Text Messages — Circumstantial Evidence of Authenticity — Mere Possession of Device, Standing Alone, Insufficient to Show That Possessor Authored Messages Earlier Issued from Device

State of Missouri v. Francis, 2014 Mo. App. LEXIS 473 (Mo. Ct. App. April 29, 2014):

First and foremost is the fundamental failure of the State to establish at trial that the outgoing text messages were written by Appellant. This failure is accentuated by the modern authority on admissions by a party opponent, particularly those involving written electronic communications. By definition, for a statement to be admitted as an admission of a party opponent, the party seeking to admit the evidence must present evidence showing that the opposing party made the statement. When defense counsel raised this issue at trial, the State responded that there was "a logical inference that [Appellant] was the owner of the BlackBerry, since it was in his possession" at the time of arrest. We disagree, and find the State's position is inconsistent with the requirement of authentication of documents, a necessary step [*32]  in laying the foundation for the admission of such evidence at trial.

In State v. Harris, 358 S.W.3d 172, 175-76 (Mo. App. E.D. 2011), this Court considered the foundation requirements for the admission of text messages at trial. In finding the rules of admissibility for personal letters applicable to the content of text messages from a cellular phone, this Court stated:

   ...The authenticity of a document cannot be assumed. Robin Farms, Inc. v. Bartholome, 989 S.W.2d 238, 252 (Mo. App. W.D. 1999). The proponent of the document must offer proof that it is what it purports to be. Id. "The law is well settled that the mere fact that a letter purports to have been written and signed by one in authority to do so is, in itself, insufficient to establish the authenticity and genuineness of the letter." Id.

Applying these rules to text messages, the proponent of such evidence must present some proof that the message[s] were actually authored by the person who allegedly sent them. This should not be an unduly burdensome requirement and can be satisfied by circumstantial evidence. Proof could be in the form of admission by the author that he actually sent them, or simply an admission by the author that the [*33]  number from which the message was received is his number and that he has control of that phone. Such proof could even be established by the person receiving the message testifying that he regularly receives text messages from the author from this number, or something distinctive about the text message indicating the author wrote it, such as a personalized signature. Once the evidence is admitted, it is still the province of the jury to determine its weight.

Harris, 358 S.W.3d at 175-76.

This Court's finding in Harris is consistent with precedent from other jurisdictions addressing the admissibility of text messages against a defendant as an admission of a party opponent. See State v. Thompson, 2010 ND 10, 777 N.W.2d 617, 622-26 (N.D. 2010) (trial court admitted messages as "declarations against interest," appellate court analyzed law of other jurisdictions regarding authentication of electronic messages and found sufficient evidence of authorship by defendant given the circumstances and victim's testimony that messages came from the defendant's phone number and included her distinctive signature); State v. Winder, 189 P.3d 580 (Kan, App. 2008) (text messages admissible as a party admission and finding [*34]  messages were properly authenticated when witness testified the incriminating messages were received from defendant's phone number and she had recently received a call from defendant from that number); Symonette v. State, 100 So. 3d 180, 183-84 (Fla. App. 4th Dist. 2012) (text messages admissible as admission of party and properly authenticated when accomplice identified the text messages as between her and defendant at trial); State v. Roseberry, 197 Ohio App. 3d 256, 2011 Ohio 5921, 967 N.E.2d 233, 243-44 (Ohio App. 8th Dist. 2011) (holding text messages that were not authenticated by the recipient of the messages were not admissible as statement of party opponent); Pavlovich v. State, 49A02-1308-CR-715, 2014 Ind. App. LEXIS 127, 2014 WL 1266266 (Ind. App. 2014) (discussing authentication of electronic communications and finding admitted messages had been properly authenticated and were admissible as statements of party opponent); State v. Franklin, 280 Kan. 337, 337, 121 P.3d 447 (Kan. 2005) (affirmed the admission of text messages, finding sufficient evidence to reasonably imply defendant sent the messages, in that content of the messages paralleled other evidence of defendant's activities and statements; recipient of the messages testified he and defendant [*35]  sometimes communicated by text message and messages came from telephone number he knew belonged to defendant; and defendant had the phone in her possession when she was arrested, contrary to her claim that she did not).

In Com. v. Koch, 2011 PA Super 201, 39 A.3d 996, 1000 (Pa. Super. 2011), the defendant was convicted of possession with intent to deliver and possession of a controlled substance as an accomplice. On appeal, the defendant challenged the admission at trial of drug-related text messages from her phone, contending the messages were not properly authenticated as there was no evidence substantiating that she was the author of the messages and the messages were inadmissible hearsay. Id. at 1002, 1005. The appellate court reversed, finding merit to both contentions. Id. at 1005-07. The court addressed the question of authentication of text messages as an issue of first impression, finding precedent from Pennsylvania and other states relied upon the principle that e-mails and text messages are documents subject to the same general requirements for authenticity as non-electronic documents. Id. at 1003-04. The Koch court stated:

   As these cases illustrate, the difficulty that frequently arises in [*36]  e-mail and text message cases is establishing authorship. Often more than one person uses an e-mail address and accounts can be accessed without permission. In the majority of courts to have considered the question, the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.

Text messages are somewhat different in that they are intrinsic to the cell phones in which they are stored. While e-mails and instant messages can be sent and received from any computer or smart phone, text messages are sent from the cellular phone bearing the telephone number identified in the text message and received on a phone associated with the number to which they are transmitted. The identifying information is contained in the text message on the cellular telephone. However, as with e-mail accounts, cellular telephones are not always exclusively used by the person to whom the phone number is assigned.

Id. at 1004-05.

The Koch court found the trial court erred in admitting the text messages into evidence because although the defendant acknowledged ownership of the phone, a police officer conceded that [*37]  the author of the drug-related messages could not be ascertained and some of the messages referred to the defendant in the third person, indicating she did not write some of the messages. Id. at 1005. The court found that authentication of electronic communications requires more than mere confirmation that the number belonged to a particular person and that additional evidence which tends to corroborate the identity of the sender is required. Id. at 1005. The court noted there was no testimony from the persons who sent or received the text messages and no contextual clues in the messages tending to reveal the identity of the sender. Id. The court held that Appellant's physical proximity to the telephone at the time of arrest was of no probative value in determining whether she authored text messages days or weeks before. Id. The court further held that the messages were not admissible as admissions of a party opponent because the State was unable to prove the defendant was the author of the messages. Id. at 1006.

In the instant appeal, the State maintains the text messages were properly admitted based solely on the contention that the texts were admissible as Appellant's admissions. [*38]  This position is wholly unsupported by the record because the State failed to present evidence that Appellant authored the messages at trial.

It was the State's position at trial that Appellant's ownership of the BlackBerry, and presumably his authorship of the outgoing messages, could be inferred since the phone was in his possession at the time of arrest. Harris, however, holds otherwise, requiring the "proponent of such evidence [to] present some proof that the message[s] were actually authored by the person who allegedly sent them." Harris, 358 S.W.3d at 175-76. In this case, the messages were sent and received hours and, in some cases, days before Appellant's arrest. When questioned at trial, [Sergeant] Crump testified he did not even attempt to determine ownership of the BlackBerry or the identity of the persons sending messages to the BlackBerry. It appears the State made little or no effort before trial to establish the identity of the senders of any of the messages, and certainly did not present any evidence that tended to establish that any of the messages were sent by Appellant.

***

In addition to failing to prove Appellant authored the messages, the State's position that the texts were admitted as Appellant's admissions is further undermined by a review of the evidence presented at trial. Whether called an admission against interest, an admission [*40]  of a party opponent, an adoptive admission or a tacit admission, evidence of a third party's statement to a defendant is admissible only to give context to the defendant's reply. See Spica, 389 S.W.2d at 47 (accusatory statement made to defendant is "admissible only in connection with the reply" and is not direct evidence) and Gilmore, 22 S.W.3d at 718 (finding witness's testimony as to out-of-court statements between third party and defendant were admissible as tacit admission of defendant).

During the State's direct examination of Crump, however, the questions were almost exclusively focused on the incoming text messages, not on the messages sent from the BlackBerry. With very limited exceptions, the State did not elicit testimony of Appellant's alleged responses to the incriminating messages, instead focusing on the statements of frequently unknown, unidentified third parties. In addition to Officer Crump's testimony, the State displayed to the jury two enlarged exhibits, Exhibits 6 and 7, with the previously set forth messages. While Exhibits 6 and 7 include some messages sent from the BlackBerry (11 of the 39 messages entered into evidence), when compared to the full phone examination [*41]  report, it becomes clear the State was not seeking to admit the texts as Appellant's admission. Specifically, the State repeatedly entered into evidence incriminating incoming messages but did not admit the outgoing message from the BlackBerry that would arguably be responding to that message. The intent of such action is clear; the State was not seeking to introduce evidence of Appellant's alleged admissions, but instead was seeking to admit the hearsay statements of unidentified third parties.

Based on the foregoing, we find the trial court erred and abused its discretion in admitting the text messages into evidence at trial.

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