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State v. Fell

Court of Appeals of Arizona, Second Division

April 4, 2017

The State of Arizona, Petitioner,
v.
Hon. Howard Fell, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Bryan Mitchell Lietzau, Real Party in Interest.

         Special Action Proceeding Pima County Cause No. CR20162952001.

          Barbara LaWall, Pima County Attorney By Nicolette Kneup, Deputy County Attorney, Tucson Counsel for Petitioner

          Steven R. Sonenberg, Pima County Public Defender By Abigail Jensen, Christopher Lynch, and Abigail Okrent, Assistant Public Defenders, Tucson Counsel for Real Party in Interest

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Howard and Judge Vásquez concurred.

          OPINION

          ECKERSTROM, Chief Judge:

         ¶1 In this special action, the State of Arizona seeks relief from the respondent judge's order precluding recordings of jail telephone calls and visits involving the real party in interest, defendant Bryan Lietzau, and the judge's order precluding a transcript purportedly showing text messages between Lietzau and the minor victim. Because the state has not asserted it would have presented any precluded recordings at trial absent the respondent's order, we decline to accept jurisdiction to consider that issue. However, because the respondent erred by concluding the state could not present sufficient evidence to authenticate the transcript pursuant to Rule 901, Ariz. R. Evid., and the state has no remedy by appeal, we accept jurisdiction to address that issue and grant relief. See Ariz. R. P. Spec. Actions 1(a), 3(c).

         Background

         ¶2 Lietzau was charged with six counts of sexual conduct with a minor under the age of fifteen based on his alleged sexual relationship with then thirteen-year-old S. in 2014. The state disclosed a document purporting to be a transcript of text messages between Lietzau and the victim. Lietzau's probation officer had manually transcribed the messages from a smartphone he had taken from Lietzau on December 10, 2014. The transcript consists of dozens of messages sent over a four-day period from December 6 to December 10, 2014, and reflects a romantic and sexual relationship between the participants.

         ¶3 Lietzau moved to exclude the text-message transcript, arguing inter alia that the state could not provide sufficient proof the messages were between him and the victim and thus could not comply with Rule 901. Lietzau asserted both he and S. had denied messaging each other and that a third party, T., had used Lietzau's phone to message S.-which T. had corroborated during an interview. Lietzau also pointed out that the messages were not found in a later forensic examination of the phone, that the probation officer could not recall the program he had used to view the messages on the phone, and that the service for the phone was registered to Lietzau's mother.

         ¶4 The state responded that the probation officer had claimed Lietzau told him the messages were from S. and that the messages were consistent with other evidence. The state noted that S. had admitted having a sexual relationship with Lietzau and that she would testify about exchanged text messages between them. Additionally, according to the state, recordings of jail calls showed Lietzau had asked family members to contact S., had given her a phone, and referred to the fact he had carved "[S.] is mine" on his arm. The state also noted that Lietzau had identified himself in one of the messages. After hearing argument, the respondent judge granted Lietzau's motion, stating the transcript was precluded because the phone was not in Lietzau's name and "other people had access to it." This petition for special action followed.

         Discussion

         ¶5 We review the respondent judge's authentication ruling for an abuse of discretion. State v. Forde, 233 Ariz. 543, ¶ 74, 315 P.3d 1200, 1220 (2014). "An 'abuse of discretion' is discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Torres v. N. Am. Van Lines, Inc., 135 Ariz. 35, 40, 658 P.2d 835, 840 (App. 1982), quoting Quigley v. City Ct. of Tucson, 132 Ariz. 35, 37, 643 P.2d 738, 740 (App. 1982). A trial court abuses its discretion if it makes an error of law in reaching its decision or makes a discretionary finding of fact that is not justified by reason. State v. Aguilar, 224 Ariz. 299, ¶ 6, 230 P.3d 358, 359-60 (App. 2010).

         ¶6 "To authenticate an item of evidence, the 'proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.'" Forde, 233 Ariz. 543, ¶ 74, 315 P.3d at 1220, quoting Ariz. R. Evid. 901(a). The trial court "does not determine whether the evidence is authentic, but only whether evidence exists from which the jury could reasonably conclude that it is authentic." State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991). If that standard is met, any uncertainty goes to the weight rather than the admissibility of the evidence. State v. George, 206 Ariz. 436, ¶ 31, 79 P.3d 1050, 1060 (App. 2003).

         ¶7 "[A] flexible approach is appropriate, allowing a trial court to consider the unique facts and circumstances in each case-and the purpose for which the evidence is being offered-in deciding whether the evidence has been properly authenticated." State v. King,226 Ariz. 253, ¶ 9, 245 P.3d 938, 942 (App. 2011), quoting State v. Haight-Gyuro,218 Ariz. 356, ¶ 14, 186 P.3d 33, 37 (App. 2008) (alteration in King). A party can authenticate evidence by various means, including "[testimony of a witness with knowledge" or "[distinctive characteristics and the like, " such as the "contents, substance, internal patterns, or other distinctive characteristics" of the evidence. Ariz. R. Evid. 901(b)(1), (4). Telephone conversations, which are analogous to text messages, may also be authenticated by "evidence that a call was made to the number ...


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