State v. Acosta
| Decision Date | 05 May 2021 |
| Docket Number | A169268 |
| Citation | 489 P.3d 608,311 Or.App. 136 |
| Court | Oregon Court of Appeals |
| Parties | STATE of Oregon, Plaintiff-Appellant, v. Adrian Alexander ACOSTA, Defendant-Respondent. |
Christopher Page, Assistant Attorney General, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Nora Coon, Deputy Public Defender, argued the cause for respondent. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.
This case calls upon us to once again consider issues of authentication of digital evidence, as we recently did in State v. Sassarini , 300 Or. App. 106, 452 P.3d 457 (2019). The state challenges the trial court's exclusion of Facebook messages that were purportedly exchanged between defendant and a police detective setting up a methamphetamine delivery. The trial court ruled that the messages were inadmissible on two distinct grounds: (1) the state failed to authenticate the messages, and (2) they were hearsay in light of the state's inadequate showing that defendant was the declarant of those out-of-court statements, for purposes of an admission of a party opponent. This case therefore presents an additional question of digital evidence than contained in Sassarini : whether the identity of the declarant of a social media post, for purposes of an admission of a party opponent, is a gatekeeping question for the trial court, or is an issue of conditional relevancy to be decided by the jury. We conclude it is the latter, and, as we explain, resolving that issue of identity is accomplished through special jury instructions and, at times, a special verdict form, or an interrogatory verdict form. Here, we agree with the state that it produced sufficient evidence to support a finding that the Facebook account was defendant's and that he was the author of the messages, and we therefore reverse the ruling excluding them.
We begin with a summary of the context for the court's evidentiary rulings. Defendant was arrested in the parking lot of the Southgate Market and charged with unlawful delivery of methamphetamine, ORS 475.890, and unlawful possession of methamphetamine, ORS 475.894. To prove its case, the state planned to offer screen captures from a detective's cell phone showing that he had arranged a drug deal at that location with a Facebook profile with defendant's name and picture (the "Acosta profile").
Defendant moved pretrial to exclude evidence of the messages, arguing that the state could not establish that the Acosta profile was in fact his account or that he authored messages sent from that account. Consequently, defendant argued, the state had two problems. First, it could not authenticate the messages. See OEC 901 (). And, second, if the state could not establish that defendant authored the messages, their content was inadmissible hearsay. See OEC 802 (); OEC 801(4)(b)(A) ().
In response, the state argued that it could present evidence "to show that they are the defendant, defendant's account, as opposed to just some, some random person." To make that foundational showing, the state called Detective Wells, the narcotics detective for the Oregon State Police who arrested defendant. Wells testified that, as part of his undercover operations, he maintained a fictitious Facebook profile to communicate with persons involved in drug offenses. That fictitious profile was Facebook friends with people from all over the world, most of whom Wells did not even know. One of those friends was a profile named Adrian Acosta.
Wells explained that, on June 21, 2018, he observed a post " Based on his training as a narcotics detective, Wells understood that post to mean that the person was holding and looking to sell drugs, likely a stimulant like methamphetamine.
Wells testified that, a week later, on June 28, he used the Facebook Messenger app on his cell phone to initiate conversation with the Acosta profile, followed by a screenshot of the rocket fuel post and a message that read, "Just so happens i lookin." Wells and the Acosta profile then communicated through Facebook Messenger over the course of days about price and quantity (e.g. , "Okay homie can u do a zip" (meaning an ounce), and "Yeah I can its gonna be 520.is that alright homie"); those messages, which the state intended to offer at trial, were introduced as Exhibits 1 through 30 at the pretrial hearing.
In reference to those messages, Wells testified that there were several opportunities where the "profile of Mr. Acosta said that they were able to meet me but I wasn't able to due to other operations or being on days off or whatever." Wells explained that he made numerous excuses for why he could not meet until July 3, and he avoided all attempts by the Acosta profile to contact him by phone (the screen captures reflect 33 missed calls from the Acosta profile between June 28 and July 3).
The screen captures for Monday, July 2, show a message from Wells asking, The Acosta profile responds, "520 and I am in Winston," and later, "Call my number g," followed by a 10-digit number with a 541 area code. Those messages are then followed by messages from Wells stating, "I tried callin ur number and text...u get it?" and "Sorry g lets just meet up where?" Later, Wells asks, "Hey bro any word," and the Acosta profile responds, "Yeah here at Sonia house in Winston come through g."
Wells testified that, based on "the profile telling me he was at Sonya's in Winston, *** we set up surveillance on Sonya's in Winston"—a residence that had had several drug complaints over the past year. He further testified that, on July 3, he saw defendant come out of that residence.
The screen captures for messages dated July 3 show Wells asking the Acosta profile to bring the drugs to him at the "Southgate market." The Acosta profile agrees and states, "I will let you know when I am close and I will be in a lifted truck." Wells testified that, on the previous day, he had seen defendant in a "higher truck, of standard height or slighter lifted, a gray F250."
The screen captures reflect that the Acosta profile and Wells exchanged a series of messages about when the Acosta profile would leave the Sonya residence. One message from the Acosta profile states, "K ill let you know when my ride get here k," and that it would be "15 25 minutes at the latest would be 45 minutes k." After another inquiry from the Wells profile, the Acosta profiles states, "I'm on my way in ten minutes k g."
Wells testified that he received the "I'm on my way in ten minutes" message at 6:36 p.m., and that a gray pickup arrived at 6:44 p.m. at Sonya's residence. The pickup was a "lowered pickup." Wells saw defendant come out of the Sonya residence, put a backpack in the back of the truck, and get into the right front seat of the truck. The pickup backed out of the driveway and headed towards Main Street in Winston. Wells testified that, as the truck was leaving the Sonya residence, he received a message from the Acosta profile stating, "Let u know when I'm there g k."
Wells and another detective followed the pickup and, as they neared Kelly Corner at Highway 42 and Roberts Creek Road, Wells received a message from the Acosta profile stating, "Be at the spot in 10 homie." Wells testified that they were about 10 minutes from Southgate at that point, so 10 minutes "was pretty consistent with where we were at." The final message Wells received from the Acosta profile was at 6:54 p.m., and it said "Here." Wells testified that, "at that point, we were within a minute of arriving at the Southgate Market."
Wells testified that he and the other detective pulled in behind the gray truck in the Southgate Market parking lot and ordered the three occupants out of the vehicle. The truck had a standard cab and three seats: Defendant was in the right front seat, Tuell was in the middle seat, and Evans was in the driver's seat. Wells testified that he advised defendant of his rights, told him that he had "set him up," recounted some of their conversation, and asked where the drugs were. Defendant eventually stated, During the arrest, police seized a cell phone that was sitting on top of Tuell's purse, which Wells testified was "underneath their legs on the right side of the truck," within reach of where defendant was sitting. Wells testified that defendant had told him that "he had a cell phone in the truck," and that Tuell "acknowledged that it was [defendant's] cell phone."
During the course of his testimony, particularly during cross-examination, Wells acknowledged the limits of his investigation. He "never physically saw [defendant] text, texting or messaging off of a phone or anything other kind of electronic device." Police never attempted to get information from Facebook about who set up the profile or when it was set up, and Wells had relied on the appearance of the Facebook account—the name and photographs. And, police never searched the phone found in the truck.
Wells was the only witness at the pretrial hearing, and the court then heard arguments on de...
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State v. Jesenya O.
...was, standing alone, insufficient to establish that the messages were issued by Child or from her account. See State v. Acosta , 311 Or.App. 136, 489 P.3d 608, 625 (2021), appeal dismissed and opinion vacated on other grounds, 369 Or. 338, 504 P.3d 1178 (2022) (concluding that the appearanc......
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State v. Jesenya O.
...messages was, standing alone, insufficient to establish that the messages were issued by Child or from her account. See State v. Acosta, 489 P.3d 608, 625 (Or. Ct. App. 2021), appeal dismissed and opinion vacated on other grounds, 504 P.3d 1178, (Or. 2022) (concluding that the appearance of......