In the Missouri Court of Appeals
Eastem District
DIVISION TWO
STATE OF MiSSOURl, ) No. 139100009
)
Plaintiff/Respondent, ) Appeal froin the Circuit Court of
) St. Francois County
v- )
)
GARY L. FRANCIS, JR., ) Honorable Kenneth W. Pratte
)
Defeixdant/Appellant. ) Filed: April 29, 2014
introduction
Gary L. Francis, Jr. (Appellant) appeals from the trial court’s judgment convicting
him of possession of pseudoephedrine with intent to :nanufactxlre methainplietaxiiirie,
Section 195.420.] We reverse and z'eznand.
Factual and Procedural Backg:'otciid
On June 4, 201 l, Off`lcer Shannon Sitton (Sitton) of the Missouri State Higiiway
Patrol and the lvlicieral Area Drug Tasl< Force received information from an informant
that a man named Ja:nes "Patciies" Maliuriii was planning to cook cnethainplietainiiie that
evening at a location on Old Bisinark Road near State Route B. Sitton was fainiiiai' with
Patches and believed him to be armed and dangerous Based upon this information,
Sitton grouped other Task Force officers and set up surveillance at approximately }0:30
p.m. Sitton positioned his vehicle in the woods off Old Bis:‘nark road. Sitton could see
l All statutoiy references are to RSMo 2006, unless otherwise indicated
tlashlights moving in the riearby wooded area. About 10 inintltes into the snrveiliance, he
heard a vehicle start up and observed a rnotorcycle come out of the wooded area and turn
onto Old Bisinark Road. Sitton called Trooper jason Coleman (Coielnan) and told him to
stop the motorcycle if he had probable cause to do so in order to identify the driver.
Wlien Coleman saw the lnotorcycle on Route B, it had no taillights and failed to come to
a coinplete stop at an intersection. Coleman initiated a traffic stop for the infractions
When Coletnan activated his emergency lights, the driver did not immediately stop, but
slowed down and threw something The driver then pulled over and was identified as L.
Rick Rayrloi‘ (Rayrior). Co|eman noticed a strong chernical smell like anhydrous
a:nmonia corning from Raynor’s clothing. Coleman knew anhydrous ammonia was used
in the production of inetliarnplietaniine. Coieinan arrested Rayitot‘ and then located the
items Raynor had thrown, including a syringe, a baggie of inetlia)nphetainine, and a piece
of foil.
Shortly after the tnotorcycle feit the surveillance area, another vehicle started and
drove out of the woods and turned onto Old Bismark Road. Based on the inforrnatioti
from the informant, Sitton believed the occupant of this vehicle, a dark colored Caniaro,
might be Patches Sitton called Deputy Tim Harris (Harris) and advised him the Caniaro
was headed in Harris’s direction, he believed Patches would be operating the vehicle and
that Patches would likeiy he arnied and dangerous Sitton told Harris if he had a reason
to stop the car, he should do so.
Harris foliowed the Cainaro and after observing the vehicle cross over the center
line and fail to signal at a turn, decided to stop the vehicle based on those traffic
violations Upon activating his lights, the Caniaro promptly pulled over. Gun dravm,
Harris ordered the driver to exit the vehicle and to lie down on the ground. The driver
cornplied, almost immediately rolling onto the ground. Wltife doing so, I~larris saw
something fall out of the driver’s iap. Harris recognized Appeifant as the driver and
handcuffed him. Harris picked up the item that fell, a BiackBerry cellular phone, and
observed on the screen, "Delete all messages?"
Harris looked inside the vehicle with the aid of a flashlight, seeing a beer pitcher
on the front passenger iioorboard, close to the seat and cocked up towards the passenger
seat. The Camaro had bticket seats. I~iarris testified the pitcher had a chemical odor like
a solvent consistent with the breakdotvii of pills. Harris seized the pitcher as evidence.
Harris testified at trial there were reinnants of a white ernst inside the pitcher. Harris
testified nothing was blocking Appellant’s view of the pitcher nor impeding Appellant’s
ability to grab the pitcher. Harris testified the vehicle was registered in the names of
Gary Francis and Michele Beasley. Harris stated the vehicle registration did not indicate
whether the car belonged to Gary Francis, Sr. or Gary Francis, Jr.
Sitton testified he received training in the inanufacttire of rnethainplietaniilte.
Psetidoephedriiie is the main ingredient that is converted to Inethainpltetamine through a
chemical process using a solvent. The pills containing pseudoephedriiie are added to the
solvent either whole or crushed and the solvent extracts the pseudoephedrine. Sitton
testified a plastic container is typically used to crush the pills and a beer pitcher would be
sufficient
Sitton testified he left his surveillance position to determine vvhethei‘ Patches was
in the Cainaro. Upon learning that it was Appellant in the vehicie, Sitton returned to his
original stn‘veillance location. At that time, he saw two individuals walking on Old
Bisrnark Road in the dark without flashlights. The men approached the surveillance
vehicle and Sitton observed that the bottoms of their pants \vere wet and grassy, as if they
had been waiking through weeds or grass. Sitton requested the men produce their
identifications, revealing they were jeffrey Rulo and Chadley Cramp (Crarnp). At that
time, Crainp was arrested on an outstanding warrant issued in Iron County.
Sitton testified the officers then drove up the road on which the vehicles had
exited the wooded area and stopped at a small camping trailer, consistent \vith what their
informant indicated they would find. Burnt plastic bottles were snioldering in a burn pit
in front of the camper. Sitton knocked on the door of the camper but no one responded.
Sitton stated he did not know who o\vned the property and he did not conduct a search
because he did not have a \varrant. Sitton testified he did not see Patches that evening.
Laura Crandal (Crandal), a criminalist with the Missouri State Highway patroi,
testified the pitcher seized from the Camaro contained .02 grants of pseudoephedririe.
Crandal testified one gram is equal to the \veiglit of approximately three paperclips but
that the crust in the pitcher was visible to her naked eye.
The police obtained a search warrant to download information from the
BlackBerry that fell out of Appellant’s lap during the traffic stop. Over the defense’s
objection, Sergeant Donald Cruinp (Crtimp), an officer trained in inetharnplietainine
interdiction, testified concerning the information retrieved from the phone. Some of the
text messages retrieved from the phone were errlarged and displayed to the jury. Cruinp
stated the cellular phone had a phone iunnber assigned to it but he did not attempt to
determine to whom that number was assigned. Crump testified he did not know to vvhorn
the phone rnnnbers stored in the phone’s rnemory were assigned beyond how they \vere
designated in the address book.
The State charged Appeliant with one count of possession of pseudoepliedriiie
with intent to lnanufactrtre methamphetamine. After a triai, the jury found Appellant
guilty as charged. The court sentenced Appellant to seven years in prison. 'i`his appeal
follows.
Additional facts will be set forth in the opinion as necessary to address
Appellant’s points on appeal.
Discussion
i’oint l - Sufficiencv of the Evidence
in his first point on appeai, Appellant argues the evidence was insufficient to
support his conviction, in that the evidence did not establish beyond a reasonable doubt
that Appellant had knowledge or possession of the pseudoepliedriiie in the car.
On a challenge to the sufficiency of the evidence, appellate review is limited to
determining whether there is sufficient evidence from which a reasonablejuroi' might
have found the defendant guilty beyond a reasonable doubt. State v. Purlee, 839 S.W.Zd
584, 587 (Mo. banc 1992). The evidence and ali reasonable inferences drawn therefrom
are viewed in the fight most favorable to the jury’s verdict and all contrary evidence and
inferences are disregarded. l;d.
Appellant was charged with possession of pseudoepliedriiie with intent to
rnanufacttire rnethaniplietainiiie under Section 195.420, which states:
lt is unlawful for any person to possess chemicals listed in subsection 2 of
section |95.400, or reagents, or solvents, or any other cheinicais proven to
be precursor ingredients of rnetliaiiipltetainine or ainphetarnine, as
established by expert testimony pursuant to subsection 3 of this section,
vvitl'i the intent to manufacture, coinpouiid, convert, produce, process,
prepare, test, or otherwise after that chemical to create a controlled
substance or a controlled substance analogue in violation of sections
195.005 to 195.425.
Pseudoephedrine is a listed chemical in Section 195.400.2(20) RSMo Supp. 2010.
"Possessed" or "possessing a controlled substance" is defined as
a person, with the knowledge of the presence and nature of a substance,
has actual or constructive possession of the substance. A person has
actual possession if he has the substance on his person or within easy
reach and convenient control. A person vvho, although not in actuai
possession, has the power and the interition at a given time to exercise
doininioii or control over the substance either directly or through another
person or persons is in constructive possession of it. Possession may also
be sole orjoint. if one person alone has possession of a substance
possession is sole. if two or more persons share possession of a substance,
possession is joint[.}
Section 195.010(34). In determining \vhethei' the evidence was sufficient to prove
Appeliant possessed the pseudoephedrine, this Court applies the same standard of actual
or constructive possession used in drug possession cases. See State v. Morgan, 366
s.w.sd 565, 575 (Ma. App. E.D. 2012).
To sustain the conviction, the State must prove (i) conscious and intentional
possession of the substance, either actual or constructive, and (2) awareness of the
presence and nature of the substance. _li, 839 S.W..'Zd at 587. Both elements may be
proved by circumstantial evidence. § "The two prongs of this test are not entirely
independent." I_d. at 588. “Absent proof of actual possession, constructive possession
may be shown when other facts buttress an inference of defendant’s knowledge of the
presence of the controlled substance." §
Constructive possession requires, at a ininimtlin, evidence that the defendant had
access to and control over the premises where the substance was located. l_d_. A
defendant’s exclusive control of the premises is sufficient to raise an inference of
possession and controi of the substance. I_d._ A defendant’s joint control of the prenaises,
liotvever, requires additional evidence connecting the accused with the substance. l_d.
Proxiinity to the contraband alone fails to prove ownership. State v. West,
21 S.W.3d 59,
64 (Mo. App. W.D. 2000). "The State must present some iricriiniiiating circumstance
that implies that the accused kirew of the presence of the drugs and that the same were
under his control." Purlee, 839 S.W.Zd at 588. Exainpies of additional incriminating
circumstances giving rise to an iiiference of knowledge and control in a joint possession
situation include self~incriiniiiating statements, consciousness of guilt such as flight by
the defendant upon reaiizing the presence of law enforcement officials, routine access to
the place where the substance was iocated, conimiiigliiig of the substance with the
defendant’s personai belongings, the presence of a large quantity of the substance, the
presence cfa chemical odor associated with the nianufacttzre of inethaiiiplietaiiiine, and
being in close proximity to the substance or drug paraphernalia in plain view. See §§
21 S.W.3d at 63-64; State v. Metcalf,
182 S.W.3d 272, 275 (Mo. App. E.D. 2006); and
State v. Mici164 S.W.3d 33, 43-44 (Mo. App. W. D. 2005). The totality ol`the
circumstances is considered in determining whether sufficient additional incriminating
circumstances have been proved. Mlif, £82 S.W.Bd at 275.
On appeal, Appellant contends the State’s evidence failed to show that he knew of
the presence and nature of the pseudoephedrine and, even if he did, his possession was
joint and the State did not show a further connection between him and the substance. The
State contends this is a case of actual possession or, in the aiternative, a case of
constructive possession,
We disagree vvitli the State’s assertion that Appellant had actuai possession of the
pseudoepliedriiie, as the substance was neither on Appellant’s person nor within his easy
reach and convenient control. While Deputy Harris testified there was nothing blocking
Appellant’s view of the pitcher nor impeding Appeliant’s ability to grab the pitcher while
in the vehicle, this does not necessarily translate into a finding that the pitcher was within
Appeliaiit’s easy reach and convenient control. The evidence at trial was that the Camaro
had bucket seats and the pitcher was on the passenger seat floorboard. Without inore, the
facts do not support a finding that Appellant, as the driver of the vehicle, had actual
possession of an item located somewhere on the passenger side f`loorboard.
The State did, however, present sufficient evidence from vvhicii a reasonabie juror
couid find that Appeilaiit had constructive possession of the substance and knowledge of
the presence and nature of the substance. Appellantjointly owned the vehicle with
another person 2 but at the time of arrest was the lone occupant of the vehicle.
Appellant’s joint ownership of the vehicle coupled with his exclusive possession of the
veliicie at the time of the stop suggests Appeiiant had routine access to the vehicie.
Furtlierinore, the evidence at trial was that the pitcher contained a white crust that was
visible to the naked eye of the criminaiist; was einittiiig a chemical odor; and was in
relatively close proximity to Appellant and in plain view.
Based on the totality of the circumstances, and viewing the evidence and all
reasonable inferences in the light most favorable to the verdict, the State presented
2 As already noted, the vehieie was registered to Gary Francis and Miciieie Beasley. Appeilant asserts on
appeal there is no evidence that the "Gaiy Fraiicis" on the registration was liini and not his father, Gary
Fraiicis, Sr. Duriiig closing arguments, iiovvever, defense counsei conceded that the car was registered to
Appellant. Aitlioiigii there is a single address listed on the regisiration, there is no evidence of what
Micliele Beasley’s reiatioiisliip is to Appellaiit.
sufficient additional incriminating circumstances from which a reasonable juror might
have found that Appellant was aware of the presence and iiature of the substance and had
constructive possession of the substance. The trial court did not err in overruling
Appellant’s motion forjudginent of acquittal at the close of all the evidence. Appellant’s
Point l is denied.
Point ll -Piain Error in Adinission of Evidence
Next, Appellant argues the trial court plainly erred in admitting all evidence of tlie
pitcher found in the Cainaro and its contents, in violation of his rights to be free from
unreasonable search and seizures, iii that the officer did not have probable cause to search
his vehicle because he was stopped for ininor traffic violations and no exigent
circumstances existed that would have justified a ivarraiitiess search.
Appellant concedes he did not properly preserve this issue for appeal by seeking
to suppress the evidence or by objecting to the introduction of the evidence at trial. m
v. Nylon, 3i
1 S.W.3d 869, 884 (Mo. App. E.D. 2010). As such, the claimed error may
only be reviewed for plain error. l;d. Under the plain error standard, we will reverse only
\vheii a plain error affecting a substantial right results in inanifest iiijtistice or a
miscarriage of justice. Ld.; Rule 30.2(}.3 Plain error is that \vliicii is evident, obvious, and
affects substantial rights of the defendant. State v. Chisin, 252 S.W.3d i78, 183 (Mo.
App. W.D. 2008).
The Foiirth Amendinent of the Uiiited States Constitution protects an individual
froin iinreasoiiable searches and seizures. U.S. Coiist. aniend. IV; State v. Adams,
51
S.W.3d 94, 98 (Mo. App. E.D. 200l ). The Constitution of Missouri provides coextensive
3 All rule references are to Mo. R. Criin. P. 2012, unless otherwise iiidicaied.
protection to the United States Constitution. Mo. Const. art. l, §15; Adanis, 51 S.W.3d
at 98.
"A routine traffic stop based on the violation of state traffic laws is a justifiable
seizure under the Fotirth Ameiidinent." State v. Barks, 128 S.W.$d 5l3, 516 (Mo. banc
2004). "‘[S]o long as the police are doing no more than they are legally perinitted and
objectively authorized to do, {the resulting stop or] arrest is constitutional."’ l_d., quoting
State v. S|avin, 944 S.W.Zd 314, 317 (Mo. App. W.D. 1997). "Tlie detention may only
last for the time necessary for the officer to conduct a reasonable investigation of the
traffic violation[.]" Ll;§, 128 S.W.?>d at 5l6.
Geiierally, \vai'rantless seizures are unreasonable and unconstitutional. S_ta_t_e,__\;
H_g_)_;;fg)_l_l_<_, 366 S.W.3d 528, 533 (Mo. banc 2012). However, an officer may conduct a
brief investigative detention of an individual if the officer has a reasonable suspicion,
based on specific and articulable facts, that illegal activity has occurred or is occurring
l;d., quoting Terry v. Ohio, 392 U.S. l, 21 (1968).
The evidence at trial was that Offlcer Sitton called Deputy Harris and advised him
that a Cainaro believed to be operated by Patches was headed in Harris’s direction and
that Harris should stop the vehicle if lie had a reason to do so. Harris initiated a traffic
stop of the Camaro after observing the driver commit several traffic violations. Appellant
exited the vehicle as ordered and was secured by the off`icer. At this point, Deputy Harris
looked inside the vehicle with a flashlight and saw a beer pitcher on the passenger side
f`loorboard. Deputy Harris seized the pitcher as evidence. Deputy Harris testified the
pitcher had a chemical odor iike a solvent consistent \-vith the breakdown of pills and
there were reinnants of white crust inside the pitcher, Crandai, a criminalist ivitli the
10
l\/[issoiiri State Highway patrol, testified that the crust on the pitcher was visible to her
naked eye.
Appellant argues the trial court plainly erred in allowing the State to admit the
pitcher and its contents into evidence because Deputy Harris lacked probable cause to
search the vehicle and seize the evideiice. Appellant’s point is based on his assertion that
Deputy Harris’s act of looking into the vehicle with a flashlight constituted a search.
This assertioii, liov.'ever, is incorrect. “‘Observation of that which is open to view
is not a search. A search (such as is prohibited by the constitutional provisions iiivoked)
is not made by niereiy looking at that which can be seen."’ State v. Reagaii, 328 S.W.Zd
26, 28-29 (i\/lo. banc 1959), quoting State v. Hawi795 S.W.2d 399, 407 (Mo. banc 1990) (lool600
S.W.2d 594, 598 (Mo. App. W.D. 1980). The evidence at trial was that
methaniphetamine producers will sometimes crush pills containing pseudoepliedrine iii
ll
plastic containers, there was a visible \vhite crust on the pitcher, the pitcher was emitting
a chemical odor consistent with solvents used to break down pills, and Deputy Harris
knew Appellant has recently ieft a site vvhere it vvas suspected inetliainplietainirie was
being produced. The cumulative facts and information introduced at trial could stcpport a
finding that a reasonable officer believed that an offense had been or was being
connnitted and thus could justify his seizure of the incriminating evidence.
We find Appellant has failed to demonstrate that admission of the evidence was
an evident and obvious error. Appellant’s Point li is denied.
Point lil »»» Adrnission of Text Messages
in his final point, Appellant argues the trial court erred and abused its discretion
in admitting evidence of text messages received on the BlackBerry because this denied
him his rights to due process of la\v, to a fair trial before a fair and impartial jury, and to
confront the vvitnesses against him, as guaranteed by the Sixth and Fourteenth
Amelidineiits to the United States Constitution, and Article I, Sections 10 and l8(a) of the
Missouri Constitution, in that the texts constituted hearsay from both known and
tinknowii persons
The trial court has broad discretion when ruling on the admission or exclusion of
evidence at triai, and this Court will not disturb the court’s ruling absent a showing of an
abuse ofthat discretion. State v. Edwards, i
16 S.W.3d 511, 532 (Mo. banc 2003). We
will reverse on claims of error in the admission of evidence only if the error was so
prejudicial that it deprived the defendant ofa fair trial. State v. Robinson, iii S.W.Sd
510, 513 (Mo. App. S.D. 2003). There is no reversible error if the evidence is competent
under any theory or for any purpose I_d.
i2
At trial, Crump testified he downloaded the contacts, SMS text messages, ca11
iogs, images and videos front the BlackBerry phone. This information was part of a
phone examination report admitted as Exhibit 5 at trial. The phone included contacts by
the names of Patch, Chad, Ricky Raynor and Amarida. The text messages on the phone
ranged from June 2, 201 1 at 6:§8 p.m. to June 4, 2011 at 1:43 p.m. Cruinp opined that
the "tinie of the [last} text message" was consistent with someone deleting the most
recent text messages first and then working backwards. The following text messages
were erilarged and displayed to thejiiry, as Exhibits 6 and 7.
# Nuniber Name Date & Status Text
Time
1 }5739158753 Patch 06/02/11 Read just got out of shower not getting
181 18:20 out you can come by and do one
2 {5739158753 Patch 06/02/11 Sent Need eny thing from station or
18:25:49 dose chad
3 15739158753 Patch 06/02/11 Read No
18:26:43
4 15733302712 Chad 06/02/1 1 Read Wat up
18:46:21
53 15737015392 N/A 06/03/11 Read Hey man are you gonna make this
09:23:56 right? Every bit of that was buni<. I
just gave you 100 bucks for
absolutly nothing you need to call
me
61 15737015392 N/A 06/03/11 Read 1' u gonna make this rite that isnt
l 1:37:22 my rnoney
71 15737477012 N/A 06/03)'1 1 Read l need you to texed me about boxes
16:40:48 igit paied tomorow and i am gitting
a bunch will you still take them
77 15737477012 N/A 06/03/11 Read i didnt have the money today but i
16:48:57 git paid in the morning and im
going to git a bunch just wanted to
see whats up on that
78 15737477012 N/A 06/03/11 Read Not mad buy wy did i git the bagi
16:53:24 got the other day that dident have
the real in it i can help you a lot in
some ways
79 15737477012 N/A 06/03/11 Sent if you got something bad from inc
16:55:32 irt vvasii’t ment for you that’s real
13
talk
81 §5737477012 N/A 06/03/ll Read 1 didn’t think you did it but that
l7:01:30 bag did not have any stuff in it it
was something eise no tast no
smell nothing can we fix that im
not trying to start something just
being onist
82 15737477012 N/A 06/03)'01 1 Sent 1 didn’t go out to night but
17:03:07 tornarro\v will be made wrifglit
83 157374770§2 N/A 06/03/11 Read Thats cool i will bring that bag
17:05:35 back to you so you can see iam
not fucking you
84 15737477012 N/A 06/03)'1 1 Sent 1 beiive you
17:06: 17
85 15737477012 N/A 06/03/1 1 Read f like the first stuff that brought
17:12:25 back some old times i will show
you i can be a friend that your not
looking over your shoider niakeing
shore riothiiig is being fucl131 S.W.3d 818, 823 (Mo. App. W.D. 2004). Hearsay
17
statements are, as a rule, inadmissible l_d. This rule is predicated on a criminal
defendant’s Sixth Ameiidmeiit right to confront and cross-examine the witnesses against
him. l_d_.
On appea|, the State argues the text messages were admissible as “admissions
against interest," citing as its primary source of authority State v. Spic , 389 S.W.Zd 35,
47 (Mo. 1965) and this Court’s adoption of §pi_q,a’s reasoning in State v. Mosier, 738
S.W.Zd 549, 555~56 (Mo. App. E.D. 1987) (hoiding tape recordings of telephone and in
person conversations between defendant and an informant were not inadmissible itearsay
as defendant was sufficiently identified as the seller on the recordings through the police
officers’ identification of defendant’s voice, and defendant’s statements were admissible
as deciarations against interest and the inforniazit’s statements were admissible as being
necessary to obtain the fuli significance and lneaning of defendant’s declarations).
ln §pig, the State introduced testimony of a police officer as to a conversation he
overheard between the defendant and his accompiice-turned-iitf`orrnant, Mrs. Myszak
(Myszak), and tape recordings of five different cottversations between defendant and
l\/iyszak. _S_pil, 389 S.W.Zd at 43. Myszak did not testify at trial and, on appeal, Spica
challenged the admission of the evidence as hearsay. i;d. at 46-47. The Missonri
Supreiite Court heid that Spica’s stateinents, which consisted of his part in the
conversation, as testified to by the officer and presented to the jury via sound recordings,
\vere admissible in evidence as "adrnissions against intei'est," an exception to the liearsay
rule. id_. at 46. The court stated the rule as follows:
Statements, declarations, and admissions by accused from which an
inference of guilt may be drawn are admissible in evidence against hini.
Such evidence is admissible as an exception to the hearsay rule, without
regard to whether or not it constitutes a part of the res gestae.
18
Ld., quoting 22A C.J.S. Criminai Law § 730. Furtiier, the cotirt found l\/iyszak’s
statements were also admissible as an exception to the hearsay ruie, hoiding:
Where a statement in the nature of an accusation is made to accused and
he replies thereto otherwise than by unequivocally denying the accusation
in toto, as where he assents to the truth of the charge in whole or in part, or
admits it in part and denies it in part, or \vhere he inakes an evasive or
equivocal repiy, or where he foilows the denial with an admission of
certain facts, the statement and the reply thereto may be received and
considered against him to the extent that he admits the truth of the charge,
the admission being evidence, and the statement not being direct evidence
but admissible oniy in connection with the reply.
Spica, 389 S.W.Zd at 47, quoting 22A C.J.S. Criiniiiai Law § 734(2). The court found the
conversations, consisting of numerous statements on the part of Myszak and staternents
in repiy by the defendant, amounted to declarations against interest and that the
statements of Myszak vvere admissibie to obtain the fuil significance and ineaning of
Spica’s deciarations. S_Qica, 389 S.W.Zd at 47.
Aithough this Court agrees with the tlnderiyiiig rationale of Spica, both the law
and technology have evolved in the decades since it was decided, vvhicii presents issues
not adequately addressed by the State. The statements which the Spica court referred to
as "adniissions against interest" are today more coinmonly described as "adtnissions of a
party opponent.” State v. Brown, 833 S.W.Zd 436, 438 (Mo. App. W.D. 1992); State v.
Simrnons,
233 S.W.3d 235, 237 (Mo. App. E.D. 2007). This is distinguishabie from a
"declaratiori against interest" which is a statement made by an unavaiiable non-party that
may be admissible as an exception to the hearsay rule. Bro\vii, 833 S.W.Zd at 438.
19
An admission of a party opponent, however, is not properly considered to be
hearsay at all. _i_dy, citing IV Wigmore, Evidence § i048 at 4 (§972) and Fed. R. Evid.
80l(d)(2) and 804(b)(3).4 See also Simrnons, 233 S.W.3d at 237.
The reason is that the hearsay rule is designed to protect a party from out-
of`-cotirt declarations of other persons vvho cannot be cross-examined as to
the bases of their perceptions, the reliability of their observations, and the
degree of their biases. In the case of an admission of a party opponent,
liowever, the declarant is the party ltimself. Because the statement is
being offered against him, he is the only one who can object to its
admission; and an objection on the basis of hearsay cannot make sense
because the party against \vhoin it is offered does nor rreed 10 cross-
examine hi'nrselji He already knows why he said what he said when he
said it. IV Wigmore, § 1048 at 4.
Brovvn, 833 S.W.Zd at 438-39 (elnphasis in original).
The second category of statements recognized by Spica, i.e., the staternents of
third parties that are admissible to give context to a defendant’s admission, are today
more commonly referred to as adoptive admissions or, in Missotiri, tacit admissions.
State v. Gilmore,
22 S.W.3d 712, 7l8 (Mo. App. W.D. l999) ("A defendant’s failure to
deny an incrirninatirig statement made in his presence can constitute a tacit admission.").
Under the adoptive admission rule, a statement of another person is admissible as
evidence against a criminal defendant when the defendant assents to or adopts the
statement made by the other person through the defendant’s \vords or conduct. 23 C.J.S.
Criminal Law Section 1231 (March 2014). The adoptive admission rule may allow
admission into evidence of a defendant’s failure to deny stateinents made in his presence
\vhicli tend to incriminate l'rim and vvhicli a reasonable person would have denied tinder
the circumstances _lgL
4 See 23 C.J.S. Crirriinal Law Section 1220 (Marcl\ 2{}14), analyzing F`ed. R. Evid. 80l(d)(2) and si:nilar
state la\.vs, and discussing the circumstances in which an admission by an accused offered against them at
trial is either not hearsay or is viewed as an exception to the hearsay rule.
20
Witli these concepts in mind, we look to the State’sjttstiiication for admitting the
out-of-cotirt statements of lion-testifying third parties, The crux of the State’s argument
is that the text inessages sent from the BlackBerry were admissible as Appellant’s
admissions while the incoming messages were admissible to give context to those
admissions We find numerous flaws in the State’s reasoning.
First and foremost is the fundamental failure of the State to establish at trial that
the outgoing text messages were written by Appellant. This failure is accentuated by the
modern authority on admissions by a party opponent, particularly those involving written
electronic communications. By definition, for a statement to be admitted as an admission
of a party opponent, the party seeking to admit the evidence must present evidence
showing that the opposing j)arty )rzade the statenient. When defense counsel raised this
issue at trial, the State responded that there was "a logical inference that [Appellarit} was
the o\,vner of the BlackBerry, since it was in his possession" at the time of arrest. We
disagree, and find the State’s position is inconsistent with the requirement of
authentication of documents, a necessary step in laying the foundation for the admission
of such evidence at trial.
In State v. Harris, 358 S.W.3d 172, 175-76 (l\/lo. App. E.D. 201 l), this Court
considered the foundation requirements for the admission of text messages at trial. In
finding the rules of admissibility for personal letters applicable to the content of text
messages from a cellular phone, this Court stated:
...The atttlteiiticity of a document cannot be assuined. Robi`ri
Fai')ns, Inc. v. Barrholorire,
989 S.W.2d 238, 252 (Mo. App. W.D. l999).
The proponent of the document must offer proof that it is what it ptirports
to be. Id. "The law is well settled that the mere fact that a letter purports
to have been written and signed by one in authority to do so is, in itself,
insufficient to establish the authenticity and geruiirieiiess of the letter." Id.
21
Applying these rules to text messages, the proponent of such evidence
must present some proof that the niessage[s] were actualiy authored by the person
who allegedly sent them. This should not be an unduly burdensome requirement
and can be satisfied by circumstantial evidence. Proof could be in the form of
admission by the author that he actually sent them, or simply an admission by the
author that the number from which the message was received is his number and
that he has control of that phone, Such proof could even be established by the
person receiving the message testifying that he regularly receives text messages
front the author from this number, or something distinctive about the text message
indicating the author wrote it, such as a personalized signature. Once the
evidence is admitted, it is still the province of thejury to determine its weight
Harris, 358 S.W.3d at 175-76.
This Court’s finding in Harris is consistent with precedent from otherjtlrisdictioiis
addressing the admissibility of text messages against a defendant as an admission of a
party opponent. See State v. Tho:npsoii, 777 N.W.Qd 6i7, 622~26 (N.D. 2010) (trial
court admitted messages as “deciarations against interest," appeiiate court analyzed law
of otherjtu'isdictioiis regarding authentication of electronic messages and found stifficieiit
evidence of authorship by defendant given the circumstances and victim’s testimony that
messages came from the defenclant’s phone number and included her distinctive
signature); State v. Winder,
189 P.3d 580 (Kan. App. 2003) (text messages admissible as
a party admission and finding messages were properly authenticated when witness
testified the incriminating messages were received from defendant’s phone iiunabei‘ and
she had recently received a call from defendant froin that number); Syinonette v. State,
100 So. 3d 180, 183-84 (Fla. App. 4th Dist. 20§2) (text inessages admissible as
admission of party and properly authenticated when accomplice identified the text
messages as between her and defendant at triai); State v. Roseberry, 967 N.E.Zd 233,
243-44 (Ohio App. 8th Dist. 20! f) (holding text messages that were not authenticated by
the recipient of the messages were not admissible as statement of party opponent);
22
Pavlovich v. State, 49A02-l30S~CR-7l5,
2014 WL 1266266 (ind. App. 2014)
(discussing authentication of electronic coinmunicatioiis and finding admitted messages
had been properly authenticated and were admissible as statements of party opponent);
State v. Fraiiklin,
280 Kan. 337, 337 (Kan. 2005) (affirined the admission of text
messages, finding sufficient evidence to reasonabiy imply defendant sent the messages,
in that content of the messages paraiieied other evidence of defendant’s activities and
statements; recipient of the messages testified he and defendant sometimes
coinmunicated by text message and messages came from telephone riuinbei' he knew
belonged to defendant; and defendant had the phone in her possession vvheii she was
arrestecf, contrary to her claim that she did not).
In Com. v. Koch,
39 A.3d 996, 1000 (Pa. Super. 2011), the defendant was
convicted of possession with intent to deiiver and possession of a controlled substance as
an accomplice. On appeal, the defendant challenged the admission at trial of drug-related
text messages from her phone, contending the messages were not property authenticated
as there was no evidence substantiatirig that she was the author of the niessages and the
messages were inadmissible hearsay. id_. at i002, 1005. The appellate court reversed,
finding rnerit to both contentions. Ld. at 1005-07. The court addressed the question of
authentication of text messages as an issue of first impression, finding precedent from
Periirsyivania and other states reiied tipoii the principie that e-niaiis and text messages are
documents subject to the same generai requireinents for authenticity as lion-electronic
documents. 11 at 1003-04. The KLh court stated:
As these cases illustrate, the difficulty that frequentiy arises in e-
mail and text message cases is establishing authorship. Often more than
one person uses an e-mail address and accounts can be accessed without
perniission. In the rnajority of courts to have considered the question, the
23
mere fact that an e~mail bears a particular e-rnaii address is inadequate to
authenticate the identity of the author; t.ypicaily, courts demand additional
evidence.
Text messages are somewhat different in that they are intrinsic to
the celi pliones in which they are stored. While e-rnails and iiistant
messages can be sent and received from any computer or smart phone, text
messages are sent from the celiuiai' phone bearing the telephone number
identified in the text message and received on a phone associated vvitli the
iiumher' to which they are transmitted The identifying information is
contained in the text message on the ceiluiar telephone. However, as with
e-Iiiail accounts, cellular telephones are not always exciusively used by the
person to whom the phone number is assigned.
§ at 1004-05.
The _I§_Q__<_;h court found the trial court erred in admitting the text messages into
evidence because aithough the defendant acknowledged ownership of the phone, a police
officer conceded that the author of the drug-related messages could not be ascertained
and some of the messages referred to the defendant in the third person, indicating she did
not write some of the messages. l_d. at §005. The court found that authentication of
electronic coinmunications requires more than mere confirmation that the number
belonged to a particuiar person and that additional evidence which tends to corroborate
the identity of the sender is required. I_d. at 1005. 'l`he court noted there was no
testhnony from the persons who sent or received the text messages and no contextual
clues in the messages tending to reveal the identity of the sender. id The court held that
Appellant’s physical proximity to the telephone at the time of arrest was of no probative
value in determining whether she authored text messages days or weeks before. I_cL The
court further held that the messages were not admissible as admissions of a party
opponent because the State was unable to prove the defendant was the author of the
messages. _I_d__.at l006.
24
in the instant appeal, the State maintains the text messages were properly
admitted based solely on the contention that the texts were admissible as Appellant’s
admissions This position is wholly unsupported by the record because the State faifed to
present evidence that Appellant authored the messages at trial.
lt was the State’s position at trial that Appellant’s ownership of the BlackBerry,
and presumably his authorship of the outgoing \nessages, could be inferred since the
phone was in his possession at the time of arrest. Ll_ar_t;i_s_, liowever, holds other\vise,
requiring the "proponent of such evidence {to] present some proof that the message[s]
were actually authored by the person who allegedly sent them." Ha;m, 358 S.W.3d at
|75-76. in this case, the messages were sent and received hours and, in some cases, days
before Appellant’s arrest. When questioned at t1'ial, Crurnp testified he did not even
attempt to determine ownership of the BlackBerry or the identity of the persons sending
messages to the BlackBerry. lt appears the State made little or no effort before trial to
establish the identity of the senders of any of the inessages, and certainly did not present
any evidence that tended to establish that any of the messages \vere sent by Appeilant.
Autliorsliip is vvhat distinguishes this case from the situations in §Qi_<;a_, 389
S.W.Qd 35, and Mosier, 738 S.W.2d 549. Spica involved the recording or relation of in-
person coriversations between two people _I\_/ln involved recordings of in-person and
one~oli-oiie telephone conversations where witnesses identified the defendant by voice.
In those cases, the State presented evidence \vhicli tended to establish that the defendant
made the staternents sought to he entered. l“lere, the State presented no such evidence.
There was no evidence that Appellant owned the BlackBerry or, more importantly,
authored the messages. The fact that Appellant possessed the phone at the time of arrest
25
is insufficient by itself to establish that Appellant authored text messages sent hours or
days earlier. Because the State failed to establish that the text messages were authored by
Appellant, the outgoing messages were not admissible as admissions by a party opponent
and, thus, the incoming messages were not admissible under any identitied exception to
the hearsay rule.
ln addition to failing to prove Appellant authored the messages, the State’s
position that the texts were admitted as Appeiiant’s admissions is further undermined by
a review of the evidence presented at trial. Whetlier called an admission against interest,
an admission of a party opponent, an adoptive admission or a tacit admission, evidence of
a third party’s stateinent to a defendant is admissible only to give context to the
defendant’s repiy. See _S_;Lga, 389 S.W.Zd at 47 (accusatory statement made to defendant
is "admissible only in connection with the reply" and is not direct evidence) and Gilniore,
22 S.W.3d at 718 (finding witness’s testimony as to out-ot`-court stateinents between third
party and defendant were admissible as tacit admission of defendant).
During the State’s direct examination of Cruinp, however, the questions were
almost exclusively focused on the incoming text messages, not on the messages sent from
the BlackBerry. With very limited exceptions, the State did not elicit testimony of
Appellant’s alleged responses to the irlcriininatiiig inessages, instead focusing on the
statements of frequently unknown, tlnidelttified third parties ln addition to Ofi`lcer
Crump’s testin"ioiiy, the State displayed to thejury two enlarged exhibits, Exltibits 6 and
7, xvitli the previously set forth messages. While Exhibits 6 and 7 include some messages
sent from the BlackBerry (l l of the 39 messages entered into evidence), when compared
to the full phone examination report, it becomes ciear the State was not seeking to admit
26
the texts as Appellant’s admission. Specificaiiy, the State repeatedly entered into
evidence incriminating incoming messages but did nor crdnrr'l the outgoing rnessr:geji'oiir
the Blc.'ckBer'ry that ivould arguably be r'espondz`ng to that rriessage. The intent of such
action is clear; the State was not seeking to introduce evidence of Appellant’s alleged
admissions, but instead was seeking to admit the hearsay stateinents of unidentified third
parties
Based on the foregoing, we find the trial court erred and abused its discretion in
admitting the text rnessages into evidence at trial.
Pre]tldice
Having found the trial court erred in admitting the text messages at trial, this
Court must determine whether the error requires reversal.
lf inadmissible hearsay evidence is improperly admitted, reversal is not required
unless the error was prejudicial to the defendant such that the error was outcome-
deterniinative. Douglas, 131 S.W.3d at 824. "[T]lle mere fact that there is overwhelming
evidence of guilt is not the test; the test is whether there is a reasonable probability the
jury relied on the improperly admitted evidence in convicting the defendant and that it
would have reached a different result but for its admission." § at 825.
We find the improper admission of the text messages at trial was outcome-
deteriiiiiiative and prejudicial to Appellant. 'l`he evidence of Appellant’s guilt of
possession with intent to inanufacture consisted of his leaving the site of a suspected, but
not demonstrated, rnetharnplietaniine cook and his constructive possession of a .02 gram
residue of a precursor recovered front jointly owned property. The evidence of
Appellant’s guilt was slight while the i\nproperly admitted evidence was plentiful and
27