Brown v. State

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          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO. 60CR-17-837], HONORABLE BARRY SIMS, JUDGE

         John Wesley Hall and Sarah M. Pourhosseini, Little Rock, for appellant.

         Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.

          Opinion

         KENNETH S. HIXSON, Judge

          Appellant Robert Glenn Brown appeals after he was convicted by a Pulaski County Circuit Court jury of rape and was sentenced to serve a total of 300 months’ imprisonment. On appeal, appellant contends that the trial court abused its discretion in ruling that the Instagram messages and testimony about their contents were sufficiently authenticated to be admissible. We reverse and remand for a new trial.

          I. Relevant Facts

         In summary, appellant was charged with raping his daughter, L.B, who was less than fourteen years old at the time, in violation of Arkansas Code Annotated section 5-14-103 (Supp. 2017). Appellant lived in Texas with his current wife and nine children. Appellant is L.B.’s father. Appellant never had a father/daughter relationship with L.B. and had not seen or communicated with her for several years. L.B. and her mother, Janet Hurst, lived in Little Rock, Arkansas. Janet Hurst thought that L.B. needed a father figure in her life. Therefore, Janet contacted appellant in Texas via Facebook. Eventually, according to Janet, appellant and L.B. communicated via social media and telephone. Finally, in September 2014, appellant, upon Janet’s

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invitation, visited L.B. and Janet. Appellant stayed at Janet’s house for approximately a month. Janet testified that because she has another child and did not have a spare bedroom, appellant slept in the same bedroom and in the same bed with his then approximately twelve- or thirteen-year-old daughter. By all accounts the month-long visit generally went well. However, it was alleged that on the last night of his visit, appellant raped his daughter and then left to go back to Texas.

          Apparently, thereafter, there was no communication between appellant and Janet Hurst or L.B. for two years. Janet Hurst testified that she routinely reviewed L.B.’s cell phone. In 2016, Janet found some recent Instagram messages on the phone. Those messages were allegedly between L.B. and appellant. In the string of Instagram messages, appellant allegedly confessed that he had raped L.B. two years earlier. Janet confronted her daughter with the Instagram messages and subsequently contacted the police. Thereafter, appellant was charged with rape.

         Before trial, appellant filed a preliminary motion to determine the admissibility of the Instagram messages and their content at trial. Appellant admitted that the statements in those messages could be construed as a confession; however, he denied authoring the messages in question. He further maintained that the State had failed to provide any evidence linking him to the messages despite multiple subpoenas to various entities, including Facebook, internet-service providers, and Yahoo. Therefore, appellant argued in relevant part that the messages were inadmissible because they could not be authenticated under Arkansas Rule of Evidence 901 (2017).

          At a preliminary hearing on appellant’s motion, the State explained that it intended to introduce at trial screenshots of the 2016 Instagram messages that were obtained from L.B.’s cell phone. It alleged that these messages were exchanged between appellant and L.B. in 2016, two years after the crime had occurred and appellant had returned to his home in Texas. The State explained that Facebook, which owns Instagram, provided an IP address and a yahoo email address associated with the Instagram account in question. However, the internet-service provider for that IP address, Comcast, does not keep records past 180 days. Therefore, there was no electronic evidence linking the Instagram account to appellant. Nevertheless, the State argued that the similarities between the 2016 Instagram profile and a 2014 Instagram profile that L.B. alleged she had previously used to communicate with appellant in conjunction with the content of the messages themselves was sufficient authentication.

          During the preliminary hearing, L.B. testified that in 2014, she communicated with appellant via an Instagram account and by telephone. L.B. testified that the messages she received in 2016 came from a different Instagram account. She testified that the 2014 account and the 2016 account had the same profile picture and contained the same quote "Family sticks up for family." L.B. further explained on direct examination that the 2014 account used the name Rob Brown Matoskah, and the 2016 account used the name Rob B/M with the username robbm00. Therefore, L.B. testified that she believed the account had belonged to appellant.

          On cross-examination, L.B. admitted that she did not remember the name on the 2014 Instagram account. She additionally admitted that it was easy to create an Instagram account under any name and to use any picture and quotation that one would want during the creation process. Further, she admitted that anyone can see

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that information and copy that information if it is a public account. Thus, L.B. testified that based on her familiarity with the platform, if one knew or had access to an account name, photo, and quote, one could create another account with a similar username, same digital profile picture, and same profile quote. Moreover, she admitted that although she had not told anyone about the incident, she was the first one to raise the issue of rape in the 2016 exchanged messages.

          The content of the 2016 Instagram messages is as follows:

ROBBM00: Hey baby girl I miss u

[LB]: I don’t want to talk to you

ROBBM00: What are u still doing up u need to sleep u have school today

[LB]: Who are u.... Oh yeah I forgot about having a dead beat ...