule:
               (1) Testimony of Witness with Knowledge. Testimony that a matter
       is what it is claimed to be.
               ....


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No. 35233-1-III
State v. Hugdahl


          (4) Distinctive Characteristics and the Like. Appearance, contents,
       substance, internal patterns, or other distinctive characteristics, taken in
       conjunction with circumstances.

       Video recordings follow the same standards for authentication as photographs.

State v. Newman, 4 Wn. App. 588, 592-593, 484 P.2d 473 (1971). To authenticate such

evidence, the proponent must put forward a witness “able to give some indication as to

when, where, and under what circumstances the photograph was taken, and that the

photograph accurately portrays the subject illustrated.” Id. at 593. The witness does not

necessarily need to be the photographer. Id. Similarly, the authenticator does not need to

have been present at the creation of the video. State v. Sapp, 182 Wn. App. 910, 916, 332

P.3d 1058 (2014).

       With these standards in mind, we believe the trial judge had a tenable basis for

admitting the evidence. Ms. Hittinger had requested a copy of the surveillance video for

her Ellensburg store covering the date and time of the alleged theft and received a video

depicting that store. Officer Self was certain that the video was of the store and he

believed that a portion of the video showed a person “consistent” with Ms. Hugdahl who

was known to have been in the store that morning to make a return. Given all of these

facts, the trial judge had a basis for believing that the video depicted the incident in

question, making it authentic and also relevant.

       These were tenable grounds for determining authenticity and admitting the exhibit.

There was no abuse of discretion.

                                              4
No. 35233-1-111
State v. Hugdahl


      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



      Fearing,



  �.�
  Pennell, A.CJ.




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