Sykes v. State

• Court: Court of Special Appeals of Maryland
• Decided: November 18, 2021
• Docket: 2132/19
• Status: Published

Opinion

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.

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.

2021-11-18 11:18-05:00 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, 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 Text Messages Was Relevant, and Their Probative Value Was Not Substantially Outweighed by the Danger of Unfair Prejudice.

Having determined that the cell phone and text messages found therein were

authenticated, we next turn to Sykes’s contention that the circuit court erred in admitting

the text messages because the texts were irrelevant and unfairly prejudicial. Specifically,

he argues that the “marginal relevance to an element of the offense charged” contrasted

with the “distinct potential for working unfair prejudice” render the text messages

inadmissible. Though Sykes focuses his argument on the drug-related text messages, we

11 The court stated in a footnote that it would “leave for another day the quantum and quality of evidence necessary to ‘clearly’ prove authentication of text messages.” Mosley, 114 A.3d at 1084 n.13. 15 recognize that the court admitted a total of 691 text messages, only a fraction of which

constitute drug-related texts. Therefore, we first address relevancy as it pertains to both the

drug-related and non-drug-related text messages, then balance the relevancy against any

prejudicial effect.

1. Relevancy determination

As to relevancy, Sykes argues that the text messages discussing drug transactions

were irrelevant because they could have been consistent with other drugs that were not

heroin, and that the expert testimony interpreting such text messages acknowledged as

much. Sykes also posits that the drug-related text messages received closest to the time of

arrest were received the day before, and the user of the phone did not respond to those

texts. Therefore, Sykes argues, the messages do not demonstrate an intent to distribute.

All relevant evidence is admissible. Md. Rule 5-402. Evidence is relevant if it has

“any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” Md.

Rule 5-401. Here, Sykes was charged with possession of a CDS with intent to distribute.

Sergeant Crouch testified that, in his expert opinion, the number of texts from customers

soliciting drugs stood out as a significant indicator that the drugs found in Sykes’s

possession were for commercial use rather than personal use,12 although he could not say

for certain whether the drug transactions were for heroin.

12 For example, Sergeant Crouch testified that the significance of the interaction, “I need five more” (incoming), “give me 15 min” (outgoing), “can u thro in one so I can make something please that’s 230 already” (incoming), was a customer soliciting a drug

16 The drug-related text messages are certainly relevant in that they make it more

probable that Sykes both possessed the 84 packages of heroin and intended to distribute

them, given the number of text messages purporting to engage in drug transactions.

Moreover, whether the text messages are consistent with other drugs, in addition to heroin,

does not render the text messages irrelevant, as they still make it more likely that Sykes

had the intent to distribute the drugs found in his possession. When viewing the drug-

related text messages in context with Sergeant Crouch’s testimony interpreting the texts as

well as the other evidence presented at trial, it is apparent these messages clear the

relevancy threshold for admission. Williams v. State, 457 Md. 551, 564 (2018) (“Having

‘any tendency’ to make ‘any fact’ more or less probable is a very low bar to meet.”).

In contrast, the remaining non-drug-related text messages are not relevant to this

case. For example, text messages stated “wyd,” and “ok,” and others discussed paying bills

and running errands. Such texts do not make any fact that is of consequence more or less

probable, and we hold that the circuit court erred in admitting these texts. 13 However, we

transaction and asking if the seller would “throw in” an extra package of the controlled dangerous substance so the customer could make money from dealing. He testified that the significance of the incoming text messages stating a number, “I need like two . . . fifty,” “75,” and “something good for ninety my man . . . .” was the customer requesting two packages of a controlled dangerous substance for $50, $75 worth of the controlled dangerous substance, and $90 worth of the controlled dangerous substance. 13 We do not foreclose the possibility that non-drug-related text messages may be relevant, particularly where authentication is a fact issue submitted to the jury. Because here, the State did not proffer any relevancy nor did it present these text messages to the jury except in the exhibit as a whole, we see no basis for which we can find the text messages to be relevant.

17 are satisfied beyond a reasonable doubt that the error was harmless, as the irrelevant texts

in no way contributed to the guilty verdict. See Dove v. State, 415 Md. 727, 743 (2010)

(holding that error is harmless where “there is no reasonable possibility that the evidence

complained of . . . may have contributed to the rendition of the guilty verdict”). As such,

we continue with our analysis of Sykes’s claims of error, focusing our attention on the

drug-related text messages.

2. Balancing probative value and prejudicial effect

Sykes next argues that, if the text messages are relevant, they are highly prejudicial

because they invite the jury to make improper inferences based on Sykes’s propensity to

distribute drugs. Such propensity evidence constitutes “prior bad acts,” according to Sykes,

and is inadmissible under Maryland Rule 5-404(b). The State responds that any evidence

that Sykes was contemporaneously distributing drugs has “special relevance” as to his

future intent to distribute the heroin found at the time of his arrest.14

Though evidence may be relevant, it nonetheless may be excluded if the probative

value is substantially outweighed by the danger of unfair prejudice to the defendant. Md.

Rule 5-403. However, “[e]vidence is never excluded merely because it is prejudicial.”

White v. State, No. 1232, Sept. Term 2019, slip op. at 34 (Md. Ct. Spec. App. May 26,

14 The State also argues that the “prior bad acts” argument is unpreserved because Sykes did not assert in the proceedings below that the text messages were in violation of Maryland Rule 5-404, only that they were in violation of 5-403. According to the State, he should not be permitted to “repackage that sort of claim in the guise of a Rule 5-403 prejudice argument.” As in Howard v. State, we analyze the “prior bad acts” argument under the balancing test of probative value and prejudicial effect outlined in Rule 5-403. 324 Md. 505, 513–17 (1991). 18 2021) (internal quotations omitted) (quoting Moore v. State, 84 Md. App. 165, 172 (1990)).

Nor is the evidence excluded because the danger of prejudice simply outweighs the

probative value; it must, “as expressly directed by Rule 5-403, do so substantially.”

Montague v. State, 471 Md. 657, 696 (2020) (emphasis in original) (internal quotation

marks omitted) (quoting Molina v. State, 244 Md. App. 67, 135 (2019)). “Under some

circumstances, where intent is legitimately an issue in the case, and where by reason of

similarity of conduct or temporal proximity, or both, evidence of other bad acts may

possess a probative value that outweighs the potential for unfair prejudice, the evidence

may be admissible.” Howard v. State, 324 Md. 505, 514 (1991).

The text messages were introduced during Sergeant Crouch’s expert testimony

interpreting the texts in the context of whether the drugs were for personal or commercial

use. The texts, aided by the expert testimony, are probative as to both possession of the

heroin and intent to distribute the heroin. See Smiley v. State, 138 Md. App. 709, 716 (2001)

(“[A]n [i]ntent to distribute controlled dangerous substances is seldom proved directly, but

is more often found by drawing inferences from facts proved which reasonably indicate

under all the circumstances the existence of the required intent.”). Intent is “legitimately

an issue” in this case, and Sykes acknowledges as much stating that the text messages were

“a key component of the State’s case for mens rea.”

Moreover, “prejudicial evidence is not excluded under Rule 5-403 only because it

hurts one party’s case.” Montague, 471 Md. at 674. Instead, the rule mandates that the

prejudice must be “unfair,” meaning it “tends to have some adverse effect . . . beyond

tending to prove the fact or issue that justified its admission.” Id. at 688–89 (alteration in

19 original) (quoting State v. Heath, 464 Md. 445, 464 (2019)) (holding that admission of

defendant’s recorded rap lyrics was not unfairly prejudicial as improper propensity

evidence where a close nexus existed between the lyrics and the crime charged). Though

the text messages describing drug transactions were prejudicial to Sykes, they bore a

specific nexus to an element of the charged crime: intent to distribute. As such, admission

of the text messages did not have an adverse effect beyond tending to prove the intent

element. We are satisfied that the probative value is not substantially outweighed by the

danger of prejudice, and we hold that the circuit court did not err in admitting the drug-

related text messages.

C. The Drug-Related Text Messages Did Not Constitute Inadmissible Hearsay.

Having determined that there was sufficient evidence that the cell phone and drug-

related text messages found therein were authenticated and there was no error regarding

relevancy nor unfair prejudice, we next turn to whether the text messages constituted

hearsay. Hearsay is “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Md. Rule

5-801. “There are two threshold questions when a hearsay objection is raised: (1) whether

the declaration at issue is a ‘statement,’ and (2) whether it is offered for the truth of the

matter asserted.” State v. Young, 462 Md. 159, 170 (2018) (internal quotation marks

omitted) (quoting Stoddard v. State, 389 Md. 681, 688–89 (2005)). A statement is not

inadmissible hearsay where it is offered “not to establish the truth of the matter asserted

therein, but simply to establish that the statement was made[.]” Id. (alteration in original)

(quoting Lunsford v. Bd. of Educ. of Prince George’s Cnty., 280 Md. 665, 670 (1977)).

20 This inquiry depends on whether “the fact asserted in the out of court statement [must be]

sincerely and accurately stated[] in order for the out-of-court statement to help prove what

it is offered to prove[.]” Id. (alterations in original) (quoting Lynn McLain, Maryland

Evidence, State & Federal (3d ed. 2013)).

The parties do not contest that the text messages are statements; rather, they disagree

as to whether the text messages were offered for the truth of the matter asserted, and if so,

whether they fit within a hearsay exception. Sykes maintains that the text messages

constituted inadmissible hearsay. According to Sykes, the text messages were offered for

the truth of either the explicit statements or the implied assertions therein, and they do not

fit within any hearsay exception. The State advances a number of arguments for the

admissibility of the text messages. Although the drug-related text messages varied in form

and substance, we shall analyze them in two categories.

1. Text messages constituting verbal parts of an act

The first category consists of incoming texts requesting a specified amount of drugs

and any outgoing texts responding to that request. For example, incoming messages were

received stating: “I need 5 more,” “Can u thro 1 in so I can make something please that’s

230 already,” and “I need like 2 . . . .50,” as well as outgoing messages stating: “This B

ock bring me another 8th.” In determining whether the content of these text messages

constitutes hearsay, Garner v. State, 414 Md. 372 (2010), is controlling.

In Garner, the Court of Appeals addressed whether statements made over the phone

in an attempt to buy drugs constituted inadmissible hearsay. Id. at 374. There, an officer

seized a phone from Garner following his arrest, and a search of his vehicle revealed

21 thirteen baggies of cocaine. Id. at 375. The phone rang while in the officer’s possession,

and the officer picked up the phone and heard a voice on the other line say: “can I get a

40?” Id. at 376. The unidentified person hung up after the officer asked his name. Id.

Garner was charged with possession of a CDS with intent to distribute. The State

relied in part on the unknown caller’s statement to characterize Garner’s possession as

commercial rather than personal. Id. Garner objected to the statement being admitted

through testimony of the officer. Id. at 376–77. Garner argued the statement constituted

inadmissible hearsay. Id. at 377. The court overruled his objection and permitted the State

to introduce the content of the phone call. Id. On appeal, Garner argued such ruling was in

error. Id. at 381.

The Court of Appeals upheld the circuit court’s ruling that the testimony describing

the phone call did not violate the rule against hearsay. Id. at 382. In comparing drug-

transaction cases with illegal betting cases, the Court stated that “[w]hen a telephone is

used to receive illegal wagers or to receive orders called in by persons who wish to purchase

a controlled dangerous substance, the telephone becomes an instrumentality of the crime.”

Id. The purchase of illegal drugs is a form of a contract, where there is offer and acceptance,

so the “telephoned words of the . . . would-be-purchaser are frequently categorized,

therefore, as verbal parts of acts. They are not considered to be assertions and do not fall

under the scrutiny of the Rules Against Hearsay.”15 Id. (quoting Garner v. State, 183 Md.

15 The Court noted that there is “an unbroken line of state and federal appellate decisions” that hold telephone calls such as the one at issue in Garner are admissible. Garner, 414 Md. at 384.

22 App. 122, 140 (2008)). This conclusion is due to the phone call having been an “action

seeking to achieve [certain] ends, and the performative quality of such behavior justifies

non-hearsay treatment when it is proved as a means of showing that bets are taken or drugs

are sold where the call is received.” Id. at 385.

The Court also rejected Garner’s argument that the statement must be excluded

because it contained an implied assertion.16 Id. at 381–82, 388. In doing so, it reasoned that

“the only assertion implied in the anonymous caller’s question was the assertion that the

caller had the funds to purchase the drugs that he wanted to purchase.” Id. at 388. The Court

thus held that “the rule against hearsay does not operate to exclude evidence of the ‘verbal

act’ that established a consequential fact: Petitioner was in possession of a telephone called

by a person who requested to purchase cocaine.” Id. at 388.

For the same reasons the Court held the telephoned statement in Garner did not

constitute inadmissible hearsay evidence, the text messages here do not violate the hearsay

rule. The drug-related text messages constituted verbal parts of a drug transaction, with the

cell phone being an instrumentality of the crime. The text messages were offered not to

prove that the specific drug transactions in the texts occurred, as Sykes posits, but rather

that Sykes was in possession of the cell phone which numerous persons frequently texted

in attempts to purchase drugs, and from which responsive texts emanated. The text

messages had legal significance, to prove that drug transactions were discussed whether or

16 The Court of Appeals later clarified in State v. Young, 462 Md. at 175, that Garner demonstrated that a legally operative verbal act may be admissible as non-hearsay even if it contains an implied assertion. 23 not the offers were accurate or genuine. As in Garner, these text messages constitute verbal

acts, and the “performative quality” of these acts justifies non-hearsay treatment because

the texts were admissible to show that drugs were sold as a result of the text being received.

2. Text Messages not offered for the truth of the matter asserted that do not constitute verbal acts

While some text messages indicate simple offers to purchase, a number of the text

messages discussing drugs do not appear to be engaging in transactions, and as Sykes

argues, do not constitute verbal acts. In his reply brief, Sykes identifies specific incoming

messages that he contends are not verbal acts and could only have been offered to prove

that Sykes distributed drugs to the message-sender on a prior occasion. For example, Sykes

posits that an incoming text stating “I opened the first 1 and it was small when I opened

the second 1 it made up for it,” does not denote contractual bargaining, but is offered to

communicate that a drug transaction occurred where one package was light in weight and

the second package compensated for the first.

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. Young, 462 Md. at 170.

“This depends on whether the fact asserted in the out-of-court statement [must be] sincerely

and accurately stated[] in order for the out-of-court statement to help to prove what it is

offered to prove[.]” Id. This analysis applies to both intentional assertions, where a

statement is being offered for its literal truth, and implied assertions, where the statement

is being offered for some implicit truth. Id. at 170–71.

24 In State v. Young, the Court of Appeals discussed the jurisprudence of “implied

assertions.” Id. at 170–77. After being charged with illegal possession of a controlled

dangerous substance, Young sought to introduce evidence of his prescription to

demonstrate that his possession was not illegal. Id. at 164. The State objected on hearsay

grounds, arguing that the prescription was offered for the truth of the implied assertions

that Young validly held the prescription or for the implicit fact that the prescription was

valid. Id. at 164–65.

The Court in Young examined the seminal Maryland case addressing the implied

assertions doctrine: Stoddard v. State, 389 Md. 681 (2005). Id. at 171–74. In Stoddard, the

Court held that the doctrine “excludes such evidence as hearsay ‘where a declarant’s out-

of-court words imply a belief in the truth of X, … [and are] offered to prove that X is true.’”

Young, 462 Md. at 172 (alterations in original) (quoting Stoddard, 389 Md. at 692). There,

the State sought introduction of a child’s statement asking “is [Stoddard] going to get me,”

as evidence that the child witnessed Stoddard commit a murder. Stoddard, 389 Md. at 687.

The Court of Appeals held that “where the probative value of words, as offered, depends

on the declarant having communicated a factual proposition[], the words constitute an

‘assertion’ of that proposition,” and are offered for their truth. Id. at 703. Though the

statement was not being offered for its literal truth, it nonetheless was hearsay because it

was offered for the truth of the implied factual proposition that the child witnessed the

murder. Id. at 711.

The Young Court noted that in subsequent cases following Stoddard, the Court had

“consistently resisted an overbroad interpretation of [Stoddard’s] holding.” Young, 462

25 Md. at 173. In Bernadyn v. State, the Court upheld the trial court’s exclusion of a medical

bill as hearsay based on the State’s proffered use. 390 Md. 1, 3 (2005). Because the State

argued that the bill demonstrated that Bernadyn lived at the house, “the bill was an implied

assertion offered for the truth of the statement that the doctor’s office who sent the bill was

asserting that Bernadyn lived at the address.” Young, 462 Md. at 174. The Young Court

highlighted that Bernadyn suggested “an alternate theory favoring admission—offering the

statement as merely probative circumstantial evidence.” Id. at 174

Finally, in Garner, the Court of Appeals “pick[ed] up directly where Bernadyn left

off” and declined to exclude a statement as hearsay where the statement was

“circumstantial evidence probative of a fact that does not rely on the declarant’s implied

assertion[.]” Id. Based on these cases, the Young Court determined that the prescriptions

were not offered for the truth that Young held a valid prescription, but were offered to

prove “the operative fact of the prescription’s existence.” Id. at 179. Whether the

prescription was from an authorized provider was a question of fact for the jury. Id. at

178–79.

Turning back to the instant case, the drug-related text messages here—those not

falling within the verbal acts doctrine—do not depend on the truth of any implied factual

proposition of the declarant. Rather, they were offered as “probative circumstantial”

evidence. Taking Sykes’s example, the text message discussing the weight of the two

packages was not offered to prove that Sykes sold two packages of controlled substances,

where one package compensated for the other, but was offered to prove the very fact that

26 the statement was made.17 At the pre-trial motions hearing, the State indicated that it would

be introducing those drug-related text messages through Sergeant Crouch’s testimony to

explain why those conversations are drug related. According to the State’s proffered use,

the declarant’s belief in the truth of the statements is irrelevant, and whether any implied

assertion was “sincerely and accurately stated” has no bearing on the purpose for which

they were introduced: to demonstrate that the phone in Sykes’s possession engaged in drug-

related conversations. We therefore hold that these drug-related text messages were not

offered for the truth of the assertions, whether explicit or implicit, and therefore constitute

non-hearsay.18

17 Other drug-related text messages are consistent with this analysis: “Man’ . . . . I sniff. This is like . . . Play doe. There’s other things to use for weight Rather thebn[sic] water,” “It was alright not worth 275,” and “It’s not about a rating . . . Want to tell you about something else but 8 as far as that goes.” 18 It is apparent to us that the trial court thought all the text messages were hearsay. To be sure, the court stated on numerous occasions the text messages were “clearly hearsay,” but admitted the text messages as falling under multiple hearsay exceptions including present sense impressions, then-existing mental condition of the individuals, evidence of a regularly conducted business activity, statement by party opponent, and statements against interest. At trial, the State also appeared to concede that the text messages constitute hearsay, but argued they were nonetheless admissible.

Because we hold that the drug-related text messages are not hearsay, we do not address the exceptions relied upon by the trial court and the State for those particular text messages. See Unger v. State, 427 Md. 383, 406 (2012) (holding an appellate court will affirm a trial court’s judgment on any ground adequately supported by the record, “whether or not that ground was relied upon or even considered by the court below,” so long as that ground is legally correct) (quoting United States v. Arthur Young, 465 U.S. 805, 814 n.12 (1984); Gordon v. State, 431 Md. 527, 538 (2013) (“[T]he trial court’s ultimate determination of whether particular evidence is hearsay or whether it is admissible under a hearsay exception is owed no deference on appeal, but the factual findings underpinning this legal conclusion necessitate a more deferential standard of review.”).

27 II. THE COURT DID NOT ABUSE ITS DISCRETION IN ALLOWING SERGEANT CROUCH TO RENDER EXPERT TESTIMONY.

Sykes relatedly contends that the circuit court erred in allowing Sergeant Crouch to

render expert testimony as to the significance of the text messages and the factual

circumstances surrounding Sykes’s arrest because the State failed to comply with the

applicable discovery rules. According to Sykes, though the State sent the expert

notification identifying Sergeant Crouch in July of 2017, the notification was deficient in

failing to identify the substance of Sergeant Crouch’s testimony. Because of this omission,

Sykes maintains, he did not have the opportunity to investigate the appropriateness of the

testimony on the subject. The State responds that the expert notification complied with

Maryland Rule 4-263. Alternatively, even if it did not comply with the discovery rule, the

State argues that it was within the trial court’s discretion whether to exclude the testimony.

We initially note that the expert notification that is at issue is not found within the

record. Though Sykes and the State pursue competing claims as to whether the notification

was deficient, they seem to agree as to the contents. To be sure, both parties state that the

notification was sent in June of 2017, and it indicated that Sergeant Crouch was to be

offered as an expert in drug forensics and “[m]ay testify about the packaging, sales, [and]

street value of controlled dangerous substance as well as offering [an] opinion as to whether

the factual circumstances presented are consistent with personal use of distribution.” The

parties also agree that, in response to Sykes’s initial contention that the disclosure was

inadequate, the State informed Sykes that Sergeant Crouch “would not be rendering any

opinions until he was within court.” Keeping this in mind, we turn to the discovery rules.

28 Discovery rules exist in the criminal context for the purpose of assisting a defendant

in preparing a defense and protecting a defendant from surprise. Thomas v. State, 397 Md.

557, 567 (2007). The relevant portion of Maryland Rule 4-263 provides that, for each

expert consulted by the State in connection with the action, the State shall provide to the

defense:

(A) The expert’s name and address, the subject matter of the consultation, the substance of the expert’s findings and opinions, and a summary of the grounds for each opinion; (B) The opportunity to inspect and copy all written reports or statements made in connection with the action by the expert, including the results of any physical or mental examination, scientific test, experiment, or comparison; and (C) The substance of any oral report and conclusion by the expert;

Md. Rule 4-263(d)(8).19 The failure of a party to comply with Rule 4-263 “does not

automatically disqualify a witness from testifying,” as disqualification is within the court’s

discretion. Md. Rule 4-623(n).

The State argues that the expert notification complied with the requirements of Rule

4-263; however, as we noted, the record does not contain the expert notification. In the

absence of the precise contents of the notification, we decline to speculate as to whether

the contents meet the rule’s requirements. Rather, we proceed to consider, based on the

facts before us, whether the trial court abused its discretion in declining to exclude Sergeant

Crouch’s testimony. This Court has stated that in exercising such discretion, the circuit

court is to consider “(1) the reasons why the disclosure was not made; (2) the existence and

19 Additional discovery rules protect the State. For example, Md. Rule 4-263(e) provides a list of mandatory disclosures that the defense must provide to the State without the necessity of a request by the State. 29 amount of any prejudice to the opposing party; (3) the feasibility of curing any prejudice

with a continuance; and (4) any other relevant circumstances.” Raynor v. State, 201 Md.

App. 209, 228 (2011) (quoting Thomas, 397 Md. at 570–71).

The information allegedly omitted from the expert notice—the substance of

Sergeant Crouch’s findings and the grounds for his opinions—was not given to Sykes

because in June 2017 Sergeant Crouch had not yet reviewed the evidence or rendered an

opinion. Sykes was nonetheless aware that Sergeant Crouch was an expert in narcotics

investigations and that he would eventually render an opinion based on the trial evidence

as to whether the heroin seized from Sykes was for distribution or personal use. Based on

this information, Sykes could generally anticipate Sergeant Crouch’s testimony, and

Sykes’s trial counsel stated as much during the hearing on the motion in limine.

On appeal, Sykes has failed to explain how the expert notice prejudiced his defense.

At most, Sykes suggests that he could have called his own expert to contest the methods

by which police officers extrapolate intent. If, as Sykes believes, the State was required to

disclose more information about Sergeant Crouch’s training, he could have filed a motion

to compel under Maryland Rule 2-432(B).20 He did not do so. Nor did he request a

continuance for the purported discovery violation. We discern no abuse of discretion in the

court’s decision to allow Sergeant Crouch to testify.

JUDGMENTS OF THE CIRCUIT COURT FOR TALBOT COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

20 We are not suggesting that the trial court would or should have taken an action other than that which it did. Nonetheless, a motion to compel would have permitted the trial court to cure discovery defects, if any existed, prior to trial. 30