Facebook & Viber Messages Authenticated by One Party to Conversation — Kentucky Follows Circumstantial Approach to Authenticity of Social Media — Not “Magical,” Like Photos (Good Quote)

Kays v. Commonwealth, 2016 Ky. App. LEXIS 177 (Ky. Ct. App. Oct. 14, 2016): 

Casey Kays stands convicted of one count of rape1 and one count of sodomy,2 both in the third degree. Conviction followed an October 2014 trial where jurors chose the maximum sentence of five years on each charge, terms to be served consecutively for a total of ten years. The Jefferson Circuit Court sentenced Kays in conformity with the jury's decision.

1   Kentucky Revised Statutes (KRS) 510.060(1)(b), a Class D felony.

2   KRS 510.090(1)(b), a Class D felony.

Charges stemmed from Kays having sex with A.J.,3 a teenage girl who had been his student and a player on the high school volleyball team he coached. Kays now challenges the final judgment alleging a juror was erroneously struck for cause; text and Facebook messages should have been excluded due to lack of authentication; his ex-wife should have been barred from testifying about confidential [*2]  marital conversations; and, jurors should have received more sentencing information. Having reviewed the record, the briefs and the law, we affirm.

3   To protect the child's identity, she will be referred to by initials only and her mother will be referred to as "mother."

FACTS

A.J. was a bright student. Teachers recognized her leadership qualities by voting her "Student of the Month." In 2013, Kays was her civics teacher at The Academy at Shawnee High School in Jefferson County, Kentucky. According to A.J., Kays was one of the cooler teachers. A.J. wanted to play volleyball her sophomore year--a decision her mother supported--and joined the team because Kays was the coach. Kays communicated with the players via a Facebook page named "Shawneevball."

Initially, A.J. and Kays had a "normal" student-teacher relationship. That changed at the end of A.J.'s freshman year. On the last day of school, A.J.--then fifteen--sent Kays--then thirty-eight--a Facebook message saying she had feelings for him. Kays gave A.J. his phone number. Soon they were texting twenty to fifty times a day and a "serious" relationship blossomed in a few weeks.

The pair talked on the phone hours at a time--often well into the night. [*3]  They texted and engaged in live video chats on Facetime, all of which included explicit talk of sexual acts and a plan to get together to have sex. A.J. sent Kays nude photos of herself; Kays sent A.J. an image of his penis. On at least one occasion there was talk of Kays buying A.J. a ring. Kays also talked to A.J. about his wife and spoke often of hiding their relationship from his wife, an assistant principal at a local middle school. Kays' pet name for A.J. was "Babygirl." When the relationship with Kays began, A.J. was dating Jacob, a boy she had been seeing off and on for two years; Kays was jealous of Jacob.

Kays testified he may have been in the throes of depression or a mid-life crisis when his relationship with A.J. began. Texting with A.J. was "fun and exciting"--something he looked forward to daily. At trial, he acknowledged sending A.J. highly personal messages and admitted doing so was probably wrong and crossed boundaries. He denied they exchanged nude photos or that he ever had sexual contact with her. The most he admitted was kissing A.J. three times while in his car--something he knew was inappropriate. At some point A.J. gave Kays two hickeys, prompting an online thread [*4]  between the two about Kays buying cosmetics to hide the marks on his neck.

A.J.'s mother--describing herself as "overprotective"--suspected Kays was involved with her daughter after several disturbing signs during the first week of volleyball practice in mid-July 2013. Mother was to drive A.J. to and from daily practice--the gym was only a few blocks from their home. One day, A.J. did not come home on her own and did not answer her phone. Worried, mother messaged the Shawneevball Facebook page--controlled by Kays--expressing concern for her daughter's whereabouts. She received no response from the Facebook page, but within five minutes A.J. called saying Kays had driven her and other players to the Louisville waterfront. Mother thought this "crossed the line" because Kays had not received parental permission for the trip. Kays drove A.J. home a couple of other times even though mother had forbidden him from doing so. After 10:00 p.m. one night, Kays scheduled volleyball practice for early the next morning, saying he knew the girls had nothing better to do; mother thought this odd--how would he know the girls' plans?

Knowing Kays was not to drive her home from practice, and knowing mother was [*5]  awaiting a phone call to pick her up, A.J. came home another afternoon waving bus passes and saying she had ridden the TARC bus. Mother knew this to be a lie because their home is mere blocks from the school and her daughter would never ride a city bus. Mother suspected A.J. was hiding a relationship with Kays, but had no proof.

Later that afternoon, A.J. was not in her room, the house, or the surrounding block. When mother returned home from running an errand, she asked A.J. where she had been. A.J. said she had been in her room--sleeping--the whole time. When mother told her that was untrue, A.J. said she had walked to the store to buy candy, but mother knew she had no money, and, knew she would not walk to the store alone. At that point, A.J. claimed she had resumed seeing a boy she had not mentioned in almost a year--the boy had supposedly gotten his driver's license and driven a good distance to visit A.J. for fifteen to twenty minutes. Mother knew this story was false and called her daughter's bluff, bluntly asking if she was having a relationship with Kays.

A.J. initially denied any relationship with Kays, but then broke into tears and admitted she and Kays were romantically involved [*6]  and had been intimate, but gave no specifics. Mother called police on July 19, 2013.

The next morning, mother demanded specifics. A.J. said she and Kays had unprotected intercourse in his car one time and on another occasion Kays performed oral sex on her, again in his car, just around the corner from her home. Mother called police again on July 20, 2013.

Not knowing whether there was proof of a relationship, but strongly hoping there was, mother logged on to Facebook posing as A.J. and sent Kays a message. He responded, producing a thread of messages between mother as "A.J." and Kays in which he directed "A.J." to delete all messages and "[d]eny everything," suggested alibis "A.J." should give mother, inquired about the status of "A.J.'s" cell phone and punishment, and professed his love and desire for "A.J." During this thread, which was introduced at trial, Kays asked "A.J." whether he should reply to mother's Facebook message of a few days before about A.J. not returning home from volleyball practice. The pair decided a reply to mother was best, so Kays sent a message to mother apologizing for his late response. Mother replied, thanking Kays for providing his phone number and directed [*7]  him not to drive A.J. anywhere without her permission.

On July 20, 2013, Patrolman Jorge Soto-Perez responded to mother's calls about the sexual assault on A.J. He spoke first with mother who provided general details A.J. had revealed to her. Soto-Perez then spoke privately with A.J. Initially, A.J. was not forthcoming with information, but finally opened up to him--a father himself who told her about sexual predators--saying Kays loved her, was her boyfriend, and had sex with her in his vehicle. At that point, Soto-Perez called the Crimes Against Children Unit (CACU) and Det. Rico Williams took over the case. CACU investigates sexual and physical abuse, and exploitation of children under sixteen years of age.

As part of his investigation, Det. Williams sent a request to Facebook on or about July 22-23, 2013, asking that texts be preserved for ninety days. No extension was submitted and the request expired. Det. Williams saw no reason to follow up with Facebook because he received the desired information from Det. Mike Mulhall, a district investigator with Jefferson County Public Schools (JCPS), and Kays had already provided his e-mail contact list. Det. Williams did not review A.J.'s [*8]  phone records, nor records from any wireless carrier.

On July 20, 2013, mother took A.J. to the hospital where A.J. told a nurse she had been sexually active with a school coach. A.J. was examined, but no rape kit was collected because the last sexual encounter had occurred more than 48 to 72 hours earlier.

On July 22, 2013, Det. Mulhall received a report about Kays and a student and had Kays' school e-mail account locked. Because teachers are allowed access to highly personal information about students, and may have student records in their e-mail system, the policy for accessing JCPS e-mail is highly restricted. Det. Mulhall testified, "it's basically [the teacher] and no one else. You're not allowed to let your neighbor use your e-mail, your wife use your e-mail, because there's constant e-mailings from the school about students."

During a subsequent interview on August 19, 2013, Kays told Det. Mulhall he had never shared his school e-mail password with anyone, no one had ever accessed his school e-mail account, and the Shawneevball Facebook account--created three years earlier--was not linked to his JCPS e-mail. In naming seven members of the school volleyball team, Kays did not mention [*9]  A.J. When asked about A.J., Kays admitted she was bright, was on the team and he had simply forgotten her. In discussing the Shawneevball Facebook page, Kays said he gives the account password to all players so they can share information and pictures. In addition to the seven current players, he named five former students with access to the account. He firmly denied engaging in any chats with A.J.

When told he was accused of having inappropriate contact with a student, and after being shown the Facebook chats in which mother posed as "A.J.," he denied any contact with A.J., denied calling anyone "Babygirl," denied entering "Babygirl" in his list of JCPS e-mail contacts,4 and denied ever being alone with A.J. After the interview, Kays signed a typed summary of the interview denying inappropriate contact with A.J. and maintaining any objectionable text messages were the work of "someone else logging into the account."

4   Identifying information for this contact included A.J.'s first and last names, cell phone number and e-mail address.

Det. Mulhall interviewed other students, one of them being Chelsea Woolfolk, a former volleyball player with whom Kays had communicated via Facebook. Woolfolk [*10]  trusted Kays and continued communicating with him via the Shawneevball Facebook page after graduating. On August 3, 2013, Kays messaged Woolfolk,

   I was going through a lot of stuff and over the summer was having an inappropriate relationship with a former student. Now I'm going to lose my job, wife, access to kids, house, money, and could face some serious charges.

Testifying on behalf of the Commonwealth, Woolfolk identified the Facebook thread as being between her and Kays. She was confident the message came from Kays because elsewhere in the thread he had commented on a graduation occurrence only he could know.

Mother took A.J.'s phone, gave it to police with permission to search the contents, and forbade A.J. from contacting Kays. The phone was locked and A.J. would not reveal the passcode. When A.J. ultimately revealed the code, it was "Kays."

Unbeknownst to mother, A.J. continued communicating with Kays via her home landline, and her younger brother's cell phone onto which a Viber5 application (app) had been downloaded, allowing A.J. and Kays to surreptitiously message each other. Upon learning of this, mother confiscated her son's cell phone and gave it to authorities. Det. Mulhall [*11]  received the phone which showed only two numbers accessing Viber, one of them being assigned to Kays. Det. Mulhall took screenshots of the messages which were introduced at trial.

5   Viber is a mobile app allowing users to make phone calls and send text messages to other Viber users without charge. A user's phone number becomes his "identity."

On September 18, 2013, Det. Mulhall interviewed Kays' now-ex-wife. Though married when the relationship with A.J. began and was revealed, they separated in July 2013, and their divorce became final the last week of November 2013. She testified she came home July 23, 2013, to find Kays sitting on the bed talking on the phone to the school's Athletic Director. Kays had just learned a student had made an allegation against him and in a shaky voice admitted sending romantic texts and a picture of his face to a player. While he denied sending any sexual or emotional content, he told her he felt he had cheated on her.

Kays' ex-wife's gut told her there was more to the story. She recalled seeing marks on her husband's neck earlier in the summer, which Kays now admitted were hickeys. Kays spoke of A.J.'s mother posing as "A.J." online, and claimed "A.J." "came [*12]  on" to him. In mid-July he had an iPhone 4S, but since the dawn of the investigation, he had acquired an iPhone 56 and told her police would not find naked photos on it--making her realize he had given the new phone to police to search. When he asked her to contact A.J.'s mom, she refused. Their marriage ended that July, the same month they celebrated their ninth wedding anniversary.

6   Kays admitted buying a new phone for himself on July 24, 2013. According to A.J., he also offered to buy her a phone, and advised her to delete messages and deny everything.

In preparation for trial, Kays filed a KRE7 504(b) motion to prevent his ex-wife from testifying about confidential marital communications pertaining to the case. Citing KRS 620.050(3), the trial court denied the motion because abuse of a child was alleged. Furthermore, because Kays was now divorced, there was no marriage to preserve and, thus, no basis for invoking spousal privilege.

7   Kentucky Rules of Evidence.

On July 26, 2013, A.J. gave a forensic interview at which she recanted any involvement with Kays. At that point, A.J. still believed she and Kays would marry and she would become stepmother to his two young children. Shortly before the interview, A.J. had [*13]  written mother a letter claiming she had cheated on Jacob with a former volleyball scorekeeper she had contacted via the team's Facebook account; mother would not approve of this boy because he drinks and uses drugs so she never brought him home; Kays "has done nothing wrong;" and, "I made everything up," putting the blame on Kays only because "I knew that you had already kind of suspected that something was going on between us." As a result of the letter, mother knew A.J. would recant her prior admissions during the forensic interview and that is what happened.

After the failed interview, mother was told to go home and pretend she believed nothing had happened--just as A.J. had said during the interview. Mother refused to take that approach. Instead, she and a friend searched the house and found two rings Kays had given A.J. The rings were hidden in A.J.'s bedroom, wrapped in a shoebox bearing the names of Kays and his wife and their phone number.

A.J. ultimately chose to tell the truth because everyone knew she was lying. As a matter of right, Kays appeals his conviction and sentence of ten years.

ANALYSIS

***

Kays' second claim is the trial court erred in admitting four categories of electronic messages--Facebook messages exchanged July 19-21, 2013, between A.J. and Shawneevball (Kays); Facebook messages exchanged August 6, 2013, between Kays and former player Chelsea Woolfolk; Viber text messages between A.J. and Kays copied from the phone [*20]  of A.J.'s brother; and, text messages collected from A.J.'s phone made to and from Kays. Kays filed a pretrial motion seeking exclusion due to lack of authentication directly from Facebook. The trial court denied the motion in limine, giving the Commonwealth the opportunity to authenticate its proof.

Authentication of electronic messages is a relatively new topic for Kentucky courts. Before text messages become admissible, they must be authenticated. Stated differently, the court must be sufficiently convinced the item is what the proponent claims it is. KRE 901. We review the trial court's ruling for abuse of discretion. Anderson v. Commonwealth, 231 S.W.3d 117, 119 (Ky. 2007) (citing Woodward v. Commonwealth, 147 S.W.3d 63 (Ky. 2004)). Abuse occurs when the ruling was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).

In arguing for exclusion, defense counsel claimed the Commonwealth could not produce complete conversations, nor prove what they intended to introduce was complete, leaving open the possibility of exculpatory proof being placed beyond their grasp. Despite that claim, defense counsel agreed a party to a conversation can authenticate a recording or electronic posting. Counsel then argued mother had admitted posing as A.J. to entrap Kays and suggested other [*21]  messages may have been manipulated. Defense counsel mentioned "spoofing"9 and suggested electronic media is inherently suspect. He then stated Facebook messages are easier to manipulate than photos and, because Viber is more secret, it is subject to even greater manipulation.

9   "Spoofing" refers to a scam by which an entity attempts to gain unauthorized access to a user's computer system or information by pretending to be someone else in an attempt to get sensitive information.

Each item Kays sought to exclude was introduced through and identified by the person who sent or received each message. A.J. identified Facebook, Viber, and text messages she exchanged with Kays. Woolfolk identified Facebook messages she exchanged with Kays. A.J.'s mother identified Facebook messages she exchanged with Kays, and those she exchanged with Kays while posing as her daughter. Other than Kays, everyone associated with creating and sending these messages testified the items as being what they purported to be based on their personal involvement in the threads. And this was not a miniscule amount of messages--it was hundreds of messages, each one linked to the witness introducing it by personal knowledge. [*22]  See Ira P. Robbins, Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence, 13 Minn. J.L. Sci. & Tech. 1, 17 (2012).

The Commonwealth's burden under KRE 901 to authenticate a writing is "slight," requiring only a "prima facie showing." Ordway v. Commonwealth, 352 S.W.3d 584, 593 (Ky. 2011) (citing Sanders v. Commonwealth, 301 S.W.3d 497, 501 (Ky. 2010)). A trial court may admit an item so long as it finds sufficient proof has been presented from which a jury may reasonably deem an item to be what it is proclaimed to be. Robert G. Lawson, The Kentucky Evidence Law Handbook, 7.00 at 495 (4th ed. 2003) (citing Bell v. Commonwealth, 875 S.W.2d 882, 886-87 (Ky. 1994)). While the judge determines admissibility of the item, the jury determines its authenticity and "probative force." Id. (Quoting E.W. French & sons, Inc. v. General Portland Inc. 885 F.2d 1392, 1398 (9th Cir. 1989)); see also United States v. Mandycz, 447 F.3d 951, 966 (6th Cir. 2006).

Under KRE 901(b), the most common way to authenticate an item is through testimony of a witness that it is "what it is claimed to be." While Kays attempts to impart a mystical, magical quality to electronic messages, we disagree. As the Commonwealth argues, they are not so different from photos. Exercising its considerable discretion, a trial court may admit a piece of evidence solely on the basis of testimony from a knowledgeable person that the item is what it purports to be and its condition has been substantially unchanged. Grundy v. Commonwealth, 25 S.W.3d 76, 80 (Ky. 2000). Furthermore, Kays was free to argue to the jury the messages might be incomplete [*23]  or may have been manipulated. In light of the witnesses through which each piece of electronic evidence was admitted in this case, we discern no abuse of discretion and affirm.

 

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