State Of Washington, V. Justin Roosma

498 P.3d 59

• Court: Court of Appeals of Washington
• Decided: November 9, 2021
• Docket: 54566-7
• Status: Published

Opinion

Filed Washington State Court of Appeals Division Two

November 9, 2021 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 54566-7-II

Respondent,

v.

JUSTIN ROBERT ROOSMA, PUBLISHED OPINION

Appellant.

GLASGOW, A.C.J.—Justin Robert Roosma was charged with felony harassment after his

girlfriend, Jennifer Dettwiler,1 reported that he sent her a text message threatening to kill her.

Before trial, Roosma moved to exclude a series of text messages including the threatening text,

arguing that the messages were inadmissible under ER 901 because they could not be

authenticated. The State responded with an offer of proof, describing the authentication testimony

it planned to offer. The trial court denied Roosma’s motion in limine at that time. At trial, the State

offered authentication testimony through Dettwiler. Roosma’s counsel said they had no objection

to admission of the text messages at trial, and the court admitted the messages.

Roosma appeals his conviction, contending that the State failed to properly authenticate

the text messages and that the trial court abused its discretion by admitting them. The State argues

that the issue is not properly preserved because Roosma did not object to the admission of the

1 Jennifer Dettwiler also went by Jennifer Wiseman and Jennifer Roosma at various times. Jennifer’s maiden name, Dettwiler, was the last name she used at the time of the trial. For consistency, we use Dettwiler throughout. No. 54566-7-II

messages at trial. We agree with the State that Roosma did not preserve his objection to

authenticity of the text messages. We affirm.

FACTS

Roosma and Dettwiler briefly dated in 2010, ended their romantic relationship, and married

other people. Roosma and Dettwiler continued to cross paths, however, because they lived in the

same neighborhood and had children of similar ages.

Roosma and Dettwiler began dating again in 2019. Roosma controlled where Dettwiler

went and monitored her interactions with other people, especially men. Roosma looked through

Dettwiler’s phone daily, used an application on her phone to track her location, and engaged in

other controlling behaviors. Roosma physically assaulted Dettwiler multiple times during their

relationship in 2019, including one incident when Roosma grabbed and squeezed Dettwiler’s face

hard enough to break one of her teeth.

On December 12, 2019, Dettwiler went to her adult daughter’s apartment to visit and

babysit her grandchildren. Roosma was mad because Dettwiler was spending time with other

people. Even though Roosma could track Dettwiler’s location, he called to confirm that Dettwiler

was at her daughter’s apartment. He then video called Dettwiler and made her display her

surroundings because he did not believe her. According to Dettwiler, “[E]ven [after the video call]

he still didn’t believe me. He thought I was meeting up with somebody or doing something that

was shady or deceiving.” 3 Verbatim Report of Proceedings (VRP) at 274. Dettwiler recalled that

Roosma video called her “probably 15 [or] 20 more times and called [her on the phone] probably

20 [or] 25 more times at least” that afternoon and evening. Id.

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Roosma also sent Dettwiler numerous text messages while she was at her daughter’s

apartment. At trial, Dettwiler said she knew the messages were from Roosma because there was

an “M” next to the incoming messages. The “M” appeared next to Roosma’s messages because

Dettwiler had saved his contact information in her phone under the nickname “My Forever.” Id.

at 276. At some point that evening, Dettwiler blocked Roosma’s phone number because “he was

messaging me so much and being really rude. But he just downloaded other phone numbers [using

a cell phone application] and just messaged me from all different kinds of phone numbers.” Id. at

275.

Prior to blocking Roosma’s number, Dettwiler received a series of text messages from

Roosma that she later photographed. One of the messages said, “I’m f***ing going to kill you

b**ch.” Id. at 281; Pl.’s Trial Ex. 3.

Dettwiler took the threat seriously and feared for her life. However, Dettwiler was also

scared to contact the police right away because she did not “want to be on the receiving end of

[Roosma’s] anger.” 3 VRP at 281. Dettwiler instead tried to de-escalate the situation by calling

Roosma and “reassuring him that I wasn’t cheating on him and that I really was only just visiting

my grandkids.” Id. at 282. Roosma continued to call Dettwiler that night, alternating between being

angry and apologetic.

Using her daughter’s phone, Dettwiler photographed several of the texts she received,

including the accusation that she was having sex with another man and the message threatening

her life, which appeared in succession. At trial, Dettwiler explained, “I didn’t want to screenshot

[them] on my phone because then he would see it and want to know why I did that.” Id. at 276.

Dettwiler also worried that Roosma would delete any screenshots from her phone if he found them.

3 No. 54566-7-II

Dettwiler spent the night at her daughter’s apartment. Dettwiler turned her phone off during

the night, but in the morning she saw that Roosma had called and texted her throughout the night,

sending messages that continued to alternate between angry outbursts and apologies. Dettwiler

canceled her shared phone plan with Roosma and bought a new phone.

Dettwiler then told Roosma over the phone that she wanted to end their relationship.

Roosma responded by telling Dettwiler to choose between him and her children and that if she left

him, “there was nobody on earth that would be able to help [her] and that he would never stop.”

Id. at 288. This made Dettwiler fear for her life, so two days after receiving the original threatening

text message, Dettwiler contacted law enforcement. Deputy Robert Langlow of the Pierce County

Sheriff’s Department responded to Dettwiler’s daughter’s apartment and interviewed Dettwiler.

Langlow asked Dettwiler if she believed Roosma would actually attempt to kill her. Dettwiler

responded by crying and saying, “[Y]es.” Id. at 358. Dettwiler showed Langlow a photo of the text

messages Roosma had sent her. The photo was on her daughter’s phone.

Langlow and other officers then went to the apartment Dettwiler and Roosma shared and

arrested Roosma. Roosma was charged with felony harassment under the threat to kill prong. RCW

9A.46.020(1)(a)(i), (b), (2)(b)(ii).

Later, Deputy Emily Holznagel, a domestic violence investigator with the Pierce County

Sheriff’s Department, met with Dettwiler. Dettwiler printed out the photos of the text messages

and gave the printout to Holznagel. Dettwiler also showed Holznagel her daughter’s phone, which

contained the photos of the text messages.

Before trial, Roosma orally moved to exclude the text messages that Dettwiler

photographed on her daughter’s phone, including the one threatening Dettwiler’s life, arguing they

4 No. 54566-7-II

could not be authenticated and were therefore inadmissible. Defense counsel argued that the

decision about their admissibility should be made before opening arguments.

The State responded with a brief offer of proof describing the anticipated testimony. The

State explained that Dettwiler would authenticate the messages by testifying how she knew they

were from Roosma, explaining that the threatening text was part of a longer message thread in

which Roosma accused her of cheating on him, and noting that Roosma “further elaborated” on

the threat in a later phone call. 1 VRP at 23.

Roosma also made a best evidence objection because the copies of the text messages were

printouts of pictures taken of the text messages. The trial court concluded that the best evidence

rule did not warrant exclusion and declined to exclude the text messages on this basis. Roosma

does not raise the best evidence rule on appeal.

The defense reiterated concerns about the threatening message being faked or from a

spoofed phone number and asked the court to “demand that that message be authenticated prior to

the State’s being able to reference it in opening and moving forward.” Id. at 25. The trial court

ruled that it would not exclude the threatening message at that time, explaining,

I think all of the issues that you have raised are issues that go to the weight, not the admissibility. In terms of the text message, the offer of proof indicates that [Dettwiler is] going to testify that the number that the text was received from is a number that was associated with Mr. Roosma, in addition, that there was a follow- up telephone call. I presume [Dettwiler is] going to testify that she recognized the voice and it was in fact Mr. Roosma and that it came from the same phone number. To the extent you want to attack her credibility or the credibility of the text message, you can absolutely do that on cross-examination.

....

5 No. 54566-7-II

. . . [O]bviously authentication is always an issue at trial, but based on the offer of proof that was made by the State, I’m not going to suppress the text message at this time.

Id. at 25-26 (emphasis added). The trial court did not further instruct Roosma to object to the

admission of the text messages at trial.

On direct examination, Dettwiler testified to the facts described above. The State showed

Dettwiler an exhibit that consisted of a series of text messages that included the threatening text

and asked her a series of authentication questions before seeking to admit the exhibit or have

Dettwiler testify about its contents. Dettwiler identified the exhibit as a printout of photographs

she had taken of some of the text messages Roosma sent her on December 12, 2019. The following

exchange then occurred:

[State] Is there some kind of communication on that exhibit?

[Dettwiler] Yes, messages from Justin [Roosma].

[State] And how do you know it’s from Mr. Roosma?

[Dettwiler] Because I never got messages from any other man but him, and my kids and I know that this is my phone because I had him in my phone as My Forever.

[State] And is that why there’s an M next to the messages?

[Dettwiler] Yes.

[State] And did that come from a phone number that you know is Mr. Roosma?

[State] And that’s why it’s in your phone as My Forever; is that right?

6 No. 54566-7-II

3 VRP at 275-76.

Dettwiler further explained that she took photos of the texts using her daughter’s phone

and then gave a printout of the photographs to law enforcement. Dettwiler confirmed that the

exhibit contained “a fair and accurate display of the text messages [she] received” and that they

had not been altered in any way. Id. at 277.

The State offered the exhibit into evidence. Roosma’s counsel responded that the defense

had “[n]o objection,” and the trial court admitted the text message exhibit. Id. at 278. Dettwiler

then testified about the content of the messages, and the exhibit was published for the jury.

The jury convicted Roosma of felony harassment based on a threat to kill. Roosma appeals

his conviction.

ANALYSIS

The State contends that this court should not review the merits of Roosma’s appeal because

the trial court’s pretrial decision depended on the actual testimony at trial. Defense counsel

expressly stated, “No objection” when the State moved to admit the text messages during trial and

so did not preserve for appeal any challenge to their admissibility. Id. We agree.

RAP 2.5(a) gives this court discretion to refuse to review a claim of error not preserved in

the trial court with limited exceptions not at issue here. See also State v. Guloy, 104 Wn.2d 412,

422, 705 P.2d 1182 (1985). And ER 103(a)(1) provides that a party cannot appeal an evidentiary

ruling unless that party made a “timely objection or motion to strike” at trial “stating the specific

ground of [the] objection” if not apparent from context.

7 No. 54566-7-II

The Washington Supreme Court has explained that “the purpose of a motion in limine is

to avoid the requirement that counsel object to contested evidence when it is offered during trial,”

so a standing objection arises “‘[u]nless the trial court indicates that further objections at trial are

required when making its ruling.’” State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995)

(alteration in original) (quoting State v. Koloske, 100 Wn.2d 889, 895, 676 P.2d 456 (1984),

overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988)). A standing

objection does not arise, however, where the trial judge reserves the ruling or “‘makes only a

tentative ruling subject to evidence developed at trial.’” Id. (quoting Koloske, 100 Wn.2d at 896).

When a trial court makes a ruling “subject to [the] evidence [to be] developed at trial, the parties

are under a duty to raise the issue at the appropriate time with proper objections at trial.”

Koloske, 100 Wn.2d at 896. The Supreme Court has held that the parties “are obligated to insure

that a record of the ruling is made for appeal purposes.” Id. “‘[W]hen a ruling on a motion in limine

is tentative, any error in admitting or excluding evidence is waived unless the trial court is given

an opportunity to reconsider its ruling’” when the evidence is submitted at trial. Powell, 126 Wn.2d

at 257 (alteration in original) (quoting State v. Carlson, 61 Wn. App. 865, 875, 812 P.2d 536

(1991)).

In Powell, some of the trial court’s pretrial rulings were final and some were not. Id. The

Supreme Court held that the trial court’s rulings were final where the judge “did not indicate that

any further objections would be necessary during trial” even though it made some “comments to

the effect that its rulings were subject to revision.” Id. Other factors supporting finality included

that the trial court commented at the end of the motion in limine hearing admonishing the parties

to comply with its rulings and that “the majority of the judge’s rulings were expressed in language

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that was neither tentative [n]or equivocal.” Id. But the Powell court held that the trial court reserved

ruling with regard to one issue where it “indicat[ed] that defense counsel needed to provide further

support for exclusion.” Id.

Recently, in State v. Dillon, Division One relied on a rather expansive interpretation of

Powell to conclude that a pretrial ruling was final even where the trial court said it was denying

the motion “‘at this point in time.’” 12 Wn. App. 2d 133, 147, 456 P.3d 1199, review denied, 195

Wn.2d 1022 (2020). The Dillon court opined that “[a] trial court’s ruling on a motion in limine is

final, unless the court indicates that further objections are required during trial.” Id. (underscore

omitted).

The defendant in Dillon brought a motion in limine to exclude statements that he contended

were inadmissible because their probative value did not outweigh the risk of unfair prejudice. Id.

at 146. The trial court ruled, “‘This may be subject to further action and objection as testimony

actually is taken. But at this point I am respectfully going to deny the defense motion.’” Id. at 147.

The defendant did not object to the statements during the trial but challenged them on appeal. See

id. at 146. Division One concluded that the issue was preserved for appeal because “[t]he trial

court did not indicate that further objections were necessary during testimony to preserve Dillon’s

objection.” Id. at 147.

We respectfully decline to follow Dillon and instead hold that under Powell, a pretrial

ruling can be considered tentative even if the trial court did not expressly require objection to the

admission of evidence at trial. This is more consistent with the plain language of prior Supreme

Court decisions, including Koloske and Powell. Neither case requires the trial court to expressly

invite a later objection for this court to conclude that the ruling was conditional or tentative.

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Here, the trial court made a tentative pretrial ruling. The trial court stated that it was “not

going to suppress the text message at this time.” 1 VRP at 26 (emphasis added). And the trial court

signaled that the defense should object to authentication at trial by stating, “[O]bviously

authentication is always an issue at trial.” Id. Further, Dettwiler did not provide testimony to

support the State’s offer of proof, so the trial court’s tentative ruling at the motion in limine stage

was based only on the prosecuting attorney’s summary of Dettwiler’s anticipated testimony. Any

final ruling would have to be based on the testimony actually presented at trial. Finally, defense

counsel expressly said, “No objection” when the State offered the text messages at trial, effectively

withdrawing the defense’s previous objection. 3 VRP at 278. And defense counsel failed to further

clarify whether they intended to preserve any earlier objections.2

In sum, even though the trial court did not expressly invite further objections at trial, it is

apparent from context that the trial court’s ruling on Roosma’s motion in limine was not final. See

Powell, 126 Wn.2d at 527. Roosma would have needed to object to the admission of the text

messages during Dettwiler’s testimony to preserve this issue for appeal, but he did not do so and,

2 Although we agree with the State that Roosma did not preserve his challenge to the admissibility of the text messages, we reject the State’s argument that Roosma’s motion in limine only addressed whether the State could mention the text messages in its opening statement. Roosma asked the trial court to determine whether the text messages could be authenticated under ER 901 “prior to the State’s . . . opening and moving forward.”1 VRP at 25 (emphasis added). The trial court specifically noted that “all of the issues that [the defense] raised are issues that go to the weight, not the admissibility” and instructed Roosma that he could explore the authenticity of the messages when cross-examining the State’s witnesses. Id. The trial court’s ruling, although tentative, thus contemplated the admissibility of the text messages as substantive evidence, not just whether the State could reference them in its opening statement.

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instead, expressly said, “No objection.” 3 VRP at 278. We hold that Roosma waived his challenge

to the admissibility of the text messages. We affirm.

Glasgow, A.C.J. We concur:

Cruser, J.

Veljacic, J.