State v. Noorzai, 423 P.3d 742

Defendant convicted after a bench trial for fourth-degree assault constituting domestic violence based largely on a recorded 9‑1‑1 call and medical records; defendant now appeals admission of the 9‑1‑1 recording.
Police responded to a November 9, 2014 9‑1‑1 call; officer corroborated address and followed paramedics to the hospital; photos and medical notes documented complainant's abdominal complaints and statements.
The contested 9‑1‑1 recording (with caller identifying herself and the defendant, describing assault and breathing difficulty) was played at a pretrial hearing; WCCCA provided a certificate stating the MP3 was a true copy of its original recording.
Defense objected that the foundation for authentication under OEC 901 was inadequate; trial court overruled and admitted the recording as an excited utterance; complainant later found unavailable and medical records admitted under hearsay exceptions.
On appeal the State argued the certificate of authenticity, the recording’s content/circumstances, and that it was a public record sufficed to authenticate; defendant argued the State failed to prove the recording accurately reflected the call.
The court concluded the State showed the recording was the complainant’s call but failed to show the recording itself accurately reflected that call; admission of the recording was error and not harmless, so conviction reversed and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the recorded 9‑1‑1 call was properly authenticated under OEC 901	Certificate of authenticity from WCCCA and surrounding content/circumstances suffice to authenticate the recording	Certificate alone insufficient; needed testimony or other foundation to show the recording accurately captured the call	Trial court erred: State failed to show the recording itself accurately reflected the call; certificate only showed MP3 matched WCCCA’s copy
Whether content and surrounding circumstances independently authenticate the recording	Surrounding facts and content identify caller and link call to incident (OEC 901(2)(d))	Content alone cannot prove recording accuracy without additional foundation	Court declined to consider this alternative theory because it was not argued below or developed on appeal
Whether the certificate of authenticity establishes accuracy of the underlying recording	Certificate shows the MP3 is a true copy of WCCCA’s original, which is adequate	Certificate does not speak to whether WCCCA’s original accurately recorded the call	Certificate insufficient to establish accuracy of the original recording
Whether admission of the recording was harmless error	Recording largely duplicated other evidence; harmless	Recording was qualitatively different (complainant’s voice soon after assault) and central to intent; not harmless	Error was not harmless; reversal required

State v. Divito, 180 Or. App. 156 (discussion of appellate review of foundational evidence)
State v. Park, 140 Or. App. 507 (standard for submitting authenticity to finder of fact)
State v. Reyes, 209 Or. 595 (recording admissible when device accuracy and speaker identity established)
State v. Miller, 6 Or. App. 366 (traditional foundation requirements for audio recordings)
Kruse v. Coos Head Timber Co., 248 Or. 294 (tape inadmissible absent proof it accurately recorded conversation)
Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634 (‘‘right for the wrong reason’’ and limits on affirming on alternative grounds)
State v. Davis, 336 Or. 19 (harmless‑error test: little likelihood the error affected the verdict)