Facebook/Social Media Authentication — West Virginia Adopts Liberal, Circumstantial Evidence Approach — Testimony from Conversant, Witness to Party Sending or Receiving, or Distinctive Characteristics Sufficient
State v. Benny W., 2019 W. Va. LEXIS 487 (W. Va. Sup. Ct. of App. Oct. 18, 2019):
This appeal was brought by Benny W. (hereinafter "Petitioner") from the April 4, 2018, order of the Circuit Court of Ritchie County sentencing him to a total of 131 to 295 years in prison.1 Petitioner was convicted by a jury of six counts of sexual assault in the second degree, seven counts of sexual abuse by a custodian, and one count of sexual abuse in the first degree. In this appeal, Petitioner set out nine of assignments of error and asks this Court to reverse his convictions and sentences and award him a new trial. Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we affirm.
FACTUAL AND PROCEDURAL HISTORY
This case involves the sexual assault of two female juveniles, H.A. and J.L., by the Petitioner.2 H.A. and J.L. were friends with Petitioner's juvenile daughter, A.W. During the period of June to July of 2016, H.A. alleged that she was sexually assaulted by [*4] the Petitioner on five occasions while she was at his home visiting A.W., J.L. alleged that she was sexually assaulted by the Petitioner on one occasion during the same time period.
The first time that Petitioner sexually assaulted H.A. at his home, A.W. approached H.A. and informed her that Petitioner wanted to have sex with her.3 According to H.A., A.W. took her into Petitioner's bedroom, which was dark, and left her there.4 Petitioner, who apparently was already in the bedroom, took off H.A.'s pants and penetrated her vagina with his hand and penis.5 H.A. visited A.W. on four more occasions and during each visit the Petitioner sexually assaulted her. When the third sexual assault of H.A. took place, J.L. was also visiting the home. H.A. alleged that during this visit A.W. told her and J.L. that the Petitioner wanted to see them. A.W. escorted both girls into Petitioner's bedroom and left. Both girls got on Petitioner's bed and he sexually assaulted them. J.L. was sexually assaulted first. The Petitioner penetrated J.L.'s vagina with his fingers. J.L. left the room after being sexually assaulted in that manner. After J.L. left the room, Petitioner sexually assaulted H.A. by penetrating [*5] her with his penis.
In the fall of 2016, H.A. reported to a high school counselor that she was sexually assaulted multiple times by Petitioner. The high school counselor reported the incident to the county prosecutor. A police investigation followed, during which it was learned that the Petitioner also sexually assaulted J.L. Subsequent to the investigation, a grand jury returned a twenty-four count indictment against the Petitioner on January 23, 2017.
The case was tried before a jury over two days, beginning on December 4, 2017. During the trial the State presented testimony from the victims, H.A. and J.L.6 Both victims testified to being sexually assaulted by the Petitioner. The State also called the Petitioner's daughter, A.W. During the trial A.W. testified that on two occasions she told H.A. that Petitioner wanted to have sex with her. A.W. also identified Facebook text messages she had with Petitioner, in which Petitioner appears to be asking her to tell H.A. or J.L. to come over to have sex with him. At the close of the State's case-in-chief the circuit court granted a motion by Petitioner to dismiss two of the counts on insufficient evidence. The Petitioner testified during his [*6] case-in-chief and denied having any sexual contact with the victims.7 The jury ultimately found the Petitioner guilty of fourteen counts of the indictment and not guilty of eight counts.8 This appeal followed.
STANDARD OF REVIEW
The Petitioner has set out nine assignments of error that have different review standards. Consequently, we will set out the standard of review for each issue as it is addressed below. See State v. Boyd, 238 W. Va. 420, 428, 796 S.E.2d 207, 215 (2017) ("We will dispense with our usual standard of review section because each of the assignments of error has its own review criteria."); State v. Dunn, 237 W. Va. 155, 158, 786 S.E.2d 174, 177 (2016) ("Therefore, we dispense with setting out a general standard of review. Specific standards of review will be discussed separately as we address each assignment of error.").
Authentication of Facebook Messenger Text Messages
The first two assignments of error by the Petitioner are overlapping, insofar as they both require this Court to determine whether the circuit court committed error in finding the State properly authenticated its only exhibit, Facebook Messenger text messages. Consequently, we will combine the two assignments of error and address the issues raised together.9 The State contends that the text messages exhibit [*7] was authenticated by A.W. and properly admitted into evidence.10
We have held that "[t]he action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. pt. 10, State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994). With respect to a trial court's ruling on authentication of evidence, this Court has held that "[a] trial court's ruling on authenticity of evidence under Rule 901(a) of the West Virginia Rules of Evidence will not be disturbed on appeal unless there has been an abuse of discretion." Syl. pt. 12, State v. Boyd, 238 W. Va. 420, 796 S.E.2d 207 (2017). See Syl. pt. 3, State ex rel. Smith v. McBride, 224 W. Va. 196, 681 S.E.2d 81 (2009) ("A trial judge's ruling on authenticity will not be disturbed on appeal unless there has been an abuse of discretion.").
It is provided under our rules of evidence that "[t]o satisfy the requirement of authenticating . . . an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." W. Va. R. Evid. 901(a). We have recognized that "the standard of admissibility under Rule 901(a) is rather slight, i.e., is the evidence sufficient 'to support a finding' that the object is authentic." State v. Boyd, 238 W. Va. 420, 443, 796 S.E.2d 207, 230 (2017) (citation omitted). Courts have acknowledged [*8] that "[t]he authentication of social media poses unique issues regarding what is required to make a prima facie showing that the matter is what the proponent claims." Smith v. State, 136 So. 3d 424, 432 (Miss. 2014). One court addressed the issue as follows:
The need for authentication arises in this context because an electronic communication, such as a Facebook message, an e-mail or a cell phone text message, could be generated by someone other than the named sender. This is true even with respect to accounts requiring a unique user name and password, given that account holders frequently remain logged into their accounts while leaving their computers and cell phones unattended. Additionally, passwords and website security are subject to compromise by hackers. Consequently, proving only that a message came from a particular account, without further authenticating evidence, has been held to be inadequate proof of authorship.
State v. Eleck, 130 Conn. App. 632, 638-39, 23 A.3d 818, 822 (2011). A general procedure for authenticating social media evidence has been summarized as follows:
[A]uthentication [of] social media evidence is to be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing of its relevance and authenticity. Additionally, the [*9] proponent of social media evidence must present direct or circumstantial evidence that tends to corroborate the identity of the author of the communication in question, such as testimony from the person who sent or received the communication, or contextual clues in the communication tending to reveal the identity of the sender.
Commonwealth v. Danzey, 2019 PA Super 152, 210 A.3d 333, 338 (Pa. 2019) (citation omitted). See State v. Bitner, No. 51179-7-II, 2019 Wash. App. LEXIS 1661, 2019 WL 2598731, at *3 (Wash. Ct. App. June 25, 2019) ("[T]ext message evidence can be authenticated based on its contents and substance, 'taken in conjunction with the circumstances.'"); Commonwealth v. Davis, No. 1055 MDA 2018, 2019 Pa. Super. Unpub. LEXIS 2129, 2019 WL 2323815, at *5 (Pa. Super. Ct. May 31, 2019) (finding text message authenticated because "there was first-hand corroborating testimony from ... [the] recipient"); People v. Ziemba, 2018 IL App (2d) 170048, 421 Ill. Dec. 618, 100 N.E.3d 635, 648 (Ill.App. 2018) (finding text messages authenticated by "undercover officer who personally sent and received the text messages contained in People's exhibit No. 2"); State v. Roseberry, 197 Ohio App. 3d 256, 270, 2011- Ohio 5921, 967 N.E.2d 233, 244 (2011) ("[I]n most cases involving ... texts, instant messaging, and e-mails, the photographs taken of the print media or the printouts of those conversations are authenticated, introduced, and received into evidence through the testimony of the recipient of the messages.").
The decision in In re T.P.D.C., 2019 MT 107N, 396 Mont. 547, 440 P.3d 634 (Mont. 2019) (unpublished) illustrates the minimal requirement for authenticating text messages between two people. In that case the mother [*10] of a child filed a petition to terminate the parental rights of the father of the child. The petition was denied. On appeal one of the issues raised by the mother was that text messages between her and the father of the child were not properly authenticated. The appellate court disagreed as follows:
Finally, Mother argues that the District Court erroneously admitted copies of text message conversations between Mother and Father into evidence. Mother first argues that there was insufficient foundation, because Mother stated she could not remember the texts. Second, she maintains that the printouts of the texts were not originals under M. R. Evid. 1001, and the court could not admit a duplicate because she had raised a question as to the authenticity of the original messages. Mother is mistaken that her testimony was required to authenticate the text messages. Father, as one party to the conversation, had firsthand knowledge of their authenticity and provided sufficient testimony that the printouts of the text messages were what he claimed them to be. Any questions regarding Father's credibility would go to the weight of the evidence, not to its admissibility.
The decision in Commonwealth v. Murray, 2017 PA Super 363, 174 A.3d 1147 (Pa. Super. 2017) fashioned a general [*11] test for authenticating text messages. In Murray the defendant was convicted, following a bench trial, of possession of a firearm by a prohibited person. One of the issues raised on appeal by the defendant was that the State failed to authenticate text messages attributed to him. The appellate court disagreed with the defendant and concluded, as did the trial court, that the text messages were authenticated based upon the contextual clues in the messages. In rendering this conclusion, the opinion applied the following test for authenticating text messages:
text messages may be authenticated by: (1) testimony from either the author or the sender; (2) circumstantial evidence, including distinctive characteristics like information specifying the author-sender or reference to or correspondence with relevant events preceding or following the message; or (3) any other facts or aspects of the [message] that signify it to be what its proponent claims.
Murray, 174 A.3d at 1156-57 (internal quotations and citations omitted). See Tyler v. State, No. 05-15-00354-CR, 2016 Tex. App. LEXIS 680, 2016 WL 280032, at *2 (Tex. App. Jan. 22, 2016) (internal quotations and citations omitted) ("As with other types of evidence, text messages may be authenticated by evidence sufficient to support a finding that the matter is what its proponent [*12] claims. This can be accomplished in myriad ways, depending upon the unique facts and circumstances of each case, including through the testimony of a witness with knowledge or through evidence showing distinctive characteristics."); Rodriguez v. State, 128 Nev. 155, 162, 273 P.3d 845, 849 (2012) ("[W]hen there has been an objection to admissibility of a text message ... the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission.").
In light of the foregoing authorities, we now hold that under Rule 901(a) of the West Virginia Rules of Evidence, social media text messages may be authenticated in numerous ways including, for example, by a witness who was a party to sending or receiving the text messages, or through circumstantial evidence showing distinctive characteristics that link the sender to the text messages.
In the instant case the Petitioner characterizes the Facebook text messages as photographs and argues that a proper foundation was not laid as required by the procedures used in State v. Palmer, No. 14-0862, 2016 W. Va. LEXIS 445, 2016 WL 3176472 (W. Va. June 3, 2016) (Memorandum Decision).11 According to Petitioner, under Palmer the trial court was required, among other [*13] things, to conduct an in-camera review of the text messages and other documents subpoenaed from Facebook.12 Palmer does not impose such a requirement. The defendant in Palmer appealed from his conviction for first degree murder of his father-in-law. One of the issues raised was that the State did not properly authenticate an e-mail containing a reference to a Facebook post and comments about the post. In the Facebook post the defendant essentially stated that he had a mental list of people he was going to "strike" because they did him and his wife wrong. This post was authenticated by a witness who had a conversation with the defendant on Facebook and believed that the statement in the Facebook post was made by the defendant based on the manner of speech used in the post, the Facebook profile picture of defendant, and the fact that the content of the post was something only the witness and defendant had knowledge of, the decision in Palmer indicated that in addition to having the witness authenticate the post, the circuit court did the following:
In the instant case, the circuit court completed an appropriate analysis of the authenticity of the document prior to its admission at trial. [*14] Additionally, the circuit court, prior to admission of the document, conducted an in camera review of the exhibit and other corresponding documents subpoenaed from Facebook and jail telephone calls between petitioner and his family members, which substantiated the information contained within the exhibit. Moreover, the circuit court permitted petitioner to proffer the testimony of an expert witness regarding the ability to easily fabricate a Facebook page to rebut this exhibit.
Palmer, 2016 W. Va. LEXIS 445, 2016 WL 3176472, at *5. The procedures used by the circuit court in Palmer, before it admitted the Facebook post, were procedures the circuit court believed should be followed under the unique facts of that case. The mere fact that the Memorandum Decision in Palmer outlined the authenticity procedures used by the circuit court, did not render those procedures mandatory for authenticating all future social media exhibits. Moreover, this Court does not create new and binding principles of law in Memorandum Decisions. See Syl. pt. 1, State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014) ("Signed opinions containing original syllabus points have the highest precedential value because the Court uses original syllabus points to announce new points of law or to change established patterns [*15] of practice by the Court.").13
In contrast to Palmer, where there was simply a Facebook post that was traced to the defendant, in the instant case the Facebook Messenger text messages involved communication between two people—the Petitioner and his daughter A.W.14 During the trial A.W. authenticated the text messages based upon the following questioning by the State:
Q. Do you recognize this message to be a conversation between you and your dad, correct?
Q. Let me ask you this: If you could take a look at the top line, what you said, and the pink that is what you said, right? Don't say it out loud.
A. (Indicated yes)
Q. Do you recall saying that to your dad?
Q. Do you recall his response?
A. I guess.
Q. And what you see on the rest of that, could you recall the rest of that?
Q. What about this second page? It has a little bit of overlap from the first, right, but then the rest of that page, do you recall that?
Q. What about the third page?
Q. And the fourth page?
Q. That up there, does that indicate you were talking to your dad?
We find that A.W.'s identification of the content of the Facebook Messenger [*16] text messages as a conversation she had with Petitioner was sufficient to authenticate the text messages.16 Consequently, we find no error in the circuit court's admission of the text messages.17
In view of the foregoing, we affirm the April 4, 2018, order of the circuit court sentencing the Petitioner for his convictions on six counts of sexual assault in the second degree, seven counts of sexual abuse by a custodian, and one count of sexual abuse in the first degree.
1 Consistent with our long-standing practice in cases involving juveniles and sensitive facts, we use the initials where necessary to protect the identities of those involved in this case. See In re K.H., 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015).
2 H.A. was born in 2002, and J.L. was born in 2003.
3 It appears that the Petitioner was in his bedroom when he sent a text message to A.W. making the request to have sex with H.A.
4 The record indicates that the Petitioner had been married to A.W.'s mother. It is not clear if the couple divorced or separated. The record does indicate that A.W.'s mother was not living with Petitioner.
5 Petitioner put on a condom.
6 The State called a total of seven witnesses.
7 The Petitioner also called six character witnesses.
8 Additional relevant facts about the trial of the case are brought out under specific assignments of error.
9 In the first assignment of error the Petitioner couches the issue of the text messages in the context of the circuit court committing error by "provisionally and conditionally" rejecting his objection to the admission of the text messages. See Syl. pt. 4, State v. Nixon, 178 W. Va. 338, 359 S.E.2d 566 (1987) ("The trial court may conditionally admit [evidence] subject to the laying of a proper foundation."). In the second assignment of error the Petitioner asks this Court to address the authentication of the text messages under plain error, in order to impose the procedures set out in a 2016 Memorandum Decision by this Court. (The decision is discussed infra.)
10 The Petitioner's brief makes reference to the text messages being double hearsay and should not have been admitted for that reason. See State v. Golden, 175 W. Va. 551, 554, 336 S.E.2d 198, 202 (1985) ("The general rule is that multiple hearsay evidence is admissible into evidence only if each level of hearsay comes within a recognized exception to the exclusionary rule."). The issue of hearsay within hearsay has not been briefed with any legal authority nor legal arguments by Petitioner. Therefore, we decline to address the merits of the issue. See State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) ("Although we liberally construe briefs in determining issues presented for review, issues which are not raised, and those mentioned only in passing but are not supported with pertinent authority, are not considered on appeal.").
11 The Petitioner appears to characterize the text messages as photographs that require an authentication independent of the text messages. However, the Petitioner's brief does not set out any argument, along with legal authority, addressing the issue of admissibility of photographs. We therefore decline to address the photograph issue independent of the text messages. See State v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) (finding that "casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue on appeal") (internal quotations and citation omitted). We will note simply in passing that, under the facts of this case, it would appear that no special authentication procedure was necessary for authenticating the photographs independent of the text messages. See People v. Cotto, 164 A.D.3d 826, 827, 79 N.Y.S.3d 535, 536 (2018) ("The complainant's testimony that the photographs of the text messages fairly and accurately depicted the text message conversation between her and the defendant was sufficient to authenticate the photographs."); United States v. Davis, 918 F.3d 397, 403 (4th Cir. 2019) (affirming authentication of photographs of test messages); Duvall v. State, 2018 Ark. App. 155, 544 S.W.3d 106, 113-14 (2018) (finding sufficient circumstantial evidence to authenticate photographs of text messages).
12 The Petitioner briefed the procedures used in Palmer in his first assignment of error and argued that they should have been used. However, the Petitioner set out the same argument in his second assignment of error and asked this Court to address the matter under plain error. See State v. Miller, 194 W. Va. 3, 18, 459 S.E.2d 114, 129 (1995) ("The 'plain error' doctrine grants appellate courts, in the interest of justice, the authority to notice error to which no objection has been made."). The State properly notes that application of the Palmer procedures is not properly before this Court, because the Petitioner did not object below to the procedure used by the circuit court in admitting the text messages. Our analysis of Palmer on the merits of that case disposes of the need to address the plain error argument.
13 See also Syl. pt. 5, in part, McKinley ("While memorandum decisions may be cited as legal authority, and are legal precedent, their value as precedent is necessarily more limited.").
14 During the trial the investigating officer, Trooper A.M. Pringle, testified that he executed a search warrant to examine the Facebook Messenger database, and that he took the photographs of the text messages between Petitioner and A.W.
15 The following is the Facebook Messenger text messages between the Petitioner and A.W.
[A.W.] He said he couldn't come so we are just gonna wait
[Petitioner] I still want it tonight or it ain't going to happen at all.
[A.W.] When jr. Leaves [Petitioner] What I want
[A.W.] When jr. Leaves she will[.] It has to be dark, she feels uncomfortable when it's daylight.
[Petitioner] It's dark in my room anyway
[A.W.] True[.] But can we at least wait till jr. Leaves?
[A.W.] Not tonight[.] [H.A.] is upset n [J.L.] said not tonight
[Petitioner] I need it tonight[.] Oh bull
[A.W.] U had some last night Ur fine
[Petitioner] I ain't going to argue over it[.] Whatever
[A.W.] Ok night love you
[Petitioner] Whatever[.] Tell her please I just ask for a few minutes of something and I can't even get that
16 The Petitioner also argued that the text messages should not have been admitted because the circuit court initially ruled that a foundation had not been laid to admit the text messages. The circuit court's initial ruling is of no moment, because the circuit court later determined that a foundation for admission was made after further questioning of A.W. It has been appropriately noted that "[i]n ascertaining whether [a] foundation has been established, we can ... consider all the evidence ... regardless of the order of proof." United States v. Miranda-Uriarte, 649 F.2d 1345, 1349 (9th Cir. 1981).
17 During jury deliberations the jury requested to see the text messages. The trial judge allowed the text messages to be sent to the jury, without objection by the Petitioner. In this appeal the Petitioner appears to be asking this Court to invoke plain error to find that it was improper for the jury to view the text messages during its deliberations. We decline to do so. See Syl. pt. 5, First Nat. Bank v. Barker, 75 W. Va. 244, 83 S.E. 898 (1914) ("The jury may, by leave of the court, take to their room all papers properly put in evidence on the trial."); W. Virginia Dep't of Transp., Div. of Highways v. Parkersburg Inn, Inc., 222 W. Va. 688, 700, 671 S.E.2d 693, 705 (2008) ("It has been recognized that [i]tems of documentary or real evidence that were admitted into evidence may be taken into closed sessions during [jury] deliberations.") (internal quotation marks and citation omitted).
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