DAVIS, Judge:
¶ 1 Milan Otkovic challenges his convictions and sentences for aggravated kidnapping, a first degree felony, Utah Code Ann. § 76-5-302(1), (3) (LexisNexis Supp.2013),
¶ 2 On May 24, 2009, Otkovic sent a text message to Travis Hawkins offering to sell
¶ 3 Hawkins reported and later testified that he believed the text message came from Shields and that he had never met Otkovic but had seen him once before in Shields's company. According to Hawkins, it was not Otkovic and Shields, but Otkovic and an unidentified woman, who met him at the tinting shop. He maintained that Otkovic had not brought anything to sell but instead held Hawkins at gunpoint and demanded money. After stealing $1,680 in cash from Hawkins's wallet, Otkovic ordered Hawkins to drive them to an ATM to get more money. Hawkins drove them to an ATM about six blocks away and withdrew $300 from one account but avoided withdrawing more money from other accounts by pretending to have forgotten his PIN numbers. Eventually, Otkovic relented and had Hawkins return them to the tinting shop, whereupon he stole Hawkins's phone, threatened him, and ordered him not to report the robbery. Otkovic then forced Hawkins to stand in front of an upstairs window holding up a broom while Otkovic made his escape, threatening to come back to "take care of" Hawkins if he saw the broom drop.
¶ 4 Hawkins's girlfriend claimed that he arrived home "frantic" and "shaking" and announced that he had been robbed. Hawkins reported that he used his son's phone to call Shields and get Otkovic's name and phone number. He then called Otkovic and told him that he would not involve the police if Otkovic would return his money and phone. Hawkins and his girlfriend asserted that Otkovic then threatened to kill Hawkins's children.
¶ 5 After talking to Otkovic, Hawkins contacted police to report the robbery. A short time later, Hawkins provided the police with a cell phone that he claimed to have received from Shields. The cell phone contained text messages received from Otkovic's phone. The first was sent at 7:57 p.m., about two minutes before the ATM withdrawal occurred. It read, "I'm Robbin[g] Travis. Don't tell him my name or anything, not my phone number, not a work, [sic] I'm serious." Additional messages were received later in the evening: an 8:11 p.m. text read, "Don't snitch on me niga"; an 8:12 p.m. text read, "I told him I was fightin with you ha ha ha don't listen to him I told him I robbed you too. But don't bring my number or name up"; a 9:16 p.m. text read, "U gave that niga my number?"; and a 9:51 p.m. text read, "Ha ha ha ya I told him ima rob you too. I'm playin tho. I mean u still owe me 1500 don't forget." Hawkins reported that he had seen Otkovic using a white Blackberry cell phone at various points during the robbery but that he had not noticed Otkovic using it while they were at the ATM.
¶ 6 When Otkovic was arrested, police searched his home and found a white Blackberry and a pistol that matched Hawkins's description of the gun Otkovic had used. They also found $1,616 in cash. The phone number associated with the Blackberry was the same phone number used to send the text messages discovered on the phone Hawkins had delivered to police. At trial, Otkovic testified that he had loaned his phone to Shields a "few times" while they were meeting with Hawkins and then later that night before they separated around 10:00 p.m. When the State began questioning a police
¶ 7 In the course of their investigation, the police requested that U.S. Bank provide copies of surveillance video from the ATM. A representative from the bank sent an email describing the footage: "Here is what I have: Now you can see that there is someone else in the car but there is no way to tell who it is since the camera is (theoretically) aimed at the driver. The driver also puts his hands up periodically." Three photographs were attached to the email, but no passenger was visible in the photographs and none of them portrayed Hawkins holding up his hands. The State did not disclose the photographs or the email to Otkovic until the week before trial. Upon receiving this information, Otkovic's counsel attempted to obtain the surveillance video from the bank but was informed that only the photographs had been retained and that the video had been destroyed. Based on the email describing footage not contained in the photographs and the bank's representation that the video was destroyed, Otkovic moved to dismiss the case due to loss or destruction of evidence. The trial court denied the motion because it concluded that Otkovic could not demonstrate a reasonable probability that the video footage, if it existed, contained exculpatory evidence. However, the trial court did fault the State for failing to timely disclose the photographs and prohibited the State from using the photographs at trial.
¶ 8 Prior to trial, Otkovic also moved to admit evidence relating to Hawkins's criminal enterprise both to impeach Hawkins's credibility and to support the defense theory that the money Hawkins claims Otkovic stole from him was actually given to Otkovic by Hawkins as payment for stolen goods. Otkovic also asserted that the evidence would demonstrate that Hawkins was familiar with Otkovic's gun before the alleged robbery and that he had a motive to frame Otkovic out of loyalty to Shields, who was becoming paranoid because Otkovic was outperforming him. The court permitted Otkovic to introduce evidence of his dealings with Hawkins and Shields and of the rivalry between Otkovic and Shields, but it excluded other general evidence of Hawkins's criminal activity under rule 403 of the Utah Rules of Evidence because of its potential to mislead the jury and delay the trial. Shields was unavailable to testify at trial, so evidence relating to Hawkins's criminal involvement with Shields and Otkovic was limited to Otkovic's own testimony.
¶ 9 When Hawkins was asked about his business at trial, he admitted to buying and reselling things but maintained that he was unaware whether the merchandise was stolen and that in ten years he had never had a problem with merchandise he had purchased and resold turning out to be stolen. In response to this testimony, Otkovic sought to introduce evidence that during the previous ten years, Hawkins had been convicted of burglary, charged with stealing golf carts, and arrested several times for receiving stolen property, as well as evidence gathered by investigators indicating that Hawkins had continued to act as a fence
¶ 10 The jury convicted Otkovic of aggravated kidnapping and aggravated robbery. He had also previously pleaded guilty to possession of a weapon by a restricted person. The trial court sentenced him to prison terms of six years to life for aggravated robbery, sixteen years to life for aggravated kidnapping, and zero to five years for possession of a weapon. At the time, Otkovic was
¶ 11 First, Otkovic challenges the trial court's decision to exclude relevant evidence regarding Hawkins's history as a fence under rule 403 of the Utah Rules of Evidence.
¶ 12 Otkovic further asserts that the trial court erred in finding the foundational evidence sufficient to authenticate the text messages. We review the trial court's determination for abuse of discretion. See State v. Silva, 2000 UT App 292, ¶ 11, 13 P.3d 604.
¶ 13 Finally, Otkovic argues that his case should have been dismissed due to the loss or destruction of the ATM video. "Whether the State's destruction of potentially exculpatory evidence violates due process is a question of law that we review for correctness," but "we incorporate a clearly erroneous standard [in reviewing] the necessary subsidiary factual determinations." State v. Tiedemann, 2007 UT 49, ¶ 12, 162 P.3d 1106 (citation and internal quotation marks omitted).
¶ 14 Otkovic asserts that evidence of Hawkins's criminal history as a fence is relevant to contradict Hawkins's claim at trial that he had "never had a problem with anything [he's] purchased" turning out to be stolen and to support Otkovic's theory that his criminal involvement with Hawkins and Shields gave them a motive to frame him. The State asserts that the trial court acted within its discretion in excluding the evidence under rule 403 of the Utah Rules of Evidence out of concern that general evidence relating to Hawkins's fencing operation would "confuse the jury and unduly delay the trial."
¶ 15 Under rule 403, "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Utah R. Evid. 403. "Rule 403 ... is an inclusionary rule. Specifically, Rule 403 presumes the admission of all relevant evidence except where the evidence has an unusual propensity to unfairly prejudice, inflame, or mislead the jury.... [I]f the evidence is prejudicial but is at least equally probative[,] ... it is properly admissible." State v. Ramirez, 924 P.2d 366, 369-70 (Utah Ct.App.1996) (second alteration and second omission in original) (citations and internal quotation marks omitted); see also State v. Dunn, 850 P.2d 1201, 1221-22 (Utah 1993) (explaining that "we indulge a presumption in favor of admissibility").
¶ 16 Throughout the proceedings, the trial court expressed concern about "throwing the door wide open" to Otkovic's "general effort to show that [Hawkins] is a fence and a bad guy." In its pretrial ruling, the trial court expressed particular concern with evidence regarding "the vastness of Mr. Hawkins' operation and the money that he was raking in" as being "absolutely irrelevant." Given the trial court's broad discretion to evaluate the admissibility of evidence under rule 403, we do not consider the trial court's decision to limit general evidence regarding Hawkins's
¶ 17 However, we agree with Otkovic that the extent of that limitation was unreasonable. The question of whether Hawkins was a fence was not raised simply to show that Hawkins was a criminal; rather, it was central to Otkovic's defense that he had been part of Hawkins's criminal enterprise and that his involvement in that enterprise had given Hawkins and Shields a motive to frame him. See Utah R. Evid. 404(b)(2) (providing that evidence of prior bad acts "may be admissible for [noncharacter] purpose[s], such as proving motive"); id. R. 608(c) (providing that a "motive to misrepresent may be shown to impeach the witness either by examination of the witness or by other evidence"). Evidence demonstrating the basic fact that Hawkins was a fence was at least equally probative as it was prejudicial, especially after Hawkins asserted that he had "never had a problem" with stolen property. Cf. State v. Thompson, 2014 UT App 14, ¶ 30, 318 P.3d 1221 ("[O]nce the defendant offers evidence or makes an assertion as to any fact, the State may cross-examine or introduce on rebuttal any testimony or evidence which would tend to contradict, explain or cast doubt upon the credibility of his testimony." (emphasis, citation, and internal quotation marks omitted)). While it may not have been necessary to introduce evidence demonstrating the size of Hawkins's operation and the money he made, proving that Hawkins was knowingly involved in a fencing operation was necessary to Otkovic's defense. Because Shields was not available to testify, Otkovic was prevented from presenting any other evidence to corroborate his own testimony that Hawkins fenced goods stolen by Otkovic and Shields.
¶ 18 In particular, the probative value of evidence contradicting Hawkins's assertion that he had "never had a problem" with stolen property far outweighed any danger of confusing the jury or delaying the trial. If Otkovic were seeking to disprove the truthfulness of a statement relating to a collateral matter, we might be inclined to defer to the trial court's ruling under rule 403. But given that the statement concerned a fact at the heart of Otkovic's defense — whether Hawkins was a fence who had purchased stolen property from Otkovic — Otkovic's inability to contradict it significantly undercut his defense. In fact, preventing Otkovic from presenting any general evidence that Hawkins was a fence was likely to result in the very outcome the trial court was trying to avoid — confusing the jury. In closing argument, the State used this lack of evidence to bolster Hawkins's testimony and make it appear as though there was no evidence available to contradict Hawkins's assertion that he had never had a problem with stolen property: "Mr. Hawkins testified, `I have had no problems with stolen goods.' ... [D]id you ever hear any ... evidence introduced that Mr. Hawkins lied about that? Any evidence introduced that Mr. Hawkins has had any problems? No. Because he hasn't."
¶ 19 The State asserts that even if the trial court erred in excluding evidence under rule 403, the error was harmless in light of damning evidence against Otkovic, namely the text messages in which Otkovic admits to robbing Hawkins and the fact that he lied to police by claiming not to have been with Hawkins on the night of the alleged robbery. However, neither piece of evidence is determinative. Although sufficient foundation was laid for the texts to be admissible, see infra ¶ 21, the evidence of their authenticity was not conclusive. Otkovic testified that Shields was present when he met Hawkins and that he loaned his phone to Shields during the time when the text messages were sent, and Hawkins testified that he did not see Otkovic using the phone while they were at the ATM. Furthermore, the number to which the texts were sent did not match either of the numbers stored in Otkovic's phone as belonging to Shields or the number Otkovic used to call Shields after the robbery. And the texts warned Shields not to give Hawkins Otkovic's phone number, despite the fact — demonstrated by phone records — that Hawkins already had Otkovic's phone number. Given Otkovic's defense that he had been framed, this evidence could have raised a reasonable doubt as to who actually sent the messages from Otkovic's phone. Additionally, evidence that Otkovic lied to police about being with Hawkins does not necessarily prove that he
¶ 20 Because Otkovic will receive a new trial, we need not address the majority of his remaining arguments.
¶ 21 Otkovic argues that the trial court should not have admitted the text messages between his phone and the phone allegedly provided by Shields because the messages were not properly authenticated. "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Utah R. Evid. 901(a); see also id. R. 901(b) (providing examples of how evidence may be authenticated).
¶ 22 We have not previously had the opportunity to consider the foundational requirements that must be met in order for text messages to be admitted. However, a number of other jurisdictions have held that text messages may be "authenticated by circumstantial evidence establishing the evidence was what the proponent claimed it to be." State v. Thompson, 2010 ND 10, ¶ 24, 777 N.W.2d 617 (collecting cases); see also Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa.Super.Ct.2011) (holding that "authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person," and that "[c]ircumstantial evidence, which tends to corroborate the identity of the sender, is required" as a foundational prerequisite to admissibility), appeal granted, 615 Pa. 612, 44 A.3d 1147 (2012) (No. 947 MAL 2011); cf. State v. C.D.L., 2011 UT App 55, ¶ 25, 250 P.3d 69 (explaining that a telephone caller's identity may be authenticated by circumstantial evidence).
¶ 23 In this case, the State presented not only evidence indicating that the text messages came from Otkovic's phone, but also evidence that could support a finding that Otkovic was in possession of the phone at the time the text messages were sent. The texts were sent from the phone number assigned to the white Blackberry police discovered in Otkovic's apartment, which Otkovic admitted was his. That phone matched Hawkins's description of the phone he saw Otkovic use during the robbery, and the robbery occurred during the same time frame when the text messages were sent. Although Otkovic's own testimony that Shields was also in the
¶ 24 Otkovic also argues that the case should be dismissed based on the loss or destruction of the ATM video. The destruction of exculpatory evidence may support a motion to dismiss criminal charges. State v. Tiedemann, 2007 UT 49, ¶ 41, 162 P.3d 1106; see also Utah R.Crim. P. 16(a)(4) (requiring that the prosecutor disclose "evidence known to the prosecutor that tends to negate the guilt of the accused"). However, to prevail on such a motion, a defendant must first demonstrate, as a threshold matter, that there is "a reasonable probability that lost or destroyed evidence would be exculpatory." Tiedemann, 2007 UT 49, ¶ 44, 162 P.3d 1106. Otkovic has failed to make such a threshold showing.
¶ 25 We conclude that evidence of Hawkins's history as a fence was improperly limited under rule 403 of the Utah Rules of Evidence. We therefore reverse Otkovic's convictions and remand for a new trial. We further determine that the trial court did not err in concluding that the text messages were sufficiently authenticated to be admissible or in declining to dismiss the case based on the loss of the ATM video.
VOROS, Judge (concurring):
¶ 26 I concur in the lead opinion. I write separately to mention an additional issue that, together with the rule 403 issue identified by the majority opinion, undermines my confidence in the outcome of this trial.
¶ 27 Something went down the night of May 24, 2009. According to Otkovic, he delivered merchandise to Hawkins, who paid him approximately $1,600 for it. Otkovic claims Shields was also present. This transaction was not unusual, Otkovic maintains, as Hawkins ran a fencing operation, and Otkovic and Shields regularly supplied him with stolen electronics for resale. When picked up by police, Otkovic explains, he lied about having met with Hawkins that night for fear the police would discover his role in the fencing operation.
¶ 28 According to Hawkins, Otkovic and a woman robbed him at gunpoint as Otkovic live-texted the robbery to Shields. Hawkins denied running a fencing operation, denied having received stolen goods, and denied having previously met Otkovic (other than at a single meeting in which Otkovic gave a different name).
¶ 29 As the majority opinion explains, excluded evidence of Hawkins's fencing operation would have supported Otkovic's version of events and discredited Hawkins's. But Otkovic claims many other irregularities at trial. In particular, he contends that his trial counsel failed to exploit telephone records from Hawkins's cell phone.
¶ 30 The phone records are telling. The incident occurred around 8:00 p.m. on May 24, 2009. But Hawkins called Shields's number at 4:04 p.m. (a four-minute call), then Otkovic's number at 4:10 p.m. (also a four-minute call). Hawkins called Otkovic's number again at 6:55 p.m. (a two-minute call), and Otkovic's number called Hawkins at 7:11 p.m. (a one-minute call) and again at 7:35 p.m. (a one-minute call). Hawkins also received two text messages from Otkovic's number at 1:55 p.m., texted Otkovic's number at 3:01 p.m., and received another text from Otkovic's number at 3:08 p.m. These calls and texts undermine Hawkins's testimony that he did not know Otkovic before the robbery. They also cast doubt on the authenticity of the robbery texts, which suggest that Hawkins did not have Otkovic's number until Shields gave it to him after the incident.
¶ 31 Otkovic credits his trial counsel with introducing these phone records but claims that not using them to impeach Hawkins's testimony constituted ineffective assistance of counsel. To succeed on a claim of ineffective assistance of counsel, a defendant must show both "that counsel's representation fell below an objective standard of reasonableness"
¶ 32 The State does not contend that trial counsel's performance fell within the wide range of professional assistance. Rather, it contends that Otkovic cannot show a reasonable probability of a different result for at least two reasons. First, the State asserts, "the alleged inconsistency is likely more illusory than real" because "Hawkins testified that he mistakenly believed he was communicating with Shields." However, a jury aware of the phone records might reasonably have questioned whether Hawkins could converse by phone with Shields for four minutes, immediately call Otkovic's number, and, thinking he was again speaking with Shields, converse for another four minutes with a stranger who, as it happens, was born and raised in Croatia.
¶ 33 Second, the State argues that in any event, other evidence firmly established Otkovic's guilt. This evidence included texts sent from Otkovic's phone during the robbery, a photograph of Hawkins's driver license found on Otkovic's phone, a gun matching the one Hawkins described and cash in the approximate amount Hawkins reported as stolen found in Otkovic's bedroom, and Otkovic's false statements to police. However, the cash, the fact that Hawkins could describe Otkovic's gun, and Otkovic's false police statements are all consistent with Otkovic's version of events, namely that he was selling stolen merchandise to a familiar associate. Furthermore, while the texts incriminate Otkovic, they also imply that Hawkins obtained Otkovic's phone number from Shields after the incident — an implication refuted by phone records showing that Hawkins had placed calls to that number before the incident. The State is correct that how Hawkins obtained Otkovic's number was a "tangential detail." But the fact that Hawkins called Shields before the incident and spoke for four minutes, then hung up and called Otkovic and spoke for another four minutes is more than a detail — it undermines Hawkins's version of events and corroborates Otkovic's.
¶ 34 Otkovic's trial counsel never brought these discrepancies to the jury's attention. This omission, especially viewed in tandem with the exclusion of evidence of Hawkins's fencing operation, undermines my confidence in the trial outcome.