## Facts

- Marcus Ladale Damper argued with his girlfriend, C., on the morning of January 21, 2008, about his plan to attend a public event; C. expressed concern about potential violence and Damper’s ex-girlfriends being present.
- At 11:21 a.m., C.’s friend B. received a text message from C.’s cell phone indicating C. and Damper were fighting and asking B. to come over; B. replied but received no further response.
- A housemate, Christopher Barron, heard a gunshot shortly afterward and then saw Damper, who said C. had been shot.
- Barron saw a handgun on the bedroom floor; he and Damper left the residence in Damper’s car.
- Barron called C.’s phone at 11:24 a.m. and made additional calls soon after; police later found C.’s phone near her body.
- Damper testified the shooting was accidental, claiming the gun discharged while he was demonstrating how he would defend himself if violence occurred at the event.
- The prosecution offered the 11:21 a.m. text message as evidence of conflict and timing shortly before the shooting.

## Issues

1. Whether admitting the text message violated the Sixth Amendment Confrontation Clause because the declarant could not be cross-examined.
2. Whether the text message was inadmissible due to lack of authentication under Rule 901 and/or as hearsay under Rule 801.
3. Whether the text message should have been excluded under Rule 403 as unfairly prejudicial.

## Decision

- The Court of Appeals affirmed Damper’s second-degree murder conviction and related probation-violation dispositions.
- The court held the text message was non-testimonial and therefore not barred by the Confrontation Clause.
- The court held the State met Rule 901’s minimal authentication burden through circumstantial evidence supporting that C. sent the text.
- The court held the trial court did not abuse its discretion in admitting the text over hearsay and Rule 403 objections.

## Legal Principles

- The Confrontation Clause restricts admission of testimonial out-of-court statements offered for their truth; informal private communications sent to a friend during a personal dispute are generally non-testimonial.
- Under Rule 901(a), authentication requires evidence sufficient for a reasonable juror to find the item is what the proponent claims; authorship of electronic messages may be shown by circumstantial evidence.
- Circumstantial authentication may include the originating number or device, message content consistent with known events, timing, surrounding circumstances, and the absence of evidence suggesting another author.
- Evidence offered to show context, chronology, or a declarant’s then-existing state of mind may be admissible without violating hearsay limits, and Rule 403 excludes evidence only when unfair prejudice substantially outweighs probative value.

## Conclusion

The court affirmed the conviction, holding that a victim’s pre-shooting text message to a friend was non-testimonial for Confrontation Clause purposes and was properly admitted because circumstantial evidence sufficiently authenticated it and its probative value was not substantially outweighed by unfair prejudice.


State v. Damper, 223 Ariz. 572, 225 P.3d 1148 (Ariz. Ct. App. 2010)