                                                                          FILED BY CLERK
                             IN THE COURT OF APPEALS                         JUNE 18 2008
                                 STATE OF ARIZONA                             COURT OF APPEALS
                                   DIVISION TWO                                 DIVISION TWO


THE STATE OF ARIZONA,                          )
                                               )           2 CA-CR 2007-0218
                                 Appellee,     )           DEPARTMENT A
                                               )
                    v.                         )           OPINION
                                               )
TIMOTHY CHRISTOPHER HAIGHT-                    )
GYURO,                                         )
                                               )
                                 Appellant.    )
                                               )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. CR20062034

                      Honorable Barbara Sattler, Judge Pro Tempore

                                        AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Jonathan Bass                                               Tucson
                                                                     Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
 By Stephan J. McCaffery                                                            Tucson
                                                                    Attorneys for Appellant


B R A M M E R, Judge.


¶1            Appellant Timothy Haight-Gyuro appeals his convictions for theft by control

and/or by misrepresentation, theft of a credit card, forgery, and theft by controlling stolen
property. He argues the trial court abused its discretion by admitting into evidence a copy

of a videotape recorded by a retail store’s surveillance cameras. Finding no error, we affirm.

                          Factual and Procedural Background

¶2            On appeal, we view the evidence and all reasonable inferences therefrom in the

light most favorable to sustaining the jury’s verdicts. State v. Cropper, 205 Ariz. 181, ¶ 2,

68 P.3d 407, 408 (2003). On May 23, 2006, Haight-Gyuro used a stolen credit card to

purchase various items at a retail store. A store surveillance camera recorded him purchasing

merchandise at a cash register and signing the credit card slip.

¶3            The following day, Oro Valley Police Department Detective Doug Hamblin

received information that Tucson Police Department officers had found items taken in the

same burglary in which the credit card had been stolen. After arriving at the location where

the property had been found, Hamblin spoke with Haight-Gyuro’s wife, S., who showed him

property “piled up outside” a car S.’s mother had rented for S. and Haight-Gyuro to use. The

property included items taken during the burglary and items purchased from the retail store

with the stolen credit card. Haight-Gyuro’s wallet and identification were found in the car.

Haight-Gyuro was arrested that day and charged with theft by control, trafficking in stolen

property, forgery, theft of a credit card, and theft by control and/or misrepresentation. The

trafficking count was subsequently dismissed.

¶4            Before trial, Haight-Gyuro moved to suppress a copy of the surveillance

videotape, arguing admission of the video recording into evidence violated Rules 704 and



                                              2
403, Ariz. R. Evid., because a computer cursor appeared on the copy that pointed to a

specific individual “alleged to be” Haight-Gyuro in the video recording. The trial court

denied the motion. During the suppression hearing, however, Haight-Gyuro additionally had

argued the state would be unable to provide a proper foundation for the video recording

because the retail store’s loss-prevention investigator, B., had not recalled placing the

computer cursor on the copy or giving the recording to Hamblin.1 The court sua sponte

raised the additional question whether the state could demonstrate the video recording

“accurately reflects the situation at the time it’s purported to reflect.” After argument, the

court took the matter under advisement.

¶5            On the first day of trial,2 the court granted Haight-Gyuro’s motion in limine

requesting that the state initially establish foundation for the video recording outside the

jury’s presence. B. then testified, and the court again took the motion under advisement.

After further argument, the court ruled that the state had provided “sufficient foundation [for

the video recording]” and that it would “allow the recording in.” The court admitted it into

evidence, over Haight-Gyuro’s objection, after B. testified in the jury’s presence on the

second day of trial.




       1
        B. had apparently stated in pretrial interviews that he did not recall making the
recording or giving it to Hamblin. He testified at trial, however, that he had made the
recording and gave it to Hamblin.
       2
       Trial was held before a different judge than the one who had presided over the
suppression hearing.

                                              3
¶6            After a three-day trial, the jury convicted Haight-Gyuro of the remaining

counts. The trial court sentenced Haight-Gyuro to concurrent, presumptive prison terms, the

longest of which was 6.5 years. This appeal followed.

                                         Discussion

¶7            We review the trial court’s ruling on the admissibility of evidence for a clear

abuse of discretion. State v. King, 213 Ariz. 632, ¶ 7, 146 P.3d 1274, 1277 (App. 2006).

Haight-Gyuro asserts the state “failed to present the trial court with testimony that the video

recordings were accurate depictions of the events recorded,” relying on Lohmeier v. Hammer,

214 Ariz. 57, 148 P.3d 101 (App. 2006), and State v. Paul, 146 Ariz. 86, 703 P.2d 1235

(App. 1985). Paul states that “the requirements for admission of a videorecording should be

the same as for a photo, that it fairly and accurately depicts that which it purports to show.”

146 Ariz. at 88, 703 P.2d at 1237. In Lohmeier, Division One of this court stated, “To be

admissible, a photograph must be a reasonably faithful representation of the object depicted

and aid the jury in understanding the testimony or evaluating the issues.” 214 Ariz. 57, ¶ 8,

148 P.3d at 105. And, although “the individual who took the photographs need not be the

person who verifies them at trial, and the verifying witness is not required to have been

present when the photographs were taken,” the verifying witness must “attest that the

photographs accurately portray the scene or object depicted.” Id.

¶8            It is undisputed that the procedure described in Lohmeier was not used here.

There was no testimony by a witness who saw the recorded transaction occur and, therefore,



                                              4
no witness who could testify from firsthand knowledge that the video recording accurately

portrayed that event.    The state contends, however, that the recording was properly

authenticated pursuant to Rule 901(b)(9), Ariz. R. Evid. Rule 901(a) states that, “as a

condition precedent to admissibility,” evidence must be authenticated or identified by

evidence “sufficient to support a finding that the matter in question is what its proponent

claims.” Rule 901(b) describes several methods by which this requirement may be met, and

subsection (b)(9) states that authentication may be accomplished by presenting “[e]vidence

describing a process or system used to produce a result and showing that the process or

system produces an accurate result.” For evidence to be properly authenticated, the trial

court “must be satisfied that the record contains sufficient evidence to support a jury finding

that the offered evidence is what its proponent claims it to be. The [court] does not

determine whether the evidence is authentic, but only whether evidence exists from which

the jury could reasonably conclude that it is authentic.” State v. Lavers, 168 Ariz. 376, 386,

814 P.2d 333, 343 (1991).

¶9            We first address Haight-Gyuro’s argument that, even if the video recording

were properly authenticated under Rule 901(b)(9), there must be an additional showing the

recording is accurate, on the theory that “authentication . . . differs from accuracy.” Haight-

Gyuro misapprehends both Rule 901 and Lohmeier. Although Lohmeier does not explicitly

discuss Rule 901, its discussion of the admissibility of photographic evidence does nothing

more than explain the authentication method described in Rule 901(b)(1), which allows



                                              5
authentication by “[t]estimony that a matter is what it is claimed to be.” For photographic

or video evidence, the authenticating evidence frequently takes the form of witness testimony

that the photograph or video accurately portrays whatever it purportedly depicts. That is,

authentication is achieved by evidence establishing the photograph or video is what its

proponent claims—an accurate depiction of a particular person, place, object, or event.

¶10           Thus, in these circumstances, accuracy is more appropriately regarded as a

component of authentication. See, e.g., United States v. Rembert, 863 F.2d 1023, 1026 (D.C.

Cir. 1988) (authentication under Rule 901(b)(1), Fed. R. Evid., requires testimony by person

“who has personal knowledge of the scene depicted” that “photograph fairly and accurately

portrays that scene”); Guam v. Ojeda, 758 F.2d 403, 408 (9th Cir. 1985) (citing Rule

901(b)(1), Fed. R. Evid., for proposition that “witness identifying the item in a photograph

need only establish that the photograph is an accurate portrayal of the item in question”).3

As we will explain, if a party seeks to admit into evidence a video recording it asserts is an

accurate recording of a particular event, to authenticate that video recording under Rule

901(a), it must provide some evidence from which a jury could conclude the recording in fact

accurately depicts that event.




       3
        Other than minor textual differences not relevant here, the federal rule is identical to
ours. See State v. Johnson, 132 Ariz. 5, 8, 643 P.2d 708, 711 (App. 1981) (because Arizona
evidence rules adopted from federal, “in the absence of Arizona precedent as a guide to
interpretation of our rules, we will look to the federal courts which have interpreted the
Federal Rules of Evidence”).

                                               6
¶11            We now turn to the state’s argument the video recording was properly

authenticated under Rule 901(b)(9). The authentication of evidence under that rule is also

known as the “silent witness” theory of authentication.4 See 2 John W. Strong et al.,

McCormick on Evidence, § 214, at 15 (5th ed. 1999). Under this theory, “photographic

evidence may draw its verification, not from any witness who has actually viewed the scene

portrayed on film, but from other evidence which supports the reliability of the photographic

product.” Id. at 15-16. Although Arizona has not explicitly adopted this method of

authentication, it is accepted, in one form or another, “in virtually all jurisdictions.” Id. at 16.

¶12            Jurisdictions differ, however, in how they have articulated authentication

requirements under the silent witness theory. For example, Alabama has adopted a seven-

part standard for authentication that includes: (1) showing that the system used “was capable

of recording what a witness would have seen or heard had a witness been present at the scene

or event recorded”; (2) showing that the operator was competent; (3) “establish[ing] . . . the

authenticity and correctness of the resulting recording”; (4) showing no alterations had been

made; (5) showing the manner by which the “recording . . . was preserved”; (6) “identif[ying]


       4
         This term is used because courts draw a distinction between automated recordings
used as substantive evidence and those used as demonstrative evidence. See Bergner v.
State, 397 N.E.2d 1012, 1015 (Ind. Ct. App. 1979). When such a recording is used as
substantive evidence, “there is no need for a witness to testify a photograph accurately
represents what he or she observed; the photograph ‘speaks for itself.’” Id., quoting 3 J.
Wigmore, Evidence, § 790, at 220 (Chadbourn rev. 1970). Authentication under Rule
901(b)(1), in contrast, is often referred to as the “‘pictorial testimony theory.’” Id. Of
course, the recording must be supported by sufficient evidence to permit a jury to conclude
it is accurate.

                                                 7
. . . the speakers, or persons pictured”; and (7) in criminal cases, showing any statements

made were voluntary. Ex Parte Fuller, 620 So. 2d 675, 678 (Ala. 1993); see also Calhoun

v. State, 932 So. 2d 923, 954 (Ala. Crim. App. 2005). The Florida Court of Appeals similarly

affirmed a trial court’s decision to admit videotape evidence under the silent witness theory

after considering five factors: evidence of the time and date, presence or absence of evidence

of tampering, the operating condition and reliability of the system, operating and testing

procedures, and the identification of participants depicted in the recording. See Wagner v.

State, 707 So. 2d 827, 831 (Fla. Dist. Ct. App. 1998).

¶13           Other courts, however, have adopted a less rigid approach. Indiana, for

example, requires a “‘strong showing of the [recording’s] competency and authenticity,’”

based on the facts and circumstances of the case. Kindred v. State, 524 N.E.2d 279, 298 (Ind.

1988), quoting Bergner v. State, 397 N.E.2d 1012, 1017 (Ind. Ct. App. 1979) (emphasis

removed). The Nebraska Supreme Court stated in State v. Anglemyer, 691 N.W.2d 153, 161-

62 (Neb. 2005), that:

              The general rule . . . is that photographic evidence is admissible
              when it is shown that it is a correct reproduction of what it
              purports to depict. This is often proved by the testimony of the
              one who took the photograph. However, this is not necessary,
              and it is well settled that the showing may be made by any
              evidence that bears on whether the photographic evidence
              correctly depicts what it purports to represent.

¶14           We agree with those courts that have declined to adopt a rigid, formulaic

approach to the silent witness theory of authentication. The illustrations listed in Rule 901(b)



                                               8
are merely nonexclusive “examples” and do not foreclose any other method of authentication

that would meet the requirement of Rule 901(a). The only question, then, is whether there

is “sufficient evidence to support a jury finding that the offered evidence is what its

proponent claims it to be.” Lavers, 168 Ariz. at 386, 814 P.2d at 343. We conclude a

flexible approach is appropriate, allowing a trial court to consider the unique facts and

circumstances in each case—and the purpose for which the evidence is being offered—in

deciding whether the evidence has been properly authenticated. See Bergner, 397 N.E.2d at

1017 (declining to “lay down extensive, absolute foundation requirements” because “[e]very

photograph [or other recording], the context in which it was taken, and its use at trial will be

different in some respect”). Here, the primary purpose of showing the video recording to the

jury was, of course, to permit it to identify Haight-Gyuro as the man who had purchased the

items and signed the credit card slip. Thus, to comply with Rule 901(a), there must have

been sufficient evidence to allow the jury to conclude the video recording depicted, with

reasonable accuracy, the transaction in which the stolen credit card was used.5




       5
        Haight-Gyuro argues the trial court erred by not considering whether the video
recording accurately reflected the credit card transaction. But it is clear from the court’s
discussion of the issue that it recognized accuracy, in these circumstances, is a component
of authenticity. That the court did not specifically find the video recording to be sufficiently
accurate is inconsequential. Cf. Horton v. Mitchell, 200 Ariz. 523, ¶ 13, 29 P.3d 870, 873
(App. 2001) (reviewing court assumes trial court found facts necessary to support ruling).
In any event, we may affirm for any reason supported by the record. See State v. King, 213
Ariz. 632, ¶ 8, 146 P.3d 1274, 1277 (App. 2006).

                                               9
¶15           B. testified that his job responsibilities included “[h]ooking up” and

“maintaining” the store’s surveillance system, a closed-circuit television system with

“[a]pproximately 150 cameras inside and outside the store.” He stated that “[m]ostly every

single register has a camera over it” and that the cameras run twenty-four hours a day. He

also testified that he had previously obtained similar copies of video recordings for law

enforcement officers and that he could use a “dollar amount or time stamp or something that

matches a credit card number” to find a specific transaction. The transaction would contain

a date, time, and register number, by which he could locate the videotape “that correlates to

the transaction.” B. further stated the times listed on the receipt were accurate “within 10

minutes.”

¶16           In addition, B. testified he had followed that procedure to determine which

camera had recorded the transaction here and had copied the recording to a video disc that

he then gave to Hamblin. He described the items purchased with the stolen credit card,

including a television, a digital video disc player, a comforter, “several pillows,” and a “12-

inch bike.” Both the credit card slip from that transaction and the transaction record were

admitted without objection into evidence.

¶17           Viewed as a whole, this testimony and evidence were sufficient for the jury to

conclude that the video recording accurately depicted the transaction in which the stolen

credit card had been used. See Lavers, 168 Ariz. at 386, 814 P.2d at 343. Haight-Gyuro

contends, however, that this evidence is insufficient to ensure accuracy because no evidence


                                              10
“address[ed] the type of image the equipment would produce.” He asserts a properly-

working “camera lense [sic] may cause[] images to appear closer or larger than they would

appear to the naked eye” or “capture colors that are more or less true to how they would

appear to the naked eye.” 6 A video recording or photograph, however, need not be perfectly

accurate—it need merely be a “reasonably faithful representation.” Lohmeier, 214 Ariz. 57,

¶ 8, 148 P.3d at 105; see also Consol. Rail Corp. v. Thomas, 463 N.E.2d 315, 319 (Ind. Ct.

App. 1984) (“[A] photograph will be admissible so long as the discrepancies between it and

its subject are not materially misleading either because they are minor or because the witness

explains them ‘in such a way that the jury would not be misled.’”), quoting Gill v. State, 368

N.E.2d 1159, 1162 (Ind. 1977).

¶18           As we noted above, the state’s primary purpose in presenting the video

recording to the jury was to permit identification of Haight-Gyuro as the man who had used

the stolen credit card. Because the video recording was from a camera located above the

register and therefore did not show the individual’s face, the state asked the jury to compare

the images to a photograph taken of Haight-Gyuro on the day of his arrest—authenticated

in the more traditional manner under Rule 901(b)(1) and Lohmeier. In that photograph,




       6
        Haight-Gyuro also asserts the video recording is inaccurate because it is “so grainy
as to make familiar objects unrecognizable.” As we state below, however, many of the
objects retrieved from Haight-Gyuro’s car were identifiable in the recording, and a jury could
properly conclude the recording was an accurate depiction. In any event, the relative quality
of a video recording does not necessarily make it inaccurate—it is ultimately for the jury to
decide whether it can identify the objects and persons the recording depicts.

                                             11
Haight-Gyuro is wearing a red, short-sleeved shirt with light-colored trim at the ends of the

sleeves and around the neck, with a small, light-colored insignia on the chest. This clothing

appears strikingly similar to the clothing worn by the person in the video recording. Thus,

Haight-Gyuro’s concerns about accuracy, particularly about how the camera might display

colors, are reasonable. If the video recording had not shown the colors of that clothing

accurately, it might have misled the jury into making an incorrect identification.

¶19            Any remaining concern about the recording’s accuracy, however, dissipates

when the video recording is compared to photographs of the items taken from Haight-

Gyuro’s car.    The television set, bicycle, and several other items depicted in those

photographs and purchased with the stolen credit card were readily identifiable on the video

recording. The colors of those items closely matched the colors in the photographs, which

were authenticated by Hamblin’s testimony that he recognized the items. Given this

comparison, there was sufficient evidence to support the trial court’s conclusion that the

recording was sufficiently accurate. See Lohmeier, 214 Ariz. 57, ¶ 8, 148 P.3d at 105;

Consol. Rail Corp., 463 N.E.2d at 319; see also United States v. Stearns, 550 F.2d 1167,

1171 (9th Cir. 1977) (recognizing that, “[e]ven if direct testimony as to foundation matters

is absent, however, the contents of a photograph itself, together with such other

circumstantial or indirect evidence as bears upon the issue, may serve to explain and

authenticate a photograph sufficiently to justify its admission into evidence”). Accordingly,




                                             12
the trial court did not abuse its discretion by admitting the video recording into evidence

under Rule 901.

                                       Disposition

¶20           We affirm Haight-Gyuro’s convictions and sentences.




                                             J. WILLIAM BRAMMER, JR., Judge

CONCURRING:




JOSEPH W. HOWARD, Presiding Judge




JOHN PELANDER, Chief Judge




                                            13
