Appeal
From The Pulaski County Circuit Court, Seventh Division [No.
60CR-17-837] Honorable Barry Sims, Judge
John
Wesley Hall and Sarah M. Pourhosseini, for appellant.
Leslie
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for appellee.
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 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 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 father out there
Robbm00: Shut up b**** Ima great father u don't know me
so u can't judge me from a few small mistakes
[LB]: Exactly I don't even know my own dad . . . Really u
...