#27838-r-SLZ
2017 S.D. 21

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA


                                    ****
STATE OF SOUTH DAKOTA,                       Plaintiff and Appellee,

      v.

NATHAN DALE STOKES,                          Defendant and Appellant.

                                    ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                 THE HONORABLE DOUGLAS E. HOFFMAN
                               Judge

                                    ****


MARTY J. JACKLEY
Attorney General

CAROLINE SRSTKA
Assistant Attorney General
Pierre, South Dakota                         Attorneys for plaintiff
                                             and appellee.


BEAU J. BLOUIN of
Minnehaha County Public
Defender’s Office
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellant.


                                    ****
                                             CONSIDERED ON BRIEFS
                                             FEBRUARY 13, 2017
                                             OPINION FILED 05/03/17
#27838

ZINTER, Justice

[¶1.]        Nathan Stokes appeals from convictions of simple assault and

intentional damage to property. He argues that the trial court erred in admitting

purported business records (a text-message log). We reverse and remand for a new

trial.

                           Facts and Procedural History

[¶2.]        Nathan Stokes is the ex-boyfriend of Lyndsey Braunesreither. The two

met on Facebook and became involved in an on-and-off relationship for roughly four

years. Stokes lived with Braunesreither in Sioux Falls from January 2014 to

August or September 2014. They then dated casually until June or July 2015.

They broke up at the end of July 2015.

[¶3.]        On August 13, 2015, Braunesreither returned home from work

sometime after 8:20 p.m. and let her dogs outside. Braunesreither and her

boyfriend at that time, Michael Blue, planned to meet at Braunesreither’s home

later that evening. Braunesreither’s and Stokes’s accounts of the rest of the evening

sharply conflict.

[¶4.]        According to Braunesreither, her doorbell rang around 8:53 p.m. She

expected Blue but found Stokes standing at the door. She told Stokes he needed to

leave, but Stokes said he would not until she spoke with him. Braunesreither

responded that she was going to call the police. As Braunesreither went upstairs to

get her phone, she could hear the garage side door being kicked in. Braunesreither

retrieved pepper spray from her purse and went downstairs to get the dogs. At that

point, Braunesreither found Stokes standing near her fireplace and she discharged


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the pepper spray, hitting Stokes in the face. Stokes responded by throwing

Braunesreither to the ground, wresting the pepper spray from her, and spraying

her. Braunesreither then kicked Stokes, grabbed a bar stool from the kitchen to

keep Stokes at a distance, and attempted to leave through the front door. However,

Stokes blocked her, holding the door closed. Stokes told Braunesreither to go

downstairs. Braunesreither then promised that she would not call the police if

Stokes just left. Stokes ultimately left and she could hear car “wheels peel out” as

he departed.

[¶5.]          Braunesreither then locked the front door, rinsed her eyes out, and

called the police at 9:05 p.m. Two officers responded. Upon arrival, the officers

confirmed that pepper spray or some sort of chemical irritant had been used inside

the house. They also observed the bar stool on the floor. One officer further

observed that the door leading to the garage had a split locking mechanism and a

boot mark in the middle with scrapes and marks consistent with it being kicked in.

Stokes could not be located by the police at that time.

[¶6.]          Stokes’s version of that night was quite different. He denied being at

Braunesreither’s residence at the time alleged. Stokes claimed that he was at

home, sick with the flu and texting friends. More specifically, he claimed that he

was sick with the flu during the week of August 10, that he did not go into work on

August 12, and that he was sent home after his first morning break on August 13.

Stokes claimed that he spent the remainder of that day and evening at home

napping and texting his friends Abbey and Rachel.




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[¶7.]         Stokes was indicted on two counts of burglary in the first degree; three

counts of simple assault; one count of false imprisonment; and one count of

intentional damage to property. A part II information alleged that Stokes had been

convicted of three prior felonies. An amended part II information alleged that he

had been convicted of two prior assaults within the last ten years.

[¶8.]         During cross-examination of Stokes at trial, the State offered Exhibit

14 “as a self-authenticating business record.” Exhibit 14 purported to be Verizon’s

log of Stokes’s text messages sent and received on August 13, 2015, between 8:50

p.m. and 9:59 p.m., encompassing the time that Braunesreither alleged Stokes was

inside her home. The exhibit showed no texting on Stokes’s phone during the time

of the alleged crime. The exhibit was offered to rebut Stokes’s claim that he was at

home texting Abbey and Rachel. Stokes objected to the exhibit for lack of

foundation.

[¶9.]         At that point the State attempted to establish a foundation through

Stokes. The State asked him whether Verizon was his cellular-phone carrier; if his

phone number was the one listed in Exhibit 14 as sending and receiving text

messages; whether one of the phone numbers listed on the log was Rachel’s; and

whether he had received a text message from Rachel at 8:50 p.m. Stokes responded

that Verizon was his carrier, and that the number listed was his. However, he

could not recall what Rachel’s phone number was or if he had received a text

message from her at that time. The State then asked Stokes if he remembered

receiving a text message at 8:50 p.m. “from someone,” and Stokes replied that he

did remember. So the State then asked if Stokes thought the records were incorrect


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if they indicated that he received a text message at 8:50 p.m. Stokes replied that he

did not think they would be incorrect. The State then pointed out that the phone

records did not indicate a reply message was sent to that text message until 9:22

p.m., and the State again asked Stokes if he believed the record to be inaccurate.

Stokes responded that he did not believe it was inaccurate. He did not, however,

admit that Exhibit 14 was what it was purported to be: a Verizon record of all of his

text messages made and received from his phone during the time in question.

[¶10.]       Stokes reasserted his foundation objection after this showing, and the

trial court took the offer under advisement. The court later overruled Stokes’s

objection, stating that the cell phone records were not “testimonial” in nature, which

suggested that there may have been some concern about a hearsay–confrontation

question. See generally Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,

158 L. Ed. 2d 177 (2004). Stokes, however, renewed his business-record-foundation

objection, arguing that the State failed to introduce a witness who could testify that

the log was “kept in the normal course of business records or anything along those

lines.” The court overruled the objection and admitted the records, ruling that the

records were admissible based on “a combination of the inherent reliability of cell

phone records as being his or her records of his or her own cell phone are

characterized by [an] inherent guarantee of trustworthiness.”

[¶11.]       Stokes was found guilty of misdemeanor simple assault (count 5

alleging assault by physical menace) and misdemeanor intentional damage to

property (count 7 alleging damage to Braunesreither’s garage side door). The jury

acquitted on the remaining charges involving conduct allegedly occurring inside the


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home: assault (counts 3 and 4 alleging an attempt to cause and recklessly causing

bodily injury to Braunesreither), burglary (counts 1 and 2 alleging entry or

remaining in the home), and false imprisonment (count 6 alleging the actual

restraint of Braunesreither). Pursuant to the part II information, Stokes was

sentenced to two years in the penitentiary with credit for time served. He appeals,

contending that the circuit court erred in admitting the cellular-phone records. 1

                                         Decision

[¶12.]         We review evidentiary rulings under the abuse of discretion standard.

State v. Martin, 2015 S.D. 2, ¶ 7, 859 N.W.2d 600, 603. Additionally, “evidentiary

rulings made by the trial court are presumed correct[.]” State v. Berget,

2014 S.D. 61, ¶ 13, 853 N.W.2d 45, 51-52. However, “admission of evidence in

violation of a rule of evidence is an error of law that constitutes an abuse of

discretion[.]” Johnson v. O’Farrell, 2010 S.D. 68, ¶ 12, 787 N.W.2d 307, 312.

[¶13.]         Exhibit 14 purports to be Verizon’s record of all of Stokes’s cellular-

phone activity at the exact time the crimes were alleged to have occurred. Business

records qualify for a hearsay exception if they are records of a regularly conducted

business activity. The exception requires that:

               (A)   The record was made at or near the time by—or from
               information transmitted by—someone with knowledge;
               (B)    The record was kept in the course of a regularly conducted
               activity of a business, organization, occupation, or calling,
               whether or not for profit;



1.       Stokes also contends that the circuit court abused its discretion in failing to
         admonish the jury to not speculate on the answer to a withdrawn question
         regarding limitations on Stokes’s visitation with his children. Because we
         are remanding for a new trial, we do not reach this question.

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             (C)    Making the record was a regular practice of that activity;
             (D)   All these conditions are shown by the testimony of the
             custodian or another qualified witness, or by a certification that
             complies with a rule or a statute permitting certification; and
             (E)   The opponent does not show that the source of
             information or the method or circumstances of preparation
             indicate a lack of trustworthiness.

SDCL 19-19-803(6)(A)-(E) (emphasis added). Thus, foundation for admissibility

requires the “testimony of the custodian or [an]other qualified witness” that the

records have been prepared and kept in the course of a regularly conducted business

activity. DuBray v. S.D. Dep’t of Soc. Servs., 2004 S.D. 130, ¶ 15, 690 N.W.2d 657,

662-63 (quoting SDCL 19-16-10 (transferred to SDCL 19-19-803(6)(D)).

Alternatively, that foundation may be laid by a written certification of those

conditions made in compliance “with a rule or a statute permitting certification[.]”

SDCL 19-19-803(6)(D).

[¶14.]       SDCL 19-19-902(11) is a rule permitting certification of the

foundational requirements for admission of domestic records of any regularly

conducted activity. To provide the necessary foundation for admission of business

records, the certification must “meet[] the requirements of [SDCL] 19-19-803(6)(A)

[to] (C) as shown by a certification of the custodian or another qualified person[.]”

SDCL 19-19-902(11). “In other words, Rule 902(11) extends Rule 803(6) ‘by

allowing a written foundation [for a business record] in lieu of an oral one.’” 5 Jack

B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 902.13[1], at

902-37 (Mark S. Brodin ed., 2d ed. rel. 114-11/2015) (quoting United States v.

Adefehinti, 510 F.3d 319, 327-328 (D.C. Cir. 2007)). Ultimately, whether by

testimony under SDCL 19-19-803(6)(D) or certification under SDCL 19-19-902(11),

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foundation must be laid by the custodian or another qualified person. The

custodian or other qualified person must show that the record was made at or near

the time of the recorded act, event, condition, opinion, or diagnosis by—or from

information transmitted by—someone with knowledge; that the record was kept in

the course of a regularly conducted activity of the business; and that making the

record was a regular practice of that activity. SDCL 19-19-803(6)(A) to (C).

[¶15.]       Here, Exhibit 14 was hearsay, and it was admitted over objection and

without testimony or certification of the foregoing foundational requirements for the

hearsay exception that is available for business records. As Stokes correctly

observes, there was no testimony or certificate explaining how and when the data

was generated. Thus, there was no foundation for the hearsay exception permitted

under SDCL 19-19-803(6).

[¶16.]       The State responds to this foundational deficiency, arguing that Stokes

“authenticated” the record generated by his cell phone during his cross-

examination. Stokes, however, only made limited admissions regarding certain

entries on the exhibit. He offered no testimony regarding the business activity that

created what was purported to be a Verizon log of all messages sent and received

during the time of the alleged offense. “[A] proper foundation consists of testimony

‘that a document has been prepared and kept in the course of a regularly-conducted

business activity.’” DuBray, 2004 S.D. 130, ¶ 15, 690 N.W.2d at 662 (quoting State

v. Brown, 480 N.W.2d 761, 763 (S.D. 1992)). But Stokes was not a custodian of the

record or “other qualified witness” who could provide that foundation for the log.

See SDCL 19-19-803(6)(D). While “[t]he phrase ‘another qualified witness’ is given


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a very broad interpretation,” the witness must nonetheless possess “enough

familiarity with the record-keeping system of the entity in question to explain how

the record came into existence in the course of a regularly conducted activity of the

entity.” 5 Weinstein, supra ¶ 14, § 803.08[8][a], at 803-83 to -86.

[¶17.]       Notwithstanding this foundational deficiency, the State contends that

Exhibit 14 was admissible because it was “authenticated” under SDCL

19-19-901(b)(1) and 901(b)(6). SDCL 19-19-901(b) offers a non-exhaustive list of

examples satisfying the general authentication requirement that an “item is what

the proponent claims it is.” See SDCL 19-19-901(a). SDCL 19-19-901(b)’s examples

include:

             (1)   Testimony of a witness with knowledge. Testimony that
             an item is what it is claimed to be.
             ...
             (6)   Evidence about a telephone conversation. For a telephone
             conversation, evidence that a call was made to the number
             assigned at the time to:
                    (A)    A particular person, if circumstances, including
                    self-identification, show that the person answering was
                    the one called . . . .

SDCL 19-19-901(b)(1), -(6)(A). The State notes that Stokes “identified his phone

number, which was the same target phone number listed on Exhibit 14’s text

message logs. [Stokes] also testified that his cell phone carrier is Straight Talk,

which is part of Verizon Wireless.” According to the State, this evidence satisfied

the authentication rules’ requirements.

[¶18.]       The State’s reliance on the authentication rules in

SDCL 19-19-901(b)(1) and (b)(6) is misplaced because it is based on the erroneous

premise that authentication of a document satisfies the foundational requirements

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necessary to qualify for a hearsay exception. Authenticating an item of evidence

only concerns the production of “evidence sufficient to support a finding that the

item is what the proponent claims it is.” SDCL 19-19-901(a). SDCL

19-19-803(6)(D), however, requires more. It sets forth additional foundational

requirements to qualify a business record under the business-records hearsay

exception. As previously noted, to qualify for the hearsay exception, the proponent

must produce foundational testimony or certification required for business records.

Because the hearsay rules require this additional foundational showing, a

proponent seeking admission must not only authenticate in accordance with

SDCL 19-19-901 (show that the exhibit is a record of what the proponent claims it

is), but also lay the foundation required in SDCL 19-19-803(6) (show that the

exhibit was kept and prepared in the course of a regularly conducted business

activity). See Zafer Taahhut Insaat ve Ticaret A.S. v. United States, 833 F.3d 1356,

1365 (Fed. Cir. 2016) (holding “[a]uthentication and hearsay are two separate

requirements” that cannot be conflated).

[¶19.]         Thus, authentication that Exhibit 14 was a copy of Stokes’s cell-phone

log under SDCL 19-19-901 did not substitute for the required showing that the log

was also kept and prepared in the ordinary course of a regularly conducted business

activity. Because the State did not lay the required foundation for Exhibit 14’s

admission under the hearsay exception, the circuit court erred as a matter of law in

admitting the exhibit. 2



2.       We also note that Stokes’s cross-examination was not sufficient to either
         “authenticate” the business record as required by SDCL 19-19-901(a) or, as
                                                              (continued . . .)
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[¶20.]       The remaining question is whether the error prejudiced Stokes. An

error in admitting evidence under SDCL 19-19-803(6) “does not warrant reversal

absent a showing that substantial rights of the party were affected.” Brown,

480 N.W.2d at 764. This requires a showing that the error must have “in all

probability” affected the jury’s decision. Martin, 2015 S.D. 2, ¶ 7, 859 N.W.2d at

603.

[¶21.]       Stokes argues that Exhibit 14 affected the jury’s decision because “the

cell phone records were a significant piece of evidence in a closely contested case.”

Stokes points out that the case required a resolution of a credibility dispute between

Stokes and Braunesreither concerning his presence at her home at the time she

claimed: his defense was that he was home texting at that time, and the exhibit

negated his claim. The State, however, contends that Exhibit 14’s admission did


_________________________________
(. . . continued)
         the circuit court apparently ruled, satisfy the hearsay rule because the
         exhibit was inherently reliable and trustworthy. See SDCL 19-19-807
         (granting a hearsay exception for statements that have “equivalent
         circumstantial guarantees of trustworthiness”). Exhibit 14 was offered to
         rebut Stokes’s defense that he was at home texting at the time of the alleged
         crimes. The exhibit rebutted that defense only because it purported to be a
         log of all Stokes’s text messages, and according to the exhibit, there was no
         text message activity during the relevant times. But Stokes did not admit in
         his cross-examination that Exhibit 14 was a complete Verizon record of all
         his cellular-phone messages for the time in question. He only made
         concessions regarding his cell carrier and two numbers on the exhibit.
         Moreover, the “text log” is on the last page of the exhibit, and that page
         contains nothing but a list of numbers and times with no reference to
         Verizon. Thus, with respect to authentication, Stokes did not concede that
         the record “was what the proponent claims it [was].” See SDCL 19-19-901(a).
         And with respect to hearsay, the exhibit was not facially admissible as a
         matter of law under the residual hearsay exception in SDCL 19-19-807. The
         State has not argued that the other procedural and substantive requirements
         for the Rule 807 residual hearsay exception were satisfied.

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not affect the jury’s verdict because Exhibit 14 was merely cumulative. The State

argues that its other evidence—Braunesreither’s testimony and the physical

evidence—was sufficient to convict.

[¶22.]       The State’s reliance on the other evidence is misplaced.

Braunesreither’s credibility was the central issue in the case, and the physical

evidence did not corroborate Braunesreither’s testimony regarding the identity of

the perpetrator. The physical evidence included photographs depicting damage to

the garage door, pepper spray residue, the barstool, and Braunesreither’s injuries.

That evidence did tend to prove that there was an assailant, but not that it was

Stokes.

[¶23.]       The ultimate issue for the jury was whether Stokes was at home

texting or whether he was at Braunesreither’s home engaging in all of the acts she

alleged. Stokes correctly points out that although he testified that he was at home

texting at the time alleged, the cell-phone log “leaves open a period of time between

8:50 p.m. and 9:22 p.m. during which Stokes [was not texting and] may have been

at least present outside Braunesreither’s home and exhibiting threatening

behavior.” That period of time was significant because although the jury apparently

disbelieved Braunesreither and acquitted on the five charges involving the later,

more extensive acts in the home, it convicted on the two charges involving the

initial, brief activity outside the home. Further, the State concedes in its brief that

Exhibit 14 “had a tendency to make the fact that [Stokes] was home sick texting all

night less probable.” For these reasons, we agree there is a reasonable probability

that admission of the cell-phone log contributed to the jury’s decision. Because the


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evidentiary error was prejudicial, we reverse and remand for a new trial on counts 5

and 7.

[¶24.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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