Authentication, Fabrication and the Blog Post

After Nicholas Rossi was charged with and convicted of one count of sexual imposition in violation of Ohio Revised Code § 2907.06(A)(1) and one count of public indecency in violation of Ohio Revised Code §2907.09(A)(1), he appealed.  State v. Rossi, 2012 WL 2061505 (Ohio Court of Appeals 2012).

While his appeal was pending, Rossi filed a motion for a new trial “based upon newly discovered evidence,” the basis of which we’ll get to in a moment.  State v. Rossi, supra.  The trial court denied the motion, on the grounds that it did not have jurisdiction because the case was on appeal. State v. Rossi, supra.  The Court of Appeals found that was error, i.e., found the trial court should have considered the merits of Rossi’s motion; the trial court then held a hearing on the matter and subsequently issued an order denying Rossi’s motion for a new trial.  State v. Rossi, supra.  In this opinion, the Court of Appeals is addressing Rossi’s appeal of that order.  State v. Rossi, supra. 

According to an opinion in the earlier appeal,

M.G. [the victim of Rossi’s alleged sexual imposition] and Rossi were both students at Sinclair [Community College]. They met on the internet, communicating on My Space. They arranged to have lunch together at the Sinclair cafeteria in late January, 2008, their first physical meeting.

Also present at this lunch were two male acquaintances of M.G., including an ex-boyfriend, and a girl from Rossi's French class. According to M.G., she told Rossi that she wanted to be friends, but did not indicate a romantic interest, or an interest in Rossi as a potential boyfriend. . . .

After lunch, Rossi asked M.G. if he could walk her to her next class, and she agreed. When they arrived a few minutes early, she allowed herself to be led down some stairs to a place that is not usually frequented by the public. There, Rossi kissed M .G. `aggressively.’ On cross-examination, M.G. acknowledged that at first she kissed Rossi back, `just to get him off me.’

State v. Rossi, 2009 WL 1124537 (Ohio Court of Appeals 2009).  M.G. also said Rossi “`kind of pushed me up against the back wall, started kind of dry humping me . . . and I'm still kind of like resisting,’” after which “`he masturbated on the wall’”.  State v. Rossi (2009), supra. 

At Rossi’s bench trial, he tried “to establish that the sexual encounter between he and M.G. was consensual,” but the trial judge did not buy his theory and so “found him guilty of sexual imposition and public indecency.” State v. Rossi, supra.    

Rossi argued that the trial judge erred when he denied his motion for a new trial because the judge found that Rossi had failed to

properly authenticate Defense Exhibit A–1, the blog post copied from the Myspace web address which Rossi alleges was written and posted by the victim, M.G., after his trial was concluded. . . . Rossi asserts that the blog post was newly discovered exculpatory evidence which established that M.G. fabricated her testimony at trial regarding the sexual assault.

State v. Rossi, supra.

The blog post in question read as follows:

`I can't forgive you for what you've done. I loved you so much and you'll never have any idea. I think it's weird because we've done so much stuff together. I can't believe I went so far by giving you everything you wanted. I wish I could lie on your chest and you would like it. I don't know what to do.’ 

`But I have done went so far by lying n [sic] getting some stranger to go to jail and in legal so you wouldn't think I would cheat on you even when I did slip because he was cute, but I didn't give in to my desire. Is that not enough?’

`I went so far to say I wanted to be with you. I went so far to do things with you all the time. I don't understand what else I can do because you're pressing your luck, mister. I even changed my career for you so that we could work together. I'm drunk right now, but maybe when I sober we can talk about it. Because I love you and that's reason enough. * * *’.

State v. Rossi, supra.

In his motion for a new trial, Rossi argued that M.G.’s blog post “constituted a recantation of her testimony at trial, to wit: M.G. engaged in a consensual sexual encounter with Rossi to get back at her boyfriend.”  State v. Rossi, supra.  As noted above, the trial judge denied his motion because the judge found Rossi had not properly authenticated the post.  State v. Rossi, supra.

In reviewing the trial judge’s decision, the Court of Appeals noted that

[t]rial courts have the inherent power necessary to grant a new trial based on newly-discovered evidence, pursuant to [Ohio Rule of Criminal Procedure] 33. See, e.g., State v. LaMar, 95 Ohio St.3d 181, 767 N.E.2d 166 [(Ohio Supreme Court 2002)]. The newly-discovered evidence must show a strong probability of changing the result if a new trial is granted. State v. Perdue, 2005–Ohio–2703 [(Ohio Court of Appeals 2005)]. The burden of establishing a strong probability of a different result rests on the petitioner.

State v. Rossi, supra.

The Court of Appeals explained that

`[o]n a motion for new trial based upon grounds of newly discovered evidence, the trial court, when considering the recantation of the prosecution's primary witness, must make two findings: (1) which of the contradictory testimonies of the recanting witness is credible and true, and if the recantation is believable; (2) would the recanted testimony have materially affected the outcome of the trial?’

State v. Rossi, supra (quoting City of Toledo v. Easterling, 26 Ohio App.3d 59, 498 N.E.2d 198 (Ohio Court of Appeals 1985)). 

As to the provenance of the blog post Rossi attributed to M.G., the prosecution presented the testimony of Detective Doug Roderick, “an expert in computer forensics” at the hearing on Rossi’s motion for a new trial.  State v. Rossi, supra.

(As to Roderick’s expertise, the opinion notes that he is a detective “employed by the Dayton Police Department” who was, at the time of the hearing on Rossi’s motion for a new trial, “on loan to the Federal Bureau of Investigations as a forensic examiner of computer digital evidence.” State v. Rossi, supra. He “he had been working as a computer forensic specialist since 2001” and was certified “as a forensic computer examiner by the International Association of Computer Investigator Specialists and the International Society of Forensic Computer Examiners.”  State v. Rossi, supra. Roderick also “received forensic computer training from the FBI and National White Collar Crime Center.”  State v. Rossi, supra.) 

At the hearing, Roderick testified that

someone either altered or completely fabricated the Myspace blog post before Rossi submitted the `new’ evidence to the trial court. . . . [He] based his testimony on the fact that the date on the blog post on Defense Exhibit A–1 stated `May 16, 2008, Monday.’ Roderick testified that this was an incorrect match of the date and the day of the week. In fact, the trial court took judicial notice that May 16, 2008, was actually a Friday.

Roderick testified that a computer system would never match a date with the incorrect day of the week. Thus, [he] concluded with ninety percent certainty that Defense Ex. A–1 was either altered or that it was completely fabricated and not a genuine Myspace blog post at all.

State v. Rossi, supra. 

Roderick also testified that anyone

familiar with the `cut,’ `copy,’ and `paste’ functions of a computer with access to basic computer programs would have the capability to easily alter or fabricate a document such as Defense Ex. A–1 in order to make it appear as if a blog post was authored by another individual or alter the text of an existing blog post to suit one's purposes and then print it.

Rossi testified that he knew how to `cut,’ `copy,’ and `paste’ from web pages, describing the process as `simple.’ Rossi also testified that he did not witness M.G. author the blog post, nor had she ever admitted to him that she did so.

In fact, M.G. testified unequivocally that she did not author the blog post. Moreover, M.G. testified that she had never seen Defense Ex. A–1 until after Rossi's criminal trial when he filed a civil suit against her using the blog post as an exhibit in that case.

State v. Rossi, supra. 

The Court of Appeals also noted that Rossi testified that

he never made any effort to trace the blog post through Myspace in order to discover where the post originated. Rossi testified that he did not trace the blog post even though he was aware that such action could be performed. Rossi gave no reason for his failure to request that the origin of the blog post be traced.

State v. Rossi, supra. 

The court then explained that

[i]n light of the evidence adduced at the hearing, the trial court found that Defense Ex. A–1 was `highly questionable, . . . not credible and true, and [did] not carry enough weight to create a strong probability of a different result’ if a new trial was granted. 

State v. Rossi, supra. 

The Court of Appeals therefore noted that,

[u]pon review, we cannot find that that the trial court abused its discretion when it rejected Rossi's Exhibit A–1 and his testimony as a basis upon which to grant his motion for a new trial. Accordingly, the trial court did not err when it overruled Rossi's motion for a new trial.

State v. Rossi, supra.  It therefore affirmed the trial court’s denial of Rossi’s motion for a new trial and his conviction.  State v. Rossi, supra.