Opinion
19-P-1807
01-04-2021
COMMONWEALTH v. JOSE R. MARTINO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court jury found the defendant, Jose Martino, guilty of indecent assault and battery on a child over fourteen. See G. L. c. 265, § 13H. On appeal he contends that the trial judge erred in permitting the introduction of evidence of FaceTime calls, in the form of screenshots, between the child, T.H., and a witness, M.W., without proper authentication. We affirm.
"FaceTime allows secure video calling between select Apple devices . . . . To use FaceTime, a caller enters an intended recipient's e-mail address or telephone number into the caller's device . . . . Once connected, the devices transmit audio/video data as packets across the secure communication path." VirnetX, Inc. v. Cisco Sys., 767 F.3d 1308, 1314 (Fed. Cir. 2014). In common usage, FaceTime refers to the application developed by Apple, Inc. as they own the trademark. Facetime®. 2010. Apple Inc., Cupertino, CA, USA.
Background. We briefly summarize the facts pertinent to the appeal as the jury may have found them. The defendant lived downstairs from T.H. and she knew him as the father of a classmate. On July 26, 2016, he knocked on her door, and once inside, touched her on her buttocks and attempted to pull up her shorts. When T.H. tried to move away, the defendant blocked her passage and tried to kiss her. T.H. pushed the defendant away. At this point, T.H.'s friend, M.W., called T.H. and asked if T.H. wanted to talk via FaceTime. M.W. then used her brother's cell phone to call T.H. via FaceTime twice in succession.
T.H heard the defendant leave the apartment while on FaceTime, at which point she told M.W. that the defendant had tried to kiss her and touched her butt. M.W. overheard a man's voice and heard a door close, but did not see who it was. That night T.H. went to the police station with her mother, brother, and friend to report the assault.
During the course of their investigation the police obtained screen shots of T.H's and M.W.'s cell phone call logs and contacts. At trial both T.H. and M.W. testified. T.H. testified that M.W.'s brother's cell phone number was saved on her cell phone as B-A-L. M.W. testified that T.H.'s cell phone number was saved on her brother's phone as "Taquito." Both call logs showed telephone and FaceTime calls placed and received between 12:38 P.M. and 12:54 P.M. on the respective cell phones. The Commonwealth introduced the screen shots of the contacts and digital call logs from both cell phones into evidence.
Discussion. The defendant contends that the trial judge erred in admitting screenshots of cell phone and FaceTime calls between T.H. and her friend, M.W., without proper authentication. The defendant filed a motion in limine prior to trial to preclude the Commonwealth from introducing the screenshots. We therefore review for prejudicial error. See Commonwealth v. Grady, 474 Mass. 715, 716 (2016); Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
The screenshots are digital evidence. See Commonwealth v. Meola, 95 Mass. App. Ct. 303, 307-308 (2019). See also Mass. G. Evid. § 901(b)(11) (2020); Mass. G. Evid. Supp. § 1119(a)(1). Electronic communications may be authenticated by "confirming circumstances that would allow a reasonable jury to conclude that this evidence is what its proponent claims it to be." Commonwealth v. Alden, 93 Mass. App. Ct. 438, 440 (2018), quoting Commonwealth v. Purdy, 459 Mass. 442, 450 (2011). See also Mass. G. Evid. § 901(a) (2020); Mass. G. Evid. Supp. § 1119(b) (2020). The defendant contends that the Commonwealth did not present sufficient confirmatory circumstances to permit a reasonable jury to find that the information regarding the person contacted and the time and date reflected in the screenshots of the digital call log in cell phones were accurate.
The Commonwealth introduced paper copies of digital call logs from T.H.'s and M.W.'s mobile phones. See Mass. G. Evid. Supp. §1119(c) (2020). The defendant's challenge to the admissibility of the paper copy under the best evidence rule is misplaced. The printouts of the digital records were admissible because the best evidence rule does not apply to digital records. See Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 759-760 (2016), quoting Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 356 n.10 (2013) ("The best evidence rule does not forbid the use of copies of electronic records . . . because there is no original in the traditional sense").
"The role of the trial judge in jury cases is to determine whether there is evidence sufficient, if believed, to convince the jury by a preponderance of the evidence that the item in question is what the proponent claims it to be." Purdy, 459 Mass. at 447. See Commonwealth v. Webster, 480 Mass. 161, 170 (2018); Meola, 95 Mass. App. Ct. at 310-311. Although electronic communications present their own opportunities for false claims of authorship, "the basic principles of authentication are the same." Purdy, supra at 450. "Authenticity is usually proved by testimony of a witness either '(1) that the thing is what its proponent represents it to be, or (2) that circumstances exist which imply that the thing is what its proponent represents it to be.'" Commonwealth v. Williams, 456 Mass. 857, 868 (2010), quoting Commonwealth v. Nardi, 452 Mass. 379, 396 (2008). We review the judge's ruling for an abuse of discretion. See Meola, supra at 309.
The evidence was sufficient to confirm that the screenshot and call logs were what they were represented to be. Unlike most of the reported cases, see, e.g., Purdy, 459 Mass. at 448; Williams, 456 Mass. at 869, there was direct evidence from both parties to the calls. At trial, the caller and recipient testified to the identities of contacts stored in their cell phones, the date they remembered the calls being made, what was said and heard, and that the screenshots were provided to the investigating officer. T.H. identified the contents of the call log as originating from her cell phone. M.W. corroborated that she placed a telephone call and two FaceTime calls from her brother's phone to T.H. on the date of the offense. M.W. confirmed that the screenshot admitted into evidence accurately recorded the time and date of the FaceTime calls she made to T.H. M.W. further testified that T.H.'s contact was saved as "Taquito" on her brother's phone, that there was a picture of T.H. attached to the contact, and that she regularly used her brother's phone to call T.H. using FaceTime. Both witnesses testified that M.W.'s brother's contact was saved as "B-A-L" on T.H.'s phone. The timing of the placement and receipt of the calls corresponded. The evidence was more than sufficient to authenticate the call logs and contact information. See Commonwealth v. Lopez, 485 Mass. 471, 478 (2020); Webster, 480 Mass. at 170.
The defendant's reliance on Williams, 456 Mass. at 868-869, is misplaced. In Williams there was no testimony from the person who sent the communication, nor was there any evidence regarding whether others could obtain access to the MySpace page belonging to the defendant's brother. Here, both parties to the communication testified, and the uncertainty identified in Williams was not present. See generally Commonwealth v. Woollam, 478 Mass. 493, 498-499 (2017). The trial judge did not err in admitting the screenshots.
Judgment affirmed.
By the Court (Meade, Sullivan & Sacks, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 4, 2021.