State v. Wager

2016 UT App 97

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
TIM G. WAGER,
Appellant.

Opinion
No. 20140812-CA
Filed May 12, 2016

Third District Court, Salt Lake Department
The Honorable Denise P. Lindberg
No. 121908651

Paul E. Remy, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE RUSSELL W.
BENCH concurred.1

VOROS, Judge:

¶1 Tim G. Wager was convicted of possession of
methamphetamine and marijuana. The principal issue on appeal
concerns the authentication at trial of a photograph obtained
from Wager’s ex-girlfriend. The photograph appears to show
Wager sitting in his bathroom smoking a meth pipe.
Uncontroverted trial testimony established that the person in the
photograph was Wager and that the bathroom in the

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
 State v. Wager

photograph was his bathroom. The trial court admitted the
photograph. We affirm.

BACKGROUND

¶2 Wager testified during cross-examination that no one had
used drugs at his residence. In rebuttal, the prosecution offered a
photograph taken by an informant (Wager’s ex-girlfriend)
showing Wager sitting in a bathroom holding in one hand what
appears to be a meth pipe to his mouth and in the other a small
torch. Wager objected to the admission of the photograph and
argued that it lacked sufficient authentication in violation of rule
901 of the Utah Rules of Evidence. Specifically, he argued that
the State did not have a witness with personal knowledge of the
contents of the photograph.

¶3 The State proffered the testimony of a police detective
who had taken a photograph of Wager’s bathroom during his
search of Wager’s residence and would testify that the
informant’s photograph accurately depicted Wager in that
bathroom. Wager argued that although the detective could
accurately identify the bathroom, he could not testify to the
activity depicted in the photograph. The trial court overruled the
objection and admitted the photograph.

¶4 The jury convicted Wager of possession of
methamphetamine, which was enhanced to a second-degree
felony, and possession of marijuana, a class A misdemeanor. See
Utah Code Ann. § 58-37-8(2) (LexisNexis 2012). He was
sentenced to one to fifteen years for the methamphetamine
possession and 365 days for the marijuana possession. The court
suspended the sentence and ordered Wager to serve ten days in
jail and three years on probation.

20140812-CA 2 2016 UT App 97
 State v. Wager

ISSUES ON APPEAL

¶5 First, Wager contends that the trial court erred by
‚admitting, without authentication, a prejudicial photograph
purported to be [Wager] using drugs.‛

¶6 Second, Wager contends that the trial court failed to
address his objection to the photograph under rule 608 of the
Utah Rules of Evidence.

¶7 Third, Wager contends that the trial court erred in
admitting the photograph because, without evidence of the date
it was taken, the photograph was irrelevant.

¶8 Fourth, Wager contends that the trial court erred by
failing to mention, address, or follow rules 1002, 1004, and 1007
of the Utah Rules of Evidence.

¶9 Finally, Wager contends that the trial court erred because
the photograph, ‚if indeed offered as a specific incident of
criminal conduct, should have been handled by a Motion in
Limine.‛

ANALYSIS

I. Authentication

¶10 Wager contends that the trial court erred by ‚admitting,
without authentication, a prejudicial photograph purported to
be [Wager] using drugs.‛ This court grants a trial court ‚broad
discretion to admit or exclude evidence and will disturb its
ruling only for abuse of discretion.‛ Robinson v. Taylor, 2015 UT
69, ¶ 8, 356 P.3d 1230 (citation and internal quotation marks
omitted).

¶11 ‚To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the

20140812-CA 3 2016 UT App 97
 State v. Wager

proponent claims it is.‛ Utah R. Evid. 901(a). Such evidence may
include ‚testimony of a witness with knowledge.‛ Id. R.
901(b)(1). ‚*I+f a competent witness with personal knowledge of
the facts represented by a photograph testifies that the
photograph accurately reflects those facts, it is admissible.‛ State
v. Purcell, 711 P.2d 243, 245 (Utah 1985).

¶12 ‚Proper authentication does not require conclusive proof
but, instead, requires only that the trial court determine that
there is evidence sufficient to support a finding of the fulfillment
of *a+ condition of fact.‛ State v. Woodard, 2014 UT App 162, ¶ 17,
330 P.3d 1283 (alteration in original) (citation and internal
quotation marks omitted). Thus, the trial court performs a
‚screening function.‛ Id. (citation and internal quotation marks
omitted). If the evidence is admitted, it then falls to the jury to
determine ‚whether the evidence is in fact authentic.‛ Id.
(citation and internal quotation marks omitted).

¶13 In State v. Bloomfield, this court stated that ‚[t]he general
rule in Utah is that when ‘a competent witness with personal
knowledge of the facts represented by a photograph . . . testifies
that the photograph accurately reflects those facts, it is
admissible.’‛ State v. Bloomfield, 2003 UT App 3, ¶ 24, 63 P.3d 110
(quoting Purcell, 711 P.2d at 245). A surveillance camera
recorded Bloomfield robbing a restaurant. Id. ¶ 22. At trial, a
detective testified that he had obtained the videotape from the
restaurant employees the night of the robbery and that it
accurately depicted the interior of the restaurant that night. Id.
He also identified Bloomfield in the video. Id. His testimony of
the restaurant’s interior was ‚substantially corroborated‛ by an
eyewitness of the robbery. Id. ¶ 24.

¶14 On appeal, this court held that although the detective
‚lacked personal knowledge as to the actual events as they
occurred,‛ he knew the videotape had been given to him the
night of the incident and that the interior of the restaurant
shown on the video matched his knowledge of it. Id. The
detective’s knowledge sufficiently supported a finding that ‚the

20140812-CA 4 2016 UT App 97
 State v. Wager

matter in question *was+ what its proponent claim*ed+.‛ Id.
(alterations in original) (citation and internal quotation marks
omitted). In addition, an eyewitness corroborated the activity
depicted on the tape. Id.

¶15 The case before us presents similar facts, though without
the corroboration. The detective had not witnessed the event
depicted in the photograph, but knew that the photograph had
been given to him by an informant and that it depicted Wager
and his bathroom. No trial witness saw the event depicted in the
photograph. But we conclude that additional eyewitness
testimony is not necessary for proper authentication. The
Washington Court of Appeals has held that photographs were
adequately authenticated when a witness identified the
individuals in the photographs, their approximate ages, and the
location depicted. See State v. Sapp, 332 P.3d 1058, 1062 (Wash.
Ct. App. 2014) (interpreting the substantively similar
Washington Rule of Evidence). Thus, Washington ‚does not
require photographs and other recordings to be authenticated by
a witness present for their creation.‛ Id. Our supreme court
tacitly followed the same rule in affirming the admission of
photographs of stolen property based on testimony ‚that the
photographs depicted furniture belonging to [the victim] and
seized from defendant, and that they were taken after the
seizure.‛ Purcell, 711 P.2d at 245.2

¶16 Here, the detective was not the photographer and did not
witness the events depicted in the photograph. But he had talked

2. A more exacting rule could yield incongruous results.
Imagine, for example, a photograph depicting a murder suspect
standing over the recognizable corpse of a murder victim,
holding the apparent murder weapon, in the room where the
victim’s body was later found. Excluding this photograph on the
ground that no one had witnessed and could be called to testify
to the event it depicts would impose a high cost on the justice
system without serving a rational purpose.

20140812-CA 5 2016 UT App 97
 State v. Wager

to Wager in person, searched Wager’s residence, and taken his
own photograph of Wager’s bathroom. Thus, the trial court
could reasonably conclude that he possessed sufficient personal
knowledge to testify that the informant’s photograph fairly and
correctly depicted Wager and his bathroom. Based on this
testimony, a reasonable juror could find the photograph
authentic based on the comparison evidence—i.e., the detective’s
own photograph—and the circumstantial evidence, which
included the detective’s uncontroverted testimony.

¶17 The trial court properly fulfilled its screening function
and acted within its discretion in ruling that the photograph met
the standard for authentication.

II. Wager’s Remaining Claims Are Inadequately Briefed and
Unpreserved

¶18 Wager contends that the trial court failed to address his
objection to the photograph under rule 608 of the Utah Rules of
Evidence.

¶19 Rule 24 of the Utah Rules of Appellate Procedure states
that the appellant’s brief ‚shall contain the contentions and
reasons with respect to the issues presented . . . with citations to
the authorities, statutes, and parts of the record relied on.‛ Utah
R. App. P. 24(a)(9). ‚An issue is inadequately briefed when the
overall analysis of the issue is so lacking as to shift the burden of
research and argument to the reviewing court.‛ State v. Sloan,
2003 UT App 170, ¶ 13, 72 P.3d 138 (citation and internal
quotation marks omitted).

¶20 Wager’s argument that the trial court failed to address his
rule 608 objection consists of a single paragraph without citation
to the record or legal authority other than rule 608. Moreover,
our own review of the record reveals that the trial court
addressed Wager’s rule 608 objection twice. We therefore decline
to further address Wager’s inadequately briefed rule 608
argument.

20140812-CA 6 2016 UT App 97
 State v. Wager

¶21 Wager next contends that the trial court erred in
admitting the photograph because it was ‚completely
irrelevant.‛ It was irrelevant, he argues, because the detective
‚was not able to testify that *the photograph] was taken on the
date alleged in the information.‛

¶22 Under the foregoing authorities, we decline to address
this issue on the ground that it is inadequately briefed. In any
event, the photograph’s relevance did not depend on its date.
Wager had testified that he would not allow drug use in the
house, that he had never smelled any drug use in the house, and
that no one had used meth in his house from the time he moved
in to the time the police came. Because the photograph
appearing to show Wager smoking a meth pipe in his bathroom
tended to make Wager’s testimony ‚less probable than it would
be without the evidence,‛ it was relevant. See Utah R. Evid.
401(a); cf. State v. Purcell, 711 P.2d 243, 245 (Utah 1985) (‚Any
minor discrepancies in the testimony went only to the details of
the time and place the pictures were taken. . . . [S]ince they were
not material to the purpose for which the evidence was
introduced, they did not undermine the adequacy of the
foundation.‛).

¶23 Wager next contends that the trial court erred by failing to
mention, address, or follow rules 1002, 1004, and 1007 of the
Utah Rules of Evidence. Rule 1002 states that ‚an original . . .
photograph is required to prove its content.‛ Rules 1004 and
1007 state exceptions to this rule.

¶24 We decline to address this unpreserved issue. An
appellant’s brief must contain a ‚citation to the record showing
that the issue was preserved in the trial court; or . . . a statement
of grounds for seeking review of an issue not preserved in the
trial court.‛ Utah R. App. P. 24(a)(5). To preserve an issue for
appeal, ‚the issue must be presented to the trial court in such a
way that the trial court has an opportunity to rule on that issue.‛
438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801
(citations, and quotation marks omitted). This means that ‚(1)

20140812-CA 7 2016 UT App 97
 State v. Wager

the issue must be raised in a timely fashion, (2) the issue must be
specifically raised, and (3) the challenging party must introduce
supporting evidence or relevant legal authority.‛ Id. (brackets,
citation, and internal quotation marks omitted). ‚We will not
address the merits of an argument that has not been preserved
absent either plain error or exceptional circumstances.‛ Duke v.
Graham, 2007 UT 31, ¶ 28, 158 P.3d 540.

¶25 Here, Wager fails to cite to the record to show that the
issue was preserved in the trial court. In reviewing the record,
we note that the question of originality was never mentioned, let
alone timely and specifically raised with supporting evidence or
legal authority. And Wager fails to offer any grounds that would
justify our review of this issue.

¶26 Wager next contends that the trial court erred because the
photograph, ‚if indeed offered as a specific incident of criminal
conduct, should have been handled by a Motion in Limine.‛
Wager apparently refers to rule 404(b) of the Utah Rules of
Evidence, which prohibits the admission of ‚evidence of a crime
. . . to prove a person’s character‛ except under certain
circumstances and with ‚reasonable notice.‛ Utah R. Evid.
404(b). Wager again fails to cite to the record to show that the
issue was preserved in the trial court. And our review of the
record shows that rule 404(b) was never mentioned in
connection with the photograph. In addition, Wager’s brief fails
to provide any citation to the record or legal authorities. The rule
404(b) issue is therefore unpreserved and inadequately briefed,
and we do not address it further.

CONCLUSION

¶27 For the reasons stated above, the judgment of the trial
court is affirmed.

20140812-CA 8 2016 UT App 97