Smith v. Smith, 2015 Ala. Civ. App. LEXIS 72 (Ala. Ct. Civ. App. Apr. 3, 2015):

Shannon Wilkinson Smith ("the mother") appeals from a June 30, 2014, judgment of the Mobile Circuit Court ("the trial court") modifying the custody arrangement established in a previous judgment divorcing Justin Randall Smith ("the father") and her. In the modification judgment, the trial court changed primary physical custody of the parties' two children ("the children") from the mother to the father.

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In April 2012, the father received a telephone call from Elizabeth Rettig, a longtime friend of the mother's. Rettig testified at the hearing that she had become concerned that the mother was abusing prescription drugs and was failing to properly care for the children. Rettig testified that the mother would no longer clean her house and would stay in her pajamas all day. According to Rettig, the mother and she had had e-mail conversations in which the mother indicated that she was attempting to buy pain medication and ADHD medication. Rettig also testified that she once saw the mother buy pain pills from a stranger.

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The mother next contends that the trial court improperly admitted what she characterized as prejudicial e-mails and text messages. The e-mails and text messages at issue include the mother's alleged "unlawful drug requests." The mother denied sending the messages at issue, and she asserts that the father failed to properly authenticate the e-mails and text messages as required by Rule 901, Ala. R. Evid.

   "'"The standard applicable to a review of a trial court's rulings on the admission of evidence is determined by two fundamental principles. The first grants trial judges wide discretion to exclude or to admit evidence."' Mock v. Allen, 783 So. 2d 828, 835 (Ala. 2000) (quoting Wal--Mart Stores, Inc. v. Thompson, 726 So. 2d 651, 655 (Ala. 1998)). ...

"'"The second principle 'is that a judgment cannot be reversed on appeal for an error [in the improper admission of evidence] unless ... it should appear that the error complained [*16]  of has probably injuriously affected substantial rights of the parties.'"' Mock, 783 So. 2d at 835 (quoting Wal--Mart Stores, 726 So. 2d at 655, quoting in turn Atkins v. Lee, 603 So. 2d 937, 941 (Ala. 1992)). See also Ala. R. App. P. 45. 'The burden of establishing that an erroneous ruling was prejudicial is on the appellant.' Preferred Risk Mut. Ins. Co. v. Ryan, 589 So. 2d 165, 167 (Ala. 1991)."

Middleton v. Lightfoot, 885 So. 2d 111, 113--14 (Ala. 2003).

Culp v. State, [Ms. CR-13-1039, Nov. 21, 2014]     So. 3d    ,     (Ala. Crim. App. 2014), is the only opinion of an Alabama appellate court in which the proper authentication of e-mails is addressed. In Culp, the Alabama Court of Criminal Appeals did a thorough review of opinions from other jurisdictions that had already addressed the issue. The Culp court wrote:

   "In State v. Koch, 157 Idaho 89, 334 P.3d 280 (2014), the Idaho Supreme Court considered for the first time the foundational requirements for admitting e-mails. The Court wrote:

   "'Because Idaho Rule of Evidence 901 is based on Federal Rule of Evidence 901, how other jurisdictions have interpreted the federal rule's requirements with regard to the admission of e-mails and text messages is instructive in this case. Other jurisdictions have recognized that electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and corresponding state statutes. Courts have not required proponents offering printouts of e-mails, internet chat room dialogues, and cellular phone text messages to authenticate [*17]  them with direct evidence, such as an admission by the author or the testimony of a witness who saw the purported author typing the message. See, e.g., United States v. Fluker, 698 F.3d 988, 999 (7th Cir. 2012). Rather, courts have held that circumstantial evidence establishing that the evidence was what the proponent claimed it to be was sufficient. See, e.g., State v. Thompson, 777 N.W.2d 617, 624 (N.D. 2010) (providing a comprehensive review of other jurisdictions' authenticity requirements for electronic communications). Circumstantial proof might include the e-mail address, cell phone number, or screen name connected with the message; the content of the messages, facts included within the text, or style of writing; and metadata such as the document's size, last modification date, or the computer IP address. See Fluker, 698 F.3d at 999; United States v. Siddiqui, 235 F.3d 1318, 1322--1323 (11th Cir. 2000); United States v. Safavian, 435 F. Supp. 2d 36, 40--41 (D.D.C. 2006).

"'....

"'While direct evidence is not required to authenticate a text message or e-mail, most jurisdictions require something more than just confirmation that the number or e-mail address belonged to a particular person. See, e.g., In re F.P., 878 A.2d 91, 93--95 (Pa. Super. Ct. 2005) (instant messages properly authenticated through circumstantial evidence including screen names and context of messages and surrounding circumstances); Commonwealth v. Williams, 456 Mass. 857, 926 N.E.2d 1162 (2010) (admission of MySpace message was error where proponent advanced no circumstantial evidence [*18]  as to security of MySpace page or purported author's exclusive access). Often it was important that there be evidence that the e-mails, instant messages, or text messages themselves contained factual information or references unique to the parties involved. For example, in Safavian the District of Columbia federal district court held that e-mail messages were properly authenticated where the e-mail addresses contained distinctive characteristics including the name of the person connected to the address, the bodies of the messages contained a name of the sender or recipient, and the content of the e-mails further authenticated them as being from the purported sender to the purported recipient. 435 F. Supp. 2d at 40.'

"157 Idaho at    , 334 P.3d at 287--88.

"In Pavlovich v. State, 6 N.E.3d 969 (Ind. Ct. App. 2014), the Court of Appeals of Indiana addressed a claim that the trial court had erroneously admitted e-mails that had not been properly authenticated:

   "'Pavlovich contends that the text and e-mail 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 [*19]  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." "Absolute proof of authenticity 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).

"'....

"'At the time of Pavlovich's trial, Indiana Evidence Rule 901(b)(4) provided that evidence could be authenticated by "[d]istinctive characteristics and the like," including "[a]pperance [sic], 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" opinion with respect to authentication of text and e-mail messages, the United States District Court [*20]  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 authentication solely by 'circumstantial evidence.'" Id.

"'The Texas Court of Criminal Appeals has noted the various ways in which text or e-mail 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 [*21]  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 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 [v. State], 358 S.W.3d [633] at 640--641 [(Tex. Crim. App. 2012)] (footnotes and citations omitted). See also People v. Downin, 357 Ill. App. 3d 193, 293 Ill. Dec. 371, 828 N.E.2d 341, 350--351 (2005) (holding e-mails were adequately authenticated as being written by defendant where victim personally knew defendant, had communicated previously with defendant through e-mail, defendant was responsive to victim's e-mail message, and e-mail contained information that would have been known exclusively to him; although e-mails were adequately authenticated and admissible, ultimate question of authorship was for trier of fact to decide), app. denied; Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 941 N.E.2d 1143, 1146--1147 (2011) (holding e-mails were adequately [*22]  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 e-mail he provided a telephone number, which investigating officer immediately called and defendant answered), rev. 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.'

"Pavlovich, 6 N.E.3d at 976--77 (footnotes omitted). The Court of Appeals of Indiana held that the e-mails 'were properly introduced into evidence and authenticated as having been written by Pavlovich.' 6 N.E.3d at 980.

"Rule 901(b)(4), Ala. R. Evid., is worded identically to its federal counterpart, as well as the versions in Idaho and Indiana. Like federal Rule 901(b)(4), Idaho's Rule 901(b)(4), and Indiana's Rule 901(b)(4), Alabama's Rule 901(b)(4) provides that evidence can be authenticated by '[d]istinctive characteristics and the like,' [*23]  including '[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.' In the Advisory Committee's Notes pertaining to this subsection, the Advisory Committee's Notes to the federal rule are referenced, as is Alabama common law."

— So. 3d at —.

The e-mails and text messages that the mother challenges purportedly involve the mother's asking Rettig for prescription pain medications. During the mother's testimony, the father's attorney asked her whether she had sent text messages to Rettig requesting Lortab, a controlled substance. The mother said that she had not done so. The father's attorney showed the mother a printout of the alleged text messages. One of the parties to the text-message conversations was "Shannon," using a telephone number, which the mother admitted was hers, with an "unknown email." The mother denied that the sender's e-mail address was Rettig's.

The trial court would not admit the packet of e-mails or text messages on that basis alone, so the father's attorney recalled Rettig as a witness. Rettig testified that the e-mails or text messages were sent between the mother and her. After Rettig's testimony, the trial court [*24]  admitted the e-mails and text messages. The messages submitted include text or e-mail "conversations" that occurred between 2011 and 2012. The conversations cover a wide range of topics, ranging from the baptism of Rettig's child, to a discussion of the verdict in the Casey Anthony trial on July 5, 2011, to mundane daily chores or shopping. Interspersed in some of the conversations are requests from the mother to Rettig for various prescription pain medications, money, soft drinks, and numerous other items. The two make plans to get together for coffee, to go out to lunch, to meet at one another's houses, and the like. The two clearly respond to each other's messages. This court has reviewed the packet of e-mails and text messages (some of which are duplicates), and the tone, syntax, appearance, and other characteristics over months' worth of conversations remain consistent. Based on the totality of the e-mails and the text messages and the circumstances under which they were sent, i.e., casual conversations between friends, we are of the opinion that sufficient circumstantial evidence exists to support the trial court's determination that the e-mails and text messages were admissible. [*25]

Even if the e-mails and text messages should not have been admitted, however, we find that such an error would be harmless. Rettig testified without objection that the mother had asked her for prescription pain medication and that she had witnessed the mother purchase drugs illegally from a stranger. The requests in the challenged messages for prescription pain medications were cumulative of Rettig's testimony regarding the same purported facts. The mother denied Rettig's statements, she was able to cross-examine Rettig regarding those statements, and she presented a witness who characterized Rettig as a "liar." When the evidence is presented to the trial court ore tenus, it is the trial court's duty to determine the weight and credibility of the witnesses and their testimony. See Ex parte Hayes, 70 So. 3d 1211, 1215 (Ala. 2011); Wheeler v. Marvin's, Inc., 593 So. 2d 61, 63 (Ala. 1991). Therefore, even if the admittance of the e-mails and text messages had constituted error, that error would not have injuriously affected the mother's substantial rights. Accordingly, any such error would have been harmless. MAT Sys., Inc. v. Atchison Props., Inc., 54 So. 3d 371, 377 (Ala. Civ. App. 2010) (erroneous admission of evidence that is merely cumulative is harmless error); and Rule 45, Ala. R.App. P.

Additionally, in her brief, the mother argues that the way the e-mails and text messages at issue [*26]  should have been authenticated was by subpoenaing the telephone records for the "sending phone" to see if the records reflect a message having been sent to the "receiving phone" at the same time. She cites no law for that proposition. There is no language in Culp, which the mother cites in support of her contention that the e-mails and text messages were not properly authenticated, that advocates such an action. We decline to adopt the mother's method of authenticating e-mails and text messages.