State v. Allcock

• Decision Date: 10 July 2020
• Docket Number: No. 2019-015,2019-015
• Court: Vermont Supreme Court
• Parties: State of Vermont v. Christina Marie Allcock

2020 VT 60

State of Vermont v. Christina Marie Allcock

No. 2019-015

Supreme Court of Vermont

September Term, 2019

July 10, 2020

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Windham Unit, Criminal Division

Michael R. Kainen, J.

David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Delaney Law Group, Barre, for Defendant-Appellant.

PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Dooley and Skoglund, JJ. (Ret.), Specially Assigned

¶ 1. ROBINSON, J. Defendant appeals her convictions for aggravated assault on a police officer, simple assault on a police officer, and impeding a police officer. She argues that her conviction for aggravated assault on a police officer must be reversed because the trial court erred in admitting Facebook messages that were not properly authenticated, and that the trial court should not have allowed the State to alter the elements of the impeding charge after the evidence was closed.¹ We reverse the conviction of aggravated assault and affirm the convictions of simple assault and impeding a police officer.

¶ 2. The evidence at trial, viewed in the light most favorable to the State, reflects the following. Law enforcement responded to an emergency call in March 2015 and discovered a man stabbed in defendant's residence. Defendant, her boyfriend, her parents, and her adult son were present when the officers responded to the call. While the officers were investigating the scene, defendant and some of the others left the residence and went to sit in defendant's father's car, which was parked outside. At some point an officer approached the vehicle, where defendant, her boyfriend, and her son were sitting in the back seat of the car. The doors were unlocked. When the officer tried to persuade defendant's son to get out of the car to speak with him, defendant resisted. The officer testified at trial that defendant wrapped her arms around her son to prevent his exit; yelled at the officer; "slapp[ed]," "claw[ed]," and "gouged" his hands; held a lighter, which was lit, against his hand; and punched him in the mouth. Another officer also testified that defendant held the lighter against the first officer's hand and sleeve.

¶ 3. This altercation gave rise to charges of aggravated assault on a police officer, 13 V.S.A. §§ 1024(a)(1), 1028(a)(1), simple assault on a police officer, id. §§ 1023(a)(1), 1028(a)(1), and impeding a police officer, id. § 3001.² The jury found defendant guilty on all counts. Defendant filed a motion for a new trial under Vermont Rule of Criminal Procedure 33 on the aggravated-assault charge, and a motion for judgment of acquittal under Rule 29 on the simple-assault and impeding-officer charges. The court denied both motions. The court sentenced defendant to concurrent sentences of eighteen months to six years for the aggravated assault,twelve to twenty-four months for the simple assault, and eighteen months to three years for the impeding-officer offense.

¶ 4. Defendant timely appeals her convictions, arguing that the court erred (1) in admitting Facebook messages purportedly written by her and (2) in allowing the State to alter the elements of the impeding charge after the evidence was closed. We address each argument in turn.

I. Authentication of Facebook Messages

¶ 5. Defendant argues that the trial court erred in admitting inculpatory Facebook messages purportedly authored by defendant. Specifically, she argues that the State failed to properly authenticate the messages as written by her, and that this Court must accordingly reverse the conviction for aggravated assault of an officer. Additional facts relevant to this argument are as follows.

¶ 6. During trial, the State moved to admit a "Facebook Business Record" that included the following private messages sent from a Facebook account with defendant's name: "I didn't hit the cop either . . . I did take a lighter to his ha[n]d after he assaulted me . . . But it was fine cause he tried pulling me around by my hair after." The Facebook user also stated that a newspaper incorrectly reported that the homicide victim was unresponsive when police arrived, stating that "they lied . . . Or had the facts wrong," and, "Also says he was stabbed multiple times which is also untrue." Law enforcement officers testified that they learned of these messages when the recipient contacted the police and provided screenshots of the messages on his phone. Some testimony suggested that police viewed the public Facebook profile, but the testifying officer did not remember what information was private and what was public. The police then executed a search warrant and obtained data from Facebook regarding the page registered in defendant's name, in the form of the Facebook Business Record. The record listed the account holder's name, email addresses, phone numbers, and internet protocol (IP) addresses. It identified "ChristinaAllcock" as the account holder, but there was no testimony at trial about whether the listed email addresses, phone numbers, and IP addresses belonged to defendant.

¶ 7. The trial court admitted the Facebook record over defendant's objection. After the trial, defendant filed a motion for a new trial, again challenging the authentication of the Facebook messages. See V.R.Cr.P. 33. The court denied the motion. It stated:

There are essentially three authentication foundation facts:

• What was on the Facebook site is what is being produced

• The owner of the site

• Were the posts authored by the person who purports to author them

The first fact was established by the police testifying that the printout came from a warrant served on Facebook. The second fact requires some proof establishing that the site belonged to or was set up by [defendant]. Here, police were directed to the site by a source who ended up being the person [defendant] appeared to be chatting with. They checked the public profile on the site to confirm that it was [defendant's], and they served a warrant demanding the information from [defendant's] site. The State barely meets this hurdle. However, in looking at the totality of the evidence, there is circumstantial evidence that this was [defendant's] site. The character and contents of the dialogue is consistent with the site belonging to [defendant]. This is closely related to the requirement that there be some evidence that the posts were made by [defendant]. The writer's awareness of the facts of the case as shown in the details of the post are consistent with their being made by [defendant].

Thus, the court concluded that the State "got over the gate" for purposes of its gatekeeping function under Vermont Rule of Evidence 104. However, it noted that the jury had struggled with intent in its deliberations, first asking about the difference between "intent" and "conscious objective" and then following up to ask whether defendant could have more than one conscious objective. As a result, the court explicitly found that "intent was a sufficiently close call, that any evidence could have tipped the balance. If the court's evidentiary ruling on Facebook was in error, it was not harmless."

¶ 8. On appeal, defendant challenges her aggravated-assault conviction, arguing again that there was an insufficient foundation to authenticate the statements in the Facebook document as defendant's, and that the trial court's error in admitting the evidence was not harmless. She argues in part that there is an "inherent danger" in social media communications because "anyone can create a fictitious account under another person's name or gain access to another's account by obtaining the user's username and password." The State responds that most courts have not created any special authentication requirements for social media communications and here the trial court did not err in admitting the Facebook messages because the evidence was sufficient to authenticate the messages as defendant's. "A trial court's evidentiary rulings are left to its sound discretion, and we will not reverse absent an abuse of that discretion." State v. Muscari, 174 Vt. 101, 107, 807 A.2d 407, 412 (2002).

¶ 9. We hold that the authentication of social media accounts should be assessed under the same standard as any other evidence: a threshold determination of whether "sufficient evidence exist[s] to 'support a finding that the matter in question is what its proponent claims.' " State v. Kelley, 2016 VT 58, ¶ 19, 202 Vt. 174, 148 A.3d 191 (quoting V.R.E. 901(a)). However, even under that standard, we hold that the admission of the Facebook messages was an abuse of discretion. Because we agree with the trial court that the error was not harmless, we reverse as to the aggravated-assault conviction.

A. Standard for Authentication

¶ 10. The applicable standards for authentication are well established and apply to a wide variety of records. Defendant cites several state decisions noting the complexity of authenticating social media communications and applying special and relatively heightened standards to authenticating such communications. See, e.g., Griffin v. State, 19 A.3d 415, 421-23 (Md. 2011); Commonwealth v. Williams, 926 N.E.2d 1162, 1172-73 (Mass. 2010). However, she correctly notes, as does the State, that numerous other state and federal courts have declined to impose aheightened standard of authentication in these circumstances. For the reasons set forth below, we hold that the typical authentication rules are sufficient for social media communications, although we emphasize that courts must be careful...