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                              Appellate Court                           Date: 2017.09.18
                                                                        09:12:06 -05'00'




                    People v. Kent, 2017 IL App (2d) 140917



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOS, Plaintiff-Appellee, v.
Caption           LORENZO KENT, JR., Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-14-0917



Filed             June 27, 2017



Decision Under    Appeal from the Circuit Court of Winnebago County, No.
Review            13-CF-1611; the Hon. Fernando L. Engelsma, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Christopher M. McCoy, of
Appeal            State Appellate Defender’s Office, of Elgin, for appellant.

                  Joseph P. Bruscato, State’s Attorney, of Rockford (Patrick Delfino,
                  Lawrence M. Bauer, and Joan M. Kripke, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE BURKE delivered the judgment of the court, with opinion.
                  Justices McLaren and Zenoff concurred in the judgment and opinion.
                                             OPINION

¶1       In the direct appeal of his first degree murder conviction, defendant, Lorenzo Kent, Jr.,
     argues that (1) he was not proved guilty beyond a reasonable doubt because the State’s
     witnesses were not credible, (2) the trial court erred in admitting a Facebook post without
     sufficient authentication, and (3) the court erred in admitting the unauthenticated,
     computer-generated records of a phone allegedly used by defendant and in allowing the State
     to use inadmissible hearsay evidence of the victim’s phone number to show that defendant
     called him repeatedly on the date of the offense. We reverse and remand.

¶2                                        I. BACKGROUND
¶3       Defendant was convicted of first degree murder in that he, while armed with a firearm,
     without lawful justification, and with the intent to kill or do great bodily harm to Donmarquis
     Jackson, shot and killed him. See 720 ILCS 5/9-1(a)(1) (West 2012). Defendant received an
     extended-term sentence of 55 years’ imprisonment for personally discharging the weapon. See
     730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2012).
¶4       On the evening of May 6, 2013, Donmarquis was shot in the driveway of 1428 Nelson
     Boulevard in Rockford, where he resided with his girlfriend, Doris Gregory, and her mother,
     Sally Gregory. Donmarquis did not get along with his former girlfriend, Kimiko Wilson, who
     was in a relationship with defendant around the time of the shooting. Donmarquis and Kimiko
     had two children together. Two days before the murder, defendant accompanied Kimiko to
     1428 Nelson Boulevard and was involved in a violent altercation with Donmarquis and
     Donmarquis’s friend, Deshon Thompson. People v. Kent, 2016 IL App (2d) 140340.
¶5       Before trial, the parties filed opposing motions in limine disputing the admissibility of a
     screenshot of a post on a Facebook profile under the name “Lorenzo Luckii Santos.” The day
     after the murder, a detective took a screenshot of the post, which showed a photograph of
     someone allegedly resembling defendant and an undated post that read, “its my way or the
     highway…..leave em dead n his driveway.”
¶6       At the hearing on the motions, the parties disputed whether the State could lay an adequate
     foundation. The State represented that it would introduce evidence at trial that (1) Santos was
     the last name of defendant’s mother, (2) Donmarquis was killed in his driveway, (3) the
     photograph resembled defendant, and (4) “Facebook records will have an IP [Internet
     protocol] address that belongs to Kimiko.” The court granted the State’s motion, ruling that the
     Facebook post was admissible “subject to foundational requirements” being met at trial.

¶7                                      A. The State’s Case
¶8                                          1. Genesis
¶9       The State’s evidence consisted primarily of the testimony of two teenagers who had not
     previously known defendant but had spent time with him or observed him on the date of the
     offense. Genesis Burrell was 14 years old on the date of the shooting. The day before the
     shooting, Genesis got into an argument with her mother and spent the night at the home of her
     friend Mikayla Allen. The next morning, when Mikayla went to school, Genesis went to
     Blackhawk Park and fell asleep. Defendant, whom she did not know, woke her and said that
     his name was Lucky. Defendant was wearing all black and had a “Dora the Explorer” book

                                                -2-
       bag. On the left side of his neck, he had a “pretty good size” black star tattoo. Defendant told
       Genesis that his kids had been taken away because of “his baby mama’s boyfriend,” named
       “Don.” Defendant explained that he had fought with Don a couple of days before and wanted
       to kill him. Defendant asked Genesis to walk past Don’s house to see if he would come out, and
       Genesis agreed. While they were walking past the house, defendant asked for Genesis’s jacket,
       which he put over his head.
¶ 10       Genesis and defendant returned to the park and got into a truck. A man and a woman,
       whom defendant appeared to know, were already inside. Defendant told them that “he had
       gotten into a fight with his baby mama’s boyfriend and his [kids] had got taken.” The woman
       made a phone call, and defendant began yelling that the person on the phone “wasn’t a real
       man.” They stopped at a gas station, where the woman got out. Defendant took a gun and
       bullets out of the book bag. He said that he had put “Vaseline” on the bullets and was not going
       to miss. When the woman returned to the truck, they drove back to the park and defendant and
       Genesis got out. Genesis felt “extremely scared” but did not leave, because she “couldn’t get
       away at that point.”
¶ 11       Genesis and defendant walked to a beauty supply store, but she did not go inside. Genesis
       walked into a nearby “Mexican place” but did not call the police or ask anyone for help. While
       they were near the beauty supply store, defendant asked Genesis for a cell phone. Genesis
       knew that Mikayla had one, so they walked to her bus stop and waited for her. After Mikayla
       got off the bus, they all walked to Blackhawk Park, where Mikayla charged her phone.
¶ 12       Defendant used Mikayla’s phone to ask someone for “Don’s number.” Defendant said that
       they were waiting for a text message, but it did not come. Defendant made a couple of calls, but
       Genesis thought that he did not speak to anyone. Genesis pretended to make a call, after which
       she told defendant that she and Mikayla were going to get Don. They went to Mikayla’s house
       instead.
¶ 13       Genesis spent an hour at Mikayla’s house, but she did not call the police or tell an adult
       what had happened. Mikayla’s grandmother drove Genesis to Wesley Johnson’s house. Later
       that evening, Genesis went back to Blackhawk Park with Wesley, his sister Alice, and other
       friends. Genesis saw defendant, who had changed clothes. He was wearing all red and had a
       black “do rag” on his head. He was also carrying a black book bag. While Genesis was with
       Wesley, Alice, and others, defendant approached and said, “I guess it didn’t go through.”
       Genesis told Wesley that defendant had a gun, but Wesley did not believe her.
¶ 14       Genesis left the park with Wesley, Alice, and others. Defendant had already left the park,
       walking in a different direction. Genesis began walking to Wesley’s house. On her way, she
       saw defendant again and hid in the bushes. At Wesley’s house, Genesis was eating with
       Wesley and his family when she heard gunshots and sirens. They all went outside.
¶ 15       Genesis spent the night at Mikayla’s house. The next morning, a police officer came to pick
       up Genesis because she had run away from home. The officer placed her in the back of a squad
       car and mentioned that there had been a shooting on Nelson Boulevard. Genesis began telling
       the officer about defendant. She said that she first met defendant when she was at the park with
       Wesley and other people. She described defendant’s gun as a revolver and a “.38 special.”
¶ 16       Later, Genesis gave the police a written statement that defendant had directed her to call
       someone. “Don” answered the phone and told her to stop calling. He said that he had gotten
       into a fight a couple of days ago and wanted to be left alone. He thought that the call was a
       setup. Genesis said that she had the wrong number and hung up the phone. In her written

                                                  -3-
       statement, Genesis also said that, when she left the park for the second time, she went to a bus
       stop and waited for a bus.
¶ 17       Before trial, Genesis identified defendant in a photographic lineup. The person she selected
       in the lineup did not have a star tattoo. Police officers showed her a book bag, but it was not the
       book bag that defendant had that night. At the time of trial, Genesis was in juvenile detention
       for a retail theft charge that had been diverted. She expected to go home following her
       testimony.

¶ 18                                              2. Wesley
¶ 19       Like his friend Genesis, Wesley was 14 years old on the date of the murder. He testified
       that, around 7:45 p.m., he, Genesis, and others went to Blackhawk Park, where he saw a man
       wearing all black and carrying a red backpack. The man was standing on a balcony, looking at
       Genesis. Wesley never saw Genesis talk to this man. Genesis left the park to go to Wesley’s
       house, and the man left sometime later.
¶ 20       Around 8:30 p.m., Wesley left the park and went to his house, where he, his nephew, and
       his friend got bikes and started riding around the neighborhood. The chain fell off Wesley’s
       bike, and he walked alongside it. Across the street, he saw some people on the enclosed porch
       at 1428 Nelson Boulevard. One man left the porch and “went around the back,” on the right
       side of the house.
¶ 21       The same man Wesley had seen on the balcony at the park came from an alley behind 1428
       Nelson Boulevard. The man “hopped” over a small gate near the garage behind the house. He
       held a gun, which Wesley thought looked like a .45 caliber. After hopping the fence, the man
       was “sliding” on the side of the house. He grabbed his backpack and began loading the gun. He
       fired three or four shots at the man who had left the porch. The shooter ran back the way he
       came. Wesley went back to his house, which was a couple of blocks from the shooting. He
       heard squad cars but did not talk to the police that night.
¶ 22       Two days after the shooting, Wesley was shown a six-person photographic lineup, but he
       was not sure which person was the shooter. Wesley narrowed down the lineup to two
       photographs, one of which was of defendant. The officer administering the lineup did not
       consider this to be a positive identification. Wesley did not identify defendant in court.

¶ 23                                            3. Mikayla
¶ 24       Mikayla was also 14 years old on the date of the shooting. She testified that she once met
       Genesis and a man named Lucky at her bus stop, but she could not remember when this
       meeting occurred. She knew Lucky’s name only because Genesis told it to her. In court,
       Mikayla identified defendant as Lucky.
¶ 25       Mikayla testified that she gave her phone to Genesis, who gave it to defendant, who called
       someone and said, “Text the number to the phone.” Later, a text came through. Defendant
       dialed a number and gave the phone to Genesis. Defendant asked if she remembered what to
       say, and Genesis spoke into the phone. Afterward, they all went to Blackhawk Park, where
       Mikayla charged her phone.
¶ 26       At the park, Genesis told Mikayla that defendant was going to kill a man “over some kids
       or something.” Genesis said that defendant wanted her to get this man and bring him to the
       park. As Genesis was saying this to Mikayla, defendant was “not really” near them. After she

                                                    -4-
       looked at her prior statement to refresh her recollection, Mikayla testified that defendant
       reacted to what Genesis was saying by nodding. On cross-examination, Mikayla testified that,
       “at some point” during the conversation with Genesis, “Lucky walked up and started nodding.”
¶ 27       Later, Mikayla’s phone rang. Defendant said to “go get him” and “bring him back to the
       park.” Genesis and Mikayla went from Blackhawk Park to the home of Mikayla’s friend
       MacKenzie and then to Washington Park and Mikayla’s house. Mikayla’s grandmother drove
       Genesis to Wesley’s house. Genesis later returned to Mikayla’s house and spent the night
       there. The next morning, the police came to get Genesis. Mikayla did not talk to the police at
       that point and never went to the police on her own.
¶ 28       Mikayla testified that she had identified defendant in a photographic lineup. She also
       recognized one of the State’s exhibits as defendant’s backpack. Mikayla never saw defendant
       with a gun or bullets or acting aggressively. Everything else she had learned about defendant
       came from Genesis.

¶ 29                                         4. Officer Weber
¶ 30       Rockford police officer Nicholas Weber testified that he was dispatched to 1428 Nelson
       Boulevard around 9 p.m., in reference to a possible shooting. When he arrived, people on the
       porch pointed to the driveway, where a man was lying facedown. It was dark and the only light
       came from a street light that was “down the street a little bit.” The driveway area was “pretty
       dark.” Officer Weber said that, without his flashlight, he “definitely” could not have seen the
       backyard and the part of the driveway farthest from the street. The proximity of the house to
       the unattached garage made it “impossible” to see the backyard even when standing in the
       driveway.
¶ 31       At the scene, officers found three spent .22-caliber casings between the back porch and the
       garage. It would have been “very difficult” for someone on the street to see where the casings
       were found. Near the casings, officers found two damaged cell phones, both of which appeared
       to have been struck by gunfire.
¶ 32       Inside a fake sprinkler head in the backyard, officers found 19 bags containing over three
       grams of crack cocaine. Officers also found a scale at the side of the garage.
¶ 33       The victim had five gunshot wounds, and the medical expert testified that he died from a
       gunshot wound to his back, which went through his rib, heart, and lung.

¶ 34                                            5. Denise
¶ 35       Denise Gregory testified that she was at Sally’s house on the night of the shooting. Denise
       was sitting on the porch with Donmarquis and Theodore White. Donmarquis received a phone
       call and walked to the side of the house. Denise heard gunshots and ran in the house with
       Theodore. She did not see the shooting. When she ran in the house, a man whom she did not
       know came in behind her. While still on the porch, she had seen someone wearing all white and
       walking a bike down the sidewalk with a bag in his hand, but he did not look suspicious.

¶ 36                                             6. Doris
¶ 37      Doris testified to the altercation at her house that occurred two days before the shooting.
       On May 4, 2013, defendant and Kimiko arrived at the house and began arguing with
       Donmarquis. Defendant and Donmarquis began fighting. Defendant had a pocketknife during

                                                  -5-
       the fight, but Donmarquis was not cut. After the fight, defendant and Kimiko left with the
       children.
¶ 38        On May 6, Doris was at the house with Donmarquis. A few minutes after 9 p.m., Doris
       heard gunshots. She went outside, saw Donmarquis lying on the driveway, and called the
       police. Doris recalled that it was “pitch dark” outside.
¶ 39        Doris testified that Donmarquis had two cell phones. She did not remember the numbers at
       trial, but she gave the numbers to the police on the night of the shooting.

¶ 40                                             7. Deshon
¶ 41       Deshon also testified to the conflict before the shooting. On May 4, 2013, he was driving
       with Donmarquis, who began arguing with someone on the phone. Deshon and Donmarquis
       drove to 1428 Nelson Boulevard. After they had been there for a couple of minutes, another car
       pulled up. Defendant and a woman got out of the car and began arguing with Donmarquis in
       the front yard. As Donmarquis was walking into the house, defendant struck him from behind,
       and they started fighting on the enclosed porch. After 90 to 120 seconds, Donmarquis called
       for Deshon, who broke up the fight.
¶ 42       Defendant pulled out a knife. Donmarquis ran off the porch, and defendant said, “Bitch,
       I’m gonna kill you.” Defendant never tried to strike Donmarquis with the knife. Defendant also
       walked off the enclosed porch, said that he was calling the police, and left with the woman and
       the kids. Donmarquis had “a few minor cuts” on his forehead, a bite mark on the top of his
       head, and minor scrapes on his knee and elbow.

¶ 43                                          8. DCFS
¶ 44       On May 5, 2013, Aimee Jerding, a caseworker for the Department of Children and Family
       Services (DCFS), went to Kimiko’s apartment regarding the fight between defendant and
       Donmarquis. Based on the investigation, Kimiko’s and Donmarquis’s children were taken and
       placed into protective custody.

¶ 45                                      9. Kimiko’s Apartment
¶ 46       Detective Joseph Stevens testified that, on May 8, 2013, at 9:15 p.m., he went to Kimiko’s
       apartment to investigate the porch incident. Detective Stevens saw defendant exiting the rear
       bedroom. In a subsequent search, officers found two .22-caliber bullets in that bedroom. One
       bullet was on top of a bed, and one was under the bed. Detective Stevens testified that
       .22-caliber ammunition was fairly common. No firearms were found in the apartment.
¶ 47       Detective Scot Mastroianni also saw defendant leave the bedroom where the bullets were
       found. Detective Mastroianni did not see where defendant had been in the bedroom. An empty
       backpack was found in a different bedroom. Detective Mastroianni did not recall seeing a
       tattoo on defendant’s neck.
¶ 48       Christina Davison, a forensic scientist specializing in firearms identification, testified that
       the three spent .22-caliber shell casings found at the scene were fired from the same gun. The
       three bullets found in Donmarquis’s body were also fired from the same gun. Davison was
       unable to conclude whether the unfired .22-caliber bullets found in Kimiko’s apartment were
       from the same source. The brand stamped on the unfired bullets was different from the brand


                                                    -6-
       on the casings found at the scene.

¶ 49                                       10. Mikayla’s Phone
¶ 50       Relying on a certificate from the custodian of the records, the prosecution moved to admit
       cell phone records as business records. The defense objected to the absence of evidence that
       the computer used to generate the phone records was “accurate and operating properly when
       the evidence was generated.” The phone records for 779-***-2350 showed that the phone
       associated with that number was registered to Mikayla. The court admitted the records.
¶ 51       The records indicated that on May 6, 2013, Mikayla’s phone called 773-***-5921 at 4:10
       p.m. and 4:38 p.m. Mikayla’s phone also received 10 calls from that number between 4:14 p.m.
       and 5:06 p.m. Attached to these records was a certificate that stated that the records “(a) [w]ere
       made at or near the time of the occurrence of the matters set forth in the records by, or from
       information transmitted by a person with knowledge of those matters; (b) [w]ere kept in the
       course of a regularly conducted business activity; and (c) [w]ere made by the regularly
       conducted activity as a regular practice.”

¶ 52                                    11. Donmarquis’s Phones
¶ 53       Detective Dave Swanson testified that Doris gave him the numbers for Donmarquis’s two
       phones, but he could not recall them at trial. After refreshing his recollection with Doris’s
       statement in his police report, Detective Swanson testified that the phone numbers he
       subpoenaed as Donmarquis’s were 815-***-9353 and 773-***-5921 but that the subscribers
       for those numbers were in Texas and California, respectively. Defense counsel objected to this
       testimony as hearsay based on what Doris told Detective Swanson. The court overruled the
       objection, holding that it was admissible as a past recollection recorded.

¶ 54                                         12. Facebook Post
¶ 55       The defense renewed its objection to the Facebook evidence. The State indicated that
       Detective Dwayne Beets would testify that he searched the Facebook website and found a
       profile under the name “Lorenzo Luckii Santos” with defendant’s photograph and the relevant
       post. The court held that this was a sufficient foundation.
¶ 56       Detective Beets testified that he had been using Facebook for approximately one year. He
       explained that a Facebook profile is “a visual display of personal information usually specific
       to a user” and that a post is a message created by a user that can be shared with a select group of
       people or with the general public. Anyone could set up a profile using an e-mail address.
       Detective Beets had created a profile under the name “Daquan Rogers,” which was used for
       investigations. The profile contained a picture of someone other than the detective.
¶ 57       On May 7, 2013, using his fake profile, Detective Beets searched Facebook and found a
       profile under the name “Lorenzo Luckii Santos.” A photo on that profile resembled defendant.
       Detective Beets previously had seen defendant’s photo when he created the photo lineup. On
       the Santos profile, Detective Beets saw a post that said, “its my way or the highway..…leave
       em dead n his driveway.” Detective Beets testified that the profile name “Lorenzo Luckii
       Santos” was “associated” with this post, and he printed a screenshot of the post. The detective
       offered no testimony about when the post was created, but he testified that it was deleted later
       that day.


                                                    -7-
¶ 58       Following Detective Beets’s testimony, the defense renewed its objection to the Facebook
       evidence, arguing that there had been insufficient authentication. Despite its pretrial
       assurances, the State had failed to link the name “Santos” to defendant or to present Facebook
       records to establish that the post originated from Kimiko’s IP address. The court overruled the
       objection, finding that the post was sufficiently authenticated with the name, defendant’s
       photo, and the statement about the shooting.

¶ 59                                        B. The Defense
¶ 60       Shannon Watters testified that, on May 6, 2013, she was living next door to 1428 Nelson
       Boulevard. That night, she heard gunfire. After the shooting stopped, she looked out her
       window and saw someone lying on the ground. Shannon called 911 and saw two men approach
       the man on the ground and search his pockets. Shannon had noticed a lot of foot traffic in and
       out of 1428 Nelson Boulevard, which decreased “a little bit” after the day of the shooting.
¶ 61       Matt Weber, an investigator for the public defender’s office, testified that he spoke to
       Genesis before trial. Genesis told Weber that defendant was not with her when she went to
       Mikayla’s bus stop. Weber also spoke with Mikayla, and she never said that defendant was
       nodding when Genesis said that he wanted to hurt someone.
¶ 62       Weber took pictures of 1428 Nelson Boulevard while standing across the street. From this
       position, he could not see the backyard or the gate area. When he stood in front of the house
       next door, Weber could see “very, very little of the backyard” and he was unable to see the gate
       area or the alley.

¶ 63                                   C. Posttrial Proceedings
¶ 64       The jury found defendant guilty of first degree murder. The defense moved for a new trial,
       arguing that defendant was not proven guilty beyond a reasonable doubt and that the court
       erred in admitting the Facebook post, Mikayla’s phone records, and “evidence of Donmarquis
       Jackson’s phone numbers through the improper hearsay testimony of Detective Swanson.”
       The court denied the motion and imposed a 55-year prison term. This timely appeal followed.

¶ 65                                          II. ANALYSIS
¶ 66       On appeal, defendant raises three issues. First, he argues that he is entitled to an outright
       reversal of his conviction because the State’s witnesses were not credible and he was not
       proved guilty beyond a reasonable doubt. Second, defendant argues that he deserves a new trial
       because the trial court erred in admitting the Facebook post without sufficient authentication.
       Third, he seeks a new trial because the court admitted the computer-generated records for
       Mikayla’s phone without an adequate foundation and allowed hearsay evidence regarding
       Donmarquis’s phone number. For the following reasons, we conclude that, although the
       evidence supports the conviction, defendant is entitled to a new trial because the trial court
       committed reversible error in admitting the Facebook post.

¶ 67                                  A. Sufficiency of the Evidence
¶ 68       On a challenge to the evidence supporting a criminal conviction, a reviewing court does not
       retry the defendant. People v. Smith, 185 Ill. 2d 532, 541 (1999). “When reviewing the
       sufficiency of the evidence, ‘the relevant question is whether, after viewing the evidence in the

                                                   -8-
       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 in original.)” People v. Bishop,
       218 Ill. 2d 232, 249 (2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); People v.
       Collins, 106 Ill. 2d 237, 261 (1985). “Testimony may be found insufficient under the Jackson
       standard, but only where the record evidence compels the conclusion that no reasonable person
       could accept it beyond a reasonable doubt.” People v. Cunningham, 212 Ill. 2d 274, 280
       (2004). Our duty is to carefully examine the evidence while giving due consideration to the
       fact that the finder of fact saw and heard the witnesses. The testimony of a single witness, if it
       is positive and the witness is credible, is sufficient to convict. Smith, 185 Ill. 2d at 541. The
       credibility of a witness is within the province of the trier of fact, and its finding on such matters
       is entitled to great weight, but the fact finder’s determination is not conclusive. We will reverse
       a conviction where the evidence is so unreasonable, improbable, or unsatisfactory that it
       creates a reasonable doubt of the defendant’s guilt. Smith, 185 Ill. 2d at 542. This standard of
       review applies regardless of whether the evidence is direct or circumstantial and regardless of
       whether the defendant was tried before the bench or a jury. People v. Cooper, 194 Ill. 2d 419,
       431 (2000).
¶ 69       Defendant was convicted primarily on the testimony of Wesley and Genesis, who each
       were 14 years old at the time of the offense. Wesley was the only witness who claimed to have
       seen the shooting. He testified that he saw a man on a balcony near the park. The man left the
       area, and Wesley went home around 8:30 p.m. because Genesis and Alice were already there.
       Wesley, his nephew, and his friend got bikes and started riding around the neighborhood until
       the chain fell off Wesley’s bike.
¶ 70       While walking the bike, Wesley passed 1428 Nelson Boulevard and saw people on the
       enclosed porch. Wesley was across the street. He testified that he was wearing all white, and
       Denise confirmed seeing someone wearing white at the time of the shooting.
¶ 71       Wesley testified that the victim left the porch and “went around the back” along the
       driveway on the right side of the house, though his written statement to the police did not
       mention seeing the victim on the porch. Wesley testified that the man from the balcony near
       the park came from the alley behind the house and “hopped” over a small gate near the garage
       behind the house. The man held a gun, which Wesley thought looked like a .45 caliber, though
       the shell casings were .22 caliber. The man was “sliding” on the side of the house, and he
       grabbed his backpack and began loading the gun. He fired three or four shots at the victim. The
       shooter ran back the way he came. Wesley went back to his house, which was a couple of
       blocks away.
¶ 72       Defendant argues that Wesley’s testimony was simply not credible because, “based on the
       darkness and the layout of the house and the unattached garage, it would have been
       ‘impossible’ for him to have seen what he described.” Officer Weber, who responded to the
       shooting around 9 p.m., testified that the only light in the area came from a street light that was
       “down the street a little bit.” He described the driveway area as “pretty dark.” Officer Weber
       said that, without his flashlight, he “definitely” could not have seen the backyard and the part
       of the driveway away from the street. Doris also testified that it was “pitch dark” at the time of
       the shooting.
¶ 73       Defendant also emphasizes Officer Weber’s testimony that the close proximity of the
       house to the unattached garage made it “impossible” to see between them and into the
       backyard, even when standing in the driveway. Officer Weber testified that it would have been

                                                     -9-
       “very difficult” for someone on the street to see where the shell casings were found. Also, Matt
       Weber testified that he took pictures of 1428 Nelson Boulevard while standing across the street
       and could not see the backyard or the gate from that position. Weber said that, when he stood in
       front of the house next door to 1428 Nelson Boulevard, he could see “very, very little of the
       backyard” and could not see the gate or the alley.
¶ 74        Defendant also points out the discrepancies between Wesley’s trial testimony, his
       statements to police, and Genesis’s accounts of the events. For example, Genesis testified that
       she was with Wesley at his house when the shots were fired. Furthermore, when reviewing a
       six-photograph lineup two days after the shooting, Wesley picked out two photographs. One of
       the two was of defendant, but Wesley could not say definitively which one was the shooter.
       Wesley did not identify defendant in court as the shooter.
¶ 75        We conclude that the weaknesses in Wesley’s testimony do not compel reversal of the
       conviction. The jury was shown photographs of the crime scene, including several taken on the
       night of the shooting and others subsequently taken by Matt Weber. The jury was free to
       consider Wesley’s testimony in the context of those photographs and the diagrams of the
       driveway, sidewalk, and structures in the area, which admittedly showed a dimly lit and narrow
       sightline from the sidewalk to the backyard. Wesley’s credibility was within the province of
       the jury, and the implicit finding that he was credible is entitled to great weight. See Smith, 185
       Ill. 2d at 541.
¶ 76        Defendant effectively argues that the conviction must be reversed because Wesley could
       not have observed the shooting as he described and therefore there was no evidence to support
       the conviction. This argument obliquely suggests that the State was required to produce direct
       evidence of defendant’s guilt. However, it is well settled that guilt may be proven by direct
       evidence or circumstantial evidence. See Cooper, 194 Ill. 2d at 431. And Wesley’s testimony
       was not the only such evidence.
¶ 77        Defendant also argues that Genesis was not credible, in part, because her story of spending
       the day with defendant, whom she had never met before, simply was not plausible. At trial, she
       described traveling with defendant, helping him try to find the man he wanted to kill, walking
       past the victim’s home with her jacket on defendant’s head, and introducing him to Mikayla,
       even though defendant neither threatened Genesis nor promised her anything. Despite having
       many chances to leave or ask for help and being “extremely scared,” she did not attempt to flee
       or alert anyone to her situation, and she offered no explanation at trial.
¶ 78        Defendant also points out that, along with providing prior inconsistent details of the events,
       Genesis (1) mistakenly described defendant as having a large star tattoo on his neck, (2) said
       that he claimed to have a .38-caliber revolver, while the murder weapon was a .22caliber that
       discharged shell casings automatically, and (3) misidentified Kimiko as someone named “Ree
       Ree.”
¶ 79        Again, these points are favorable to defendant but do not compel reversal because there is
       significant circumstantial evidence of his guilt. Genesis testified to defendant’s statements
       about wanting to kill someone named Don. Defendant’s feud with Donmarquis over his
       children with Kimiko escalated to a brawl on the porch of 1428 Nelson Boulevard, and
       Donmarquis was shot in the driveway at that address two days later. During the porch fight,
       defendant brandished a knife and threatened to kill Donmarquis. When defendant was arrested
       in Kimiko’s apartment after the shooting, he was seen exiting a bedroom where two .22-caliber
       bullets were found on and under a bed. When considering all of the evidence in the light most

                                                   - 10 -
       favorable to the prosecution, we conclude that a rational trier of fact could have found the
       essential elements of first degree murder beyond a reasonable doubt. See Cunningham, 212 Ill.
       2d at 278.

¶ 80                                          B. Facebook Post
¶ 81       Defendant next argues that the trial court erred in admitting a screenshot of a Facebook
       post on a profile under the name “Lorenzo Luckii Santos.” The screenshot showed a
       photograph of someone allegedly resembling defendant and an undated post that states, “its my
       way or the highway…..leave em dead n his driveway.” The trial court deemed the evidence
       admissible “subject to foundational requirements” being met at trial.
¶ 82       At trial, Detective Beets testified that, on May 7, 2013, he accessed Facebook. He
       explained that a profile is “a visual display of personal information usually specific to a user”
       and that a post is a message created by a user that can be shared with a select group of people or
       with the general public. Detective Beets admitted that anyone can set up a profile using an
       e-mail address, as illustrated by his creation and use of a fake profile for investigation
       purposes. The profile had a name and a photograph that were not his.
¶ 83       Using his fake profile, Detective Beets searched Facebook for the name “Lorenzo” and
       found a profile under the name “Lorenzo Luckii Santos.” According to the detective, the photo
       on that profile resembled defendant. On the Santos profile, Detective Beets saw a post that
       said, “its my way or the highway..…leave em dead n his driveway.” Detective Beets testified
       that the profile name “Lorenzo Luckii Santos” was “associated” with this post, and he printed a
       screenshot.
¶ 84       Defendant argues that the trial court abused its discretion in allowing the Facebook post
       and Detective Beets’s testimony. We agree. Despite claiming that Facebook records would
       show that the Facebook profile was associated with an IP address belonging to Kimiko, the
       State presented no evidence of circumstances surrounding the post’s creation to show that
       defendant was responsible for its contents.
¶ 85       Testimony is admissible if it is relevant to an issue in dispute. People v. Patterson, 192 Ill.
       2d 93, 114-15 (2000). “Relevant evidence” is defined under our rules of evidence as “evidence
       having any tendency to make the existence of any fact that is of consequence to the
       determination of the action more probable or less probable than it would be without the
       evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011); see also People v. Harvey, 211 Ill. 2d 368, 392
       (2004). The trial court has discretion to determine whether evidence is relevant and admissible,
       and therefore, an evidentiary ruling will not be overturned unless it is arbitrary, fanciful, or
       unreasonable. People v. Hanson, 238 Ill. 2d 74, 101 (2010). A court may exercise its discretion
       and exclude evidence, even if it is relevant, if the danger of unfair prejudice substantially
       outweighs its probative value. Hanson, 238 Ill. 2d at 102.
¶ 86       The parties agree that, despite its digital nature, the Facebook post qualifies as a document
       for admissibility purposes. Cf. People v. Chromik, 408 Ill. App. 3d 1028, 1046-47 (2011)
       (e-mail and text messages are treated like any other form of documentary evidence). A party
       must lay a proper foundation before a document may be entered into evidence. Piser v. State
       Farm Mutual Automobile Insurance Co., 405 Ill. App. 3d 341, 348 (2010). Authentication of a
       document may be made by direct or circumstantial evidence, which is routinely the testimony
       of a witness who has sufficient personal knowledge to satisfy the trial court that the item is, in
       fact, what its proponent claims it to be. Piser, 405 Ill. App. 3d at 349. Illinois Rule of Evidence

                                                   - 11 -
       901 (eff. Jan. 1, 2011) provides that “[t]he requirement of authentication or identification as a
       condition precedent to admissibility is satisfied by evidence sufficient to support a finding that
       the matter in question is what its proponent claims.”

¶ 87                                              1. Vayner
¶ 88       The parties have not cited, and our research has not uncovered, any Illinois case addressing
       the admissibility of a Facebook post allegedly attributable to a criminal defendant. While
       lower federal court decisions are not binding upon state courts, we may look to them as
       persuasive authority. People v. Betance-Lopez, 2015 IL App (2d) 130521, ¶ 31. Having looked
       to such decisions, we conclude that United States v. Vayner, 769 F.3d 125 (2d Cir. 2014), best
       represents a line of cases that is on point and persuasive.
¶ 89       In Vayner, the defendant was convicted of the transfer of a false identification document
       based on his creation of a forged birth certificate for Vladyslav Timku, a Ukrainian citizen
       residing in Brooklyn. The birth certificate would falsely reflect that Timku was the father of an
       infant daughter, whose tender age would entitle him to a deferment from compulsory military
       service in Ukraine. Vayner, 769 F.3d at 127.
¶ 90       The district court admitted into evidence a printed copy of a web page that the government
       claimed was the defendant’s profile page from VK.com (VK), a Russian social networking site
       akin to Facebook. The defendant argued on appeal that the page had not been properly
       authenticated under Rule 901 of the Federal Rules of Evidence, which is similar to Illinois
       Rule of Evidence 901. The Second Circuit Court of Appeals held that the district court had
       made a reversible error in admitting the web page “because the government presented
       insufficient evidence that the page was what the government claimed it to be—that is, [the
       defendant’s] profile page, as opposed to a profile page on the Internet that [the defendant] did
       not create or control.” Vayner, 769 F.3d at 127.
¶ 91       At trial, Timku claimed to be a friend of the defendant and familiar with his work as a
       forger because he had previously paid the defendant to create false diplomatic identification
       documents in a scheme to avoid taxes associated with a corporation called Martex
       International. According to Timku, the defendant agreed to make the forgery, without charge,
       as a “favor” and began creating the fake birth certificate on a computer while the pair chatted in
       a Brooklyn Internet café. The defendant allegedly sent the completed forgery to Timku via
       e-mail, fromazmadeuz@gmail.com (the Gmail address), an e-mail address that Timku had
       often used to correspond with the defendant. The government introduced a copy of the e-mail,
       with the forged birth certificate as an attachment, which reflected that it was sent to the Gmail
       address. Vayner, 769 F.3d at 127.
¶ 92       Other witnesses corroborated Timku’s testimony regarding the birth certificate’s falsity,
       the Ukrainian military deferment, and the path of the e-mail through servers. There was expert
       testimony that the e-mail originated in New York, but no evidence as to what computer it was
       sent from or what IP addresses were linked to it. Thus, near the conclusion of the government’s
       case, only Timku’s testimony directly connected the defendant with the Gmail address.
       Vayner, 769 F.3d at 127-28. Then the government called a special agent to introduce a printout
       of a web page purporting to be the defendant’s VK profile. The district court admitted the web
       page over the defendant’s objection to its authenticity under Federal Rule of Evidence 901.
       Vayner, 769 F.3d at 128.


                                                   - 12 -
¶ 93        The special agent identified the printout as being from “the Russian equivalent of
       Facebook” and noted to the jury that the web page contained a photograph of the defendant and
       purported to be the profile of a person with an alternate spelling of the defendant’s name. The
       special agent pointed out that under the heading, “Contact Information,” the profile listed the
       Skype address “Azmadeuz,” which matched the moniker in the Gmail address. The profile’s
       employment section listed “Martex International” and an Internet café called “Cyber Heaven,”
       which corresponded with Timku’s testimony that both he and the defendant had worked for
       those entities. Vayner, 769 F.3d at 128.
¶ 94        On cross-examination, the special agent admitted that he had only a “cursory familiarity”
       with VK, had never used the site except to view this single page, and did not know whether a
       user needed any identity verification to create an account on the site. In the final words of its
       summation, the government argued to the jury that the VK profile linked the defendant to the
       Gmail address. Vayner, 769 F.3d at 128-29.
¶ 95        The Second Circuit recounted Rule 901’s provision that “ ‘[t]o satisfy the requirement of
       authenticating or identifying an item of evidence, the proponent must produce evidence
       sufficient to support a finding that the item is what the proponent claims it is.’ ” Vayner, 769
       F.3d at 129 (quoting Fed. R. Evid. 901(a)). The Second Circuit observed that the requirement
       is satisfied if sufficient proof has been introduced so that a reasonable juror could find in favor
       of authenticity or identification; the ultimate determination as to whether the evidence is, in
       fact, what its proponent claims is thereafter a matter for the jury. Vayner, 769 F.3d at 129-30.
¶ 96        Rule 901 does not definitively establish the nature and quantum of proof that is required
       preliminarily to authenticate an item of evidence. Further, the nature and quantum of evidence
       needed is related to the purpose for which the evidence is offered and depends on a
       context-specific determination of whether the proof advanced is sufficient to support a finding
       that the item in question is what its proponent claims it to be. Vayner, 769 F.3d at 130. The
       Second Circuit declared that “[t]he bar for authentication of evidence is not particularly high”
       and “[t]he proponent need not rule out all possibilities inconsistent with authenticity, or ***
       prove beyond any doubt that the evidence is what it purports to be.” (Internal quotation marks
       omitted.) Vayner, 769 F.3d at 130. However, there must be at least sufficient proof for a
       reasonable juror to find in favor of authenticity. Vayner, 769 F.3d at 130.
¶ 97        The proof of authentication may be direct or circumstantial, but the simplest and likely
       most common form is through the testimony of a witness with knowledge that a matter is what
       it is claimed to be. Vayner, 769 F.3d at 130 (citing Fed. R. Evid. 901(b)(1)). “Rule 901(b)
       provides several examples of proper authentication techniques in different contexts, and the
       advisory committee’s note states that these are ‘not intended as an exclusive enumeration of
       allowable methods but are meant to guide and suggest, leaving room for growth and
       development in this area of the law.’ ” Vayner, 769 F.3d at 130 (quoting Fed. R. Evid. 901,
       Advisory Committee Notes). For example, some documents can be authenticated by
       distinctive characteristics of the document itself, such as its appearance, contents, substance, or
       internal patterns, taken in conjunction with the circumstances. Vayner, 769 F.3d at 130 (citing
       Fed. R. Evid. 901(b)(4)).
¶ 98        The Second Circuit concluded that the district court abused its discretion in admitting the
       web page without proper authentication under Rule 901 of the Federal Rules of Evidence. The
       court observed that “[t]he VK profile page was helpful to the government’s case only if it
       belonged to [the defendant]—if it was his profile page, created by him or someone acting on

                                                   - 13 -
        his behalf—and thus tended to establish that [the defendant] used the moniker ‘Azmadeuz’ on
        Skype and was likely also to have used it for the Gmail address from which the forged birth
        certificate was sent, just as Timku claimed.” Vayner, 769 F.3d at 132.
¶ 99         Although it was “uncontroverted that information about [the defendant] appeared on the
        VK page: his name, photograph, and some details about his life that were consistent with
        Timku’s testimony about him[,] there was no evidence that the defendant himself had created
        the page or was responsible for its contents.” (Emphasis in original.) Vayner, 769 F.3d at 132.
        The Second Circuit hypothesized that, if the government sought to introduce a flyer found on
        the street that contained the defendant’s Skype address and was purportedly written or
        authorized by him, “the district court surely would have required some evidence that the flyer
        did, in fact, emanate from [the defendant]. Otherwise, how could the statements in the flyer be
        attributed to him?” Vayner, 769 F.3d at 132. The Second Circuit rejected the notion that the
        mere fact that a web page with the defendant’s name and photograph happened to exist on the
        Internet at the time of the special agent’s testimony permitted a reasonable conclusion that the
        page was created by the defendant or on his behalf. Vayner, 769 F.3d at 132.
¶ 100        The Second Circuit reiterated that contents or “distinctive characteristics” of a document
        can sometimes alone provide circumstantial evidence sufficient for authentication. Vayner,
        769 F.3d at 132 (citing Fed. R. Evid. 901(b)(4)). For example, a writing may be authenticated
        by evidence that its contents were not a matter of common knowledge. Vayner, 769 F.3d at
        132. However, all the information on the VK profile page allegedly tying the page to the
        defendant was also known by Timku and likely others, some of whom might have had reasons
        to create a profile page falsely attributed to the defendant. Other than the page itself, no
        evidence suggested that the defendant even had a VK profile, much less that the page in
        question was his. Vayner, 769 F.3d at 132-33.

¶ 101                                  2. “Lorenzo Luckii Santos” Post
¶ 102       The connection between the Facebook post and defendant in this case is even more tenuous
        than the connection between the VK web page and the defendant in Vayner. The Facebook
        post was helpful to the State’s case only if it belonged to defendant. If he or someone acting on
        his behalf created it, the State could argue that the statement “its my way or the
        highway…..leave em dead n his driveway” was a boastful admission by defendant that he
        murdered Donmarquis in the driveway of 1428 Nelson Boulevard.
¶ 103       However, the State offered neither direct nor circumstantial proof of authentication.
        Defendant did not admit to creating a Facebook profile or making the post, and he was not seen
        composing the communication. At the pretrial hearing, the State represented that “Facebook
        records will have an IP address that belongs to Kimiko.” From that evidence, the State might
        have argued that defendant, Kimiko, or someone else acting on defendant’s behalf created the
        post from her IP address. However, the State presented no Facebook records at trial and even
        failed to establish that “Santos” was the last name of defendant’s mother. Other than Detective
        Beets’s discovery of the post on the day after the offense, no circumstances surrounding the
        creation of the undated post were introduced at trial.
¶ 104       The State argues that the Facebook post was properly authenticated by evidence that
        defendant’s nickname was “Luckii,” Donmarquis was killed in his driveway, and the
        photograph allegedly resembled defendant. However, this information did not provide
        circumstantial evidence sufficient for authentication, because the State failed to present any

                                                   - 14 -
        evidence that it was not public knowledge, which would tend to show that defendant or
        someone acting on his behalf was responsible for the communication. See Vayner, 769 F.3d at
        132 (a writing may be authenticated by evidence that its contents were not a matter of common
        knowledge); see also People v. Downin, 357 Ill. App. 3d 193, 203 (2005) (documentary
        evidence may be authenticated by its contents if it is shown to contain information that would
        be known only by the alleged author of the document or, at the very least, by a small group of
        people including the alleged author).
¶ 105        “The authentication of social media poses unique issues regarding what is required to make
        a prima facie showing that the matter is what the proponent claims.” Smith v. State,
        2012-CT-00218-SCT (¶ 19) (Miss. 2014). “Creating a Facebook account is easy.” Smith,
        2012-CT-00218-SCT (¶ 19) (citing Samantha L. Millier, Note, The Facebook Frontier:
        Responding to the Changing Face of Privacy on the Internet, 97 Ky. L.J. 541, 544 (2009)).
        “ ‘[A]nyone at least thirteen years old with a valid e-mail address could create a profile.’ ”
        Smith, 2012-CT-00218-SCT (¶ 19) (quoting Nathan Petrashek, The Fourth Amendment and
        the Brave New World of Online Social Networking, 93 Marq. L. Rev. 1495, 1506 (2010)).
¶ 106        “Not only can anyone create a profile and masquerade as another person, but such a risk is
        amplified when a person creates a real profile without the realization that third parties can
        ‘mine’ their personal data. [Citation.] Friends and strangers alike may have access to family
        photos, intimate details about one’s likes and dislikes, hobbies, employer details, and other
        personal information, and, consequently, the desire to share information with one’s friends
        may also expose users to unknown third parties who may misuse their information.” (Internal
        quotation marks omitted.) Smith, 2012-CT-00218-SCT (¶ 19). Thus, concern over
        authentication arises because anyone can create a fictitious account and masquerade under
        another person’s name or can gain access to another’s account by obtaining the user’s
        username and password, and consequently, the potential for fabricating or tampering with
        electronically stored information on a social networking website is high and poses challenges
        to authenticating printouts from the website. Smith, 2012-CT-00218-SCT (¶ 19) (citing Griffin
        v. State, 19 A.3d 415, 421-22 (Md. 2011)).
¶ 107        In Vayner, the special agent admitted that he had only a “cursory familiarity” with VK and
        did not know whether a user needed some type of identity verification to create an account. An
        identity verification requirement would tend to show that a particular user was responsible for
        the content of a profile with his name. In this case, there was affirmative evidence that no
        identity verification is required to create a Facebook profile. In fact, Detective Beets confirmed
        how easily he created a fake profile for investigation purposes, complete with a name and a
        photograph that were not his.
¶ 108        The State relies on Downin in arguing that the statement in the post was sufficiently
        obscure that only defendant could have known it, but this case is factually distinguishable. In
        Downin, the defendant was convicted of a sex offense against the victim, whom he met in an
        Internet chat room when she was 15. She communicated with him through the address
        nickd@galesburg.net, and their friendship developed into a sexual relationship. Downin, 357
        Ill. App. 3d at 194. The two maintained contact, and the e-mail address that the victim used to
        reach him was the same one through which she had always contacted him. Downin, 357 Ill.
        App. 3d at 195.
¶ 109        During a meeting with a detective, the victim sent an e-mail to the defendant, using the
        same e-mail address. She testified that she received no notification that the e-mail had been

                                                    - 15 -
        improperly transmitted, and a copy of her communication was admitted into evidence.
        Downin, 357 Ill. App. 3d at 195. Also introduced was a copy of a transmission that the victim
        testified was the response that she received from the defendant’s e-mail address. The victim
        testified that this communication was in fact responsive to her e-mail and contained
        information, which she described, that would have been known exclusively to her and the
        defendant. Downin, 357 Ill. App. 3d at 195. In her e-mail, the victim wrote that she was under
        a lot of stress and was considering telling her mother about the sexual relationship. She
        requested that the recipient let her know his thoughts. Downin, 357 Ill. App. 3d at 195-96. The
        response e-mail contained admissions of a sexual relationship. Downin, 357 Ill. App. 3d at 196.
¶ 110        On appeal, the defendant argued that, without an IP address linking him to the e-mail
        attributed to him, there was no way of knowing whether the victim falsified the e-mail.
        Downin, 357 Ill. App. 3d at 202. Observing that “[p]rima facie authorship of a document may
        include a showing that the writing contains knowledge of a matter sufficiently obscure so as to
        be known to only a small group of individuals,” the Appellate Court, Third District, affirmed
        the trial court’s finding of authentication. Downin, 357 Ill. App. 3d at 203. Among the
        circumstantial facts were (1) the defendant and the victim met over the Internet; (2) before and
        after they met in person, they communicated via e-mail; (3) when the detective instigated the
        victim’s e-mail from the public safety building, she directed her communication to the e-mail
        address that she had used on all prior occasions; (4) the victim received the response from that
        same address that the defendant had previously used to communicate with her; and (5) the
        response e-mail was in fact responsive to the e-mail that the victim had sent, and she testified
        that it contained information known exclusively to her and the defendant. Downin, 357 Ill.
        App. 3d at 203. Thereafter, the defendant was free to, and did, challenge the genuineness of the
        document, and it was for the trier of fact to make the ultimate determination of authorship.
        Downin, 357 Ill. App. 3d at 203-04.
¶ 111        In Downin, the prosecution laid a detailed foundation for the e-mail exchange with
        evidence that the defendant and the victim had a history of using specific e-mail addresses to
        communicate. Here, the State offered no evidence that defendant ever accessed Facebook or
        even used the Internet. At best, the photograph and the name on the Facebook profile are about
        defendant and not evidence that defendant himself had created the post or was responsible for
        its contents.
¶ 112        Moreover, the statement “its my way or the highway…..leave em dead n his driveway” was
        not self-authenticated by the fact that the victim was killed in his driveway. The State’s
        reasoning that the post can be attributed to defendant because it is incriminating is circular. To
        the extent that this information is “obscure,” it would be known by the offender, not
        necessarily by defendant.
¶ 113        Regardless, there was ample testimony that the police activity drew the neighborhood’s
        attention to the shooting, such that the information was not known by only defendant or a small
        group of people including defendant. Any person could have created the post if he or she knew
        defendant by his alleged alias, knew about the shooting and the underlying feud, and had
        digitally mined an image of someone who looked like defendant.
¶ 114        The State’s most compelling circumstantial evidence of authentication is Detective Beets’s
        testimony about the fleeting nature of the post. The detective testified that, on the day after the
        shooting, he discovered the post about 2 p.m., but it was “deleted” later that day. The State’s
        theory is that, after defendant shot the victim, he created the post to boast of the offense, but

                                                    - 16 -
        thought better of making an incriminating statement on the Internet and deleted the post.
        According to the State, the content of the post was an admission of guilt by defendant, and its
        deletion was his attempt to destroy evidence. The State argues that the sudden removal of the
        post dispels any concern that someone was trying to falsely attribute the statement to
        defendant. Otherwise, he or she would have left up the post for the police to find.
¶ 115        However, the detective could not say when the post was created, and one could argue that
        he had no way of knowing that its disappearance from his view was due to deletion. It is
        possible that a person with access to the account did not delete it at all, but used privacy
        settings to share it with a targeted audience, for any number of reasons. Although the State
        certainly could have argued its theory to the jury to show authorship and consciousness of
        guilt, without more, the ephemeral statement and information about defendant were not
        sufficient for a reasonable juror to find authenticity.
¶ 116        As in Vayner, the State simply offered no evidence that any of the information on the
        Facebook post was known or available only to defendant or, at the very least, to a small group
        of people including defendant. See Vayner, 769 F.3d at 132; Downin, 357 Ill. App. 3d at 203.
        Worse yet, others who were familiar with defendant might have been motivated to create the
        post to falsely attribute an incriminating statement to defendant. See Vayner, 769 F.3d at 132
        (all the information contained on the VK page allegedly tying the page to the defendant was
        also known by Timku and likely others, some of whom might have had reasons to create a
        profile page falsely attributed to the defendant). Other than the post itself, the State cites no
        evidence that defendant even had a Facebook profile, much less that the post was his. See
        Vayner, 769 F.3d at 132-33.
¶ 117        The Facebook post in this case is no different from the hypothetical flyer in Vayner. If a
        printout of the screenshot of the Facebook post had been found on the street, the trial court
        surely would have required some evidence that it was written or authorized by defendant.
        Otherwise, the statement on the printout could not be attributed to him. See Vayner, 769 F.3d at
        132. The mere fact that a Facebook post on a profile with defendant’s alleged alias and
        photograph happened to exist on the Internet for a brief period after the offense does not permit
        a reasonable conclusion that the post was created by defendant or on his behalf. See Vayner,
        769 F.3d at 132.
¶ 118        The ease in fabricating a social media account to corroborate a story means that more than
        a “simple name and photograph” are required to sufficiently link the communication to the
        purported author under Rule 901. Smith, 2012-CT-00218-SCT (¶ 21). The court in Tienda v.
        State, 358 S.W.3d 633 (Tex. Crim. App. 2012), surveyed cases and noted that “something
        more” might be necessary to adequately present a prima facie case of authentication. Smith,
        2012-CT-00218-SCT (¶ 21) (citing Tienda, 358 S.W.3d at 639-41). For example, (1) the
        purported sender admits authorship, (2) the purported sender is seen composing the
        communication, (3) business records of an Internet service provider or cell phone company
        show that the communication originated from the purported sender’s personal computer or cell
        phone under circumstances in which it is reasonable to believe that only the purported sender
        would have had access to the computer or cell phone, (4) the communication contains
        information that only the purported sender could be expected to know, (5) the purported sender
        responds to an exchange in such a way as to indicate circumstantially that he was, in fact, the
        author of the communication, or (6) other circumstances peculiar to the particular case may
        suffice to establish a prima facie showing of authenticity. Smith, 2012-CT-00218-SCT (¶ 21)

                                                   - 17 -
        (citing Tienda, 358 S.W.3d at 639-41). In Smith, the court held that “[t]he State failed to make
        a prima facie case that the Facebook profile from which the messages came belonged to Smith,
        as the only information tying the Facebook account to Smith was that the messages purported
        to be from a ‘Scott Smith’ and were accompanied by a very small, grainy, low-quality
        photograph that we can only assume purported to be Smith.” Smith, 2012-CT-00218-SCT
        (¶ 24).1
¶ 119        These examples are intended only as a guide, and we emphasize that we express no view on
        what specific type and quantum of evidence would have been sufficient to authenticate the
        Facebook post and warrant its consideration by the jury. See Vayner, 769 F.3d at 133.
        “Evidence may be authenticated in many ways, and as with any piece of evidence whose
        authenticity is in question, the ‘type and quantum’ of evidence necessary to authenticate a web
        page will always depend on context.” Vayner, 769 F.3d at 133. However, to argue that the
        Facebook post was tantamount to an admission that defendant killed the victim in his
        driveway, Rule 901 required “some basis” on which a reasonable juror could conclude that the
        post was not just any Internet post but was, in fact, created by defendant or at his direction. See
        Vayner, 769 F.3d at 133. Without such a showing, the trial court abused its discretion in
        admitting the Facebook post and Detective Beets’s testimony.

¶ 120                                          3. Harmless Error
¶ 121       The State’s closing argument to the jury repeatedly emphasized the Facebook evidence. In
        fact, the prosecution began its argument as follows:
                     “Good morning again, ladies and gentlemen. ‘It’s my way or the highway. Leave
                 him dead in a driveway.’ Someone who is just looking on Facebook and sees a post like
                 that might be a little disturbed. Not sure what it really means. When Detective Beets
                 saw that post on May 7th, 2013, he knew exactly what it meant. And today you all
                 know what it meant. It was this defendant admitting to the fact that he shot Donmarquis
                 Jackson on May 7, 2013, in his driveway and left him there to die that night.”
¶ 122       The trial court abused its discretion in admitting the Facebook evidence and allowing the
        State to argue that the post was an admission by defendant that he committed the offense.
        Defendant argues that this error entitles him to a new trial, and perhaps recognizing the
        prejudicial effect, the State did not argue harmless error in its brief and conceded the point
        during oral argument. See People v. Thurow, 203 Ill. 2d 352, 363 (2003) (to establish that an
        error was harmless, the “State must prove beyond a reasonable doubt that the jury verdict
        would have been the same absent the error”). We agree with defendant that the error compels
        reversal of the conviction.




            1
             In the authentication context, one must be mindful of the substantial risk of the false attribution of
        online content when admitting an image from a profile as evidence that its purported owner is
        responsible for the communication. Because the Internet has made personal information less private
        and it is so easy to digitally mine content and background information from social media and other
        sources, the resemblance of a profile’s photograph to its purported owner is not definitive proof that he
        or she posted it.

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¶ 123                                         4. Double Jeopardy
¶ 124       Our reversal of defendant’s conviction raises the double jeopardy issue. The double
        jeopardy clause of the United States Constitution prohibits the State from having another
        opportunity to try a case unless it has in the first trial presented sufficient evidence to prove the
        defendant guilty beyond a reasonable doubt. People v. Johnson, 2013 IL App (2d) 110535,
        ¶ 84. Thus, before remanding for a new trial, double jeopardy requires the appellate court to
        rule upon the sufficiency-of-the-evidence issue. People v. Taylor, 76 Ill. 2d 289, 309 (1979);
        Johnson, 2013 IL App (2d) 110535, ¶ 84. As discussed, we have carefully reviewed the record
        in the light most favorable to the prosecution and concluded that the evidence sufficiently
        supports the verdict beyond a reasonable doubt. Our determination, however, is not binding on
        retrial and does not indicate this court’s opinion as to defendant’s guilt or innocence.

¶ 125                                        C. Phone Records
¶ 126       Though no longer dispositive of this appeal, we mention defendant’s argument that the trial
        court abused its discretion in admitting (1) computer-generated records of Mikayla’s phone
        without an adequate foundation and (2) hearsay evidence linking these records to Donmarquis.
        The State used the phone records and the corresponding testimony to show that calls were
        placed between Mikayla’s phone and one allegedly belonging to Donmarquis.
¶ 127       The phone records for 779-***-2350 showed that the phone associated with that number
        was registered to Mikayla. Attached to these records was a certificate stating that they: “(a)
        [w]ere made at or near the time of the occurrence of the matters set forth in the records by, or
        from information transmitted by a person with knowledge of those matters; (b) [w]ere kept in
        the course of a regularly conducted business activity; and (c) [w]ere made by the regularly
        conducted activity as a regular practice.”
¶ 128       Computer-generated records are the spontaneously created tangible results of the internal
        electrical and mechanical operations of a computer itself, which are not dependent upon the
        observations and reporting of a human declarant. Billing data generated instantaneously by a
        computer when a telephone call is made, such as the data introduced in this case, is an example
        of a computer-generated record. See People v. Holowko, 109 Ill. 2d 187, 191-93 (1985).
¶ 129       Illinois courts have consistently held that, to establish an adequate foundation for a
        computer-generated record as a business record, the proponent must make two showings. First,
        he or she must show that (1) the record was made as a memorandum or record of the act, (2) the
        record was made in the regular course of business, and (3) it was the regular course of the
        business to make such a record at the time of the act or within a reasonable time thereafter.
        People v. Nixon, 2015 IL App (1st) 130132, ¶ 110; Ill. R. Evid. 803(6) (eff. Jan. 1, 2011).
        Second, the proponent must show that standard equipment was used; the particular computer
        generates accurate records when used appropriately; the computer was used appropriately; and
        the sources of the information, the method of recording, and the time of preparation indicate
        that the record is trustworthy and should be admitted into evidence. Nixon, 2015 IL App (1st)
        130132, ¶ 111.
¶ 130       Defendant argues that, although the certificate associated with Mikayla’s phone records
        met the first requirement to establish it as a business record, the State did not meet the second
        requirement of authenticating it as computer-generated evidence. The State tacitly concedes
        error by quoting Nixon for the proposition that “such an ‘evidentiary error does not serve as a
        reason to overturn a jury verdict, if other properly admitted evidence is overwhelming.’ ”

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        Nixon, 2015 IL App (1st) 130132, ¶ 120. The State argues that any error regarding the phone
        records was harmless. If the issue arises at the new trial, the State must lay an adequate
        foundation for all computer-generated records to be admitted.
¶ 131       Defendant also argues that the court erred in allowing Detective Swanson to testify to
        Donmarquis’s two cell phone numbers. Defendant argues that the detective’s testimony was
        impermissible hearsay. At trial, the detective testified that Doris gave him the numbers, but he
        did not recall them and had to refresh his recollection from his police report, where he recorded
        what Doris had told him. One of the numbers he subpoenaed as Donmarquis’s was
        773-***-5921, which was assigned to a phone that allegedly had communicated with
        Mikayla’s phone in the hours leading up to the murder.
¶ 132       “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial
        or hearing, offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c)
        (eff. Jan. 1, 2011). Hearsay is not admissible unless it falls within a recognized exception. Ill.
        R. Evid. 802 (eff. Jan. 1, 2011); People v. Cloutier, 178 Ill. 2d 141, 154 (1997). Although a trial
        court’s evidentiary rulings generally are reviewed for an abuse of discretion (People v. Caffey,
        205 Ill. 2d 52, 89 (2001)), a ruling on whether a statement is hearsay may be reviewed de novo
        when the determination does not involve fact finding or weighing the credibility of the
        witnesses. People v. Steele, 2014 IL App (1st) 121452, ¶ 34. Defendant raises a valid issue that
        Detective Swanson’s testimony about what Doris told him was offered for the truth of the
        matter asserted: that Donmarquis’s phone number was 773-***-5921. To submit this evidence
        to the jury on remand, the State must lay an adequate foundation.

¶ 133                                     III. CONCLUSION
¶ 134      For the reasons stated, we reverse defendant’s conviction of first degree murder and
        remand the cause for a new trial.

¶ 135      Reversed and remanded.




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