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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, Atty Gen., by: Pamela Rumpz, Asst Atty 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 Janets
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invitation, visited L.B. and Janet. Appellant stayed at
Janets 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 appellants 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 dont 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
...