DocketNumber: ED100009
Judges: Sherri B. Sullivan, J.
Filed Date: 4/29/2014
Status: Precedential
Modified Date: 9/5/2016
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, 3i1 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, i16 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