Las Vegas POA

Video Shows Assault, Not Rough Sexual Foreplay

Written on 04/02/2020
Will Aitchison

Joe Jones was a San Diego police officer. In December 2015, Jones traveled to Puerto Rico with his girlfriend, Sarah, to attend a boxing match. Sarah worked as a bookkeeper for the boxer’s wife. Several off-duty San Diego police officers also attended the boxing match as the boxer’s security detail.

The day after the boxing match, one of the off-duty police officers, Lieutenant Ben Kelso, learned that an alleged domestic violence incident had occurred between Jones and Sarah. The boxer’s wife later sent Kelso a text message attaching the cell phone video.

The video was 22 seconds long and was a recording of another screen displaying hotel security camera footage. The video showed Jones and Sarah in an interior lobby area. Jones pressed Sarah against the wall, then forcefully slammed his shoulder into her torso. As Sarah was falling to the ground, Jones raised his knee and struck her in the head. Once Sarah had fallen to the floor and was lying still, Jones forcefully kicked her in her back.

Kelso reported the incident and forwarded the cell phone video to the Department’s Internal Affairs Department and Professional Standards Unit, which then investigated the incident. Jones’s basic contention was that what the videos captured was “rough sexual foreplay,” not an assault. When the City terminated Jones, he challenged the appeal through the City’s civil service system. An unfavorable decision there led Jones to the California Court of Appeals.

Jones’s argument was that the cell phone video lacked foundation because it was authenticated entirely by Kelso’s hearsay description of his conversation with the boxer’s wife. The Court was not impressed, ruling: “Jones’s challenge to the admissibility of the video is completely without merit.

“Contrary to Jones’s contention, the cell phone video was authenticated by far more than Kelso’s testimony. Jones conceded in his trial court testimony that ‘he is on the video, in a hallway with his girlfriend, Sarah,’ and his trial counsel repeated the concession during oral argument. This was sufficient to authenticate the cell phone video.”

Jones also argued that the hotel video, captured in the cell phone video, was not properly authenticated. Again, the Court disagreed, approving the trial court’s two-part holding: “First, the Court found that the cell phone footage of the video is clear enough to show that it is the same video of the hotel video. Having viewed both, we conclude the trial court did not abuse its discretion in making this finding. The content of the cell phone video was sufficient to authenticate the hotel video.

“Second, the trial court further based its authentication finding on the certified translations of declarations from the hotel’s custodian of records authenticating the hotel video, and the Puerto Rican prosecutor attesting to the chain of custody. Jones does not challenge the substance of these declarations. He complains only of their timing – that they were submitted to the hearing officer only after the close of evidence, thus denying him the opportunity to confront and cross-examine the custodian of records, and the Spanish-to-English translator. But this was precisely the procedure the hearing officer and counsel agreed to at the close of evidence. In sum, the trial court did not abuse its discretion by considering the hotel video.”

Jones v. City of San Diego, 2020 WL 813026 (Cal. Ct. App. 2020).

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