                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2014-KA-00404-SCT

TYRONE BOYD

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          03/28/2014
TRIAL JUDGE:                               HON. LESTER F. WILLIAMSON, JR.
TRIAL COURT ATTORNEYS:                     PHILLIP S. “FLIP” WEINBERG
                                           KATHRYN R. McNAIR
COURT FROM WHICH APPEALED:                 LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                           BY: ERIN ELIZABETH PRIDGEN
                                               GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: SCOTT STUART
DISTRICT ATTORNEY:                         BILBO MITCHELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 04/30/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE DICKINSON, P.J., PIERCE AND COLEMAN, JJ.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    This appeal arises from the conviction of Tyrone Boyd under Mississippi Code

Section 97-5-33(6) for the exploitation of a child. Following conviction, the Circuit Court

of Lauderdale County sentenced Boyd to a term of twelve years imprisonment with seven

years to serve, and five years to be suspended and on reporting probation. Boyd appeals to

this Court, claiming the trial court abused its discretion by admitting Facebook and text

messages into evidence and that the State failed to properly authenticate them. Specifically,
Boyd argues the evidence purporting to link him to the messages in question was not

sufficient to prove that he, in fact, authored the messages. Boyd’s contention is meritless,

but more importantly, Boyd is barred from appealing on such grounds, as he failed to object

to the items’ admission at trial. We affirm Boyd’s conviction and sentence.

                             STATEMENT OF THE FACTS

¶2.    On June 13, 2012, RDS1 was living in Meehan, in Lauderdale County, Mississippi.

At that time, RDS was twelve years old. Through Facebook, RDS received a friend request

from someone named “Tyrone Boyd.”2 RDS did not yet know Boyd, a thirty-two-year-old

man, but the two shared a mutual friend, so she accepted his friend request. Boyd began

sending Facebook messages to RDS, and RDS sent messages back to Boyd. The messages

began innocuously. Boyd asked general questions of RDS, such as where she lived, who her

siblings were and how old her siblings were. RDS asked Boyd his age. Boyd said that he was

seventeen. RDS told Boyd that he was too old for her. At that point, RDS informed her

stepfather about her conversations with Boyd. The stepfather said that the name “Tyrone

Boyd” sounded familiar and he told RDS that he may have attended high school with Boyd.

RDS subsequently gave her cell phone to her stepfather, and he began to send text messages

to Boyd on RDS’s cell phone, posing as RDS.




       1
         Because this case involves the sexual exploitation of a minor, we refer to the victim
by initials only.
       2
      The Facebook profile that initiated the cyber-friendship with RDS listed only the
name “Tyrone Boyd” and did not supply an accompanying picture.

                                              2
¶3.    RDS testified that her stepfather and Boyd communicated using the Facebook phone

application to send messages to one another. At one point in their conversations, Boyd asked

if RDS was a virgin. At that time, Boyd was talking to the stepfather posing as RDS. When

Boyd asked RDS her age, the stepfather replied that she was fourteen.3 Afterward, the

stepfather, still posing as RDS, gave her phone number to Boyd, as the two wanted to

communicate by text message, as well as through the Facebook application.

¶4.    On June 26, 2012, Boyd text-messaged RDS’s phone to say that he wanted to pick up

RDS at her house. RDS said that she would rather walk down the street than have Boyd

come to her house. The stepfather, posing as RDS said, “You know I’m a virgin.” Boyd

responded, “What that mean.” Boyd then continued, “So, I’m – I’m going to be the first?”

Boyd then wrote “You ready to lose – you ready to lose it?” Then he, as RDS, answered

“Yeah.” He next messaged Boyd that he wanted to meet him at the Spaceway store. The

stepfather and his wife, RDS’s mother, then drove to Spaceway. They testified Boyd drove

into the Spaceway parking area, and the stepfather recognized his former high school

classmate, Tyrone Boyd.

¶5.    The stepfather and his wife went to the sheriff’s department the next day. They spoke

with police investigator Gypsi Ward. The stepfather gave Ward RDS’s cell phone. Ward

continued communicating with Boyd, pretending to be RDS. The second meeting was

effectuated by text messages sent by Ward, now posing as RDS, to Boyd, in addition to



       3
        The stepfather testified that, while posing as RDS, he mistakenly said she was
fourteen, even though she was twelve. The stepfather attributed his mistake to the fact that
he has seven children, one of whom was fourteen at the time the conversation took place.

                                             3
telephone conversations between Boyd and one of RDS’s older sisters, who also posed as

RDS. Boyd appeared the second night, and deputies arrested him near the highway behind

Spaceway. The deputies seized a cell phone when they arrested Boyd. After arresting Boyd,

Ward confiscated his phone and obtained a search warrant to discover its contents. The

phone had no contents whatsoever, other than a contact list of various phone numbers,

including RDS’s.4

¶6.    Boyd was charged with exploitation of a child under Mississippi Code Section 97-5-

33(6), which provides: “No person shall, by any means including computer, knowingly

entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the

defendant or any other person for the purpose of engaging in sexually explicit conduct.”

Miss. Code Ann. § 97-5-36 (6) (Rev. 2014). On February 11, 2013, the Grand Jury of

Lauderdale County indicted Boyd with exploitation of a child “. . . by means of a computer

and/or cell phone, [to] knowingly entice induce, persuade, seduce, solicit, advise, coerce and

/or order a child, to-wit: [RDS], to meet with him for the purpose of engaging in sexually

explicit conduct.”

¶7.    On January 27, 2014, the matter went to trial. The State presented a case that RDS

had identified herself as a minor, but that Boyd still had attempted to meet with her alone and

had expressed interest in having sex with her. The stepfather testified that he, along with his

wife, saw Boyd at the place and time at which Boyd and RDS had decided to meet.



       4
        RDS’s Facebook profile did not list her full name. Rather, her profile name was her
first and middle name. The contact name in the phone’s contact list appeared to refer to
RDS’s first and middle names.

                                              4
Investigator Ward identified Boyd the second time before arresting him with her partner at

the agreed-upon meeting spot. Ward testified that Boyd was driving alone and no other

people were present. Boyd denied ownership of the phone and the Facebook account.

¶8.    At trial, the state submitted printouts of the Facebook messages between the Tyrone

Boyd account and RDS’s account. The State also admitted text-message printouts, taken

from RDS’s phone, of messages sent between RDS’s number and Boyd’s number. The State

further submitted a printout of Boyd’s phone’s contact list. Counsel for Boyd did not object

to any of these evidentiary admissions. At trial, a data-extraction technician explained how

he processed Boyd’s phone through a data extractor and identified a printout of Boyd’s stored

numbers in the contacts list in the phone. One of the contacts contained RDS’s phone

number. The phone contained no text messages, and the technician suggested that this lack

of data was consistent with purposeful deletion of the phone’s contents.

¶9.    On January 31, 2014, the jury returned a guilty verdict. The Circuit Court of

Lauderdale County, Mississippi, Honorable Lester Williamson presiding, sentenced Boyd

to a term of twelve years with seven years to serve and five years to be suspended and on

reporting probation. Boyd also was fined $6,930.50. On March 28, 2014, Boyd moved for

a new trial. The trial court entered an order denying Boyd’s motion. Boyd then filed a timely

notice of appeal with this Court.

¶10.   On appeal, Boyd argues the court erred when it admitted the printouts containing the

Facebook and text messages. Boyd claims that the evidence of the Facebook messages and

text messages received by RDS was not sufficiently authenticated by the State. Specifically,



                                             5
Boyd contends the State should have attempted to “identify if Boyd was the actual owner of

the Facebook account that corresponded with [RDS’s] account,” or “subpoena Boyd’s cell

phone company records to show who owned his phone, what numbers the phone dialed and

the location of the person using the phone.”

¶11.   Boyd appeals, seeking reversal of his conviction and a new trial. The single issue

raised by Boyd on appeal is:

       Whether the trial court abused its discretion by admitting Facebook and
       text messages into evidence that the State failed to properly authenticate.

¶12.   This Court reviews the admission of evidence under an abuse-of-discretion standard.

Young v. Guild, 7 So. 3d 251, 262 (Miss. 2009). This Court will not reverse a conviction

unless the trial court abused its discretion in a manner that was prejudicial to the accused or

adversely affected a substantial right of the accused. Sewell v. State, 721 So. 2d 129, 138

(Miss. 1999).

                                        ANALYSIS

¶13.   This Court repeatedly has held that failure to make a contemporaneous objection

waives an issue for purposes of appeal. Williams v. State, 684 So. 2d 1179, 1203 (Miss.

1996). Because Boyd did not object to the admission into evidence of the Facebook

messages, the text messages, and the cell-phone printouts, Boyd is procedurally barred from

raising the items’ admission as an issue on appeal. Notwithstanding the procedural bar, we

find Boyd’s assignments of error meritless.

¶14.   Mississippi Rule of Evidence Rule 901(a) provides for the authentication of evidence

as a condition precedent to admission. Authentication simply establishes that “a matter is


                                               6
what its proponent claims it to be.” M.R.E. 901. Authentication and identification of

evidence are central to the concept of relevance; unless an item of evidence is shown to be

“genuine,” the item is irrelevant and should be excluded. See M.R.E. 901(a) cmt.

¶15.   In a case of first impression, this Court recently examined the unique issues presented

in attempting to authenticate messages sent via social media. Smith v. State, 136 So. 3d 424

(Miss. 2014). In Smith, this Court noted that “concerns over authentication arise ‘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 site is high, and poses challenges to authenticating

printouts from the website.” Id. at 432 (internal citations omitted). Further, this Court held

“[b]ecause of the special concerns regarding fabrication, ‘the fact that an electronic

communication on its face purports to originate from a certain person’s social networking

account is generally insufficient standing alone to authenticate that person as the author of

the communication.’” Id. at 433 (internal citations omitted).

¶16.   Smith then outlines situations where this type of evidence is sufficiently authenticated:

       . . . the sender admits authorship, the purported sender is seen composing the
       communication, 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 access to the computer
       or cell phone, the communication contains information that only the purported
       sender could be expected to know, 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 other circumstances peculiar to the particular
       case may suffice to establish a prima facie showing of authenticity.

                                               7
Smith, 136 So. 3d at 433 (¶21). While not exhaustive, Smith provides examples of

circumstances in which evidence could be deemed authentic in congruence with Mississippi

Rule of Evidence 901.5 We find that, other than the first two situations outlined in Smith

(where the sender admits authorship or a witness testifies to seeing the author compose and

transmit the message), each of the other situations exemplified in Smith entail circumstantial,

and not direct, evidence of authenticity.

       Facebook messages

¶17.   On appeal Boyd contends, “[t]he Facebook messages did not contain any personal

identifying information” and that “[w]ith nothing more to properly authenticate” the trial




       5
           Mississippi Rule of Evidence 901, in pertinent part, provides:

       (a) General Provision. The 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.

       (b) Illustrations. By way of illustration only, and not by way of limitation, the
       following are examples of authentication or identification conforming with the
       requirements of this rule:

                (1) Testimony of Witness With Knowledge. Testimony that a
                matter is what it is claimed to be.

                (2) Non-expert Opinion on Handwriting. Non-expert opinion as
                to the genuineness of handwriting, based upon familiarity not
                acquired for purposes of the litigation.
                ...
                (10) Other Methods. Any method of authentication or
                identification provided by the Mississippi Supreme Court or by
                the Constitution of Mississippi.

                                               8
court should have excluded the Facebook messages from evidence.6 At trial, the State

introduced Facebook messages from RDS’s account by which she communicated with the

Tyrone Boyd account. Over the course of the Facebook communications, the Boyd profile

asked RDS for her number, which she gave him. In reference to his own number Boyd told

RDS, “I just got dis new # so soon as it charge I will give it 2u all I no is 481 ma.” Not only

was RDS’s number later recovered from the contacts list in the phone found on Boyd during

his arrest, but the text messages the State attributed to Boyd came from a number beginning

with the numerical sequence “601-481.”

¶18.   Presumably, thousands of cell-phone owners living near Meridian, Mississippi, have

phone numbers beginning with the same six digits. However, Boyd was arrested at the time

and meeting place arranged in text messages originating from a number containing these six

digits, with a phone containing RDS’s phone number in his possession, and the messages

also happened to be from Tyrone Boyd. Whether these peculiar circumstances are analogous

to those contemplated in Smith is a question for this Court. We find the Facebook messages

were properly admitted considering the circumstances laid out here.7


       6
      Note that Facebook accounts cannot be verified as can phone calls and text
messages, as mentioned in Smith. See Smith, 136 So. 3d at 434-435.
       7
        Admittedly, this analysis involves a new application of the well-settled
authentication process (in light of technological change). We find that, in Smith, the Court
addressed two cases State v. Eleck, 23 A. 3d 818, 823 (Conn. App. 2011) and United States
v. Jackson, 208 F. 3d 633, 636-37 (7th Cir. 2000)), and that those two cases stood for the
principle that “Because of the special concerns regarding fabrication, ‘the fact that an
electronic communication on its face purports to originate from a certain person’s social
networking account is generally insufficient standing alone to authenticate that person as the
author of the communications.’” Smith, 136 So. 3d at 433. In both Eleck and Jackson, the
proponent attempted to authenticate Facebook messages using only photos, posts, and the

                                              9
       Text messages

¶19.   Boyd asserts, “the State simply relied on a UFED machine printout” that listed RDS’s

phone number as one of the contacts” on the phone confiscated from Boyd. This assertion

is incorrect. The State also submitted a printout made from RDS’s phone of text messages

between RDS and the number attributed to Boyd. Second, the State pointed to the fact that

Boyd arrived at or just behind the Spaceway store twice immediately after messages were

sent between his phone and RDS’s phone agreeing to meet there, and Boyd’s presence was

confirmed by three eyewitnesses who testified at trial. Third, the jury heard how police

confiscated a phone when Boyd was arrested that had the same number with which RDS had

communicated. Lastly, the confiscated phone’s contacts list contained RDS’s phone number,

despite the fact that Boyd claimed not to know her.

¶20.   Contrary to Boyd’s assertion on appeal, Smith does not stand for the proposition that

the State must authenticate electronic communications by subpoenaing the telephone

company and obtaining global positioning information for each message sent to prove that

a person authored the messages in question. In relevant part from the above-cited excerpt,

Smith held that messages also may be authenticated by evidence that “ . . . the purported

sender respond[ed] to an exchange in such a way as to indicate circumstantially that he was

in fact the author of the communication,” or that “other circumstances peculiar to the

particular case may suffice to establish a prima facie showing of authenticity.” Smith, 136



account names from the profiles. In this case, it is clear that the name “Tyrone Boyd” on the
Facebook profile does not suffice to show that Tyrone Boyd authored the messages; what
does authenticate them are the “peculiar circumstances” of the instant case.

                                             10
So. 3d at 433. Here, Boyd appeared at the Spaceway store after the person using the number

attributed to him agreed to do so. This fact would stand as a “circumstantial indication” that

the purported sender, Boyd, authored the messages because he went to the agreed location

twice immediately after messages agreeing to meet at that location were sent.

¶21.   Next, Smith provides that other “peculiar circumstances” may establish authenticity.

Id. While this Court has not defined these circumstances in great depth, we find the State’s

evidence was sufficiently authenticated under Smith. The fact that police arrested Boyd with

a phone that had the exact same number as the one with which RDS corresponded, and that

Boyd was alone at the time of seizure, certainly seems to be a peculiar coincidence indicating

that this was Boyd’s phone. Moreover, the fact that the phone contained RDS’s number is

even more circumstantially suggestive. Boyd’s only explanation for any of the above was

his testimony that the police both conspired to frame him with a cell phone that was not his

and that Investigator Ward perjured herself at trial in furtherance of the conspiracy. The jury,

it seems, did not subscribe to Boyd’s version of events.

¶22.   As Boyd would have it, the State could only admit evidence of his Facebook phone-

application communications and his text-message communications, for that matter, by

obtaining records, including locational GPS information on each message, to the exclusion

of all other people who may have accessed his phone or phone applications, in order to prove

each message independently authentic. Such a standard seems impracticable and goes much

further than this Court provided for in Smith. Boyd would make the authentication of

electronic communication appear to be sui generis in relation to more familiar media. But,



                                              11
where authorship is not admitted or witnessed, authentication always has depended on

circumstantial evidence, whether the subject medium was electronic or not. Here, we find

the instant facts provide sufficient authentication, particularly in light of the “peculiar

circumstances” of this case.     Thus, we find Boyd’s claims regarding each contested

admission are without merit.

                                     CONCLUSION

¶23.   Boyd’s issue raised on appeal is procedurally barred, and this Court cannot review it.

Notwithstanding the bar, Boyd’s contentions are meritless. Accordingly, we affirm Boyd’s

conviction and sentence.

¶24. CONVICTION OF EXPLOITATION OF A CHILD AND SENTENCE OF
TWELVE (12) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, WITH FIVE (5) YEARS SUSPENDED, AND SEVEN (7)
YEARS TO SERVE, AND FIVE (5) YEARS PROBATION, WITH CONDITIONS,
AFFIRMED. APPELLANT SHALL PAY PROBATION SUPERVISION FEE IN THE
AMOUNT OF $55 PER MONTH. WITHIN THIRTY (30) DAYS OF RELEASE, THE
APPELLANT SHALL PAY A FINE OF $50,000 WITH $45,000 SUSPENDED, A
$1,000 FINE TO THE CHILDREN’S TRUST FUND, COURT COSTS OF $420.50, $10
TO THE VBF, AND AN APPEARANCE BOND OF $500. APPELLANT SHALL
RECEIVE SIXTY-FOUR (64) DAYS JAIL CREDIT.

     WALLER, C.J., RANDOLPH, P.J., LAMAR, KITCHENS, CHANDLER, KING
AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.




                                             12
