Duvall v. State, 2018 Ark. App. 155 (2018):

A Pulaski County jury convicted Michael Duvall, Jr., on two counts of rape, both against his daughter K.D. He was sentenced to a total of sixty years' imprisonment; the terms to run consecutively. He argues that the circuit court erred in admitting the testimony of three witnesses under the pedophile exception to Arkansas Rule of Evidence 404(b) and that the State did not properly authenticate text messages it used against him as evidence. We affirm.

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V. Authentication of Text Messages

Duvall argues that some text messages were admitted as evidence against him but were not properly authenticated. Some more background is needed to place this issue in context.

A. How the Text Messages Were Admitted During Trial

The authenticity of some text messages first arose while North Little Rock police detective Ashley Noel testified. Detective Noel interviewed K.D. about the allegations she had made against her father. The detective testified that she was given some text messages and photos during her interview with K.D. in July 2016. She said that K.D. signed a consent to search an electronic device (cellular phone), and the detective photographed text-message exchanges between K.D. and Duvall. Those photographs were first introduced as State's exhibits one through nine during Detective Noel's testimony.

Detective Noel also testified that the phone number she (K.D.) had listed for Duvall was the same number that he [**15]  later gave to Detective Noel. According to the detective, Duvall gave her his number on 23 August 2016. She agreed that she had verified that the  [*11]  number on the challenged text messages was Duvall's phone number. Here is the substantive part of Duvall's objections:²

These photos have not been properly authenticated. The witness has testified that because she had a phone number and that she had access to [K.D's] phone those documents have not been proven to be the actual text messages themselves. The State could've easily gotten the provider to provide a copy of the true text messages. Those messages could have been altered. . . . Those documents haven't been properly authenticated. If they are alleging that my client sent that, my client will have to go and testify say, yes, the texts were from him. Also too [sic] those are just photo images or just screen shots. You could easily modify those text messages which we can later prove if my client takes the stand, the State could have easily gotten a warrant to actually issue to the provider to get the true text message from the provider, what is AT&T, Southwestern Bell, whomever. But just to take a screen shot and say this is a text message [**16]  from my client, that is not proper authentication.

After some discussion between the attorneys and the court, the text messages were not admitted. On cross-examination, Detective Noel admitted that she "believed" but did not "know" that Duvall had sent the text messages and had "no proof" that he did.

K.D. testified briefly about the text messages before they were accepted by the circuit court as evidence. She said that before she reported her father, she tried to talk to him by text messaging. She "wanted him to understand what he did" but still wanted a relationship with him. She agreed that the texts were sent to a number she knew to be his; she had labeled the number as "Padre." K.D. said that she did not believe Duvall let other people use his phone. She agreed that when she was texting these messages to the phone number that she knew to be her dad, someone was replying to her messages. She also said that  [*12]  State's exhibits one through seven were accurate pictures of the text messages that she sent to her father's number.

Exhibits one through seven were admitted over Duvall's renewed objection. Exhibits eight and nine were also admitted over his objection. K.D. said exhibits eight [**17]  and nine accurately depicted the photographs that were on her phone that she sent to the number she saved as "Padre, Michael Duvall."

B. Argument on Appeal

Duvall argues that the circuit court abused its discretion when it allowed pictures of the text messages into evidence because the State could not prove that he "actually sent" them. The State counters that sufficient circumstantial evidence exists to reliably tie Duvall to the text messages K.D. received.

Duvall relies on a Pennsylvania case, Commonwealth v. Koch, 2011 PA Super 201, 39 A.3d 996 (Pa. Super. Ct. 2011) for the proposition that authenticating text messages requires more than confirming that the telephone number belongs to a particular person; instead, there must be evidence that the text messages contain factual information unique to the parties involved because more than one person can use a phone to send text messages. The State tries to distinguish the Koch case, arguing that a Pennsylvania state court decision does not control in Arkansas. True enough, but the bigger problem is that the case the parties tussle over has been vacated by the Pennsylvania Supreme Court on review. See Commonwealth v. Koch, 630 Pa. 374, 106 A.3d 705 (Pa. 2014). The Pennsylvania Supreme Court ended up affirming the admission of text messages under some unique facts involving [**18]  accomplice liability. Id. at 714. We have not, strictly speaking, applied Koch in any party's favor in this case.

 [*13]  HN9[] A document must be authenticated before it can be admitted as evidence. Davis v. State, 350 Ark. 22, 39, 86 S.W.3d 872, 883 (2002). A rule of evidence 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 the proponent claims." Ark. R. Evid. 901(a) (2017). Rule 901 further provides that the testimony of a witness with knowledge that a matter is what it is claimed to be is sufficient to authenticate evidence and also that appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances, can be used to authenticate evidence. Ark. R. Evid. 901(b)(1) & (4). We review the authentication of text messages like any other evidence—for an abuse of discretion—and do not reverse absent a showing of prejudice. Gulley v. State, 2012 Ark. 368, at 10, 423 S.W.3d 569, 576.

HN10[] The main thrust of the authentication requirement is to sufficiently ensure that the proposed evidence is, in fact, what the proponent claims it to be. To this end, our supreme court has required "sufficient circumstantial evidence" to "corroborate the identity of the sender" of the text messages; [**19]  in other words, there must be some indicia of authorship. Id. at 15 n.4, 423 S.W.3d at 579 n.4; see also Steele v. Lyon, 2015 Ark. App. 251, at 11, 460 S.W.3d 827, 835 (Harrison, J., concurring) ("[A] proper foundation for the introduction of electronically recorded material should include who is communicating what to whom."). This is admittedly a developing (and important) area of the law in this electronic age. See Koch, 106 A.3d at 721 (Eaton, J., dissenting in part and concurring in part) ("The possibility that a person other than [appellee] was the author of the drug-related text messages went . . . to the weight of the evidence rather than admissibility of the messages.").

 [*14]  In Gulley, our supreme court held that three text messages were properly authenticated. Gulley, 2012 Ark. 368, at 13, 423 S.W.3d at 578. For example, it reasoned that one of the text messages came from a cellular telephone number assigned to Gulley—together with witness testimony that Gulley was dropped off at the victim's apartment the night that she was killed, and given the context and content of the message—met the authentication requirements of Rule 901. Id. at 14, 423 S.W.3d at 579. As in Gulley, the State here presented sufficient corroborating evidence that the text messages were what the State claimed them to be: communicative exchanges between Duvall and K.D. on a legally relevant issue.

There was [**20]  testimony that the telephone number that K.D. sent the messages to, and from which messages were sent to her, was Duvall's cellphone number. K.D. said that the texts were exchanged after she talked with the police and reached out to Duvall and that Duvall did not let someone else use his phone. Detective Noel testified that she took photos from K.D.'s phone with K.D.'s permission. The detective also said that text messages received by K.D. came from a cellphone number assigned to Duvall. The same cellphone number was saved as "Padre, Michael Duvall" in K.D.'s phone. Moreover, K.D. testified that she sent the messages to her father at that number to try to "understand" and to still have a relationship. The content of the controverted text messages suggested that Duvall did (or could have) sent them. And no direct proof in this case undermined the messages' authenticity. Given this record, the thrust of Duvall's challenge goes to the weight the jury could have placed on the challenged text messages, not their admissibility. The circuit court  [*15]  did not abuse its discretion when it overruled Duvall's authentication challenge and admitted the text messages as evidence.

Last, Duvall argues [**21]  that the text messages were inadmissible hearsay. Because he did not raise the hearsay objection to the circuit court, we will not address it. Marshall v. State, 2017 Ark. 347, at 5, 532 S.W.3d 563, 566.

Affirmed.

 

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² Duvall moved before the trial to exclude the texts and objected for lack of authentication along the way. We have only included one example of his objections.