IN THE



## S UPREME 

## C OURT O F THE 

## S TATE OF 

## A RIZONA

S TATE OF A RIZONA

, Petitioner

,

v.

H ON

. R OLAND J. S TEINLE , J UDGE OF THE S UPERIOR C OURT OF THE S TATE OF

A RIZONA

, IN AND FOR THE C OUNTY OF M ARICOPA , Respondent Judge,

A LEJANDRA M ONSERAT M ORAN , 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 a n excerpt from a cell

phone video recorded by a witness to a stabbing. Because the trial courtS TATE V

. S TEINLE (MORAN) Opinion of the Court

2 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 t he S tate charged Moran
with first

- degree murder. Detectives seized Mahfouz ’s phone to preserve the video evidence. They also unsuccessfully attemp ted to recover the full

length version of the video from Ponce’s phone

. Moran mo ved to exclude
the video excerpt on the grounds that it was inadmissible under A rizona
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) , 23 7 Ariz. 531, 534 ¶ 14, 354 P.3d 4 08 , 411 ( App. 2015).

¶5 We granted review to de termine 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

a rticle 6, s ection 5(3) of the Arizona Consti tution and A.R.S. § 12

- 120.24.S TATE V

. S TEINLE (MORAN) Opinion of the Court

3 I I.

¶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, 12 57 (2013). Our interpretation is guided, but not determined, by federal court decisions
when our eviden ce 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 c ompleteness, provides “ if a party
introd uces 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 U nited 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 fil m commissioned by the defendant )

.

¶9 In ruling that Rule 106 supports excluding the excerpt from Ponce’s video, the court of appeals reasoned that “t he 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 record ing of a border stop and search. 237 Ariz. at 533 ¶ 9, 354 P.3d

at 410. The court i n Yevakpor noted that the segments portrayed “a smallS TATE V

. S TEINLE (MORAN) Opinion of the Court

4 clip of the entire time the defendant was recorded

, ” and did not show

events before the defendant was stopped or th e results of the search

. 419 F. Supp. 2d at 244

.

¶10 Rule 106, however, is a rule of inclusion rather than exclusion.
Th e 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] f or 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 th at remains is a fragment of a once l onger 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 preclud ed 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 24 5

– 47

. Such action was inappropriate , the district court found, because the agents knew the selected footage would be used in p rosecuting 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 record ed it on his cell phone. T he 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, bu t the court of appeals erred by addressing t h is issue in the currentS TATE V

. S TEINLE (MORAN) Opinion of the Court

5 procedural posture of this case. Although Moran briefly argued to the trial

court that admi tting 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 t he 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 hig hly 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 o bservations 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 Evid ence § 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

. . . . T hus, 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 unfai rly prejudiced by
admi tting 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, t he court of appeals erred by addressing the Rule 403 issue in the first instance. Instead, t he 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 substanti ally outweighed by the danger of unfair prejudice to Moran.S TATE V

. S TEINLE (MORAN) Opinion of the Court

6 B.

¶17 Moran also argues that the trial court’s ruling is supported by
other e vidence r ules 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, 1 1

– 12 ¶¶ 25

– 28, 365 P.3d 358, 36 3

– 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 p hotograph 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

its elf

. 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 t he Advisory Committee Notes to Federal Rule

1002 ex plain :

T he 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 tes timony. Under these circumstances, no effort is made to prove the contents of the picture, and the rule is inap plicable.

¶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 inappl icable here, t he trial court erred by excluding the video on Rule 1002 grounds

.S TATE V

. S TEINLE (MORAN) Opinion of the Court

7 ¶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 v erbal 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 circ umstances 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 comm ittee note to sub division (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 . 80 3 (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 relat ing 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 impressi on, 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 reaction s upon seeing a stabbing or descriptions made by witnesses while observing events as they
occurred.S TATE V

. S TEINLE (MORAN) Opinion of the Court

8 ¶24 Moran also identifies Rule 901 as a basis for e xcluding 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 claim s 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 (198 3 )

.

¶25 Moran argues that the State cannot satisfy Rule 901 because it
cannot show continui ty of possession and

, thus, a proper chain of custody

. See State v. Hurles , 185 Ariz. 199, 20 6 , 914 P.2d 1291, 1298 (1996) (“ a n exhibit may be admitted when there is eviden ce 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)

. T his 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.2 d 175, 177 (1984) ( r easoning 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 b y 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.

I II

.

¶27 The trial court erred by precluding the video excerpt based on
Evidence Rule s 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, i n the first instance, whether this evidence should be precluded under Rule 403

.