Commonwealth v. Meola

• Decision Date: 22 May 2019
• Docket Number: No. 18-P-83,18-P-83
• Citation: 125 N.E.3d 103,95 Mass.App.Ct. 303
• Parties: COMMONWEALTH v. Urbano MEOLA.
• Court: Appeals Court of Massachusetts

95 Mass.App.Ct. 303

125 N.E.3d 103

COMMONWEALTH

v.Urbano MEOLA.

No. 18-P-83

Appeals Court of Massachusetts, Middlesex..

Argued November 1, 2018.

Decided May 22, 2019.

Mehmet Baysan for the defendant.

Benjamin Lees (Kevin J. Curtin, Assistant District Attorney, also present) for the Commonwealth.

Present: Agnes, Blake, & Neyman, JJ.

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 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 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 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 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 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

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 v. Plymouth, 374 Mass. 206, 210, 372 N.E.2d 212 (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, 20 N.E.3d 967 (2014).¹²

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 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, 945 N.E.2d 372 (2011) ; Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366-367, 16 N.E.3d 502 (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, 705 N.E.2d 247 (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, 81 N.E.3d 1173 (2017), citing L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (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 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...