                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0666
                             Filed August 19, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MIRANDA MARIE SIMPSON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Annie Reynolds,

Magistrate, and Gregory D. Brandt, District Associate Judge.



       Miranda Simpson appeals following her conviction of the simple

misdemeanor crime of third-degree harassment. AFFIRMED.




       Joel E. Fenton of Law Offices of Joel E. Fenton, PLC, West Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.




       Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.

       The State charged Miranda Simpson with the simple misdemeanor crime of

third-degree harassment. See Iowa Code § 708.7(4) (2017). The State claimed

Simpson made “posts on [F]acebook” that were likely to annoy or harm a massage

therapist and the therapist’s employer. A magistrate found Simpson guilty, a

finding that was affirmed on appeal to the district court.

       Simpson filed an application for discretionary review, which the supreme

court granted. The case was transferred to this court for disposition.

       Simpson contends (1) the State failed to lay an adequate foundation for the

admission of the Facebook posts and (2) the magistrate’s finding of guilt lacked

sufficient evidentiary support.1

I.     Foundation for Admission of Facebook Posts

       The foundational issue arose as follows. The owner of an Ankeny massage

salon located a one-star review on the salon’s Facebook page.            The owner

identified the author of the review as Simpson. Simpson’s public post stated that

one of the massage therapists could provide a “happy ending” and her “bosses

kn[e]w” or did not “care.” The owner took a screenshot of the post, which together

with four other screenshots of a stream of comments following the initial post, was

identified as Exhibit 1.

       The State offered Exhibit 1 through the owner. Simpson objected on the

ground that no foundation was laid “in terms of who took these pictures, where the


1 No issue was raised as to whether the Facebook post satisfied the requirement
that the person “communicates with another . . . in a manner likely to cause the
other person annoyance or harm.” See Iowa Code §708.7(1)(a)(1). We express
no opinion on that issue.
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pictures are from, [and] if this is the Miranda Simpson who’s sitting in the courtroom

today.” The magistrate admitted the exhibit, reasoning, “[T]he testimony has been

that [the owner] took the screenshot and . . . that’s a fair and accurate depiction of

what she observed on the screen.”         In a dispositional order, the magistrate

determined the owner “was a credible witness with a reliable memory and provided

proper foundation for the [e]xhibit.”

       On appeal, the district court affirmed the admission of Exhibit 1, reasoning

as follows:

       The evidence presented supports that the Facebook account in
       question belongs to Ms. Simpson and that she was the individual
       who posted the items in question[] here. [The salon owner] testified
       that she personally observed the posts on the Facebook account of
       Miranda Simpson and that she took screenshots of those posts. The
       trial court found the testimony of [the owner] credible. There is no
       reason for this Court to put aside those findings. The testimony of
       [the owner] is sufficient to establish the proper foundation for
       admission of the exhibit.

       In this appeal, Simpson insists the owner’s testimony was insufficient to

establish a foundation for admission of Exhibit 1. She argues “[n]o reliable data or

information from Facebook, the custodian of the computer information and

postings being depicted in the screenshot, was provided to further authenticate or

link [her] to the act of posting.” “We review questions of admissibility of evidence

for an abuse of district court discretion, meaning that we accord wide latitude to

the district court on the question of sufficiency of foundation.” State v. Buller, 517

N.W.2d 711, 712 (Iowa 1994) (citation omitted). “Established rules of evidence

however cannot be ignored under the guise of trial court discretion.” Id.

       The established rule of evidence relevant to this case states: “To satisfy the

requirement of authenticating or identifying an item of evidence, the proponent
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must produce evidence sufficient to support a finding that the item is what the

proponent claims it is.” Iowa R. Evid. 5.901(a). Evidence that an electronic writing

is what the proponent claims it is requires “evidence sufficient to show that the

purported author of the communication, whether it be an email, a Facebook

posting, or a text message, actually authored or published the content.” Lauri

Kratky Dore, 7 Iowa Practice: Evidence § 5.901:11, “Authentication of

electronically   stored   evidence:   E-mails    and    social   media    evidence.”

“Authenticating circumstances can include the context of an e-mail.” Id.

       The salon owner identified the first page of Exhibit 1, named the author of

the review, examined the contents of the post on Simpson’s public Facebook page,

identified the therapist partially named in the review, and took the screenshot of

the post. We conclude the district court did not abuse its discretion in finding her

testimony sufficient to establish that the post was what she claimed it to be. See

State v. Goodwin, No. 18-1822, 2020 WL 1551149, at *5 (Iowa Ct. App. Apr. 1,

2020) (concluding “[t]here was enough circumstantial evidence linking Goodwin to

the texts sent by Edwin to let the jury decide whether it believed he was the

sender”); State v. Akok, No. 17-0655, 2018 WL 4362065, at *1 (Iowa Ct. App. Sept.

12, 2018) (finding “a sufficient prima facie case of authenticity made” based in part

on the fact that Facebook messages “were sent from the account of a person

identifying himself to be Akuk Akok”); cf. In re ADW, No. 12-1060, 2012 WL

3200891, at * 6 (Iowa Ct. App. Aug. 8, 2012) (concluding “[t]he State did not offer

any evidence in this case to identify [Facebook] photographs in time or place”).

       In reaching that conclusion, we have considered the owner’s inability to

identify the last four pages of the five-page exhibit. In our view, her lack of
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knowledge went to the weight rather than the admissibility of Exhibit 1. See State

v. Biddle, 652 N.W.2d 191, 196–97 (Iowa 2002) (“When the district court has

determined that the State has established a sufficient foundation for the admission

of the physical evidence, any speculation to the contrary affects the weight and not

the admissibility of the evidence.”); State v. Collier, 372 N.W.2d 303, 308 (Iowa Ct.

App. 1985) (noting that questions of whether a witness can “without question

identify” an exhibit as belonging to a person “go the weight and credibility of the

evidence as opposed to its admissibility”).

       The court could have assigned greater weight to the entirety of Exhibit 1 in

light of an Ankeny police officer’s testimony that he took the screenshots of

Simpson’s public postings appearing on the last four pages of the exhibit.

Additionally, the massage therapist mentioned in the post testified she “looked up

[Simpson’s] name” and “saw [Simpson’s] public comment referencing her.” The

therapist opined that Simpson posted the disparaging review “to try to get [her]

fired or get [her] license revoked.” She based her opinion on public postings of

photographs showing Simpson with the therapist’s ex-boyfriend. We affirm the

admission of Exhibit 1 and the weight assigned to it.

II.    Sufficiency of the Evidence

       At trial, the Ankeny police officer who investigated the case testified that he

asked Simpson about the Facebook post and “she claimed that she was sticking

up for her friend.” The magistrate cited this testimony in finding harassment.

Simpson argues “the trial court misunderstood or misrelated statements made by

[the officer] involving a purported confession or partial confession by” her. The

State characterizes the argument as a challenge to the sufficiency of the evidence
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supporting the district court’s findings of guilt. We agree. Our review of the

magistrate’s fact findings is for substantial evidence. See State v. Hearn, 797

N.W.2d 577, 579–80 (Iowa 2011).

      At trial, the officer acknowledged Simpson did not explicitly state “she was

the one that made the post on Facebook.” At the same time, it is clear he took

Simpson’s statement that she was “sticking up for a friend” as a tacit admission

that she posted the comments. The magistrate similarly inferred Simpson was the

person who made the posting. The inference is supported by substantial evidence.

We affirm the finding of guilt for third-degree harassment.

      AFFIRMED.
