Commercial Litigation and Arbitration

Facebook Page Authenticated by Contents — Including Alleged Owner’s Nickname, Photo, References to Gang and Crime — and Witness Testimony from Facebook Friend

State v. Inkton, 2016 Ohio App. LEXIS 613 (Ohio Ct. App. Feb. 25, 2016):

[*P1]  Defendant-appellant Ronald Inkton ("appellant") brings this appeal challenging his convictions for rape, aggravated robbery, kidnapping, and having weapons while under disability. Specifically, appellant argues that: (1) the evidence was insufficient to support his convictions, (2) his convictions are against the manifest weight of the evidence, and (3) the trial court improperly admitted unauthenticated hearsay evidence. After a thorough review of the record and law, this court affirms.


C. Facebook Evidence

 [*P70]  In his third assignment of error, appellant argues that the trial court erred by admitting a Facebook post that was (1) not properly authenticated and (2) inadmissible hearsay.

 [*P71]  First, appellant argues that there was "no authentication whatsoever" of the Facebook posts admitted by the trial court. We disagree.

 [*P72]  The trial court admitted appellant's Facebook page into evidence over his objection that the Facebook page was not properly authenticated. The trial court overruled appellant's objection, stating:

   There has been testimony sufficient to support, if believed, that it is what it purports to be. As a result, that objection is overruled. [The [**31]  Facebook page] is admitted over objection.

The decision to admit or exclude evidence rests within the trial court's sound discretion. State v. McGuire, 80 Ohio St.3d 390, 400-401, 686 N.E.2d 1112 (1997). Thus, a reviewing court will not reverse the trial court's decision absent an abuse of discretion.

 [*P73]  Evid.R. 901 provides a liberal standard for the authentication of evidence. State v. Pruitt, 8th Dist. Cuyahoga No. 98080, 2012-Ohio-5418, P 11, citing State v. Teague, 8th Dist. Cuyahoga No. 90801, 2009-Ohio-129. Under Evid.R. 901(A), the requirement of authentication for evidence to be admissible "is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." This court has stated:

   "Circumstantial evidence, as well as direct, may be used to show authenticity. State v. Williams, supra, 64 Ohio App.2d 271, 274, 413 N.E.2d 1212 (8th Dist. 1979). Moreover, the threshold standard for authenticating evidence pursuant to Evid.R. 901(A) is low, and 'does not require conclusive proof of authenticity, but only sufficient foundational evidence for the trier of fact to conclude that * * * [the evidence] is what its proponent claims it to be.' State v. Easter, 75 Ohio App.3d 22, 25, 598 N.E.2d 845 (4th Dist. 1991)." State v. Trice, 8th Dist. Cuyahoga No. 89933, 2008-Ohio-2930, P 22.

Pruitt at P 11, quoting Teague at P 7.

 [*P74]  In the instant case, Detective Vowell and codefendant Martin authenticated the Facebook post by direct testimony.

 [*P75]  Detective Vowell testified that after learning the third suspect's name from Hooks, he searched for additional information on the suspect using Facebook. Detective Vowell discovered and reviewed [**32]  appellant's Facebook page.

 [*P76]  Detective Vowell testified that he is familiar with Facebook. Furthermore, Detective Vowell testified in detail about: (1) the difference between Facebook accounts that are open to the public and private accounts, (2) using privacy settings to restrict the information that is available to the public, (3) the process of "tagging" Facebook users in a post or picture, and (4) the process of executing a search warrant for a Facebook page. Detective Vowell testified that he generated a report based on his findings on Facebook.

 [*P77]  Detective Vowell testified that he located the Facebook accounts of appellant and his codefendants. Detective Vowell testified that both Hooks and Martin had portions of their Facebook profiles that could be viewed by the public. Detective Vowell testified that Hooks's profile name is "Kinsman Avenue Savage Dugga" and codefendant Martin's profile name is "Dante Devane Martin." Furthermore, Detective Vowell testified that he observed a reference to the "Gunna" gang on Martin's Facebook profile.

 [*P78]  Detective Vowell testified that appellant's entire Facebook profile was open to the public. Detective Vowell testified that appellant's Facebook profile [**33]  name was "RJ Kinsman Savage Inkton." Detective Vowell testified that appellant used a picture of himself for his account's profile picture. Detective Vowell testified that Hooks and Martin were "Facebook friends" with appellant. Detective Vowell testified that there were "numerous" pictures on appellant's Facebook page and that he was able to determine that appellant was in fact that person in the pictures.

 [*P79]  Detective Vowell testified that he found the following post on appellant's Facebook page:

   Man, damn, man. Why didn't y'all run when told y'all to run. Now I won't see y'all niggas for a minute. Man, y'all niggas was squad. I'm going to miss y'all niggas. I love y'all niggas. Man no homo. Free Dante. Free Dugga. Some Kinsman savages.

 [*P80]  Detective Vowell testified that appellant's profile picture and profile name appeared at the top of the post. Detective Vowell testified that the post was dated June 30, 2014 -- the same day that the robbery and rape took place. However, Detective Vowell testified that there is no indication of what time the post was posted and that he did not verify the date of the posting with Facebook technicians. Detective Vowell testified that the first comment responding [**34]  to the post was posted on June 30, 2014 at 6:47 a.m. Detective Vowell testified that he is familiar with Facebook, and that a Facebook user cannot respond to a post before it has been posted. Detective Vowell testified that he has accessed appellant's Facebook page since the time he first saw it and confirmed that the post is still on the page with the June 30, 2014 date. Detective Vowell testified that based on his knowledge and investigation of the Facebook post, nothing about the post is inaccurate.

[*P81]  Detective Vowell testified that he obtained search warrants for parts of the Facebook pages that are not accessible to the public. Detective Vowell testified that he obtained the official Facebook records for the accounts belonging to appellant, Hooks, and Martin.

 [*P82]  Martin testified that Hooks goes by "Kinsman Finest Dugga" on Facebook. Martin testified that he was Facebook friends with appellant in June 2014. Martin testified that appellant goes by the name "RJ" and that appellant's Facebook name was "RJ Kinsman's Savage Inkton." Martin testified that appellant was in the profile picture corresponding with the posting at issue. Martin testified that appellant ran when the police showed [**35]  up in the woods behind K-Mart, and that neither he nor Hooks ran from the police.

 [*P83]  Although codefendant Hooks testified that he did not know whether appellant had a Facebook page, Hooks -- like Martin -- testified that appellant goes by the name "RJ."

 [*P84]  We find that the direct testimony of Detective Vowell and codefendant Martin satisfied the requirement of authentication for the Facebook post under Evid.R. 901(A).

 [*P85]  Furthermore, appellant, relying on State v. Gibson, 6th Dist. Lucas Nos. L-13-1222 and L-13-1223, 2015-Ohio-1679, insinuates that a fictitious individual created the Facebook account and posted the message at issue. There is no support for this argument in the record, and appellant's reliance on Gibson is misplaced.

 [*P86]  In Gibson, the Sixth District addressed authentication concerns regarding content obtained from Facebook:

   Facebook users often "post content -- which can include text, pictures, or videos -- to that user's profile page" delivering it to the user's 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 [**36]  "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.").

Id. at P 35.

 [*P87]  In the instant matter, there is neither evidence that a fictitious individual created the account under appellant's name nor that the information on appellant's page was fabricated or tampered with. Assuming, arguendo, that an unrelated individual created the account under appellant's name, appellant has made no effort to report the incident to the Facebook Help Center. Furthermore, assuming, arguendo, that the posting was the product of fabrication or tampering, appellant has neither made an effort to remove [**37]  the posting from his Facebook page nor modified his privacy settings to limit the public's access to the posting.

 [*P88]  Second, appellant argues that the Facebook post is inadmissible hearsay. We disagree.

 [*P89]  Evid.R. 801(   ) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Furthermore, Evid. R. 801(D)(2), admission by a party-opponent, provides that a statement is not hearsay if "the statement is offered against a party and is (a) the party's own statement, in either an individual or a representative capacity[.]"

 [*P90]  In the instant matter, the Facebook post in question is admissible as a statement by a party-opponent. The evidence supports that appellant posted the message on his Facebook page sometime before 6:47 a.m. on June 30, 2014. Furthermore, the evidence supports that the account on which the message was posted belongs to appellant. Thus, we find that the Facebook post was not inadmissable hearsay.

 [*P91]  After reviewing the record, we find that the trial court did not abuse its discretion in admitting the Facebook post into evidence. The testimony of Detective Vowell and codefendant Martin satisfied [**38]  the requirement of authentication for the Facebook posting. Accordingly, appellant's third assignment of error is overruled.

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