Blair v. State

• Decision Date: 28 September 2022
• Docket Number: S-22-0001
• Citation: 2022 WY 121
• Parties: JONATHON TYSON BLAIR, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2022 WY 121

JONATHON TYSON BLAIR, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-22-0001

Supreme Court of Wyoming

September 28, 2022

Appeal from the District Court of Sweetwater County The Honorable Suzannah G. Robinson, Judge.

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee:

Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames ^[*] , Senior Assistant Attorney General; Catherine M. Mercer ^[**] , Assistant Attorney General. Argument by Ms. Mercer.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.

BOOMGAARDEN, JUSTICE.

[¶1] Following a jury trial, Jonathon Tyson Blair was convicted of burglary, theft, and property destruction for breaking into his workplace and stealing approximately $16,000 in cash from the owner's desk. At trial, the district court admitted WiFi records showing only one electronic device-Mr. Blair's Apple iPhone-connected to the business's password protected WiFi network on the night of the burglary. Mr. Blair argues the district court erred by admitting those records under the business records exception to the hearsay rule. We affirm.

ISSUE

[¶2] Did the district court abuse its discretion by admitting WiFi records under the business records exception to the hearsay rule?

FACTS

[¶3] Hager Industries-a machining, welding, and fabrication business in Rock Springs, Wyoming-was burglarized late on the evening of October 17, 2019. The surveillance system recorded someone running toward the building at 10:49 p.m., tilting a camera in the reception area up toward the ceiling at 11:04 p.m., and then running from the building at 11:05 p.m.^[1] An office window was broken and approximately $16,000 in cash was missing from the owner's desk.^[2]

[¶4] In an effort to identify who committed the burglary, Mr Hager asked Sweetwater Technology Services-the company that managed Hager Industries' password protected WiFi network-whether any devices connected to the WiFi on the night of the burglary. Senior engineer Russell Snody found only one device connected to the WiFi during that timeframe.

[¶5] The device connected at 10:52 p.m. and disconnected at 11:15 p.m. It was an Apple iPhone with a MAC address of e0:89:7e:8e:70:90, and it connected to the WiFi other times in the last 30 days. That the device connected other times caused Mr. Hager to suspect the device belonged to a Hager Industries employee, as employees were provided the WiFi password. On comparing the WiFi records to his employees' timesheets, Mr. Hager concluded Mr. Blair-an inspector for Hager Industries-likely committed the burglary. He turned the WiFi records and timesheets over to police.

[¶6] Detective Michelle Hall compared the WiFi records for MAC address e0:89:7e:8e:70:90 to Mr. Blair's timesheets. She concluded the times when the device connected to and disconnected from the WiFi "correlated exactly" to the times when Mr. Blair clocked in and out for work during the last 30 days. Police seized Mr. Blair's Apple iPhone and confirmed its MAC address was e0:89:7e:8e:70:90.

[¶7] Based on this and other circumstantial evidence,^[3] the State charged Mr. Blair with burglary, theft, and property destruction. He pleaded not guilty to the charges and the case was set for trial.

[¶8] The State listed Sweetwater Technology as a witness in its pretrial memorandum. It noted the witness would testify about managing Hager Industries' WiFi network as well as records for MAC addresses that accessed the WiFi network "on the night of the burglary and when [Mr. Blair] was working." Mr. Blair moved to exclude this witness, reasoning: "testimony regarding the relationship between MAC addresses and the Wi-Fi network would require the witness to express an opinion regarding whether the specific MAC address in question connected to the network at specific times[,]" testimony of this technical nature would require expert testimony, and the witness had not been designated as an expert. The State filed a response clarifying that it did not intend to present testimony about how MAC addresses appear in WiFi connection records. Nor did it intend to ask for an opinion on "whose phone connected or how it connected[.]" Rather, the State intended to introduce WiFi connection records under the business records exception to the hearsay rule, which required no expert. Following a hearing, the court took the matter under advisement for resolution at trial.

[¶9] At trial, Mr. Snody testified that he had worked for Sweetwater Technology for three years and, in his capacity as senior engineer, he managed Hager Industries' WiFi network. Mr. Snody believed Sweetwater Technology set up the network for Hager Industries more than three years prior. He explained that the router brand for the network was Cisco Meraki; he and his technicians could remotely manage the network from a password-protected website they referred to as the "Meraki dashboard"; and no one from Hager Industries could access the website.

[¶10] Using a demonstrative exhibit consisting of screenshots of the website, Mr. Snody explained, step by step, how he navigated the website and what type of information he could find on it. He explained, for example, that the website "holds 30 days['] worth of logs"; he could search for devices that connected to the WiFi network and determine when they connected to and disconnected from the network; and he could download that data to a Microsoft Excel spreadsheet.

[¶11] Turning to the facts in this case, Mr. Snody testified that, in October 2019, Mr. Hager requested Sweetwater Technology search the WiFi records for any device that connected to the network between 9:00 p.m. and midnight on the night of the burglary. Mr. Snody searched the records, found one device, and sent Mr. Hager a screenshot of what he found. When the State moved to admit the screenshot as Exhibit 35, Mr. Blair objected and requested to voir dire Mr. Snody.

[¶12] On voir dire, Mr. Snody testified that Mr. Hager had never asked him to conduct this type of search before or since. It was uncommon for clients to request such information. Based on this testimony, Mr. Blair argued the exhibit did not qualify as a business record because it was not a "regularly conducted business activity, and it [was not] the regular practice of the business to keep this record." The State disagreed, maintaining that the underlying data, rather than any document Mr. Snody created for Mr. Hager, constituted the business record. The court overruled Mr. Blair's objection and admitted the exhibit under the business records exception. It proceeded to admit two additional exhibits-Exhibits 36 and 37-as business records over Mr. Blair's objection.

[¶13] Exhibit 36 contained information about the device that connected to the WiFi on the night of the burglary. It reflected that the device was an Apple iPhone with a MAC address of e0:89:7e:8e:70:90, and the device connected to the WiFi other times between September 24 and October 22. It did not, however, identify who owned the device.

[¶14] Exhibit 37 contained eight pages of data Mr. Snody downloaded from the website to a Microsoft Excel document and then provided to Mr. Hager. It listed dates and times when the device connected to and disconnected from the WiFi network between September 27 and October 22. Though Mr. Snody acknowledged he could have edited the data contained in the Microsoft Excel document he denied doing so.

[¶15] Additional witnesses included Detective Hall, who discussed comparing the WiFi records to Mr. Blair's timesheets, as well as Mr. Hager and several law enforcement officers involved in the investigation.

[¶16] The jury found Mr. Blair guilty of burglary, theft, and property destruction. He was convicted of those offenses and sentenced to eight to ten years in prison. This appeal challenging admission of the WiFi records followed.

STANDARD OF REVIEW

[¶17] Because Mr. Blair objected to the WiFi records, we review their admission for abuse of discretion. Thompson v. State, 2021 WY 84, ¶ 15, 491 P.3d 1033, 1039 (Wyo. 2021) (citation omitted). The district court abused its discretion if "it could not have reasonably concluded as it did." Id. (citation omitted). If the district court abused its discretion by admitting the WiFi records, we must determine whether their admission prejudiced Mr. Blair. Id. (citation omitted). The burden to establish abuse of discretion and prejudice is on Mr. Blair. Kincaid v. State, 2022 WY 4, ¶¶ 31, 32, 501 P.3d 1257, 1263 (Wyo. 2022) (citations omitted).

DISCUSSION

[¶18] "Hearsay" is defined as "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." W.R.E. 801(c).^[4] "Hearsay statements are generally inadmissible because they are made outside of court and, therefore, presumed to be unreliable." Bruce v State, 2015 WY 46, ¶ 40, 346 P.3d 909, 923 (Wyo. 2015) (citation omitted); W.R.E. 802. However, there are several exceptions to this rule, including W.R.E. 803(6) which permits the admission of business records. Bruce, ¶ 40, 346 P.3d at 923 (citation omitted); Hodgins v. State, 962 P.2d 153, 157 (Wyo. 1998) ("W.R.E. 803(6) is a firmly rooted exception to the exclusionary hearsay rule. That rule allows business records which meet certain requirements to escape the exclusionary nature of the hearsay rule."). "Where our rules are sufficiently similar to federal rules, we consider federal decisions interpreting them persuasive." Jontra Holdings Pty Ltd v. Gas Sensing Tech. Corp., 2021 WY 17, ¶ 76, ...