Malan v. Gates

Malan v. Gates

IN THE UTAH COURT OF APPEALS

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Robert L. Malan,

Plaintiff and Appellee,

v.

Kevin Gates,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 20030922-CA

F I L E D

(November 26, 2004)

2004 UT App 440

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Third District, Silver Summit Department

The Honorable Bruce Lubeck

Attorneys: Mark R. Moffat and Michael T. Holje, Salt Lake City, for Appellant

Robert L. Malan, Sandy, Appellee Pro Se

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Before Judges Billings, Bench, and Jackson.

BENCH, Associate Presiding Judge:

Kevin Gates appeals the district court's issuance of a civil stalking injunction. Gates argues that Robert L. Malan's testimony concerning a threatening cellular telephone text message lacked sufficient foundation. We review a district court's determination concerning issues of evidentiary foundation for abuse of discretion. See State v. Torres, 2003 UT App 114,¶7, 69 P.3d 314. Rule 602 of the Utah Rules of Evidence requires a witness to have "personal knowledge of [a] matter" prior to offering testimony concerning the matter. Malan testified that he read the text message and indicated that the message was from "Kevin." Because Malan testified that he had personal knowledge of the text message, the district court did not abuse its discretion in overruling Gates's foundation objection and admitting Malan's testimony.

Gates also argues that Malan's identification of Gates as the sender of the text message was inadmissible opinion testimony. Gates contends that Malan was offering expert testimony without being qualified as an expert in cellular telephone text messaging. A lay witness may testify "in the form of opinions or inferences" only where the testimony is "rationally based on the perception of the witness and . . . helpful to a clear understanding of the witness'[s] testimony or the determination of a fact in issue." Utah R. Evid. 701.

Malan's testimony that Gates sent the threatening message was based on Malan's perception that the cellular telephone identified the sender of the message as "Kevin." This testimony was clearly helpful in determining a fact in issue. Moreover, reading a name from a cellular telephone display screen is not a skill "so intrinsically specialized" that it lies within the exclusive domain of an expert. State v. Rothlisberger, 2004 UT App 226,¶13, 95 P.3d 1193 (holding that opinion testimony concerning a subject that is outside the common experience of most jurors must be presented by an expert); see also State v. Ellis, 748 P.2d 188, 191 (Utah 1987) ("Simply because a question might be capable of scientific determination, helpful lay testimony touching on the issue and based on personal observation does not become expert opinion."). The district court did not abuse its discretion in admitting Malan's testimony.

We therefore affirm the district court's issuance of the civil stalking injunction.

Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Norman H. Jackson, Judge