EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, November 26, 2011

Did You Get My Message: Court Of Appeals Of Ohio Finds No Error W/Admission Of Handwritten Transcripts Of Text Messages Under Rule 803(5)

Like its federal counterpartOhio Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

So, let's say that the victim and the defendant send e-mails back and forth on the same night that the defendant allegedly committed a burglary and other crimes. And let's say that, in the wake of the crimes charged, the victim handwrote transcripts of the text messages. At trial, can the victim read the transcripts pursuant to Rule 803(5)? According to the recent opinion of the Court of Appeals of Ohio, Eighth District, in State v. Roseberry, 2011 WL 5588725 (Ohio App. 8 Dist. 2011), the answer is "yes."

In Roseberry, the facts were as stated above, with Wayman Roseberry being charged with one count each of aggravated burglary and kidnapping, each containing firearm and forfeiture specifications; one count of having weapons while under disability, with a forfeiture specification; and one count each of burglary, theft, and receiving stolen property. At trial,

The victim, Danielle Adams..., testified that Roseberry was her ex-boyfriend, and that when they were dating, he stayed at her residence every night, kept personal belongings there, and had a house key. In the spring of 2010, they ended their relationship, but Roseberry still visited Adams at her home even though she had taken her key back from him.

The trial court also allowed Adams to read written transcripts that she created from text messages exchanged between Roseberry on the night that he allegedly committed the crime charged:

“Roseberry: Man u did smething ill brak da window.
* *
“Adams: Wht?
“Roseberry: I dnt wnt to brake nothing to get n and u blocked da door so I cant get n
* *
“Adams: So you got my key huh
* *
“Roseberry: OK can u un block da door I dnt have no where to go
“Adams: Y u say u didn't have the key
“Roseberry: Cuz who wnt ti be left n da streets
“Roseberry: Man pease dnt make me do smething I dnt wnt please open dat door
“Roseberry: Man ima get n
“Adams: I hope u aint breakin no window
“Adams: Im at work go wit your best friend, he always got ur bck remember
“Roseberry: I neva said that im tryna get away I don't wnt to do sht stupid so please let me n
“Adams: I said i'm at work
“Roseberry: Ok how do i get in” 

After he was convicted, Adams appealed, claiming "that the trial court abused its discretion in allowing Adams to read her handwritten transcription of the text messages out loud in open court on direct examination." The Court of Appeals of Ohio, Eighth District, disagreed, concluding that

In this case, Adams testified that when she went to the police station, she took her cell phone and wrote down the text messages exchanged between her and Roseberry the night of July 24 through July 25. On direct examination, Adams stated she could not recall the exact content of the messages she received, but when she wrote down the text messages, her recollection of the content of the text messages was fresh in her mind. When presented with the handwritten list, Adams also positively identified it as her transcribed compilation of the text messages exchanged between her and Roseberry. She testified that she knew the text messages were coming from Roseberry's phone because she knew his cell number at the time, although she admitted she currently could not recall the number. Accordingly, the trial court did not abuse its discretion by allowing Adams to read the series of text messages out loud pursuant to Evid.R. 803(5), and the trial court's exclusion of the handwritten compilation as an exhibit was proper.

(That said, the police took photographs of other text messages and admitted them at trial, and the appellate court deemed the admission of these photographs to be reversible error with regard to the burglary conviction).



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