State of Missouri v. Antoine L. Ellis

Corrected – October 27, 2021
In the
Missouri Court of Appeals
Western District

STATE OF MISSOURI, 

Respondent,  WD83010
v.  OPINION FILED:

ANTOINE L ELLIS,  OCTOBER 26, 2021

Appellant. 


Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Charles H. McKenzie, Judge
Before Division Two: Mark D. Pfeiffer, Presiding Judge, Alok Ahuja, Judge,
Anthony Rex Gabbert, Judge
Antoine Ellis appeals his conviction after jury trial for two counts of statutory rape in the
first degree and one count of enticement of a child. He raises four points on appeal claiming that
the trial court erred in admitting various evidence and testimony. The judgment is affirmed.
Facts
Ellis was charged with the unclassified felony of first-degree statutory rape, section
566.032, in Count I, for knowingly having sexual intercourse with C.S. (“Victim”),1 a child less
than 14 years old, on or between June 14, 2015, and January 31, 2016; the unclassified felony of
1
We refer to the victim and family members by generic terms to protect the victim's identity pursuant to
section 595.226.
first-degree statutory rape, section 566.032,2 in Count II, for knowingly having sexual intercourse
with Victim, a child less than 14 years old, on or between January 1, 2016, and January 31, 2016;
and the unclassified felony of enticement of a child, section 566.151, in Count III, for enticing
Victim, who was less than 14 years old, by sending her sexually explicit text messages, on or
between January 1, 2016, and March 23, 2016, for the purpose of engaging in sexual conduct with
her.
In the light most favorable to the verdict,3 the following evidence was presented at trial:
Victim was born in 2002. She first met Ellis and his girlfriend (“Girlfriend”) when she was 12
years old. Ellis was friends with Victim’s stepfather (“Stepfather”). Ellis and Girlfriend were
treated like family and visited every weekend. Victim’s mother (“Mother”) testified that Victim
and Ellis claimed they were best friends which she thought was “kind of strange.”
Ellis first touched Victim in a sexual manner by walking to her as if to give her a hug and
touching her pubic area in a groping manner. She did not tell anyone because “[h]e’s just like
family and maybe he won’t do it again.” Victim got a cell phone, and Ellis asked for her phone
number so that he could check up on her. Ellis began to text Victim about school and to ask how
she was doing.
Victim celebrated her thirteenth birthday in June 2015 with her family, Ellis, and Girlfriend.
Shortly thereafter, Victim and her family moved to a new home. Ellis and Girlfriend celebrated
the Fourth of July with Victim’s family. They also joined Victim’s family on a trip to Florida at
2
All statutory references are to RSMo 2000 as supplemented through the dates of the offenses in June 2015
through March 2016 unless otherwise indicated.
“We view the facts in the light most favorable to the verdict.” State v. Bush, 372 S.W.3d 65, 67 n.2 (Mo.
3
App. W.D. 2012) (internal quotation marks omitted).
2
the end of July 2015. During this time, Ellis would touch Victim’s butt and breasts while Victim
was doing things around the house.
In the middle of July, Victim was home with her family, Ellis, and Girlfriend. Victim was
trying on dresses Mother had bought for her. Victim went back to her room, and Ellis acted like
he was going to the bathroom. Ellis went into Victim’s bedroom, told her to be quiet, and pushed
her onto the bed. He told Victim he loved her, put a condom on his penis, put a pillow over Victim’s
face, and stuck his penis into her vagina. Ellis told Victim to be quiet and that he would hurt her
if she told anyone. Victim went into the bathroom to clean herself up before returning to the living
room. Victim testified she had never had sexual intercourse before this encounter. Mother testified
that Victim took a little bit longer to come out after trying on dresses but Mother assumed Victim
was just putting the clothes away.
Ellis had intercourse with Victim a second time at some point after Stepfather moved out
of the house around December 22, 2015. He came to the home while Victim was getting ready for
school. Mother was at work, and Victim was home alone. Ellis told Victim that Girlfriend was in
jail. He said he needed to talk to Victim and took her to her bedroom. He made Victim perform
oral sex on him. He then put Victim on the bed, put a condom on his penis, and put his penis in
Victim’s vagina. Ellis told Victim to keep quiet about the sexual encounters.
After Victim and Ellis had sexual intercourse, the messages they exchanged began to
change. Ellis told Victim he loved her, he missed her, he wanted to marry her, and he wanted her
to have his baby. They texted about their sexual encounters. Ellis also called Victim a lot. They
exchanged messages for months. Phone records indicate that between January 14, 2016 and
February 20, 2016, they exchanged over 6,000 text messages and phone calls lasting as long as
243 minutes.
3
Victim testified she was confronted about the messages between Ellis and herself several
times. Mother received a phone call from Girlfriend in January 2016 which prompted Mother to
start looking into Victim’s phone records. Stepfather testified he got into a fight with Ellis after
seeing on Ellis’ phone that he had been texting Victim. When Mother confronted Victim, Victim
deleted all of the messages. Victim testified she did not tell Mother what was going on because
she was scared. Mother prohibited Victim from downloading apps like Facebook and Snapchat.
On February 21, 2016, Girlfriend again brought it to Stepfather’s attention that Ellis was
sending sexually explicit messages to Victim. Stepfather reached out to Mother. Victim again
deleted the messages when confronted. She testified she was scared of fighting with Mother and
everybody over what had happened. Mother went to Ellis and Girlfriend’s residence and found
Kansas City police already there. Mother was advised to file a report with the Independence Police
Department because Victim lived in Independence.
Ellis told Victim they could send messages to each other using an Xbox. Victim used a
tablet and an app called TextNow to communicate with Ellis using a number he sent her through
the Xbox. Victim testified that Girlfriend confronted Victim through the messages, telling Victim
that Ellis was in a relationship. Girlfriend called Mother and told her to get Victim’s device.
Mother got the tablet while Victim was sleeping and saw “very explicit” messages.
On March 23, 2016, Mother, Stepfather, and Girlfriend went to the police station and
reported that messages of a sexual nature had been sent to Victim. They brought the tablet which
contained some of the sexually explicit messages. Mother, Stepfather, and Girlfriend were
cooperative with the investigation.
Sergeant Cranston used the tablet to take screenshots of the messages. He saved those
screenshots to the police department’s network drive. Printouts of the complete conversation
4
contained in the screenshots consisted of 28 pages of approximately 300 messages between March
21, 2016 and March 23, 2016.
Victim testified that after the messages were discovered, she repeatedly denied that she and
Ellis had ever had any sexual contact because she was scared of Ellis and Mother. Victim first
disclosed the sexual contact in September 2018 because she knew Ellis could not get to her and
she felt safer. A forensic interviewer testified at trial regarding the frequency of and reasons for
delayed disclosures by children.
Ellis wore an ankle monitor during the time he interacted with Victim.4 Deborah Maguire,5
a probation and parole officer, testified that Ellis was on lifetime supervision and had a GPS
monitor.6 The GPS monitoring program showed that Ellis was at Victim’s house many times,
including January 27 and January 28, 2016, at approximately 6:47 and 6:48 a.m.
Ellis called a digital forensics specialist to testify as part of his defense. The specialist
testified that the data extractions performed on Victim’s tablet had been flawed. The specialist
admitted that the accuracy of the data recovered, including the screenshots of the messages, was
unaffected. Ellis also presented the theory that Stepfather was the person sending Victim sexually
explicit messages and having sexual intercourse with Victim.
4
On September 7, 2007, Ellis pleaded guilty in St. Charles County to two counts of first-degree statutory
rape for inserting his penis into the vagina of a 12 year old girl on February 1, 2007 and February 10, 2007, and to
first-degree statutory sodomy for placing his penis into her anus on February 10, 2007. Ellis was 20 years old at the
time of the offenses.
5
The probation and parole officer is referred to as Deborah McGuire and Deborah Maguire in the record
before this court. Both parties refer to her as Deborah Maguire in their briefs.
6
Section 217.735.4 provides that “[a] mandatory condition of lifetime supervision of an offender under this
section is that the offender be electronically monitored. Electronic monitoring shall be based on a global positioning
system or other technology that identifies and records the offender's location at all times.”
5
The jury found Ellis guilty of all three counts. Ellis was sentenced to life imprisonment
without parole for Count I, life imprisonment without parole for Count II, and fifteen years
imprisonment for Count III. Counts I and II were ordered to run consecutively, and Count III was
ordered to run concurrently. This appeal follows.
Standard of Review
“The circuit court has broad discretion to admit or exclude evidence during a criminal trial,
and error occurs only when there is a clear abuse of this discretion.” State v. Loper, 609 S.W.3d
725, 731 (Mo. banc 2020) (internal quotation marks omitted). “An abuse of discretion occurs only
if the circuit court’s ruling admitting or excluding evidence is clearly against the logic of the
circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of
justice and indicates a lack of careful, deliberate consideration.” Id. (internal quotation marks
omitted). “This Court will reverse the [circuit] court’s decision only if there is a reasonable
probability that the error affected the outcome of the trial or deprived the defendant of a fair trial.”
Id. (internal quotation marks omitted).
Ellis did not preserve an objection to one of the evidentiary rulings challenged in Point IV.
“When defendants have not preserved their claims of evidentiary error, this Court may exercise its
discretion to review the claim for plain error.” Id. (citing Rule 30.20). “[T]his Court will not
review a claim for plain error unless the claimed error facially establishes substantial grounds for
believing that manifest injustice or miscarriage of justice has resulted.” Id. (internal quotation
marks omitted).
Questions of statutory interpretation are determined de novo. State v. Knox, 604 S.W.3d
316, 320 (Mo. banc 2020). “The primary rule of statutory interpretation is to give effect to the
6
legislative intent as reflected in the plain language of the statute.” Id. (internal quotation marks
omitted).
Point I
In his first point on appeal, Ellis claims the trial court abused its discretion in admitting the
testimony of Deborah Maguire and Exhibit 29 regarding Ellis’ specific location at certain dates
and times. He claims that Maguire was not qualified to give this testimony because she did not
know how the GPS technology worked or whether its results were accurate. Ellis argues that
expert testimony was required to support a foundation for the admission of the results of the GPS
tracking. He argues that there is a reasonable probability that the trial court’s error affected the
outcome of the trial because it corroborated Victim’s testimony.
At trial, Maguire testified that she had been a probation and parole officer for almost seven
years. Maguire used a system called BI Total Access. That is a monitoring company that tracks
the GPS monitoring for the Department of Corrections. Maguire testified that she used the BI
monitoring system for approximately four years. She used it to track individuals who are on GPS
to ensure that they are complying with applicable curfews. She receives an alert of an individual
violating their curfew or if they cut their ankle monitor off. Maguire uses the BI monitoring system
as a part of her job. She relies on it for many aspects of her job. Over her four years of using the
BI monitoring program, Maguire has monitored, at a minimum, twenty or thirty individuals. She
has used the monitoring program two to three times per week over the four year period.
Maguire supervised Ellis from September 2015 through January 2017 and again from May
2017 through August 2017. She was asked to determine Ellis’ locations for the criminal case
against him. She prepared a document with dates and addresses, including dates when Ellis was
at Victim’s house.
7
Maguire also took screenshots from the BI Total Access System showing Ellis was located
at Victim’s house. She testified that the dots on the screenshot are from when Ellis’ GPS in his
monitoring bracelet hits the satellite. The program allowed Maguire to see the location where the
GPS pinged as well as the timing of the ping. The longer Ellis stayed at one location, the more
pings appeared at that location resulting in more dots on the screen. Maguire is able to track dot
to dot on the screen and can see when a dot first appears at a location.
Maguire brought to court the laptop she would use in order to locate Ellis on the BI
mapping system. She went through the entire process of accessing Ellis’ information in the BI
Total Access System in front of the jury. The jury saw how the program started out as a Google
Map view. Upon zooming in, individual dots become visible for the date and time period selected.
She also showed how pressing the play button shows how the dots moved over a period of time.
On cross-examination, Maguire was asked why some of the dots were different colors and
different sizes. She stated that she did not know why the dots were different sizes. Defense counsel
asked: “Because all you do is you plug something in the computer and it tells you where someone’s
located?” and Maguire answered “Yes.”
Testimony at trial corroborated some of the data from the GPS tracking system. Mother
testified that Ellis came to her house on the Fourth of July and the records reflected that. She
testified that Ellis came over to the house for Christmas and the records reflect that Ellis was there
on December 24, 2015. Mother testified that Ellis did not come over to the house after the July
2015 Florida trip, and the GPS records reflect that Ellis did not go to the house between July and
December 2015. Victim testified that the second time she had sexual contact with Ellis occurred
8
at some point after December 2015 before school began. The records reflected that Ellis was at
the house January 27, 2016 at 6:47 a.m. and on January 28, 2016 at 6:48 a.m.7
Ellis maintains that Maguire was not an expert witness and was not called to testify about
the accuracy of the GPS readings. He relies on brief pretrial proceedings where the prosecutor
stated about Maguire:
Judge, this witness is not testifying as an expert. I don’t expect her to testify about
the accuracy of the data only that she used this data for multiple years. It was a job
requirement. She was monitoring Mr. Ellis because he was on lifetime GPS
monitoring and she used this program on a daily basis, relies on this program as
part of her job in monitoring these individuals. She can testify that her personal
knowledge of having looked at these particular dates that it places him at the
victim’s address. I think because she’s not testifying as an expert [defense
counsel’s] concerns are -- only go to the weight of the evidence and not to its
admissibility.
Defense counsel protested that if the State did not want to use the tracking information for its
accuracy then it was more prejudicial than probative. The prosecutor clarified:
I think I might have misstated. I don’t mean that she's going to testify that the data
is not accurate. I just mean the details in terms of how often the satellite pings the
GPS and things like that. I don’t expect her to testify regarding that.
In State v. Williams, 427 S.W.3d 259, 265 (Mo. App. E.D. 2014), the defendant challenged
the testimony of a probation and parole officer regarding an electronic monitoring system. The
officer had 14 years’ experience as a probation and parole officer for the State of Missouri. Id.“[S]he received two days of training on interpreting the electronic monitoring system’s reports
from the company that manufactures and installs the devices.” Id. The officer “was not trained in
the maintenance of or scientific principles behind the device.” Id. “[S]he was familiar with the
7
Ellis notes that the GPS records indicate he was at the house at dates and times not corroborated by Mother.
The evidence at trial was that Mother worked and Victim was frequently at home alone. Moreover, the evidence was
that Mother was not always aware of when Ellis was at the house.
9
electronic monitoring system and the reports that it generates.” Id. The electronic monitoring
system at issue was an ankle bracelet. Id. The officer testified that the records indicated the
defendant was not present at home at a certain date and time. Id. The officer “acknowledged she
did not know if there were other malfunctions of the machine or the phone lines that could possibly
cause the readings at issue.” Id. She also stated that “some telephone companies have more
problems with the electronic monitoring devices than others.” Id.The defendant argued the court abused its discretion in permitting the officer to testify
about how the monitoring system operated and why it would malfunction. Id. at 265-66. He
claimed the testimony was mere speculation lacking foundation, outside the officer’s expertise for
reading reports generated by the system for which she was qualified to testify. Id. at 266.
The court noted that “[a]n expert is qualified if he or she has knowledge from education or
experience which will aid the trier of fact” and that “[t]he extent of an expert’s experience or
training in a particular field goes to the weight, not the admissibility, of the testimony.” Id. (internal
quotation marks omitted). The court found that the officer possessed “some qualifications to
testify about the electronic monitoring system and the reports it generated.” Id. She had years of
experience, received training in reading the reports, and was familiar with the contents of the
reports. Id. The officer’s “limited knowledge as to the scientific principles underlying the device
went to the weight of her testimony, not to its admissibility.” Id. The officer’s “training and
experience qualified her to speak about the basic components and functioning of the device and
her interpretation of the reports generated by such.” Id. The defendant was able to cross-examine
the officer “about the limits of her knowledge and expertise with regard to the device.” Id. The
court concluded that “[t]he State laid an adequate foundation for the admission of [the officer’s]
10
testimony regarding the operation of the ankle monitoring system and the reports it generates and
the trial court did not abuse its discretion in admitting such evidence at trial.” Id.We find Williams instructive in the current case. Maguire was not an expert regarding how
the BI Total Access System worked from a mechanical or scientific perspective. She was, however,
an expert with respect to the requirements of lifetime supervision of offenders and how the office
of probation and parole uses and interprets the BI monitoring system to track the location of
offenders. Further, as in Williams, the defense was able to cross-examine Maguire regarding her
lack of knowledge regarding the monitoring program. See also State v. Brown, 818 S.E.2d 735,
740–42 (S.C. 2018) (“We do not doubt that Agent Powell was a proper witness and likely able to
lay the necessary foundation. But in terms of establishing the accuracy of the GPS records, Agent
Powell simply observed the GPS records are accurate because ‘[w]e use it in court all the time”’
…. “Other jurisdictions have allowed GPS records to be authenticated by someone who has general
knowledge and experience with the system used, explains how the records are generated, and
confirms the accuracy of the result.”).
Ellis relies on cases like State v. Patton, 419 S.W.3d 125, 132 (Mo. App. E.D. 2013) where
the court held that expert witness testimony was needed regarding using the locations of cell tower
sites used by a cell phone to pinpoint location because “[t]o narrow down the area in which [a]
phone must have been to have connected to a particular cell site—i.e., to proffer testimony actually
probative of whether [defendant] was in one area rather than the other—required analysis of the
many variables that influence cell site signal strength” and “such analysis amounts to opinion
testimony that is properly the province of an expert.” Patton is distinguishable because in the
current case Maguire was not analyzing multiple variables to reach a conclusion about Ellis’
location. Instead, she was using a tracking program that determined his location at set dates and
11
times. Further, here, the evidence was merely duplicative of the other evidence in the case as to
Ellis’ whereabouts during the timeframe Victim identified Ellis to be present at her home in January
before school started. See State v. Neighbors, 502 S.W.3d 745, 750 n.4 (Mo. App. W.D. 2016).
The trial court did not abuse its discretion in admitting Maguire’s testimony and the
documents she produced. The point is denied.
Point II
In his second point on appeal, Ellis claims the trial court abused its discretion in admitting
the testimony of Deborah Maguire and Exhibit 29 regarding Ellis’ specific location at certain dates
and times. He claims that section 559.125.2 creates a statutory privilege that prohibits the
disclosure of “information or data obtained by a probation or parole officer” and such information
or data “shall not be receivable in any court.” Ellis argues that Maguire’s testimony and Exhibit
29 violated this statute. He argues that there is a reasonable probability that the trial court’s error
affected the outcome of the trial because it corroborated Victim’s testimony.
The probation system has two purposes: “rehabilitation of the probationer; and preventing
probationer from committing the same crime in the future—thereby protecting public safety.”
State v. Fetterhoff, 739 S.W.2d 573, 576 (Mo. App. E.D. 1987). Section 559.125 provides in
relevant part:
2. Information and data obtained by a probation or parole officer shall be privileged
information and shall not be receivable in any court. Such information shall not be
disclosed directly or indirectly to anyone other than the members of a parole board
and the judge entitled to receive reports, except the court or the board may in its
discretion permit the inspection of the report, or parts of such report, by the
defendant, or offender or his or her attorney, or other person having a proper interest
therein.
“The purpose of the statute is that the probationer know that information learned by the probation
officer will be held in confidence.” Richardson v. Sherwood, 337 S.W.3d 58, 65 (Mo. App. W.D.
12
2011). “The statute does not authorize discretion.” Id.Missouri courts have not addressed whether the admission of GPS evidence from an
offender who is on lifetime supervision violates section 559.125.2. In Williams, 427 S.W.3d at
266, the defendant argued that the trial court plainly erred in allowing a probation officer to testify
regarding “the results of the ankle monitoring system, because Section 559.125.2 RSMo 2012
creates a statutory privilege that prevents the disclosure of information or data obtained by parole
or probation officers in that such information is privileged and is not receivable by any court.”
The appellate court, however, did not address the issue because it found that the defendant had
“waived any privilege that may have existed by invoking the restrictions of his supervised
probation and his claimed compliance with those restrictions to bolster his alibi defense.” Id. at
267.
In the current case, we need not determine whether the admission of the GPS evidence
violated section 559.125 because Ellis cannot show prejudice from that admission. See id. at 266(We review admission of evidence for prejudice which means whether there is a reasonable
probability that the trial court’s error affected the outcome of the trial.). The GPS tracking was
used to corroborate victim’s testimony that one of the sexual encounters occurred in January before
school started. This was charged as Count I. Ellis argues this corroboration of Count I also serves
to corroborate Counts II and III because it indicated Victim was truthful in her testimony.
The evidence at trial was that Ellis was a close family friend and was frequently over at
Victim’s house during some of the time period encompassed by the GPS tracking. This evidence
was persuasive without the GPS tracking records. As shown in the facts section of this opinion,
the evidence of Ellis’ guilt was overwhelming at trial. The phone records show a large number of
calls and messages exchanged between Victim and Ellis. The messages were sexually explicit and
13
referenced past sexual contact between Victim and Ellis. Girlfriend was concerned about Ellis’
relationship with Victim and reached out to others to express her concern. Mother, Girlfriend, and
Stepfather all went to the police with concerns and cooperated with the police. Victim’s delayed
disclosure was explained by an expert witness. Further, evidence establishing that Ellis had
previously engaged in similar acts of sexual intercourse with a minor female victim is evidence
the jury was permitted to consider to establish Ellis’ propensity to commit such offenses. Mo.
Const. art. I, section 18(c) (“[I[n prosecutions for crimes of a sexual nature involving a victim
under eighteen years of age, relevant evidence of prior criminal acts … is admissible for the
purpose of corroborating the victim’s testimony or demonstrating the defendant’s propensity to
commit the crime with which he or she is presently charged.”). Even if the admission of the GPS
records and Maguire’s testimony was error, it was not prejudicial. The point is denied.
Point III
In his third point on appeal, Ellis claims the trial court abused its discretion in admitting T-
mobile calls records and a records custodian’s form letter, Exhibits 18 and 61, and Mother’s
testimony as to the content of the calls records. He states that no affidavit from a records custodian
was admitted and the State did not call a witness to testify regarding the reliability and accuracy
of the process by which the records were generated. Ellis argues that there is a reasonable
probability that the trial court’s error affected the outcome of the trial because the State used them
to prove that there were a high number of texts and calls between Ellis and Victim and to
corroborate Victim and Mother’s testimony.
Mother testified that she received and paid Victim’s T-Mobile bills, Mother’s name was on
the statement and service plan, and Mother had access to the account. State’s Exhibit 18 were the
call records for Victim’s cell phone. Mother’s name was on the record, and the records covered
14
the period of time from January 1, 2016, to the end of March 2016. Mother testified the records
were a fair and accurate record of the phone records for Victim’s phone during that period of time.
When the State moved for the admission of Exhibit 18, defense counsel objected on several
grounds, including that State’s Exhibit 18 was a business record, Mother was not the records
custodian and could not provide a foundation for the admission of the records, and no affidavit of
the records custodian was attached to the records. A form letter (Exhibit 61) was attached to the
records from the T-Mobile records custodian, but no affidavit or sworn statement was attached to
the records.
The prosecutor argued that Exhibit 61 was signed by the custodian of records and that he
had certified that they were true and accurate records of the T-Mobile account. The records
custodian also acknowledged that he understood “that if any of the statements made by [him]
[t]herein [were] willfully false, [he] [was] subject to punishment.” Additionally, the custodian of
records stated in the exhibit that the “records were made at or near the time of the occurrence of
the matters set forth by (or from information transmitted by) a person with knowledge of those
matters” and that the “records were kept in the course of regularly conducted business activity”
“as a regular practice.” The prosecutor argued that the affidavit substantially complied with the
requirements of section 490.692.
In addition, the State provided an affidavit (Exhibit 62) that morning to defense counsel
and the trial court. However there were no documents attached to the affidavit provided that
morning. The prosecutor argued that the affidavit was “exactly the same in form as the affidavit
that [the defense] [was] put on notice of at the time of discovery.”
The trial court admitted State’s Exhibit 18. The trial court stated that Mother provided the
necessary foundation, and, in addition, the trial court considered the form letter attached to the
15
records “to be an affidavit that substantially complies with the statute” The court found that the
letter (Exhibit 61) and the affidavit (Exhibit 62) “appear . . . to be identical except that there’s a
cursive signature as opposed to an electronic signature . . . [a]nd then there’s a notary signature on
it, as well as a stamp . . . .”
Section 490.680 states:
A record of an act, condition or event, shall, insofar as relevant, be competent
evidence if the custodian or other qualified witness testifies to its identity and the
mode of its preparation, and if it was made in the regular course of business, at or
near the time of the act, condition or event, and if, in the opinion of the court, the
sources of information, method and time of preparation were such as to justify its
admission.
“Section 490.680 … sets forth the foundational requirements for a document to be admitted under
the business record exception to the hearsay rule.” C & W Asset Acq., LLC v. Somogyi, 136 S.W.3d
134, 138 (Mo. App. S.D. 2004). “When the enumerated statutory requirements are met, the statute
invests the record with a presumptive verity, and so excepts them from the hearsay rule.” Id.(internal quotation marks omitted). “The trial court has broad discretion in determining whether a
party properly complied with this provision.” Id. “Thus, the bottom line regarding the
admissibility of the business records is the discretionary determination by the trial court of their
trustworthiness.” Id. (internal quotation marks omitted).
Instead of relying of the testimony of the custodian of records or other witness, an affidavit
may be submitted. Section 490.692 states:
1. Any records or copies of records reproduced in the ordinary course of business
by any photographic, photostatic, microfilm, microcard, miniature photographic,
optical disk imaging, or other process which accurately reproduces or forms a
durable medium for so reproducing the original that would be admissible under
sections 490.660 to 490.690 shall be admissible as a business record, subject to
other substantive or procedural objections, in any court in this state upon the
affidavit of the person who would otherwise provide the prerequisites of sections
16
490.660 to 490.690, that the records attached to the affidavit were kept as required
by section 490.680.
2. No party shall be permitted to offer such business records into evidence pursuant
to this section unless all other parties to the action have been served with copies of
such records and such affidavit at least seven days prior to the day upon which trial
of the cause commences.
3. The affidavit permitted by this section may be in form and content substantially
as follows:
THE STATE OF __________
COUNTY OF __________
AFFIDAVIT
Before me, the undersigned authority, personally appeared .........., who, being by
me duly sworn, deposed as follows:
My name is .........., I am of sound mind, capable of making this affidavit, and
personally acquainted with the facts herein stated:
I am the custodian of the records of ........... Attached hereto are .......... pages of
records from ........... These .......... pages of records are kept by .......... in the regular
course of business, and it was the regular course of business of .......... for an
employee or representative of .......... with knowledge of the act, event, condition,
opinion, or diagnosis recorded to make the record or to transmit information thereof
to be included in such record; and the record was made at or near the time of the
act, event, condition, opinion or diagnosis. The records attached hereto are the
original or exact duplicates of the original.
______________________
Affiant
In witness whereof I have hereunto subscribed my name and affixed my official
seal this .......... day of .........., 20 ....
_________________________________________________________________
(Signed) (Seal)
“This Section provides a practical way to avoid the necessity of a personal appearance by a records
custodian.” C & W Asset Acq., LLC, 136 S.W.3d at 138 (internal quotation marks omitted). “Upon
17
compliance with §§ 490.680 and 490.692, business records may be admitted into evidence without
any additional direct testimony.” Id. (internal quotation marks omitted). The court’s decision
whether to admit the business records remains a discretionary determination of the trustworthiness
of the records” Id. (internal quotation marks omitted). “The ultimate determination is whether in
the opinion of the trial court the sources of the documents justify [their] admission.” Id. at 139.
“The Missouri Business Records as Evidence Law is designed to facilitate the admission of
documents which experience has demonstrated to be trustworthy.” Id. at 140 (internal quotation
marks omitted). “The focus is on the character of the records with consideration for certain
earmarks of reliability.” Id. (internal quotation marks omitted).
In State v. Simmons, 270 S.W.3d 523, 530 (Mo. App. W.D. 2008), the defendant objected
that business records were accompanied by copies of the business record affidavits instead of
original affidavits. “The prosecuting attorney informed the court that the original affidavits had
been filed with the court without any records attached and that copies of the affidavits were now
attached to the exhibits.” Id. “Although the prosecutor did not provide a satisfactory explanation
as to why this had occurred, he assured the court that the original affidavits were at one time
attached to the records the State sought to introduce and that the copies were exact duplicates of
the original affidavits.” Id. “Additionally, the original affidavits were in the trial court’s file, and
the court had an opportunity to compare the originals with the copies.” Id. at 530-31. “The court
determined that the copies appeared to match the originals and ruled that the exhibits were
admissible.” Id. at 531. This court concluded, “[a]lthough we do not condone the prosecutor’s
method of filing the original affidavits separately from the records and then attaching copies of the
affidavits to the exhibits, we are unable to find that the trial court’s ruling was against the logic of
the circumstances or indicated a lack of careful consideration.” Id. “The record shows that the
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trial court heard extensive arguments on this issue both during trial and before it ruled on
[defendant’s] motion for a new trial.” Id. “The court indicated that it was concerned about the
manner in which the prosecutor handled the exhibits, but ultimately found the copies of the
affidavits and the records to which they were attached to be reliable.” Id. “Under this combination
of circumstances, we cannot say that the trial court abused its discretion in admitting the exhibits.”
Id.This current case involves a situation where the State provided a business record affidavit
in compliance with the seven day deadline in section 490.692.2 but the affidavit was not notarized.
The State provided a notarized affidavit on the day of trial, but that was outside the timeline
required in section 409.692.2. See State v. Mack, 903 S.W.2d 623, 631 (Mo. App. W.D. 1995) (the
seven day requirement in section 490.692.2 is more than a notice requirement, it helps alert the
defense of the potential testimony of the records custodian, and it is plainly required by the statute).
The initial affidavit (Exhibit 61) proffered by the State was not notarized, but it did contain
a declaration by the custodian of records for T-Mobile that the records for the particularly identified
number were “true and complete copies of records maintained by T-Mobile,” that they were “made
at or near the time of the occurrence of the matters set forth by (or from information transmitted
by) a person with knowledge of those matters,” and that they were “kept in the course of regularly
conducted business activity” “as a regular practice.” The records custodian also declared, “I
hereby certify that the foregoing statement made by me is true. I understand that if any of the
statements made by me herein are willfully false, I am subject to punishment.” See section 575.060
(“A person commits the offense of making a false declaration if … such person . . . [s]ubmits any
written false statement, which he or she does not believe to be true . . . [o]n a form bearing notice
… that false statements made therein are punishable . . . .”); section 492.060 (“In all cases in which
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an oath or affirmation is required or authorized by law, every person swearing, affirming or
declaring, in whatever form, shall be deemed to have been lawfully sworn . . . .”).
The records custodian certified that the records were reliable and accurate. The records
custodian later swore this in a notarized affidavit. Defense counsel received the records and
Exhibit 61 more than seven days before trial. This was sufficient notice for the defense to subpoena
the records custodian to appear at trial to be cross examined if Ellis wanted to challenge the
reliability of the phone records. Defense counsel did not request a continuance to allow the records
custodian to be subpoenaed to address any prejudice he believed was caused. Mother testified that
she had access to the phone records as the account holder and that the records being admitted were
a fair and accurate record of the phone records for Victim’s phone during the relevant period of
time. The court found that all of this supported a finding that the phone records were accurate and
reliable and should be admitted. We do not find the trial court abused its discretion in making that
finding. The point is denied.
Point IV
In his fourth point on appeal, Ellis claims the trial court abused its discretion and plainly
erred in admitting the screenshots and photographs of the texts on Victim’s tablet, Exhibits 2 and
17. He states that the completeness and author of the texts were in dispute, the tablet was the best
evidence of the complete conversation, and the tablet was no longer operational due to the State’s
negligence in storing the tablet. Ellis argues that there is a reasonable probability that the trial
court’s error affected the outcome of the trial and that manifest injustice occurred because the State
used Exhibits 2 and 17 to corroborate Victim’s testimony and as independent proof of guilt.
Ellis objected to Exhibit 2 on the basis that the actual tablet was the best evidence. He did
not object to Exhibit 17 on that basis, however. Instead, he objected to Exhibit 17 on the basis of
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hearsay. He later objected “based on the reasons that I have made objections to.” “To preserve an
objection to evidence for review, the objection must be specific, and the point raised
on appeal must be based upon the same theory.” State v. McKibben, 998 S.W.2d 55, 59 (Mo. App.
W.D. 1999) (internal quotation marks omitted). Accordingly, Ellis requests plain error review with
respect to the trial court’s admission of Exhibit 17.
The tablet was stored in the Kansas City Police Department’s property and evidence
warehouse. On August 23, 2018, there was a fire at the warehouse while the tablet was present.
The fire was not an intentional act. The tablet was damaged when the sprinkler system went off,
and the tablet would no longer turn on.
Mother testified that she took pictures of the tablet while she was sitting at the police
station. They were introduced as Exhibit 17. Mother’s pictures did not encompass all of the
messages on the tablet.
Sergeant Cranston took possession of the tablet from Mother. He testified that he was
trained as to two primary ways to collect evidence from devices like cell phones or tablets: 1)
connecting the device to a computer system that obtains a “dump” of all of the content on the
device; or 2) manually examining the contents. Because he did not have the capability of
connecting the device to a computer system at the time he first received the tablet, Sergeant
Cranston used the tablet to take screenshots of the messages and then saved them to a case file on
the police network drive. He tried to capture the complete conversation. The screenshots were
admitted as Exhibit 2. One of the text messages in the pictures Mother took did not appear in the
screenshots Sergeant Cranston took. He was cross examined about the discrepancy and admitted
he must have missed that message.
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Victim testified that the messages in Exhibit 2 were a fair and accurate reflection of the
messages she exchanged on the tablet. Victim believed she was exchanging messages with Ellis.
Detective Stickler testified that he took the tablet to the Regional Computer Forensics
Laboratory (“RCFL”) on February 7, 2018, to see if anything else could be extracted from the
tablet. No new information was obtained from the extraction. Detective Stickler also testified that
the tablet had been secured in the police property room for approximately seven months before the
fire and that defense counsel would have been permitted to examine the tablet during that time.
The Deputy Director of the RCFL confirmed that the extractions were performed correctly
without any errors, though the final step of the file system extraction had been missed. That
omission would not have affected either the quality or amount of data recovered, however.
“The ‘best evidence’ rule is that generally the terms of a document must be proved by
production of the original document.” Boroughf v. Bank of Am., N.A., 159 S.W.3d 498, 503 (Mo.
App. S.D. 2005) (internal quotation marks omitted). “The best evidence rule applies only when
the evidence is offered to prove the terms or contents of a writing or recording.” Id. (internal
quotation marks omitted). “In other words, the principle is limited to proof of the operative terms
of substantive written documents.” Id. (internal quotation marks omitted). “Generally, this
involves a witness purporting to testify as to his or her observation of the operative terms of a
substantive written document.” Id. (internal quotation marks omitted). “The principal reason for
the rule is the danger of mistransmission of the contents of a writing when evidence other than the
writing itself is offered for the purpose of proving its terms.” Id. (internal quotation marks
omitted). “A copy reproduced by a photographic duplicating process is not admissible under the
best evidence rule.” Id. (internal quotation marks omitted). “The trial court of course, is allowed
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broad discretion in determining whether the best evidence rule should be applied.” Id. (internal
quotation marks omitted).
“[T]he best evidence rule does not preclude the introduction of secondary evidence.” Id.(internal quotation marks omitted). “Secondary evidence may ... be admitted if the offering party
demonstrates that the primary evidence is lost or destroyed, is outside the jurisdiction, is in the
possession or control of an adversary, or is otherwise unavailable or inaccessible.” Id. (internal
quotation marks omitted). “The trial court is vested with wide discretion in determining the
sufficiency of a foundation for the introduction of secondary evidence.” Id. (internal quotation
marks omitted). “When dealing with copies of original documents, the correctness of a copy may
be proved by the testimony of a person who has compared the copy with the original and found it
to be correct.” Id. at 504.
“In particular, a photocopy as secondary evidence is admissible if there is a foundation
showing that: ‘(1) the original is unavailable, (2) the unavailability is not the proponent's fault, and
(3) the secondary evidence is trustworthy.” Id. at 503 (internal quotation marks omitted). It is
undisputed that the tablet is unavailable. “The state satisfies the second requirement if it can prove
that it has not acted in bad faith to prevent the introduction of the original.” State v. Rhodes, 869
S.W.2d 797, 799 (Mo. App. W.D. 1994) (internal quotation marks omitted). While Ellis
characterizes the fire as being the result of the State’s negligence, it is undisputed that the fire and
resulting water damage from the sprinkler were not the result of bad faith action on the part of the
State.
The last prong is whether Exhibits 2 and 17 are trustworthy. Ellis argues that Exhibits 2
and 17 are not trustworthy because they were not complete depictions of the messages on the
tablet. As discussed above, the primary purpose of the best evidence rule is to prevent
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mistransmission of the contents of a writing. Boroughf, 159 S.W.3d at 503. Ellis does not argue
that the contents of Exhibits 2 and 17 do not accurately reflect the wording of the messages they
portray. Instead, his argument is focused on missing messages. The messages in this case were
discrete, separate messages. They were not one long message or one long communication. That
there are messages not documented does not render the ones that were documented untrustworthy.8
Ellis also argues that a full depiction of the messages on the tablet could have demonstrated
that someone other than Ellis sent the texts. Victim testified that Ellis called her by a nickname in
the photographed messages that he always used for her. The photographed messages contained
the messages Girlfriend sent to Victim when she discovered the messages between Victim and
Ellis. The messages indicated that calls were made in the application at the times Victim testified
she and Ellis called each other. One of the messages in the exhibit referred to using the Xbox as a
means of communication, which was consistent with Victim’s testimony that she had previously
used the Xbox to communicate with Ellis. One of the messages asked if Victim missed “my tongue
ring” which was consistent with the fact that Ellis had a tongue ring.
Victim testified that Ellis referred to himself as “Daddy” in the messages, and she used the
name for him in the messages because he liked it. Victim testified that she referred to Stepfather
as her “stepdad” and never as “daddy.” Mother and Stepfather confirmed that with their testimony.
While Ellis argued that Stepfather sent the messages, Victim testified that Stepfather was never
sexually inappropriate to her.
The messages in Exhibits 2 and 17 are not barred by the best evidence rule. Moreover, a
foundation existed that the messages accurately reflected the messages they depicted. Ellis’
8
We note that the evidence at trial was that Victim deleted messaged between herself and Ellis many times
and the content of those messages was never discovered.
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argument that he was unfairly prevented from proving that he was not the sender of the messages
is without merit. The trial court did not abuse its discretion in admitting Exhibits 2 and 17. The
point is denied.
Conclusion
The judgment is affirmed.
Anthony Rex Gabbert, Judge
All concur.
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