Commonwealth v. Meola
Commonwealth v. Meola
Opinion
*303 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 *304 a Facebook message 1 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 *108 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 *305 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),
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 *306 defined in [ G. L. c. 272, § 31 ], knowing it to be harmful to minors, ... shall be punished ...." The *109 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, *307 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."
*110
Poirier
v.
Plymouth
,
*308
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
*111
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
,
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 the Commonwealth did not comply with rule 17. See
*112
Commonwealth
v.
Hart
,
On appeal, the Commonwealth does not take issue with this ruling. 15 The question before us thus becomes whether the judge abused his discretion or committed palpable error in determining that, even without the benefit of the Facebook account records, a fact finder could find that it was more likely than not that the Facebook message was authentic and, in particular, that it was sent by the defendant. 16
3.
Authentication of the Facebook message
. The defense challenged the admission of the Facebook message by means of a pretrial motion in limine,
17
on grounds that there was an insufficient factual basis to establish that the message received by the victim to which the video was attached was a communication sent by the defendant. In
Purdy
,
In response to the judge's request for an offer of proof concerning the authentication of the Facebook message to which the video was attached, the prosecutor informed the court that the message was received by the victim as a "Facebook message" on her cell phone as described above, that the victim had not seen or heard from the defendant during the past six or seven years, that the name on the account of the sender of the message was that of the defendant, "Urbano Meola," and that the video appeared to be self-authored. The judge also had been informed that the Facebook message included a photograph of the defendant's biological daughter (the victim's half-sister) and that several days after the victim received the offensive Facebook message, she received a "friend request" from the same *114 account. The judge ruled that the video was admissible and that he would allow the victim to testify as to how she believed the video had come to her.
Although we have not found a Massachusetts case or a published opinion from another jurisdiction with facts exactly like those involved in this case, we conclude that the judge did not abuse his discretion in determining that the foundational facts constituted sufficient confirming circumstances to authenticate the Facebook message as having been sent by the defendant. First, we are mindful that the standard of review as to a judge's preliminary determination of authentication is deferential. See
Leonard
,
4. Sufficiency of the evidence . When we review the denial of a motion for a required finding of not guilty, we ask "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (emphasis omitted).
*116
Commonwealth
v.
Latimore
,
In the present case, on the basis of the Facebook message from "Urbano Meola" to the victim, including a profile picture of the defendant's biological daughter (the victim's half-sister), accompanied by what could be found to be a self-authored video of the defendant, unclothed and touching his penis and anus, along with the evidence that the defendant, his biological daughter, the victim's mother, and the victim lived in the same household for six years, the judge, as the finder of fact, was warranted in concluding beyond a reasonable doubt that the defendant purposefully disseminated matter harmful to a minor to the victim, knowing that she was a minor, in violation of G. L. c. 272, § 28. See
Commonwealth
v.
Mienkowski
,
Conclusion . For the above reasons, the Facebook message was sufficiently authenticated as having been sent to the victim by the defendant. The defendant's motion in limine seeking its exclusion from evidence was properly denied. The judge, as the finder of fact, was warranted in considering that the Facebook message was sent by the defendant. Taken as a whole, the evidence presented by the Commonwealth was sufficient to permit the judge to conclude beyond a reasonable doubt that the defendant violated G. L. c. 272, § 28.
Judgment affirmed .
"Members [of social networking websites such as Facebook and MySpace] create their own individual web pages (their profiles) on which they post their own personal information, photographs and videos, and from which they can send and receive messages to and from others whom they have approved as their 'friends.' " 2 McCormick on Evidence § 227, at 20 (2013 & Supp. 2016).
The video was marked Exhibit 1 and is part of the record on appeal.
The defendant was not the victim's father.
There was evidence that several years after their relationship ended, the mother went to the Department of Revenue in an effort to collect child support from the defendant. However, she testified that nothing came of it because "we didn't know where he was."
There is no evidence that further describes the photograph of the victim's half-sister. While the photograph was the subject of oral testimony, it was not introduced in evidence.
Compare "purposeful," defined as "having a purpose: as (a) meaningful, (b) intentional." Merriam-Webster's Collegiate Dictionary 1011 (11th ed. 2005). Cf.
Commonwealth
v.
York
,
The term "matter" is defined in G. L. c. 272, § 31, as follows:
"[A]ny handwritten or printed material, visual representation, live performance or sound recording including, but not limited to, books, magazines, motion picture films, pamphlets, phonographic records, pictures, photographs, figures, statues, plays, dances, or any electronic communication including, but not limited to, electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network, whether by computer, telephone, or any other device or by any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo-electronic or photo-optical system."
The term "disseminates" is defined in G. L. c. 272, § 31, as "to import, publish, produce, print, manufacture, distribute, sell, lease, exhibit or display."
The phrase "harmful to minors" is defined in G. L. c. 272, § 31, as follows:
"[M]atter is harmful to minors if it is obscene or, if taken as a whole, it (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for such minors; and (3) lacks serious literary, artistic, political or scientific value for minors."
The defendant did object prior to trial to any identification testimony by either of the police officers who testified. Detective Crowell testified over objection that he located the person depicted in the video by examining a registry of motor vehicles photograph of the defendant. We construe the judge's ruling in context as admitting the evidence for the limited purpose of explaining how the police came into contact with the defendant. See
Commonwealth
v.
Cordle
,
In order to be admissible at trial, relevant evidence must, of course, make a fact of consequence in the proceeding more or less probable.
Harris-Lewis
v.
Mudge
,
See, e.g.,
Commonwealth
v.
Caruso
,
"The role of judge as 'gatekeeper' is essential to authentication, because of jurors' tendency, 'when a corporal object is produced as proving something, to assume, on sight of the object, all else that is implied in the case about it,' for which Wigmore provided the following example:
'It is easy for a jury, when witnesses speak of a horse being stolen from Doe by Roe, to understand, when Doe is proved to have lost the horse, that it still remains to be proved that Roe took it; the missing element can clearly be kept separate as an additional requirement. But if the witness to the theft were to have a horse brought into the courtroom, and to point it out triumphantly, "If you doubt me, there is the very horse!", this would go a great way to persuade the jury of the rest of his assertion and to ignore the weakness of his evidence of Roe's complicity. The sight of the horse, corroborating in the flesh, as it were, a part of the witness' testimony, tends to verify the remainder.' [7 J.] Wigmore, [Evidence] § 2129 [ (Chadbourn Rev. 1978) ]." (Emphasis omitted.)
Sublet
v.
State
,
Cases sometimes refer to the gatekeeper's determination as a preliminary finding of fact under Massachusetts law, reflected in Mass. G. Evid. § 104(b), as well as under Federal law, see Fed. R. Evid. 104(b) (2019). However, it is more accurate to describe the judicial function under § 104(b) as a preliminary assessment or screening of the evidence, because the judge does not make a determination of credibility under § 104(b). "In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact ... by a preponderance of the evidence."
Huddleston
v.
United States
,
The prosecutor further explained, "I know that the policy of Facebook is, being a newer company, they sent a basically encrypted link to us to allow us to access them, and my understanding is that that link was also sent to the clerk's office. Whether or not the clerk's office opened it, I'm not sure." Later, the judge reported that the "clerk's office does not have any envelopes regarding the defendant. I don't know that that's specifically what you said would have happened.... They would have sent some type of electronic communication to the court?" The prosecutor responded affirmatively, "because that is what the Commonwealth received. And our request and the order was that it be sent to the clerk's office, and we received it, and my understanding was that the clerk's office would also receive it."
The Facebook account records were not marked for identification and are not part of the record before us.
There was a separate requirement that the video be authenticated apart from the Facebook message. That requirement was satisfied by the direct evidence consisting of the testimony of the victim and others that she received the video as part of a Facebook message and that the video depicted the defendant, Urbano Meola.
"Motions in limine concerning the introduction or exclusion of purportedly relevant evidence are properly made and considered before and during trial, in advance of the evidence being offered."
Commonwealth
v.
Spencer
,
Self-authenticated documents include copies of documents recorded or filed in a public office and bearing "the attestation of the officer who has charge of the item ...." Mass. G. Evid. § 901(b)(7)(B) (2019).
There is direct evidence of authentication where, for example, someone with personal knowledge testifies that an item is what it is claimed to be. See
Commonwealth
v.
LaCorte
,
Direct or circumstantial evidence may authenticate proffered evidence. Such authenticating evidence may include the "appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Mass. G. Evid. § 901(b)(4).
See
Purdy
,
See, e.g.,
Gilman
,
As noted earlier, the instant case was tried before a judge without a jury. The defendant did not file any requests for rulings of law. See Mass. R. Crim. P. 26,
"All computers that connect to the Internet identify each other through a unique string of numbers known as an ... IP address.... In general, when a subscriber purchases Internet service from an Internet service provider (ISP), the ISP selects from a roster of IP addresses under its control and assigns a unique IP address to the subscriber at a particular physical address.... The IP address assigned to a particular subscriber may change over time, but the ISP keeps a log of which IP address is assigned to each subscriber at any given moment in time."
Commonwealth
v.
Martinez
,
See
Parker
v.
State
,
As noted earlier, Detective Crowell described the video in question as having been taken "from down below, looking up towards the person in the video."
See generally Grimm, Cappa, & Joseph, Authenticating Digital Evidence,
Cases illustrating deficiencies in the evidence offered to authenticate electronic communications include the following:
Devbrow
v.
Gallegos
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.