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 cellphone video recorded by a witness to a stabbing. Because the trial court 
STATE V. STEINLE (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 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 fulllength 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. 
STATE V. STEINLE (MORAN)

Opinion of the Court

3

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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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 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 
STATE V. STEINLE (MORAN)

Opinion of the Court

5

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.
STATE V. STEINLE (MORAN)

Opinion of the Court

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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.
STATE V. STEINLE (MORAN)

Opinion of the Court

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¶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.
STATE V. STEINLE (MORAN)

Opinion of the Court

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¶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.