314 February 28, 2024 No. 150

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

CHRISTOPHER RYAN BIGGS, 

aka Chris Ryan Biggs, aka Christopher R. Biggs,

Defendant-Appellant.

Jackson County Circuit Court

20CR38532; A179510

Paul D. Moser, Judge.

Argued and submitted January 10, 2024.

Jamie L. Hazlett argued the cause and filed the briefs for 

appellant.

Christopher A. Perdue, Assistant Attorney General, 

argued the cause for respondent. Also on the brief were Ellen 

F. Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Aoyagi, Presiding Judge, Joyce, Judge, and 

Jacquot, Judge.

JOYCE, J.

Affirmed.
Cite as 331 Or App 314 (2024) 315

JOYCE, J.

Defendant appeals from a judgment of conviction 

for reckless endangerment. He raises three assignments 

of error. In his first, defendant argues that the trial court 

erred in ruling that videos of the events underlying defendant’s conviction were properly authenticated by a witness 

who, although he had not taken the videos, testified that 

the videos accurately described the events that he was 

present for and observed. In his second assignment of error, 

he argues that the trial court abused its discretion in not 

excluding a photograph that, in defendant’s view, was not 

disclosed by the state. In his third and final assignment 

of error, he argues that the trial court erred in denying a 

special jury instruction to address the absence of evidence 

that, in his view, the state should have presented at trial. 

We affirm.

I. AUTHENTICATION UNDER OEC 901

A. Factual Background

Defendant’s first claim of error involves the trial 

court’s ruling that videos of defendant’s actions on the day 

that he was arrested were properly authenticated. The 

facts giving rise to that claim of error are relatively few. 

Defendant drove his truck to a part of Medford where several hundred protestors had gathered to protest the death 

of George Floyd and racial inequality. Defendant, while still 

in his truck, ended up in the middle of a group of protesters. 

He initially slowly accelerated through the crowd and then 

increased his speed, accelerating “rather rapidly.” People 

present at the protest captured defendant’s actions by videotaping them on their cellphones.

Before defendant’s trial, he moved to exclude three 

cellphone videos that the state sought to introduce (each of 

which lasted 10-15 seconds).1

 The first video depicted the left 

side and front of defendant’s truck and within a few feet of 

it. The second video depicted the right side of the front of 

the truck, again within a few feet. The third video appears 

to have been taken from a greater distance, and as the trial 

1 No witness provided testimony about how the state came into possession of 

the videos.
316 State v. Biggs

court described it, was similar to the first but from “a wider 

angle.” As defendant framed the issue, the state intended 

to authenticate the videos not by offering the testimony of 

those who took the videos but rather through someone who 

was present at the protest. In defendant’s view, showing 

the videos to the witness and asking that witness, “Is this 

how you recall the events?” did not meet the standard for 

authentication under OEC 901. Defendant maintained that 

the state would need the individuals who took the videos 

to testify as to their authenticity. The state responded that 

evidence that the “matter in question is what the proponent 

claims” satisfies OEC 901.

The state then offered the testimony of Davis, 

who was present at the protest. Davis testified that he had 

reviewed each of the videos and that each was a “true and 

accurate depiction” of what had happened when defendant 

drove his truck through the protestors. He testified that as 

to the first two videos, he was near the front of the truck 

depicted in the videos (“slightly right of the middle” of the 

front) and that he was, at least with respect to the second 

video, “probably very close” to whoever took the video. He 

explained that he did not see any differences between the 

videos and his recollection of events that would have made 

him believe that any of the videos were “edited or inaccurate 

or otherwise, misleading.” He believed that “all three videos 

are of the exact same incident.” Davis testified that he did 

not know on what device the videos had been made, who had 

filmed them, or how the police got them.

The court concluded that Davis’s testimony that 

the videos were fair and accurate descriptions of what he 

had seen was sufficient to authenticate the videos. The 

court noted that Davis testified that he was close to the 

area depicted in the videos and that Davis had “sufficient 

grounds to authenticate that as being a fair and accurate 

representation of what happened.”

Following the trial court’s ruling, the state offered 

the three videos and Davis again testified that they accurately depicted the events that he witnessed.
Cite as 331 Or App 314 (2024) 317

B. The testimony that the videos were an accurate depiction 

of the events met the standard for authentication under 

OEC 901.

On appeal, defendant contends that the trial court 

erred when it concluded that the state had properly authenticated the videos.

The parties agree that the question of authenticity 

is governed by OEC 901, which provides that a piece of evidence is authenticated “by evidence sufficient to support a 

finding that the matter in question is what its proponent 

claims.” OEC 901(1). Subsection 2 then provides a nonexclusive list of “examples of authentication or identification conforming with the requirements of subsection (1),” including 

“[t]estimony by a witness with knowledge that a matter is 

what it is claimed to be.” OEC 901(2)(a). The rule sets forth 

the “well-accepted requirement that whenever a piece of evidence is offered there must be certain minimum assurances 

that the evidence is what it purports to be, what it is offered 

as being[,] and what its value depends on.” Legislative 

Commentary to OEC 901, reprinted in Laird C. Kirkpatrick, 

Oregon Evidence § 901.02, 947 (7th ed 2023). We review a 

trial court’s OEC 901 ruling to determine whether there 

was sufficient evidence for the court to have submitted the 

issue of authenticity to the finder of fact. State v. Park, 140 

Or App 507, 511, 916 P2d 334, rev den, 323 Or 690 (1996).

We have often described the analysis under OEC 

901 as embracing a “flexible” approach to authentication. 

See, e.g., State v. Sassarini, 300 Or App 106, 125-26, 452 

P3d 457 (2019) (observing that “[the] more flexible approach 

to authentication is codified in OEC 901”). In applying that 

flexible approach, and in assessing whether a piece of evidence has been sufficiently authenticated, courts consider 

whether: (1) the recording device was “capable of taking testimony”; (2) the operator of the device was competent; (3) 

the recording is accurate; (4) the recording has not been 

changed, added to, or deleted from; (5) the recording was 

adequately preserved; (6) the actors or speakers can be identified; and (7) the testimony elicited was voluntarily made 
318 State v. Biggs

without any kind of inducement. Id. at 124, 126 (citing State 

v. Miller, 6 Or App 366, 369-70, 487 P2d 1387 (1971)).2

Yet those factors are “not a catechism. To meet 

the prima facie requirements of authentication, the Miller

factors are not ‘irrelevant,’ but they are also not ‘rigid’ or 

‘demanding.’” State v. Barden, 309 Or App 87, 93, 481 P3d 

359, rev den, 368 Or 511 (2021). What is more, the requirements for authentication will depend on the particular circumstances and the nature of the evidence that is offered. 

Sassarini, 300 Or App at 126. As we explained in Barden,

“[A]lthough the legislature intended for courts to consider 

these requirements, it did not intend proponents to have to 

satisfy each one. Rather, the traditional requirements serve 

as factors for a court to consider in assessing the totality 

of whether a proponent has made out a prima facie case of 

authenticity. The standard is not whether the proponent 

has conclusively proven authenticity, but rather whether 

the proponent has presented some ‘evidence sufficient to 

support a finding that the matter in question is what its 

proponent claims’ so as to admit the evidence to the jury—

for the jury remains the ultimate arbiter on authenticity, 

veracity, and reliability of evidence.”

309 Or App at 93 (quoting OEC 901(1); internal citation 

omitted).

With that legal framework in mind, we turn to the 

videos at issue here. For his part, defendant contends that 

Davis’s testimony did not “excuse the state [from] having to 

introduce some evidence as to the Miller factors.” Ultimately, 

defendant contends that, absent any testimony about how 

the videos were taken or where they came from, Davis’s testimony cannot meet enough of the Miller factors to satisfy 

OEC 901. For its part, the state counters that, under the 

flexible approach that OEC 901 embraces, Davis’s testimony 

that the videos accurately depicted the events and had not, 

in his view, been altered in any way is sufficient. Perhaps 

more simply framed, the parties’ dispute reduces to the 

2 In Sassarini, we explained that those factors derived from Miller, which 

predated the enactment of OEC 901, but that in approving OEC 901, the legislature “intended for courts to consider” those traditional requirements. State v. 

Barden, 309 Or App 87, 92-93, 481 P3d 359 (2021) (citing Sassarini, 300 Or App 

at 126).
Cite as 331 Or App 314 (2024) 319

question whether—although the proponent of the evidence 

is not required to meet all of the Miller factors—Davis’s testimony satisfies them sufficiently to allow the jury to make 

the ultimate determination on the videos’ authenticity.

We conclude that the answer to that question, on 

the facts of this case, is yes. As noted above, the Miller factors are neither rigid nor demanding. Sassarini, 300 Or App 

at 126. Although courts are to consider the factors, they simply serve to enable a court to assess, in the totality of the circumstances, whether the proponent of the evidence has set 

out a prima facie case of authenticity. In other words, does 

the evidence with respect to authenticity “support a finding 

that the matter in question is what its proponent claims?” 

OEC 901(1). If so, then it is for the jury to be the “ultimate 

arbiter on [the evidence’s] authenticity, veracity, and reliability * **.” Barden, 309 Or App at 93.

Evidence like Davis’s testimony here—that the videos accurately and fairly depicted the events that he was 

a witness to, and that he saw no deletions or alterations—

supports a finding that the matter in question is what the 

proponent (here, the state) claimed.3

 Indeed, that evidence 

satisfies two of the Miller factors. As described above, Davis 

testified that he was at the protests and close to defendant’s 

truck, the subject of each of the three videos, and he saw 

it move as depicted in the videos. He also believed that he 

was likely “very close” to whoever filmed the second video. 

Based on his recollection of the events at the protest, particularly the movement of defendant’s truck, when compared 

to the videos, he believed that the videos were accurate. See 

Miller, 6 Or App at 370 (one factor is whether a party has 

established the “authenticity and correctness of the recording”). He also testified that he did not think that any content had been edited or was inaccurate. See id. (another factor is whether a party can show that “changes, additions, or 

3 Of course, defendant can attack the weight of the evidence “by questioning 

foundation witnesses or by offering counterproof indicating the ways or manner in which [the evidence] is misleading or inaccurate. A significant safeguard 

against the deceitful use of *** technology [such as digitalization] remains the 

fact that normally an authenticating witness must testify under oath that the 

photograph accurately represents what it purports to depict and faces potential 

perjury liability for falsely doing so.” Laird C. Kirkpatrick, Oregon Evidence

§ 901.04, 962 (7th ed 2023).
320 State v. Biggs

deletions have not been made”). And in Davis’s view, again 

as someone who was present and close to defendant’s truck, 

each of the videos showed the “exact same incident.” That 

evidence supports a finding under OEC 901(1) that “the 

matter in question is what its proponent claims.”

Miller, in particular, informs our conclusion. There, 

the defendant made two tape-recorded statements. 6 Or App 

at 369. At trial, the state offered the recordings into evidence 

through an officer who was present while the statements 

were made and who testified that the recordings “accurately 

related what was said.” Id. We rejected the defendant’s 

argument that the recordings were not adequately authenticated. We began by noting that it “has long been established 

that a photograph is entitled to be received in evidence when 

a witness testifies that the photograph accurately depicts 

the object. We see no reason why the same rule should not 

be applied here.” Id. at 370. We went on to conclude that 

the “testimony of the detective that the tapes are accurate” 

sufficiently authenticated them.4 Id. at 370-71. So here too—

Davis’s testimony that the videos were accurate and had not 

been altered was sufficient to authenticate them.

It bears noting that because videos are becoming 

increasingly used in litigation, we are not the only court 

addressing the question of authenticity in that context. 

Nearly uniformly, and under rules that are similar if not 

identical to OEC 901, courts have concluded that testimony 

that a video accurately depicts an event is sufficient for 

authentication purposes. See, e.g., Keene v. Rosas, 215 AD 

3d 938, 939, 187 NYS 3d 752 (NY App Div 2023) (“It is wellsettled that a video recording may be authenticated by the 

testimony of a witness to the recorded events * ** that the 

video[] accurately represents the subject matter depicted” 

(internal citation and quotation marks omitted)); Mooney 

v. State, No 1561-2022, 2023 WL 6783388 (Md App Oct 

13, 2023) (testimony by a witness present at the event captured by video that video was a true and accurate depiction 

of the events was sufficient to authenticate); Webb v. State, 

339 So 3d 118, 128 (Miss 2022) (observing, in the context of 

4 Indeed, the court observed that that testimony alone was “sufficient evidence for fulfillment of the first five of the seven” Miller factors. Miller, 6 Or at 371.
Cite as 331 Or App 314 (2024) 321

a photograph, that “there is no requirement that a photograph be authenticated or sponsored by the photographer” 

but that “any person with the requisite knowledge of the 

facts represented in the photograph may authenticate it”); 

People v. Alston, 169 AD 3d 1, 5, 92 NYS 3d 18 (NY App Div 

2019) (cellphone recording of security footage was admissible because “an eyewitness authenticated [the recording] to 

the extent it depicted the relevant events”); Louis Vuitton 

S.A. v. Spencer Handbags Corp., 765 F2d 966, 973-74 (2d 

Cir 1985) (testimony that the tape accurately depicted the 

events sufficient to authenticate video recording (citing FRE 

901(a)).

To be sure, and as we have acknowledged, “[w]ith 

modern technology, particularly digitalization, it has become 

easier to manipulate, distort and fabricate all forms of photographic imagery. Enlargements, filtered lenses, cropping, 

varied focal length, and changed lighting conditions provide 

opportunities for manipulation which may be detectable, if at 

all, only by a sophisticated viewer.” Sassarini, 300 Or App at 

120 (citing Laird C. Kirkpatrick, Oregon Evidence § 901.04[2]

[e] at 956-57 (6th ed 2013)). For that reason, some have 

called for more stringent foundations for digital evidence. 

E.g. Kirkpatrick, Oregon Evidence, § 901.04 at 962 (arguing 

that authentication for digital images introduced as “pictorial testimony” should demonstrate the absence of enhancements and “trustworthiness” of camera’s operating process 

(citing Witkowski, Can Juries Really Believe What They See? 

New Foundational Requirements for the Authentication of 

Digital Images, 10 Wash U J L & Pol’y 267 (2002).). However, 

as we noted in Sassarini, after acknowledging that reality and calls for change in the rules, our analysis “must be 

grounded in the Oregon Rules of Evidence.” 300 Or App at 

120. As explained above, Davis’s testimony here satisfies the 

standard under those rules.

II. ADMISSION OF PHOTOGRAPH OF DEFENDANT’S 

TRUCK

We turn to defendant’s second claim of error. Police 

stopped defendant after he drove through the protest. During 

the encounter, an officer took photographs of the truck. One 

of those photographs was labeled as Exhibit 4 and showed 
322 State v. Biggs

the back of defendant’s truck. Defendant argued below that 

the state did not properly disclose that exhibit to him in 

discovery and as a result it should have been excluded at 

trial. The state explained that it had sent the photograph, 

along with other documents, to defendant’s counsel and that 

its records showed that the exhibit had been downloaded.5

The trial court denied defendant’s motion to exclude the 

photograph as a discovery sanction, concluding that it was 

uncertain whether there had been any discovery violation 

and that in any event, it was unlikely that defendant would 

be surprised by the contents of the photograph. On appeal, 

defendant reprises his argument that the photograph should 

have been excluded as a discovery violation sanction.

We review the trial court’s ruling as to a discovery 

violation sanction for abuse of discretion, State v. Wesley, 326 

Or App 500, 512, 533 P3d 786, rev den, 371 Or 511 (2023), and 

affirm. To justify the sanction that defendant sought below 

and on appeal—exclusion—the trial court must find that 

defendant suffered actual prejudice and that no other sanction short of exclusion would remedy that prejudice. State v. 

Moss, 147 Or App 658, 663, 938 P2d 215, rev den, 325 Or 491 

(1997). We agree with the court that it is unlikely that the 

photograph would have surprised defendant and thereby 

prejudiced him. See State v. King, 30 Or App 223, 229, 566 

P2d 1204 (1977), rev den, 281 Or 1 (1978) (the degree of prejudice turns primarily on “the extent of surprise”). The state 

produced several other photographs that showed the truck—

including one of the back of the truck—and defendant did 

not claim that those photographs were not produced in discovery. Moreover, as the state notes, other remedies short 

of exclusion would have been appropriate, including a short 

continuance to provide defendant with time to investigate 

the exhibit. Defendant’s suggestion that the photograph 

“undermined the defense” and “impaired” his ability to prepare for trial, thereby necessitating exclusion of the exhibit, 

simply is not supported by the record. The trial court did not 

abuse its discretion.

5 Defense counsel acknowledged having received discovery of photographs 

but said he was unable to open them and therefore determine whether Exhibit 4 

was one of the photographs received. Defense maintained that “we simply just do 

not have this photo.”
Cite as 331 Or App 314 (2024) 323

III. SPECIAL JURY INSTRUCTION

In his third assignment of error, defendant contends 

that the trial court erred in failing to give a variation of the 

less-satisfactory evidence jury instruction. Both parties and 

the trial court agreed on giving the uniform less-satisfactory evidence jury instruction but defendant requested that 

the court give an additional instruction, to which the state 

objected. We review for legal error, State v. Payne, 366 Or 

588, 603, 468 P3d 445 (2020), and affirm.

The instruction related to additional photographs 

of defendant’s truck that a responding officer took. A different officer testified at trial that the state no longer “ha[s] 

those pictures.” The officer who took the photographs did 

not testify at trial, apparently as a result of the trial having 

been continued several times and confusion over whether 

the officer had been subpoenaed for the new trial dates. 

Based on those facts, defendant sought, and the court gave, 

the uniform less-satisfactory evidence jury instruction that 

instructed the jury that

“[t]he state has the burden to establish the guilt of the 

defendant beyond a reasonable doubt. When you evaluate 

the state’s evidence, you may also consider the power of 

the state to gather and produce evidence. If the evidence 

offered by the state was weaker and less satisfactory than 

other stronger or more satisfactory evidence that the state 

could have offered, then you should view the weaker and 

less satisfactory evidence with distrust.”

In addition to the uniform instruction, defendant 

sought an additional instruction:

“In this matter, you have seen evidence indicating that 

the police at one time possessed photographs showing the 

condition of [defendant’s] vehicle in the immediate aftermath of the incident that occurred on or about June 1, 

2020. You have also seen evidence that the police no longer 

possess these photographs. The police had an obligation to 

preserve this evidence once they obtained it, and because 

they failed to preserve these photographs, you are permitted to infer that these photographs would have been favorable to the defense if they had been available to present as 

evidence.
324 State v. Biggs

“Similarly, the State failed to make available for testimony a key witness in this proceeding, Officer Christine 

Bryant of the Medford Police Department. Officer Bryant 

took the above-mentioned lost photographs of [defendant’s] 

vehicle on or about June 1st, 2020, and he would have had 

relevant and important testimony in this matter.

“Officer Bryant was under subpoena to appear and testify in this matter, but the State failed to make him available. Because of this failure, you are permitted to infer that 

Officer Bryant’s testimony would have been favorable to 

the Defense if he had been available.”

The state objected to those additional instructions, 

arguing that those instructions were a comment on the evidence. The trial court agreed and declined to give defendant’s requested instruction beyond the uniform less-satisfactory evidence instruction.

The trial court did not err. Axiomatically, a trial 

court cannot “tel[l] the jury how specific evidence relates 

to a particular legal issue.” State v. Hayward, 327 Or 397, 

410-11, 963 P2d 667 (1998); see also State v. Naudain, 254 

Or App 1, 10, 292 P3d 623 (2012), rev den, 353 Or 788 (2013) 

(reasoning that an instruction may not “implicitly direct[] 

the jury’s attention” to particular evidence and suggest that 

the jury should draw an inference about a party’s credibility or defense); ORCP 59 E (“The judge shall not instruct 

with respect to matters of fact, nor comment thereon.”); ORS 

136.330(1) (applying ORCP 59 E (to criminal trials)). Indeed, 

that risk is itself inherent in the less-satisfactory evidence 

instruction, which is why “the instruction should rarely be 

given.” State v. McDonnell, 313 Or 478, 499, 837 P2d 941 

(1992); see also id. (noting that the instruction “is perhaps as 

close to a comment on the evidence as any presently allowed 

and it is not appropriate in most cases”).

The instructions that defendant sought would have 

instructed the jury that the evidence—the photographs and 

officer testimony—would have been favorable to defendant 

and, in the case of the officer’s testimony, “relevant and 

important.” That constitutes an impermissible comment on 

the evidence.

Affirmed.