Commercial Litigation and Arbitration

Texts on Defendant’s Phone Requesting Cocaine Not Hearsay when Offered to Prove His State of Mind — That He Had Drugs in His Possession and Was Aware of a Forthcoming Shipment (Also: Verbal Act)

State v. Whitfield, 2015 S.D. LEXIS 45 (S.D. Sup. Ct. Apr. 1, 2015):

1. Text Messages

 [*P12]  Whitfield argues that the two text messages from JKenny were inadmissible hearsay and the admission of the messages prejudiced him. The messages were hearsay, Whitfield contends, because they could only by used to prove the truth of the matters asserted in them, specifically that JKenny twice asked Whitfield for cocaine. The State, however, submits that the messages were used to show that Whitfield had drug-related messages on his phone days prior to the incident, which was relevant to prove Whitfield's knowledge of the drugs in his possession and the pending shipment.

 [*P13]  To constitute hearsay, the statement must be an out-of-court assertion "offered in evidence to prove the truth of the matter asserted." SDCL 19-16-1(3) (Rule 801(a) to (c)). However, a statement is not hearsay if it is offered for a purpose other than to prove the truth of the matter asserted. [**10]  State v. Graham, 2012 S.D. 42, ¶ 28, 815 N.W.2d 293, 305. Here, the court ruled that the text messages were not hearsay, because they were not admitted to prove that JKenny was interested in obtaining cocaine from Whitfield, but that Whitfield had knowledge of the cocaine in his possession based on the fact that his phone received two drug-related messages close to the date of the charged offenses.

 [*P14]  We presume the court's evidentiary ruling is correct and will not overturn this ruling absent an abuse of discretion. Harris, 2010 S.D. 75, ¶ 8, 789 N.W.2d at 307. Based on our review of the court's decision, it did not abuse its discretion when it admitted the statements as evidence that Whitfield had knowledge of the shipment of drugs and the drugs in his possession. See, e.g., State v. Charger, 2000 S.D. 70, ¶ 21, 611 N.W.2d 221, 225. The circuit court clearly stated that the text messages were not admitted to prove the truth of the matters asserted. In fact, when the court granted Whitfield a judgment of acquittal on the charge of possession of a controlled substance with intent to distribute, the court refused to consider the text messages from JKenny as evidence that Whitfield intended to distribute cocaine.


Note:  There is also no "truth" to a request.  It is a verbal act, like an offer to enter a contract (which these messages were).

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