State v. Bitner

STATE OF WASHINGTON, Respondent, v. JAMES ANTHONY BITNER, Appellant.

No. 51179-7-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

June 25, 2019

UNPUBLISHED OPINION

MAXA, C.J. - James Bitner appeals his conviction for delivery of a controlled substance - methamphetamine. The State charged Bitner after law enforcement directed a confidential informant (CI) to purchase methamphetamine from him. The CI was unavailable to testify at Bitner's trial, but the trial court admitted into evidence her text message exchange with Bitner setting up the details of the transaction.

We hold that (1) the trial court did not err in admitting the CI's text messages as authenticated under ER 901 because the detective who testified had sufficient knowledge to authenticate them; (2) the trial court's admission of the text messages did not violate Bitner's confrontation right because they did not constitute hearsay; (3) Bitner's Statement of Additional Grounds (SAG) claims lack merit; and (4) the DNA collection fee imposed on Bitner must be stricken because his DNA previously was collected in connection with another conviction, but the trial court must determine if the criminal filing fee should be stricken based on Bitner's indigence.

Accordingly, we affirm Bitner's conviction, but we remand for the trial court to strike the DNA collection fee and to determine for purposes of the criminal filing fee whether Bitner was indigent as defined in RCW 10.101.010(3)(a)-(c).

FACTS

On August 24, 2016, Centralia police detective Chad Withrow directed a CI to arrange to purchase methamphetamine from Bitner at approximately 1:00 or 1:30 that afternoon. The CI also was going to purchase methamphetamine from others at Withrow's direction.

Withrow met with the CI after directing her to target Bitner. Withrow observed the CI sending and receiving texts indicating that the recipient was ready to complete the deal. The CI also showed Withrow prior texts in the same thread consistent with his instructions, arranging the deal for 1:30 PM at a KFC location in Centralia and setting the price for a "ball" - approximately 3.5 grams - at $100. Withrow read and took photographs of these text messages.

The text messages Withrow photographed read as follows:

[CI:] Will u be in town around 1? And do u got a ball?

11:21 AM

Yes an [sic] yes

11:21 AM

[CI:] Would u be able to meet me at kfc?

11:22 AM

[CI:] Im [sic] splitting it with someone and tell me the price

11:22 AM

Yes of corse [sic]

11:22 AM

[CI:] Okay

11:22 AM

100

11:23 AM

[CI:] K

11:24 AM

[CI:] About a half hour

12:26 PM

[CI:] 1:30ish

12:37 PM

U ready

1:20 PM

[CI:] Yeah I will be just a few I had to pick up the $

1:20 PM

[CI:] Im [sic] hurrying

1:20 PM

Ok

1:21 PM

[CI:] Omw

1:27 PM

Ok

1:27 PM

Exs. 23, 24, 25.

Before the CI left to meet with Bitner, officers conducted a strip search of her and searched her purse. They determined she had not brought any contraband items with her. Officers gave the CI buy funds and dropped her off near the KFC at about 1:33 PM. The CI walked the remaining distance to the KFC parking lot under police surveillance.

Two officers conducting surveillance of the KFC parking lot from across the street observed Bitner arrive at the KFC shortly before 1:30 PM, before the CI. Bitner went into the KFC. While he was inside, the CI arrived at the KFC parking lot at approximately 1:35 PM and stood at the passenger door of Bitner's car. Bitner exited the KFC and entered his car on thedriver's side while the CI entered on the passenger side. The CI exited Bitner's car less than a minute later.

After exiting Bitner's car, the CI returned directly to a police van one block away. She produced a bag containing approximately 3.5 grams of a substance later determined by the police to be methamphetamine. Police then conducted a second strip search of the CI. They did not find the money detectives had provided to her earlier to complete the buy.

The State subsequently charged Bitner with delivery of methamphetamine with a sentencing enhancement for committing the offense within 1,000 feet of a school bus stop.

At trial, the State was unable to locate the CI to testify. Bitner moved to exclude the photographs of the CI's text messages regarding the drug purchase based on ER 901 and on his rights under the confrontation clause. As an offer of proof, the State indicated that Withrow would testify that he saw the text message exchange on the CI's phone and took photographs of the exchange. The State also referenced evidence that Bitner was the person that appeared at KFC at approximately 1:30 PM as discussed in the text messages.

The trial court ruled that the photographs of the text messages were authenticated and that Withrow could testify about what he saw and about what the text messages said. However, the court ruled that the State could not produce evidence from the text messages that identified Bitner's name and number. The court also ruled that Withrow could testify only what the text messages said, not that the text messages were from Bitner. Finally, the court ruled that the text messages were not testimonial and therefore did not violate the confrontation clause.

Bitner's first trial ended in a mistrial because the jury panel was tainted during voir dire. Before the second trial, Bitner asked the court to revisit the text message issue but did not asserta confrontation clause argument at that time. The court maintained its prior rulings regarding admissibility.

At trial, Withrow testified as recited above about reading and photographing the text messages. He testified that the CI sent and received the text messages, but he did not testify that Bitner was the person texting with the CI. The trial court admitted the text message exchange as exhibits over Bitner's objection.

The jury found Bitner guilty of delivery of a controlled substance with a school bus stop sentencing enhancement. Bitner appeals his conviction.

ANALYSIS

A. AUTHENTICATION OF TEXT MESSAGES

Bitner argues that the trial court erred in admitting the text messages because no witness testifying at trial had the requisite knowledge to authenticate them under ER 901. We disagree.

1. Legal Principles

Before a trial court admits evidence, ER 901(a) requires that the proponent authenticate it with "evidence sufficient to support a finding that the matter in question is what its proponent claims." See State v. Bashaw, 169 Wn.2d 133, 140-41, 234 P.3d 195 (2010). To meet this requirement, the proponent must make a prima facie showing sufficient to allow a reasonable juror to find that the evidence is authentic. Id. We review a trial court's admission of evidence for abuse of discretion. State v. Young, 192 Wn. App. 850, 854, 369 P.3d 205 (2016).

ER 901(b) provides illustrative examples of authentication. These include testimony by a witness with knowledge, ER 901(b)(1), and "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." ER 901(b)(4). In addition, the methods of authentication for email stated in ER 901(b)(10) are applied by analogyto text messages. In re Det. of H.N., 188 Wn. App. 744, 751-52, 355 P.3d 294 (2015); see also Young, 192 Wn. App. at 856. Because authenticity is a preliminary determination, a trial court may consider otherwise inadmissible evidence in determining whether authenticity has been established. Id. at 854-55.

In making the authentication determination, the trial court considers only the proponent's evidence in favor of authenticity and disregards any contrary evidence that the opponent submits. Id. at 857. Once a prima facie showing of authenticity has been made, the challenged evidence is admissible under ER 901(a) regardless of any contrary evidence offered by the opponent. Id. at 855, 857. After that point, contrary evidence goes to the weight, not the admissibility, of the challenged evidence. Id. at 857.

2. Analysis

Here, Withrow testified that he examined the CI's phone, read the text messages, and photographed them. He also testified that the content of the text messages matched what took place on the day the CI met with Bitner. Finally, he confirmed that the photographs offered as exhibits accurately depicted the text messages that were on the CI's phone.

This testimony was sufficient under ER 901(a) to authenticate the exhibits. Withrow was a witness with knowledge of the text messages, which under ER 901(b)(1) is sufficient to authenticate them. And he established that the exhibits were what the State purported them to be - text messages between the CI and a person discussing the sale of drugs.

Bitner argues that the State failed to produce sufficient evidence to authenticate the text messages as involving him as opposed to someone else. Bitner compares his case to Young, where this court held that there was sufficient evidence to authenticate that text messages were from the defendant where the recipients of the messages testified that they had come from aphone number the defendant had given them. Young, 192 Wn. App. at 856-58. Bitner argues that his case is distinguishable from Young because the recipient (here, the CI) did not testify at trial and no evidence linked Bitner with the phone number that sent her the messages.

Bitner also argues that the text messages cannot be authenticated as involving him without the CI's testimony because police also were targeting another suspect using the same CI on the same day. He argues the fact that the CI had messages on her phone consistent with the purchase of drugs establishes only that a purchase took place, not that it involved Bitner himself.

However, establishing that the text message exchange involved Bitner was not required under the facts of this case to authenticate the text messages. The trial court did not allow Withrow to testify that Bitner sent the text messages to the CI and the court ordered that all references to Bitner and the phone number of the texting person be removed....