Commercial Litigation and Arbitration

Facebook Evidence — New Hampshire Supreme Court Upholds Circumstantial Authentication Based on Defendant’s Access to iPad Used to Send Messages and the Messages’ Contents and Timing

State v. Palermo, 2015 N.H. LEXIS 130 (N.H. S.Ct. Dec. 18, 2015):

Following a jury trial in Superior Court (Nicolosi, J.), the defendant, Christopher M. Palermo, was convicted on one count of aggravated felonious sexual assault, see RSA 632-A:2, I(i) (2007), one count of criminal trespass, see RSA 635:2 (Supp. 2014), and two counts of simple assault, see RSA 631:2-a (2007). On appeal, he argues that the trial court erred by: (1) ruling that the State sufficiently authenticated certain Facebook messages; (2) admitting evidence of his prior incarceration, parole status, and civil lawsuit against the New Hampshire State Prison; and (3) allowing the State to introduce a photograph of him. We affirm.

I. Background

The jury could have found the following facts. In 2011, the defendant and the victim's brother were inmates in the New Hampshire State Prison. Through her brother, the victim learned that the defendant needed assistance with [*2]  a civil lawsuit he had filed against the New Hampshire Department of Corrections and the State of New Hampshire. The victim agreed to provide such assistance. Between October 2011 and January 2012, while the defendant was incarcerated, he and the victim spoke on the telephone about the lawsuit and "got to know each other."

On January 27, 2012, the defendant was released from prison and went to live with the victim and her family. That same day, the victim's son, D.L., age 16, created a Facebook account for the defendant and showed him how to send messages on the family's iPad from the Facebook application. D.L. also took a photograph of the defendant and "posted" it on the defendant's account. The defendant was allowed to use the iPad whenever one of the victim's other sons was at school or "in bed."

On the evening of February 3, 2012, while the victim's husband was at work, the victim, D.L., and the defendant were playing cards. The victim had a headache, and to help relieve it, the defendant began rubbing the victim's neck. The defendant's "hands got a little 'roamy'" and the victim told him to "[w]atch" them. The defendant then moved both of his hands down the front of the victim's tank [*3]  top, and put them on her breasts. She pushed him away and when she pulled up her tank top the defendant's hands went down the back of her pants onto her buttocks. The victim stood up, pushed him away, and "told him to cut it out." She and D.L. then went into her bedroom and locked the door.

Shortly thereafter, the defendant "popped the lock" on the victim's bedroom door and asked if he could watch television with them. The victim agreed. The victim asked the defendant to pass her a box of candy. The defendant took a candy from the box, ran it up the victim's arm and down her chest, and then "shoved it, along with his fingers, in [her] mouth." The victim bit the defendant's fingers. He got upset and "demanded the iPad." The victim gave it to him and told him to leave the room. The defendant left and she locked the bedroom door again.

A short while later, the defendant went back to the victim's bedroom, again "popped the lock" on the door, and asked for the telephone. The victim gave it to him and told him to "[g]et out." The defendant "popped the lock" on the bedroom door two more times, looking for the keys to the victim's Ford Explorer, but the victim refused to give them to him.

Soon thereafter, [*4]  the defendant left the house "with some type of tool in his hand," entered the Ford Explorer and, for a period of time, was "underneath the driver's seat with the door open." The defendant came back into the house shortly after 12:00 a.m. on February 4. At some point the victim fell asleep.

Between 1:45 and 2:00 a.m., the victim began to awaken when she "felt rubbing" on her back and buttocks, and then felt hands go inside her sweatpants. She felt the hands go from her "backside to [her] front side and down to [her] crotch area," and inside her vagina. When the victim rolled over, she realized that it was the defendant who was touching her.

The victim's husband, who had returned from work, was in the bathroom when he heard a noise that "sounded like the door opening, almost like a pop or a cracking type noise." He went to the bathroom doorway and saw the defendant sitting on the bed next to the victim. From his vantage point, it appeared that the defendant "had his hands underneath the covers touching [the victim's] buttocks, groin; just about anything he could get his hands on." The victim's husband asked, "[W]hat are you doing in my room?" After a short pause the defendant left the room. [*5]

At about 8:00 a.m., the defendant told the victim that he was leaving. As the victim gave him a bag to use, he stated, "Last night was terrible and I was hoping that you would give me a pass, I'm really sorry." The victim's husband heard the defendant ask the victim for "a pass because he . . . felt that what he did the night before was out of line." Shortly thereafter, the defendant left the house.

Later that morning, D.L. opened the Facebook application on the family's iPad and the defendant's Facebook account appeared, indicating he had not signed out. The screen showed a message that had been sent by the defendant that day, stating: "Hey, how do you crack a Ford Explorer. I'm going to kill someone in a minute." D.L. showed the message to the victim. The victim then discovered other Facebook messages sent by the defendant that day. She testified that the messages stated: "I almost did the landlord's wife. Her husband walked in"; "she's trying to play hard to get, Bro, I'm gonna get mines"; "He came home from work and walked right in"; "Kids want iPad . . . don't got much time left. . . . Give her my number . . . tell to call"; and "I'm headed to Gloucester today, I'll be back later, [*6]  love you, Bro."

The jury found the defendant guilty of aggravated felonious sexual assault, criminal trespass, and two counts of simple assault. This appeal followed.

II. Facebook Messages

Before trial, the defendant sought to exclude all evidence of the Facebook messages unless the State could properly authenticate them. The State objected, and proffered evidence in support of authentication. Following an in-chambers hearing, the court ruled that, pursuant to New Hampshire Rule of Evidence 901, the State's proffered evidence was sufficient to authenticate the Facebook messages as having been authored by the defendant.

"The decision to admit or exclude evidence is within the discretion of the trial court." State v. Roy, 167 N.H. 276, 284 (2015) (quotation omitted). "In determining whether a ruling is a proper exercise of judicial discretion, we consider whether the record establishes an objective basis sufficient to sustain the discretionary decision made." Id. (quotation omitted). "To show an unsustainable exercise of discretion, the defendant must demonstrate that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case." Id. (quotation omitted).

The defendant argues that the court's ruling on authentication was erroneous [*7]  because: (1) "someone else could have sent the messages from [his] open Facebook account"; (2) he "presented evidence that the [victim's] family had the opportunity to alter the Facebook messages"; and (3) he "presented evidence that the messages submitted by the [victim's] family were altered."

We have not previously addressed the foundational requirements for the authentication of Facebook messages. After a review of the record, we conclude that our established rules governing authentication are sufficient to address the issues in this case. Cf. Cotton v. State, 773 S.E.2d 242, 245 (Ga. 2015) ("We have held that documents from electronic sources such as the printouts from a website like Facebook are subject to the same rules of authentication as other more traditional documentary evidence and may be authenticated through circumstantial evidence." (quotation and brackets omitted)); Campbell v. State, 382 S.W.3d 545, 549 (Tex. Ct. App. 2012) ("With respect to electronic communications -- such as e-mails, text messages, and as in this case, Facebook -- the rules of evidence, including rule 901, are considered at least generally adequate to the task." (quotation omitted)).

Rule 901(a) provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence [*8]  sufficient to support a finding that the matter in question is what its proponent claims." N.H. R. Ev. 901(a). "The bar for authentication of evidence is not particularly high." State v. Stangle, 166 N.H. 407, 409 (2014) (quotation omitted). "The proof necessary to connect an evidentiary exhibit to a defendant may be made by circumstantial evidence." Id. (quotation omitted). "The proponent need not rule out all possibilities inconsistent with authenticity, or prove beyond any doubt that the evidence is what it purports to be." Id. (quotation and ellipsis omitted). The State need only demonstrate a rational basis from which to conclude that the exhibit did, in fact, belong to the defendant. State v. Ruggiero, 163 N.H. 129, 136 (2011). "[T]he contested evidence, if otherwise relevant, should be admitted once a prima facie case has been made on the issue of authentication." Stangle, 166 N.H. at 409 (quotation omitted). "Once the evidence is admitted, the rest is up to the jury." Id. at 410 (quotation omitted).

Although Rule 901(a) requires the proponent to present evidence of authenticity, the rule does not establish formal requirements as to the nature or quantum of proof. Id. Rather, Rule 901(b) provides a non-exhaustive list of examples of methods of authentication or identification that conform to the requirements of Rule 901(a), including:

   (1) Testimony [*9]  of witness with knowledge. -- Testimony that a matter is what it is claimed to be.

. . . .

(4) Distinctive characteristics and the like. -- Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

N.H. R. Ev. 901(b)(1), (4).

Here, the defendant first argues that the court erred by ruling that the State sufficiently authenticated the Facebook messages as having been authored by him because "someone else could have sent the messages from [his] open Facebook account." He contends that the State's proffered authentication evidence was insufficient because: (1) the messages lacked distinctive characteristics; (2) the recipient of the messages did not testify; and (3) it would have been easy for someone to make it appear as though he authored the February 4 messages because he had not signed out of his Facebook account. We disagree.

In support of authentication, the State proffered that D.L. would testify that: (1) he took the defendant's photograph after the defendant moved in with his family; (2) he created a Facebook account for the defendant using the defendant's photograph; and (3) he showed the defendant how to use the family's iPad and the [*10]  Facebook website. In addition, the State proffered that it would present evidence that the defendant used the iPad around the time the messages were sent, that the messages were sent from the iPad, and that the defendant's release from prison and subsequent arrival at the victim's home coincided with the creation of the Facebook account. The State also asserted that it would present evidence that the messages contained information only a few individuals would know and that the information pertained specifically to the defendant's conduct.

Moreover, the State presented the court with a printout of the Facebook message stream, which started on February 1, days after the defendant's arrival at the victim's home, and ended on February 4, the day of the alleged assault. As the court found, the messages referred to the author's recent incarceration and parole status, which the State proffered were consistent with the defendant's circumstances. Likewise, the February 4 messages referenced the author's conduct consistent with the State's proffer regarding the anticipated testimony of the victim, the victim's husband, and D.L. as to the defendant's conduct earlier that morning and on the evening [*11]  of February 3. Additionally, the message stating, "Kid wants iPad don't got much time left" was consistent with the State's proffer that the victim would testify that one of her other sons had the primary right to use the iPad. Thus, despite the defendant's assertion otherwise, the State's proffered authentication evidence contained sufficient identifying details to link the authorship of the messages to the defendant.

We also are not persuaded by the defendant's suggestion that the State had to present testimony from the recipient of the Facebook messages to sufficiently authenticate them. He points to our statement in Ruggiero that "because of the potential for unauthorized transmission of e-mail messages, authentication requires testimony from a person with personal knowledge of the transmission or receipt to ensure its trustworthiness." Ruggiero, 163 N.H. at 136 (quotation and brackets omitted). In Ruggiero, the State sought to authenticate certain e-mails attributed to the defendant through the testimony of the e-mail recipients. Id. at 136-37. We examined what proof is necessary to authenticate e-mails and whether, in the context of that case, the recipients' testimony sufficiently authenticated the e-mails. Id. at 135-37. Accordingly, [*12]  our statement was made in the context of the issue before us in that case. To the extent that our language in Ruggiero could have conveyed that recipient testimony is required to authenticate all e-mails and other electronic communication under all circumstances, we now clarify that this is not the case.

Finally, contrary to the defendant's contention, the ease with which someone could have made it appear as though the defendant authored the February 4 messages because he failed to sign out of his Facebook account did not preclude authentication based upon the State's proffered authentication evidence. The State was not required to "rule out all possibilities inconsistent with authenticity, or prove beyond any doubt" that the Facebook messages were authored by the defendant. Stangle, 166 N.H. at 409. Rather, the State needed only to provide evidence sufficient to support a finding that the messages were authored by him. See N.H. R. Ev. 901(a).

The defendant also argues that the court erred because he presented evidence that the victim's family had the opportunity to, and did, in fact, alter the messages. Prior to trial, the defendant presented the court with documents from a "Facebook experiment" conducted by defense counsel. [*13]  The documents included: (1) a printout of a mock Facebook message exchange printed directly from Facebook; (2) a printout of the mock Facebook message exchange that had been copied and pasted into a Word document; and (3) a printout of the mock Facebook message exchange that had been copied and pasted into a Word document and then altered. He contends that because the Word documents he presented to the court shared similar characteristics with the Facebook documents the victim and her family provided to the State, he demonstrated that the victim and her family did not print the messages directly from a Facebook page as they claimed and, thus, could have, and did, alter the messages. Under these circumstances, he asserts that the State's proffered evidence was insufficient to authenticate the messages.

Although the court did not make a finding concerning the "Facebook experiment," we "must assume that the trial court made subsidiary findings necessary to support its general ruling," In the Matter of Aube & Aube, 158 N.H. 459, 466 (2009) (quotation omitted). Thus, we assume the court found that the defendant's evidence did not require the State to present further evidence to satisfy the foundational requirements for authentication. Based [*14]  upon the State's proffered authentication evidence, as described above, we conclude that such a finding was a sustainable exercise of discretion.

Accordingly, we hold that the trial court sustainably exercised its discretion when it found the Facebook messages were sufficiently authenticated.

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