State v Burns, 2015 Tenn. Crim. App. LEXIS 325 (Tenn. Ct. App. May 5, 2015):

Vermaine M . Burns ("the Defendant") was convicted of several sexual offenses, all stemming from illicit Facebook chats ("chats") and emails between himself and the victim, K.P. On appeal, the Defendant raises three issues: (1) whether the trial court abused its discretion by admitting into evidence the Defendant's chats with the victim and an emailed photo of a penis; (2) whether the evidence was sufficient to support the jury's finding that the Defendant was the author of the communications; and (3) whether the trial court erred by prohibiting the Defendant from referring to a fake Facebook profile created by the Defendant's stepdaughter. After a review of the record and applicable law, we affirm the judgments of the trial court.

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II. Analysis

Authentication

On appeal, the Defendant first argues that the chats and email containing a photo of a penis that were sent to K.P. were not properly authenticated because the State failed to exclude the possibility that someone else authored the messages. The State argues that it need not exclude the possibility that someone else wrote the messages sent to K.P. in order to authenticate the messages. In light of the circumstantial evidence surrounding the Facebook chats and emails, the State avers that the trial court did not abuse its discretion by admitting the evidence. We agree with the State.

"Decisions regarding the admissibility or exclusion of evidence are entrusted to the trial court's discretion." State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008) (citing State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004)). As such, we review the trial court's decision under an abuse of discretion standard. Id. This Court will find an abuse of discretion when the trial court "applied incorrect legal standards, reached an illogical conclusion, based [*32]  its decision on a clearly erroneous assessment of the evidence, or employed reasoning that causes an injustice to the complaining party." Id. (citing Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)).

Tennessee Rule of Evidence 901 provides, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to the court to support a finding by the trier that the matter in question is what its proponent claims." Tenn. R. Evid. 901(a). Evidence may be authenticated through, "[t]estimony that a matter is what it is claimed to be" or "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." Tenn. R. Evid. 901(b)(1), (4).

A Tennessee appellate court has reviewed authentication of evidence found on social media websites on one other occasion. In Melissa L. Bright Dockery v. Kevin Carl Dockery, Sr., No. E2009-01059-COA-R3-CV, 2009 WL 3486662 (Tenn. Ct. App. Oct. 29, 2009), the Court of Appeals held that MySpace messages were properly admitted at trial when the messages were sent from the defendant to his friend, Ms. Lowe, and she had subsequently printed out their conversation. The trial court admitted the messages based on Ms. Lowe's testimony that she had printed the messages directly from her computer; they showed exactly [*33]  what she and the defendant said to each other; and each message identified which party to the conversation was making a particular statement. Id. at *6.

Several other jurisdictions have addressed the issue of authenticating electronic and social media communications in more depth. For example, in Griffin v. State, 19 A.3d 415 (Md. 2011), the Court of Appeals of Maryland detailed the concerns surrounding evidence found on social media websites. In that case, the State sought to introduce printouts from the defendant's girlfriend's MySpace profile, which allegedly contained a threat to one of the State's witnesses. Id. at 418. The State tried to authenticate the printouts through an officer's stipulation that he recognized a photo on the page as that of the defendant's girlfriend and the date of birth displayed on the profile was the same date that the defendant's girlfriend gave as her date of birth. Id. at 419. The Court of Appeals of Maryland noted the challenges that arise when trying to authenticate evidence from social media, stating, "The concern arises 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 username and password." Id. at 421. Therefore, it [*34]  held that "the picture of [the defendant's girlfriend], coupled with her birth date and location, were not sufficient 'distinctive characteristics' on a MySpace profile to authenticate its printout, given the prospect that someone other than [the defendant's girlfriend] could have not only created the site, but also posted the [purported threat]." Id. at 424.

However, the Court of Appeals of Maryland also outlined a number of possible avenues by which such evidence could be authenticated. Id. at 427. One such option was to "search the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine whether that computer was used to originate the social network profile and posting in question." Id.

Other courts have held that evidence derived from social media and emails was sufficiently authenticated when the prosecution offered circumstantial evidence corroborating that the evidence was what its proponent claimed. For example, in In re F.P., 878 A.2d 91 (Pa. 2005), the Supreme Court of Pennsylvania held that transcripts of instant messages between the defendant and the victim were properly authenticated and admitted at trial. Id. at 93. In that case, the defendant [*35]  assaulted the victim because he believed that the victim had stolen a DVD from him. Id. In the instant message conversations, the defendant identified himself by his first name and threatened physical violence against the victim for stealing from the defendant. Id. at 94. Additionally, after the victim notified school authorities about the threats, staff at the school met with the defendant and the victim regarding the messages and the alleged theft. Id. Approximately the same time as these school meetings, the defendant sent the victim another instant message stating, "u gotta tell tha school shit and stuff like a lil bitch."14Id. at 95. In the same conversation, the defendant also threatened, "want my brother to beat ur ass on tha steel center bus" and "want [sic] till I see u outta school ima beat ur aSS." Id. At the adjudication hearing, the defendant's brother testified that he witnessed the defendant beating up the victim after disembarking a school bus that the defendant did not normally ride. Id. The Pennsylvania Supreme Court held that "[a]ll of this evidence, taken together, was clearly sufficient to authenticate the instant message transcripts as having originated from [the defendant]." [*36]  Id. Further, the court declined to adopt an authentication standard that would require more direct proof of authorship for electronic communications. Id. The court noted that the same uncertainties regarding authorship exist with traditional written documents and held, "We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of Pa. R. Ev. 901 and Pennsylvania case law." Id.

14 In the interest of accuracy, the Pennsylvania Supreme Court left excerpts from the instant messages unaltered and uncorrected for grammatical errors. In re F.P., 878 A.2d at 94 n.5.

Additionally, in Commonwealth v. Purdy, 945 N.E.2d 372 (Mass. 2011), the Supreme Judicial Court of Massachusetts held that email exchanges were properly authenticated. Id. at 376. In that case, the defendant was accused of running a house of prostitution out of his combination "hair salon, antique store, art studio, and massage parlor." Id. at 372, 377. The email exchanges admitted into evidence were found on the hard drive of a computer that admittedly belonged to the defendant. Id. at 378. One email exchange was initiated from the defendant's email account; was signed with the defendant's name and the address of his business; and described the author of the email as a "working artist, as well [as an] entrepreneur, small business guy, hairstylist, art and antiques dealer, [and] massage therapist," and added, [*37]  "and I operate a service." Id. Other email messages were initiated from the defendant's account and bore the defendant's name as the signature. The defendant argued that the computer was located in an area where his employees could access it, and the defendant claimed his employees frequently used the computer and "used his e-mail account to play pranks on him, and that they answered e-mails in his name." Id. at 378. The court held that, even though the prosecution had not provided direct evidence that the defendant authored the emails in question, the circumstantial evidence regarding the defendant's knowledge of passwords for the computer, his admitted ownership of the email account, and the fact that the emails originated from the defendant's email address and bore his name was sufficient to authenticate the emails. Id. at 379-80. Further, the court held, "The defendant's uncorroborated testimony that others used his computer regularly and that he did not author the emails was relevant to the weight, not the admissibility, of the messages." Id. at 381-82.

 [*38] Similarly, in a case analogous to the one before us today, People v. Clevenstine, 891 N.Y.S.2d 511 (N.Y. App. Div. 2009), the New York Supreme Court, Appellate Division, held that sexually explicit MySpace instant message communications between the defendant and the victims were properly authenticated at trial. Id. at 514. In that case, both victims testified that they had discussed sexually explicit topics via the MySpace instant messaging service; state police had recovered copies of those instant messages from the hard drives of the victims' computers; the defendant's wife recalled finding sexually explicit conversations on the defendant's MySpace account; and a representative from MySpace testified that the accounts participating in the instant messages had been created by the victims and the defendant. Id. At trial, the defendant suggested that someone else had accessed his account and sent the message, but the court stated that "the likelihood of such a scenario presented a factual issue for the jury." Id.

Finally, in Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012), the Texas Court of Criminal Appeals likewise affirmed the introduction of MySpace postings based on circumstantial evidence used to authenticate the postings. Id. at 642-45. In that case, the defendant also suggested that someone else had created or accessed the MySpace account and argued that the State had failed to authenticate the messages as coming from the defendant. Id. at 636. In response, the court held:

Conceivably some unknown malefactors somehow stole the appellant's numerous self-portrait photographs, concocted boastful messages about David Valadez's murder and the circumstances of that shooting, was aware of the music played at Valadez's funeral, knew when the appellant was released on pretrial bond with electronic monitoring and referenced to that year-long event along with stealing the photograph of the grinning appellant lounging in his chair while wearing his ankle monitor. But that is an alternate scenario whose likelihood and weight the jury was entitled to assess once the State had produced a prima facie showing that it was the appellant, not some unidentified conspirators or fraud artists, who created [*39]  and maintained these MySpace pages.

Id. at 646.

Comparing the facts of this case to cases from other jurisdictions, we conclude that there was more than sufficient circumstantial evidence to authenticate the Facebook chats and emails in question. The Defendant admitted that the Facebook account used to send the chats belonged to him. Additionally, Detective Kniss independently verified that the Facebook account belonged to the Defendant by comparing the Facebook profile picture, user ID number, and associated email address with those of the Facebook account that sent chats to K.P. Transcripts of the "exact" same chats were found on both the Defendant and K.P.'s computer hard drives.

With regard to the emailed photographs, the Defendant admitted that the Hotmail account belonged to him and that the password to the account was not "remembered," requiring someone to enter a password each time they logged into the account. Further, it was the same email address to which the sender instructed K.P. to send photos. The Hotmail email address was also associated with the Defendant's Facebook account and tied to the T-Mobile Blackberry. Additionally, the same Hotmail account was open when police executed [*40]  the search warrant, and the Hotmail email address was listed on the Defendant's résumé. Photos sent via email by K.P. were found on the Defendant's computer, and the photo of a black man's penis was found on the Defendant's Blackberry, as well as K.P.'s computer hard drive. The time-date stamps of the photos matched the times the chats were sent to their respective recipients.

In light of all this evidence, we hold that the trial court did not abuse its discretion when it admitted the chats and the emailed photograph of a penis. To the extent that the Defendant argues that the State was required to affirmatively prove that the Defendant was the author of the message, we agree with reasoning from other jurisdictions that such challenge goes to the weight of the evidence, not its admissibility. See Tienda, 358 S.W.3d at 646; Purdy, 945 N.E.2d at 381-82; Clevenstine, 891 N.Y.S.2d at 514.

Within the Defendant's challenge to the authentication of the Facebook chats and emails, he argues that the communications were inadmissable hearsay because the State failed to prove the Defendant was the author of the messages. However, his argument is waived because he made no hearsay objection to their introduction at trial. See Tenn. R. App. P. 36(a) ("Nothing in this rule shall be construed as requiring [*41]  relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error.").