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15-P-423                                                Appeals Court

                   COMMONWEALTH   vs.   DAVID GILMAN.


                              No. 15-P-423.

           Worcester.        May 6, 2016. - July 21, 2016.

                 Present:   Cohen, Green, & Neyman, JJ.


Rape. Indecent Assault and Battery. Evidence, Relevancy and
     materiality, Inflammatory evidence, Authentication, Best
     and secondary. Constitutional Law, Assistance of counsel.
     Practice, Criminal, Assistance of counsel, Argument by
     prosecutor, Voir dire, Jury and jurors. Jury and Jurors.



     Indictments found and returned in the Superior Court
Department on April 23, 2010.

     The cases were tried before Peter B. Krupp, J.


     Diana Cowhey McDermott for the defendant.
     Michelle R. King, Assistant District Attorney, for the
Commonwealth.


     GREEN, J.    A Superior Court jury convicted the defendant, a

middle school music teacher, of rape and three counts of

indecent assault and battery on a child under fourteen,

aggravated in the first instance by age difference and in all
                                                                       2


instances by reason of the defendant's status as a mandated

reporter.   On appeal, he claims error in the admission of a

number of "chat" messages he exchanged with the victim (a twelve

year old student of his at the time of the assaults) on the

social networking Web site Facebook.   He also claims that he was

deprived of his constitutional right to effective representation

by counsel when his counsel promised the jury that the defendant

would testify at trial, but then broke that promise when the

defendant did not testify after the Commonwealth rested.     We

discern no cause to disturb the convictions, and affirm. 1

     Background.   We summarize the facts the jury could have

found, viewed in a light most favorable to the Commonwealth.

See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).      In

the fall of 2008, the victim was a sixth grader at Leicester

Middle School; the defendant was her music teacher.   At the end

of her sixth grade year, the victim went on a school-sponsored

camping field trip.   The defendant was a chaperone on that field

trip, and he and the victim spent a lot of time together while

on the trip.   At the end of the trip, the defendant put his

cellular telephone (cell phone) number and his name into the


     1
       As discussed infra, the defendant also claims that the
prosecutor misstated the evidence during closing argument, and
he assigns error to the failure of the trial judge to conduct
individual voir dire of prospective jurors on the topic of
childhood victimization and sexual assaults. Neither claim
warrants relief.
                                                                   3


victim's cell phone contact list, and they exchanged text

messages frequently thereafter.   Over the course of the

following summer, which included another school-sponsored trip

to the Six Flags New England amusement park in which the

defendant and the victim participated, their correspondence

continued, and they eventually became "friends" on Facebook.

The defendant and the victim began a continuing Facebook "chat"

conversation around October of 2009, when the victim was a

seventh grader and the defendant was her music teacher and drama

club director.

     When the defendant or the victim wanted to "chat" with each

other on Facebook, they would alert the other by sending a text

message.   The victim knew that her Facebook conversation was

with the defendant because they discussed things that they had

done in person, and things that were known only to them.    The

defendant and the victim chatted "a lot of time at night," on

topics ranging from the drama club, their time together on the

previous summer's school trips, and their developing affection

for each other. 2


     2
       The following exchange is illustrative of their chats
during this period:

     Defendant: "Anyway, the day at Six Flags when I held your
     hand on the way in."
     Victim: "Really?"
     Defendant: "Remember?"
     Victim: "Yeah."
                                                                     4


     During the course of the Facebook conversations, the

defendant and the victim frequently professed their love for

each other.    On October 25, 2009, they talked about kissing each

other:

     Defendant: "When I kiss u it will mean everything 2 me."
     Victim: (She replied with a smiley face).
     Defendant: "Kiss me back please?"
     Victim: "Yes."
     Defendant: "I will luv u 4ever!!! Will u kiss me back
     bcuz u luv me or just bcuz."
     Victim: "Because I love u."
     Defendant: "My girl."

     On October 30, 2009, the victim attended a school dance

with two of her friends.   Halfway through the dance, the victim

received a text message from the defendant asking her to meet

him in the hallway.    The victim went into the hallway, where she

met the defendant and followed him into the music room.   In the

music room, they moved to an area where the victim could not see

the hallway.   The defendant then touched the victim's hips, and

proceeded to kiss her on the mouth; his lips and tongue touched

her lips and tongue.   The defendant and the victim stayed in the

music room for about five to ten minutes, and the victim then


     Defendant: "And then you wrecked me completely on the bus
     ride home. I did nothing but think about you all
     [s]ummer."
     Victim: "That was a fun bus ride home. I got to beat the
     hell out of Tom, and bug the hell out of you."
     Defendant: "Yeah. And you used all your super flirt
     powers on me."
     Victim: "And I got you."
     Defendant: "Hook, line and sinker, as they say. Now I
     couldn't stop thinking about you if I tried."
                                                                    5


returned to the gymnasium.   Later that evening, the defendant

and the victim chatted about their kiss on Facebook.

     During this time period, the defendant frequently reminded

the victim to delete or clear her messages, and became concerned

when the victim told him that one of her friends saw messages

from him.   When the victim tried to reassure the defendant he

stated, "Damn, . . . I love you so much, and I will lose my job,

my life, and I will go to jail."   Despite acknowledging that

"[w]e already broke the law," the defendant continued to engage

the victim in sexual conversation, and eventually talked about

what he wanted to do to her sexually. 3

     At some point after Thanksgiving, the defendant and the

victim made a plan to meet alone in the band room at the school.

After her last class, the victim went into the band room as

planned.    Once in the band room, the victim went immediately to

the defendant.   He did not say anything to her, but grabbed her

hips with his hands and kissed her on her mouth with his lips

and tongue.   The defendant also touched the victim's breast with

his hand.   The defendant and the victim continued to communicate


     3
       The defendant said he would "slide my finger inside of
your pussy and feel you from the inside," and "push my finger in
and out of you until you cum." The defendant then said he could
"use my tongue or my cock," and "I will slide my cock up and
down the outside of your pussy . . . I will make you so wet."
Because the victim did not understand what the defendant meant
by the word "wet" she had to look it up online using the Urban
Dictionary Web site.
                                                                    6


via Facebook and frequently talked about future sexual activity

and what the defendant would like to do to the victim. 4

     When the defendant and the victim chatted on Facebook on

December 1, 2009, the victim said that one of her friends at

school noticed that he looked like he had been crying.     The

defendant stated that he fell asleep on the computer and his

wife came down to get him and saw the conversations he had with

the victim, and she was "pretty pissed off this morning."     The

victim was concerned for the defendant and stated, "I do love

you and don't want anything to happen to you," and "It's you I'm

worried about.   I love you so much.   We have to stop before we

do get caught and then you will go to jail."

     The last time the victim saw the defendant before he was

arrested, they were alone again in the band room.    On that day

the defendant put his hand underneath her clothes, and put his

hand "in between the lips of [her] vagina."    In doing so, the

defendant moved his finger "up and down between the lips of


     4
       The defendant talked about wanting to make the victim "hot
and wet and crazy," and stated that he would like to "take turns
rubbing the outside of you and putting myself inside of you."
The defendant expressed guilt to the victim over "making you
grow up so fast," and stated, "I hate how I'm putting ideas in
your head you would never have had." Nevertheless, the
defendant continued to educate the victim sexually, at one point
asking, "What does it mean to give me head or a blow job?" When
the victim replied that it meant to "suck a guy's cock" but
could not describe what she would do to him sexually, the
defendant replied, "boring." In response, the victim said, "I'm
twelve. How am I supposed to know?"
                                                                      7


[her] vagina."     The defendant sexually assaulted the victim for

approximately one to two minutes.      She then backed away, and

went to homeroom.

     On December 16, 2009, Julia Berry of the Leicester police

department went to Leicester Middle School, where she met with

the defendant in the principal's office.      The defendant had a

backpack with him, and Officer Berry asked him if he had a

laptop computer.     The defendant replied, "Well, it belongs to

the school."      The defendant put the laptop computer down in the

corner of the office and left.      Daniel Durgin, the technology

director at Leicester public schools in 2009, issued the

defendant one desktop computer and two laptop computers in the

2009 academic year.     When Durgin issued a computer to a teacher,

he would do a fresh installation of software, and would assign a

user name and password that was specific to the teacher assigned

the computer. 5    After the computer was issued to a particular

teacher, the teacher could then change the password, and no

person other than that teacher or Durgin could access that

computer.    The school's Internet use policy prohibited access to

Facebook from the school.      However, teachers were permitted to

take the computers home and could access Facebook when away from

the school's network.



     5
         The defendant's user name was "gilmand."
                                                                      8


     Durgin did not access the defendant's profile on any of the

defendant's computers in the fall of 2009, nor did he use any of

the computers to access any Internet sites or locations.      After

the defendant's computers were seized on December 16, 2009, all

of the defendant's accounts were locked, and the computers

remained in Durgin's locked office.      Troopers Carl Oley and

Kevin Hart from the State police digital evidence and multimedia

section examined the computers and cell phone that were

submitted to them.      When Trooper Hart analyzed the victim's

computer, he located 1,712 Facebook chat logs.      When Trooper

Hart performed the same analysis on one of the laptop computers

with the user name "gilmand," he found over 3,000 Facebook chat

logs.   When he analyzed a second laptop computer with the user

name "gilmand," he also found over 3,000 Facebook chat logs.

Trooper Hart exported the Facebook chat logs into a spreadsheet.

     Christine Bugbee, another teacher at the school and a

friend of the defendant's, saw the defendant shortly after he

was dismissed from the school.      She asked him, "Did you do it?"

The defendant replied, "No, but it will look like I did."

     Discussion.   1.    Admissibility of Facebook chat logs.

Prior to trial, the defendant moved in limine to exclude the

Facebook chat messages between the defendant and the victim on

the grounds that they:      (i) were irrelevant and inflammatory,
                                                                   9


(ii) describe inadmissible prior bad acts, (iii) were not the

best evidence, and (iv) could not be authenticated properly. 6

     "Evidence of a defendant's prior or subsequent bad acts is

inadmissible for the purpose of demonstrating the defendant's

bad character or propensity to commit the crime[s] charged."

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014).    "However,

such evidence may be admissible . . . 'to establish motive,

opportunity, intent, preparation, plan, knowledge, identity, or

pattern of operation.'"   Ibid., quoting from Commonwealth v.

Walker, 460 Mass. 590, 613 (2011).    "Even if the evidence is

relevant to one of these other purposes, the evidence will not

be admitted if its probative value is outweighed by the risk of

unfair prejudice to the defendant."    Crayton, supra at 249 &

n.27.

     The content of the Facebook chat conversations between the

victim and the defendant was clearly relevant.    They contained

numerous declarations of love by the defendant and the victim

     6
       For the first time on appeal, the defendant also contends
that they constitute inadmissible hearsay. The claim is waived.
See Commonwealth v. Brinson, 440 Mass. 609, 611 (2003). In any
event, the statements of the defendant are admissible as
admissions of a party opponent. See Commonwealth v. Cutts, 444
Mass. 821, 834 (2005). The statements by the victim in the chat
conversations principally furnished context for the defendant's
statements and were not offered for their truth (though, as the
defendant did not object or request a limiting instruction, none
was given). In any event, the victim's statements in the chats
were largely cumulative of the victim's testimony at trial and,
accordingly, pose no substantial risk of a miscarriage of
justice.
                                                                  10


toward each other, and described various of their encounters,

including those occasions on which the defendant assaulted the

victim.   The conversations illustrate how the defendant

cultivated the victim's feelings toward him, educated her about

various forms of sexual interaction, and manipulated her

insecurities to cause her to fear the loss of his affections.

In several instances, the defendant's admissions corroborated

the victim's trial testimony describing both the circumstances

and the nature of the defendant's assaultive conduct.   Though

the lurid nature of the conversations undoubtedly caused

prejudice to the defendant, the prejudice flowed directly from

their properly probative effect to illustrate the development of

the relationship between the defendant and the victim, its

increasingly sexually charged character, and their shared

reflection on several sexual encounters.   The prejudice, in

other words, was not unfair.   See Commonwealth v. Kindell, 84

Mass. App. Ct. 183, 188 (2013).   We discern no abuse of

discretion by the trial judge in his conclusion that the

probative value of the Facebook chat evidence outweighed its

potential for unfair prejudice.

     We likewise discern no error or abuse of discretion in the

conclusion by the trial judge that the Facebook chat

conversations were properly authenticated.   "To satisfy the

requirement of authenticating or identifying an item of
                                                                     11


evidence, the proponent must produce evidence sufficient to

support a finding that the item is what the proponent claims it

is."    Mass. G. Evid. § 901(a) (2016).   "Here, because the

relevance and admissibility of the communications depended on

their being authored by the defendant, the judge was required to

determine . . . by a preponderance of the evidence that the

defendant authored the [Facebook chat messages attributed to

him]."    Commonwealth v. Purdy, 459 Mass. 442, 447 (2011).

"Evidence may be authenticated by direct or circumstantial

evidence, including its '[a]ppearance, contents, substance,

internal patterns, or other distinctive characteristics.'"     Id.

at 447-448, quoting from Mass. G. Evid. § 901(b)(1), (4).

"While [electronic mail messages (e-mails)] and other forms of

electronic communication present their own opportunities for

false claims of authorship, the basic principles of

authentication are the same" as for telephone calls or written

letters.    Id. at 450.   "Evidence that the defendant's name is

written as the author of an e-mail or that the electronic

communication originates from an e-mail or a social networking

Web site such as Facebook or MySpace that bears the defendant's

name is not sufficient alone to authenticate the electronic

communication as having been authored or sent by the defendant."

Ibid.    "There must be some 'confirming circumstances' sufficient
                                                                  12


for a reasonable jury to find by a preponderance of the evidence

that the defendant authored" the messages.    Ibid.

     In the present case, there were sufficient confirming

circumstances to establish that the defendant authored the

Facebook chat messages attributed to him.    The messages

originated from an account bearing the defendant's name, on

which his picture appeared.   The messages were downloaded from

the hard drive of two laptop computers issued to the defendant

by the school, but to which access was limited to the defendant

by means of a user name and password. 7   There was no evidence of

access to the defendant's laptop computer by others.    The

defendant and the victim initiated Facebook chat conversations

with each other by means of text messages sent to each other's

cell phones; in the case of such messages sent by the victim to

the defendant, they were sent to the number the defendant added

to her contacts list after the first school field trip the two

took together.

     In addition, the conversations were replete with personal

references, including pet names the defendant and victim used

for each other, and references to events in which the two alone



     7
       As explained by the Commonwealth's digital forensic
expert, State Trooper Kevin Hart, the messages were stored in
the Internet cache of the computer hard drive, as temporary
files downloaded from the Facebook server (or other Web pages)
visited by the computer user during a browsing session.
                                                                  13


participated.   The evidence amply supported a conclusion that

the defendant authored the Facebook chat messages. 8

     Finally, we discern no merit in the defendant's contention

that the printed spreadsheets of the Facebook chat conversations

did not satisfy the "best evidence" rule.   "The best evidence

rule does not forbid the use of 'copies' of electronic records

(including e-mails and text messages and other computer data

files), because there is no 'original' in the traditional

sense."   Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 356 n.10

(2013).   Moreover, G. L. c. 233, § 79K, inserted by St. 1994, c.

168, § 1, permits the admission of a duplicate "computer data

file or program file."   We reject the premise implicit in the

defendant's argument that the best evidence of the writings

contained in the Facebook chat conversations between the

defendant and the victim "somehow . . . is found in the

[Facebook] servers" or that there is a "need to bring in the

computer [hard] drive itself" from which the messages were




     8
       Though the trial judge should have instructed the jury
that they were required to find by a preponderance of the
evidence that the defendant authored the Facebook chat messages,
see Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 737-738
(2014), the defendant neither requested such an instruction nor
objected to the instructions administered by the trial judge.
In light of the abundance of evidence that the defendant
authored the messages attributed to him, we discern no
substantial risk of a miscarriage of justice by reason of the
omission.
                                                                   14


downloaded.     Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 674-

675 (2011). 9

     2.    Ineffective assistance of counsel.   Citing his trial

counsel's opening statement, the defendant claims that he was

deprived of his constitutional right to the effective assistance

of counsel.     Specifically, he observes that his trial counsel

promised the jury that the defendant would testify at trial, but

then broke that promise when the defendant did not testify after

the Commonwealth rested its case. 10   The defendant did not raise


     9
       We recognize that by virtue of the manner in which the
conversations were retrieved, downloaded from the "Internet
cache" folders on the hard drives of the computers used by the
victim and defendant, the conversations were incomplete in some
respects, in the sense that there were gaps in some
conversations. However, that does not make the files that were
retrieved any less accurate or reliable as copies of the
portions of the conversations they reflected. The defendant
makes no claim that so much of the conversations as were
admitted were misleading or unintelligible by reason of any such
gaps, so as to implicate the doctrine of verbal completeness.
See Commonwealth v. Watson, 377 Mass. 814, 825-831 (1979). In
any event, the defendant made no request to supply additional
portions of the conversations to fill in any such gaps.
     10
          Counsel stated as follows:

          "There's another sort of bedrock cornerstone of our
     judicial system, if you will, and that's the right to
     remain silent. You may have heard this term before in
     movies and TV shows and so forth. It's a right to remain
     silent. And what it says, it's a principle of law that
     says the defendant, an individual who is charged with a
     crime, has no obligation to say anything. That person can
     remain silent. He can say to the government, 'Prove your
     case beyond a reasonable doubt. I'm going to remain silent
     and say nothing. It's on you to prove the case.' That's
     an absolute constitutional right. It's the Fifth
                                                                       15


his claim of ineffective assistance of counsel by means of the

preferred vehicle of a motion for a new trial.     See Commonwealth

v. Zinser, 446 Mass. 807, 810-811 (2006).     "While we could

speculate about defense counsel's rationale for proceeding the

way he did, the proper mechanism for advancing the defendant's

ineffective assistance claim is through a motion for a new

trial, which provides the opportunity for an evidentiary hearing

and findings related to the trial attorney's performance."

Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 552 (2006).       "The

occasions when a court can resolve an ineffective assistance

claim on direct appeal are exceptional, and our case law

strongly disfavors raising ineffective assistance claims on

direct appeal."   Zinser, supra at 809 n.2.    Such claims are

properly considered on direct appeal only "when the factual

basis of the claim appears indisputably on the trial record."

Id. at 811, quoting from Commonwealth v. Adamides, 37 Mass. App.

Ct. 339, 344 (1994).   This is not such a case.    Though the

record includes trial counsel's explanation to the jury of the


     Amendment. You've probably heard the term, 'I plead the
     Fifth.' And it's important in this case, because the
     government, the court, cannot make Mr. Gilman get on that
     witness stand and testify. They can't force it. But I'm
     going to tell you a secret. He's going to get on that
     witness stand. He's going to waive that Fifth Amendment
     privilege. He is going to waive that constitutional right
     to remain silent. He's going to take the witness stand and
     he’s going to testify and he's going to tell you his
     version of events, if you will, and his version of events
     are [sic] different than her version of events."
                                                                  16


change of plans at the beginning of his closing argument, 11 we

have no means of knowing whether that explanation is either

complete or accurate, nor have we any basis other than

speculation to assess what led counsel to frame his opening

statement as he did.    We conclude that the present case does not

fall within the narrow exception for cases in which a claim of

ineffective assistance of counsel may be resolved on the basis

of the trial record alone.

     3.    Other issues.   The defendant's remaining claims require

only brief discussion.     First, there is no merit to the


     11
          Trial counsel began his closing argument as follows:

          "Good morning, ladies and gentlemen. In my opening to
     you a few days ago I talked about this Fifth Amendment
     right not to testify, it is an absolute constitutional
     guarantee. And then I went on to tell you that I expected,
     fully, Mr. Gilman to take the witness stand and testify.
     That was before I knew what the testimony for sure was
     going to be from the Commonwealth witnesses. I didn't
     know, for example, that [the victim] was going to tell you
     that she lied to the grand jury and that she lied to you
     under oath.

          "I didn't expect, for example, that Ms. Bugbee, or
     Mrs. Bugbee, the friend of Mr. Gilman who testified, would
     talk about this statement that he gave to her when this all
     came out and he was relieved of his duties at the school,
     this statement where she asked him, "Did you do this? Did
     you touch her," and he said, "No, but it would appear from
     what I wrote that I did."

          "These things are our arguments. They are our
     defense, if you will. They came out through the testimony
     of the other witnesses. And a legal decision was made not
     to call Mr. Gilman to the witness stand; a legal decision
     was made."
                                                                   17


defendant's contention that the trial prosecutor misstated the

evidence in her closing and suggested that the defendant had

identified his next victim, a classmate of the victim's. 12   Read

in context, the reference plainly was designed to suggest that

the defendant sought to play on the victim's insecurities and

jealousy to keep her close to him, and did not suggest that the

defendant had designs on a second victim.   Though the defendant

did not use the precise words attributed to him by the

prosecutor, the evidence included a chat conversation in which

the victim revealed her concern that the defendant would leave

her for the classmate, and from which the jury could infer that

the defendant's response sought to exploit that insecurity.

Moreover, despite objecting to the comment trial counsel

expressly declined the judge's offer of a curative instruction.

Finally, the comment went to a collateral issue -- the

defendant's manipulation of the victim -- and not to the

question whether he actually engaged in the sexual conduct

described in his Facebook chats with the victim.




     12
          The prosecutor commented,

          "When he talks about manipulation, he tells her, 'I've
     been a teacher for a long time. I've been a teacher for a
     long time and I've never felt this way about any other
     student. But [the classmate], she's coming close.'
     Manipulation. The push. The pull. Draw her in and push
     her back out."
                                                                  18


     There is likewise no merit in the defendant's claim that

the trial judge erred in his failure to conduct individual voir

dire questioning of prospective jurors to determine whether they

had been victims of a childhood sexual offense.   Prior to

empanelment, the trial judge reviewed with both counsel the

questions he intended to pose to members of the venire,

including, "Have you or any family members or close friends ever

been the victim of sexual abuse?"   The judge then proposed to

pose the questions by means of a juror questionnaire, and to

examine jurors who responded "yes" individually, out of order.

Trial counsel expressed his satisfaction with that approach.

However, after a few jurors had been called forward for such

individual questioning, both the prosecutor and defense counsel

objected, and the judge agreed (again with the approval of

counsel) to conduct review of all jurors in order, with

individual voir dire on those with affirmative answers to the

question as they were reached.   Because the trial judge properly

exercised his discretion by conducting juror voir dire in the

manner to which both counsel agreed, and because the defendant

has failed to demonstrate that the agreed upon procedure either

constituted an abuse of discretion or exposed jurors to

influence by any extraneous factors, we discern no error and,

accordingly, no substantial risk of a miscarriage of justice.
                                                               19


See Commonwealth v. Lao, 443 Mass. 770, 778 (2005); Commonwealth

v. Vickery, 82 Mass. App. Ct. 234, 237 (2012).

                                   Judgments affirmed.
