KENDRIA WALKER v. TAYLA HARLEY-ANDERSON

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
KENDRIA WALKER,
Appellant,
v.
TAYLA HARLEY-ANDERSON,
Appellee.
No. 4D19-2216
[September 9, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael G. Kaplan, Judge; L.T. Case No. DVCE 19-
004177.
Kendria Walker, Coral Springs, pro se.
No appearance for appellee.
WARNER, J.
In this appeal of a final judgment of injunction for protection against
stalking, the appellant contends that the trial court erred by admitting text
messages showing threats made against the appellee, the sole evidence to
support the entry of the injunction. We hold that the messages were not
sufficiently authenticated and should not have been considered by the trial
court. Therefore, we reverse.
Appellee filed a petition for injunction for protection against stalking.
In it she contended that appellant had sent her multiple text messages
threatening her and her family. The court entered an ex parte temporary
injunction. Appellant then filed a counterpetition against appellee, also
alleging stalking through multiple text messages. The court proceeded to
a final hearing on the petition and counter-petition.
At the final hearing, appellee testified that she did not personally know
appellant, but she knew that appellant had a relationship with appellee’s
nephew, which apparently had fallen apart. As a result, appellee stated
that she received twenty harassing messages over a period of about six
months and then fifteen in one day, threatening violence against her and
her family.
Appellee offered a series of ten pages of text messages into evidence.
Appellant objected, contending that she did not recognize the telephone
numbers from which the messages were sent. Over objection, the court
admitted the messages. The trial court asked appellee how she knew that
the messages were from appellant. After much back and forth, appellee
said she knew the messages were from appellant because of the content of
the messages, that they were intended to harass her, and appellant had
stated that she would harass appellee’s nephew’s family.
The court then asked appellant if she sent the text messages. Appellant
denied sending the text messages and testified that she did not know who
sent them. She did not recognize the phone numbers. Her phone records
were entered as an exhibit. The phone numbers on the texts to appellee
did not match the phone number in appellant’s record. Appellant then
presented the evidence of threatening text messages that she had received.
Like appellee, she did not specifically know that the text messages were
from appellee but concluded that, based on their content, they had to be
from someone in the nephew’s family.
After the presentation of evidence, the court acknowledged in its ruling
that the texts sent to both appellant and appellee were threatening and
would promote fear and anxiety in the receiver. As to appellant’s
counterpetition, the court found that appellant candidly acknowledged
that she did not know specifically who sent the messages. Therefore, the
court could not enter a final judgment against appellee on the counter
petition. As to appellee’s petition, the court found that the texts most likely
came from appellant “because there’s no alternative that’s been provided.
So, I don’t know who else would have done that and that may be just in
part given the nature of the relationships here.” The court then entered a
final judgment in favor of appellee, and appellant now appeals that
judgment.
Appellant argues that the court erred in admitting the text messages,
because they were not authenticated. Review of a trial court's
determination regarding the authentication of evidence is for an abuse of
discretion. Mullens v. State, 197 So. 3d 16, 25 (Fla. 2016). However, a
trial court’s discretion is limited by the rules of evidence. Nardone v. State,
798 So. 2d 870, 874 (Fla. 4th DCA 2001).
Section 90.901, Florida Statutes (2019) provides: “[a]uthentication or
identification of evidence is required as a condition precedent to its
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admissibility. The requirements of this section are satisfied by evidence
sufficient to support a finding that the matter in question is what its
proponent claims.”
“In determining whether the evidence submitted is sufficient for this
purpose [of authentication], the trial judge must evaluate each instance
on its own merits, there being no specific list of requirements for such a
determination.” Justus v. State, 438 So. 2d 358, 365 (Fla. 1983);
Symonette v. State, 100 So. 3d 180, 183 (Fla. 4th DCA 2012). “Evidence
may be authenticated by appearance, content, substance, internal
patterns, or other distinctive characteristics taken in conjunction with the
circumstances. In addition, the evidence may be authenticated either by
using extrinsic evidence, or by showing that it meets the requirements for
self-authentication.” Jackson v. State, 979 So. 2d 1153, 1154 (Fla. 5th
DCA 2008).
A few cases involve the authentication of text messages. In Symonette,
for instance, we addressed the question of whether text messages from the
defendant’s phone were unauthentic hearsay. 100 So. 3d at 183. In that
case, a detective recovered the cell phone from the defendant and then a
search warrant was executed on the defendant’s phone which revealed the
text messages. The co-defendant driver testified that she texted the
defendant while they were sitting next to each other and then continued
to text the defendant later after they were separated. The driver identified
the text messages between her and the defendant and testified as to the
context of the text messages. This court concluded that “[t]he extrinsic
evidence offered by the State, as well as the circumstances surrounding
the procurement of the phone and pictures, is sufficient to show that the
matter in question is genuinely what the State claims – pictures of the
defendant’s text messages to the driver.” Id. Thus, the photographs of the
text messages were sufficiently authenticated to be admissible at the
murder trial. In State v. Lumarque, 44 So. 3d 171 (Fla. 3d DCA 2010), the
court held that text messages and photos were authenticated, because
those images were found on the defendant’s phone which was seized
pursuant to a search and extracted from it by a forensic expert who
testified. Unlike the foregoing cases, appellant’s cell phone was not
examined, and the appellee did not even testify that she recognized
appellant’s phone number.
“Testimony that a person received a text or email from another is not
sufficient, by itself, to authenticate the identity of the sender.” Charles W.
Ehrhardt, 1 West’s Fla. Practice Series section 901.1a (2020 ed.). Other
factors can circumstantially authenticate the text. Id. See, e.g., United
States v. Siddiqui, 235 F. 3d 1318, 1322 (11th Cir. 2000) (finding that a
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number of factors supported the authenticity of the email, that the address
bore the defendant’s address and when the witness replied to the email
the “reply function” of the witness’s email system automatically put the
defendant’s address as the sender; the context of the email showed details
of the defendant’s conduct and an apology that correlated to the
defendant’s conduct; and the email referred to the author by defendant’s
nickname and the witnesses confirmed that in phone conversations the
defendant made the same requests as in the emails); Pavlovich v. State, 6
N.E. 3d 969, 978-79 (Ind. Ct. App. 2014) (finding text messages had been
properly authenticated by circumstantial evidence by a witness who
confirmed that the 2662 number was used to arrange a meeting with the
defendant; that the witness recognized the defendant’s voice on the
outgoing voicemail; and that the messages from the 2662 number
indicated familiarity with the witness’ escort business, the prior meeting
between the witness and defendant and their prior discussion); compare
Commonwealth v. Koch, 39 A. 3d 996, 1005 (Pa. Super. Ct. 2011) (finding
the trial court erred in admitting text messages into evidence; there was
no testimony from the persons who sent or received the text messages and
no contextual clues).
“Circumstances recognized as sufficient to meet the test of authenticity
include when a letter is written disclosing information which is likely
known only to the purported author.” State v. Love, 691 So. 2d 620, 621
(Fla. 5th DCA 1997) (citing ITT Real Estate Equities v. Chandler Ins. Agency,
Inc., 617 So. 2d 750, 751 (Fla. 4th DCA 1993)). In Love, the letter
“contained specific details concerning the crime, the relationship between
the co-defendants, incriminating evidence, and a proposed plan to
fabricate testimony. This information was likely known only by the three
co-defendants.” Id. The court cited other details in the letter and
concluded that the trial court erred by excluding the letter because there
was prima facie evidence that the defendant or someone acting as his
scribe wrote the letter.
In Gosciminski v. State, 132 So. 3d 678 (Fla. 2013), the supreme court
addressed a question of authentication of a receipt. In that case, the trial
court found a Walgreens receipt admissible because it was printed on
paper with a distinctive green Walgreens logo watermark, the Walgreens’
return policy was printed on the back of the receipt; the front of the receipt
showed no evidence of tampering; and the time and date stamp matched
the account of the purchase. Id. at 700. “These distinctive characteristics
of the receipt in conjunction with the other circumstances, i.e., the trail of
documentary evidence that supported [the witness’s] testimony . . . were
adequate authentication.” Id. Thus, the supreme court concluded the
receipt was properly admitted. “[E]vidence may be authenticated by
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examination of its appearance, contents, substance, internal patterns, or
other distinctive characteristics taken in conjunction with the
circumstances.” Id. (citing Coday v. State, 946 So. 2d 988, 1000 (Fla.
2006)).
In this case, there was no direct evidence that the messages were sent
by appellant. No one saw or heard appellant send the messages. The
messages appear to be from different phone numbers, and none of the
origination numbers match the phone number of appellant, according to
her phone bill placed into evidence. The trial court did not analyze the
content of the messages but simply found no other explanation as to who
sent them. This is insufficient, particularly after our review of the
messages themselves.
Outside of a few references in the messages to the name of appellant’s
boyfriend, the nephew of the appellee, and a reference to “aunty” there are
no clues as to who sent the messages or what they are about. The discord
between the nephew and appellant appears to be well known between the
two families. The first five pages of texts offered by appellee are dated
January 1, and appellee testified that the year was 2019. These texts
purportedly come from three different phone numbers. None of the phone
numbers match the phone numbers on appellant’s phone bill. Appellee
did not testify that she recognized any of the numbers on the texts. Their
substance generally refers to the nephew and threats to kill him but is
populated with the pronoun “we” and not “I” indicating that multiple
people are involved in these threats. One of the messages refers to
appellant in the third person, indicating that it was sent from someone
other than appellant.
As noted by the court, the last five pages of texts look different than the
first five pages of texts. None of these texts are dated. Only the first two
pages of the photographs of the text messages have origination phone
numbers. Neither of the origination phone numbers match appellant’s
phone numbers on her bill. The remaining pages of text messages show
only a day of the week and time, no origination phone number. In this
group of texts, there is no mention of the nephew or of details known only
to the appellant. In fact, one of the messages seems to convey that the
sender has been wronged by a woman, not the nephew.
To summarize, the contextual clues in the texts are insufficient to
provide authentication that these texts were sent by appellant. The
messages do not contain any information which would have been known
only to the appellant. The direct evidence is insufficient as well. The
messages do not show appellant’s telephone number as sender.
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As the proponent of admission of the evidence, it was the appellee’s
burden to prove the authenticity of the text messages as being sent by
appellant. Thus, the trial court’s rationale that no other explanation for
the messages was offered placed on appellant the obligation of disproving
their authenticity. This was error.
“[A]uthentication for the purpose of admission is a relatively low
threshold that only requires a prima facie showing that the proffered
evidence is authentic[.]” Mullens, 197 So. 3d at 25. Even so, the instant
case lacks the “distinctive characteristics” of Gosciminski or the contextual
clues of Love. The text messages were not obtained pursuant to a search
warrant from appellant’s phone, and no circumstantial support shows
appellant to be the author of the texts as in Symonette or Lumarque.
The appellee failed to make a prima facie showing of authenticity, i.e.
that the text messages were what appellee claimed – messages authored
by appellant. Accordingly, the trial court abused its discretion in
admitting the text messages into evidence.
Because the text messages were the sole evidence to support the final
judgment of injunction, and appellee has not contested this appeal, we
conclude that we should reverse for vacation of the judgment and
dismissal of the petition. Appellee should not get the proverbial “second
bite at the apple” under the circumstances of this case. See Morales v.
Fifth Third Bank, 275 So. 3d 197 (Fla. 4th DCA 2019)(adopting the analysis
of Tracey v. Wells Fargo, N.A., 264 So. 3d 1152 (Fla. 2d DCA 2019) (“[W]hen
fashioning remand for a civil appeal where the party with the burden of
proof fails to sufficiently plead the claim it presents at trial or to establish
a basis in admissible evidence for a claim at trial, an appellate panel may
exercise some level of equitable discretion to consider the circumstances
of the particular case. This discretion is bounded both by the substantive
relief sought within the appeal and the strong preference for finality of trial
proceedings.”)
Reversed and remanded with directions to dismiss the petition.
GROSS and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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