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18-P-342                                              Appeals Court

                COMMONWEALTH   vs.   SCOTT E. FIELDING.


                            No. 18-P-342.

       Dukes.        November 13, 2018. - January 29, 2019.

              Present:   Milkey, Henry, & Englander, JJ.


Open and Gross Lewdness and Lascivious Behavior.
     Identification. Social Media. Evidence, Photograph,
     Authentication, Identification. Due Process of Law,
     Identification. Practice, Criminal, Identification of
     defendant in courtroom.



     Complaint received and sworn to in the Edgartown Division
of the District Court Department on May 16, 2016.

    The case was tried before J. Thomas Kirkman, J.


     Darla J. Mondou for the defendant.
     Elizabeth M. Carey, Assistant District Attorney, for the
Commonwealth.


    MILKEY, J.     A District Court jury convicted the defendant

of open and gross lewdness based on testimony that he had

masturbated in front of a woman (victim) in a health club sauna

in Tisbury.    The principal defense at trial was
                                                                       2


misidentification.    On appeal, the defendant challenges the

admission at trial of a photograph of a man that the victim

identified as the perpetrator the day after the incident, as

well as the victim's in-court identification of the defendant.

Discerning no error, we affirm.

    Background.1     1.    The incident.   On May 2, 2016, at

approximately 6:00 P.M., the victim was swimming laps at the

health club's pool.       A man whom she had not before met appeared

at the shallow end of the pool and began talking to her.        The

victim continued her workout but would pause to converse with

him in between her laps.       The man introduced himself to the

victim as "Scott," and the two interacted in the pool for

approximately fifteen minutes.

    After the victim completed her swimming, she and the man

she knew as "Scott" went into the hot tub, where they sat close

to each other and chatted some more.       They then each expressed


    1  Some of the evidentiary issues were resolved based on the
defendant's motion to suppress, on which the judge held an
evidentiary hearing. Given that what happened during the
victim's reporting of the incident lay at the heart of the
motion to suppress, the victim provided far more detail about
that issue during the motion hearing than she did at trial. Her
testimony about the events otherwise was consistent. The
description of the victim's reporting of the incident is drawn
from the oral findings that the judge made from the bench at the
conclusion of the motion hearing, supplemented slightly by
testimony at that hearing that the judge "explicitly or
implicitly credited." Commonwealth v. Jones-Pannell, 472 Mass.
429, 431 (2015), quoting Commonwealth v. Isaiah I., 448 Mass.
334, 337 (2007), S.C., 450 Mass. 818 (2008).
                                                                     3


an interest in going into the sauna.    When the victim arrived at

the sauna, "Scott" was already inside with the light off.     The

victim turned on the light and entered the sauna, and the two

conversed some more, bringing their total interaction to about

thirty minutes long.   The victim testified that she was "[o]ne

hundred percent certain" the person inside the sauna was the

same man from the pool and hot tub.    After chatting with "Scott"

for several minutes, the victim heard a "scratching" sound from

where he was sitting, and as she got up to leave the sauna, he

asked her, "[D]o you want to look?"    She turned and observed the

man stroking his genitalia, which shocked and angered her.

    2.   The reporting of the incident.    The following day, the

victim went to a sexual assault crisis center to report what had

happened.   She then reported it to the police.    That same day,

she returned to the health club for a yoga class, where she told

her instructor that something had occurred the day before that

might make it difficult to get through class.     The yoga

instructor convinced her to report whatever had happened to club

personnel, and the victim did so after class.     While the victim

was relaying the incident to the receptionist, the yoga

instructor came up to the victim and listened to her description

of the man.   According to the victim, the yoga instructor then

interjected "that she thought she knew him because [a man of

similar description] had approached her and her daughter."
                                                                   4


Then, on the club's computer, the yoga instructor located a

photograph of the man she was thinking of on the social media

Web site known as "Facebook."   She showed that photograph to the

victim, who identified the man depicted there as the one who

first had approached her in the pool and later had masturbated

in front of her in the sauna.

     3.   The video surveillance evidence.   Some areas of the

building in which the health club was located were monitored by

a video surveillance system.2   A still image from footage

recorded on the evening of the incident, time stamped at 6:35

P.M., showed someone apparently resembling the defendant exiting

the health club.3




     2 The judge held a voir dire prior to trial with the club
manager who maintained the video system, as well as the police
officer who went to the club to review the surveillance footage.
The purpose of the voir dire was to assess the defendant's
argument that the Commonwealth could not authenticate the video
still taken from the surveillance footage that it wanted to
introduce at trial. We need not review the facts relevant to
the authentication of the video still, because the defendant no
longer presses that claim on appeal.

     3 A police witness testified at trial that when the
defendant was arrested, he was wearing "very bright orange head
phones" and carrying a black backpack. Photographs of these
items were admitted without objection. In closing, the
Commonwealth pointed to the still image from the video
surveillance, which was entered as exhibit two at trial, and
highlighted that the man in the photograph was "wearing the
orange headphones with the black backpack." The Commonwealth
noted that the jurors would be able to examine the still image
during their deliberations and see that the man was wearing "the
very two things [the defendant] was wearing when he was
                                                                     5


     4.   The photographic array.4   Nine months after the

incident, the police showed the victim a photographic array,

which consisted of five photographs they showed to her serially.

She identified the photograph of the defendant as the person who

had masturbated in front of her.

     5.   Pretrial motions.    Prior to trial, the defendant filed

a motion to suppress the photograph that the yoga instructor had

found on Facebook (Facebook photo), the photographic array, and

any in-court identification.    Following an evidentiary hearing,

the judge made findings from the bench.    Subsequently, he

allowed the motion to suppress the photographic array on the

grounds that it was done so long after the incident and did not

comply with approved photographic array procedures in various

respects.   However, the judge denied the motion to suppress with

respect to the Facebook photo and any in-court identification.

     Immediately prior to trial, the defendant moved in limine

to exclude the Facebook photo on the ground that the

Commonwealth could not authenticate it.    The judge tabled a

ruling on that motion until he had a chance to review the case




apprehended by the police."

     4 As noted infra, the photographic array was suppressed and
therefore was not admitted or referenced at trial. The facts
about it are drawn from the findings the judge made at the
motion to suppress hearing. The propriety of the order
suppressing the photographic array is not before us.
                                                                       6


law and hear the trial evidence.    The defendant also moved --

again -- to preclude the victim from making an in-court

identification.   The judge announced that he was "going to deny

[that] motion at this point based on [his] earlier ruling."5

     6.   The use of the identification evidence at trial.

During the trial, the Facebook photo -- scrubbed of any text or

other potential indicator of its provenance -- and one of the

surveillance stills were admitted over the defendant's

objection.   The victim testified that the Facebook photo was

shown to her the day after the incident and that she at that

time identified the person shown there as the perpetrator.      The

victim also was allowed to identify the defendant as the

perpetrator in court, again over the defendant's objection.      She

testified that she was "[o]ne hundred percent certain" of that

identification.   After being given a jury instruction on

identification that closely hued to the one set forth in

Commonwealth v. Gomes, 470 Mass. 352, 379-388 (2015) (Appendix),

the jury convicted the defendant.




     5 In addition, the defendant moved in limine to exclude any
still photograph from the surveillance video because the
Commonwealth would be unable to authenticate it, and because of
the result of an alleged discovery violation. After holding a
voir dire of two witnesses with regard to the surveillance
still, the judge appeared to indicate that he was inclined to
allow such an exhibit in evidence, and in any event, he did so
at trial. On appeal, the defendant has not renewed his argument
that the surveillance still was inadequately authenticated.
                                                                       7


    Discussion.    1.    The Facebook photo.   The defendant argues

that the judge abused his discretion in concluding that the

Commonwealth had authenticated the Facebook photo adequately.

We disagree.   To establish authentication, the Commonwealth was

required to show "that the item in question is what the

proponent claims it to be."    Commonwealth v. Purdy, 459 Mass.

442, 447 (2011).   See Mass. G. Evid. § 901(a) (2018).      Notably,

the Commonwealth offered the Facebook photo only as a photograph

that the yoga instructor had shown the victim, not as a

photograph that had been displayed on the defendant's Facebook

page.   In addition, neither the victim nor any other witness

identified the person shown in the Facebook photo as the

defendant (leaving that issue instead to the jury).     With the

victim having testified that the Facebook photo was the one

shown to her, nothing more was required to authenticate it.

    The defendant also argues that the victim's being shown the

Facebook photo by the yoga instructor was so suggestive an

identification procedure that the judge erred in denying the

motion to suppress it.    The defendant points out that even

though the victim's exposure to the Facebook photo involved no

State action, the case law recognizes that it still could be

excluded under common-law principles of fairness.     See

Commonwealth v. Jones, 423 Mass. 99, 109 (1996).     As the Supreme

Judicial Court recently clarified, appellate review in this
                                                                      8


context is limited to whether the judge abused his discretion in

determining whether the probative value of the relevant evidence

was substantially outweighed by unfair prejudice.   Commonwealth

v. Johnson, 473 Mass. 594, 600-602 (2016).

    Applying that standard of review, we have little trouble

affirming the judge's decision.   This is not a case where the

eyewitness and the defendant had only fleeting contact.

Although their total time of interaction was only approximately

thirty minutes, the nature of their interaction provided the

victim with a solid basis for focusing on, and remembering, the

appearance of the person with whom she had been conversing one-

on-one in the pool, hot tub, and sauna.   Furthermore, the yoga

instructor's presenting the Facebook photo as an individual with

the same description who recently had approached her and her

daughter was not particularly conducive to misidentification.

Unlike a situation in which an eyewitness is presented with a

showup of someone already taken into police custody, the yoga

instructor's showing the victim the Facebook photo was not

particularly suggestive.   We are confident that the judge's

decision to allow the victim to testify about her pretrial

identification of the perpetrator in the Facebook photo did not

constitute "'a clear error of judgment in weighing' the factors

relevant to the decision such that the decision [fell] outside

the range of reasonable alternatives" (citation omitted).      L.L.
                                                                     9


v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (defining abuse

of discretion standard).

     2.   The in-court identification.   The defendant also argues

that the judge erred in allowing the victim to identify him in

court.    The primary ground on which he presses this argument is

that any in-court identification was unduly tainted by the yoga

instructor's having shown the victim the Facebook photo.6

However, for the reasons set forth above, we have rejected the

defendant's claim that the victim's being shown the Facebook

photo had to be excluded as unduly suggestive.    In addition, it

is uncontested that the victim looked at the Facebook photo only

briefly because she "didn't want to keep looking at it."    We are

confident that the victim's in-court identification was not

based on her passing exposure to the Facebook photo many months

before.

     Although the defendant's brief includes multiple citations

to Commonwealth v. Crayton, 470 Mass. 228 (2014), it does not

squarely rely on the key holding there that an eyewitness's in-

court identification should be precluded unless there was "good


     6 The defendant contends, albeit in passing, that the
surveillance still also should have been excluded because it was
tainted by the victim's exposure to the Facebook photo. His
theory seems to be that during their investigation, the police
themselves identified the defendant in the surveillance still
based on his resemblance to the Facebook photo. The defendant's
argument that this investigative procedure somehow tainted the
surveillance still lacks any merit.
                                                                    10


reason" for the eyewitness not having participated in a pretrial

identification procedure.   Id. at 241-242.7   In any event, such

an argument would be unavailing for two reasons.    First, given

that the victim here had such an extensive and intensive

opportunity to observe the defendant, we view this as being a

good reason to justify not having a pretrial identification.

See id. at 242 ("there may be 'good reason' for the first

identification procedure to be an in-court showup where the

eyewitness was familiar with the defendant before the commission

of the crime").   Second, the day after the incident, the victim

did identify the person in the Facebook photo as the

perpetrator, and the judge who heard the evidence taken at the

motion to suppress hearing specifically found that the person

shown in that photograph was the defendant.    Thus, even if a

pretrial identification had been required here before an in-

court identification properly could be allowed, that requirement

was satisfied.8


     7 The court in Crayton, 470 Mass. at 243, stated that "the
burden [is] on the prosecutor to move in limine to admit [an]
in-court identification of the defendant by a witness where
there has been no out-of-court identification." Here, the
defendant himself moved to exclude an in-court identification,
first through his motion to suppress and then through his motion
in limine. On appeal, he raises no issue regarding which party
moved first, and in any event, as explained below, we conclude
that there was an out-of-court identification here.

     8 We need not consider whether -- in assessing if Crayton
was satisfied -- we could take into account the victim's
                                                            11



                                  Judgment affirmed.




identification of the defendant in the photographic array
procedure that was excluded at trial.
