NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Sarpy County: William B. Zastera, Judge. Affirmed.
Michael J. Wilson and Jessica Douglas, of Schaefer Shapiro, L.L.P., for appellant.
Douglas J. Peterson, Attorney General, and George R. Love for appellee.
Moore, Chief Judge, and Pirtle and Bishop, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
MOORE, CHIEF JUDGE.
Glenn A. Woodard appeals from his conviction in the district court for Sarpy County of one count of witness tampering. On appeal, Woodard challenges the court's admission of an exhibit containing audio recordings of Woodard's purported telephone conversations with and concerning the witness at issue. Woodard also challenges the sufficiency of the evidence to support his conviction. Because the court did not err in admitting the exhibit in question and because the State provided sufficient evidence to support Woodard's conviction, we affirm.
On October 9, 2013, in a separate county court case, the State filed a complaint charging Woodard with three counts of third degree domestic assault and one count of theft by unlawful taking, $200 or less. The State alleged that on October 8, Woodard intentionally and knowingly caused bodily injury to Natasha Guerrero, his intimate partner; that he threatened Guerrero with imminent bodily injury; and that he threatened her in a menacing manner. The State also alleged that Woodard took or exercised control over certain property belonging to Guerrero. Woodard was arrested in connection with these charges on October 8.
On January 17, 2014, the State filed an information in the district court, charging Woodard in the present case with one count of witness tampering in violation of Neb. Rev. Stat. § 28-919 (Reissue 2008), a Class IV felony, for his actions occurring between October 8 and December 9, 2013.
A bench trial in the witness tampering case was held before the district court on September 12, 2014.
At trial, Chad Strong, the vice-president of account services for Synergy Telecom, testified that Synergy provides the telephone system used by inmates in the Sarpy County Jail and that Synergy uses a software platform called "Telemate" to supply the automated features of the phone system. The phone system automatically records everything other than attorney privileged phone calls. The phone system stores the audio recordings and data associated with each phone call on Synergy's off-site computer servers. Inmates are issued a "PIN number" and are required to record a "voice print" for verification when they first use the system. To connect calls, the software requires the inmate to enter the assigned PIN, and at regular intervals throughout the call, the phone system compares the original voice print associated with the inmate's PIN to the voice of the inmate then using the phone. Although "not 100 percent" accurate, the voice recognition system does not allow calls to connect if the voice of the inmate making the call does not match the voice print associated with that inmate's PIN "within a certain percentage." During the course of a phone call, if a different inmate takes the phone and begins speaking, the phone system notes this information in the electronic file associated with the call but does not shut down.
Lloyd Schoolfield, a deputy sheriff with the Sarpy County Sheriff's Department, serves as administrator for the Telemate phone call system at the jail. As administrator, he can search for and download electronic files containing audio recordings of phone calls made by inmates using the jail's phone system. His administrator access allows Schoolfield to search the files using criteria including destination phone number or inmate PIN to narrow his search. He can then download selected audio files and save them onto a compact disc. Schoolfield also prints off an "accompanying PDF attachment" that shows data about the downloaded files. When downloading and saving an audio file, he cannot modify it in any way and understands that an attempt to do so would corrupt the file, making it unusable. Schoolfield testified that generating compact discs of inmate phone calls is something he does "in the regular course of business of the Sarpy County Sheriff's Office." On cross-examination, Schoolfield clarified that the phone system itself determines whether the voice prints match for a particular call and that as administrator, he simply downloads recorded data based on particular search parameters and does not make any voice match determinations.
Schoolfield testified about exhibit 1, a compact disc with audio files of inmate phone calls and a printout listing the inmate, PIN, call time, duration, destination number, and station (phone from which the call was made) for each audio file on the disc. Schoolfield generated exhibit 1 on August 28, 2014. The disc contains the audio files of 18 phone calls made from the Sarpy County Jail between October 9, 2013 and January 10, 2014. When the State offered exhibit 1 into evidence, Woodard's counsel objected as to foundation, stating further, "I understand the C.D. itself may come in, but I do have foundational objections to the contents of the C.D." The district court sustained the objection, stating, "You haven't even established that it's [Woodard]."
In response, the State asked Schoolfield to read into the record the information given by the audio file list for phone call numbers 5, 10, 15, and 18. As testified to by Schoolfield, the audio file list shows that calls 10, 15, and 18 were initiated by Woodard and were all made to the same destination phone number. Call number 5, however, is one of several calls on the audio file list made to a second destination phone number and the list identifies it as having been initiated by inmate Jae Swoboda. Schoolfield testified that the audio file for call number 5 came up in a search for calls made to that second destination phone number. He agreed that the audio files contained in exhibit 1 were ...