State v. Mulcahey

219 A.3d 735

STATE

v.Stephen MULCAHEY.

No. 2018-20-C.A. (K1/14-160A)

Supreme Court of Rhode Island.

November 21, 2019

Christopher R. Bush, Department of Attorney General, for State.

Brett V. Beaubien, Esq., for Defendant.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

Justice Goldberg, for the Court.

This case came before the Supreme Court for oral argument on October 3, 2019, on appeal by the defendant, Stephen Mulcahey, from a judgment of conviction, following a jury trial, for first-degree sexual assault in violation of G.L. 1956 § 11-37-2. Before this Court, the defendant argues that the Superior Court erred in admitting evidence of text messages allegedly sent by the defendant to the complainant because, he argues, the text messages were not properly authenticated under Rule 901 of the Rhode Island Rules of Evidence. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

Facts and Travel

In October 2013, Victoria,¹ the complainant, a seventeen-year-old high school senior, was residing with her maternal aunt, Cristee McCormick (McCormick), in an apartment in Coventry, Rhode Island. The defendant, who was McCormick's boyfriend, also lived at the apartment for an unspecified period after McCormick obtained custody of Victoria. At trial, the complainant described defendant as kind of "like a father figure," who would help her with her schoolwork and provide transportation when needed. However, Victoria testified, defendant sometimes made her feel uncomfortable: "Well, if he would give me a ride somewhere and when I would be like waiting in the car or something and we would go to a restaurant or something, he would like sit next to me and put his hand on my leg or something."

On October 27, 2013, after spending the evening at a movie theater with her grandfather, Victoria returned to McCormick's apartment to eat Chinese food and watch a scary movie with McCormick, defendant, and defendant's brother. Victoria sat on the couch and covered herself with a comforter blanket. The defendant sat between Victoria and McCormick, and defendant's brother was seated on a chair.

According to Victoria, just before the movie was about to begin, defendant pulled the blanket over her head. Victoria tried to move the comforter out of the way, "but then things happened." The defendant started to rub Victoria's back, which made her feel "uncomfortable and a little bit nervous[.]" Victoria testified that she "thought that [defendant] thought that [she] was [McCormick] so [she] tried to move around so that he would know that it was [her]." Then defendant "started to rub [her] butt[,]" and, again, she tried to move around more to indicate to defendant that she was not McCormick. The defendant, however, proceeded to rub Victoria's belly under her clothes, and he touched her vagina.

At that point, when McCormick walked to the bathroom and then to the kitchen to smoke a cigarette, defendant whispered in Victoria's ear that he wanted to "kiss [her] down there[,]" and "taste [her] down there and lick [her]." The defendant then put his hand inside her vagina. When she tried to pull defendant's hand out by grabbing his arm, he "put it in harder[,]" which "really hurt and it made [Victoria] very afraid." Victoria estimated that the assault lasted for about thirty minutes. When the movie ended, Victoria went next door to her grandmother's apartment to shower, and she noticed that she was bleeding from her vagina.

Within hours of the assault, at 12:30 a.m., Victoria received the following four text messages from defendant:

"Hope I didn't do anything to upset you good night sleep well"

"Did I upset you"

"Good night sleep well you are a beautiful person"

"Can't stop thinking about you"

At 7:37 a.m., Victoria received the following text message from defendant: "Good morning hope you have a great day[.]" And, at 11:19 a.m., Victoria received the following text message from defendant: "Are you still sleeping[?]" After the last text message, Victoria took a screenshot of her phone depicting the six text messages from defendant, but she did not respond to any of them.

The next day, while driving to a therapy appointment, Victoria told McCormick about the assault. She also told her therapist, Eric McKnight, who immediately reported the assault to the Coventry police. Later that day, Victoria and McCormick went to the Coventry police station to report the assault. A Coventry police officer advised Victoria to go to the hospital. But, at the hospital, she testified, she was afraid to undergo an examination and "felt very scared to do that" and was "freaking out." According to Victoria, the doctors "said that they weren't going to do anything because they didn't want to make [her] more scared."

On October 31, 2013, Victoria met with Detective Jason Burlingame (Det. Burlingame), the Coventry police officer who had been assigned to the investigation. Victoria told Det. Burlingame about the text messages she received from defendant and showed him the screenshot of her phone. Detective Burlingame testified that he interviewed defendant and that, when he showed defendant the screenshot of the text messages, defendant stated that he had sent them.

On March 4, 2014, defendant was charged by criminal indictment with one count of first-degree sexual assault, in violation of § 11-37-2. The defendant filed a pretrial motion in limine to suppress evidence of the text messages, arguing that the state would not be able to meet its burden to properly authenticate the evidence in accordance with Rule 901 through the testimony of Victoria alone. The state, however, argued that Victoria's testimony about her history of texting defendant was sufficient to properly authenticate the text message evidence.

After hearing arguments from both parties, the trial justice, citing to federal caselaw, laid out the following six factors for the court to consider when determining whether evidence of text messages has been properly authenticated: (1) "Whether someone with personal knowledge connects the person to the specific phone and phone number"; (2) "The witness must show through direct or circumstantial evidence that the phone has the capacity to send and receive text messages"; (3) "The witness needs to explain how the caller I.D. on the phone where the texts [were] received links [the] text messages by a name or number to a particular person"; (4) "[D]irect or circumstantial evidence that [the person has] received phone calls or text messages from that number * * * in the past"; (5) "The witness must testify that they received and read the text messages"; and (6) Circumstantial evidence establishing authorship.² The trial justice then reserved ruling on the motion, and the case proceeded to trial.

At trial, Victoria testified that, about a year before the assault, defendant provided her with his cell phone number and she saved the number in her contacts under the name "Steph."³ Victoria testified that her phone was capable of sending and receiving text messages, and that she routinely exchanged text messages with defendant for a variety of reasons, such as to arrange rides to and from school and therapy appointments. Simply put, Victoria would text defendant, and he would arrive to transport her to and from her appointments. Victoria further testified that, within hours of the assault, she received the text messages from defendant, which she read but to which she did not respond.

At that point, the trial justice addressed the authentication issue at the sidebar. After hearing arguments from the parties, the trial justice found that "based on the foundational questions," the state had met its burden, and she therefore denied defendant's motion in limine . The prosecutor then showed the screenshot to Victoria and proceeded to lay additional foundation:

"Q. * * *. Are you familiar with that photograph?

"A. Yes. * * *

"Q. What is that a photograph of?

"A. A text that Ste[p]h sent me that night and in the morning. * * *

"Q. When was that photograph taken?

"A. After I got the last text message. * * *

"Q. Did you take that photograph or did someone else take the photograph?

"A. I did. I did a screen shot of it. * * *

"* * *

"Q. So that photograph is what you saw on your phone on or about October 27, 2013?

"A. Yes.

"Q. Does that photograph accurately depict the image on your phone as you observed it on or about October 27, 2013?

"A. Yes."

The prosecutor offered the evidence as a full exhibit, and the trial justice—over defendant's objection—admitted the screenshot of the text messages.

On March 12, 2015, the jury returned a verdict of guilty. The defendant's motion for a new trial was heard and denied on April 29, 2015. The defendant was sentenced to thirty-five years at the Adult Correctional Institutions, with twenty years to serve and the balance suspended, with probation. The defendant filed a notice of appeal on June 1, 2015.⁴

Standard of Review

"It is well established that decisions concerning the admissibility of evidence are within the sound discretion of the trial justice, and this Court will not interfere with the trial justice's decision unless a clear abuse of that discretion is apparent." State v. Stokes , 200 A.3d 144, 150 (R.I. 2019) (quoting State v. Alves , 183 A.3d 539, 542 (R.I. 2018) ). "The trial justice will not have abused his or her discretion as long as some grounds supporting his or her decision appear in the record."

Id. (quoting State v. Adams , 161 A.3d 1182, 1194 (R.I. 2017) ).

Analysis

The defendant argues that the trial justice erred when he admitted evidence of the text messages based on the state's failure to authenticate the messages under Rule 901. Specifically, defendant argues that, to authenticate evidence of text messages, the proponent must establish authorship through either direct or circumstantial evidence. According to defendant, to establish authorship through circumstantial evidence, the proponent must produce...