Circumstantial Authentication of Texts and Emails (Rule 901(b)(4))—Indiana Adopts Tienda / Parker Approach—For Voice ID (R. 901(b)(5)), Only “Minimal Familiarity” Required—All Decided under 104(a)—Strictures of R. 701 Inapt

Pavlovich v. State, 2014 Ind. App. LEXIS 127 (Ind. Ct. App. Mar. 28, 2014):

The second issue is whether the trial court erroneously admitted the text and email communications between Pugh and Detective Odier and the  [*12] 2662 number and the "golfnutmi" email address while allowing the State to identify the messages from the 2662 number and "golfnutmi" email as coming from Pavlovich. We review trial court rulings on the admission or exclusion of evidence only for an abuse of discretion. Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). "An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before the court or it misinterprets the law." Id.

Pavlovich contends that the text and email messages were not properly authenticated as having been written by him. "To lay a foundation for the admission of evidence, the proponent of the evidence must show that it has been authenticated." Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App. 2009), trans. denied. This authentication requirement applies to the substantive content of text messages purported to be sent by a party. See id. Under Indiana Evidence Rule 901(a) as it existed at the time of Pavlovich's trial, authentication of evidence was "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."4 "Absolute proof of authenticity  [*13] is not required." Fry v. State, 885 N.E.2d 742, 748 (Ind. Ct. App. 2008), trans. denied. The proponent of the evidence needs to establish only a reasonable probability that the document is what it is claimed to be. Id. Once this reasonable probability is shown, any inconclusiveness regarding the exhibit's connection with the events at issue goes to the exhibit's weight, not its admissibility. Id. Additionally, authentication of an exhibit can be established by either direct or circumstantial evidence. Newman v. State, 675 N.E.2d 1109, 1111 (Ind. Ct. App. 1996).

4   The entirety of the Indiana Rules of Evidence were amended effective January 1, 2014. The amendments grammatically reworded the Rules but, at least in the case of Evidence Rule 901, did not affect substance.

There is admittedly no direct evidence connecting Pavlovich with either the 2662 phone number or the "golfnutmi" email address. The phone company records for the 2662 number were associated with a different name and an address described by Detective Odier as being "in the middle of the highway." Transcript at 206. Police did not search any cell phone Pavlovich had at the time of his arrest to verify whether it was associated  [*14] with the 2662 number or whether Pavlovich had used it to text or email S.Y. As for the email address, there is no evidence of an account being set up with the email that could be directly traced back to Pavlovich. No Indiana case has addressed the admissibility of text or email messages under such circumstances, where there is a complete lack of technological or documentary evidence linking a party with a particular cell phone number or email address. Even if there was such evidence, that alone might be insufficient to authenticate any text or email messages as having been authored by the person linked to the cell phone number or email address, given that "computers can be hacked, protected passwords can be compromised, and cell phones can be purloined . . . ." Tienda v. State, 358 S.W.3d 633, 641-642 (Tex. Crim. App. 2012) (noting that majority of courts have held that the mere fact that an email purports to come from a certain person's email address or that a text came from a cell phone number assigned to a certain person is, without more, insufficient to authenticate the message as having been written by that person).

At the time of Pavlovich's trial, Indiana Evidence Rule 901(b)(4)  [*15] provided that evidence could be authenticated by "[d]istinctive characteristics and the like," including "[a]pperance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." This language is very similar to Federal Rule of Evidence 901(b)(4). In what has been described as a "watershed" opinion5 with respect to authentication of text and email messages, the United States District Court of Maryland stated that "[t]his rule is one of the most frequently used to authenticate e-mail and other electronic records." Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 546 (D. Md. 2007). Quoting the official commentary to this rule, the Lorraine court observed:

   "[t]he characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety," including authenticating an exhibit by showing that it came from a "particular person by virtue of its disclosing knowledge of facts known peculiarly to him," or authenticating "by content and circumstances indicating it was in reply to a duly authenticated" document.

Id. In other words, "[u]se of this rule often is characterized as  [*16] authentication solely by 'circumstantial evidence.'" Id.

5   See Tienda, 358 S.W.3d at 639 (citing Paul W. Grimm, Michael V. Ziccardi & Alexander W. Major, Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information, 42 AKRON L. REV. 357 (2009)).

The Texas Court of Criminal Appeals has noted the various ways in which text or email messages have been adequately authenticated as having been written by a party:

   In some cases, the purported sender actually admitted to authorship, either in whole or in part, or was seen composing it. In others, the business records of an internet service provider or a cell phone company have shown that the message originated with the purported sender's personal computer or cell phone under circumstances in which it is reasonable to believe that only the purported sender would have had access to the computer or cell phone. Sometimes the communication has contained information that only the purported sender could be expected to know. Sometimes the purported sender has responded to an exchange of electronic communications in such a way as to indicate circumstantially that he was in fact  [*17] the author of the particular communication, the authentication of which is in issue. And sometimes other circumstances, peculiar to the facts of the particular case, have sufficed to establish at least a prima facie showing of authentication.

Tienda, 358 S.W.3d at 640-641 (footnotes and citations omitted). See also People v. Downin, 828 N.E.2d 341, 350-351 (Ill. App. Ct. 2005) (holding emails were adequately authenticated as being written by defendant where victim personally knew defendant, had communicated previously with defendant through email, defendant was responsive to victim's email message, and email contained information that would have been known exclusively to him; although emails were adequately authenticated and admissible, ultimate question of authorship was for trier of fact to decide), app. denied; Commonwealth v. Amaral, 941 N.E.2d 1143, 1146-1147 (Mass. App. Ct. 2011) (holding emails were adequately authenticated where in one, defendant indicated he would be at a certain place at a certain time and he in fact appeared at that place and time, and in another email he provided a telephone number, which investigating officer immediately called and defendant answered), rev.  [*18] denied; In re F.P., 878 A.2d 91, 95 (Pa. Super. Ct. 2005) (holding instant messages were adequately authenticated as having been written by defendant where defendant referred to his name and made threats and discussed events related to matters about which victim testified); Manuel v. State, 357 S.W.3d 66, 77-78 (Tex. App. 2011) (holding text messages were adequately authenticated as being written by defendant where stalking victim recognized the number from which messages originated as belonging to defendant, and victim also received voice mail messages from number and she recognized the defendant's voice), rev. refused.

Here, S.Y. testified that her meeting with Pavlovich on November 9, 2011, was arranged through texts and a phone call with the 2662 number. S.Y. identified Pavlovich in court as the man who hired her and had sex with her on that date. S.Y. also became familiar with Pavlovich's voice from talking with him on the phone and in person. S.Y. also described their hotel room conversation as focusing in large part upon her nine-year-old sister P.Y., despite her discomfort and repeated attempts to change the subject. Then, on November 20, 2011, Pugh, posing as S.Y., began texting  [*19] the 2662 number, saying at first, "I wanted to come see your [sic] again" and mentioning a "surprise." Exhibit 7. The first response back was not confusion as to who was texting, but instead was: "Hi! how r u? i will be back soon!" Id. The following texts were then exchanged:

2662: What is the surprise? I can come next wk!

Pugh: I talked to my 9 year old sister about meeting you.

2662: Really? What did u talk about?

Pugh: I told her you wanted to be her boy friend.

2662: Can u email me pics of her today? if she is cute I may come this wk!

2662: Cool. have u thought about being w her?

Pugh: She is super cute she looks like me but 9. I can email you some photos what's your email?

2662: Golfnutmi . . . .

Id. Pugh had a number of other communications with the 2662 number and "golfnutmi" email address, all focusing upon pictures of P.Y., sex, payments, and arrangements to meet. At one point the 2662 number texted to Pugh, "what changed ur mind about ur sister and being w her?" Id. At no time did the 2662 or "golfnutmi" user express any confusion, surprise, or disgust about discussing sex and a nine-year-old girl, or in encouraging S.Y. to have oral sex with her.

After Detective Odier began communicating  [*20] with the "golfnutmi" email address, he began pressing for details as to what "golfnutmi" specifically wanted to do. The response was: "We talked in person about our fetish for this. I thought it was clear about what I wanted." Exhibit 9. On December 7, 2011, "golfnutmi" said that he was staying at a Marriott on the north side of Indianapolis. Detective Odier was able to confirm that Pavlovich was registered at a Marriott on the north side of Indianapolis, where he was apprehended later that evening. Before that occurred, however, S.Y. phoned the 2662 number, and she recognized the voice on the outgoing voicemail message as Pavlovich's. After Pavlovich was arrested, Detective Odier received no more emails from "golfnutmi" or any texts from the 2662 number.

We conclude that this circumstantial evidence is sufficient to authenticate the texts from the 2662 number and the emails from the "golfnutmi" address as being authored by Pavlovich. Although registered under a different name, S.Y. confirmed that the 2662 number was used by Pavlovich to arrange their encounter of November 9, 2011, and that he was still using the number on December 7, 2011, as indicated by her recognition of his voice  [*21] on the outgoing voicemail message.6 The text messages sent from the 2662 number indicate not only familiarity with S.Y., her escorting business, and their prior meeting, but also corroborate S.Y.'s testimony of what Pavlovich wanted to discuss extensively during that meeting--sex and nine-year-old P.Y. The texts also indicate that the user of the number did not live in central Indiana but traveled there frequently.

6   Pavlovich seems to take some issue with S.Y.'s ability to recognize his voice. Indiana Evidence Rule 901(b)(5) provides that an item may be authenticated by a witness's opinion recognizing a party's voice on a recording, in a transmission, or firsthand. Interpreting the parallel Federal Rule of Evidence 901(b)(5), the Seventh Circuit has held that this rule requires "that the witness have only 'minimal familiarity' with the voice." U.S. v. Cruz-Rea, 626 F.3d 929, 934 (7th Cir. 2010). S.Y. heard enough of Pavlovich's voice in person to meet this minimal requirement.

The "golfnutmi" email address was provided from the 2662 number being used by Pavlovich. The messages from that address continued in exactly the same vein as the texts from the 2662 number: asking for pictures of  [*22] P.Y., making arrangements to meet S.Y., paying her to have sex, and wanting P.Y. to be present during the encounter. One of the later emails from "golfnutmi" also specifically mentions having had an earlier in-person discussion with S.Y. of his "fetish" of what he wanted to do. Id. "Golfnutmi" said on December 7, 2011, that he was staying at a north side Indianapolis Marriott hotel, and Pavlovich, a Michigan resident, was in fact staying at a north side Indianapolis Marriott hotel.

In sum, the user of the 2662 phone number and the "golfnutmi" email address relayed messages to "S.Y." that revealed the user's familiarity with and detailed knowledge of S.Y., as well as of highly unique matters they had discussed in person. As testified to by S.Y., only she, Pavlovich, Pugh, and the police knew of those discussions. S.Y. confirmed that Pavlovich used the 2662 number, from which was sent the "golfnutmi" email address. The user of that address accurately described where Pavlovich would be on December 7, 2011, and after his arrest on that date, the 2662 number and "golfnutmi" address went silent. Taken together, this evidence establishes a reasonable probability that the messages at issue  [*23] were written by Pavlovich. Even if this evidence was not indisputable proof that Pavlovich wrote them, such proof was not required. See Fry, 885 N.E.2d at 748. Any lingering doubts about whether Pavlovich wrote the messages went to their evidentiary weight, not their admissibility. See id. Pavlovich was entitled to and did argue that there was insufficient evidence that he wrote the messages, but the trial court did not abuse its discretion in admitting them into evidence.

Pavlovich makes some other arguments related to the messages. One of those is that S.Y. and Detective Odier should not have been allowed to give opinion testimony that the messages were written by Pavlovich, claiming that such testimony did not meet the requirements of Indiana Evidence Rule 701. However, to the extent their opinion testimony authenticated that the messages were written by Pavlovich, strict compliance with Evidence Rule 701 was not required. Evidence Rule 104(a) provides that when determining admissibility, a trial court is not bound by the evidence rules, except for those regarding privilege. See Lorraine, 241 F.R.D. at 539. In any event, Evidence Rule 701 allows lay witnesses to give opinion testimony  [*24] that is rationally based upon the witness's perceptions. S.Y., in particular, rationally based her opinion that Pavlovich wrote the text messages and emails upon her own perceptions.

Pavlovich also argues that the messages were inadmissible hearsay. However, this argument is dependent upon there being a lack of proof that Pavlovich wrote them. Clearly, because there is sufficient evidence to authenticate the messages as having been written by Pavlovich, they qualify as non-hearsay statements by a party-opponent under Indiana Evidence Rule 801(d)(2).7 The messages were properly introduced into evidence and authenticated as having been written by Pavlovich.

7   As noted by the Lorraine court, other factors that may come into play when considering the admissibility of electronic messages include relevancy under Evidence Rule 401, the danger of unfair prejudice under Evidence Rule 403, and the "best evidence" rule as embodied in Evidence Rules 1000-1008. See Lorraine, 241 F.R.D. at 538. Pavlovich makes no argument that any of these rules were violated here.

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