Facebook Messages Authenticated by Fact They Were Sent to/from Defendant’s Account, His Instructions to Witness to Delete Some of Them and His Acting in Accordance with Plans Exchanged in Them

People v. Holwerda, 2015 Mich. App. LEXIS 2310 (Mich. Ct. App. Dec. 10, 2015):

Following a jury trial, defendant was convicted of three counts of third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (sexual penetration with a victim between 13 and 16 years of age). The trial court sentenced defendant as an habitual offender, fourth-offense, MCL 769.12, to concurrent terms of 26 to 52 years' imprisonment. Defendant now appeals as of right. Because defendant was not denied the effective assistance of counsel, the prosecutor did not commit prosecutorial error, and defendant's sentence as an habitual offender under MCL 769.12(1)(a) was not unconstitutional, we affirm.

Defendant's convictions arose from events that transpired on June 27, 2013, between defendant and the two underage victims, MR and MS, who were 13 and 14 years old, respectively. ***

Defendant first asserts that his trial counsel was ineffective for failing to challenge the admissibility of MS's Facebook records on the grounds that the messages could not be authenticated as having actually been sent by defendant.3 MRE 901 governs the authentication [*5]  of records and provides that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." MRE 901(b) sets forth, "[b]y way of illustration only," various means by which evidence may be authenticated, including through the elicitation of testimony from a "witness with knowledge . . . that a matter is what it is claimed to be," MRE 901(b)(1), or through evidence of "distinctive characteristics," meaning "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances," MRE 901(b)(4). Under MRE 901, "[p]roof that the proffered writing is authentic may be made by direct or circumstantial evidence." Champion v Champion, 368 Mich 84, 88; 117 NW2d 107 (1962). Indeed, "a trial court may consider any evidence regardless of that evidence's admissibility at trial, as long as the evidence is not privileged, in determining whether the evidence proffered for admission at trial is admissible." People v McDade, 301 Mich App 343, 353; 836 NW2d 266 (2013) (quotation omitted). Ultimately, to be admissible, the "proposed evidence need not tell the whole story of the case, nor need it be free of weakness or doubt;" rather, it "need only meet the minimum requirements for [*6]  admissibility." Id. (quotations omitted).

3   Aside from MS's records involving conversations with defendant, Facebook messages to and from several individuals were discussed at trial. Defendant does not specifically identify what Facebook records his trial counsel should have objected to, but since defendant's own records showed no conversations, and since the only portions of MR's records discussed at trial pertained to conversations she had with people other than defendant, we assume that defendant's argument focuses on the messages between him and MS, obtained from MS's account.

In this case, based on the totality of the record evidence, it is apparent that there is more than sufficient evidence to support the prosecution's claim that the messages in question were Facebook messages from defendant to MS, and consequently counsel was not ineffective for failing to object on this basis. First, the records obtained by Detective Rittenger from Facebook, and admitted into evidence, displayed defendant's name as a "recipient" and "author" in the conversation, demonstrating that the messages were sent to and from defendant's Facebook account, and MS reviewed the records at trial, explaining [*7]  the content of her conversation with the individual identified as defendant. Second, circumstantial evidence demonstrated that defendant was in fact the person chatting with MS. For example, as pertaining to the June 27, 2013 conversation, the entirety of which was deleted, MS testified that she was instructed to delete the messages by defendant. Defendant's knowledge of the conversation and his instructions to delete the conversation, support the conclusion that the messages were sent and received by defendant. As pertaining to the July 10, 2013 conversation, the person identified as defendant in that conversation knew intimate details about the June 27, 2013 sexual encounter with MS and MR, such as the fact that defendant had used a condom. These details would only be known by defendant, MS, and MR, which again supports the conclusion that defendant sent and received the messages in question. Cf. People v Ford, 262 Mich App 443, 461; 687 NW2d 119 (2004). Finally, on both occasions in which the person identified as defendant chatted with the victims about making plans to meet, the conversation was immediately followed by the victims meeting with defendant. Because there was clearly sufficient evidence to authenticate the Facebook records, [*8]  any objection to the records on this ground would have been futile. Defense counsel is not ineffective for failing to advance a meritless position. See People v Fonville, 291 Mich App 363, 384; 804 NW2d 878 (2011).

Defendant also asserts that his trial counsel was ineffective for failing to object to Detective Rittenger's testimony "interpreting" the Facebook records because there was no foundation regarding Detective Rittenger's familiarity with Facebook records. Specifically, Detective Rittenger testified that he obtained defendant's records from Facebook's legal department in response to a search warrant. However, the records he received showed no history on defendant's account before July 15, 2013. In comparison, records from MS's Facebook account showed that defendant had Facebook conversations with her on June 27, 2013, and July 10, 2013. Thus, since absolutely no trace of those conversations was found in defendant's account history, Detective Rittenger opined that defendant must have deleted his account.

Defendant now claims that his counsel should have challenged Detective Rittenger's familiarity with Facebook records and the basis for Detective Rittenger's testimony. But, defendant's claim must fail because there is nothing in the record [*9]  to suggest that Detective Rittenger lacked the basic knowledge necessary to "interpret" the meaning of the records in question and to reach the logical conclusion that defendant's account had been deleted.4 Indeed, there is also no indication that Detective Rittenger was mistaken in his understanding of the records. Thus, defendant has not overcome the presumption that counsel's decision not to object was a matter of trial strategy, and he has not shown a reasonable probability that any objection to this testimony would have resulted in a different outcome, particularly when MS also testified at trial that defendant "deleted his Facebook." On this record, defendant has not shown that he was denied the effective assistance of counsel on this basis.

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