Commonwealth v. Meola ( 2019 )

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18-P-83 Appeals Court
COMMONWEALTH vs. URBANO MEOLA.
No. 18-P-83.
Middlesex. November 1, 2018. - May 22, 2019.
Present: Agnes, Blake, & Neyman, JJ.
Obscenity, Dissemination of obscene matter to minor. Social
Media. Evidence, Authentication, Digital image. Practice,
Criminal, Motion for a required finding.
Complaint received and sworn to in the Malden Division of
the District Court Department on August 18, 2016.
The case was heard by Joseph W. Jennings, III, J.
Mehmet Baysan for the defendant.
Benjamin Lees (Kevin J. Curtin, Assistant District
Attorney, also present) for the Commonwealth.
AGNES, J. The defendant, Urbano Meola, appeals from his
conviction, following a jury-waived trial, of dissemination of
obscene material to a minor in violation of G. L. c. 272, § 28.
The defendant argues that the judge erroneously admitted in
2
evidence a Facebook message1 and the accompanying video attached
to the message that was sent to the victim, the then seventeen
year old daughter of his former live-in girlfriend. The video
depicted the defendant seated and unclothed, rubbing his penis
and his anus.2 For the reasons explained infra, the evidence
before the judge was sufficient to authenticate the Facebook
message as a digital communication sent to the victim by the
defendant. See Mass. G. Evid. § 901(b)(4), (11) (2019).
Furthermore, we conclude that because the evidence presented by
the Commonwealth was sufficient to permit the judge to conclude
beyond a reasonable doubt that the defendant sent the video to
the victim, the judge did not err in denying the defendant's
motion for a required finding filed at the close of the
Commonwealth's case.
Background. Viewing the evidence in the light most
favorable to the Commonwealth, the judge could have found the
following facts. The defendant and the victim's mother were in
a relationship for approximately nine years, ending in 2009. In
1 "Members [of social networking websites such as Facebook
and MySpace] create their own individual web pages (their
profiles) on which they post their own personal information,
photographs and videos, and from which they can send and receive
messages to and from others whom they have approved as their
'friends.'" 2 McCormick on Evidence § 227, at 20 (2013 & Supp.
2016).
2 The video was marked Exhibit 1 and is part of the record
on appeal.
3
2005, they had one daughter together, the victim's half-sister.3
The defendant and the mother never married, although they lived
together with the children and were at one time engaged. The
victim was seventeen years old at the time of the events giving
rise to this case. Neither the mother nor the children had any
contact with the defendant from the time the adults separated
until this incident.4
On August 12, 2016, the victim received a message
notification on her cell phone from her Facebook account that
read: "You have a message request from Urbano Meola." There
was no text otherwise accompanying the notification, but rather
"just a screen that said 'play,'" alerting the victim that the
entirety of the communication was a video.
The victim testified that she was "freaked out" and
"nervous" upon receiving the message because she and the
defendant had not communicated in any way since his relationship
with her mother had ended at least six years prior, and because
she and the defendant were not "friends" on Facebook. The
account that sent the video bore the defendant's name and a
3 The defendant was not the victim's father.
4 There was evidence that several years after their
relationship ended, the mother went to the Department of Revenue
in an effort to collect child support from the defendant.
However, she testified that nothing came of it because "we
didn't know where he was."
4
profile picture of the victim's younger half-sister, the
defendant's daughter.5 Later that evening, the victim watched
the thirty-second video, which, as noted above, depicts the
defendant seated and unclothed, rubbing his penis and his anus.
Within a day or two, the victim received a "friend request" via
Facebook from the same account that had sent the video of the
defendant.
In addition to this testimony from the mother and the
victim, the judge heard testimony from Everett Police Officer
Nicole O'Donnell, who viewed the video of the defendant on the
victim's phone and wrote a police report. Everett Police
Detective Nicholas Crowell also testified. He spoke to the
victim's aunt, who had accompanied the victim to the police
station and had forwarded the video to him via an e-mail message
(e-mail). Detective Crowell described the video in question as
a "thirty-one-second video of a male showing his genitalia area.
It's viewed from down below, looking up towards the person in
the video." After speaking with Officer O'Donnell, Detective
Crowell identified the male in the video as the defendant based
on a photograph he had obtained from the registry of motor
vehicles. On August 17, 2016, the defendant was arrested in his
5 There is no evidence that further describes the photograph
of the victim's half-sister. While the photograph was the
subject of oral testimony, it was not introduced in evidence.
5
room at a rooming house in Revere. No computers, cell phones or
digital devices were in the defendant's room or on his person at
the time of his arrest, and neither the police nor the
Commonwealth ever sought to obtain a search warrant seeking any
electronic devices owned by or accessible to the defendant.
The judge admitted into evidence the video the victim had
received. However, finding that the prosecutor had failed to
comply with the requirement of Mass. R. Crim. P. 17 (a) (2), 378
Mass. 885 (1979), that, prior to trial, subpoenaed records must
be delivered to the clerk's office, the judge excluded records
proffered by the prosecutor and described as user information
relating to the Facebook account of the person who had sent the
video (Facebook account records).
Discussion. General Laws c. 272, § 28, provides, in
pertinent part, that "[w]hoever purposefully disseminates to a
person he knows or believes to be a minor any matter harmful to
minors, as defined in [G. L. c. 272, § 31], knowing it to be
harmful to minors, . . . shall be punished . . . ." The term
"purposely" is generally understood to mean deliberately or
intentionally, as opposed to accidentally.6 The term "matter,"
as used in § 28, is defined broadly and includes a video like
6 Compare "purposeful," defined as "having a purpose: as
(a) meaningful, (b) intentional." Merriam-Webster's Collegiate
Dictionary 1011 (11th ed. 2005). Cf. Commonwealth v. York, 9
Met. 93, 105 (1845) (defining malice).
6
the one involved in this case.7 The term "disseminates," as used
in § 28, also is defined broadly and includes circumstances in
which a video is attached to a Facebook message and transmitted
electronically to another Facebook subscriber as happened in
this case.8 The term "knowing," as used in § 28, is defined as
"a general awareness of the character of the matter." G. L.
c. 272, § 31. Finally, "harmful to minors," as used in § 28,
includes matters which meet the definition of obscenity.9
7 The term "matter" is defined in G. L. c. 272, § 31, as
follows:
"[A]ny handwritten or printed material, visual
representation, live performance or sound recording
including, but not limited to, books, magazines, motion
picture films, pamphlets, phonographic records, pictures,
photographs, figures, statues, plays, dances, or any
electronic communication including, but not limited to,
electronic mail, instant messages, text messages, and any
other communication created by means of use of the Internet
or wireless network, whether by computer, telephone, or any
other device or by any transfer of signs, signals, writing,
images, sounds, data, or intelligence of any nature
transmitted in whole or in part by a wire, radio,
electromagnetic, photo-electronic or photo-optical system."
8 The term "disseminates" is defined in G. L. c. 272, § 31,
as "to import, publish, produce, print, manufacture,
distribute, sell, lease, exhibit or display."
9 The phrase "harmful to minors" is defined in G. L. c. 272,
§ 31, as follows:
"[M]atter is harmful to minors if it is obscene or, if
taken as a whole, it (1) describes or represents nudity,
sexual conduct or sexual excitement, so as to appeal
predominantly to the prurient interest of minors; (2) is
patently contrary to prevailing standards of adults in the
county where the offense was committed as to suitable
7
The defendant did not object to the testimony by the mother
and the victim that the person in the video was the defendant,
and no question in that regard is raised on appeal.10 The
defendant does not question that the video was disseminated to
the victim, or that it was a matter that is harmful to minors,
within the meaning of G. L. c. 272, § 28. Rather, the defendant
argues on appeal that the video and the communication that it
was attached to were admitted without a proper evidentiary
foundation because the Commonwealth failed to authenticate the
digital message containing the video as a message purposefully
sent by him.
1. Authentication as a condition of relevance. "The
general rule to be followed in this Commonwealth is that all
relevant evidence is admissible unless within an exclusionary
rule. Evidence is relevant if it renders the desired inference
more probable than it would be without the evidence." Poirier
material for such minors; and (3) lacks serious literary,
artistic, political or scientific value for minors."
10The defendant did object prior to trial to any
identification testimony by either of the police officers who
testified. Detective Crowell testified over objection that he
located the person depicted in the video by examining a registry
of motor vehicles photograph of the defendant. We construe the
judge's ruling in context as admitting the evidence for the
limited purpose of explaining how the police came into contact
with the defendant. See Commonwealth v. Cordle, 404 Mass. 733,
743-744 (1989). In any case, at trial and in his closing
argument, the defendant did not dispute that he is the person
depicted in the video.
8
v. Plymouth, 374 Mass. 206, 210 (1978).11 "Authentication
represents a special aspect of relevancy in that evidence cannot
have a tendency to make the existence of a disputed fact more or
less likely if the evidence is not that which its proponent
claims" (citations and quotation omitted). United States v.
Branch, 970 F.2d 1368, 1370 (4th Cir. 1992). For this reason,
authentication of digital evidence such as an e-mail, an
electronic message using a social media platform, a screenshot
from a website, or a videotape recording "is a condition
precedent to its admissibility." Commonwealth v. Foster F., 86
Mass. App. Ct. 734, 737 (2014).12
11In order to be admissible at trial, relevant evidence
must, of course, make a fact of consequence in the proceeding
more or less probable. Harris-Lewis v. Mudge, 60 Mass. App. Ct.
480, 485 (2004). See Mass. G. Evid. § 401 (2019).
12See, e.g., Commonwealth v. Caruso, 476 Mass. 275, 291
(2017) (error to admit certain screen shots from defendant's
computer because there was no foundational evidence indicating
that "the defendant had ever accessed the information depicted
in the screen shots"); Commonwealth v. Purdy, 459 Mass. 442,
450-451 (2011) (judge properly admitted series of e-mail
exchanges based on "this threshold: in addition to the e-mails
having originated from an account bearing the defendant's name
and acknowledged to be used by the defendant, the e-mails were
found on the hard drive of the computer that the defendant
acknowledged he owned, and to which he supplied all necessary
passwords"); Commonwealth v. Williams, 456 Mass. 857, 868–869
(2010) (electronic MySpace message inadmissible where proponent
provided no foundation identifying who sent message);
Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 586-588 (2017)
(police officer's testimony about contents of missing
surveillance video should not have been admitted because
Commonwealth did not lay sufficient foundation to demonstrate
that video was genuine representation of events that occurred on
9
With regard to the authentication of evidence, the judge
has a gatekeeper role, which requires the judge to assess the
evidence and determine whether the jury or judge, acting as the
fact finder, could find that the item in question is what its
proponent claims it to be. See Mass. G. Evid. § 104(b) (2019).13
night in question); Commonwealth v. Gilman, 89 Mass. App. Ct.
752, 758-759 (2016) (Facebook chat conversations sufficiently
authenticated based on evidence that they originated from
account bearing defendant's name and including his photograph,
and were found on hard drive of two laptop computers issued to
defendant by his employer with access limited to defendant by
use of user name and password). See also Mass. G. Evid.
§ 901(a), (b)(11) (2019). See generally Tienda v. State, 358
S.W.3d 633, 638 (Tex. Crim. App. 2012).
13 "The role of judge as 'gatekeeper' is essential to
authentication, because of jurors' tendency, 'when a corporal
object is produced as proving something, to assume, on sight of
the object, all else that is implied in the case about it,' for
which Wigmore provided the following example:
'It is easy for a jury, when witnesses speak of a horse
being stolen from Doe by Roe, to understand, when Doe is
proved to have lost the horse, that it still remains to be
proved that Roe took it; the missing element can clearly be
kept separate as an additional requirement. But if the
witness to the theft were to have a horse brought into the
courtroom, and to point it out triumphantly, "If you doubt
me, there is the very horse!", this would go a great way to
persuade the jury of the rest of his assertion and to
ignore the weakness of his evidence of Roe's complicity.
The sight of the horse, corroborating in the flesh, as it
were, a part of the witness' testimony, tends to verify the
remainder.' [7 J.] Wigmore, [Evidence] § 2129 [(Chadbourn
Rev. 1978)]." (Emphasis omitted.)
Sublet v. State, 442 Md. 632, 656 (2015).
Cases sometimes refer to the gatekeeper's determination as
a preliminary finding of fact under Massachusetts law, reflected
in Mass. G. Evid. § 104(b), as well as under Federal law, see
10
In the case of a digital communication that is relevant only if
authored by the defendant, a judge is required to determine
whether there is sufficient evidence to persuade a reasonable
trier of fact that it is more likely than not that the defendant
was the author of the communication. See Commonwealth v. Purdy,
459 Mass. 442, 447 (2011); Commonwealth v. Oppenheim, 86 Mass.
App. Ct. 359, 366-367 (2014). We review a judge's preliminary
determination of conditional relevancy under Mass. G. Evid.
§ 104(b) under an abuse of discretion standard. See
Commonwealth v. Leonard, 428 Mass. 782, 786 (1999) ("these
preliminary determinations are committed to the sound discretion
of the judge . . . [whose] decision will be upheld on appeal
absent palpable error" [quotation and citation omitted]). That
standard means that we will not disturb the judge's ruling
absent a clear error of either law or "judgment in weighing the
relevant factors." Commonwealth v. Brown, 477 Mass. 805, 820
Fed. R. Evid. 104(b) (2019). However, it is more accurate to
describe the judicial function under § 104(b) as a preliminary
assessment or screening of the evidence, because the judge does
not make a determination of credibility under § 104(b). "In
determining whether the Government has introduced sufficient
evidence to meet Rule 104(b), the trial court neither weighs
credibility nor makes a finding that the Government has proved
the conditional fact by a preponderance of the evidence. The
court simply examines all the evidence in the case and decides
whether the jury could reasonably find the conditional fact
. . . by a preponderance of the evidence." Huddleston v. United
States, 485 U.S. 681, 690 (1988).
11
(2017), citing L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014).
2. Admission of the Facebook account records. Prior to
trial, the defendant objected to the Commonwealth's motion in
limine to admit Facebook account records pertaining to "an
account registered to Urbano Meola" and obtained by the
Commonwealth pursuant to a subpoena for business records
directed to Facebook under Mass. R. Crim. P. 17. In particular,
the defendant argued that the records in question were not
"certified," because there was no affidavit from a keeper of the
records or a witness who would identify them as business records
maintained by Facebook. In response, the prosecutor explained
that a request for the records had been made to Facebook via the
Internet through the Facebook "online request system," asking
that the records be delivered to the court clerk's office. The
prosecutor indicated that she had a copy of the records, and she
assumed a copy was in the clerk's office.14 However, there was
14The prosecutor further explained, "I know that the policy
of Facebook is, being a newer company, they sent a basically
encrypted link to us to allow us to access them, and my
understanding is that that link was also sent to the clerk's
office. Whether or not the clerk's office opened it, I'm not
sure." Later, the judge reported that the "clerk's office does
not have any envelopes regarding the defendant. I don't know
that that's specifically what you said would have happened.
. . . They would have sent some type of electronic
communication to the court?" The prosecutor responded
affirmatively, "because that is what the Commonwealth received.
And our request and the order was that it be sent to the clerk's
12
neither a showing that such records were received by the clerk's
office nor any evidence to support their authentication.
Without resolving the disagreement over whether the Facebook
account records had been authenticated, the judge ruled that the
records in question were not admissible because the Commonwealth
did not comply with rule 17. See Commonwealth v. Hart, 455
Mass. 230, 243 (2009) (when records are subpoenaed before trial
pursuant to Mass. R. Crim. P. 17 [a] [2], record keeper must
deliver them to clerk's office; thereafter, judge may allow
parties and their attorneys to inspect and copy them; such
records should not be delivered directly to requesting party).
On appeal, the Commonwealth does not take issue with this
ruling.15 The question before us thus becomes whether the judge
abused his discretion or committed palpable error in determining
that, even without the benefit of the Facebook account records,
a fact finder could find that it was more likely than not that
the Facebook message was authentic and, in particular, that it
was sent by the defendant.16
office, and we received it, and my understanding was that the
clerk's office would also receive it."
15The Facebook account records were not marked for
identification and are not part of the record before us.
16There was a separate requirement that the video be
authenticated apart from the Facebook message. That requirement
was satisfied by the direct evidence consisting of the testimony
of the victim and others that she received the video as part of
13
3. Authentication of the Facebook message. The defense
challenged the admission of the Facebook message by means of a
pretrial motion in limine,17 on grounds that there was an
insufficient factual basis to establish that the message
received by the victim to which the video was attached was a
communication sent by the defendant. In Purdy, 459 Mass. 442,
the Supreme Judicial Court clarified the test for authenticating
digital evidence that is not self-authenticating18 and where
there is no direct evidence available.19 First, Purdy makes it
a Facebook message and that the video depicted the defendant,
Urbano Meola.
17"Motions in limine concerning the introduction or
exclusion of purportedly relevant evidence are properly made and
considered before and during trial, in advance of the evidence
being offered." Commonwealth v. Spencer, 465 Mass. 32, 42
(2013). See Mass. G. Evid. § 103(f) (2019).
18Self-authenticated documents include copies of documents
recorded or filed in a public office and bearing "the
attestation of the officer who has charge of the item . . . ."
Mass. G. Evid. § 901(b)(7)(B) (2019).
19There is direct evidence of authentication where, for
example, someone with personal knowledge testifies that an item
is what it is claimed to be. See Commonwealth v. LaCorte, 373
Mass. 700, 704 (1977) (authentication established by "testimony
from the officer who had taken the defendant's fingerprints that
the proffered card was the one used in the fingerprinting"). In
the case of business records, authentication can be established
if a witness testifies that he is familiar with the business's
record-keeping system and that the records in question "were
made in good faith, kept in the normal course of business," made
before the civil or criminal proceeding in which they are
offered, and were relied on by the business's personnel.
Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 480 (2017).
14
clear that there is no requirement that there be direct evidence
to support a determination that a digital communication was sent
by the defendant. Rather, a judge making this threshold
determination may consider circumstantial evidence and look to
"'confirming circumstances' sufficient for a reasonable jury to
find by a preponderance of the evidence that the defendant
authored the [electronic communication; here, the Facebook
message containing the video]." Id. at 450, citing Commonwealth
v. Hartford, 346 Mass. 482, 488 (1963).20 Second, Purdy, supra,
makes it clear that the mere possibility that a digital
communication was fraudulently sent by someone other than the
person associated with a particular social media or e-mail
account from which the communication originated is not a bar to
its authentication.21 The principles set forth in Purdy are
embodied in Mass. G. Evid. § 901(b)(11), and we have applied
20Direct or circumstantial evidence may authenticate
proffered evidence. Such authenticating evidence may include
the "appearance, contents, substance, internal patterns, or
other distinctive characteristics of the item, taken together
with all the circumstances." Mass. G. Evid. § 901(b)(4).
21See Purdy, 459 Mass. at 450, quoting United States v.
Safavian, 435 F. Supp. 2d 36, 41 (D.D.C. 2006) ("The possibility
of alteration does not and cannot be the basis for excluding e-
mails as unidentified or unauthenticated as a matter of course,
any more than it can be the rationale for excluding paper
documents").
15
them in a number of decisions.22 Third, in the absence of direct
evidence, the common-law principles that have guided judges in
determining, as a preliminary matter, whether written documents
are authentic, see Mass. G. Evid. § 901(b)(4), are applicable to
authentication issues in the context of digital communications.
See Purdy, 459 Mass. at 448-450. See also United States v.
Browne, 834 F.3d 403, 412 (3d Cir. 2016) ("[I]t is no less
proper to consider a wide range of evidence for the
authentication of social media records than it is for more
traditional documentary evidence. The authentication of
electronically stored information in general requires
22See, e.g., Gilman, 89 Mass. App. Ct. at 758-759
(sufficient confirming circumstances demonstrating that
defendant authored Facebook messages attributed to him where
account from which messages originated bore his name and
picture, messages were downloaded from hard drives of two laptop
computers issued to him by his employer and to which only he
knew passwords, corroborating text messages initiating Facebook
exchanges were sent from defendant's cell phone to victim's cell
phone, and chats were "replete with personal references,"
including to events in which only defendant and victim
participated and their nick names for each other); Oppenheim, 86
Mass. App. Ct. at 368 (sufficient confirming circumstances
linking defendant to instant message communications included
"familiar tone of the exchange," and defendant's reference in
instant message to specific information from prior discussions
with recipient); Commonwealth v. Amaral, 78 Mass. App. Ct. 671,
674-675 (2011) (e-mail communications properly authenticated by
defendant's conforming behavior in waiting at specific time and
place to meet undercover officer posing as underage prostitute
and defendant's answering his cell phone when officer called).
See also Connolly, 91 Mass. App. Ct. at 588 (requirement of
authentication applied to testimony by police witness concerning
contents of missing videotape).
16
consideration of the ways in which such data can be manipulated
or corrupted, . . . and the authentication of social media
evidence in particular presents some special challenges because
of the great ease with which a social media account may be
falsified or a legitimate account may be accessed by an imposter
. . . . But the authentication rules do not lose their logical
and legal force as a result"); Mass. G. Evid. § 901(a), (b)(4).
In response to the judge's request for an offer of proof
concerning the authentication of the Facebook message to which
the video was attached, the prosecutor informed the court that
the message was received by the victim as a "Facebook message"
on her cell phone as described above, that the victim had not
seen or heard from the defendant during the past six or seven
years, that the name on the account of the sender of the message
was that of the defendant, "Urbano Meola," and that the video
appeared to be self-authored. The judge also had been informed
that the Facebook message included a photograph of the
defendant's biological daughter (the victim's half-sister) and
that several days after the victim received the offensive
Facebook message, she received a "friend request" from the same
account. The judge ruled that the video was admissible and that
he would allow the victim to testify as to how she believed the
video had come to her.
17
Although we have not found a Massachusetts case or a
published opinion from another jurisdiction with facts exactly
like those involved in this case, we conclude that the judge did
not abuse his discretion in determining that the foundational
facts constituted sufficient confirming circumstances to
authenticate the Facebook message as having been sent by the
defendant. First, we are mindful that the standard of review as
to a judge's preliminary determination of authentication is
deferential. See Leonard, 428 Mass. at 786 (prior bad act
evidence). Moreover, by its nature, the judge's preliminary
determination under Mass. G. Evid. § 104(b) is not conclusive
and requires the finders of fact to make their own independent
determination of the same question before they may consider the
evidence. See Commonwealth v. Alden, 93 Mass. App. Ct. 438, 443
(2018) (trial judge instructed jury that "before they could
consider the content of the text messages, the jury must be
satisfied by a preponderance of the evidence that the messages
had been sent by the defendant"). "Thus, after the proponent of
the evidence has adduced sufficient evidence to support a
finding that the proffered evidence is what it is claimed to be,
the opposing party remains free to challenge the reliability of
the evidence, to minimize its importance, or to argue
alternative interpretations of its meaning, but these and
similar other challenges go to the weight of the evidence -- not
18
to its admissibility" (quotation, citation, and emphasis
omitted). United States v. Vayner, 769 F.3d 125, 131 (2d Cir.
2014). See Commonwealth v. Parrotta, 316 Mass. 307, 313
(1944).23 Second, there is nothing in Purdy, the seminal
Massachusetts decision on the authentication of digital
evidence, or any other authoritative decision from Massachusetts
or any other jurisdiction of which we are aware that precludes a
judicial determination that digital evidence may be
authenticated circumstantially based on its contents and the
surrounding circumstances, even where, as here, there was no
evidence of: a course of dealing between the defendant and the
victim prior to the victim's receipt of a digital communication,
account information supplied by the social media platform
through which the message was sent, the Internet protocol (IP)
address of the computer or device from which the message was
sent,24 or evidence that a copy of the message was found on a
23As noted earlier, the instant case was tried before a
judge without a jury. The defendant did not file any requests
for rulings of law. See Mass. R. Crim. P. 26, 378 Mass. 897
(1979). "A trial judge sitting without a jury is presumed,
absent contrary indication, to have correctly instructed himself
as to the manner in which evidence is to be considered in his
role as factfinder." Commonwealth v. Batista, 53 Mass. App. Ct.
642, 648 (2002).
24"All computers that connect to the Internet identify each
other through a unique string of numbers known as an . . . IP
address. . . . In general, when a subscriber purchases Internet
service from an Internet service provider (ISP), the ISP selects
from a roster of IP addresses under its control and assigns a
19
device in the possession or under the control of the defendant.25
Here, the judge not only had evidence that the Facebook message
was from an account in the name of "Urbano Meola," but he also
had evidence that the attached video depicted the "Urbano Meola"
who is the defendant. And, the content of the attached video
revealed highly intimate and personal details about the
defendant that, because it was self-authored,26 would be known
only to the defendant or someone with whom he chose to share it.
There was no evidence before the judge that the attached
videotape had been shared with anyone else or otherwise
published. Simply because evidence is digital or electronic in
nature, as opposed to documentary, does not necessarily mean
that it is widely available to others or to anyone other than
its maker. Finally, the Facebook message also included a
profile picture of the defendant's biological daughter. Again,
unique IP address to the subscriber at a particular physical
address. . . . The IP address assigned to a particular
subscriber may change over time, but the ISP keeps a log of
which IP address is assigned to each subscriber at any given
moment in time." Commonwealth v. Martinez, 476 Mass. 410, 410–
411 (2017).
25See Parker v. State, 85 A.3d 682, 687-688 (Del. 2014).
See also United States v. Sutton, 426 F.2d 1202, 1207 & n.37
(D.C. Cir. 1969), quoting 7 J. Wigmore, Evidence § 2148 (3d ed.
1940).
26As noted earlier, Detective Crowell described the video
in question as having been taken "from down below, looking up
towards the person in the video."
20
there was no evidence before the judge that this image had been
published or was generally available to persons other than the
defendant. And, the victim received a follow-up "friend
request" from the same account a few days after she received the
offensive videotape. Bearing in mind that "the possibility of
alteration does not and cannot be the basis for excluding e-
mails as unidentified or unauthenticated as a matter of course,"
Purdy, 459 Mass. at 450 (citation and emphasis omitted), we
conclude that these "confirming circumstances" provided a basis
for the judge's preliminary determination under Mass. G. Evid.
§ 104(b), that the Facebook message was an authentic
communication from the defendant.27 We reiterate, however, that
in order to authenticate a digital communication such as a
Facebook message, the proponent of the evidence must present
"confirming circumstances" beyond simply the fact that the
message was sent from an account in the name of the alleged
author.28
27See generally Grimm, Cappa, & Joseph, Authenticating
Digital Evidence, 69 Baylor L. Rev. 1, 11 (2017) ("It is a
mistake for a judge to require the party introducing digital
evidence to prove that no one other than the purported maker
could have created the evidence if the introducing party has
shown that, more likely than not, it was created by a particular
person, unless there is evidence [not argument] that some other
person could have done so").
28Cases illustrating deficiencies in the evidence offered
to authenticate electronic communications include the following:
Devbrow v. Gallegos, 735 F.3d 584, 586-587 (7th Cir. 2013)
21
4. Sufficiency of the evidence. When we review the denial
of a motion for a required finding of not guilty, we ask
"whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt"
(emphasis omitted). Commonwealth v. Latimore, 378 Mass. 671,
677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318–319
(1979). A fact finder may draw inferences based on common
experience, so long as the inferences are reasonable and
possible, even though not necessary. See, e.g., Commonwealth v.
Mazariego, 474 Mass. 42, 46 (2016). In assessing the
sufficiency of the evidence, at least in cases where it is based
in part on the testimony of witnesses, we also bear in mind that
"[t]he weight . . . of the witnesses' testimony [is] solely for
the fact finder and [is] not [a] proper subject[] for appeal"
(plaintiff failed to authenticate e-mail he allegedly received
from defendant prison official where no circumstantial evidence
presented indicating it was genuine); State v. Eleck, 130 Conn.
App. 632, 641-642 (2011) (messages shown to have originated from
Facebook account were not authenticated in circumstances in
which account holder testified that her account had been hacked
and content of messages did not bear any distinctive
characteristics suggesting that they were sent by account
holder); Smith v. State, 136 So. 3d 424, 434 (Miss. 2014)
(authentication of Facebook messages not established by evidence
that they originated from account in defendant's name and were
accompanied by "small, grainy, low-quality photograph" that
could not be determined to be that of defendant). See also
United States v. Jackson, 208 F.3d 633, 638 (7th Cir. 2000).
22
(citation omitted). Commonwealth v. Lewis, 91 Mass. App. Ct.
651, 663 (2017).
In the present case, on the basis of the Facebook message
from "Urbano Meola" to the victim, including a profile picture
of the defendant's biological daughter (the victim's half-
sister), accompanied by what could be found to be a self-
authored video of the defendant, unclothed and touching his
penis and anus, along with the evidence that the defendant, his
biological daughter, the victim's mother, and the victim lived
in the same household for six years, the judge, as the finder of
fact, was warranted in concluding beyond a reasonable doubt that
the defendant purposefully disseminated matter harmful to a
minor to the victim, knowing that she was a minor, in violation
of G. L. c. 272, § 28. See Commonwealth v. Mienkowski, 91 Mass.
App. Ct. 668, 673 (2017). Accordingly, there was no error in
denying the defendant's motion for a required finding.
Conclusion. For the above reasons, the Facebook message
was sufficiently authenticated as having been sent to the victim
by the defendant. The defendant's motion in limine seeking its
exclusion from evidence was properly denied. The judge, as the
finder of fact, was warranted in considering that the Facebook
message was sent by the defendant. Taken as a whole, the
evidence presented by the Commonwealth was sufficient to permit
23
the judge to conclude beyond a reasonable doubt that the
defendant violated G. L. c. 272, § 28.
Judgment affirmed.