Voicemail Admissibility — Rule 801(d)(2)(C) — Voicemail Left by A Purportedly on B’s Behalf Is Hearsay Absent Independent Proof That A Was an Agent of Or Was Otherwise Authorized by B to Leave the Voicemail

State v. Davis, 2016 Ariz. App. Unpub. LEXIS 323 (Ariz. Ct. App. Mar. 16, 2016):

P1 Following a jury trial, Mohammed Davis was convicted of three counts of aggravated harassment. On appeal, Davis argues the trial court abused its discretion by admitting evidence of prior bad acts, denying his motion to sever offenses, and admitting hearsay that did not fall into an enumerated exception, and erred by denying his request for a jury trial to determine the fact of his prior convictions. Because we conclude the court erred by allowing the admission of hearsay, we vacate and remand Davis's conviction on count two, but otherwise affirm.

Factual and Procedural Background

P2 We view the [*2]  facts in the light most favorable to affirming the jury's verdicts. State v. Ortiz, 238 Ariz. 329, ¶ 2, 360 P.3d 125, 129 (App. 2015). S.D. and Davis began dating in November 2012, and S.D. became pregnant the next month. The two moved in together the following summer and, shortly thereafter, Davis began physically abusing S.D. In September 2013, S.D. obtained an order of protection against Davis, enforceable for one year, which prohibited any communications from Davis directed at S.D. He was later arrested and convicted of domestic violence against S.D. and remained in jail until May 2014.

P3 All three of the communications that led to Davis's indictment in this case occurred while he was in jail. In November 2013, S.D. received a voicemail message from someone calling himself "Victor" and purporting to be Davis's cellmate. The caller stated that Davis had asked him to call S.D., tell her Davis loved and missed her, and inform her of Davis's upcoming court appearance. The following month, S.D. received a text message from Davis's sister, at Davis's direction, asking her to come to Davis's upcoming court appearance. In April 2014, S.D. received another text message from Davis's sister, which contained a photograph of a letter from Davis that S.D. [*3]  knew was directed at her from its language. She felt threatened and frightened by all three communications from Davis.

P4 Davis was charged with stalking and three counts of aggravated harassment. The trial court denied his motion to sever the stalking charge from the aggravated harassment charges. On the second day of trial, the court granted Davis's motion for a judgment of acquittal on the stalking charge and the jury found Davis guilty of the three aggravated harassment charges. The court sentenced him to concurrent sentences, the longest of which is five years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).

***

Inadmissible Hearsay

P22 Davis next argues the trial court erred by admitting the voicemail message left on S.D.'s cellphone because it was inadmissible hearsay and lacked the requisite foundation for an authorized statement. He argues the voicemail message was not an authorized party statement pursuant to Rule 801(d)(2)(C), Ariz. R. Evid., because "the State never established with evidence that 'Victor' was authorized to make the statement on behalf of [Davis]." We review a court's ruling on the admissibility of evidence for an abuse of discretion. State v. Bronson, 204 Ariz. 321, ¶ 14, 63 P.3d 1058, 1061 (App. 2003). "A trial court abuses its discretion when it commits an error of law." State v. Miller, 226 Ariz. 202, ¶ 7, 245 P.3d 887, 891 (App. 2010).

P23 Before trial, Davis moved to preclude the voicemail message from "Victor" stating Davis had asked him to call S.D., tell her Davis loved her, and tell her of his upcoming court date. He argued the voicemail was inadmissible hearsay and the [*13]  state had not established that Davis had directed "Victor" to relay the message to S.D. The trial court concluded the voicemail was not hearsay, but a party statement by an authorized agent pursuant to Rule 801(d)(2)(C), and the proper foundation could be established with a detective's testimony that he took the recording from S.D.'s cellphone.

P24 Rule 801(d)(2)(C) provides that a "statement . . . offered against an opposing party and . . . made by a person whom the party authorized to make a statement on the subject" is not hearsay. The party seeking to admit the statement must provide "independent proof of an agency relationship and its scope." State v. Frustino, 142 Ariz. 288, 294-95, 689 P.2d 547, 553-54 (App. 1984); see also Wallace v. Casa Grande Union High Sch. Dist. No. 82 Bd. of Governors, 184 Ariz. 419, 425, 909 P.2d 486, 492 (App. 1995) (no evidence third-party authorized or acting as defendant's agent when he relayed defendant's defamatory statement to plaintiff and Rule 801(d)(2)(C) did not apply). "As with all vicarious admissions there must be evidence independent of the statement that the relationship justifying admission of the statement in fact existed." 1 Joseph M. Livermore, Robert Bartels & Anne Holt Hameroff, Arizona Practice: Law of Evidence § 801:6, at 490 (rev. 4th ed. 2008). A court may consider the statement itself when determining if the declarant was authorized, [*14]  but the statement "does not by itself establish the declarant's authority." Ariz. R. Evid. 801(d)(2).

P25 Here, the state failed to present any evidence as to whether "Victor" was authorized by Davis to convey the message to S.D. The only evidence provided was that the voicemail came to S.D.'s cellphone and was traced back to an office line at the jail where Davis was being housed. Consequently, the state failed to provide "independent proof of an agency relationship and its scope" aside from the purported agent's statement and it thus did not meet the requirements for an authorized statement by an agent. Frustino, 142 Ariz. at 294, 689 P.2d at 553.

P26 Furthermore, the voicemail was offered to prove the truth of the matter asserted--that Davis directed "Victor" to call S.D. on his behalf. It was therefore hearsay and does not fall under any of the exceptions allowing its admission. Ariz. R. Evid. 801(c), 803, 804. Consequently, the trial court abused its discretion by allowing its admission.3 Miller, 226 Ariz. 202, ¶ 7, 245 P.3d at 891.

3   Because we conclude the trial court erred by admitting this evidence, we do not discuss Davis's argument that the evidence additionally violated his Confrontation Clause rights.

P27 The state, relying on State v. Garza, 216 Ariz. 56, ¶ 41, 163 P.3d 1006, 1016 (2007), contends that party statements require no external indicia of reliability, and it was therefore not required [*15]  to provide any proof that Davis had authorized "Victor" to make the call to S.D. But the court in Garza was referring to party statements "made by the party in an individual or representative capacity" pursuant to Rule 801(d)(2)(A), Ariz. R. Evid., Garza, 216 Ariz. 56, ¶ 41, 163 P.3d at 1016, and that reasoning is therefore not applicable to the statement by an agent. As noted above, when the state seeks to introduce a statement made by an agent authorized by the party it must provide independent proof the agent was, in fact, authorized by the party to make statements on the subject. See Frustino, 142 Ariz. at 294-95, 689 P.2d at 553-54.

P28 "A trial error is harmless 'if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict' or sentence." State v. Lizardi, 234 Ariz. 501, ¶ 19, 323 P.3d 1152, 1157 (App. 2014), quoting State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993). The voicemail message was the only evidence supporting count two of the indictment. Consequently, its erroneous admission was not harmless, and we vacate the conviction on count two.

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