Commercial Litigation and Arbitration

Text Messages as They Appear on Phone = Best Evidence, But Harmless Error to Receive Transcripts Prepared by Witness Where Accuracy of Transcript Not Disputed

State v Ford, 2014 Ohio App. LEXIS 4673 (Ohio Ct. App. Oct. 27, 2014) (file: email/text messages):


 [*P17]  In his second assignment of error, appellant argues that the court erred in admitting the transcript of the text messages between appellant and Bowersock prepared by Det. Shatzer. He argues the texts are inadmissible hearsay, and also argues that the transcript of the texts was not the best evidence because the cell phone itself was available.

 [*P18]  Appellant concedes in his brief that the text messages he wrote were admissible, but argues that the texts written by Bowersock were inadmissible hearsay. Appellant did not object on this basis at trial, and therefore we must find plain error to reverse. Evid. R. 103. In order to prevail under a plain error analysis, appellant bears the burden of demonstrating that the outcome of the trial clearly would have been different but for the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the syllabus.

 [*P19]  Appellant has not demonstrated plain error in the admission of text [**7]  messages sent by Bowersock to appellant. Bowersock testified regarding his conversations with appellant concerning appellant obtaining clients for him and the details of the transaction which led to the procuring charge, and the text messages were merely cumulative of his in-court testimony. Further, the text messages sent by appellant, which he admits are not hearsay pursuant to Evid. R. 801, set forth facts concerning his ability to obtain clients for Bowersock to perform sexual acts for money.

 [*P20]  Appellant also argues that the admission of the transcript of the text messages was error pursuant to the best evidence rule, as the cell phone itself was available. He also argues that the transcript was prepared by Det. Shatzer, who was not a neutral transcriptionist.

 [*P21]  Evid. R. 1002 provides, "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio." Evid. R. 1004 provides exceptions to the requirement of the admission of the original writing, recording or photograph:

   The original is not required, and other evidence of [**8]  the contents of a writing, recording, or photograph is admissible if:

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be subject of proof at the hearing, and that party does not produce the original at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue.

[*P22]  While the best evidence in the instant case would have been the cell phone itself rather than the typed transcript of the messages as prepared by the detective, we find that any error in the admission of the transcript rather than the cell phone was harmless. Bowersock testified that the transcript accurately reflected the text messages on his phone between himself and appellant. Further, appellant admitted that he sent the text messages set forth in the transcript. [**9]  Tr. 151, 154-162. The record does not reflect any dispute concerning the accuracy of the transcript prepared from the cell phone, as both Bowersock and appellant testified to the accuracy of the text messages reflected in the transcript.

 [*P23]  The second assignment of error is overruled.

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