Commercial Litigation and Arbitration

Text Messages Authenticated by 902(11) Certification from Carrier Plus Evidence Cell Number Was Defendant’s, Self-Identification in Texts and Their Contents — 902(11) Certification Also Renders Texts Non-Hearsay

Wilson v. Commonwealth, 2015 Ky. Unpub. LEXIS 70 (Ky. Sup. Ct. Sept. 24, 2015):

A Kenton Circuit Court jury found Appellant, Pharo Wilson, guilty of three counts of criminal attempt to commit murder and found him to be a second-degree persistent felony offender (PFO); later, in a bifurcated trial, he was found guilty of being a felon in possession of a handgun. For these crimes, Appellant was sentenced to a total of seventy years' imprisonment. He now appeals as a matter of right, Ky. Const. § 110(2)(b); and argues that the trial court erred by: (1) denying Appellant's Batson motion; (2) allowing the prosecution to admit text messages without authentication; (3) failing to instruct the jury on applicable lesser-included offenses; and (4) improperly allowing Appellant's single prior felony conviction to be used as the basis for both his felon in possession of a handgun and PFO charges.




Carolyn Sleet called police to report an armed robbery during a poker [*2]  game at her apartment in the City Heights housing projects in Covington, Kentucky. She informed the 911 operator that one of the players robbed the others at gunpoint. When police responded, Sleet identified the robber as Appellant and indicated that he played several hands of cards before robbing the other players. Sleet told police that Appellant also pointed the gun at her, but that he left after she begged him to do so. Sleet described Appellant's attire and told officers that his girlfriend, Keyairow Green, also lived in the projects. Several officers left Sleet's apartment and went to Green's, where police found her alone. Police searched the apartment and did not find Appellant, but they did find his wallet on Green's kitchen table.

When the officers discovered that Green's mother, Carla Mullins, also lived in City Heights, they went to her apartment in search of Appellant. When no one answered the door at Mullins's apartment, one of the officers returned to Green's apartment, where he discovered Mullins had gone to check on Green, who was eight months pregnant. Mullins indicated that she had left her door unlocked in case Green needed her during the night and that she had awoken [*3]  earlier to Appellant pacing back and forth in her apartment. Mullins assumed something was wrong with Green when Appellant asked Mullins where Green was, and left her apartment to check on her daughter. Mullins gave the officers a key to her apartment and they returned to her unit.

When they arrived back at Mullins's apartment, the officers divided, with some going to the rear of the building and others to the front door. One of the officers at the front door heard shouting of "show me your hands" followed by gunshots. At that point, the two officers stationed at the front door went to the back of the building to assist, where they found the officers at the back of the building engaged in a shootout with a man hanging out of a second-story window. One of the officers was shot in the big toe and another received a grazing wound to his leg. In the ensuing confusion, the man shooting at the officers retreated into the apartment, eventually escaping out the front door and running into a wooded area behind the building.

Based on the card players' statements and the belief that it was Appellant who shot at officers from Mullins's apartment, an arrest warrant was issued for Appellant. Appellant [*4]  was arrested several days later and eventually indicted and charged with three counts of attempted murder, one count of first-degree assault, three counts of third-degree assault, possession of a handgun by a convicted felon, and of being a second-degree PFO. In a separate indictment, Appellant was later charged with one count of first-degree robbery. A Kenton Circuit Court jury found Appellant guilty of three counts of attempted murder, acquitted him of first-degree robbery, and found him to be a second-degree PFO; later, in a bifurcated trial, he was found guilty of being a felon in possession of a handgun. For these crimes, Appellant was sentenced to a total of seventy years' imprisonment and now appeals to this Court.



B. Authentication

Appellant next argues that the trial court erred in allowing the Commonwealth to admit text messages without proper authentication. These messages included, among other things, statements indicating that the person who sent the texts identified himself as "pharo." The messages also included statements concerning the shooting.1

1   The text messages were submitted along with a notarized affidavit from the records custodian from [*13]  Cincinnati Bell certifying that the cell phone records were true and accurate and "were made at or near the time of the occurrence of the matters set forth in the records by (or from information transmitted by) a person with knowledge of those matters. These records are kept in the course of Cincinnati Bell's regularly conducted business and were made by the regularly conducted activity as a regular practice. "This certification was in line with KRE 902, entitled "Self-Authentication," which reads, in pertinent part:

   Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:


(11) Business records.

   (A) Unless the sources of information or other circumstances indicate lack of trustworthiness, the original or a duplicate of a record of regularly conducted activity within the scope of KRE 803(6) or KRE 803(7), which the custodian thereof certifies:

   (i) Was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters;

(ii) Is kept in the course of the regularly conducted activity; and

(iii) Was made by the regularly conducted activity as a regular practice.

At trial, [*14]  Appellant's counsel argued that it was not clear that all of the text messages in question were sent from Appellant, as, on a few occasions, the person texting from the phone number identified himself as "mario." Defense counsel pointed out that all of the messages in which the individual identified himself as "pharo" occurred the day before the shooting and that there is no proof that Appellant was the one who sent the text messages in question regarding the shooting.

The prosecution countered at trial that, in its opening statement, the defense alleged that Appellant only fired two shots and described them as being two stories over the police officers' heads--in stark contrast to testimony which would be introduced at trial by the officers that Appellant fired approximately ten shots directly at them. Therefore, the prosecution particularly wanted to introduce one of the text messages that read, "how many got shot cuz I was letting loose" to contradict the opening statement. The Commonwealth argued this would allow the jury to infer that Appellant fired more than two shots and would also tend to prove that Appellant knew he was shooting at more than one police officer (which, it argued, [*15]  was relevant, given that Appellant was charged with three counts of attempted murder). The prosecution also wanted to introduce a few other text messages to show that it was Appellant's phone and to show that people began texting Appellant at that number when they found out he had been in a shootout with police.

Ultimately, the trial court allowed the introduction of some of the text messages, finding that the connection between Appellant and the phone was clear. The trial court went on to find that the records were self-authenticating business records under KRE 902 and created a significant indicia of reliability. The admitted text messages included several in which the person at the phone number in question identified himself as "mario" and several in which he identified himself as "pharo." The admitted messages also included messages related to the shooting.

Appellant agrees that the messages were obtained from the phone company and amounted to business records made in the ordinary course of business, however, he argues that, in spite of this fact, they were still not properly authenticated, as the prosecution failed to prove that Appellant was the person who actually sent or received the [*16]  text messages. The Commonwealth responds that these messages were properly authenticated, as two witnesses testified that the phone number for which the records were obtained was the number they used to get in touch with Appellant. Specifically, Carla Mullins testified that she had Appellant's number saved in her phone under "Pharo" and that when she wanted to call him, she would find that entry in her phone and press call. When she called the number saved in her phone, Mullins testified that she reached Appellant. Keyairow Green also testified that she had used Mullins's cell phone to initiate and receive calls and text messages from Appellant. She stated that Appellant's number was saved in Mullins's phone under the name "Pharo" and that it was a reliable way to get in touch with Appellant and that he replied to text messages sent to that number.

The Commonwealth argues that there is ample evidence that Appellant sent the messages. Not all of the messages certified by Cincinnati Bell and included in the record were admitted at trial, as they were redacted, but the Commonwealth points out that the individual responding from the number in question identified himself as "pharo" in the [*17]  text messages several times. This Court notes that it examined the records carefully and found no less than six instances in which the individual identified himself as "pharo" and one in which he answered "p.h.a.r.o" when another person asked who he was. The Commonwealth also notes in its brief that Appellant eventually conceded at trial that he was the individual who fired the shots and that some of the admitted text messages discussed details about the shooting. Having explained the parties' arguments, we turn now to the law surrounding authentication.

"The concept of authentication (or the laying of a 'foundation,') relates to a trial court's need for preliminary proof of two things: (1) the pertinence of the proposed evidence to the litigation, and (2) that a document is what its proponent claims it to be." Bell v. Commonwealth, 875 S.W.2d 882, 886 (Ky. 1994). Furthermore, "a party seeking to introduce an item of tangible evidence need not satisfy an 'absolute' identification requirement, and evidence is admissible if the offering party's evidence reasonably identifies the item. We grant trial courts wide discretion over issues relating to the admissibility of tangible evidence because the foundation sufficient for admissibility [*18]  will vary based on the nature of the item ...." Grundy v. Commonwealth, 25 S.W.3d 76, 80 (Ky. 2000) (footnote omitted). "On appellate review, the trial court's finding of authentication is reviewed for abuse of discretion." Johnson v. Commonwealth, 134 S.W.3d 563, 566 (Ky. 2004). For the reasons that follow, we affirm the trial court and hold that it did not abuse its discretion.

Kentucky Rules of Evidence 901 (a) provides: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The rule goes on to provide examples of authentication that comport with the rule and specifically includes "[t]estimony of witness with knowledge. Testimony that a matter is what it is claimed to be." KRE 901(b)(1). Another example the rule gives is "[d]istinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." KRE 901(b)(4).

As previously noted, Appellant does not argue that there was any problem with the text messages themselves or that they had been modified from their original form, but rather, Appellant argues that the Commonwealth did not prove that Appellant was the individual who sent and received them. However, as this Court [*19]  held in Ordway v. Commonwealth, 352 S.W.3d 584, 593 (Ky. 2011) when reviewing the authentication of a letter purportedly written by the appellant in that case: "[t]he burden on the Commonwealth to establish that the letter was written by Appellant is 'slight' and requires only a prima facie showing. Sanders v. Commonwealth, 301 S.W.3d 497, 501 (Ky. 2010). The contents of the letter, taken in conjunction with the circumstances, can be relied upon in determining authentication. KRE 901(b)(4)."

As detailed above, two witnesses with knowledge of Appellant's cell phone number testified that they both used the number in question to get in touch with him. This was proper evidence for authentication pursuant to KRE 901(b)(1). Furthermore, the content of the texts, including several instances in which the individual sending and receiving text messages at that number identified himself as "pharo" and gave details concerning the shooting provided authentication, just as the contents of the letter in Ordway did.

We hold that the Commonwealth's evidence reasonably identified the text messages as required by Grundy, 25 S.W.3d at 80. Therefore, given the testimony presented at trial and the context of the text messages, the trial court did not abuse its discretion in admitting them.

Appellant also argues that the text messages amounted to inadmissible hearsay. [*20]  Appellant only cites one case from the Pennsylvania Supreme Court, Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. Ct. 2011), for this premise. In Koch, a police detective had transcribed messages from Appellant's phone. This differs markedly from the business records secured from the phone company in the case at bar. Furthermore, KRE 803(6) provides an exception to the prohibition against hearsay for "[r]ecords of regularly conducted activity." Appellant admits that the records in this case were regularly maintained by Cincinnati Bell. Since the records of the text messages fall under an exception to our general prohibition against hearsay, and Appellant cites no case law binding upon this Court that suggests otherwise, we will delve into the issue no further and affirm the decision of the trial court.

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