Commercial Litigation and Arbitration

Party’s Social Media Account = 801(d)(2) Admission If Authenticated — Evidence That Account Holder Used Name Based on Party’s & Sent Messages to Party’s Friend, Plus Photos of Party on Page, Suffice

 State v. Durr, 2020 Ariz. App. Unpub. LEXIS 127 (Ariz. Ct. App. Feb. 6, 2020) (unpublished):P1 Devar Antonio Durr appeals from his convictions and sentences for armed robbery, kidnapping, aggravated assault, and first-degree burglary. Durr contends that the superior court erred by not ordering severance, by admitting social media evidence and physical evidence opened by witnesses on the stand, and by not issuing a curative instruction after a witness indirectly referred to Durr's in-custody status. We hold that severance was not necessary to afford Durr a fair trial, that the evidence was properly admitted, and that Durr invited any error with respect to the absence of a curative instruction. We therefore affirm.


P2 The state charged Durr with numerous felonies related [*2]  to a series of five armed robberies at three pawn stores and one retail store in the greater Phoenix metropolitan area from 2012 to 2014.

P3 At trial, the state presented evidence of the following facts. In each robbery, a group of people wearing ski masks, gloves, and dark clothing rapidly entered the store and one among them, a large black man with a deep voice, threatened workers and patrons with a gun while the other masked individuals broke jewelry cases and removed gold items only. The group then left, using a similar-looking car on at least some occasions.

P4 After the last robbery, law enforcement found what they believed to be the getaway car parked at an apartment complex. They obtained a search warrant for the car and one of the apartments. In the car, law enforcement found two gloves, two ski masks, and a wallet containing Durr's state-issued identification card. Law enforcement arrested Durr's friend at the apartment and, in the apartment's outdoor storage locker, found tags and a tracking device associated with some of the stolen jewelry.

P5 An informant later told law enforcement that he had heard Durr claim responsibility for robberies and that Durr's arrested friend had [*3]  tried to recruit the informant and his former roommate for one of the robberies. The roommate admitted to law enforcement that he had participated in one of the pawn-store robberies and said that Durr had served as the gunman. Consistent with witness descriptions of the gunman in all of the robberies, Durr is a large black man.

P6 The roommate further stated that Durr had told him about the retail-store robbery and had described dropping a bag during that incident. Law enforcement had in fact recovered a bag at the scene of the retail-store robbery. One of the items in the bag was a belt. Forensic testing revealed Durr's genetic material on the belt as well as on one of the gloves found in the car.

P7 Law enforcement also discovered linked social media accounts bearing indicia of ownership by Durr. One post by the accountholder, made several days after one of the robberies, included a photograph of Durr's driver's license and a stack of hundred-dollar bills. Another post, made several days after another of the robberies, included a photograph of a car registration title, Jaguar keys, and many hundred-dollar bills. Law enforcement also discovered messages exchanged between the accountholder [*4]  and the user of an account registered under the name of Durr's arrested friend.

P8 The jury convicted Durr of eleven counts of armed robbery, fourteen counts of kidnapping, two counts of aggravated assault, and five counts of first-degree burglary. He was sentenced to prison. He appeals.


P9 Durr raises four issues on appeal. We address them in turn.


P10 Durr contends that the superior court erred by denying his pretrial motion to sever the charges into incident-based groups. He contends that the consolidated trial was so long and complicated that the jury could not assess each charge on its merits. He complains that the jury had to sort out multiple charges based on multiple incidents committed in multiple municipalities, and that the state presented the evidence in a non-linear fashion over a prolonged period that included several holiday recesses. Because Durr did not renew the motion to sever at or before the close of evidence, we review the court's decision not to sever for fundamental error. State v. Goudeau, 239 Ariz. 421, 443, ¶ 54, 372 P.3d 945 (2016).

P11 Multiple offenses may be joined in the same indictment if they "(1) are of the same or similar [*5]  character; (2) are based on the same conduct or are otherwise connected together in their commission; or (3) are alleged to have been a part of a common scheme or plan." Ariz. R. Crim. P. 13.3(a). The court must order severance "if necessary to promote a fair determination of any defendant's guilt or innocence of any offense."1 Ariz. R. Crim. P. 13.4(a). The fact that a trial is long and involves many charges does not, by itself, preclude the jury from fairly determining the defendant's guilt or innocence on each charge. Nor does the fact that evidence is not presented in a strictly linear fashion over consecutive days. Nothing in our review of the record suggests that the structure of the trial prevented the jury from assessing each charge individually. Indeed, the court specifically instructed the jury to consider each charge on its own merits:

Each count charges a separate and distinct offense. You must decide each count separately on the evidence with the law applicable to it, uninfluenced by your decision on any other count. You may find that the State has proved beyond a reasonable doubt all, some, or none of the charged offenses. Your finding for each count must be stated in a separate verdict.

We presume that the jury followed [*6]  the instructions. State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833 (2006). The court's decision not to sever the charges by incident was not fundamental error.


P12 Durr contends that the superior court erred by admitting the social media evidence because the state did not sufficiently authenticate it. We review the evidence's admission for abuse of discretion. See State v. McCray, 218 Ariz. 252, 256, ¶ 8, 183 P.3d 503 (2008).

P13 A defendant's social media output is admissible as an opposing party's statement under Ariz. R. Evid. 801(d)(2) so long as it is authenticated under Ariz. R. Evid. 901(a)—i.e., so long as the record contains evidence sufficient to support a finding that the defendant authored the material. State v. Griffith, 247 Ariz. 361, 365, ¶¶ 13-15, 449 P.3d 353 (App. 2019). "[T]he proponent need not definitively establish authorship—that is a question for the jury to resolve. Instead, such a statement may be admitted if reasonable extrinsic evidence tends to show the party made it." Id. at ¶ 15 (citation omitted).

P14 Here, a police officer testified that he learned from a prior report that Durr, whose middle name is "Antonio," went by the nickname "King Tony." Using that information, the officer found linked social media accounts under the name "kingtoni718," on which "kingtoni718" had posted multiple [*7]  photographs of Durr and a photograph of his driver's license. The officer also discovered messages exchanged between "kingtoni718" and the user of an account registered under the name of Durr's friend. The foregoing was sufficient to permit the jury to reasonably conclude that Durr was "kingtoni718." The superior court did not abuse its discretion by admitting the social media evidence.


P15 Durr contends that the superior court erred by permitting witnesses to open exhibits—specifically, the bag recovered from the retail-store scene and the ski masks recovered from the car—while testifying to verify items' identities and display them to the jury. He contends that the evidence should have been suppressed "after it had been subjected to contamination in open court." We review the evidence's admission for abuse of discretion. See State v. Davolt, 207 Ariz. 191, 208, ¶ 60, 84 P.3d 456 (2004).

P16 Durr contends that the evidence's exposure to the elements in the courtroom "prejudiced [his] ability to conduct further [forensic] testing of the items in future proceedings and was more than harmless error." But [*8]  this is an appeal from the trial that already resulted in Durr's convictions—not from hypothetical "future proceedings." The evidence was subjected to forensic testing before the trial. Its exposure to the environment at trial had no bearing on its admissibility at trial. The superior court did not abuse its discretion by admitting the evidence. We do not speculate on the impact of the at-trial exposure on any hypothetical post-trial events. See Brush & Nib Studio, LC v. City of Phoenix, 247 Ariz. 269, 280, ¶ 36, 448 P.3d 890 (2019) ("Ripeness is a prudential doctrine that prevents a court from rendering a premature decision on an issue that may never arise.").


P17 Durr contends that the superior court erred by failing to issue a curative instruction after a forensics expert, on cross-examination by the state, referred to Durr's in-custody status when discussing his height:

Q. You testified that this is a photograph you took of Mr. Durr. Did you also measure his height?

A. Yes.

Q. And what was his height when you measured it?

A. Well, he was in -- I believe the reason it's cut. We had to cut out the prison shoes because we can't show that. He was wearing prison-issued. So [*9]  it was at -- right there at -- it's actually illustrated on the left, but he's wearing shoes. So it's 75 inches. Just a little under.

Q. With shoes?

A. With the jail shoes.

At the conclusion of the cross-examination, the court sua sponte offered to give the jury a curative instruction regarding the expert's references to prison or jail shoes. Durr expressly declined that offer: "I think I would prefer not to draw any more attention to it."

P18 Because he declined the curative instruction at trial, Durr cannot now argue that the court erred by failing to give the instruction. "[A] defendant who invited error at trial may not then assign the same as error on appeal."2 State v. Moody, 208 Ariz. 424, 453, ¶ 111, 94 P.3d 1119 (2004) (citation omitted); see also State v. Fish, 222 Ariz. 109, 132, ¶¶ 79-80, 213 P.3d 258 (App. 2009) (holding that even if court's failure to give lesser-included-offense instruction was error, defendant invited the error because he told the court that he did not want the instruction).


P19 We affirm for the reasons set forth above.


End of Document


Durr does not contend that severance was warranted under Ariz. R. Crim. P. 13.4(b), which requires severance of offenses joined solely under Ariz. R. Crim. P. 13.3(a)(1) if evidence of the other offenses would be inadmissible in the event of separate trials. Ariz. R. Crim. P. 13.4(b). And we conclude that severance was not required under Rule 13.4(b). In view of the substantially similar manner in which all the robberies were executed, evidence of all would be admissible in separate trials to establish identity. See, e.g., State v. Stuard, 176 Ariz. 589, 597, 863 P.2d 881 (1993) (holding that evidence of other criminal acts is admissible to prove identity if the acts' "pattern and characteristics" are "so unusual and distinctive as to be like a signature," though "identity in every particular is not required" (citations omitted)).

We express no opinion with respect to whether the failure to give a curative instruction was error.

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