Commercial Litigation and Arbitration

Incoming Texts Not Hearsay: By Responding Affirmatively to Offers to Buy Drugs, Party Adopted Implied Assertions He Had Drugs for Sale — Also Admissible As Context to Make Responses Intelligible

State v. Ulmer, 2017 Ariz. App. Unpub. LEXIS 1125 (Ariz. Ct. App. Aug. 15, 2017):

P1 After a jury trial, Clinton Ulmer was convicted of possession of a narcotic drug for sale and possession of drug paraphernalia. The trial court sentenced him to concurrent terms of imprisonment, the longer of which is 3.5 years. On appeal, he argues text communications received on his cell phone were inadmissible hearsay and their admission as evidence constituted reversible error. For the following reasons, we affirm.

Factual and Procedural Background

P2 We view the evidence in the light most favorable to sustaining Ulmer's convictions. See State v. Pena, 233 Ariz. 112, ¶ 2, 309 P.3d 936, 938 (App. 2013), vacated in part on other grounds, 235 Ariz. 277, ¶ 13, 331 P.3d 412, 415-16 (2014). In June 2014, in the course of an unrelated traffic stop and arrest, [*2]  a detective with the Gila County Sheriff's Office received information that caused him to obtain a search warrant for Ulmer's residence. During the search of the property, officers found heroin, foil, cash, baggies, a scale, and two cell phones. After he was advised of his rights pursuant to Miranda, Ulmer admitted using heroin and said both phones found in the search belonged to him. He also told the officers they would find "activity related to heroin" on the newer phone, and he provided the needed password.

P3 Just after voir dire, the state sought guidance about referring to certain text messages found on Ulmer's cell phone during its opening statement. The state specifically directed the trial court to State v. Chavez, 225 Ariz. 442, 239 P.3d 761 (App. 2010), as a case involving the "admissibility of . . . received text messages in a drug case." At that time, Ulmer stated he expected to object to admission of the texts on grounds of "hearsay, lack of foundation, relevance" and pursuant to Rule 404, Ariz. R. Evid. The court, which had not yet seen the messages, suggested the state avoid any specific reference to text messages in its opening statement, and it reserved questions regarding admissibility for further argument.

P4 The following morning, Ulmer objected [*3]  to the state's proffer of three separate text conversation "strings" that had been "extracted" from his phone, each reflecting incoming and outgoing text messages between his phone and another specified phone number and all occurring in the thirty-six hours before his arrest. Ulmer acknowledged this court's holding in State v. Chavez that incoming text messages from would-be drug purchasers were not hearsay, because they "were not offered to prove the truth of the matter they asserted—that the prospective buyers wanted to purchase drugs" from the defendant, but "as circumstantial evidence that [the defendant] had drugs for sale." 225 Ariz. 442, ¶ 9, 239 P.3d 761, 763 (App. 2010). But he maintained the text conversations were evidence of "other acts" inadmissible under Rule 404, Ariz. R. Evid. With respect to hearsay, Ulmer stated only, "[T]here still needs to be foundation . . . and I'm not sure the State has shown" the origin of the text messages. Citing Chavez, the trial court "overrule[d Ulmer's] hearsay objection" at that time and, noting the extracted conversations had all occurred close in time to Ulmer's arrest, it found the evidence intrinsic to the offenses charged and not subject to Rule 404. The evidence was admitted over Ulmer's objections, and he was convicted [*4]  and sentenced as stated above.


P5 On appeal, Ulmer cites the entirety of the three text conversation strings admitted and contends all portions of those strings reflecting incoming texts "should have been excluded because they contained the implied assertion that [he] was selling drugs, and were used to prove that assertion and were therefore hearsay." Relying primarily on reasoning found in the dissenting opinion in State v. Palmer, 229 Ariz. 64, ¶¶ 14-36, 270 P.2d 891, 895-902 (App. 2012) (Eckerstrom, J., dissenting), Ulmer argues Chavez was decided "without full briefing of the hearsay issue" and therefore does not "foreclos[e] a full and thoughtful review" of the issue presented. We review a trial court's rulings on the admission of evidence for an abuse of discretion. State v. Davolt, 207 Ariz. 191, ¶ 60, 84 P.3d 456, 473 (2004). We find none here.

P6 As an initial matter, we agree with the state that Chavez and Palmer are inapposite. Both of those cases addressed the admissibility of unilateral statements or questions raised by third parties; neither case addressed Rule 801(d)(2), Ariz. R. Evid., because neither record included evidence that the defendant had responded to the third-party statements at issue or otherwise manifested any adoption of them. See Palmer, 229 Ariz. 64, ¶¶ 5, 12, 270 P.3d at 893, 895 (no evidence defendant responded to unidentified declarant's question, "[W]here is your backpack[?]"); [*5]  Chavez, 225 Ariz. 442, ¶ 3, 239 P.3d at 762 (addressing admissibility of six text messages from "unidentified senders [who] apparently sought to purchase drugs"). In contrast, the text messages sent by Ulmer and admitted into evidence either elicited or responded to texts sent from specific, identified phone numbers. In the context of those communications, Ulmer's statements implicated him in the purchase and resale of drugs.

P7 Hearsay is "a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement," Ariz. R. Evid. 801(c), and it is generally inadmissible, Ariz. R. Evid. 802. A "statement" is "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." Ariz. R. Evid. 801(a). But a statement is not hearsay if it "is offered against an opposing party and" was either made or manifestly adopted by the party. Ariz. R. Evid. 801(2)(A), (B). Nor is a statement hearsay when it is "offered for a purpose other than the truth of the matter asserted." State v. Larson, 222 Ariz. 341, ¶ 21, 214 P.3d 429, 433 (App. 2009).

P8 The state maintains the portion of the text conversation strings reflecting incoming texts from third parties were adopted by Ulmer through his own statements and, additionally, were not [*6]  hearsay because they were not offered for the truth of the matter asserted—e.g., a third-party's interest in purchasing drugs—but to provide context for Ulmer's statements. We agree.

P9 Although Ulmer does not dispute the admissibility, pursuant to Rule 801(d)(2), of his own statements in sent text messages, he challenges, as examples of impermissible hearsay, incoming texts such as "How much . . . for a gram[?]", "Can you sell me anything?", and "Can I come by and get a 60 on my lunch?". But without the context of these questions, a jury could make little sense of Ulmer's responses—respectively, "I'll charge [yo]u the same a[s] you charge me. It's only fa[i]r"; "Y[e]a[h] w[h]en I get back"; and "I'll have to meet you—can you give me 15 mins / I'll hurry." See State v. Weigel, 145 Ariz. 480, 481, 702 P.2d 709, 710 (App. 1985) (officer's statement "admitted not to prove the truth of what it asserts but to give meaning to defendant's agreement"); United States v. Colon-Diaz, 521 F.3d 29, 38 (1st Cir. 2008) (statement not hearsay when admitted to give context to another's statement and make it "intelligible to the jury"); United States v. Tolliver, 454 F.3d 660, 666 (7th Cir. 2006) (statements "providing context for other admissible statements are not hearsay because they are not offered for their truth").

P10 Moreover, a party is deemed to have adopted a third-party's statement when he "affirmatively agrees [*7]  to statements made in his presence, or expounds on the statements by adding his own 'explanations and comments.'" State v. Anderson, 210 Ariz. 327, ¶ 36, 111 P.3d 369, 381 (2005), quoting State v. Daugherty, 173 Ariz. 548, 550, 845 P.2d 474, 476 (App. 1992). In the examples cited above, Ulmer adopted any implicit assertions, made by the senders, that they believed he had heroin for sale.

P11 To the extent Ulmer maintains not all of the incoming texts admitted were adopted or otherwise required to provide context for his responses, we decline to find reversible error. See Daugherty, 173 Ariz. at 550, 845 P.2d at 476 (trial court did not err in admitting "entire conversation" where defendant's active participation in conversation showed adoption of statements made by her companion); State v. Stanley, 156 Ariz. 492, 495, 753 P.2d 182, 185 (App. 1988) (same). In light of the substantial probative value of Ulmer's own inculpatory remarks, any error of overinclusion of third-party statements would be harmless. See State v. Williams, 133 Ariz. 220, 226, 650 P.2d 1202, 1208 (1982) (cumulative evidence is harmless error).


P12 For the foregoing reasons, we affirm Ulmer's convictions and sentences.


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