The Kindergarten, Facebook and "Peace Disturbance"

This post examines a recent opinion from the U.S. District Court for the Eastern District of Missouri: Ross v. City of Jackson, 2017 WL 435770. The U.S. District Court Judge who has the case begins the opinion by explaining that

[t]his case stems from Plaintiff's arrest after he posted a comment on Facebook in response to a photographic meme on a friend's Facebook page depicting various guns with an explanation of the intended use for each gun under each image. (Pl.'s Statement of Uncontroverted Material Facts [`SUMF’] ¶¶ 6, 8–11, 36, ECF No. 38) The meme was copied or shared from a Facebook page associated with 2nd Amendment rights. (Pl.'s SUMF ¶ 7) Below the image of an assault rifle, Plaintiff commented, `Which one do I need to shoot up a kindergarten?’ (Pl.'s SUMF ¶¶ 10–12) Plaintiff meant the comment to be a `satirical question’ to make a point that the post was ridiculous. (Defs.' SUMF ¶¶ 40–42, ECF No. 34) Plaintiff commented on the evening of January 25, 2015, and within hours after Plaintiff posted the comment, the Facebook post and his comment were deleted from Facebook. (Defs.' SUMF ¶ 16, Pl.'s SUMF ¶ 16)

Plaintiff is a supporter of gun control measures as a means to reduce gun violence. (Pl.'s SUMF ¶ 3) He is also politically active and uses Facebook to express his political beliefs and views. (Pl.'s SUMF ¶ 2) He feels satire and humor are powerful ways to express political views, and he is frequently outspoken with friends and co-workers about lax firearm regulations. (Defs.' SUMF ¶¶ 41, 45–49)

On January 26, 2015, the day after Plaintiff posted the comment, the Jackson Police Department became aware of Plaintiff's Facebook comment. (Pl.'s SUMF ¶ 19) Defendant Officer Ryan Medlin (`Medlin’) was employed as a law enforcement officer with the Jackson Police Department, located in the Defendant City of Jackson, Missouri (`City of Jackson’). (Pl.'s SUMF ¶ 20) Medlin was not on duty that day, as he was on medical leave due to a work-related injury. (Pl.'s SUMF ¶ 21) However, his wife had received a text message with the Facebook post and Plaintiff's comment, and she showed the image to Medlin. (Pl.'s SUMF ¶¶ 22–24) Medlin then contacted Defendants Officer Anthony Henson (`Henson’) and Officer Toby Freeman (`Freeman’), fellow law enforcement officers with the Jackson Police Department. (Pl.'s SUMF ¶ 27)

Henson and Freeman were also off-duty that day. (Pl.'s SUMF 28) The Defendants did not know Plaintiff personally but believed there was a possibility that Plaintiff could shoot up a kindergarten. (Defs.' SUMF ¶¶ 113–117, 119–122, 128–129, 134) Wade Bartels, Ed. D., was an Associate Superintendent of Finance/Business Operation for the Jackson School District and was notified of the Facebook post. (Defs.' SUMF ¶¶ 135–137) He contacted the police and considered the possibility of locking down the district schools with prekindergarten and kindergartens the morning after the post because he regarded the comment as a threat. (Defs.' SUMF ¶ 139)

Ross v. City of Jackson, supra.

The opinion goes on to explain that

[a]lso on January 26, 2015, Plaintiff went to work at the Casey's General Store in Fruitland, Missouri, a township just outside of the City of Jackson. (Defs.' SUMF ¶¶ 2, 50) While at work, Defendants Henson and Freeman, along with an officer from the Cape Girardeau County Sheriff's Department, showed up at Casey's and proceeded to arrest Plaintiff for making a terroristic threat against a kindergarten. (Defs.' SUMF ¶¶ 51–56; Pl.'s SUMF ¶¶ 34–39) Plaintiff told the officers that `[t]his is not serious. I made a joke.’ (Defs.' SUMF ¶ 57) Plaintiff was taken to the Jackson Police Department and was interrogated by Defendant Medlin. (Pl.'s SUMF ¶ 39)

Defendant Medlin advised Plaintiff of his Miranda rights, and Plaintiff provided a written statement, indicating that the question posted on Facebook was satirical and that people interpreted his post as the opposite of the point that he was trying to make, which was that firearm regulations in the United States were lax. (Pl.'s SUMF ¶¶ 40–42; Defs.' SUMF ¶¶ 65–81) After the interview concluded, Plaintiff was taken to a holding cell, where he stayed until the next day when he was transferred to the Cape Girardeau County Jail on a warrant for peace disturbance. (Defs.' SUMF ¶¶ 82, 84–85) Plaintiff was held in the county jail for approximately three days before he posted bond and was released. (Pl.'s SUMF ¶ 56)

Ross v. City of Jackson, supra.

The judge then explains that

Defendant Medlin provided a Probable Cause Affidavit to support the request for an arrest warrant. (Pl.'s SUMF ¶ 47; Defs.' SUMF ¶¶ 110–112) In the statement, Medlin did not identify a particular person as the target of the statement or any particular victim. (Defs.' SUMF ¶ 110) The statement quoted Plaintiff's description of why he posted the comment and what the comment meant, including that it was distasteful and intended to be satirical; it was in reference to the Sandy Hook gun massacre; and that Plaintiff is a pacifist who supports gun control and believes gun control will keep people safer. (Defs.' SUMF ¶ 111) On January 27, 2015, Assistant Prosecuting Attorney for Cape Girardeau County prepared an information and warrant, which an associate circuit court judge signed. (Pl.'s SUMF ¶¶ 53–55; Pl.'s Ex. 28, ECF No. 38–28) The State of Missouri charged Plaintiff with the Class B misdemeanor of Peace Disturbance in violation of Mo. Rev. Stat. §574.010. (Pl.'s SUMF ¶ 57) On February 2, 2015, Plaintiff entered a not guilty plea in Case Number 15CG–CR00237. (Pl.'s SUMF ¶ 58) On April 7, 2015, Assistant Prosecuting Attorney Frank Miller dismissed the case against Plaintiff by nolle prosequi. (Pl.'s SUMF ¶ 59)

Ross v. City of Jackson, supra.

That was the end of the state criminal case, but on

June 5, 2015, Plaintiff filed a three-count Complaint in federal court, alleging constitutional violations of his civil rights under 42 U.S. Code § 1983. Specifically, Plaintiff alleges that he was arrested, incarcerated, and criminally prosecuted for engaging in constitutionally protected free speech and was detained and arrested without probable cause in violation of the First, Fourth, and Fourteenth Amendments to the United States Constitution. (Compl. ¶ 1, ECF No. 1) Plaintiff also brings a municipal liability claim against Defendant City of Jackson for intentionally violating Plaintiff's constitutional rights. (Compl. ¶¶ 33–40) He seeks injunctive relief, along with nominal, compensatory, and punitive damages. (Compl. ¶ 1)

Defendants filed a Motion for Summary Judgment on June 27, 2016, arguing that they are entitled to judgment as a matter of law on all three counts because no genuine issue of material fact exists. Defendants also move for summary judgment on the basis of qualified immunity. On that same date, Plaintiff filed a Motion for Partial Summary Judgment, alleging that he is entitled to judgment as a matter of law against the Defendant police officers for detaining, arresting, and imprisoning Plaintiff without probable cause and for intentionally violating his right under the First Amendment to be free from arrest for constitutionally protected acts of expression.

Ross v. City of Jackson, supra.

The opinion then explains that

[p]ursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment only if all of the information before the court show `there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.’ Fed.R. Civ. P. 56(c). See Celotex Corp. v. Catrett, 477U.S. 317, 322 (1986). The court must view the evidence and all reasonable inferences in the light most favorable to the non-moving party. Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir. 1995).

The moving party has the initial burden to establish the non-existence of any genuine issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v. Associated Elec. Co–op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). Once this burden is discharged, if the record does in fact bear out that no genuine dispute exists, the burden then shifts to the non-moving party, who must set forth affirmative evidence and specific facts showing there is a genuine dispute on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249(1986).

When the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed. R. Civ .P. 56(e). The non-moving party `must do more than simply show that there is some metaphysical doubt as to the material facts.’ Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475U.S. 574, 586 (1986). In fact, the non-moving party must present sufficient evidence favoring the non-moving party which would enable a jury to return a verdict for that party. Anderson, 477 U.S. at 249; Celotex, 477 U.S. at 324. Self-serving, conclusory statements, standing alone, are insufficient to defeat a well-supported motion for summary judgment. O'Bryan v. KTIV Television, 64 F.3d 1188, 1191 (8th Cir.1995).

Ross v. City of Jackson, supra.

The District Court Judge then began his analysis of Ross’ first cause of action in his Complaint, i.e., that

the individual Defendants, Officers Medlin, Henson, and Freeman, detained, arrested, and imprisoned Plaintiff without probable cause in violation of the Fourth Amendment. Defendants contend that this claim fails because Plaintiff's arrest was supported by probable cause and thus did not violate Plaintiff's Fourth Amendment rights. Defendants also maintain that they are entitled to qualified immunity.

Ross v. City of Jackson, supra.

The District Court Judge began his analysis of the first issue, explaining that

`[q]ualified immunity protects governmental officials from liability for civil damages if they have not violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”’ Akins v. Epperly, 588 F.3d 1178, 1183 (8th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This immunity permits ‘”officers to make reasonable errors,”’ Habiger v. City of Fargo et al., 80 F.3d 289, 295 (8th Cir. 1996), and provides ‘ample room for mistaken judgments.’ Malley v. Briggs, 475 U.S. 335, 343 (1986).’ Borgman v. Kedley, 646 F.3d 518, 522 (8th Cir. 2011). In addition, `[t]he defense protects public officials unless they are “plainly incompetent” or “knowingly violate the law.”’ Id. (quoting Hunter v. Bryant, 502U.S. 224, 229 (1991)).

To determine whether government officials are entitled to qualified immunity, courts consider two factors: `(1) whether the facts alleged, construed in the light most favorable to [the plaintiff], establish a violation of a constitutional or statutory right, and (2) whether that right was clearly established at the time of the alleged violation, such that a reasonable official would have known that her actions were unlawful.’ Keil v. Triveline, 661 F.3d 981, 985 (8th Cir. 2011). The courts have discretion to decide which of the two prongs should be addressed first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). `Although qualified immunity is an affirmative defense, the burden is on the plaintiff to plead, and, if presented with a properly supported motion for summary judgment, to present evidence from which a reasonable jury could find that the defendant officer has violated the plaintiff's constitutional rights.’ Moore v. Indehar, 514 F.3d 756, 764 (8th Cir. 2008) (Beam, J., dissenting) (citations omitted).

Ross v. City of Jackson, supra.

The judge then began his analysis of the Fourth Amendment issue, explaining that the

Fourth Amendment clearly establishes the right of citizens not to be arrested without probable cause. Kuehl v. Burtis, 173 F.3d 646, 649 (8th Cir. 1999). However, `[a] warrantless arrest is consistent with the Fourth Amendment if it is supported by probable cause, and an officer is entitled to qualified immunity if there is at least “arguable probable cause.’” Borgman, 646 F.3d at 522–23 (quoting Walker v. City of Pine Bluff, 414 F.3d 989, 992 (8th Cir. 2005)). `An officer has probable cause to make a warrantless arrest when the totality of the circumstances at the time of the arrest “are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense.”’ Id. at 523 (quoting Fisher v. Wal–Mart Stores, Inc., 619 F.3d 811, 816 (8th Cir. 2010)). Further, arguable probable cause exists when an officer mistakenly makes an arrest under the belief that he or she has probable cause if such mistake is objectively reasonable. Id. (citation omitted). `”As probable cause is determined at the moment the arrest was made, any later developed facts are irrelevant to the probable cause analysis for an arrest.”’ Fisher, 619 F.3d at 816 (quoting Amrine v. Brooks, 522 F.3d 823, 832 (8th Cir. 2008)).

Ross v. City of Jackson, supra.

The judge then began the process of applying the principles and holdings outlined above to the facts in this case, explaining, initially, that

Defendants Medlin, Henson, and Freeman had at least arguable probable cause to arrest Plaintiff without a warrant and are thus entitled to qualified immunity. The facts demonstrate that below a Facebook post that included pictures of guns, Plaintiff wrote in the comment section, `Which one do I need to shoot up a kindergarten?’ The Defendants became aware of the post, and arrested Plaintiff for suspicion of making a terrorist threat under Missouri law. Section 574.115  of the Missouri Revised Statutes provides:

`A person commits the crime of making a terrorist threat if such person communicates a threat to cause an incident or condition involving danger to life, communicates a knowingly false report of an incident or condition involving danger to life, or knowingly causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life: . . .(3) With reckless disregard of the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation. . . .

Mo. Rev. Stat. § 574.115.1(3) (2006). `For purposes of this section, “threat” includes an express or implied threat.’ Mo. Rev. Stat. § 574.115.3 (emphasis in original).

Defendants maintain that, upon viewing the Facebook post, a police officer could reasonably conclude that the communication implied that Plaintiff would shoot up a kindergarten with a firearm, demonstrating reckless disregard concerning the risk of causing the evacuation, quarantine, or closure of any portion of a kindergarten. While Plaintiff contends that his `admittedly distasteful’ comment was intended to be satirical, nothing in the post indicated that the comment was a joke. All three officers stated that the comment identified kindergarteners and that the question asking which gun would be best to shoot up a kindergarten was a statement expressing the threat of shooting up a kindergarten. (Defs.' SUMF ¶¶ 113, 119, 121–122, 128–129) Medlin stated that he believed Plaintiff posed a danger to kindergarteners attending a Jackson school. (Defs.' SUMF ¶¶ 113, 116–117) Further, the school superintendent considered locking down the schools with kindergartens after viewing the statement. (Defs.' SUMF ¶¶ 138–39).

Ross v. City of Jackson, supra.

The opinion goes on to explain that

[e]ven if Defendants mistakenly arrested Plaintiff, they are entitled to qualified immunity if they had arguable probable cause to make a warrantless arrest. Borgman, 646 F.3d at 522–23. `Arguable probable cause exists even where an officer mistakenly arrests a suspect believing it is based in probable cause if the mistake is “objectively reasonable.”’ Id. at 523 (citation omitted).

The Court holds that in light of the comment and the totality of the circumstances at the time of the arrest, Plaintiff's arrest did not violate his Fourth Amendment rights. The post contained photos of firearms, and under the photo of an assault rifle, Plaintiff asked which one he would need to shoot up a kindergarten, in reference to the Sandy Hook massacre. An officer could reasonably believe at the time of arrest that Plaintiff was threatening to shoot up an area kindergarten. Fisher, 619 F.3d at 816 (stating that courts look at the totality of the circumstances based on the information available to the officers at the time of the arrest, and any later developed facts are irrelevant to the analysis of probable cause) (quotations and citations omitted).

Ross v. City of Jackson, supra.

The judge went on to address another issue, explaining that

the Court finds that the probable cause affidavit did not violate Plaintiff's Fourth Amendment rights. To the extent that Plaintiff is arguing that Medlin's affidavit in support of the request for an arrest warrant that led to Plaintiff's continued incarceration by Cape Girardeau County without probable cause, the Court finds that Defendants are entitled to qualified immunity on this claim as well. The probable cause statement drafted by Officer Medlin noted the Facebook comment and the photos of firearms, as well as referenced Plaintiff's written statement stating he made a distasteful comment meant to be satirical in reference to the Sandy Hook massacre. Medlin also referenced Plaintiff's written statement that he considered himself a pacifist and supported gun control but that his comment was received with the opposite point he was trying to make. (Pl.'s Ex. 26, ECF No. 38–26)) Medlin then stated that he did not believe Plaintiff would appear in court due to the fact he was a felon on probation and that he believed Plaintiff posed a danger to the crime victims. (Id.) Plaintiff asserts that the probable cause statement was defective in that it included Plaintiff's exculpatory explanation of the comment, did not state Medlin did not believe Plaintiff, did not contain any facts that supported a reasonable rejection of the truth of Plaintiff's statement, and contained no facts that identified the required victim or demonstrated the requisite intent to commit the crime. Plaintiff avers that the probable cause statement reflected a reckless disregard for the truth and thus violated the Fourth Amendment.

Ross v. City of Jackson, supra.

The judge concluded the analysis by explaining that the

Court disagrees with Plaintiff's contention. Nothing in the plain language of the statute requires a specific victim or intent to harm. Section 574.115 of the Missouri Revised Statutes, as was in effect when Plaintiff was arrested, merely required the communication of an implied threat to cause an incident involving danger to life with reckless disregard of the risk of causing the evacuation, quarantine or closure of any portion of a building. Mo. Rev. Stat. §§ 574.115.1 and 574.115.3. Further, whether Medlin did or did not believe Plaintiff is not relevant to the issue of probable cause. Bowden v. Meinberg, 807 F.3d 877, 881–82 (8th Cir. 2015). `Whether probable cause existed, however, is an objective question of law. [Medlin's] subjective belief is irrelevant to whether his affidavit included sufficient facts to establish probable cause.’ Id. at 881. `[Plaintiff's] denial merely created a credibility question; it did not destroy probable cause.’ Id. at 882. Thus, the Court concludes that the individual Defendants are entitled to qualified immunity because no genuine issue of material fact exists from which a reasonable jury could find that the Defendant officers violated the Plaintiff's constitutional rights under the Fourth Amendment. Moore, 514 F.3d at 764 (Beam, J., dissenting).

Ross v. City of Jackson, supra.

For these and other reasons, the judge granted the defendants’ motion for summary judgment and denied Ross’ “motion for partial summary judgment.” Ross v. City of Jackson, supra.

The Aoudad Sheep, Facebook and Criminal Trespass

This post examines an opinion from the Court of Appeals of Texas, El Paso: O’Brien v. State, 2017 WL 360691 (2017).  The court begins the opinion by explaining how, and why, the case arose:

Appellant Jacob O'Brien, his brother Christopher O'Brien, and their friends Seth Winkler and Tyler Bumpers went on a successful hunting trip and returned home with the heads of two aoudad sheep. They posted pictures of their bounty on Facebook. Unfortunately, their hunting trip occurred on the property of Nathan Pickett, who, Appellant admitted, had not given them permission to hunt. Appellant claimed he had been informed that Seth Winkler's father owned the property. The jury disbelieved Appellant's assertion and found him guilty of criminal trespass. The trial court sentenced Appellant to 60 days' in jail and imposed a $500 fine.

O’Brien v. State, supra. In a footnote, the court explains that “Christopher O'Brien was also charged with the same offenses as Appellant, and the cases against the brothers were prosecuted in a single trial.” O’Brien v. State, supra. The opinion went on to explain that

Appellant contends on appeal that that the trial court erred in admitting into evidence two photographs from a game camera showing Appellant, his brother, and his friends on Pickett's property. He also contends the evidence is insufficient to support the jury's verdict.

O’Brien v. State, supra.  As an aside, I should note that this is a long blog post because the opinion is, as lawyers say, very “fact-specific”, i.e., there are a lot of issues of fact that came up in the case.

The Court of Appeals begins its analysis of the defendant’s arguments on appeal by explaining how the prosecution arose:

Nathan Pickett purchased a 300–acre parcel of land in Terrell County from Joan Winkler in April 2011. The property included a cabin, running water, multiple deer blinds, and motorized game feeders. Aoudad sheep had been found on the property since 2012. The property lies more than 20 miles from the nearest highway. The final 10 miles is across a private road, which is guarded by a closed gate marked with a `no trespassing’ sign. Pickett's property in particular is guarded by fencing and a locked front gate bearing a `no trespassing’ sign that is marked with the name `Pickett.’ Numerous other signs also warn against trespassing or hunting on the property, some of which also colorfully warn: `Trespassing may induce lead poisoning,’ `Security provided by Ruger,’ and `Trespassers will be shot; Survivors will be shot again.’

Pickett visited his property about once a month. During a Memorial Day weekend trip in 2013, Pickett installed a game camera. During a subsequent visit in August, Pickett discovered the lock on the entry gate had been shot and was inoperable. Pickett found tire tracks heading around the gate and that someone had moved the tire spikes and boulders that had been installed to prevent vehicles from driving around the gate. Because it was impossible to open the gate, Pickett was forced to drive around the gate, following the newly-discovered tire tracks, in order to travel the remaining quarter mile to his cabin. As soon as his cabin came into view, Pickett discovered the carport gate and gatepost had been knocked down. He also discovered that a striped retractable sun awning had been crudely cut away with a knife. Pickett found drink bottles and empty food cans on the patio and saw that the patio furniture had been moved and firewood had been used. In the fire pit, Pickett located spent shell casings from a 30.06 rifle and a .45 caliber automatic colt pistol, which are not guns he owns.

Pickett had his son retrieve the data card from the game camera and began reviewing the captured images. Pickett found two images depicting four unknown men. Both photographs were date-stamped July 6, 2013, and were admitted into evidence as State's Exhibits 1 and 2, respectively. Pickett testified he did not know Jacob O'Brien, Christopher O'Brien, Seth Winkler, or Tyler Bumpers, and that he had not given them permission to be on his property or to hunt exotic animals or aoudad sheep on his property. Pickett shared the game camera photographs with Joan Winkler, Seth's mother, in the hope that she may recognize the men in the images. Joan Winkler informed Pickett that her son Seth was among the men in the photographs, and according to Pickett, told him that Seth knew that the property had been sold.

Pickett provided the photographs from the game camera to Texas Parks and Wildlife Game Warden Arnold Pinales and informed him that the photographs depicted trespassers who had been poaching on his property without his consent. Warden Pinales testified that aoudad sheep are considered exotic game, and that a regular hunting license is required to legally hunt an exotic animal. In an effort to identify the offenders, the photographs were posted online in various hunting and fishing forums and on Facebook. Pickett gave Warden Pinales the name of Seth Winkler as a possible suspect. Warden Pinales eventually determined that Appellant, Christopher O'Brien, Seth Winkler, and Tyler Bumpers were the four men depicted in the photographs from Pickett's game camera.

O’Brien v. State, supra.

The opinion goes on to explain that

[a]ppellant testified briefly at trial, following his brother Christopher's testimony. Appellant stated that the events happened exactly (`100 percent’) as Christopher had testified. He testified that right before the hunting trip, Christopher invited him along as their `pack rat.’ In a written statement, Appellant stated he had been informed that the property they were going to `was Seth's father's cabin,’ that he had no idea `we were trespassing,’ and that if he had known it `wasn't Seth's property, I would not have gone on that trip.’ Appellant claimed he had no reason to believe the property was not owned by Seth Winkler's father. He trusted his brother, and if Christopher `was going and saying it was okay,’ he was `okay with that.’

Before Appellant testified, Christopher O'Brien had taken the stand and admitted that he had hunted and killed an aoudad on Pickett's property without his consent. He also admitted that he was one of the individuals in the game camera photos and that everything shown in the photographs was `completely true.’ But Christopher asserted Seth Winkler had informed him that the property belonged to Seth's father. Like Appellant, Christopher also claimed that if Seth had informed him that his father did not own the property, he would have never gone hunting on the property.

O’Brien v. State, supra.

In a footnote appended to the next to the last sentence in the paragraph above, the court explains that

[a]ppellant's mother testified that she was present when Seth and Christopher were planning the hunting trip and Seth informed her that the property belonged to Seth's father and that he had permission to hunt on the property at any time.

O’Brien v. State, supra.

The court then continues with its narrative of the facts in the case, explaining that

Christopher testified that after driving six or seven hours, they arrived at the property late at night. Christopher claimed they accessed the property from its southeast corner along the rugged `back drive,’ which Seth said was the original drive used when they were building the cabin. Christopher denied that there were any fences or gates, or that he saw any `no trespassing’ signs, on the south side of the property and claimed that he never saw any signs bearing Pickett's name. Christopher said he was convinced from the moment he set foot on the property that it was Seth's father's property, because it was exactly as Seth had described. Christopher admitted, however, that `I was a little uncertain because, you know, a story could be too—you know, too good to be true at times.’

According to Christopher, the following day after the hunt, they drove out of the property the opposite way toward the front gate. When they reached the front gate, Christopher for the first time noticed a `no trespassing’ sign, but he did not believe it had Pickett's name on it. Christopher testified that Seth Winkler had told him before they left on the hunting trip that he had a set of keys to the front gate. But when they arrived at the front gate to leave, Seth informed him they would have to drive around it because he didn't have the keys to open the gate. Christopher concluded `after the fact’ that `there were never any keys.’ Christopher claimed that to get out, he drove his truck around and over the boulders by the front gate and did not move them, noting that his truck had a six-inch lift kit that allowed him to drive right over the boulders.

Christopher admitted that they left trash on the property. He also admitted that the carport gate had been moved. He also stated that when they were loading the aoudad heads into the back of his truck, Seth pulled or cut down the striped sun awning because, according to Seth, his father was going to replace it anyway. He denied that they used the striped sun awning to cover the aoudad heads so that they would not be detected on the return trip, but rather Seth did not want Christopher's truck bed to get bloody. Christopher acknowledged that an exotic aoudad hunt would normally cost approximately $1,500 or more, but he did not see any problem with hunting at no cost on what he believed was the property of Seth's father. Christopher admitted that he had posted a photograph on Facebook of himself and Seth holding two aoudad heads with the caption, `Got 'em.’

Pickett testified on rebuttal that there is a gate on the southeast side of his property that is always locked. He also explained that it would have been impossible for a vehicle to reach his cabin from the southeast due to a massive, 200–foot deep canyon located between the southeast gate and the cabin.

O’Brien v. State, supra.

The Court of Appeals then began its analysis of the facts, the law and the issues in the case:

In Issue One, Appellant contends the trial court erred in admitting the two game camera photographs showing his presence on the property (State's Exhibits 1 and 2) because they were not properly authenticated and because their admission violated his Sixth Amendment right to confrontation. We conclude that later-admitted evidence authenticated the photographs and rendered any error in their admission harmless, and that Appellant failed to preserve his argument that their admission violated his right to confrontation.

O’Brien v. State, supra.

The court went on to outline the “applicable law” and the “standard of review” it was required to apply to the issues in this appeal:

Authentication is a condition precedent to admissibility of evidence. Tienda v. State, 358 S.W.3d 633, 638 (Tex.Crim.App. 2012). To properly authenticate evidence, `the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.’ TEX. R. EVID. 901(a). The trial court decides the threshold question whether the proponent has supplied sufficient evidence to support a reasonable jury determination that the proffered evidence is authentic. Tienda, 358 S.W.3d at 638; TEX. R. EVID. 104(a) (whether to admit evidence is a preliminary question to be decided by the court). In performing its gate-keeping function, the trial court need not be persuaded that the proffered item of evidence is authentic. Tienda, 358 S.W.3d at 638. The trial court must only decide that the proponent has supplied facts sufficient to support a reasonable jury determination that the evidence is authentic. Id. The ultimate question whether an item of evidence is what its proponent claims it is a question for the jury. Id.

We review a trial court's ruling on the preliminary question of admissibility for abuse of discretion. Id. We will not interfere with a trial court's ruling that a jury could reasonably find the proffered evidence to be authentic if the ruling is within the zone of reasonable disagreement. Id.

O’Brien v. State, supra.

The Court of Appeals began its analysis of the issues in the case by explaining that

Appellant contends the trial court abused its discretion because the photographs were not properly authenticated prior to admission. The photographs were offered through Warden Pinales who admitted that Pickett had retrieved the images from the game camera and provided them to him and that he was not present when the photographs were taken or subsequently developed. Appellant argues that Warden Pinales had no personal knowledge of how the photographs were taken, what equipment was used to take them, whether that equipment was in good-working order, whether the photographs were a true and correct depiction of what came from the camera's digital information card, or whether the photographs had been manipulated in any manner. There is no requirement, however, that the witness who authenticates a photograph have been the photographer or present when the photograph was taken or developed. Pena v. State, 467 S.W.3d 71, 75 (Tex.App.–San Antonio 2015, no pet.). All that is required for authentication is testimony that the photograph accurately represents the person, object, or scene depicted in the photography.  See Delacerda v. State, 425 S.W.3d 367, 393 (Tex. App.–Houston [1st Dist.] 2011, pet. ref'd); see also Huffman v. State, 746 S.W.2d 212, 221–22 (Tex.Crim.App. 1988).

O’Brien v. State, supra.

The opinion goes on to explain that

Appellant correctly points out that Warden Pinales did not testify that the photographs accurately represented the persons, objects, or scene depicted before the photographs were admitted into evidence. Evidence prematurely admitted in error, however, may become admissible or be rendered harmless by subsequent evidence. James v. State, 102 S.W.3d 162, 175 (Tex.App.–Fort Worth 2003, pet. ref'd). `A conviction will not be reversed for error in receiving evidence that was not admissible when received but which became admissible at a subsequent stage.’ Romo v. State, 700 S.W.2d 633, 634 (Tex.App.–Houston [14th Dist.] 1985, no pet.). Any error in admitting photograph into evidence without proper authentication is cured when a witness later testifies that he was present when photograph was taken. Davis v. State, 687 S.W.2d 78, 82 (Tex.App.–Dallas 1985, pet. ref'd). After the trial court had admitted the photographs depicting Appellant's presence on Pickett's property, Appellant admitted that he had been present on Pickett's property, rendering any error in their admission harmless. Christopher also admitted that he was present on Pickett's property in July 2013 and that everything shown in the photographs was `completely true,’ establishing that the photographs accurately represented the persons depicted therein. These subsequent admissions by Appellant and Christopher provided the necessary evidence to authenticate the photographs and rendered any error in their admission harmless.

O’Brien v. State, supra.

The court went on to address Obrien’s next argument, which was that

[a]ppellant correctly points out that Warden Pinales did not testify that the photographs accurately represented the persons, objects, or scene depicted before the photographs were admitted into evidence. Evidence prematurely admitted in error, however, may become admissible or be rendered harmless by subsequent evidence. James v. State, 102 S.W.3d 162, 175 (Tex.App.–Fort Worth 2003, pet. ref'd). `A conviction will not be reversed for error in receiving evidence that was not admissible when received but which became admissible at a subsequent stage.’ Romo v. State, 700 S.W.2d 633, 634 (Tex.App.–Houston [14th Dist.] 1985, no pet.). Any error in admitting photograph into evidence without proper authentication is cured when a witness later testifies that he was present when photograph was taken. Davis v. State, 687 S.W.2d 78, 82 (Tex.App.–Dallas 1985, pet. ref'd). After the trial court had admitted the photographs depicting Appellant's presence on Pickett's property, Appellant admitted that he had been present on Pickett's property, rendering any error in their admission harmless. Christopher also admitted that he was present on Pickett's property in July 2013 and that everything shown in the photographs was `completely true,’ establishing that the photographs accurately represented the persons depicted therein. These subsequent admissions by Appellant and Christopher provided the necessary evidence to authenticate the photographs and rendered any error in their admission harmless.

O’Brien v. State, supra.  In a footnote appended at the end of the last sentence in the paragraph above, the court noted that

[t]here was also other circumstantial evidence showing that State's Exhibits 1 and 2 accurately depicted Appellant and the property. Pickett testified that State's Exhibits 1 and 2 were taken by the game camera he had installed and showed a date stamp of July 6, 2013. Also Warden Pinales testified that he had had taken his own photographs of Pickett's property from the same vantage point as State's Exhibits 1 and 2 and that his photographs fairly and accurately depicted Pickett's property.

O’Brien v. State, supra. 

Next, the court took up O’Brien’s argument that the

Sixth Amendment's Confrontation Clause barred admission of the photographs. The Confrontation Clause bars the admission of out-of-court testimonial statements by a declarant whom the criminal defendant has been unable to confront. Crawford v. Washington, 541 U.S. 36, 50–51, 68 (2004). Appellant argues the photographs are testimonial because Warden Pinales's knowledge of the photographs was based solely on information supplied by Pickett. Both Warden Pinales and Pickett testified at trial, however. They were therefore available to be confronted at trial, and were in fact cross-examined by defense counsel. In any event, a photograph is not an out-of-court testimonial statement, and thus its admission cannot violate the Confrontation Clause. Herrera v. State, 367 S.W.3d 762, 773 (Tex.App.–Houston [14th Dist.] 2012, no pet.) (autopsy photograph is not a testimonial statement); statement); Wood v. State, 299 S.W.3d 200, 214–15 (Tex.App.–Austin 2009, pet. ref'd); TEX. R. EVID. 801(a) (a`statement’ is an oral or written verbal expression, or nonverbal conduct intended by the person as a substitute for verbal expression). More importantly, Appellant has waived any error by failing to raise a Confrontation Clause objection at trial. Appellant objected to admission of the photographs solely based on the lack of proper authentication under the rules of evidence. An objection based on the rules of evidence does not preserve error on Confrontation Clause grounds. Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App. 2005). When the legal basis of a trial objection differs from that on appeal, the issue is not preserved for our consideration. See Lovill v. State, 319 S.W.3d 687, 691 (Tex.Crim.App. 2009); see Clark v. State, 365 S.W.3d 333, 339 (Tex.Crim.App. 2012); see also Yazdchi v. State, 428 S.W.3d 831, 844 (Tex.Crim.App. 2014) (failure to object at trial may waive even errors of constitutional magnitude). We overrule Issue One.

O’Brien v. State, supra. 

The court then took O’Brien’s next argument, which was that

the trial court erred in failing to grant his motion for directed verdict because the State failed to prove the elements necessary to support his conviction for criminal trespass. A challenge to a trial court's ruling on a motion for directed verdict is actually a challenge to the sufficiency of the evidence to support the conviction. Madden v. State, 799 S.W.2d 683, 686 (Tex.Crim.App. 1990).

O’Brien v. State, supra. 

It began its analysis by explaining the standard of review it applies to sufficiency of the evidence (or insufficiency of the evidence) arguments:

We review sufficiency complaints under the legal-sufficiency standard enunciated in Jackson v. Virginia. Fernandez v. State, 479 S.W.3d 835, 837 (Tex.Crim.App. 2016); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010). The relevant inquiry is `whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Fernandez, 479 S.W.3d at 837–38 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979). If a rational fact finder could have so found, we will not disturb the verdict on appeal. Id. at 838; see also Temple v. State, 390 S.W.3d 341, 363 (Tex.Crim.App. 2013).

Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone may be sufficient to establish guilt. Dobbs v. State, 434 S.W.3d 166, 170 (Tex.Crim.App. 2014). The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses. Id. at 170 (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789). When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Id.; see also Clayton v. State, 235 S.W.3d 772, 778 n.12 (Tex. Crim. App.  2007) (observing that it is the fact finder's duty `to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts’).

O’Brien v. State, supra. 

The court then went on to outline what the State’s (the prosecution’s) burden was in this case, noting, initially, that

[w]e measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Miles v. State, 357 S.W.3d 629, 631 (Tex.Crim.App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997)). A hypothetically correct jury charge `accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.’ Id. The Texas Penal Code provides that a person commits criminal trespass if the person enters or remains on or in property of another without effective consent, and the person had notice that the entry was forbidden. TEX. PENAL CODE ANN. § 30.05(a)(1) (West Supp. 2016). Notice that the entry was forbidden can be given by fencing or other enclosure obviously designed to exclude intruders or to contain livestock, or a sign or signs posted on the property indicating that entry is forbidden that are reasonably likely to come to the attention of intruders. TEX. PENAL CODE ANN. § 30.05(b)(2)(B, C) (West Supp. 2016). The information alleged that Appellant `did then and there intentionally and knowingly enter on property of another, to-wit: Nathan Pickett, without the effective consent the owner, Nathan Pickett, and the said Defendant had notice that the entry was forbidden [.]’ Under a hypothetically correct charge, the State was required to prove beyond a reasonable doubt that Appellant intentionally and knowingly entered Pickett's property without his consent and with notice that the entry was forbidden.

O’Brien v. State, supra. 

The Court of Appeals then began its analysis of O’Brien’s sufficiency of the evidence argument, noting, initially, that O’Brien’s argument

on sufficiency of the evidence simply sets out verbatim what he argued to the trial court in his motion for directed verdict. Appellant's brief fails to present any analysis of exactly how the evidence was insufficient. Although the briefing is deficient, we will liberally construe Appellant's brief as attacking the sufficiency of all the elements of criminal trespass.

Pickett's testimony established that he owned the property and that he had not given Appellant and the others permission to enter his property. And Appellant admitted at trial that he had entered Pickett's property without his permission. Appellant's position at trial was that he did not intentionally or knowingly enter Pickett's property without his consent because he had been misinformed that the property belonged to Seth Winkler's father, and that he did not have notice that his entry was forbidden.

O’Brien v. State, supra. 

The court went on to explain that

[a]ppellant's position on intent was buttressed by the testimony of Christopher and his mother that Seth told them the property belonged to his father that Seth had permission to hunt on the property at any time. Appellant claimed that if he had known it was not Seth's property, he would never have gone on the trip. While this testimony constitutes some evidence that Appellant may have lacked the necessary intent or knowledge, the mere existence of a reasonable alternative hypothesis does not render the evidence factually insufficient. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Here, the jury heard other circumstantial evidence of mens rea from which they could reasonably conclude that Appellant knew that the property was not owned by Seth Winkler's father and had knowingly and intentionally entered Pickett's property without his consent.

Christopher claimed that they entered the property at night from the southeast corner and did not encounter any fences, locked gates, or `no trespassing’ signs that would have alerted him that Pickett owned the property. But Pickett testified that entry and access to his cabin was impossible from the southeast and that his property was protected by fencing, locked gates, and numerous no trespassing signs, some of which—like the front gate—were marked with the name `Pickett.’ Pickett testified not only that access was impossible from the southeast corner but also that the lock on the front gate had been shot in an attempt to gain entry and that the rock barriers had been moved to gain access around the gate. The jury could have reasonably inferred from this evidence that the entire hunting party entered not from the southeast, but from the front gate, and knowing the property did not belong to Seth's father, attempted to destroy the lock to gain access, and then moved the barriers in order to drive around the front gate. Christopher also admitted that he and his companions left trash around the cabin, knocked down the carport gate and gatepost, and cut down the distinctive sun awning—actions the jury could have reasonably concluded were inconsistent with a claimed belief that the property was owned by Seth Winkler's father. The jury could have also concluded that the awning was used to cover up the aoudad heads from detection on the return trip, showing knowledge that the aoudad had been illegally hunted. From all this evidence, the jury could have rejected Appellant's assertion that he thought they had permission to enter the property and reasonably concluded that Appellant intentionally and knowingly entered the property knowing it was not owned by Seth Winkler's father.

O’Brien v. State, supra. 

The opinion then goes on to explain that

[p]roof of a culpable mental state generally relies upon circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. 1978); Knight v. State, 457 S.W.3d 192, 199 (Tex.App.–El Paso 2015, pet. ref'd). Ordinarily, proof of a culpable mental state must be inferred from the acts, words, and conduct of the accused and the surrounding circumstances. Ledesma v. State, 677 S.W.2d 529, 531 (Tex.Crim. App. 1984); Knight, 457 S.W.3d at 199. The jury was not required to believe Appellant's claims that he mistakenly believed that the property was owned by Seth's father and not by Pickett. The jury was free to believe some, all, or none of the testimony and other evidence presented. See McFarland v. State, 928 S.W.2d 482, 496 (Tex. Crim. App 1996).  In sum, the evidence was sufficient to allow the jury to reject Appellant's defensive theory of mistake and to conclude that Appellant both knowingly and intentionally entered Pickett's property without his consent.

Likewise the evidence was sufficient to establish that Appellant entered the property with notice that the entry was forbidden. First, the property was protected by fencing and a locked front gate, giving notice that entry was forbidden, and the jury could have reasonably concluded that Appellant and his companions entered the property through the front-gate and not from the southeast as claimed, and that after unsuccessfully attempting to shoot the lock off the front gate, they moved the rock barricades to gain entry. Second, the evidence also demonstrated that the property was protected by numerous `no trespassing’ signs that were reasonably likely to come to the attention of intruders, some of which were marked with the `Pickett’ name. Under the criminal trespass statute, either was sufficient to demonstrate that entry was forbidden. See Jackson v. State, 3 S.W.3d 58, 62 (Tex.App.–Dallas 1999, no pet.) (fencing around house was sufficient to provide notice that entry was forbidden); Matter of D.L.K., 690 S.W.2d 654, 655 (Tex.App.–Eastland 1985, no pet.) (fencing and locked gates were sufficient to provide notice that entry was forbidden); Leal v. State, 736 S.W.2d 907, 913 (Tex.App.–Corpus Christi 1987), pet. dism'd, 773 S.W.2d 296 (Tex.Crim.App. 1989) (per curiam) (entry on ranch through locked gate bearing a `No Trespassing’ sign, by cutting chain securing the gate, `was a clear violation of Texas' criminal trespass statute’).

Having considered all the evidence in the light most favorable to the verdict, we conclude a rational juror could have found the essential elements of the offense of criminal trespass beyond a reasonable doubt. We overrule Appellant's second issue.

O’Brien v. State, supra. 

The court therefore found that “[h]aving considered all the evidence in the light most favorable to the verdict, we conclude a rational juror could have found the essential elements of the offense of criminal trespass beyond a reasonable doubt.”

O’Brien v. State, supra.  

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Criminal Conspiracy and Authenticating Text Messages

This post examines an opinion from the Superior Court of Pennsylvania: Commonwealth v. Howard, 2016 WL 5266632 (2016).  As appellate courts usually do, the Superior Court begins by explaining how the prosecution arose, what it involved and what issues are involved in the appeal:

On April 26, 2014, police officers conducted surveillance of the El Patio Motel in Millcreek Township as part of an investigation of alleged drug activity. N.T. Jury Trial, 1/15/15, at 34-36. Officers received information that an individual known as `NASS’ (Carnell Tinson) had been selling heroin from motel room 123. Id. at 35. While conducting surveillance of the motel, officers observed Appellant and Tinson enter room 123 at 5:07 p.m. N.T. Jury Trial, 1/16/15, at 17, 18, 23. At approximately 7:45 p.m., the officers saw Tinson exit room 123, enter a vehicle, and drive away. Id. at 32-35. Officers followed Tinson but did not apprehend him. Id.

At approximately 8:45 p.m., police officers executed a search of room 123 pursuant to a warrant. N.T. Jury Trial, 1/15/15, at 37. Inside the room the officers found Appellant, another individual, an envelope containing a quantity of heroin approximately half the size of a golf ball in plain view on the bed, a digital scale, lottery tickets, and a duffel bag belonging to Appellant. Id. at 37, 39-40. Inside of the duffel bag was a denim jacket with $1,610 in cash in one of the pockets. Id. Detective Adam Hardner found a cell phone in plain view in a bedroom. N.T. Jury Trial, 1/16/15, at 51-53. Appellant admitted the cell phone belonged to him and consented to a search of the phone. Id.

James Krayeski, a police informant, testified that he had purchased heroin from Tinson on several prior occasions and had contacted Tinson by cell phone to arrange the transactions. Id. at 4-6. Krayeski had Tinson's cell number and gave it to the officers. Id. 4-6, 8. There were two incoming text messages on Appellant's cell phone originating from Tinson's cell phone number. Id. at 53-57. When Detective Hardner read the text messages out loud to Appellant, Appellant stated, `that mother fucker set me up.’ Id. at 54. These text messages, sent at 8:31 p.m. and 8:42 p.m., stated, respectively, `flush the work’ and `they are out back behind the building.’ Id. at 57. Detective Hardner testified that, in his experience, “work” is a term that refers to drugs. Id. Lieutenant Michael Nolan of the Erie Police Department Drug and Vice Unit testified that drug dealers typically accumulate large amounts of cash and use lottery tickets as packing material for heroin. N.T. Jury Trial, 1/15/15, at 46-47). Detective Hardner testified that, based on his experience, the text message `flush the work’ would mean `flush the drugs down the toilet because the police are there.’ N.T. Jury Trial, 1/16/15, at 57.

After being found guilty of criminal conspiracy, Appellant filed a post-sentence motion for a new trial. The trial court denied Appellant's motion and filed a memorandum opinion on June 4, 2015. Appellant timely appealed. The trial court adopted its June 4, 2015 memorandum opinion as its Pennsylvania Rules of Criminal Procedure 1925(a) opinion.

Commonwealth v. Howard, supra.

In his appeal, Howard raises two issues, only one of which is examined in this opinion: He argued that the trial court judge “erred in admitting the text messages since they were not authenticated by law enforcement as being those of the defendant in accordance with PennsylvaniaRule of Evidence 901.” Commonwealth v. Howard, supra.  As Wikipedia’s entry on `Authentication (law)’ explains,

`Authentication, in the law of evidence, is the process by which documentary evidence and other physical evidence is proven to be genuine, and not a forgery. Generally, authentication can be shown in one of two ways. First, a witness can testify as to the chain of custody through which the evidence passed from the time of the discovery up until the trial. Second, the evidence can be authenticated by the opinion of an expert witness examining the evidence to determine if it has all of the properties that it would be expected to have if it were authentic.’

Commonwealth v. Howard, supra.

The opinion goes on to quote from the trial court judge’s opinion ruling on Howard’s argument that the evidence presented at his trial was not sufficient to establish his guilt beyond a reasonable doubt:

Here, the trial court concluded the jury's verdict was not against the weight of the evidence so as to shock one's sense of justice reasoning,

The evidence at trial established that a black male known as NASS (Carnell Tinson) was dealing heroin from Room 123 of the El Patio Motel. On April 26, 2014, [Appellant] and Tinson entered the room together and approximately 2 ½ hours later Tinson left and drove away in a vehicle. One hour later the police executed a search warrant for the room. The police found a baggie of heroin in plain view on a bed, a digital scale, lottery tickets for packaging heroin, and $1,600.00 in [Appellant]'s duffle bag in the room. A cell phone was recovered. It was [Appellant]'s and contained two (2) recent text messages `Flush the work’ (meaning the heroin) and `They R Out Back Behind the Building [”’ (referring to the police). The phone number the text originated from belonged to NASS (Tinson) and had been used as a contact number to facilitate prior drug transactions.

Trial Court Opinion (T.C.O.), 6/4/15, at 1.

The facts of record support the trial court's conclusion that the jury could reasonably infer Appellant's guilt from this evidence. Id. As such, the trial court did not abuse its discretion in determining that the jury's verdict was not against the weight of the evidence so as to shock one's sense of justice.

Commonwealth v. Howard, supra.

The Superior Court then began its analysis of Howard’s argument that

the trial court erred in admitting text messages from Appellant's cell phone into evidence as they were not properly authenticated under Pa.R.E. No. 901. Appellant claims that without these messages the Commonwealth could not prove a criminal conspiracy. The messages received on Appellant's cell phone from Tinson's cell phone stated, `flush the work’ and `they are in the back of the building.’ Appellant's Brief at 7.

Commonwealth v. Howard, supra.

The Superior Court then began its analysis of Howard’s authentication argument:

As Appellant correctly notes, this Court in Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011),  in an apparent case of first impression, addressed authentication of a text message as a prerequisite to its admissibility into evidence. We held that emails and text messages are documents subject to the same requirements for authenticity as non-electronic documents generally. The consistent difficulty in authenticating emails and text messages is establishing authorship, as it is generally conceded that cellular phones are not always exclusively used by the person to whom the phone number is assigned.

Accordingly, authentication of electronic communications requires more than confirmation that the phone number or address belongs to a particular person. Authentication requires some evidence tending to show the identity of the defendant as the person who either sent or received the message(s). This may be shown through circumstantial evidence. In Koch, we held that the Commonwealth failed to authenticate the text messages in question, as there were no contextual clues in the messages that revealed that the defendant was the sender. We further concluded that the defendant's physical proximity to the phone was of no probative value as to whether she authored the messages days and weeks before. Significantly, the Commonwealth conceded it could not confirm that the defendant was the author of the text messages and acknowledged that the defendant did not write some of the messages that referred to her in the third person. The Commonwealth was able to establish only that it accurately transcribed the text messages from the defendant's phone. Without some evidence, even circumstantial, that the defendant sent the messages, we held that the trial court in Koch improperly admitted the messages, since they were not properly authenticated.

Commonwealth v. Howard, supra.

The Superior Court went on to explain that

[i]n its memorandum opinion, the trial court held that the text messages were properly admitted into evidence based upon `the phone numbers, relation of the parties, attendant circumstances before and after the texts and distinctive characteristics of the texts in light of the events occurring.’ T.C.O., 6/4/15, at 1 n.1. We find no error as to sufficient authenticity of the text messages as a prerequisite to their admission into evidence in this case. Appellant does not dispute that the messages at issue were sent from the phone owned by Tinson, a known drug dealer. Nor does Appellant dispute the meaning of the messages intended to relate to the recipient that the drugs should be flushed down the toilet, as the police were outside the building.

The question remaining is whether the text messages were intended for and received by Appellant. Sufficient circumstantial evidence exists here to indicate that Appellant was the intended recipient and in fact the recipient of the text messages. The police previously observed Tinson, a known drug dealer, enter the motel room with Appellant. A short time later, Tinson left and thereafter, pursuant to a warrant, the room was searched by police. Drugs and a cell phone admittedly owned by Appellant were found in the room. When police read the subject messages to Appellant, he did not deny they were intended for him, but rather, tacitly admitted receipt of the messages by his response that Tinson had set him up.

Moreover, there is no evidence that anyone other than Appellant and one other person were in the motel room during the relevant time period. The temporal proximity of these events, together with Appellant's admission of ownership and response to the text messages present sufficient circumstantial evidence to authenticate the text messages as intended for and received by Appellant immediately prior to the police entering the motel room. Although Appellant's second issue as phrased does not contend the trial court erred by admitting text messages that constituted inadmissible hearsay, Appellant did raise the argument in post-trial motions and developed the issue in the argument section of his brief. Because the hearsay issue is fairly contemplated by the overall issue of admissibility of the test messages, we shall address his hearsay argument. See Pennsylvania Rules of Appellate Procedure 2116(a) (`The statement [of questions involved] will be deemed to include every subsidiary question fairly comprised therein.’).

Commonwealth v. Howard, supra.

The opinion then goes on to explain that, in this case,

the trial court found the texts were admissible as a co-conspirator's statement. See

Commonwealth v. Stocker, 622 A.2d 333, 344 (Pa. Super. 1993) (`The co-conspirator exception applies to hearsay statements made during the course of, and in furtherance of a conspiracy. The foundation required is proof, by a fair preponderance of the evidence, that a conspiracy existed’). Howard argues that the Commonwealth had not met its burden of demonstrating a conspiracy existed before introducing the texts. However, the record shows that Howard and Tinson were seen entering the motel together, that Howard remained in the motel room when Tinson left, and that Howard acknowledged the text messages were intended for him. These factors, combined with the totality of the circumstances surrounding the text conversation, were sufficient to meet the preponderance of the evidence burden of proof of a conspiracy.

Commonwealth v. Howard, supra.

The court concludes the opinion by explaining that the

text messages were properly authenticated. Further, the text messages at issue were admissible as an exception to the rule against hearsay since they were statements made by Tinson, a co-conspirator, in furtherance of the conspiracy to possess heroin with intent to deliver. We find no error in the trial court's admission of the text messages.

            Judgment of sentence affirmed.

Commonwealth v. Howard, supra.