Authentication of Entries in Cell Phone’s User Text Dictionary Requires Circumstantial Evidence That Owner Was the Person Who Entered the Words into His or Her Phone

Wilcock v. State, 2015 Nev. Unpub. LEXIS 652 (Nev. Sup. Ct. May 29, 2015):

This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of first-degree murder with use of a deadly weapon, one count of robbery with use of a deadly weapon, two counts of possession of stolen property, one count of burglary while in possession of a firearm, and one other count of burglary. Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.

Clark County firefighters responded to a fire at the residence of James LaCella, whom firefighters found dead in his recliner. An autopsy later revealed that LaCella died from a gunshot wound to the head. The police investigation found that several of LaCella's hobby toys were missing from his condominium.1 Appellant Patrick Wilcock, who was known to be LaCella's friend, had sold some of LaCella's toys following his death. Wilcock was later arrested and charged with first-degree murder with the use of a deadly weapon, robbery with use of a deadly weapon, burglary, two counts of possession of stolen property, and another count of burglary. The jury ultimately convicted Wilcock on all charges. Wilcock appealed, arguing that the district [*2]  court erred in allowing certain testimony and evidence. He also argues that dismissal is mandated due to the violation of his right to a speedy trial; there was insufficient evidence to support the convictions for first-degree murder, burglary, and robbery; the district court erroneously instructed the jury on robbery and the presumption of innocence; and the convictions for possession of stolen property violate the Double Jeopardy Clause. Wilcock contends that these errors, cumulatively, are sufficient to warrant a new trial.

1   Specifically, police discovered that remote control cars and trains, video game systems, and video games were missing from LaCella's residence following his murder.

***

Admitted evidence

Wilcock argues that the district court erred by admitting certain evidence, including words from his cellular phone's user text dictionary and the tables of contents from several books Wilcock owned.

A district court's decision to admit evidence is reviewed for an abuse of discretion. See Holmes v. State, 129 Nev. Adv. Op. 59, 306 P.3d 415, 418 (2013). The district court has considerable discretion to admit evidence and its determination will only be reversed if it is manifestly wrong. Id.

The dynamic text dictionary from Wilcock's [*6]  cellular phone

Wilcock argues that the words from the dynamic text dictionary of his cellular phone, without context, were irrelevant, unfairly prejudicial, and invited speculation.

Because the State claims that Wilcock entered the words into the phone, and thereby the phone's dictionary, it must provide authentication that Wilcock authored the words typed into the phone. See NRS 52.015. In Rodriguez v. State, 128 Nev. Adv. Op. 14, 273 P.3d 845, 849 (2012), we held that "when there has been an objection to admissibility of a [cellular] text message, the proponent . . . [must] provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission" (citations omitted). We based our conclusion on the reasoning that "'cellular telephones are not always exclusively used by the person to whom the phone number is assigned.' . . . Thus, some additional evidence, 'which tends to corroborate the identity of the sender, is required."' Id. (quoting Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. Ct. 2011).

In this case, the authorship of the phone's dictionary listings is as unclear as the authorship of the text messages in Rodriguez. The State did not present any evidence that Wilcock was the [*7]  person who entered the words into his phone; it merely established that the words in the dictionary were at one time entered into the phone by "the user." But the State did not establish the user's identity for any given entry. Likewise, the State did not offer the circumstantial evidence suggested in Rodriguez, such as "the context and content of the text." Id. at 849. We therefore conclude that the district court abused its discretion by admitting this evidence without sufficient authentication.

Nevertheless, we conclude that the district court's error was harmless beyond a reasonable doubt. See Cortinas v. State, 124 Nev. 1013, 1023-24, 195 P.3d 315, 322 (2008) (holding that constitutional trial errors occurring during the presentation of the case to the jury may be reviewed for harmless error). The words were used to show that Wilcock may have researched murder methods on his phone. This proof could just as easily have been established by the books found in Wilcock's home or the books on his computers. Therefore, the trial court's error does not merit reversal. See id. 1027, 195 P.3d 324 (error is harmless where "it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained" (internal quotations omitted)).

 

Share this article:

Share on facebook
Facebook
Share on twitter
Twitter
Share on linkedin
LinkedIn
Share on email
Email

Recent Posts

Archives