               In the Missouri Court of Appeals
                                  Western District

STATE OF MISSOURI,                        )
                             Respondent, )
                                          )
v.                                        )           WD76558
                                          )
TERRILL E. REYNOLDS,                      )           FILED: March 10, 2015
                               Appellant. )



         APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
                 THE HONORABLE BYRON L. KINDER, JUDGE

          BEFORE DIVISION FOUR: ALOK AHUJA, CHIEF JUDGE, PRESIDING,
     LISA WHITE HARDWICK, JUDGE AND ROBERT M. CLAYTON, III, SP. JUDGE

       Following a jury trial, Terrill Reynolds was convicted of first degree robbery,

armed criminal action, and unlawful possession of a firearm. Reynolds appeals,

contending the circuit court erred in overruling his hearsay objections and admitting

into evidence several screenshots of his cell phone call log. For reasons explained

herein, we find no error and affirm Reynolds' convictions.
                             FACTUAL AND PROCEDURAL HISTORY1

       On November 20, 2011, Kevin Dulle was working the overnight shift as a

taxi cab driver in Jefferson City when he was dispatched to a McDonald's parking

lot to pick up a passenger around 3:00 am. As Dulle arrived, a man and two

women approached the cab from across the parking lot. Dulle noticed that one of

the women was wearing a pink hoodie. The three entered the back seat of the

cab, with the man sitting directly behind the driver's seat. One of the women told

Dulle that they were going to the 800 block of East Elm Street. Dulle drove the

three to their destination, which took approximately five minutes.

       As the cab approached the 800 block of East Elm, Dulle heard "three clicks"

from the back seat. He glanced back and saw the two women "bolt out" of the

taxi and run away. The man pointed a gun between the two front seats of the cab

and demanded Dulle’s money bag. Dulle retrieved his money bag from under the

driver’s seat and gave it to the man. After standing beside the car for a few

moments to count the $425 in the bag, the man ran behind the buildings on the

800 block of East Elm.

       After the robbery, Dulle drove to his usual parking spot and flagged down a

police officer to report the robbery. The officer contacted the cab company and

obtained the phone number of the person who had requested the cab. The officer

also called the phone number but there was no answer.

1
  Reynolds does not challenge the sufficiency of the evidence to support his convictions. On review
of a judgment entered on a jury verdict, the appellate court reviews the evidence in the light most
favorable to the verdict, disregarding evidence to the contrary. State v. Brown, 438 S.W.3d 500,
503 (Mo. App. 2014).

                                                2
      A few hours later, around 6:40 a.m., police were dispatched to a disturbance

at Keeyata Taylor's apartment at 808 East Elm Street—the same block where the

robbery took place. Taylor told police that two people in the apartment, Chtonia

Battile and Terrill Reynolds, had been involved in a robbery and then had argued

over the money obtained. Wilford Gatlin, who was also in the apartment, told

officers that Reynolds had a black handgun at the time the argument occurred with

Battile. Another witness in the apartment described Battile as wearing a pink

hoodie.

      Taylor gave police officers permission to enter and search the apartment.

Officers found wads of money placed in several unusual locations around the

apartment, a gun magazine clip located on a closet floor, and a black handgun

hidden behind a water heater in another closet. They encountered Reynolds in a

bedroom and retrieved a cell phone that was lying on a dresser in that room. Wads

of money were also found in the bedroom.

      Based on the disturbance and the information obtained at the apartment, the

police arrested Reynolds. Dulle later identified Reynolds in a live line-up as the man

involved in the robbery. Dulle also identified the black handgun as the one used in

the robbery. The officers obtained a search warrant to examine the contents of the

cell phone found at the apartment.




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          The State charged Reynolds with first-degree robbery, armed criminal action,

and unlawful possession of a firearm.2 At the jury trial, the State presented

testimony from Keeyata Taylor and Wilford Gatlin, as well as the police officers

who investigated the robbery and subsequent disturbance in the 800 block of East

Elm Street. As relevant to this appeal, Taylor identified the cell phone as the one

Reynolds had with him when he arrived at her apartment early that morning. A

police officer further testified that the cell phone had the same number as the one

used to call for the taxi prior to the robbery. The officer also testified that he

examined the cell phone’s contents by scrolling through its menus and then took

screenshots3 while reviewing the call log in front of a video camera.

          The State introduced Exhibits 38 and 39, which were screenshots showing

the phone’s incoming calls and missed calls on the date of the robbery. Reynolds

objected to both exhibits, stating, “…they are hearsay. They are not business

records that can be certified.” The court overruled the objection and admitted the

screenshots into evidence. The police officer later testified that the call log

showed a telephone call was made to the phone number of Reynolds’ sister at

3:27 a.m., shortly after the time of the robbery. The log also showed that the

phone received a phone call from the police department on the date of the robbery.

          The jury convicted Reynolds on all three counts, and the circuit court

sentenced him as a persistent offender to concurrent prison terms totaling twenty

2
 Reynolds was also charged with receiving stolen property in violation of section 570.080.4(3)(d),
but this charge was later dismissed.

3
    Screenshots are photographs taken of a screen display on a cell phone or other electronic device.

                                                   4
years. Reynolds appeals his convictions, challenging the admission of the cell

phone screenshots.

                                       STANDARD OF REVIEW

       A trial court's decision to admit or exclude evidence will be reversed only if

the trial court has abused its discretion. State v. Cady, 425 S.W.3d 234, 244

(Mo. App. 2014). An abuse of discretion occurs when the ruling is "clearly against

the logic of the circumstances and is so unreasonable as to indicate a lack of

careful consideration." State v. Forrest, 183 S.W.3d 218, 223 (Mo. banc 2006).

Additionally, this court reviews the trial court "for prejudice, not mere error, and

will reverse only if the error was so prejudicial that it deprived the defendant of a

fair trial." Id. (citation omitted).

                                             ANALYSIS

       In his sole point on appeal, Reynolds contends the trial court abused its

discretion in overruling his hearsay objection and admitting Exhibits 38 and 39,

which were screenshots of the call logs from his cell phone. Reynolds also

contends the court erred in admitting the screenshots because the State “lacked

sufficient foundation” to show that Reynolds owned the cell phone. However,

because Reynolds failed to object to Exhibits 38 and 39 on foundational grounds at

trial, the latter argument is waived for purposes of appeal.4 State v. Honsinger,


4
  The record indicates that Reynolds’ trial counsel objected to the admission of certain text
messages on the foundational ground that Reynolds’ ownership of the cell phone had not been
established. At oral argument, counsel acknowledged that no such objection was made to the
screenshots (Exhibits 38 and 39) and, at that time, requested plain error review pursuant to Rule
30.20. We decline our discretion to grant such review because, as explained infra, no prejudice
resulted from the admission of the screenshots and thus, necessarily, no manifest injustice.

                                                 5
386 S.W.3d 827, 829 (Mo. App. 2012). We will only address the argument that

was preserved by Reynolds’ objection that the screenshots were inadmissible

hearsay because they did not qualify as business records.

      Hearsay is defined as "any out-of-court statement that is used to prove the

truth of the matter asserted and that depends on the veracity of the statement for

its value." State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997). In

general, hearsay is inadmissible unless it falls within a recognized exception. State

v. Tindle, 395 S.W.3d 56, 63 (Mo. App. 2013).

      Reynolds relies on State v. Courtney, 258 S.W.3d 117 (Mo. App. 2008) to

support his contention that the call logs are inadmissible hearsay. However,

Courtney involved an officer's testimony about call logs given to him by a third

party. Id. at 120. Reynolds' reliance on Courtney is misplaced because the actual

call logs were not admitted into evidence in that case. Here, the officer's

testimony was based on his own personal examination of Reynolds’ cell phone, and

the actual call logs from the phone were admitted into evidence as screenshots.

      This case is more akin to State v. Dunn, 7 S.W.3d 427 (Mo. App. 1999),

which involved the use of records generated by a computer without the aid of

human input. In Dunn, the defendant made a hearsay objection to computer-

generated telephone billing records, which established that certain calls were made

from the victim's phone number. Id. at 430–31. Rejecting the defendant's

argument, our court held that computer-recorded data documenting a phone call

should not be treated as hearsay because it is not the statement of a human

                                          6
declarant. Id. at 432. Rather, the admissibility of the electronic data “should be

determined on the basis of the reliability and accuracy of the process” used to

create and obtain the data. Id. The court concluded that the recorded data in

Dunn was “uniquely reliable in that [it was] computer-generated rather than the

result of human entries.” Id.

      Likewise, in this case, the call logs obtained from Reynolds’ cell phone are

not hearsay because they were not statements made by a human declarant. The

call logs were generated by the phone itself as a result of incoming and outgoing

calls. The police officer who examined the phone testified extensively about the

process he used to obtain the screenshots of the call logs. He noted that the call

log showed the phone had a missed call from the police department on the date of

the robbery. This missed call was consistent with testimony that an officer had

called the phone number provided by the taxi company prior to Reynolds’ arrest.

The officer’s testimony helped to establish the reliability of the logs by confirming

that the data was created by the computerized operation of the phone and not by

human entries. The officer also verified that the phone was accurately reporting

the date and time.   Accordingly, the circuit court did not err in overruling the

hearsay objection and admitting Exhibits 38 and 39 into evidence.

      We further note, ex gratia, that even if the circuit court erred in admitting

the evidence, there was no prejudice to warrant reversal. "In criminal cases

involving the improper admission of evidence, the test for prejudice 'is whether the

improper admission was outcome-determinative.' " State v. Berwald, 186 S.W.3d

                                          7
349, 362 (Mo. App. 2005) (citation omitted). In other words, the question is

whether the jury would have acquitted but for the erroneously admitted evidence.

State v. Black, 50 S.W.3d 778, 786 (Mo. banc 2001).

      In this case, the State’s use of the call logs was only a minor part of the

evidence tying Reynolds to the robbery. Dulle twice identified Reynolds—in the live

line-up and at trial—as the man who robbed him in the cab. Two witnesses

testified that they heard Reynolds admit that he had just robbed a cab driver after

he had entered Taylor's apartment. These witnesses also testified that throughout

the night, they saw Reynolds holding the handgun that was used in the robbery.

Furthermore, Taylor said that she saw Reynolds using the phone that police found

in the apartment, which was shown by the cab company's records to be the same

phone used to request the cab that night. Reynolds ownership of the phone was

also established by an officer’s testimony that Reynolds requested to see the

phone, during police questioning, so that he could retrieve the phone numbers of

his mother and sister. Even without the call logs, the evidence was more than

sufficient to support the jury’s finding that Reynolds' was guilty beyond a

reasonable doubt. The point on appeal is denied.

                                    CONCLUSION

      We affirm the circuit court’s judgment.


                                              ____________________________________
                                              LISA WHITE HARDWICK, JUDGE
ALL CONCUR.



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