State v. Jesenya O., S-1-SC-38769

CitationS-1-SC-38769
Case DateAugust 09, 2022
CourtSupreme Court of New Mexico

STATE OF NEW MEXICO, Plaintiff-Petitioner,
v.

JESENYA O., Child-Respondent.

No. S-1-SC-38769

No. 2022-NMSC-014

Supreme Court of New Mexico

August 9, 2022


ORIGINAL PROCEEDING ON CERTIORARI Donna J. Mowrer, District Judge

Hector H. Balderas, Attorney General Benjamin L. Lammons, Assistant Attorney General Santa Fe, NM for Petitioner.

Liane E. Kerr, LLC Liane E. Kerr Albuquerque, NM for Respondent.

OPINION

BRIANA H. ZAMORA, Justice.

{¶1} This appeal calls upon us to consider issues relating to the authentication of social media evidence. Specifically, we are asked to review a determination by the Court of Appeals that the district court abused its discretion in authenticating screenshots of Facebook Messenger messages allegedly initiated by Jesenya O. (Child) in the near aftermath of the events giving rise to the underlying delinquency proceeding. State v. Jesenya O., 2021-NMCA-030, ¶ 29, 493 P.3d 418. As part of this inquiry, we consider as a matter of first impression whether admissibility of such evidence should be governed by the traditional authentication standard set out in Rule 11-901 NMRA or by a heightened standard that seeks to account for the possibility that

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communications issued on social media platforms may be especially susceptible to fraud or impersonation.

{¶2} We agree with the Court of Appeals that the traditional authentication standard set out in Rule 11-901 provides the appropriate legal framework for authenticating social media evidence. Jesenya O., 2021-NMCA-030, ¶ 21. But we disagree with the conclusion reached by the Court of Appeals that the State failed to meet the threshold for authentication established under that rule, much less that the district court abused its discretion in finding the State had met its burden. Id. ¶ 29. We hold the State's authentication showing was sufficient under Rule 11-901 to support a finding that, more likely than not, the Facebook Messenger account used to send the messages belonged to Child and that Child was the author of the messages. Accordingly, we reverse the Court of Appeals and reinstate Child's delinquency adjudications.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶3} Child, then age seventeen, became Facebook friends with a former schoolmate, Jeremiah Erickson (Erickson), then age nineteen. Over the next several weeks, the two conversed primarily, if not exclusively, through their respective Facebook[1] Messenger accounts. Facebook Messenger is an instant messaging service which allows users to communicate with one another from within Facebook or via a stand-alone application. See Messenger From Meta, https://about.facebook.com/technologies/messenger/ (last visited June 1, 2022). Facebook users may access the application from a variety of devices, including desktop computers, mobile phones, and tablets. Id. On two occasions, Child and Erickson used Facebook Messenger to arrange in-person meetings, during which Erickson drove to Child's house to pick her up and drive her somewhere to "hang out."

{¶4} It was the second of these meetings that gave rise to the events leading to Child's adjudication. Both Erickson and Child testified to the jury that their get-together on the night of February 24, 2020, did not end well, although each provided a different narrative as to what unfolded. According to Erickson, Child had acted "weird" at the get-together and appeared to be high or drunk. He testified that, while he was driving Child home, she asked him to park his vehicle near a home located on an alley behind a furniture store, which he did, leaving the engine running and the driver's side door open. According to Erickson, after the two exited the car to say good night, Child pushed him out of the way, assumed control of the vehicle, and drove off by herself, crashing through a chain-link fence, striking a dumpster, and driving the car out of Erickson's sight.

{¶5} Child's testimony painted a different picture. According to Child, Erickson was drunk and driving recklessly on the way to her home. She testified that he made advances toward her and that he stopped the car in the alley after she rejected them.

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According to Child, both parties exited the vehicle, Child asked if she could drive the vehicle, Erickson refused, and Child then told Erickson she would not get back in the car with him. Child began to walk down the alley with Erickson following her. Child testified she ran away from Erickson in fear and walked the rest of the way home alone. On cross-examination, Child claimed she did not have her phone with her after leaving Erickson's vehicle.

{¶6}At Child's adjudication, the State sought to introduce evidence of communications between Child and Erickson the State alleged took place on Facebook Messenger the day after the incident involving Erickson's vehicle. The evidence was proffered in the form of two screenshots (hereinafter "the February 25 messages") showing communications between a user identified as Erickson and a user identified by name and photograph as Child. The messages reflected the following exchange:

[Child]: Your car
[Child]: I was drunk as fuck
[Child]: I'm so sorry
[Child]: Did u call the cops on me
[Erickson]: Had to.
[Child]: And u gave them my name?
[Erickson]: Had to. What you did was beyond fucked up.
[Erickson]: And now I'm in deep shit for it.
[Child]: I'm IN DEEP SHIT
[Child]: I was completely drunk I don't know what I was doing
[Erickson]: Well we're both fucked.
[Child]: Yeah no kidding.
[Child]: I'm going to jail
[Erickson]: I can't believe you took my car to Clovis and totaled it.
[Child]: I was drunk.

{¶7} The State sought to authenticate the February 25 messages through Erickson's testimony as to his personal knowledge of both the accuracy of the screenshots and his

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history of Facebook Messenger communications with Child, as well as through the contents of the messages themselves. Child's trial counsel objected to the authentication of the exhibits, arguing the screenshots did not show with certainty that the messages were sent from Child's Facebook account and emphasizing what counsel characterized as the inherent difficulty in "lay[ing a] foundation on Facebook Messenger messages because anybody can have access to somebody's phone or Facebook account." The district court overruled the objection, and the evidence was admitted. Child was subsequently adjudicated delinquent and appealed the district court's judgment and disposition to the Court of Appeals.

{¶8} On appeal, Child challenged the foundation laid by the State for the screenshots of the February 25 messages. The Court of Appeals reversed based solely on the authentication issue. Jesenya O., 2021-NMCA-030, ¶¶ 29, 36. It concluded that, while communications arising on social media platforms are subject to the same authentication requirements as other evidence subject to Rule 11-901, the State had failed in its burden to properly authenticate the messages. Jesenya O., 2021-NMCA-030, ¶¶ 24-29. In so holding, the Court of Appeals focused in part on the fact that the content of the messages was not "sufficiently confidential to establish that only Child could have authored the messages." Id. ¶ 28 (emphasis added). The Court concluded the error in admitting the messages for the jury's consideration was not harmless, vacated Child's adjudications, and remanded for a new hearing. Id. ¶¶ 30-36, 68.

{¶9} We granted the State's petition for certiorari review of whether the Court of Appeals imposed the correct standard for authenticating the messages at issue and whether it applied the appropriately deferential standard of review to the district court's decision to admit the messages as evidence. We conclude that the Court of Appeals properly relied on the traditional standard under Rule 11-901 as the framework for assessing the authenticity of the February 25 messages, but that it misapplied the provisions of Rule 11-901(B)(1) and (B)(4) to the facts and circumstances of this case and failed to afford proper deference to the district court.

II. DISCUSSION

A. Standard of Review

{¶10} We "generally review evidentiary matters for an abuse of discretion." State v. Montoya, 2014-NMSC-032, ¶ 15, 333 P.3d 935. "An abuse of discretion occurs when the [evidentiary] ruling is clearly against the logic and effect of the facts and circumstances of the case. We cannot say the [district] court abused its discretion by its ruling unless we can characterize it as clearly untenable or not justified by reason." State v. Sanchez, 2020-NMSC-017, ¶ 21, 476 P.3d 889 (internal quotation marks and citation omitted). In the authentication context, "there is no abuse of discretion when the evidence is shown by a preponderance of the evidence to be what it purports to be." State v. Jimenez, 2017-NMCA-039, ¶ 18, 392 P.3d 668 (internal quotation marks and citation omitted). However, we review de novo the threshold legal question as to the proper framework within which to analyze a particular evidentiary issue. See State v. Carrillo, 2017-NMSC-023, ¶ 26, 399 P.3d 367 ("[T]he threshold question of whether the

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trial court applied the correct evidentiary rule or standard is subject to de novo review on appeal.").

B. The Traditional Standard Applied Under Rule 11-901 Provides the Proper Framework for Authenticating Evidence From Social Media Platforms

{¶11} For evidence to be properly authenticated under Rule 11-901 there must be a showing "sufficient to support a finding that the item is what the proponent claims it is." Rule 11-901(A). "The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances" may be considered in determining whether evidence has been adequately authenticated. Rule 11-901(B)(4). The foundation required to authenticate an...

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