## Facts

- Anthony Demetrius Funches was charged in Nevada district court with first-degree kidnapping and battery resulting in substantial bodily harm arising from an assault on a victim.
- At trial, the State presented testimony from Funches’s brother that he received a text message from another witness stating that Funches and two other people had “jumped” the victim.
- The district court admitted the brother’s testimony about the “jumped” text as nonhearsay, reasoning it was offered to show the text’s effect on the brother rather than for the truth of the accusation.
- The State also offered a different witness’s text messages about what she observed on the night of the offense.
- That witness testified she saw Funches and his two codefendants changing out of bloody clothes after having been outside with the victim.
- After making that observation, the witness went to sleep and then sent the text messages after waking up about one to two hours later.
- Over objection, the district court admitted these text messages under the present-sense-impression hearsay exception.
- The jury found Funches guilty of kidnapping and battery resulting in substantial bodily harm.
- On direct appeal, Funches challenged admission of the “jumped” text (including on confrontation grounds) and challenged admission of the later text messages as hearsay.

## Issues

1. Whether the district court erred by admitting testimony about a text message stating Funches and others had “jumped” the victim when the State offered it as nonhearsay to show effect on the listener.
2. Whether admitting that “jumped” text violated the Sixth Amendment Confrontation Clause.
3. Whether the district court erred by admitting a witness’s text messages under the present-sense-impression exception when the messages were written after the witness slept and described events that occurred one to two hours earlier.
4. If the present-sense-impression rationale was incorrect, whether the text messages were nonetheless admissible under another hearsay exception and, if not, whether any error required reversal.

## Decision

- The Nevada Supreme Court affirmed the judgment of conviction (unpublished order of affirmance).
- The court agreed the brother’s testimony about the “jumped” text should have been excluded because the message directly implicated Funches and its claimed effect on the brother had little, if any, relevance.
- The court held the erroneous admission of that statement was harmless in light of other evidence, including Funches’s own admissions that he and his two codefendants kicked and punched the victim.
- The court rejected the Confrontation Clause claim because the declarant who sent the “jumped” text testified at trial and was subject to cross-examination.
- The court agreed that the present-sense-impression exception did not apply to all of the challenged text messages because they were not made contemporaneously with the events described (they were written after the witness woke up, about one to two hours after the events).
- The court concluded the text messages were admissible under the excited-utterance exception because the witness’s testimony showed she remained under the stress of the startling event of seeing the defendants changing their bloody clothes.
- The court denied relief on Funches’s remaining appellate claims and affirmed.

## Legal Principles

- Evidence offered as “effect on the listener” is admissible only if the listener’s reaction is meaningfully at issue; a direct accusation of the defendant is not properly admitted on that theory when the only real value is its truth.
- Under Nevada’s present-sense-impression exception (NRS 51.085), a statement must be made while perceiving the event or immediately thereafter; statements written after a substantial break from the event (including sleep) generally are not contemporaneous.
- A statement may still be admissible as an excited utterance (NRS 51.095) when the declarant is still under the stress of a startling event, even if some time has passed.
- The Confrontation Clause is satisfied when the out-of-court declarant testifies at trial and is available for cross-examination.
- Appellate courts may affirm an evidentiary ruling on an alternative ground supported by the record, even if the trial court relied on a different exception.
- Improper admission of hearsay does not require reversal when the error is harmless because the same fact is established by other properly admitted evidence, including the defendant’s own admissions.

## Conclusion

The Nevada Supreme Court affirmed Funches’s kidnapping and battery convictions, holding that the brother’s testimony repeating a text accusing Funches of “jumping” the victim should have been excluded but was harmless given Funches’s own admissions; the court also found no Confrontation Clause violation because the declarant testified and was cross-examined, and it upheld admission of the other witness’s later text messages as excited utterances even though they were not contemporaneous enough to qualify as present-sense impressions.


Funches v. Nevada, 2012 Nev. Unpub. LEXIS 169, 1-3, 2012 WL 436635 (2012)