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18-P-83                                               Appeals Court

                 COMMONWEALTH   vs.   URBANO MEOLA.


                            No. 18-P-83.

          Middlesex.      November 1, 2018. - May 22, 2019.

               Present:   Agnes, Blake, & Neyman, JJ.


Obscenity, Dissemination of obscene matter to minor. Social
     Media. Evidence, Authentication, Digital image. Practice,
     Criminal, Motion for a required finding.



     Complaint received and sworn to in the Malden Division of
the District Court Department on August 18, 2016.

    The case was heard by Joseph W. Jennings, III, J.


     Mehmet Baysan for the defendant.
     Benjamin Lees (Kevin J. Curtin, Assistant District
Attorney, also present) for the Commonwealth.


    AGNES, J.    The defendant, Urbano Meola, appeals from his

conviction, following a jury-waived trial, of dissemination of

obscene material to a minor in violation of G. L. c. 272, § 28.

The defendant argues that the judge erroneously admitted in
                                                                   2


evidence a Facebook message1 and the accompanying video attached

to the message that was sent to the victim, the then seventeen

year old daughter of his former live-in girlfriend.   The video

depicted the defendant seated and unclothed, rubbing his penis

and his anus.2   For the reasons explained infra, the evidence

before the judge was sufficient to authenticate the Facebook

message as a digital communication sent to the victim by the

defendant.   See Mass. G. Evid. § 901(b)(4), (11) (2019).

Furthermore, we conclude that because the evidence presented by

the Commonwealth was sufficient to permit the judge to conclude

beyond a reasonable doubt that the defendant sent the video to

the victim, the judge did not err in denying the defendant's

motion for a required finding filed at the close of the

Commonwealth's case.

     Background.   Viewing the evidence in the light most

favorable to the Commonwealth, the judge could have found the

following facts.   The defendant and the victim's mother were in

a relationship for approximately nine years, ending in 2009.      In


     1 "Members [of social networking websites such as Facebook
and MySpace] create their own individual web pages (their
profiles) on which they post their own personal information,
photographs and videos, and from which they can send and receive
messages to and from others whom they have approved as their
'friends.'" 2 McCormick on Evidence § 227, at 20 (2013 & Supp.
2016).

     2 The video was marked Exhibit 1 and is part of the record
on appeal.
                                                                    3


2005, they had one daughter together, the victim's half-sister.3

The defendant and the mother never married, although they lived

together with the children and were at one time engaged.     The

victim was seventeen years old at the time of the events giving

rise to this case.    Neither the mother nor the children had any

contact with the defendant from the time the adults separated

until this incident.4

     On August 12, 2016, the victim received a message

notification on her cell phone from her Facebook account that

read:    "You have a message request from Urbano Meola."   There

was no text otherwise accompanying the notification, but rather

"just a screen that said 'play,'" alerting the victim that the

entirety of the communication was a video.

     The victim testified that she was "freaked out" and

"nervous" upon receiving the message because she and the

defendant had not communicated in any way since his relationship

with her mother had ended at least six years prior, and because

she and the defendant were not "friends" on Facebook.      The

account that sent the video bore the defendant's name and a




     3   The defendant was not the victim's father.

     4 There was evidence that several years after their
relationship ended, the mother went to the Department of Revenue
in an effort to collect child support from the defendant.
However, she testified that nothing came of it because "we
didn't know where he was."
                                                                     4


profile picture of the victim's younger half-sister, the

defendant's daughter.5   Later that evening, the victim watched

the thirty-second video, which, as noted above, depicts the

defendant seated and unclothed, rubbing his penis and his anus.

Within a day or two, the victim received a "friend request" via

Facebook from the same account that had sent the video of the

defendant.

     In addition to this testimony from the mother and the

victim, the judge heard testimony from Everett Police Officer

Nicole O'Donnell, who viewed the video of the defendant on the

victim's phone and wrote a police report.    Everett Police

Detective Nicholas Crowell also testified.    He spoke to the

victim's aunt, who had accompanied the victim to the police

station and had forwarded the video to him via an e-mail message

(e-mail).    Detective Crowell described the video in question as

a "thirty-one-second video of a male showing his genitalia area.

It's viewed from down below, looking up towards the person in

the video."    After speaking with Officer O'Donnell, Detective

Crowell identified the male in the video as the defendant based

on a photograph he had obtained from the registry of motor

vehicles.    On August 17, 2016, the defendant was arrested in his




     5 There is no evidence that further describes the photograph
of the victim's half-sister. While the photograph was the
subject of oral testimony, it was not introduced in evidence.
                                                                    5


room at a rooming house in Revere.   No computers, cell phones or

digital devices were in the defendant's room or on his person at

the time of his arrest, and neither the police nor the

Commonwealth ever sought to obtain a search warrant seeking any

electronic devices owned by or accessible to the defendant.

     The judge admitted into evidence the video the victim had

received.   However, finding that the prosecutor had failed to

comply with the requirement of Mass. R. Crim. P. 17 (a) (2), 378

Mass. 885 (1979), that, prior to trial, subpoenaed records must

be delivered to the clerk's office, the judge excluded records

proffered by the prosecutor and described as user information

relating to the Facebook account of the person who had sent the

video (Facebook account records).

     Discussion.   General Laws c. 272, § 28, provides, in

pertinent part, that "[w]hoever purposefully disseminates to a

person he knows or believes to be a minor any matter harmful to

minors, as defined in [G. L. c. 272, § 31], knowing it to be

harmful to minors, . . . shall be punished . . . ."   The term

"purposely" is generally understood to mean deliberately or

intentionally, as opposed to accidentally.6   The term "matter,"

as used in § 28, is defined broadly and includes a video like


     6 Compare "purposeful," defined as "having a purpose: as
(a) meaningful, (b) intentional." Merriam-Webster's Collegiate
Dictionary 1011 (11th ed. 2005). Cf. Commonwealth v. York, 9
Met. 93, 105 (1845) (defining malice).
                                                                   6


the one involved in this case.7   The term "disseminates," as used

in § 28, also is defined broadly and includes circumstances in

which a video is attached to a Facebook message and transmitted

electronically to another Facebook subscriber as happened in

this case.8   The term "knowing," as used in § 28, is defined as

"a general awareness of the character of the matter."   G. L.

c. 272, § 31.   Finally, "harmful to minors," as used in § 28,

includes matters which meet the definition of obscenity.9


     7 The term "matter" is defined in G. L. c. 272, § 31, as
follows:

     "[A]ny handwritten or printed material, visual
     representation, live performance or sound recording
     including, but not limited to, books, magazines, motion
     picture films, pamphlets, phonographic records, pictures,
     photographs, figures, statues, plays, dances, or any
     electronic communication including, but not limited to,
     electronic mail, instant messages, text messages, and any
     other communication created by means of use of the Internet
     or wireless network, whether by computer, telephone, or any
     other device or by any transfer of signs, signals, writing,
     images, sounds, data, or intelligence of any nature
     transmitted in whole or in part by a wire, radio,
     electromagnetic, photo-electronic or photo-optical system."

     8 The term "disseminates" is defined in G. L. c. 272, § 31,
as "to import, publish, produce, print, manufacture,
distribute, sell, lease, exhibit or display."

     9 The phrase "harmful to minors" is defined in G. L. c. 272,
§ 31, as follows:

     "[M]atter is harmful to minors if it is obscene or, if
     taken as a whole, it (1) describes or represents nudity,
     sexual conduct or sexual excitement, so as to appeal
     predominantly to the prurient interest of minors; (2) is
     patently contrary to prevailing standards of adults in the
     county where the offense was committed as to suitable
                                                                      7


     The defendant did not object to the testimony by the mother

and the victim that the person in the video was the defendant,

and no question in that regard is raised on appeal.10    The

defendant does not question that the video was disseminated to

the victim, or that it was a matter that is harmful to minors,

within the meaning of G. L. c. 272, § 28.     Rather, the defendant

argues on appeal that the video and the communication that it

was attached to were admitted without a proper evidentiary

foundation because the Commonwealth failed to authenticate the

digital message containing the video as a message purposefully

sent by him.

     1.    Authentication as a condition of relevance.   "The

general rule to be followed in this Commonwealth is that all

relevant evidence is admissible unless within an exclusionary

rule.     Evidence is relevant if it renders the desired inference

more probable than it would be without the evidence."     Poirier



     material for such minors; and (3) lacks serious literary,
     artistic, political or scientific value for minors."

     10The defendant did object prior to trial to any
identification testimony by either of the police officers who
testified. Detective Crowell testified over objection that he
located the person depicted in the video by examining a registry
of motor vehicles photograph of the defendant. We construe the
judge's ruling in context as admitting the evidence for the
limited purpose of explaining how the police came into contact
with the defendant. See Commonwealth v. Cordle, 404 Mass. 733,
743-744 (1989). In any case, at trial and in his closing
argument, the defendant did not dispute that he is the person
depicted in the video.
                                                                    8


v. Plymouth, 374 Mass. 206, 210 (1978).11    "Authentication

represents a special aspect of relevancy in that evidence cannot

have a tendency to make the existence of a disputed fact more or

less likely if the evidence is not that which its proponent

claims" (citations and quotation omitted).    United States v.

Branch, 970 F.2d 1368, 1370 (4th Cir. 1992).    For this reason,

authentication of digital evidence such as an e-mail, an

electronic message using a social media platform, a screenshot

from a website, or a videotape recording "is a condition

precedent to its admissibility."    Commonwealth v. Foster F., 86

Mass. App. Ct. 734, 737 (2014).12


     11In order to be admissible at trial, relevant evidence
must, of course, make a fact of consequence in the proceeding
more or less probable. Harris-Lewis v. Mudge, 60 Mass. App. Ct.
480, 485 (2004). See Mass. G. Evid. § 401 (2019).

     12See, e.g., Commonwealth v. Caruso, 476 Mass. 275, 291
(2017) (error to admit certain screen shots from defendant's
computer because there was no foundational evidence indicating
that "the defendant had ever accessed the information depicted
in the screen shots"); Commonwealth v. Purdy, 459 Mass. 442,
450-451 (2011) (judge properly admitted series of e-mail
exchanges based on "this threshold: in addition to the e-mails
having originated from an account bearing the defendant's name
and acknowledged to be used by the defendant, the e-mails were
found on the hard drive of the computer that the defendant
acknowledged he owned, and to which he supplied all necessary
passwords"); Commonwealth v. Williams, 456 Mass. 857, 868–869
(2010) (electronic MySpace message inadmissible where proponent
provided no foundation identifying who sent message);
Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 586-588 (2017)
(police officer's testimony about contents of missing
surveillance video should not have been admitted because
Commonwealth did not lay sufficient foundation to demonstrate
that video was genuine representation of events that occurred on
                                                                   9


    With regard to the authentication of evidence, the judge

has a gatekeeper role, which requires the judge to assess the

evidence and determine whether the jury or judge, acting as the

fact finder, could find that the item in question is what its

proponent claims it to be.   See Mass. G. Evid. § 104(b) (2019).13



night in question); Commonwealth v. Gilman, 89 Mass. App. Ct.
752, 758-759 (2016) (Facebook chat conversations sufficiently
authenticated based on evidence that they originated from
account bearing defendant's name and including his photograph,
and were found on hard drive of two laptop computers issued to
defendant by his employer with access limited to defendant by
use of user name and password). See also Mass. G. Evid.
§ 901(a), (b)(11) (2019). See generally Tienda v. State, 358
S.W.3d 633, 638 (Tex. Crim. App. 2012).

    13 "The role of judge as 'gatekeeper' is essential to
authentication, because of jurors' tendency, 'when a corporal
object is produced as proving something, to assume, on sight of
the object, all else that is implied in the case about it,' for
which Wigmore provided the following example:

    'It is easy for a jury, when witnesses speak of a horse
    being stolen from Doe by Roe, to understand, when Doe is
    proved to have lost the horse, that it still remains to be
    proved that Roe took it; the missing element can clearly be
    kept separate as an additional requirement. But if the
    witness to the theft were to have a horse brought into the
    courtroom, and to point it out triumphantly, "If you doubt
    me, there is the very horse!", this would go a great way to
    persuade the jury of the rest of his assertion and to
    ignore the weakness of his evidence of Roe's complicity.
    The sight of the horse, corroborating in the flesh, as it
    were, a part of the witness' testimony, tends to verify the
    remainder.' [7 J.] Wigmore, [Evidence] § 2129 [(Chadbourn
    Rev. 1978)]." (Emphasis omitted.)

Sublet v. State, 442 Md. 632, 656 (2015).

     Cases sometimes refer to the gatekeeper's determination as
a preliminary finding of fact under Massachusetts law, reflected
in Mass. G. Evid. § 104(b), as well as under Federal law, see
                                                                  10


In the case of a digital communication that is relevant only if

authored by the defendant, a judge is required to determine

whether there is sufficient evidence to persuade a reasonable

trier of fact that it is more likely than not that the defendant

was the author of the communication.   See Commonwealth v. Purdy,

459 Mass. 442, 447 (2011); Commonwealth v. Oppenheim, 86 Mass.

App. Ct. 359, 366-367 (2014).   We review a judge's preliminary

determination of conditional relevancy under Mass. G. Evid.

§ 104(b) under an abuse of discretion standard.   See

Commonwealth v. Leonard, 428 Mass. 782, 786 (1999) ("these

preliminary determinations are committed to the sound discretion

of the judge . . . [whose] decision will be upheld on appeal

absent palpable error" [quotation and citation omitted]).     That

standard means that we will not disturb the judge's ruling

absent a clear error of either law or "judgment in weighing the

relevant factors."   Commonwealth v. Brown, 477 Mass. 805, 820




Fed. R. Evid. 104(b) (2019). However, it is more accurate to
describe the judicial function under § 104(b) as a preliminary
assessment or screening of the evidence, because the judge does
not make a determination of credibility under § 104(b). "In
determining whether the Government has introduced sufficient
evidence to meet Rule 104(b), the trial court neither weighs
credibility nor makes a finding that the Government has proved
the conditional fact by a preponderance of the evidence. The
court simply examines all the evidence in the case and decides
whether the jury could reasonably find the conditional fact
. . . by a preponderance of the evidence." Huddleston v. United
States, 485 U.S. 681, 690 (1988).
                                                                     11


(2017), citing L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

     2.   Admission of the Facebook account records.   Prior to

trial, the defendant objected to the Commonwealth's motion in

limine to admit Facebook account records pertaining to "an

account registered to Urbano Meola" and obtained by the

Commonwealth pursuant to a subpoena for business records

directed to Facebook under Mass. R. Crim. P. 17.   In particular,

the defendant argued that the records in question were not

"certified," because there was no affidavit from a keeper of the

records or a witness who would identify them as business records

maintained by Facebook.   In response, the prosecutor explained

that a request for the records had been made to Facebook via the

Internet through the Facebook "online request system," asking

that the records be delivered to the court clerk's office.     The

prosecutor indicated that she had a copy of the records, and she

assumed a copy was in the clerk's office.14   However, there was


     14The prosecutor further explained, "I know that the policy
of Facebook is, being a newer company, they sent a basically
encrypted link to us to allow us to access them, and my
understanding is that that link was also sent to the clerk's
office. Whether or not the clerk's office opened it, I'm not
sure." Later, the judge reported that the "clerk's office does
not have any envelopes regarding the defendant. I don't know
that that's specifically what you said would have happened.
. . . They would have sent some type of electronic
communication to the court?" The prosecutor responded
affirmatively, "because that is what the Commonwealth received.
And our request and the order was that it be sent to the clerk's
                                                                  12


neither a showing that such records were received by the clerk's

office nor any evidence to support their authentication.

Without resolving the disagreement over whether the Facebook

account records had been authenticated, the judge ruled that the

records in question were not admissible because the Commonwealth

did not comply with rule 17.   See Commonwealth v. Hart, 455

Mass. 230, 243 (2009) (when records are subpoenaed before trial

pursuant to Mass. R. Crim. P. 17 [a] [2], record keeper must

deliver them to clerk's office; thereafter, judge may allow

parties and their attorneys to inspect and copy them; such

records should not be delivered directly to requesting party).

     On appeal, the Commonwealth does not take issue with this

ruling.15   The question before us thus becomes whether the judge

abused his discretion or committed palpable error in determining

that, even without the benefit of the Facebook account records,

a fact finder could find that it was more likely than not that

the Facebook message was authentic and, in particular, that it

was sent by the defendant.16



office, and we received it, and my understanding was that the
clerk's office would also receive it."

     15The Facebook account records were not marked for
identification and are not part of the record before us.

     16There was a separate requirement that the video be
authenticated apart from the Facebook message. That requirement
was satisfied by the direct evidence consisting of the testimony
of the victim and others that she received the video as part of
                                                                   13


     3.   Authentication of the Facebook message.   The defense

challenged the admission of the Facebook message by means of a

pretrial motion in limine,17 on grounds that there was an

insufficient factual basis to establish that the message

received by the victim to which the video was attached was a

communication sent by the defendant.   In Purdy, 459 Mass. 442,

the Supreme Judicial Court clarified the test for authenticating

digital evidence that is not self-authenticating18 and where

there is no direct evidence available.19   First, Purdy makes it




a Facebook message and that the video depicted the defendant,
Urbano Meola.

     17"Motions in limine concerning the introduction or
exclusion of purportedly relevant evidence are properly made and
considered before and during trial, in advance of the evidence
being offered." Commonwealth v. Spencer, 465 Mass. 32, 42
(2013). See Mass. G. Evid. § 103(f) (2019).

     18Self-authenticated documents include copies of documents
recorded or filed in a public office and bearing "the
attestation of the officer who has charge of the item . . . ."
Mass. G. Evid. § 901(b)(7)(B) (2019).

     19There is direct evidence of authentication where, for
example, someone with personal knowledge testifies that an item
is what it is claimed to be. See Commonwealth v. LaCorte, 373
Mass. 700, 704 (1977) (authentication established by "testimony
from the officer who had taken the defendant's fingerprints that
the proffered card was the one used in the fingerprinting"). In
the case of business records, authentication can be established
if a witness testifies that he is familiar with the business's
record-keeping system and that the records in question "were
made in good faith, kept in the normal course of business," made
before the civil or criminal proceeding in which they are
offered, and were relied on by the business's personnel.
Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 480 (2017).
                                                                  14


clear that there is no requirement that there be direct evidence

to support a determination that a digital communication was sent

by the defendant.   Rather, a judge making this threshold

determination may consider circumstantial evidence and look to

"'confirming circumstances' sufficient for a reasonable jury to

find by a preponderance of the evidence that the defendant

authored the [electronic communication; here, the Facebook

message containing the video]."   Id. at 450, citing Commonwealth

v. Hartford, 346 Mass. 482, 488 (1963).20   Second, Purdy, supra,

makes it clear that the mere possibility that a digital

communication was fraudulently sent by someone other than the

person associated with a particular social media or e-mail

account from which the communication originated is not a bar to

its authentication.21   The principles set forth in Purdy are

embodied in Mass. G. Evid. § 901(b)(11), and we have applied




     20Direct or circumstantial evidence may authenticate
proffered evidence. Such authenticating evidence may include
the "appearance, contents, substance, internal patterns, or
other distinctive characteristics of the item, taken together
with all the circumstances." Mass. G. Evid. § 901(b)(4).

     21See Purdy, 459 Mass. at 450, quoting United States v.
Safavian, 435 F. Supp. 2d 36, 41 (D.D.C. 2006) ("The possibility
of alteration does not and cannot be the basis for excluding e-
mails as unidentified or unauthenticated as a matter of course,
any more than it can be the rationale for excluding paper
documents").
                                                                  15


them in a number of decisions.22    Third, in the absence of direct

evidence, the common-law principles that have guided judges in

determining, as a preliminary matter, whether written documents

are authentic, see Mass. G. Evid. § 901(b)(4), are applicable to

authentication issues in the context of digital communications.

See Purdy, 459 Mass. at 448-450.    See also United States v.

Browne, 834 F.3d 403, 412 (3d Cir. 2016) ("[I]t is no less

proper to consider a wide range of evidence for the

authentication of social media records than it is for more

traditional documentary evidence.    The authentication of

electronically stored information in general requires




     22See, e.g., Gilman, 89 Mass. App. Ct. at 758-759
(sufficient confirming circumstances demonstrating that
defendant authored Facebook messages attributed to him where
account from which messages originated bore his name and
picture, messages were downloaded from hard drives of two laptop
computers issued to him by his employer and to which only he
knew passwords, corroborating text messages initiating Facebook
exchanges were sent from defendant's cell phone to victim's cell
phone, and chats were "replete with personal references,"
including to events in which only defendant and victim
participated and their nick names for each other); Oppenheim, 86
Mass. App. Ct. at 368 (sufficient confirming circumstances
linking defendant to instant message communications included
"familiar tone of the exchange," and defendant's reference in
instant message to specific information from prior discussions
with recipient); Commonwealth v. Amaral, 78 Mass. App. Ct. 671,
674-675 (2011) (e-mail communications properly authenticated by
defendant's conforming behavior in waiting at specific time and
place to meet undercover officer posing as underage prostitute
and defendant's answering his cell phone when officer called).
See also Connolly, 91 Mass. App. Ct. at 588 (requirement of
authentication applied to testimony by police witness concerning
contents of missing videotape).
                                                                   16


consideration of the ways in which such data can be manipulated

or corrupted, . . . and the authentication of social media

evidence in particular presents some special challenges because

of the great ease with which a social media account may be

falsified or a legitimate account may be accessed by an imposter

. . . .    But the authentication rules do not lose their logical

and legal force as a result"); Mass. G. Evid. § 901(a), (b)(4).

    In response to the judge's request for an offer of proof

concerning the authentication of the Facebook message to which

the video was attached, the prosecutor informed the court that

the message was received by the victim as a "Facebook message"

on her cell phone as described above, that the victim had not

seen or heard from the defendant during the past six or seven

years, that the name on the account of the sender of the message

was that of the defendant, "Urbano Meola," and that the video

appeared to be self-authored.   The judge also had been informed

that the Facebook message included a photograph of the

defendant's biological daughter (the victim's half-sister) and

that several days after the victim received the offensive

Facebook message, she received a "friend request" from the same

account.   The judge ruled that the video was admissible and that

he would allow the victim to testify as to how she believed the

video had come to her.
                                                                  17


    Although we have not found a Massachusetts case or a

published opinion from another jurisdiction with facts exactly

like those involved in this case, we conclude that the judge did

not abuse his discretion in determining that the foundational

facts constituted sufficient confirming circumstances to

authenticate the Facebook message as having been sent by the

defendant.   First, we are mindful that the standard of review as

to a judge's preliminary determination of authentication is

deferential.   See Leonard, 428 Mass. at 786 (prior bad act

evidence).   Moreover, by its nature, the judge's preliminary

determination under Mass. G. Evid. § 104(b) is not conclusive

and requires the finders of fact to make their own independent

determination of the same question before they may consider the

evidence.    See Commonwealth v. Alden, 93 Mass. App. Ct. 438, 443

(2018) (trial judge instructed jury that "before they could

consider the content of the text messages, the jury must be

satisfied by a preponderance of the evidence that the messages

had been sent by the defendant").    "Thus, after the proponent of

the evidence has adduced sufficient evidence to support a

finding that the proffered evidence is what it is claimed to be,

the opposing party remains free to challenge the reliability of

the evidence, to minimize its importance, or to argue

alternative interpretations of its meaning, but these and

similar other challenges go to the weight of the evidence -- not
                                                                   18


to its admissibility" (quotation, citation, and emphasis

omitted).   United States v. Vayner, 769 F.3d 125, 131 (2d Cir.

2014).    See Commonwealth v. Parrotta, 316 Mass. 307, 313

(1944).23   Second, there is nothing in Purdy, the seminal

Massachusetts decision on the authentication of digital

evidence, or any other authoritative decision from Massachusetts

or any other jurisdiction of which we are aware that precludes a

judicial determination that digital evidence may be

authenticated circumstantially based on its contents and the

surrounding circumstances, even where, as here, there was no

evidence of:   a course of dealing between the defendant and the

victim prior to the victim's receipt of a digital communication,

account information supplied by the social media platform

through which the message was sent, the Internet protocol (IP)

address of the computer or device from which the message was

sent,24 or evidence that a copy of the message was found on a


     23As noted earlier, the instant case was tried before a
judge without a jury. The defendant did not file any requests
for rulings of law. See Mass. R. Crim. P. 26, 378 Mass. 897
(1979). "A trial judge sitting without a jury is presumed,
absent contrary indication, to have correctly instructed himself
as to the manner in which evidence is to be considered in his
role as factfinder." Commonwealth v. Batista, 53 Mass. App. Ct.
642, 648 (2002).

     24"All computers that connect to the Internet identify each
other through a unique string of numbers known as an . . . IP
address. . . . In general, when a subscriber purchases Internet
service from an Internet service provider (ISP), the ISP selects
from a roster of IP addresses under its control and assigns a
                                                                   19


device in the possession or under the control of the defendant.25

Here, the judge not only had evidence that the Facebook message

was from an account in the name of "Urbano Meola," but he also

had evidence that the attached video depicted the "Urbano Meola"

who is the defendant.   And, the content of the attached video

revealed highly intimate and personal details about the

defendant that, because it was self-authored,26 would be known

only to the defendant or someone with whom he chose to share it.

There was no evidence before the judge that the attached

videotape had been shared with anyone else or otherwise

published.   Simply because evidence is digital or electronic in

nature, as opposed to documentary, does not necessarily mean

that it is widely available to others or to anyone other than

its maker.   Finally, the Facebook message also included a

profile picture of the defendant's biological daughter.      Again,




unique IP address to the subscriber at a particular physical
address. . . . The IP address assigned to a particular
subscriber may change over time, but the ISP keeps a log of
which IP address is assigned to each subscriber at any given
moment in time." Commonwealth v. Martinez, 476 Mass. 410, 410–
411 (2017).

     25See Parker v. State, 85 A.3d 682, 687-688 (Del. 2014).
See also United States v. Sutton, 426 F.2d 1202, 1207 & n.37
(D.C. Cir. 1969), quoting 7 J. Wigmore, Evidence § 2148 (3d ed.
1940).

     26As noted earlier, Detective Crowell described the video
in question as having been taken "from down below, looking up
towards the person in the video."
                                                                  20


there was no evidence before the judge that this image had been

published or was generally available to persons other than the

defendant.   And, the victim received a follow-up "friend

request" from the same account a few days after she received the

offensive videotape.   Bearing in mind that "the possibility of

alteration does not and cannot be the basis for excluding e-

mails as unidentified or unauthenticated as a matter of course,"

Purdy, 459 Mass. at 450 (citation and emphasis omitted), we

conclude that these "confirming circumstances" provided a basis

for the judge's preliminary determination under Mass. G. Evid.

§ 104(b), that the Facebook message was an authentic

communication from the defendant.27   We reiterate, however, that

in order to authenticate a digital communication such as a

Facebook message, the proponent of the evidence must present

"confirming circumstances" beyond simply the fact that the

message was sent from an account in the name of the alleged

author.28


     27See generally Grimm, Cappa, & Joseph, Authenticating
Digital Evidence, 69 Baylor L. Rev. 1, 11 (2017) ("It is a
mistake for a judge to require the party introducing digital
evidence to prove that no one other than the purported maker
could have created the evidence if the introducing party has
shown that, more likely than not, it was created by a particular
person, unless there is evidence [not argument] that some other
person could have done so").

     28Cases illustrating deficiencies in the evidence offered
to authenticate electronic communications include the following:
Devbrow v. Gallegos, 735 F.3d 584, 586-587 (7th Cir. 2013)
                                                                  21


    4.    Sufficiency of the evidence.    When we review the denial

of a motion for a required finding of not guilty, we ask

"whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt"

(emphasis omitted).   Commonwealth v. Latimore, 378 Mass. 671,

677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318–319

(1979).   A fact finder may draw inferences based on common

experience, so long as the inferences are reasonable and

possible, even though not necessary.     See, e.g., Commonwealth v.

Mazariego, 474 Mass. 42, 46 (2016).      In assessing the

sufficiency of the evidence, at least in cases where it is based

in part on the testimony of witnesses, we also bear in mind that

"[t]he weight . . . of the witnesses' testimony [is] solely for

the fact finder and [is] not [a] proper subject[] for appeal"




(plaintiff failed to authenticate e-mail he allegedly received
from defendant prison official where no circumstantial evidence
presented indicating it was genuine); State v. Eleck, 130 Conn.
App. 632, 641-642 (2011) (messages shown to have originated from
Facebook account were not authenticated in circumstances in
which account holder testified that her account had been hacked
and content of messages did not bear any distinctive
characteristics suggesting that they were sent by account
holder); Smith v. State, 136 So. 3d 424, 434 (Miss. 2014)
(authentication of Facebook messages not established by evidence
that they originated from account in defendant's name and were
accompanied by "small, grainy, low-quality photograph" that
could not be determined to be that of defendant). See also
United States v. Jackson, 208 F.3d 633, 638 (7th Cir. 2000).
                                                                    22


(citation omitted).    Commonwealth v. Lewis, 91 Mass. App. Ct.

651, 663 (2017).

    In the present case, on the basis of the Facebook message

from "Urbano Meola" to the victim, including a profile picture

of the defendant's biological daughter (the victim's half-

sister), accompanied by what could be found to be a self-

authored video of the defendant, unclothed and touching his

penis and anus, along with the evidence that the defendant, his

biological daughter, the victim's mother, and the victim lived

in the same household for six years, the judge, as the finder of

fact, was warranted in concluding beyond a reasonable doubt that

the defendant purposefully disseminated matter harmful to a

minor to the victim, knowing that she was a minor, in violation

of G. L. c. 272, § 28.    See Commonwealth v. Mienkowski, 91 Mass.

App. Ct. 668, 673 (2017).   Accordingly, there was no error in

denying the defendant's motion for a required finding.

    Conclusion.     For the above reasons, the Facebook message

was sufficiently authenticated as having been sent to the victim

by the defendant.   The defendant's motion in limine seeking its

exclusion from evidence was properly denied.    The judge, as the

finder of fact, was warranted in considering that the Facebook

message was sent by the defendant.    Taken as a whole, the

evidence presented by the Commonwealth was sufficient to permit
                                                           23


the judge to conclude beyond a reasonable doubt that the

defendant violated G. L. c. 272, § 28.

                                   Judgment affirmed.
