State of Delaware v. Roberto M. De Jesus-Martinez

IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE )
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v. ) Cr.A. No: 1311020126
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ROBERTO M. De J ESUS—MARTINEZ, )
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Defendant. )
Submitted: 7 November 2014
Decided: 5 December 2014
Kristina Kontis, Esquire Michael W. Modica, Esquire
Deputy Attorney General 715 King Street, Suite 300
Delaware Department of Justice PO. Box 437
820 N. French Street, 7th Floor Wilmington, DE 19899
Wilmington, DE 19801 Attorneyfor Defendant
Allomeyfor the State
DANBERG, J.
DECISION ON DEFENDANT’S MOTION FOR JUDGMENT OF AC UITTAL
UNDER RULE 291a! AND DECISION AFTER TRIAL
Defendant Roberto M. De Jesus Martinez (“Martinez”) was arrested on December 1,
2013 and charged with the offense of harassment in Violation of 11 Del. C. Section 131 1(a)(2)_
Martinez was arraigned on January 17, 2014, and waived his right to 3 Jury Trial. A bench triai
was held on August 18, 2014. This is the Court’s decision after trial.
PROCEDURAL BACKGROUND
On December 1, 2013, Martinez was arrested and charged with harassment. On January
17, 2014, he pled not guilty, and requested a trial by jury. On April 2, 2014, Maltinez waived his
right to trial by jury, and. trial was set for May 28, 2014. On May 28, 2014, trial was continued
to August 18, 2014.
At the defendant’s bench trial, the State called two witnesses, the victim, .lulissa Baez
(“Baez”) and Corporal Jesus Caez (“Corporal Caez”) of the Wilmington Police Department, who
was the investigating and arresting officer.
After the state rested, Martinez, through counsel, made a timely Motion for Judgment of
Acquittal. The Court reserved decision. After which, the defense rested, and the Court took the
matter under advisement. On September 19, 2014 the State Supreme Court issued a decision in
Lum v. State, in which the court ruled that it was error to reserve on a Motion for Judgment of
1 Because of the apparent applicability of Lam to
Acquittal made prior to the close of evidence.
the present case, the court requested legal memoranda from the parties. Written arguments were
due to be submitted on or before 7 November 2014. In his communication with the court and
counsel on Lum, the defendant averred the Court’s error was not prejudicial to the defense,
obviating the need for further argument or briefing on the issue. This is the Court’s ruling on
both the Motion for Judgment of Acquittal under CCP Criminal Rule 29(a) and the Decision
after Trial.
FACTS
The Court finds the following facts baSed upon the evidence presented. The parties know
each other because Baez and Martinez are related. Martinez is Baez’s maternal uncle. Baez was
‘ Lam v. Slate, Del. Supr., 2014 WL 4667089 at *2 (Sep. 19,2014).
2
that a reasonable jury could reasonably find the document to be authentic. Furthermore, because
this proceeding is a bench trial, the Court as the sole trier of fact has the discretion to determine
the credibility of witnesses, and the weight to give to testimony and evidence. The Court finds
Baez to be credible, and her testimony to be adequately supported by circumstantial evidence.
Accordingly, this Court finds that the circumstantial evidence offered is more than sufficient to
establish that Martinez is the author of the comments.
Turning to Martinez’s second argument that he lacked the mens rear to commit the crime
of harassment because he did not intend the comments to reach Baez, the Court finds this
defense without merit.24 Delaware has long settled the issue that so long as the offender
performed the act, absent legal justification or provocation, he intended the natural and probable
consequences of the design of the act.25 Martinez’s comments were not general in nature, and
posted in response to a picture simply depicting a happy Thanksgiving scene, but were directly
aimed at the victim. Further, Martinez chose to publish the comments in a forum to which
mutual relations had access. A reasonable jury could conclude that Martinez did so knowing and
intending the comments to get back to Baez. M'artinez’s threats over social media infer that he
intended the natural and probable result — the creation of fear in Baez. Finally, the testimony by
Baez at trial shows that she interpreted Martinez’s threats over social media to be serious — Baez
relocated to an undisclosed location out of fear that Martinez would carry out his threats against
her.
The facts above indicate that Martinez possessed a clear intent to harass, annoy, or alarm
Baez. As stated above, Martinez, by publishing the comments in a forum on which mutual
relatives could read them, intended the natural and probable result of the design of that act,
24 Even casual users of social media sites such as Facebook quickly learn that writing a comment on a post created
by another user, even if the two are not friends, wiil be seen by the creating user on his or her profile page.
25 See I | De]. C. § 306(c)(1); see also Bantam: v. State of Delaware, Del. Supr., 85 A.2d 74], 751 (1952).
11
culminating in the creation of fear in Baez. Baez’s apprehension is demonstrated by her act of
relocating based on her perception of imminent danger posed by Martinez. Therefore, the State
has proven that Martinez acted with intent to harass, annoy or alarm.
Therefore, the Court finds that the State has proven each element of the crime of
harassment beyond a reasonable doubt.
was
IT IS HEREBY ORDERED that Defendant’s Motion for Judgment of Acquittal is
DENIED.
For the foregoing reasons, on the charge of harassment in violation of 11 Del. C. Section
1311(a)(2), the Court finds Defendant Robert De Jesus Martinez GUILTY. The Defendant is to
be scheduled for sentencing before this Judicial Officer.
IT IS SO ORDERED.
ce: Faye Holmes, Judicial Case Manager
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close with Martinez, but the relationship began to deteriorate two years prior to this incident,
when Baez was subpoenaed to testify about Martinez’s actions in an unrelated case.
Subsequently, on November 28, 2013, Baez created a Thanksgiving Facebook “post”
containing pictures of Baez and her family. The State introduced the Facebook page with the
pictures into evidence.
Comments on the picture were written and posted to her Facebook page in Spanish. The
State introduced the comments and. subsequent Facebook comments into evidence. Baez
translated these comments as “{tlhe war is not over. Let me get off of probation and the war will
start. Soon the actions will speak for themselves.” After reading the post, 33an was fearful of
what Defendant would do to carry out his threats. The threats came from her uncle, Martinez.
Baez knew the comments were written by Martinez because the name next to the comment listed
“Robert De Jesus” as the user, and the picture was of Martinez. Although Baez and Martinez
were not “Facebook friends” at the time of the post, they had been “friends” previously, and
Baez is familiar with the picture he uses as his Facebook picture. She confirmed the posted
comments were from Martinez and the associated picture was the one he uses on his Facebook
page. Further, in her Thanksgiving post, Baez “tagged” an aunt who is friends with “Carmen,”
another aunt of Baez. Carmen is Facebook friends with Martinez, which explains how Martinez
was able to access Baez’s Facebook page. Baez went to the Wilmington Police Department and
was referred to Corporal Caez. Thereafter, Baez relocated to an undisclosed location out of fear
that Martinez would carry out his threats against her.
Corporal Caez has worked for the Wilmington Police Department since March 2010. His
duties primarily consist of handling 911 calls and patrol, and he is frequently assigned to cases in
which the language used by those involved is Spanish because he speaks Spanish fluently.
Corporal Caez testified that on November 28, 2013, just after midnight, his Sergeant assigned
him to this case in order to translate as needed. Baez showed Corporal Caez a phone with the
above referenced Facebook comments. The Corporal translated the messages and found that
Baez’s translation was accurate. After securing an arrest warrant, Corporal Caez went to
Martinez’s home and arrested him.
The Court, as the trier of fact, is the sole judge of the credibility of the witnesses. The
Court finds the State’s witness to be credible and candid. Throughout her testimony on both
direct and cross examination, Baez appeared cooperative and frank.
PARTIES’ CONTENTIONS
First, Martinez contends that the State has not proven a primafacie case of harassment.
Specifically, Martinez argues that the State did not provide sufficient evidence or lay a
foundation sufficient to authenticate that the comments were written by Martinez. Martinez
argues that the State only offered circumstantial evidence that suggested that it was Martinez. In
support of this, Martinez contends that anyone who had access to Martinez’s Facebook page
could have written the comments. Second, Martinez argues that, even if he was the one who
authored the post, there is no evidence that the comments were intended for Baez because they
were not Facebook friends. Martinez asserts that he would not have known that the comment
would get back to Baez because they were not Facebook friends, and therefore he lacked the
mens rea to commit the crime, therefore he is not guilty.
The State argues that there is sufficient evidence to prove harassment. Baez testified that
she knew it was Martinez, and recognized his name, his photograph, and identified the
photograph as the one he uses on Facebook. Baez further testified that after reading his
comments, she felt afraid and worried, not knowing how far Defendant would go to carry out his
threats to her. Further, the State argues it has established the manner in which Martinez accessed
the Facebook photos. Concerning the second claim, the State posits that the fact that the
comment by Martinez was posted in a forum in which Martinez had reason to know they would
be seen by Baez, and the comment itself suggests it is intended for the recipient. The Court
reserved Judgment on the Motion, and the Defense rested.
DISCUSSION
A. Motion for Judgment of Acquittal
The standard for the Court to enter a judgment of acquittal is high under Delaware law.
Motions for Judgment of Acquittal are governed by Court of Common Pleas Criminal Rule
29(a), which provides that the Court, either upon motion or sua sponte, must enter a judgment of
acquittal for an offense “if the evidence is insufficient to sustain a conviction of such offense.”2
In the case sub‘judice, this requires the State to establish that the noted Facebook post originated
from Defendant, and that it was intended to reach Baez.
The judgment of acquittal motion “is tantamount to the former motion for directed
verdict.”3
A judgment of acquittal is a judicial determination that the case should not go to the
jury.4 A motion for acquittal will only be granted where the State has offered insufficient
evidence to sustain a verdict of guiit.5 In determining whether to grant the motion, the Court
must consider ail evidence in a light most favorable to the State.6
Delaware law provides that “a person is guilty of harassment when, with intent to harass,
annoy or alarm another person:
2 Ct. Com. Pl. Cl'im. R. 29(a).
331m v. 135m, Del. Super., 1 19 A.2d 894, 898 (1955).
4 Idaho
5 1d.
6 1d.
(2) Communicates with a person by telephone, telegraph, mail or any other form of
written or electronic communication in a manner which the person knows is likely to cause
annoyance, or alarm. . 3’7
1n ruling on the Motion, the Court must determine if the State met its burden to establish
a prima facie case the defendant communicated with the Victim with the requisite knowledge and
intent. To do so, the State must establish Martinez communicated with the defendant and he did
so with the intent to harass, annoy or alarm.8
Considering the evidence in the light most favorable to the State, it is clear the State has
met its burden. The State presenting Baez’s testimony that the posts in question did in fact come
from comments that were written by Martinez. The name next to the comments listed “Robert
De Jesus” as the user, and the picture was of Martinez and his two children. Baez had personal
knowledge that Martinez was in fact the user because Baez testified that, prior to being
subpoenaed to testify against Martinez in another case, she was friends with Martinez on
Facebook, had interacted with him Via his profile page and so was familiar with his Facebook
page. She indicated the photograph that appeared with the comment at issue was his Facebook
photo. Additionally, the State introduced evidence of the familial connections shared between
Baez and Martinez, and established that despite the fact that the parties were no longer friends,
Martinez could reasonably gain access to Baez’s page through family members that were friends
with both Baez and Martinez, and would thus have a reason to know the comments would reach
the intended target. The threats themselves offered contextual references to Martinez’s life,
supporting the State’s contention the comments originated from Martinez. A reasonable jury
could conclude that Martinez did so knowing and intending the comments to get back to Baez.
711 net. C. §l3II(a)(2).
31d.
Martinez’s threats over social media infer that he intended the natural and probable result 7 the
creation of fear in Baez. Finally, the testimony by Baez at trial shows that she interpreted
Martinez’s threats over social media to be serious m Baez relocated to an undisclosed location out
of fear that Martinez would carry out his threats against her. Viewing the evidence in the light
most favorable to the State, the Motion for Judgment of Acquittal must be and is hereby
DENIED.
B. Decision After Trial
The State has a burden of proving each and every element of this offense beyond a
reasonable doubt.9 As established case law indicates, a reasonable doubt is not a vague,
whimsical or merely possible doubt, “but such a doubt as intelligent, reasonable, and impartial
5:10
men may honestly entertain after a conscientious consideration of the case. A reasonable
doubt “means a substantial, wellwfounded doubt arising from a candid and impartial
consideration of all the evidence or want of evidence.””
Delaware law defines Harassment as follows:
A person is guilty of harassment when, with intent to harass, annoy
or alarm another person:
(2) Communicates with a person by telephone, telegraph,
mail or any other form of written or electronic communication in a
manner which the person knows is likely to cause annoyance or
alarm including, but not limited to, intrastate telephone calls
initiated by vendors for the purpose of selling goods or services;12
9 1 1 Del. C. § 301. See State v. Matushefske, Del. Super., 215 A.2d 443, 448 (1965); see also McDade v. State, Del.
Supra, 693 A.2d 1062, 1064 (1997).
m Matushefike, 2 l 5 A.2d at 449.
“ State v. Wrighl, 79 A. 399, 400 (Ct. Gen. Sess. 191 1); State v. Bennel, 2010 WL 5140762, at *3 (Del. Com. Pl.
Nov. 29, 2010).
:211 Del.C. §l3ll.
The Court as trier of fact is the sole judge of the credibility of each fact witness. If the
Court finds the evidence presented to be in conflict, it is the Court’s duty to reconcile these
conflicts, if reasonably possible, so as to make one harmonious story of it all. if the Court cannot
do this, the Court must give credit to that portion of the testimony which, in the Court’s
judgment, is most worthy of credit and disregard any portion of the testimony which in the
Court’s judgment is unworthy of credit. In doing so, the Court takes into consideration the
demeanor of the witness, their apparent fairness in giving their testimony, their oppmtunities in
hearing and knowing the facts about which they testified, and any bias or interest that they may
have concerning the nature of the case. The linchpin of this case is whether the State has proven
the Faeebook comment originated from the Martinez. To so prove, the State must establish the
authenticity of the Facebook comment.
Under the Delaware Rules of Evidence, a social media post is a communication that
requires authentication before it can be admitted into evidence. To be admissible, there must be
“sufficient evidence presented to support a finding that the matter in question is what the
proponent claims.”13 Rule 901(b) provides that:
Authentication of social media can include: (1) testimony from a
witness who states that the evidence is what it claims to be, (2)
distinctive characteristics of the evidence itself, such as
appearance, contents, substance, internal patterns or , other
distinctive characteristics, taken in conjunction with the
circumstances that can authenticate the documentary evidence, or
(3) evidence that shows that the documentary evidence is
accurately produced through a process or system.14
In order for the State to rely on the Facebook posts purportedly authored by Martinez, the
State must present sufficient evidence that establishes that the Facebook post is, in fact, what the
‘3 D R a 901(a)
M Parker 12. Stale, Del. Supr., 85 A.3d 682, 684 (2034) (discussing D.R.E. 901(b)(1), (4) and (9) as examples of
authentication or identification).
State claims it to be, that is, a communication of a threat by Martinez to Baez. Martinez claims
that the State has failed to meet its burden in this respect because the State failed to authenticate
the Facebook posts as Martinez’s. The instant case is analogous to Parker v. State of Delaware,
in which the Delaware Supreme Court held that a post on the Defendant’s social media network
page indicating her involvement in an assault was sufficiently authenticated as being authored by
the Defendant.15 in discussing the relevance and authentication of social media, the court in
Parker remarked that:
Social media has been defined as forms of electronic
communications, through which users create online communities
to share information, ideas, personal messages, and other content.
Through these sites, users can create a personal profile, which
usually includes the user’s name, location, and often a picture of
the user. On many sites, such as Facebook or Twitter, a user will
post content...to that user’s profile page delivering it to the
author’s subscribers. Often these posts will include relevant
evidence for trial, including party admissions, inculpatory or
exculpatory photos, or online communication between users. 16
in Parker, the Delaware Supreme Court, in analyzing the potential methods in
authenticating social media evidence, adopted the “Texas approach?” Authenticating electronic
evidence depends upon the facts and circumstances of the particular case.‘8 The Texas Court
found that this could include “direct testimony from a witness with personal knowledge,
19 a
as 1,
comparison with other authenticated evidence, or circumstantial evidence. urthermore, the
Court held that the standard for determining the admissibility of evidence is “Whether a jury
20
could reasonably find the proffered evidence authentic.” in holding that the State has
sufficiently authenticated the defendant’s social media posts and pictures, the Texas Court found
'5 85 A.3d at 688.
'6 Id. at 685 (internal citations omitted).
'7 The Delaware Supreme Court found that, in analyzing this alternative approach of authentication, the case Tiena’a
v. State of Texas, 358 S.W.3d 633 (Tex. Crim. App. 2012) best represented this method.
‘3 Tienda, 358 S.W.3d 633, 639 (Tex. Crim. App. 2012).
‘9 Parker, 85 A.3d at 687 (quoting Tienda, 358 S.W.3d at 638).
2“ 1d. at 688
that the combination of facts, including photos and contextual references to the defendant’s iife,
was circumstantial evidence sufficient to support a finding by a rationai jury that the [social
’ In adopting this approach,
media] page offered into evidence was created by the Defendant.2
the Parker Court concluded that “social media evidence should be subject to the same
authentication requirements under the Delaware Rules of Evidence Rule 901(b) as any other
evidence.”22
In the instant case, the Court as the trier of fact is “the sole judge of the credibility of
witnesses and responsible for resolving conflicts in testimony.”23 Here, the State satisfied the
requirements established by Parker by presenting Baez’s testimony that the posts in question did,
in fact, come from comments that were written by Martinez. The name next to the comments
listed “Robert De Jesus” as the user, and the picture was of Martinez and his two children. Ban
had personal knowledge that Martinez was in fact the user because Baez testified that, prior to
being subpoenaed to testify against Martinez in another case, she was friends with Martinez on
Facebook, and interacted with him Via his profile page. She indicated the photograph that
appeared with the comment at issue was his Facebook photo. Additionally, the State introduced
evidence of the familial connections shared between Baez and Martinez, and established that
despite the fact that the parties were no ionger friends, Martinez could reasonably gain access to
Baez’s page through family members that were friends with both Baez and Martinez. The
threats themselves offered contextual references to Martinez’s life, discussing his status as a
probationcr, and what would potentialiy occur after his probation ended. The State has met the
standard codified in Rule 901(b), and illustrated in Parker, by introducing evidence sufficient
2‘ Id. at 645.
22 Parker, 35 A.3d at 687.
23 Knight v. State, Del. Supr., 690 A.2d 929, 932 (1996).
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