Sykes v. State

Sykes v. State, No. 2132, September Term, 2019. Opinion by Ripken, J. CRIMINAL LAW – AUTHENTICATION AND FOUNDATION – TEXT MESSAGES Electronic evidence is authenticated using the reasonable juror standard, meaning that, for a trial court to admit electronic evidence, there must be sufficient evidence for a reasonable juror to find by preponderance of the evidence that the electronic evidence is what the proponent claims. CRIMINAL LAW – AUTHENTICATION AND FOUNDATION – TEXT MESSAGES The State produced sufficient evidence to authenticate text messages where the text messages were extracted from a phone that was taken from the defendant at the time of arrest, defendant was observed unlocking the phone and placing a phone call, and contents of recent messages referred to controlled dangerous substances, a high quantity of which were recovered in the traffic stop that lead to defendant’s arrest. CRIMINAL LAW – HEARSAY – VERBAL ACTS Text messages requesting to purchase drugs are verbal parts of an act, similar to a phone call requesting to purchase drugs discussed in Garner v. State, 414 Md. 372 (2010), which may be admitted without violating the Rules Against Hearsay because the offer to purchase has independent legal significance.

CRIMINAL LAW – HEARSAY – STATEMENTS NOT OFFERED FOR THEIR TRUTH A statement will not violate the hearsay rule where the very making of the statement, instead of the truth or falsity of the contents, is the fact at issue. Where a fact asserted or implied in a statement need not be sincerely and accurately stated in order for the out of court statement to help prove what it is offered to prove, it is not in violation of the Rules Against Hearsay. Circuit Court for Talbot County Case No. C-20-CR-16-000093 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2132 September Term, 2019 ______________________________________ BRANDON SYKES v. STATE OF MARYLAND ______________________________________ Berger, Wells, Ripken, JJ. ______________________________________ Opinion by Ripken, J. ______________________________________ Filed: November 18, 2021 * Kehoe, Christopher B., J., did not participate in Pursuant to Maryland Uniform Electronic Legal Materials Act the Court’s decision to designate this opinion for (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-06-15 14:10-04:00 publication pursuant to Md. Rule 8-605.1. Suzanne C. Johnson, Clerk Brandon Sykes (“Sykes”) and Jessica Feldmeier (“Feldmeier”) were arrested after police discovered packages of controlled dangerous substances (“CDS”), heroin and fentanyl, tucked between the driver and passenger seat of Feldmeier’s car.

Neither Feldmeier, the driver, nor Sykes, the passenger, claimed ownership of the drugs at the scene. During Sykes’s arrest, police officers observed Sykes using a cell phone, which police later determined to have sent and received text messages concerning the sale of narcotics in the ten days prior to the arrest. At Sykes’s trial and over his objection, the State introduced those text messages into evidence and called an expert in narcotics investigations to testify about the consistency of the messages and other evidence with patterns of drug distribution. A Talbot County jury convicted Sykes of possession of CDS with intent to distribute.

Sykes now appeals his conviction. According to Sykes, the court erred in admitting numerous text messages and in admitting the expert testimony. Sykes contends that the text messages and the expert testimony were crucial to the State proving his intent to distribute. We hold that the drug-related texts were not admitted in error, and the court acted within its discretion in admitting the expert testimony.

We shall affirm. FACTUAL AND PROCEDURAL BACKGROUND On July 6, 2016, Officer Westerfield was patrolling in Easton, Talbot County, Maryland. He observed that a white 2007 Ford Crown Victoria had a malfunctioning rear light rendering the license plate illegible. At approximately 9:24 p.m., Officer Westerfield activated his emergency lights and pulled over the Crown Victoria.

He observed Feldmeier in the driver’s seat and Sykes in the front passenger seat. The officer explained the reason for the stop and asked for Feldmeier’s license and registration. According to Officer Westerfield, Feldmeier’s hands were visibly shaking and there was a shake in her voice. He subsequently asked for Sykes’s identification.

After returning to his patrol car, Officer Westerfield requested a K91 team to assist on the scene. Officer Tindall responded with his K9, Meiko, and informed Feldmeier and Sykes that he was going to conduct a K9 scan of the vehicle. Meiko alerted2 at the driver’s door, giving a signal indicating the presence of narcotics. Officer Westerfield called for additional backup and searched the vehicle.

Officer Chinn3 arrived on scene and stood with Sykes and Feldmeier while the vehicle was searched. Officer Westerfield discovered a plastic bag containing 84 packets of suspected narcotics.4 The larger bag contained 73 multicolored paper folds with a tan powdery material as well as 11 plastic baggies with a rock-like substance. He located the bag in between the passenger seat and either the center console or the gap between the 1 K9 here refers to a police dog specially trained to assist law enforcement. 2 Officer Tindall started Meiko at the front center of the vehicle and gave Meiko the command to begin searching for narcotics. Meiko walked from the front license plate, around the driver’s front headlight, and towards the driver’s side door.

Once Meiko arrived at the driver’s side door, he sat down, giving a positive signal “alerting” that narcotics were present. 3 We note that the transcript revealed conflicting spellings of Officer Chinn’s name. We will use “Chinn,” which is the spelling the court reporter used during Officer Chinn’s direct examination. 4 In the Maryland State Police request for laboratory examination of the CDS seized, the description of the drugs initially stated that 83 plastic baggies were found. That form was later corrected to reflect that there were 84 packages seized. 2 passenger seat and the driver’s seat, within reach of both seats. A field test of the substance returned a positive result for heroin.

He informed Officer Chinn, who placed Sykes and Feldmeier under arrest. Officer Chinn escorted Sykes to the patrol car and placed him in the back seat. While Sykes was in the back seat, Officer Chinn observed him remove a Samsung smart phone from his pocket, unlock it, place a call, and talk on the phone. Officer Chinn radioed Officer Westerfield, who approached and observed Sykes on the phone.

Officer Westerfield seized the cell phone from Sykes. The officers also seized a cell phone from Feldmeier. Sykes and Feldmeier were both charged with possession of a CDS and possession of a CDS with intent to distribute. Each was within close proximity to the drugs but neither claimed possession at that time.5 The seized drugs were sent to the Maryland State Police Forensics Sciences Division for testing.

The multicolored paper folds contained a mixture of heroin and fentanyl. The individual plastic baggies contained heroin. The officers also applied for and obtained a search warrant for the cell phone that was taken from Sykes. Investigators downloaded the emails, text messages, social media conversations, and other data stored on the cell phone into an extraction report.

The earliest extracted text messages dated back to 2012. The State created a printout with 691 text 5 In a notarized statement to police, Feldmeier eventually claimed that the drugs were hers, for her personal use, and that Sykes was not aware they were in the car. The statement was admitted by stipulation. Sykes and Feldmeier were tried separately, and Feldmeier pled guilty. 3 messages sent or received in the ten days prior to Sykes’s arrest—between June 27, 2016 and July 6, 2016.

Sykes filed a motion in limine to exclude the data extracted from the cell phone arguing that the State failed to demonstrate authenticity, the text messages contained hearsay, and the text messages were irrelevant and prejudicial. At the initial pre-trial motions hearing, the court addressed the issue of authenticity in terms of the chain of custody of the cell phone and text messages. The court found that there was a sufficient foundation to conclude that the text messages extracted were from the cell phone that was taken from Sykes at the time of arrest. As to the defense’s authenticity argument, the court denied the initial motion to exclude on that ground.

However, the court reserved ruling on the hearsay, relevancy, and prejudice arguments. Sykes later renewed the motion in limine presenting the same grounds as before, including authenticity. At the hearing addressing the motion in limine, Sykes’s defense counsel again argued that the State should not be permitted to introduce the text messages at trial because the State did not establish Sykes’s ownership of the phone or that he was the person making and receiving the text messages. Sykes’s defense counsel further reiterated that the text messages were hearsay.

The State argued that the phone was authenticated because it had been taken from Sykes’s person, numerous email accounts accessed on the phone contained the name Brandon Sykes, and the officers on the scene who seized the phone as well as the officer who conducted the extraction of the text messages were available witnesses for the State. The State also argued that the text 4 messages fell under numerous hearsay exceptions. The court denied the defense’s motion to exclude the text messages. Sykes’s trial was held in February of 2018.

The State called Officers Westerfield, Tindall, and Chinn to testify regarding the events leading up to and including Sykes’s arrest. The parties stipulated that the text messages listed in the State’s printout came from the phone that was seized from Sykes. The State moved to admit the full printout into evidence, and Sykes renewed his objection. The court noted the objection and admitted the printout.

The State also called Sergeant Crouch, who was offered as an expert in field drug investigations and interdictions with expertise in drug paraphernalia, sales, and terminology. The defense objected to Sergeant Crouch’s testimony, arguing that the State had not disclosed the substance of Sergeant Crouch’s findings and opinions or the summary of the grounds for those opinions in violation of Rule 4-263(8)(a). The State responded that it had sent a formal expert notification to the defense in July of the previous year. In the notification, the State named Sergeant Crouch and indicated that he was being offered as an expert in packaging, sales, street value, and narcotics terminology, and that he would testify as such.

The State also specified that Sergeant Crouch would offer opinions as to whether the factual circumstances surrounding Sykes’s arrest were indicative of personal use or distribution. Such opinions would be based, according to the State, on what he learned in court. The court overruled the defense’s objection and accepted Sergeant Crouch as an expert in the field of drug investigations and interdiction. 5 Sergeant Crouch testified regarding numerous text messages, both incoming and outgoing, and gave his opinion that the contents of these messages were consistent with distribution. He also testified that the amount of drugs—the 84 packages of heroin and fentanyl—found in Feldmeier’s car was consistent with quantities used for distribution.

After the State rested its case, the defense did not call any witnesses. The jury found Sykes guilty of possession of a CDS with the intent to distribute. Sykes was sentenced to 18 years of imprisonment. This timely appeal followed.6 Additional facts will be included as they become relevant to the issues.

ISSUES PRESENTED FOR REVIEW Sykes presents two issues for review:7 I. Did the circuit court err in admitting the text messages extracted from the cell phone taken from Sykes’s person at the time of arrest?

II

Did the circuit court err in allowing Sergeant Crouch to testify as an expert? For the reasons discussed below, we hold that there was no error as to admission of the drug-related text messages, and no error as to admission of Sergeant Crouch’s expert testimony interpreting such texts. We note that although there was error in the admission 6 After the close of evidence and during jury deliberations, Sykes absconded. The trial judge found that he had voluntarily absented himself and allowed the jury to return its verdict.

Sykes was apprehended eighteen months later in late 2019. His sentencing hearing was held in December of 2019. 7 Rephrased from: I. Did the lower court err in admitting unfairly prejudicial hearsay?

II

Did the lower court err in allowing expert opinion testimony that the state failed to disclose before trial? 6 of the non-drug-related text messages, that error was harmless beyond a reasonable doubt. We shall affirm. DISCUSSION I. THE COURT DID NOT ERR IN ADMITTING THE DRUG-RELATED TEXT MESSAGES EXTRACTED FROM THE CELL PHONE. Sykes contends that the circuit court erred in admitting the text messages in three respects: first, the phone and outgoing messages were not authenticated; second, the contents of the incoming and outgoing text messages were inadmissible hearsay; and third, the text messages were irrelevant and highly prejudicial.

The State responds that the text messages were properly admitted. We address each of Sykes’s contentions regarding the text messages. We begin with his authenticity claims, and then turn to his claims regarding relevancy, and last, we reach hearsay. Because we ultimately hold that any error in admitting the non-drug-related text messages was harmless, we focus our hearsay analysis on the drug-related text messages.

When an appellant claims evidence was erroneously admitted based on lack of authenticity, we review the trial court’s decision for abuse of discretion. Darling v. State, 232 Md. App. 430, 456 (2017). We review a trial court’s determination as to the relevance of evidence de novo, and its determination whether to admit or exclude relevant evidence for an abuse of discretion. State v. Simms, 420 Md. 705, 725 (2011). “Whether evidence is hearsay is an issue of law reviewed de novo,” but whether a trial court properly admitted hearsay under an exception is reviewed for “abuse of discretion or clear error if it involves 7 factual or discretionary determinations.” Colkley v. State, 251 Md.App. 243 , No. 833, Sept. Term 2019, slip op. at 43 (Md. Ct. Spec.

App. July 2, 2021). A. The Outgoing Text Messages Were Properly Authenticated. Pursuant to Maryland Rule 5-901(a), authentication of evidence, including electronically stored evidence, is a condition precedent to its admissibility, and the condition is satisfied where there is sufficient evidence “to support a finding that the matter in question is what its proponent claims.” Md. Rule 5-901(a). “[T]he burden of proof for authentication is slight, and the court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.” Darling, 232 Md. App. at 455 (alteration in original) (quoting Johnson v. State, 228 Md. App. 27, 59 (2016)). For electronic evidence, we utilize the “reasonable juror” test, and ask whether a reasonable juror might find more likely than not that the evidence is what it purports to be.

State v. Sample, 468 Md. 560, 597 , 599 n.20 (2020). The standard, then, is by a preponderance of the evidence. Id. Rule 5-901(b) sets forth a non-exhaustive list of the manners in which evidence may be authenticated.

Relevant here, evidence may be authenticated directly, through testimony of a witness “with knowledge that the offered evidence is what it is claimed to be,” or circumstantially, “such as [through] appearance, contents, substance, internal patterns, location, or other distinctive characteristics[.]” Md. Rule 5-901(b)(1), (4). This Court addressed authentication of text messages in Dickens v. State, 175 Md. App. 231 (2007). There, Dickens was convicted of first-degree murder for the fatal shooting of his wife. Id. at 234 .

After the shooting, Dickens went to a neighbor’s house and 8 reported that he had “done something to his girlfriend,” prompting the neighbor to call the police. Id. at 235 . At Dickens’s trial, the State introduced as evidence threatening text messages sent by him to his wife in the two and a half months leading up to the shooting. Id. at 236–37.

The text messages were sent from a phone that Dickens possessed prior to the shooting. Id. at 238 . On appeal, Dickens argued that the text messages were inadmissible as not having been authenticated by the State, and the circuit court erred in ruling otherwise. Id. at 237 .

We held that direct and circumstantial evidence linked the phone, and the messages sent from the phone, to Dickens. Id. at 240 . As to the direct evidence connecting Dickens to the phone, the victim’s mother testified that she had given the victim a new phone in the months prior to the shooting, and the victim gave Dickens her old phone. Id. at 237–38.

She confirmed that the cell phone number from which certain threatening messages were sent matched the number of the victim’s old phone. Id. at 238 . Her testimony was corroborated by the fact that the phone was recovered near the neighbor’s home where Dickens was arrested. Id.

In regard to the circumstantial evidence, we concluded that the content of the messages—referencing custody of their daughter and wedding vows (“until death do us part”)—and the context in which they were sent—contemporaneously with Dickens telling people he would find the victim and “deal with [her]”—also demonstrated authenticity. Id. at 238–40. Last, we looked at the text messages in the context of “what [Dickens] did later,” i.e., “shot his wife.” Id. at 238–39. We thus held the trial court did not err in ruling the text messages were authenticated based on the collective circumstances.

Id. at 240 . 9 The collective circumstances in the present case likewise demonstrate that the cell phone belonged to Sykes. The State introduced direct evidence that the phone belonged to Sykes through the testimony of two witnesses. At trial, both Officer Westerfield and Officer Chinn testified to seeing Sykes use the cell phone at the time of arrest. Officer Chinn further testified that he saw Sykes take the phone from his pocket, unlock it, and place a phone call.

Such possession and use are consistent with ownership. The officers’ testimony provided sufficient evidence for the circuit court to conclude that a reasonable juror could find that the phone was what the State purported it to be—a cell phone belonging to Sykes.8 Additionally, a reasonable juror could find it more likely than not that the outgoing text messages extracted from that cell phone were sent by Sykes. In State v. Sample, Sample was arrested following an attempted armed robbery where his accomplice, Mayo, was fatally shot. 468 Md. at 565 . The State introduced evidence at trial of two Facebook profiles that the State claimed belonged to Sample and Mayo.

Id. at 581–82. Critically, the State provided evidence that the profile associated with Sample unfriended the profile associated 8 At the motions hearing on the admission of the cell phone, Corporal Wells testified that he was given the phone from the Easton Police Department because the department could not access the information on the phone as it had a passcode. The State also argued at a later hearing that the extracted data indicated numerous email addresses associated with “Brandon Sykes,” had been accessed on the phone and older outgoing messages identified the user as “Brandon.” Sykes countered that the extracted data also showed that the phone received email intended for Feldmeier. The State further argued that Feldmeier was listed as a contact in the phone’s address book with the name “Baby,” and that the phone sent messages to Feldmeier’s phone contemporaneous with outgoing drug-related messages.

This evidence was not discussed before the jury or admitted at trial. While that information was not presented to the jury, it was argued by the State at the pretrial hearing on this issue and the information referenced does not appear to be contested by Sykes. 10 with Mayo shortly after the attempted robbery. Id. at 582 . Following his conviction, Sample appealed.

Id. at 585–87. In addressing Sample’s claim of error, the Court of Appeals applied the reasonable juror test to authentication of the Facebook profile associated with Sample and the action taken by that Facebook profile—unfriending Mayo’s profile. Id. at 597 . The Court concluded that, based on the name of the Facebook profile, the email address associated with the account, the current city listed for the profile, and the “connections” for the profile, sufficient distinctive characteristics existed for a reasonable juror to conclude that the profile belonged to Sample.

Id. at 599–600. Turning to the “unfriending” action taken by Sample’s profile, the Court likewise concluded that a reasonable juror could find that Sample used the profile to unfriend Mayo’s profile. Id. at 602 . The Court reasoned that “[i]n and of itself, the ample evidence that the [Sample] profile belonged to Sample constitutes strong evidence that he was responsible for the unfriending.” Id.

In addition, the evidence adduced at trial indicating that Sample was the surviving attempted robber supported the conclusion that Sample was responsible for unfriending the Mayo profile because it showed he had a motive to “sever ties” with Mayo. Id. The Court concluded that the evidence of Sample’s ownership of the profile as well as the collective circumstances provided sufficient evidence for a juror to conclude that Sample was responsible for the actions taken from the Sample profile. Id. at 603 .

Here, the evidence that the phone belonged to Sykes “in and of itself” constituted strong evidence that he authored the outgoing text messages. In looking to the circumstances surrounding the text messages, we note that the drug-related text messages 11 took place within ten days of Sykes’s arrest. In addition, the only other person in the car, Feldmeier, also had a cell phone that was seized from her person. The content of the drug-related text messages was also consistent with the evidence of Sykes’s arrest with a large quantity of heroin.

The State provided an expert witness who testified that the terminology used in the text messages was consistent with heroin transactions. And, the most recent incoming text message discussing drug transactions was received the day before Sykes’s arrest and is marked: “Read.” Thus, the collective circumstances, coupled with the evidence of Sykes’s ownership of the cell phone, lends support to the circuit court’s conclusion that a juror could find more likely than not that Sykes authored the text messages. Sykes presents a number of arguments that the evidence presented was insufficient to authenticate the outgoing messages. He first argues that no testimony from a witness with personal knowledge was presented, as none of the text messages that were offered at trial were alleged to have been sent in the officers’ presence.

However, personal knowledge is just one method by which evidence may be authenticated pursuant to Maryland Rule 5-901. Sykes also maintains that the State failed to exclude the possibility that the phone belonged to someone else, for example by obtaining records of the account holder. Such contentions are also without merit, as they go to the weight, not the admissibility, of the evidence. For admissibility purposes, the State is not required to disprove all other possibilities, nor is it required to prove authenticity with absolute certainty.

See Sample, 468 Md. at 605 (“The State was not required to eliminate all possibilities that were inconsistent with authenticity, or prove beyond any question” that the defendant was the 12 one who used the communication device). Rather, it need prove “only that there was sufficient evidence for a reasonable juror to find by preponderance of evidence” that Sykes was responsible for the text messages. See id. Sykes’s control and possession over the phone permitted the jury to conclude that he authored the recently composed text messages.

We conclude there was sufficient evidence to find that the State met its burden. On appeal, Sykes urges this Court to find persuasive and thus follow the reasoning and holding of Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. Ct. 2015).

There, a defendant was arrested for possession of a controlled dangerous substance, and officers recovered two cell phones from his person following a search incident to arrest. Id. at 1076– 77. A search of the phones revealed numerous drug-related text messages. Id. at 1077.

Before trial, Mosley filed a motion to suppress the text messages arguing that they were not properly authenticated as having been authored by him. Id. The trial court denied the motion, and several text messages both drug-related and non-drug-related were admitted at trial. Id.

On appeal, Mosley renewed his arguments surrounding authenticity of the text messages, and the Pennsylvania Superior Court held that the text messages were admitted in error. Id. at 1078, 1084. The court noted that Mosley denied ownership of the cell phones taken from his person; no first-hand corroborating testimony was presented regarding authenticity and multiple email addresses were attached to the cell phones, which could indicate that someone else owned or accessed the phones. Id. at 1082–83.

The court found that “most relevant to the issue of authorship” was that the drug-related text messages did 13 not identify Mosley, despite the fact that previous non-drug-related text messages did identify Mosley. Id. at 1083. The court concluded: Bearing in mind the unique nature of a cell phone and its pervasiveness in everyday society, we believe that in order to use content from a cell phone as testimonial evidence in a criminal prosecution, the Commonwealth must clearly prove its authentication. Because there was no evidence, direct or circumstantial, clearly proving that Mosley was the author of the drug-related text messages, or any corroborating witness testimony regarding authenticity of the messages, we find that the trial court erred in determining that the drug- related texts were authenticated properly[.9] Id.

The court’s holding in Mosley has no bearing on our analysis here.10 The Mosley court notes a higher standard for authentication, that the State must “clearly prove” 9 Interpreting a prior Pennsylvania case, Commonwealth v. Koch, 106 A.3d 705 (Pa. 2014), the court determined that ownership or possession of the phone that sent the messages alone is not adequate to authenticate authorship of messages. Mosley, 114 A.3d at 1083–84. The Mosley court noted that this case was “a close case regarding authorship and authentication,” but ultimately no evidence was presented “tending to substantiate that Mosley was the author of the drug-related text messages.” Id. at 1083. Accordingly, the court determined that the evidence relied on by the trial court—that there were similar contacts in both phones, Mosley’s mother was listed as a contact in each phone under the name “Momma Dooks,” the mother of Mosley’s child sent similar text messages on each phone, and prior incoming text messages referring to Mosley by name—did not authenticate Mosley’s sending the messages.

Id. Additionally, one text message sent from Mosley’s mother wished him a happy birthday, but did not reference drugs, and another text message corroborated a stamp found on one of the bags of drugs discarded by Mosley. Id. 10 Other out of state cases cited by Sykes are similarly unpersuasive. Sykes cites State v. Francis, 455 S.W.3d 56 (Mo.

Ct. App. 2014) for the proposition that possession of the phone at the time of arrest is insufficient “by itself” to establish authorship. However, as noted, Sykes’s possession of the cell phone at the time of arrest was not the only piece of evidence offered to demonstrate authentication. 14 authentication11, id. at 1084; whereas Maryland law provides the lesser burden of preponderance of the evidence. See Sample, 468 Md. at 597 (holding the standard for authentication of electronic evidence is by a preponderance of the evidence, meaning “more likely than not”); Darling, 232 Md. App. at 455 (“[T]he burden of proof for authentication is slight, and the court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.”). As we discussed, there was sufficient evidence to conclude that a reasonable juror could find, by preponderance of the evidence, that Sykes owned the cell phone.

Accordingly, we see no error in the court’s determination of authenticity. Darling, 232 Md. App. at 456 (“[O]nce a prima facie showing of authenticity is made, the ultimate question of authenticity is left to the jury.”). B. The Content of the Drug-Related