Text Authentication by Absence of Messages at Times Alleged Sender Is Indisposed, Name & Phone Number on Messages, Consistency of Content with Events in Alleged Sender’s Life

Matter of Detention of H.N., 2015 Wash. App. LEXIS 1433 (Wash. Ct. App. July 6, 2015):

H.N. appeals the order committing her to involuntary treatment. The trial court did not abuse its discretion when it admitted as substantive evidence e-mailed screenshots of text messages that a medical expert used as part of her opinion testimony. ***

¶17 H.N. argues that the trial court abused its discretion when it admitted as substantive evidence e-mailed screenshots of text messages that the State's expert witness used during her testimony. Because this evidence was properly authenticated pursuant to ER 901(b), we disagree.

¶18 "Authentication is a threshold requirement designed to assure that evidence is what it purports to be."9 Under ER 901(a), "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to [*6]  support a finding that the matter in question is what its proponent claims."

9   State v. Payne, 117 Wn. App. 99, 106, 69 P.3d 889 (2003).

¶19 Because the proponent must make only a prima facie showing of authenticity for purposes of establishing admissibility, ER 901 is met "if the proponent shows enough proof for a reasonable fact finder to find in favor of authenticity."10 "'[T]he proponent of offered evidence need not rule out all possibilities inconsistent with authenticity or conclusively prove that evidence is what it purports to be ... .'"11

10   Id. at 108 (citing State v. Danielson, 37 Wn. App. 469, 471, 681 P.2d 260 (1984)).

11   State v. Andrews, 172 Wn. App. 703, 708, 293 P.3d 1203 (quoting State v. Thompson, 2010 ND 10, 777 N.W.2d 617, 624 (N.D. 2010)), review denied, 177 Wn.2d 1014 (2013).

¶20 "Because under ER 104 authenticity is a preliminary determination, the court may consider evidence that might otherwise be objectionable under other rules."12 "A trial court may, therefore, rely upon such information as lay opinions, hearsay, or the proffered evidence itself in making its determination."13 "Such information must be reliable, but need not be admissible."14

12   Rice v. Offshore Sys., Inc., 167 Wn. App. 77, 86, 272 P.3d 865 (2012).

13   State v. Williams, 136 Wn. App. 486, 500, 150 P.3d 111 (2007).

14   Id.

¶21 "In making this preliminary determination, the court considers only the evidence offered by the proponent and disregards any contrary evidence offered by the opponent."15 "Once a prima facie showing has been made, the evidence is admissible under ER 901."16 The opponent is then free to object on the basis of any other rules [*7]  that may bar the evidence or offer contradictory evidence challenging authenticity.17 If such contradictory evidence is offered, the authenticity of the proponent's evidence is ultimately judged by the trier of fact.18

15   Rice, 167 Wn. App. at 86.

16   Id.

17   Id.

18   5C Karl B. Tegland, Washington Practice: Evidence Law and Practice § 901.4, 288-89 (5th ed. 2007).

¶22 ER 901(b) provides examples of authentication conforming with the requirements of the rule. These examples are "[b]y way of illustration only, and not by way of limitation."19 They include the following:

   (4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.


(10) Electronic Mail (E-mail). Testimony by a person with knowledge that (i) the email purports to be authored or created by the particular sender or the sender's agent; (ii) the email purports to be sent from an email address associated with the particular sender or the sender's agent; and (iii) the appearance, contents, substance, internal patterns, or other distinctive characteristics of the email, taken in conjunction with the circumstances, are sufficient to support a finding that the email in question is what the proponent claims.[20]

19   ER 901(b).

20   Id. at (4), (10).

¶23 The current version [*8]  of ER 901(b) does not specifically address text messages. Nevertheless, these illustrative examples provide proper bases for the trial court's determination in this case.

¶24 A trial court's admission of evidence is reviewed for abuse of discretion.21 An abuse of discretion occurs when a trial court's decision is manifestly unreasonable or based on untenable grounds or reasons.22

21   State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008).

22   Id.

¶25 This court recently considered authentication of text messages in State v. Bradford.23 There, Jonathan Bradford was convicted of several offenses, including felony stalking of his ex-girlfriend.24 Among the evidence admitted at trial were text messages that Bradford had sent to his ex-girlfriend and her friend.25 The text messages sent to the ex-girlfriend were introduced through the testimony of a police officer who read to the jury quotations from the text messages from police reports.26 Other text messages, sent to the friend, were admitted through a 12-page condensed version of a much longer report itemizing each text message that was retrieved from a "phone dump" report of the friend's cellular telephone.27 Bradford appealed, claiming that the trial court erroneously admitted the evidence of the text messages. He claimed that [*9]  the State failed to show that he sent the messages, relying on ER 901(a).28

23   175 Wn. App. 912, 308 P.3d 736 (2013), review denied, 179 Wn.2d 1010 (2014).

24   Id. at 915.

25   Id. at 928.

26   Id. at 918 n.1, 928.

27   Id. at 919.

28   Id. at 927.

¶26 This court rejected Bradford's arguments. It concluded that there was sufficient evidence to support a finding that Bradford wrote and sent the text messages that were read to the jury and contained in the report.29

29   Id. at 928-29.

¶27 First, the court noted that Bradford's actions showed his "desperate desire" to communicate with his ex-girlfriend.30 And it stated that "[i]t was consistent with this obsessive behavior that [Bradford] would also send text messages to [the friend] as part of his efforts to contact [his ex-girlfriend]."31

30   Id. at 929.

31   Id.

¶28 Second, the court stated that "the content of the text messages themselves indicated that Bradford was the individual who sent them."32 For example, the text messages repeatedly mentioned his ex-girlfriend's name. Further, the threats contained in the text messages "were consistent with Bradford's previous threats made in 2010."33 Additionally, other texts referenced the name of the restaurant in which Bradford had seen his ex-girlfriend.34

32   Id.

33   Id.

34   Id. at 930.

¶29 Third, the court noted that two of the text messages threatened to cause an explosion.35 And shortly after these messages were sent, [*10]  the ex-girlfriend received a suspicious package from Bradford.36

35   Id. at 929.

36   Id.

¶30 Fourth, the court stated, "Also pertinent was the fact that, between January 22 and May 23, 2011, Bradford was in jail and, therefore, unable to send text messages or e-mails. During this same time period, [the friend] did not receive any offensive text messages."37 Once Bradford was released from jail, the friend began to receive offensive text messages again.38

37   Id. at 929-30.

38   Id. at 930.

¶31 Finally, the court noted that the ex-girlfriend and her friend testified to their belief that the text messages were from Bradford.39

39   Id.

¶32 As an initial matter, we note that the current version of ER 901(b) that we quoted earlier in this opinion was not before the Bradford court. Specifically, ER 901(b)(10) now specifically refers to e-mails, whereas the earlier version did not.40 The trial court specifically relied on the current version of this rule for its ruling.

40   See former ER 901(b)(10) (1979) ("Methods Provided by Statute or Rule. Any method of authentication or identification provided by statute or court rule.").

¶33 The evidentiary ruling arose during Dr. Cynthia Mason's testimony. She was qualified as an expert medical witness on behalf of the State. She testified that she considered the e-mailed [*11]  screenshots of text messages as an important basis for her opinions and that experts in her field generally rely upon such evidence. Significantly, she also discussed these e-mailed screenshots of text messages with H.N. when she evaluated her.

¶34 Over H.N.'s objection, based on lack of foundation, the trial court admitted the e-mailed screenshots of the text messages that Dr. Mason read into the record.

¶35 Dr. Mason believed the text messages were sent to H.N.'s boyfriend who lived out of state. She testified that the first message was sent at 11:00 p.m. and was initiated by H.N. It stated, "I'm about to do something really stupid."41 H.N. then wrote, "I need you. I need someone."42 The next message stated, "I've got two bottles of wine and a bottle of 80 proof vodka. It's going down my throat with some prescription meds."43 When asked what happened, H.N. responded, "I'm sh*t. That's what happened."44

41   Report of Proceedings (May 7, 2014) at 53.

42   Id.

43   Id.

44   Id.

¶36 Dr. Mason continued to summarize the conversation:

   And he presses and--and--asking her. And he's asking her what was the problem. At 11:08 p.m. she writes, quote, I'm almost done with one bottle, end quote. And he's asking her to talk to her and she responded--or [*12]  he responded at 11:08 p.m., quote, you're not going to kill yourself for someone who isn't worth it, end quote.

At 11:09 p.m. she wrote back, quote, I'm not killing myself for that reason, end quote. And then she texts again, quote, I'm killing myself because I'm tired, end quote. And she's going on about a relationship that it appears has--has failed. And he's pleading with her to keep the bottles and the medicine away and just talk to him.

And she responds at 11:11 p.m., quote, I miss [H.N.'s ex-boyfriend], end quote. And he's telling her to relax and talk to her and--and stop drinking. He's pleading with her. And at 11:15 p.m. she writes, quote, don't tell [S.]. And I believe that that's [S.T.] who is present in court today, about what's happening. And then he responded back by saying, at 11:16, I already told her ... .

At 11:16 she responded, quote, I know, she called me, end quote. And then he's pleading with her to relax and not kill herself. At 11:17 she responds, quote, one bottle is gone, [A.]. I don't know what to do, end quote. And he's trying to reassure her that everything will be all right.

At 11:19 she writes, quote, I can't. He responds at 11:19, I won't let you die. I'll [*13]  take care of you. I love you, remember? At 11:20 she responds, I can't. At 11:20 she responds, quote, in a minute I won't be able to text, end quote. And he's pleading with her and saying why, why, why? At 11:21 she's responding, I'm dizzy, end quote. At 11:22 she's responding, I need you, end quote.

At 11:23 she responds, quote, please don't tell [S.]. There is nothing she can do, end quote. He's saying I won't be able to live with myself if something happens to you. And then he informs her that somebody is coming over for her to take care of her. And she responds at 11:27, who? And then she--he's saying that a friend is going to come see her. At 11:29 she types, I can't see any more, I'm sorry. And he's responding that this person that he's sending over is her friend. And she pleads with him at 11:33, no, tell him not to come. I don't want him.

At 11:36 she types, I want to see my mom, who's deceased. And at 11:36 she types I want to see [her ex-boyfriend], who's again deceased. He's saying that your dying doesn't mean that you'll see him. At 11:39 she types after life. Again, he's pleading with her not to kill herself.

She types some--couple times at 11:54 and 11:56 some faces, a bike [*14]  and five hand gestures, followed by I hurt.[45]

45   Id. at 53-55.

¶37 Dr. Mason testified that there was no correspondence again until 1:12 a.m., when she wrote "I think I'm at the hospital now."46

46   Id. at 55.

¶38 When the prosecutor asked if the timeline corresponded with the timing of this incident, Dr. Mason answered affirmatively.

¶39 The court overruled H.N.'s objection to this evidence and stated:

   I am going to accept [the e-mailed screenshots of the text messages] as substantive evidence. If you take a look at ER 901(b)(10), I can look to the appearance, the content, the substance, the internal patterns or other general distinctive characteristics in order to authenticate these documents.

And given the date and time, her name, her phone number, and the content of these text messages, that provides this Court with circumstantial evidence that these in fact were statements made by [H.N.], and I will accept them as such.[47]

47   Id. at 58-59.

¶40 This ruling was a proper exercise of discretion.

¶41 First, it is significant that Dr. Mason confronted H.N. with the e-mailed screenshots of the text messages during the evaluation that preceded the court hearing. H.N. acknowledged sending the text messages but claimed she did not recall to whom. Nevertheless, this interaction [*15]  between the two evidences that the e-mailed screenshots of text messages admitted as substantive evidence were what they purported to be--statements by H.N. during the incident that gave rise to her involuntary commitment for treatment.

¶42 Second, the identifying information at the top of the text messages indicates that H.N. was the sender. Dr. Mason testified that the text messages listed the sender's phone number. She further testified that that the sender's phone number matched the contact information in H.N.'s medical chart. She also testified that H.N.'s full name was identified and displayed as the sender of the text messages.

¶43 Third, the content of the text messages themselves also suggests that H.N. was the sender. The messages consistently reference names of people in H.N.'s life.

¶44 Fourth, the text messages are consistent with certain events that happened in H.N.'s life. For example, one text messages states, "I want to see my mom" and another states "I want to see [H.N.'s ex-boyfriend]."48 Both H.N.'s mom and her ex-boyfriend are deceased. Additionally, another message states, "I've got two bottles of wine and a bottle of 80 proof vodka. It's going down my throat with some prescription [*16]  meds."49 This is consistent with the fact that wine and vodka bottles were found near H.N.'s unconscious body.

48   Id. at 55; Supplemental Documents Requested by the Court.

49   Id. at 53.

¶45 Finally, the timing of the text messages is consistent with H.N.'s hospitalization on the night of the incident. The date of the screenshots indicate that they were taken on May 4, 2014. H.N. was detained on May 3, 2014. Further, the text messages themselves are time-stamped. The text message conversation starts at around 11:00 p.m. and stops at around 12:00 a.m. According to their testimony, H.N.'s roommates found H.N. unconscious around 12:00 a.m. to 12:30 a.m. They called 911 and paramedics took H.N. to the hospital. The text messages resume at 1:12 a.m. with one that states, "I think I'm at the hospital now."50

50   Id. at 55.

¶46 In sum, the requirements of ER 901(b)(10) are satisfied by analogy. The record establishes that the e-mailed screenshots of text messages were authored by H.N. Likewise, they were sent from the cell number associated with H.N. Finally, the distinctive characteristics of the messages, taken in conjunction with the circumstances are sufficient to support authentication. For these reasons, we conclude that the trial court correctly decided [*17]  that the State's prima facie showing was sufficient to admit this evidence.

¶47 H.N. attempts to distinguish this case from Bradford in several ways. None of her arguments are persuasive.

¶48 First, H.N. points out that, in contrast to Bradford, the document in this case was not produced as part of a report generated by the recipient's cell service provider. This is true. But that is immaterial.

¶49 The evidence in this case shows that H.N. acknowledged sending these text messages. Moreover, for the reasons the trial court stated in its ruling, there was sufficient evidence to authenticate them.

¶50 In any event, the fact that the text messages in Bradford were produced as part of a report was not material to the court's analysis. Rather, the court relied on the circumstantial evidence we discussed earlier in this opinion to conclude that the text messages were properly authenticated.

¶51 Second, H.N. argues that "while in Bradford the sender was unverified, here both the sender and the recipient remain unverified."51 But this overlooks that the sender, H.N. was verified. She acknowledged sending the text messages. Further, Dr. Mason testified that the phone number in the e-mailed screenshots of the text messages [*18]  was the same as that in H.N.'s medical records. This, as well as the other evidence we discussed previously, was sufficient to verify that H.N. was the sender. The fact that the recipient was not also verified does not appear to be a requirement to authenticate this evidence.

51   Brief of Appellant at 11.

¶52 In any event, the information concerning the identity of the recipient was not material to the reasoning in Bradford. While knowledge of the recipient might be helpful to establishing authentication, H.N. fails to point to any authority indicating that such evidence is required.

¶53 H.N.'s arguments about State v. Danielson fail for the same reason.52 In that case, an officer testified that he had received a telephone call and spoken with an individual who identified himself as the defendant.53 H.N. contrasts Danielson and asserts that in this case, "No individual testified that he had received the text messages, or even the emailed screen shots of the text messages. Without this testimony, the messages could not be properly authenticated."54 But again, H.N. fails to provide any authority to support this assertion. Thus, we reject it.

52   Appellant's Reply Brief at 1-2 (citing State v. Danielson, 37 Wn. App. 469, 681 P.2d 260 (1984)).

53   Danielson, 37 Wn. App. at 472.

54   Appellant's Reply Brief [*19]  at 2.

¶54 H.N. argues that without testimony from a witness who could testify that he had received the messages, "[T]here was [no] way to verify how the emailed documents had been actually created or whether they had been altered."55

55   Id. at 3.

¶55 It is unclear whether this argument is directed to the screenshots of the text messages or to the e-mail that transmitted them. As we have consistently stated in this opinion, the document from which Dr. Mason quoted at the hearing was composed of e-mailed screenshots of text messages.

¶56 If this argument is directed to the screenshots of the text messages contained in the e-mail, we have already considered and rejected the challenges in our prior discussion in this opinion. If, however, this argument is directed to the e-mails themselves, we conclude that H.N. did not preserve this argument. H.N. did not argue in the trial court that the e-mails themselves, as distinct from the screenshots of text messages within the e-mail, were not authenticated. Rather, the focus below was limited to the text messages, and the trial court's ruling was similarly focused. Likewise, on appeal, the briefing does not develop this alternative. Accordingly, we do not further address it.

¶57 Finally, [*20]  H.N. argues that "there was no evidence presented about when the text messages had been obtained."56 But the screenshots are dated May 4, 2014. H.N. also asserts, "The fact that the messages appeared to be time stamped was not sufficient for authentication because the recipient of the messages did not testify and the evidence did not come directly from the cell phone."57 But she fails to provide any authority to support this assertion. Further, the time stamps provide circumstantial evidence of authentication. Thus, this is not persuasive.

56   Brief of Appellant at 12.

57   Id.

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