Facebook Authentication by Use of Street Names; Gang Terms, Photos, Artwork & Signs on Public Page +Similar Content on Private Pages & Circumstantial Evid — Music Downloaded from Sound Cloud Not Tied to Defendant or Gang Improperly Admitted for Truth

State v Gibson, 2015 Ohio App. LEXIS 1614 (Ohio Ct. App. May 1, 2015):

{¶ 32} In his second assignment of error, appellant states:

The trial court erred in allowing the introduction of prejudicial evidence by the state without the establishment of a proper foundation.

Appellant argues that printouts from Facebook and an audio recording downloaded from SoundCloud were introduced without establishing a proper foundation as to relevance, authenticity and authorship.

{¶ 33} At trial, the state presented, over objection, three exhibits purporting to represent printouts from appellant's public Facebook profile page. It also presented two exhibits purporting to represent printouts from public Facebook profile pages belonging to Kevin Martin and Stephaun Gaston. After careful consideration, and for the reasons set forth below, we find that the printouts presented by the state were relevant to the participation in a criminal gang charge under Evid.R. 401 and 104(B) and sufficiently authenticated under Evid.R. 901(A) and 104(A). Thus, the trial court did not abuse its discretion when it allowed the evidence to be presented to the jury. The trial court abused its discretion, however, when it allowed an audio recording downloaded from SoundCloud to be played for the jury. Nonetheless, [*20]  admission of this evidence was harmless error. Appellant's second assignment of error is not well-taken.

A. What is Facebook?

{¶ 34} Facebook has been described as "a widely-used social-networking website * * * that allows users to connect and communicate with each other." Ehling v. Monmouth-Ocean Hosp. Service. Corp., 961 F.Supp.2d 659, 662 (D.N.J.2013). "Every Facebook user must create a Profile Page, which is a webpage that is intended to convey information about the user." Id. An individual's "Profile Page can include the user's contact information; pictures; biographical information, such as the user's birthday, hometown, educational background, work history, family members, and relationship status; and lists of places, musicians, movies, books, businesses, and products that the user likes." Id. In addition to a profile page, each user has a "News Feed." Id. "The News Feed aggregates information that has recently been shared by the user's Facebook friends." Facebook pages are public, by default. Id. "However, Facebook has customizable privacy settings that allow users to restrict access to their Facebook content." Id.

{¶ 35} Facebook users often "post content-which can include text, pictures, or videos-to that user's profile page" delivering it to the user's [*21]  subscribers. Parker v. State, 85 A.3d 682, 686 (Del. 2014). These posts often include information relevant to a criminal prosecution: "party admissions, inculpatory or exculpatory photos, or online communication between users." Id. Authentication concerns arise in regard to printouts from Facebook "because anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password," and, consequently, "[t]he potential for fabricating or tampering with electronically stored information on a social networking sight" is high. Griffin v. State, 419 Md. 343, 19 A.3d 415, 421 (2011). See also Campbell v. State, 382 S.W.3d 545, 550 (Tex. App.2012) ("Facebook presents an authentication concern * * * because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate."); Smith v. State, 136 So.3d 424, 433 (Miss. 2014) (in regard to Facebook, authentication concerns arise "because anyone can create a fictitious account and masquerade under another person's name.").

B. What is SoundCloud?

{¶ 36} "SoundCloud" is an online social networking service and audio streaming platform that allows users to "share, like, annotate and comment on tracks, and embed a copy of the SoundCloud media player on their own website, blog or [*22]  Facebook page." The London School of Economics and Political Science, LSE on SoundCloud, http://www.lse.ac.uk/newsAndMedia/videoAndAudio/SoundCloud.aspx (accessed Apr. 1, 2015). See also Whiteboard, Soundcloud co-founder Eric Wahlforss: "How we built SoundCloud" (Apr. 24, 2013), http://www.whiteboardmag.com/soundcloud-co-founder-eric-wahlforss-berlin-how-we-built-soundcloud/ (accessed Apr. 1, 2015). When a user registers for a free SoundCloud account, he or she can record and publish up to 120 minutes of audio content. Educational Technology and Mobile Learning, Teachers' Guide to the Use of SoundCloud in Class (July 19, 2014), http://www.educatorstechnology.com/2014/07/teachers-guide-to-use-of-soundcloud-in.html, (accessed Apr. 1, 2015).

C. Evidentiary Hurdles of Admitting Electronically Stored Information

{¶ 37} The appropriate way to authenticate electrically stored information (ESI) from social networking websites is a matter of first impression for this court. However, for the past several years, courts from other jurisdictions, have addressed the unique issues posed in attempting to introduce various forms of ESI into evidence.

{¶ 38} One of the earliest and most comprehensive cases addressing the evidentiary hurdles of admitting ESI is Lorraine v. Markel American Insurance Co., 241 F.R.D. 534 (D.Md.2007). In Lorraine, the court identifies and discusses all of the issues a court may need to consider in determining admissibility of ESI under the Federal Rules of Evidence. While the opinion [*23]  goes into great detail regarding the "evidentiary hurdles," it summarizes its finding as follows:

Whenever ESI is offered as evidence, either at trial or in summary judgment, the following evidence rules must be considered: (1) is the ESI relevant as determined by Rule 401 (does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be); (2) if relevant under 401, is it authentic as required by Rule 901(a) (can the proponent show that the ESI is what it purports to be); (3) if the ESI is offered for its substantive truth, is it hearsay as defined by Rule 801, and if so, is it covered by an applicable exception (Rules 803, 804, and 807); (4) is the form of the ESI that is being offered as evidence an original or duplicate under the original writing rule, or if not, is there admissible secondary evidence to prove the content of the ESI (Rules 101-108); and (5) is the probative value of the ESI substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance. Preliminarily, the process by which the admissibility of ESI is determined is governed by Rule 104, which addresses the relationship [*24]  between the judge and the jury with regard to preliminary fact finding associated with the admissibility of evidence. Because Rule 104 governs the very process of determining admissibility of ESI, it must be considered first. Id. at 538.

{¶ 39} Since Lorraine, several courts have evaluated the admissibility of evidence from social media networking websites under the Federal Rules and comparable state rules, with mixed results. See, e.g., People v. Beckley, 185 Cal.App.4th 509, 541, 110 Cal. Rptr. 3d 362 (2010) (recognizing ease of altering digital photographs and requiring expert testimony to authenticate photographs taken from appellant's MySpace account); Griffin v. State, 419 Md. 343, 19 A.3d 415 (Md. 2011) (circumstantial evidence of MySpace user's nickname, birthdate and a photograph of the user "in an embrace" with the defendant, not sufficient "distinctive characteristics" for authentication, "given that someone other than [defendant's girlfriend] could have not only created the site, but also posted the comment at issue"), Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App.2012) (internal content of MySpace website posting, including photographs, comments, and music, was sufficient circumstantial evidence to establish a prima facie case such that a reasonable juror could have found that the social media page was created and maintained by appellant); People v. Lenihan, 911 N.Y.S.2d 588 (N.Y. Sup. Ct.2010) (photographs downloaded [*25]  from MySpace by victim's mother were not properly authenticated in light of the ability to "photo shop"); Smith v. State, 136 So.3d 424, 433 (Miss. 2014) (name and photograph on Facebook printout not sufficient to link communication to the purported author); State v. Eleck, 130 Conn. App. 632, 23 A.3d 818, 823 (2011); Parker v. State, 85 A.3d 682, 688 (Del. 2014) (once the trial court determines there is evidence sufficient to support a finding that the Facebook evidence is what its proponent claims it to be, the jury will decide whether to accept or reject the evidence); People v. Glover, ___ P.3d ___, 2015 WL 795690 (Colo. App. 2015) (account name, phone number, photographs, and content of messages sufficient under Rule 901(b) to conclude Facebook account belonged to appellant and that he sent the messages contained therein). While these cases present widely disparate outcomes, they all utilize traditional means to authenticate ESI from social networking websites.

{¶ 40} The author of the Lorraine decision, the Honorable Paul W. Grimm4, has collaborated on a number of articles detailing the admissibility of ESI. See Hon. Paul W. Grimm, et al., Back to the Future: Lorraine v. Markel American Insurance Co. and New Findings on the Admissibility of Electronically Stored Information, 42 Akron L. Rev. 357 (2009) ("Grimm I"). See also Hon. Paul W. Grimm, et al., Authentication of Social Media Evidence, 36 Am.J. Trial Advoc. 433 (2013) ("Grimm II").

4 The Honorable Paul W. Grimm is the Chief United States Magistrate Judge for the United States [*26]  District Court for the District of Maryland. [Ed. note:  Judge Grimm was elevated to United States District Judge a few years ago.]

{¶ 41} InGrimm II, the authors discuss the two lines of cases that have emerged in recent years. Id. at 441. "One line of cases sets an unnecessarily high bar for the admissibility of social media evidence by not admitting the exhibit unless the court definitively determines that the evidence is authentic." Id. See also Griffin v. State, 19 A.3d 415 (Md.2011); Commonwealth v. Wallick, No. CP-67-CR-5884-2010 (Pa.Ct.Com.Pl. Oct.2011); and People v. Beckley, 110 Cal.Rptr.3d 362 (Ct.App.2010). "Another line of cases takes a different tact, determining the admissibility of social media evidence based on whether there was sufficient evidence of authenticity for a reasonable jury to conclude that the evidence was authentic." Grimm II at 441. See Tienda v. State, 358 S.W.3d 633 (Tex.Crim.App.2012); State v. Assi, No. 1 CA-CR 10-0900, 2012 WL 3580488 (Ariz.Ct.App. Aug. 21, 2012); People v. Valdez, 135 Cal.Rptr.3d 628 (Ct.App.2011); and People v. Clevenstine, 891 N.Y.S.2d 511 (N.Y.App.Div.2009). In Grimm II, the authors suggest that the approach taken in the second line of cases more appropriately considers the necessary interplay between Rules 901 and 104(a) and (b) of the Federal Rules of Evidence. Grimm II at 455. The authors conclude:

It is clear that the best approach for authenticating and admitting social media evidence is to follow Rules 104(a) and (b). Following such an approach, courts consider evidence from all sources (even [*27]  if not from a live witness) - including documents, whether electronic or hard copy - on acontinuum. That is, clearly authentic evidence is admitted, clearly inauthentic evidence is excluded, and everything in between is conditionally relevant and admitted for the jury to make the final determination of authenticity. Id. at 465.

D. Ohio Law

{¶ 42} In Ohio, preliminary questions of admissibility are governed by Evid.R. 1045. This rule provides, in relevant part, as follows:

(A) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (B). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(B) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

5. Evid. R. 104 is identical to the Federal Rule counterpart discussed in Grimm I. The Federal Rule counterpart discussed in Grimm II was amended, effective December 1, 2011.

{¶ 43} Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination [*28]  of the action more probable or less probable than it would be without the evidence." Evid.R. 401. Relevant evidence is admissible under Evid.R. 402.

{¶ 44} The authenticity requirement is satisfied by "evidence sufficient to support a finding that the matter in question is what the proponent claims." Evid.R. 901(A). "Evid. R. 901(B) and 902 establish methods by which a document may be authenticated by extrinsic evidence or by which it may be self-authenticated so extrinsic evidence is not required because the document possesses on its face indicia of authenticity which are sufficient to support the finding that the document is what it purports to be." State v. Smith, 63 Ohio App.3d 71, 74, 577 N.E.2d 1152 (11th Dist.1989).

{¶ 45} Previously, we described the Evid.R. 901(A) authentication requirement in a per curium opinion as follows:

"[T]he showing of authenticity is not on a par with more technical evidentiary rules, such as hearsay exceptions, governing admissibility. Rather, there need be only a prima facie showing, to the court of authenticity, not a full argument on admissibility." Thus, once a prima facie showing has been made to the court that a document [*29]  is what its proponent claims, it should be admitted. At that point the burden of going forward with respect to authentication shifts to the opponent to rebut the prima facie showing by presenting evidence to the trier of fact which would raise questions as to the genuineness of the document. The required prima facie showing of authentication need not consist of a preponderance of the evidence. Rather, all that is required is substantial evidence from which the trier of fact might conclude that a document is authentic. * * * "[I]t is the [trier of fact] who will ultimately determine the authenticity of the evidence, not the court." The only requirement is that there has been substantial evidence from which [the trier of fact] could infer that the document was authentic. Hartford Insurance Co. v. Parker, 6th Dist. No. L-82-181, 1982 WL 6662, *7 (Dec. 3, 1982), quoting Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 Fed.Supp. 1190, 1219 (E.D.Penn.1980).

{¶ 46} "The evidence necessary to support a finding that the document is what a party claims it to be has a very low threshold, which is less demanding than the preponderance of the evidence." State v. White, 4th Dist. Scioto No. 03CA2926, 2004-Ohio-6005, ¶ 61, quoting Burns v. May, 133 Ohio App.3d 351, 355, 728 N.E.2d 19 (12th Dist.1999). "Circumstantial evidence, as well as direct, may be used to show authenticity." State v. Paster, 2014-Ohio-3231, 15 N.E.3d 1252, ¶ 32 (8th Dist.), quoting State v. Pruitt, 8th Dist. Cuyahoga No. 98080, 2012-Ohio-5418, ¶ 10.

[*30]  47} Our interpretation of the authentication requirement in Hartford Insurance Co., supra, is in line with Lorraine in that "because authentication is essentially a question of conditional relevancy, the jury ultimately resolves whether evidence admitted for its consideration is that which the proponent claims." Lorraine, 241 F.R.D. at 539, quoting United States v. Branch, 970 F.2d 1368, 1370 (4th Cir.1992). Thus, we believe the less stringent approach to authentication of social media outlined in Grimm II is the proper approach here. In other words, a trial court "need not find that the evidence is necessarily what the proponent claims, but only that there was sufficient evidence that the jury might ultimately do so." Lorraine at 542, quoting United States v. Safavian, 435 F.Supp.2d 36, 38 (D.D.C. 2006). As stated above, once the prima facie threshold is met, "the burden of going forward with respect to authentication shifts to the opponent to rebut the prima facie showing by presenting evidence to the trier of fact which would raise questions as to the genuineness of the document." Hartford Insurance Co. at *7, quoting Zenith, 505 Fed.Supp. at 1219.

E. Admissibility of Printouts from Public Facebook Profile Pages

{¶ 48} We turn now to the admissibility of printouts from the Facebook profile pages purporting to belong to appellant, Martin, and Gaston. We note that under this assignment of error our discussion is limited [*31]  to the trial court's rulings relating to the authenticity of the printouts and the state's use of the images contained thereon to identify the appellant as the perpetrator and then demonstrate appellant's association with known gang members. The subject Facebook profile pages contain few words beyond those discussed below. Thus, our discussion and analysis applies only to the very narrow use of public Facebook profile pages as they were utilized in this matter.

{¶ 49} In his brief, appellant asserts that neither Detective William Noon nor Detective Bart Beavers had sufficient personal knowledge about the ownership and control of the Facebook profile pages to meet the threshold admissibility requirements set forth in Evid.R. 901(B)(1). Courts have interpreted this subsection of the rule to allow "'any competent witness who has knowledge that a matter is what its proponent claims may testify to such pertinent facts, thereby establishing, in whole or in part, the foundation for identification.'" Secy. of Veterans Affairs v. Leonhardt, 3d Dist. Crawford No. 3-14-04, 2015-Ohio-931, ¶ 43, quoting TPI Asset Mgt. v. Conrad-Eiford, 193 Ohio App.3d 38, 950 N.E.2d 1018, 2011-Ohio-1405, ¶ 15 (2d Dist.). In response, the state asserts that printouts from the public Facebook profile pages were properly authenticated under Evid.R. 901(B)(4). This [*32]  subsection of the rule explains that "[a]ppearance, contents, substance, internal patterns or other distinctive characteristics, taken in conjunction with the circumstances" conform with the authentication requirement. Id.

We believe that a combination of both personal knowledge of the appearance and substance of the public Facebook profile pages, taken in conjunction with the following direct and circumstantial evidence was sufficient to meet the threshold admissibility requirement set forth in Evid.R. 901(B)(1).

{¶ 50} Detective Beavers testified that it was clear from Limmie's first interview that the individuals involved in the Fernwood shooting were from the Moody Manor apartment complex. Within 24 hours of the shooting, Limmie picked both Stephaun Gaston and Kevin Martin out of a photo array. Within a few weeks of the shooting, Detective Beavers learned from one of Limmie's family members that Gaston and Martin had Facebook accounts. Detective Beavers explained:

There's a search mechanism on Facebook that allows you to put in different search terms, for example, if somebody's name you can search by last name, by first name, by combination of first and last name, or in this case the majority of [*33]  them had Young Money that was part of their name, so if I punch in Young Money I could see anybody that would have used that combination of letters that would have maybe been in the Toledo area. So I did kind of a variety of searches to come up with that.

{¶ 51} When Detective Beavers searched for the two individuals identified by Limmie, he was able to locate Facebook profile pages of individuals claiming residence in Toledo and utilizing terminology associated with the Young Money subsection of the Moody Manor Bloods. Detective Beavers explained that when he searched for Gaston aka "Oozie," he found a public Facebook profile page utilizing the username "Oozie Montana YungSavage Mayor." When he searched for Martin aka "Kfifty," Detective Beavers found the public Facebook profile page utilizing the username "Kfifty Youngmoney Boss."

{¶ 52} On November 1, 2012, Detective Beavers created printouts of the Facebook profile pages. At trial, Detective Beavers indicated that other than minor formatting issues, state's exhibit Nos. 111 and 112 accurately reflected the Facebook profile pages he viewed on his computer screen and attributed to Gaston and Martin, respectively.

{¶ 53} On December [*34]  18, 2012, Limmie contacted Detective Beavers indicating he had been on Facebook and found the man who held a gun to his face. According to Detective Beavers, Limmie indicated that "[h]e had actually seen pictures of Traquawn Gibson and that he saw the lips and the lips that were seen on Facebook were the lips of the individual that had the gun that shot him and Deonta Allen that night." Once again, Limmie was shown a photo array of possible suspects by a blind administrator. This time, however, the top half of the suspects' faces were covered up. When asked if any of the modified photos resembled the man who held a gun to his face, Limmie picked out a photo of appellant.

{¶ 54} Detective Beavers testified that on February 5, 2013, he created printouts of the "Traquawn Gibson YoungMoney" Facebook profile page. Detective Beavers further testified that state's exhibit Nos. 113, 114, and 115 accurately reflect the Facebook profile page he viewed on his computer screen and that he attributed to appellant.

{¶ 55} Detective William Noon is a certified gang specialist on the Toledo Police Gang Task Force. He testified that there are 18 documented street gangs in Toledo, one of which is known [*35]  as the Moody Manor Bloods. Detective Noon explained, "the Moody Manor is a low income housing project right here in Central Toledo and it's called the Moody Manors so [the members] call themselves the Moody Manor Bloods."

{¶ 56} Detective Noon indicated that during his decade on the task force, he has dealt with the Moody Manor Bloods "hundreds of times." The factions or subgroups within the Moody Manor Bloods call themselves "Kent Head," "Young Money," or "Manor Boyz."

{¶ 57} Detective Noon testified that appellant's street name is "Hot Boy" and that appellant is a member of the Young Money subgroup of the Moody Manor Bloods.  Detective Noon indicated that through his work on the Gang Task Force he had been aware of appellant for at least three years. While performing surveillance as a gang task force investigator, Detective Noon observed appellant with known Moody Manor Blood members, i.e., Keshawn Jennings, Antwaine Jones and James Moore, in a park across the street from the Moody Manor apartment complex.

{¶ 58} Detective Noon testified that the Gang Task Force database includes information on all known and suspected gang members in the area. According to information compiled in the [*36]  database, appellant admitted his membership to the Moody Manor Bloods on at least two separate occasions to Toledo police officers. Detective Noon further indicated that on one occasion appellant "was stopped wearing a tribute shirt to Montrese Moore who was a Moody Manor Blood that was killed."

{¶ 59} Detective Noon testified that Facebook is an important investigative tool because it shows the associations and nicknames of known and suspected gang members. State's exhibit No. 114 is a printout of a color photograph depicting ten young black men in what appears to be the stands of a sporting event. The printout is dated November 1, 2012, and was taken from the "Traquawn Gibson Young Money" Facebook profile page. Detective Noon identified appellant sitting with known gang members, some of whom are displaying Moody Manor gang signs.

{¶ 60} State's exhibit No. 115 is a screenshot of artwork taken from the "Traquawn Gibson Young Money" Facebook profile page. When questioned by the state, Detective Noon provided the following testimony about the exhibit:

Q. Could you tell us what you are seeing in that exhibit?

A. That's I would call it a monicker for the Moody Manor Boyz.

Q. What do you [*37]  mean by a monicker?

A. It just shows his affiliation with the Moody Manor or I should say it has names that I'm familiar with nicknames of street gang members from the Moody Manors and talks about their block, 2200 block Kent, V block Sherman which is all the streets that's around the Moody Manors.

* * *

Q. In your investigation and your specialization with the gang task force, what does that moniker, which gang does that represent?

A. It has a Y and M and stands for Young Money and it says 2200 so it would stand for 2200 block of Kent, Moody Manor Bloods and the Young Money Group.

Q. And I believe you testified before that [appellant] his street name is Hot Boy; is that correct?

A. That's correct.

Q. Is that nickname contained within that graphic you are seeing?

A. Yes.

Q. Okay. And you also told us about Kfifty, is his street name depicted in that graphic you are seeing?

A. Kfifty is in this, yes.

Q. Do you recognize any of the other street names contained in that graphic?

A. Yeah, Pete is Pete Mohammed, he's a Moody Manor Blood. Dee gotti is Deshaun Gott. D-Crisp is Darious Crisp, Monster is Dewaun Wilson. It says Flocka which is David Adams, Tay gotti is Deonta Gott. I'm not sure of a couple [*38]  of the other ones though.

{¶ 61} In regard to the printout from the "Oozie Montana YungSavage Mayor" Facebook profile page, Detective Noon identified a photograph depicting Stephaun Gaston. When asked whether the profile name had any gang significance, Detective Noon stated:

Oozie is his street nickname. That is what he goes by. And Young Savage is something they claim to be. I mean there's - you hear Young Money, you'll hear that I'm a young savage which means he's a young guy and it refers to being a younger gang member.

{¶ 62} In regard to the printout from the "Kfifty Youngmoney Boss" Facebook profile page, Detective Noon identified a photograph of four men. He identified one of the men as Kevin Martin. When asked whether the Facebook profile page had any gang significance, Detective Noon stated:

I see where it says Young Money which is a subset of the Moody Manors or that is what we believe to be and we also see what my interpretation is they are making and forming an M with their fingers * * * and so they are showing it stands for the M's in Moody Manor.

{¶ 63} In regard to state's exhibit No. 113, a printout from the "Traquawn Gibson YoungMoney" Facebook profile page, Detective [*39]  Noon identified a photograph of appellant.

{¶ 64} On cross-examination Detective Noon indicated that he did not "know for fact" who created the above mentioned Facebook pages or what computer was used to create them. He further admitted that he did not "know for sure" whether appellant had any control over the Facebook pages associated with the profile named "Traquawn Gibson YoungMoney" or whether Stephaun Gaston and Kevin Martin had any control over the Facebook pages associated with the profile names "Oozie Montana YungSavage Mayor" and "Kfifty Youngmoney Boss."

{¶ 65} At trial, Limmie explained that "on Kent" is a phrase utilized by members of the bloods street gang. When appellant said, "on Kent, give it up" to him on October 18, 2012, Limmie knew he was being robbed by a Moody Manor Blood.

{¶ 66} Detective Noon testified that the phrase, "on Kent" is significant because only the Moody Manor Bloods use the phrase. He indicated that the phrase "is used for several different things. It could be said as on Kent as in this is who is doing whatever is being done at the time. I'm on Kent which I'm claiming to be a Moody Manor Blood or it could mean that's the truth, on Kent, I'm telling [*40]  you the truth."

{¶ 67} In regard to the shooting at 32 West Weber Street, Eric Pinkham, a paramedic on the scene, testified that while he was assisting appellant to the life squad, appellant began "talking out loud." Pinkham testified:

He seemed - he said he blamed his gangster lifestyle for what happened to I guess it was his girlfriend and that her parents were going to blame him I think and it was about some other shooting, there was some other shooting that he was involved with that something retaliation, I was confused.

{¶ 68} Detective Kermit Quinn testified that hours after C.J.'s shooting, appellant admitted his association with the Moody Manor Boys.

{¶ 69} Finally, according to Detective Beavers, the internal content of the subject Facebook pages had been made private under the privacy settings utilized by the owners of the accounts. Thus, only a limited amount of "public" content was available to him.

This information is relevant to the authenticity of the accounts because it demonstrates that the accounts' creators asserted control over the internal content of the websites. Further, that the owners utilized unique usernames and chose to display certain photographs on the publicly [*41]  accessible portions of the accounts suggests that the owners did not consider the pictures misleading or falsified. Together, these factors tend to support the genuineness of the postings.

{¶ 70} Considering all of the evidence cited above-including, but not limited, to the unique street names, gang terminology, photos, artwork, and gang signs utilized on the subject public Facebook profile pages in conjunction with both direct and circumstantial evidence of the proposed owners' gang affiliation-we find that substantial evidence was submitted from which a reasonable juror could conclude that the various Facebook profile pages were attributable to appellant, Gaston, and Martin. Thus, the trial court did not abuse its discretion in admitting the evidence.

F. Admissibility of SoundCloud Soundtrack

{¶ 71} We turn now to the admissibility of the audio recording downloaded from SoundCloud.

{¶ 72} In his testimony before the jury, Detective Noon indicated that during his investigation into the Fernwood shooting, he became familiar with a song entitled "Wooty Woo La La La" a recording of which he found on SoundCloud. When asked to explain SoundCloud, Detective Noon indicated:

Sound Cloud is a [*42]  website that is new to me within the last year, year and half where we're finding a lot of gang related music on and I don't know if it's uploaded and how they upload it or you have to be a member of Sound Cloud but it's a free site that you can go to and listen to music.

{¶ 73} Detective Noon indicated that when he became aware of the song, he searched "Google" which took him to SoundCloud. He explained what he saw when he reached the song on SoundCloud: "It show up - it shows up the song and it will say who it's made by and I don't know the exact names but I know there's a Trappin G and Juan B, Young Money to Little Head. I know that's most of the terms that are in that."

{¶ 74} When asked why the song was significant, Detective Noon provided the following testimony:

A. We were able to listen to the song, only some of the lyrics, and it mentions [appellant] in there, Hot Boy, and it mentions the word fuck Tay as in as far as Mr. Allen who was deceased at the time.

Q. Okay. Does it mention any names of streets in that song at all?

A. It mentions some names of streets, I know Kent is mentioned and I believe it mentions Fernwood too.

Q. And you stated that the street name of Hot Boy is [*43]  mentioned in that song as well?

A. It does say Hot Boy, yes

Q. Okay. Song mentions killing crabs; is that right?

A. That's correct.

Q. Okay. * * * can you tell us what crabs are, what that signifies?

A. * * * If you're a Crip and someone calls you a crab it's very disrespectful to a Crips gang member. * * *

{¶ 75} Over trial counsel's objection, the state was allowed to introduce a recorded copy of the song "Wooty Woo La La La." The trial court delivered the following limiting instruction before the song was played in open court:

I want to instruct you that this tape which is identified as Exhibit Number 116 is played in reference to your consideration as it relates to Count 4 of the charge and that count is referred to as participating in a criminal gang. It cannot be used for any purpose to identify the defendant as the perpetrator as to Count 1 which is the charge of murder as it relates to the victim Deonta Allen.

{¶ 76} Detective Noon testified that while he did have an opportunity to listen to the song he did not "have the occasion to speak to any known Moody Manor Bloods gang members" about it. On cross-examination Detective Noon indicated that he did not know when the song was [*44]  written or when it was uploaded to the SoundCloud webpage.

{¶ 77} Two significant "evidentiary hurdles" are triggered by this evidence: authenticity and hearsay. As to the latter, it is clear that the song is being offered for its substantive truth, in other words, the song was introduced because its lyrics are significant to the gang's involvement in the shootings alleged in the Fernwood indictment. Thus, it is hearsay as defined by Evid.R. 801 and does not appear to be covered by an applicable exception. As to authenticity, we find that the state failed to present substantial evidence from which a reasonable juror could conclude that the song was attributable to a member of the Moody Manor Bloods. Pursuant to the above, we find that the trial court abused its discretion when it allowed the song into evidence. Any error, however, in its admission was harmless. We find no reasonable probability that the outcome of the trial would have been different had the song been excluded.

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