Opinion
16-P-367
04-20-2017
COMMONWEALTH v. Jason WILLARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant, Jason Willard, was convicted of a single count of indecent assault and battery. On appeal, the defendant claims that the admission of instant message conversations purporting to take place between the defendant and the victim, who was the niece of his then-wife, was improper. The defendant also asks this panel to overrule the doctrine of first complaint. See Commonwealth v. Aviles, 461 Mass. 60, 69 (2011). We affirm.
The jury acquitted the defendant of two additional counts of indecent assault and battery, as well as two counts of open and gross lewdness.
1. Instant message conversations. The defendant claims the trial judge erred in admitting in evidence seven instant message conversations between the defendant and the victim, arguing that the Commonwealth presented insufficient evidence to provide a foundation for their authenticity. There was no objection at trial, and we therefore review the claim of error for a substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. 838, 845–846 (2010).
We note that the defendant did not include the challenged messages in his record appendix.
--------
"Evidence may be authenticated by direct or circumstantial evidence, including its ‘[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics.’ " Commonwealth v. Purdy, 459 Mass. 442, 447-448 (2011), quoting from Mass. G. Evid. § 901(b)(1)(4) (2013). The proponent of an item of evidence purportedly authored by a defendant must prove its authenticity "by a preponderance of the evidence." Id. at 447.
A showing merely "that the defendant's name is written as the author" of an electronic communication, or that the communication originates from a social networking account bearing a defendant's name "is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant." Id. at 450. "There must be some ‘confirming circumstances' sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored" the messages. Ibid.
Here, the Commonwealth presented substantial evidence that the messages were authored by the defendant, both at the time of admission through the testimony of the victim, and subsequently through the testimony of the defendant's ex-wife. The victim testified to her receipt of the messages at issue, and indicated that she knew the username on the messages to belong to the defendant. She testified that her aunt, the defendant's then-wife, had "purchased software" to retrieve the messages. The messages themselves made multiple references to the defendant's position as a law enforcement officer and, in them, the defendant asked the victim not to tell her friends about his identity. The defendant later texted her on her cellular telephone with messages distinctly similar to those admitted in evidence.
The defendant's ex-wife also identified the screen name at issue as the defendant's, and indicated that it was "also his ... email address." She testified that she located the messages in question on the family computer using a "spy program." At the time she retrieved the messages, the family computer was located in the basement of the home, and her children were all under the age of ten.
This evidence was amply sufficient to permit the jury to infer by a preponderance of the evidence that the defendant was the author. There was no error.
2. First complaint doctrine. The defendant asks that we order the doctrine of first complaint "abolished." Absent from the defendant's argument is "any authority for this court's power to overrule a decision of the Supreme Judicial Court or to decline to follow the holding of that court's opinions." Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003). In fact, the "argument that this court should overrule the Supreme Judicial Court's decision ... is frivolous, as we lack any such power." Commonwealth v. Healy, 26 Mass. App. Ct. 990, 991 (1988). "[F]rom the very earliest decisions we issued and continuing to this day, we have uniformly and unequivocally held we have no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided." Dube, supra.
Judgment affirmed.