State v. Franzen , 336 Or. App. 97 ( 2024 )

No. 801 November 6, 2024 97
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DEREK JOHN FRANZEN,
Defendant-Appellant.
Deschutes County Circuit Court
20CR28569; A179028
Alison M. Emerson, Judge.
Submitted February 7, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Carla E. Edmondson, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Joyce, Judge, and Kistler,
Senior Judge.*
KISTLER, S. J.
Affirmed.
______________
* Kistler, S. J., vice Jacquot, J.
98 State v. Franzen
KISTLER, S. J.
Defendant appeals a judgment of conviction for
harassment. He argues that the trial court erred in admit-
ting a cell phone video and in denying his request for a less-
satisfactory-evidence instruction. We affirm.
This case arises from a confrontation between two
people outside a café in La Pine. One person, Benjamin, had
been volunteering at a charity event being held at the café.
The owner of the café had a disagreement with Benjamin
and asked him to leave. Benjamin was sitting in his car in
the parking lot next to the café when defendant approached
the passenger side of the car. According to Benjamin, defen-
dant began banging on the side window and the hood of his
car. Benjamin testified that he stepped out of his car, the
two men confronted each other at the back of the car, and
defendant hit Benjamin and pushed him down.
Defendant told a different story to the investigat-
ing officer.1 He told the officer that he had never touched
Benjamin. Two eyewitnesses testified. One testified that
defendant hit and pushed Benjamin down. The other, who
was romantically involved with defendant, testified that
defendant had merely tapped on Benjamin’s car and had nei-
ther hit nor shoved Benjamin, although she admitted that
defendant might have swung and missed before Benjamin
fell.
At trial, the state introduced a video of the confron-
tation, which a security camera at an adjacent cardlock fuel-
ing station had captured. Although the security camera was
focused on an off-road diesel pump, it recorded the events
in the café parking lot next door. The video introduced at
trial was a police officer’s cell phone recording of the orig-
inal surveillance video. It shows defendant approaching
the passenger side of Benjamin’s car. It shows Benjamin
getting out of his car and squaring off with defendant at
the rear of his car. Benjamin then turns away and walks
back towards the driver’s side of his car. Defendant follows
Benjamin, who turns and pushes defendant away, causing
1
Defendant did not testify at trial. The officer repeated defendant’s state-
ments to the jury when he testified.
Cite as 336 Or App 97 (2024) 99
defendant to step backwards. Defendant recovers and comes
after Benjamin. When defendant catches up with Benjamin,
defendant takes a swing at Benjamin, who falls backwards.
Because Benjamin was standing between the camera and
defendant, the video does not clearly show whether defen-
dant hit Benjamin or whether he swung and missed.
The jury convicted defendant of harassment but
acquitted him of fourth-degree assault.2 On appeal, defen-
dant assigns error to two rulings. His first assignment of
error is directed at a pretrial ruling admitting the cell phone
video. He argues that the cell phone video was not an accu-
rate copy of the original surveillance video and thus was not
an admissible duplicate. His second assignment of error is
directed at the trial court’s ruling denying his request for a
less-satisfactory-evidence instruction.
We begin with the first assignment of error and take
the facts from the pretrial hearing on defendant’s motion
in limine to exclude the cell phone video. The officer investi-
gating the confrontation between defendant and Benjamin
spoke with O’Kane, who managed the surveillance system
for the cardlock fueling station. The officer asked O’Kane
whether the station’s surveillance video had captured a con-
frontation a couple of days earlier. O’Kane found the rele-
vant part of the surveillance video and showed it to the offi-
cer, who asked if O’Kane could make a digital copy of the
surveillance video. O’Kane did not know how to do that, and
the people who might know were out of town.3 The officer
accordingly used his cell phone to make a digital copy of
what he perceived was the relevant portion of the surveil-
lance video—the portion that captured the confrontation.
He later emailed the cell phone video to his office where he
burned a CD of that video.
At the pretrial hearing, defendant did not dispute
that the cell phone video would be admissible if it were an
2
Interpreting the video consistently with the jury’s verdict, we note that the
jury could have found that defendant swung at Benjamin and missed.
3
At the pretrial hearing, the state explained, and defendant did not dispute,
that the surveillance video would have been recorded over, as part of the security
system’s regular operation, if the officer had not found a way to record it himself.
The state later offered evidence at trial to establish that fact.
100 State v. Franzen
accurate copy of the original surveillance video.4 See OEC
1003 (providing that a duplicate of an original document is
admissible). He argued, however, that it was not an accurate
copy for two reasons. Defendant noted initially that the offi-
cer’s reflection is visible on the cell phone video. The state
did not dispute that the officer’s reflection can be seen on the
cell phone video and that it was not part of the original sur-
veillance video.5 However, the officer testified that he did not
notice his reflection when he recently viewed the cell phone
video, and he agreed that, although his reflection is visible
on the cell phone video, his reflection did not “detract, in any
material way, from what the original video showed.”
The trial court did not find defendant’s first objection
persuasive. Rather, the court found that the cell phone video
was a true and accurate copy of the original surveillance
video. The trial court reasonably could have found, based on
the witnesses’ testimony at the pretrial hearing and its obser-
vation of the cell phone video, that the outline or shadow of the
officer’s image is visible on the cell phone video but that, as
the officer testified, his reflection did not detract in any mate-
rial way from what the original surveillance video showed.
Defendant raised a second, more substantial objec-
tion. His lawyer asked both O’Kane and the officer if, in
viewing the original surveillance video, they “recall[ed] at
about 25 seconds in that video there being a cut or splice in
that video.” O’Kane did not recall seeing any cuts or splices
in the original; neither did the officer. The officer noted,
however, that, in reviewing the cell phone video, “I see a—a
part where it appears to jump a little bit. I don’t—I don’t
remember noticing that at the time.”
In ruling on defendant’s second objection, the trial
court observed that “as to the issues of this potential splice,
my recollection of the testimony is that it appears that there
might be a jump, not that there necessarily was a splice,
but that [the officer] did state that he took the video as the
4
Defendant did not dispute that the CD was an accurate copy of the cell
phone video. We accordingly refer to the cell phone video, which is the focus of
defendant’s argument, rather than the CD.
5
Presumably, the monitor displaying the original surveillance video reflected
the officer’s image as he recorded the surveillance video.
Cite as 336 Or App 97 (2024) 101
[original surveillance] video was playing.” The court found
that there is “no evidence to show that there is actually a
change in the video, only that there might be something
that they view as a jump in the video.”
As we understand the court’s ruling, the court con-
cluded that any jump in the cell phone video was present in
the original surveillance video. Defendant argues, however,
that the trial court should have inferred from the fact that
neither O’Kane nor the officer remembered a jump in the orig-
inal surveillance video that the jump in the cell phone video
was not present in the original. The court could have drawn
that inference; however, it was not required to do so. Both
O’Kane and the officer viewed the original surveillance video
approximately two years before the pretrial hearing. The
court reasonably could have found that the “jump” was not
memorable and that the fact that neither O’Kane nor the offi-
cer remembered it did not mean that the jump was not pres-
ent on the original surveillance video.6 That is particularly
true given the officer’s testimony that he took the cell phone
video as accurately as he could to capture the images on the
surveillance video and O’Kane’s testimony that the cell phone
video was a fair and accurate copy of the original.7 Given the
trial court’s findings, defendant’s arguments that the cell
phone video was not an accurate copy of the original surveil-
lance video fail. Cf. State v. Carlson, 311 Or 201, 217-19, 808
P2d 1002 (1991) (upholding a trial court’s evidentiary ruling
because there was evidence in the OEC 104(1) hearing from
which the trial court reasonably could have made the factual
findings that were a predicate for its evidentiary ruling).
6
The court reasonably could find that the jump is brief. It appears in the
video after Benjamin pushed defendant away and began to walk back to the
driver’s side of his car. Between the time that defendant recovered from being
pushed back and the time that he began to come quickly towards Benjamin, the
jump in the video appears.
7
In ruling on defendant’s motion, the trial court referred to O’Kane’s and
the officer’s testimony that the cell phone video was a true and accurate copy of
the original. Although O’Kane testified that the cell phone video was a fair and
accurate copy of the original video, the officer did not explicitly say that. The
trial court, however, reasonably could have inferred from the officer’s testimony
that he viewed the cell phone video as a true and accurate copy of the original.
Moreover, as the state notes, the officer testified at trial that the cell phone video
was a fair and accurate copy of the original before defendant renewed his objec-
tion to the video’s admission, which the court overruled.
102 State v. Franzen
Defendant’s second assignment of error is directed
at the trial court’s ruling denying defendant’s request for
a less-satisfactory-evidence instruction. See ORS 10.095(7)
and (8). Those subsections provide that the jury is to be
instructed on all appropriate occasions:
“(7) That evidence is to be estimated, not only by its own
intrinsic weight, but also according to the evidence which
it is in the power of one side to produce and of the other to
contradict; and therefore,
“(8) That if weaker and less satisfactory evidence is
offered when it appears that stronger and more satisfac-
tory [evidence] was within the power of the party, the evi-
dence offered should be viewed with distrust.”
ORS 10.095(7) and (8); see State v. McDonnell, 313 Or 478,
497-503, 837 P2d 941 (1992) (interpreting those subsections).
At trial, defense counsel identified a laundry list of
reasons why, in his view, a less-satisfactory-evidence instruc-
tion was appropriate. Those reasons ranged from the state’s
failure to call other witnesses to its failure to show the jury
the original surveillance video from the time that Benjamin
first arrived at the café until the time that he drove out of
the parking lot. Defendant told the trial court that the entire
surveillance video would have shown whether Benjamin
arrived at the café at 10:45 a.m., as Benjamin testified, or
at noon, as a defense witness testified. Moreover, defendant
explained that the entire surveillance video would have
shown whether Benjamin made a derogatory remark about
defendant as he drove out of the parking lot, as a defense
witness testified and as Benjamin denied. Notably, defen-
dant did not rely on the jump on the cell phone video as a
basis for giving a less-satisfactory-evidence instruction.8
Although defendant offered multiple reasons at trial
why the instruction should be given, the pertinent portion of
the record that he sets out on appeal in support of his assign-
ment of error identifies only two respects in which the state’s
trial evidence was less satisfactory than other evidence it
could have offered. Both relate to the cell phone video. First,
8
Indeed, no evidence was offered at trial (as opposed to the pretrial hearing)
from which the jury could have inferred that the cell phone video did not accurately
capture the portion of the original surveillance video that the officer recorded.
Cite as 336 Or App 97 (2024) 103
defendant told the trial court that, in recording the original
surveillance video, the officer zoomed in on the portion of the
monitor showing the confrontation rather than recording the
whole monitor. He argued that, if the officer had recorded the
whole monitor, the resulting recording could have revealed
witnesses or other relevant evidence. Second, the officer
recorded the portion of the original surveillance video that
showed the confrontation between defendant and Benjamin.
He did not, however, continue recording the surveillance video
and failed to record whether Benjamin made a disparaging
remark about defendant as Benjamin drove away from the
parking lot.
Neither omission that defendant has identified on
appeal provides a basis for reversing the trial court’s ruling.
The first omission that defendant identifies fails for two rea-
sons. There was no evidence at trial that the officer zoomed in
when he recorded the original surveillance video. To be sure,
there was evidence at the pretrial hearing that he zoomed in
on the confrontation rather than recording the whole monitor
displaying the original surveillance video. But that evidence
was not before the jury, which had no basis for inferring that
cell phone video was less satisfactory in that respect than the
original surveillance video.
Beyond that, defendant offered no evidence from
which the jury reasonably could have found that the original
video would have contained any relevant evidence that the
cell phone video did not. The Supreme Court has explained
that a party requesting a less-satisfactory-evidence instruc-
tion must show that the jury reasonably could conclude that
the evidence that was not offered would have been “stronger
and more satisfactory than the evidence [that was] offered.”
McDonnell, 313 Or at 500. Defendant did not meet that min-
imum criterion. He merely speculated that, if the officer had
recorded the entire monitor, as opposed to zooming in on the
confrontation, the resulting recording might have revealed
something that could have been helpful.
The second omission noted in defendant’s brief does
not advance his argument. As defendant correctly notes,
the café owner testified at trial that, as Benjamin “left the
parking lot,” he “said we [(the café owner and defendant)]
104 State v. Franzen
were going to get ours, and he pointed at [defendant] and
said, ‘You’re going to jail,’ and laughed while he was driving.”
Defendant reasoned that, if the state had offered the original
surveillance video (or if the deputy had recorded more of the
original video), the jury would have been able to determine
whether the café owner’s testimony was accurate or whether,
as Benjamin said, he had not made those remarks.
The initial difficulty with defendant’s argument is
that the original surveillance video had no audio.9 It would not
have revealed what Benjamin did or did not say. Moreover, the
fueling station’s security camera was focused on a fixed point
and captured the portion of the parking lot where Benjamin’s
car was parked. There is nothing in the record from which
the jury reasonably could have found that the camera would
have captured footage of Benjamin’s car as it “left the park-
ing lot” and as “he was driving” away. For all that appears
from the record, the jury could not even have determined
if Benjamin rolled down his window and moved his lips. In
short, the record lacks evidence from which the jury could
have inferred that either the original surveillance video or a
longer cell phone recording of the original video would have
confirmed which witness’s testimony was accurate.
As before, the jury could not reasonably have found
that the cell phone video was less satisfactory than the orig-
inal video in the two respects that defendant noted below
and renews on appeal. In his brief, defendant has mounted
an ambitious argument that the text and context of ORS
10.095(7) and (8) are so clear that we should overrule many
of our past cases (and perhaps parts of the Supreme Court’s
decision in McDonnell) explaining when a less-satisfactory-
evidence instruction is appropriate. However, given the
two specific omissions that defendant noted below and has
renewed on appeal, we need not reach the broader statutory
arguments that he now pursues.
Affirmed.
9
The officer testified at trial to that fact, which no one disputed.