Facebook Authentication — Witness Who Accepted Friend Request Testifies She Was Tagged on Threatening Posts and Received Threatening Photo Via Facebook News Feed, and Her Screenshots of Posts and Photos Are Fair and Accurate

People v. Wooten, 2015 Cal. App. Unpub. LEXIS 8115 (Cal. Ct. App. Nov. 12, 2015):

A jury convicted William Fred Wooten of making a criminal threat.***

FACTUAL AND PROCEDURAL BACKGROUND

Jene Yates suspected that her 16-year-old sister was acting as a prostitute for Wooten. Yates had seen an advertisement featuring her sister on a Web site known as "Backpage" where prostitutes post advertisements to find customers. The advertisement included a picture of Yates's sister in a bathing suit, provided the phone number from a cell phone Wooten had given Yates's sister, and stated that Yates's sister only did "out-calls," meaning she would travel to the customer's location.

On a morning in December 2013, Wooten texted Yates and asked for Yates's sister to come out of Yates's residence to return a cell phone to Wooten. Yates gave Wooten the cell phone. Later that morning, while Yates was at the courthouse on an unrelated matter, she saw that Wooten had posted comments about her on Facebook. Yates and Wooten were "friends" on Facebook, which allowed her to see posts on Wooten's Facebook page. Wooten posted:

"Jene Yates no but this is bitched check this out but I'll don't give fuck about Nun of dat bitch nigga you keep write in on my shit on my be forced to send someone over kick your ass nigga you don't [*3]  know me last night I chould of squirted up fired up yo hole shit yu wasn't talking to shit wen I came an got my phone out I would of slapped your bitch ass."

Yates believed the comment was directed at her because Wooten had "tagged" her to see it. She thought the message meant that Wooten was "going to shoot up [her] house, or he was capable of shooting up [her] house" and that he was going to send someone over to beat her up. Yates was upset and crying when she saw the post. She showed it to a police officer at the courthouse who suggested that she file a police report. Yates took screen shots of the post to preserve it.

After Yates contacted the police, Wooten made another post on Facebook and tagged Yates and her sister in it. The second post stated,

"Bitch Idgaf ab yu nore yur Liddo mud rats set I said I'll FIRE YUR SHIT UP YUR CHEN IS WAT I MENT set but on PIRU YU CALL THE BABBIES ON MII THAT WILL BE THE WORST THING YU CKOULD EVER DO BITCH YU OLD BABBIE CALLIN WHORE LET MII AN YO NIGGA CATCH THE FADE INSTEAD OF CALLIN THE WHITE BOYS"

Yates understood the comment to mean that Wooten was telling her she did the wrong thing by calling the police, which Wooten referred to as "the babbies." [*4]  Based on the second post, she also understood that Wooten was in the Piru gang and that Wooten or his gang partners were going to be at her house to start problems. She took a screenshot of the post.

Thereafter, Yates saw in her Facebook "news feed" that at some point Wooten had posted a picture of himself pointing a gun at the camera. Yates was terrified because Wooten had sent Yates's sister a message saying that Yates and her sister were on the "hot sheet" for calling the police. Yates explained that being on the "hot sheet" meant that she could be beat up or killed by somebody from the same gang as the person who put her on the list.

Later that day, Yates left her home to go grocery shopping. As she was driving, she saw a group of males in a car, darting in and out of traffic to catch up with her. Yates called the police when she confirmed that Wooten was in the car. Yates was scared and crying.

Yates testified that she moved out of her house because she did not "want any surprise visitors" and did not feel safe in her home anymore. She explained that she could not drive down her street without looking over her shoulder to see if someone was following her. On cross-examination, Yates [*5]  admitted that she moved out of her house in June 2014, approximately six months after Wooten's Facebook posts.

***

B. Authentication

Wooten argues the trial [*22]  court erred in admitting the Facebook postings because they were not properly authenticated. Specifically, he contends the Facebook evidence was not properly authenticated because there was no evidence from a police technician about how the computer file was created, preserved, handled or printed, no testimony from a Facebook employee about the file on its servers or who had access to it, and no testimony from the page creators or people who posted remarks concerning whether it was privacy protected. We reject these contentions.

Wooten forfeited his authentication argument by failing to object on that ground in the trial court. (People v. Williams (1997) 16 Cal.4th 635, 661-662.) He only raised an objection based on hearsay, which was overruled. Wooten contends his hearsay objection preserved his authenticity objection. We are not persuaded.

"While no particular form of objection is required [citation], the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility." (People v. Williams (1988) 44 Cal.3d 883, 906; Evid. Code, § 353.) "'[T]he 'defendant's failure to make a timely and specific objection' on the ground asserted on appeal makes [*23]  that ground not cognizable.'" (People v. Partida (2005) 37 Cal.4th 428, 433-434.) Wooten's hearsay objection did not alert the court that he was challenging the Facebook evidence on authentication grounds.

In any event, the Facebook posts were properly authenticated. "[W]hile all writings must be authenticated before they are received into evidence [citation], the proponent's burden of producing evidence to show authenticity [citation] is met 'when sufficient evidence has been produced to sustain a finding that the document is what it purports to be. [Citation.]' [Citation.] The author's testimony is not required to authenticate a document [citation]; instead, its authenticity may be established by the contents of the writing [citation] or by other means . . . . 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility. [Citations.]' [Citation.] '"[L]ike any other material fact, the authenticity of a [document] may be established by circumstantial evidence. . . ."'" (People v. Valdez (2011) 201 Cal.App.4th 1429, 1435.) Further, a photograph may be authenticated "'by the testimony of anyone who knows that the picture correctly [*24]  depicts what it purports to represent.'" (People v. Chism (2014) 58 Cal.4th 1266, 1303.)

Yates testified that she accepted a "friend request" from Wooten on Facebook, which allowed her to see things that he posted. She also stated that Wooten "tagged" her on the threatening posts at issue in this case, meaning that he wanted her to see the posts. Yates took screen shots to preserve the Facebook posts. Those posts referenced the incident the prior night when Wooten retrieved his phone from Yates and her subsequent contact with the police. Yates testified that the exhibit the prosecutor showed her at trial was a fair and accurate depiction of the screen shots that she took.

Similarly, Yates testified that she saw the picture of Wooten holding a gun on her Facebook "news feed." She explained that a "news feed" is where you can see posts, pictures and other items from your Facebook "friends." She testified that the photograph of Wooten holding a gun presented at trial was a fair and accurate depiction of what she received in her "news feed."

The contents of the threatening Facebook posts and photograph, the circumstances under which Yates received them, and Yates's testimony about how she preserved them was sufficient to establish [*25]  the documents were what they purported to be. As such, the prosecution met its authentication burden by making a showing on which "the trier of fact reasonably could conclude the proferred writing[s] [were] authentic." (People v. Valdez, supra, 201 Cal.App.4th at p. 1437.) Wooten was, of course, free to argue other inferences, including that he did not author the posts or that they were altered or falsified. Those arguments, however, go to the weight of the evidence rather than its admissibility.

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