Heard: November 1, 2018.
received and sworn to in the Maiden Division of the District
Court Department on August 18, 2016.
case was heard by Joseph W. Jennings, III, J.
Baysan for the defendant.
Benjamin Lees (Kevin J. Curtin, Assistant District Attorney,
also present) for the Commonwealth.
Present: Agnes, Blake, & Neyman, JJ.
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 message 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. 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.
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. 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
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.
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. 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.
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.
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
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. The term "matter," as used in
§ 28, is defined broadly and includes a video like the
one involved in this case. 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. 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.
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. 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.
Authentication as a condition of relevance.
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 (1978),  "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 (2014) .
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). 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 (2011); Commonwealth v. Oppenheim, 86
Mass.App.Ct. 359, 366-367 (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 (1999) ("these preliminary determinations are
committed to the sound discretion of the judge . . . [whose]
decision will be upheld on appeal absent palpable error"
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