Miranda and the Consent to Assume Online Presence

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Some years ago, I did a post in which I analyzed the then-two reported cases I could find that involved law enforcement officers’ using a “consent to assume online presence” to gather evidence in a cybercrime case.  In that post, I analyzed the 4^th Amendment issues I speculated such a consent could implicate.  I have not run across any cases since that addressed that issue in any notable respect, so I have not written about the issue since.

This post examines a recent case in which such a consent was used, but instead of raising a 4^th Amendment challenge to its propriety, the defendant challenged the use of the evidence obtained as a result of the consent as violating his rights under the Supreme Court’s holding in Miranda v. Arizona, 384 U.S. 436(1966).

The recent case is U.S. v. Yong Wang, 2013 WL 452215 (U.S. District Court for the Southern District of New York 2013).  After he was charged with advertising child pornography in violation of 18 U.S. Code § 2251(d)(1), receiving and distributing child pornography in violation of 18 U.S. Code§ 2252A(a) (2)(B), and reproducing child pornography for distribution in violation of 18 U.S. Code § 2252A(a)(3)(A), Yong Wang moved to suppress certain evidence.  U.S. v. Yong Wang, supra.

More precisely, he moved to suppress “(1) his post-arrest statements and (2) evidence obtained as a result of his consent to agents assuming his online identity.”   U.S. v. Yong Wang, supra.  He argued that “his post-arrest statements were obtained in violation of Miranda v. Arizona,” supra and “that his consent was not voluntary.”  U.S. v. Yong Wang, supra.  I will deal rather briefly with the first issue, and then explain on what the court did with the second issue. (I do not know why the case is captioned Yong Wang, instead of U.S. v. Wang, so in an effort to avoid error, I am using the court’s caption.)

According to the opinion, Count One of the indictment set out the facts on which all of the charges were based:

Between 2007 and June 2011, Wang `managed and operated at least 18 websites containing child pornography (‘the Websites').’ (Indictment ¶ 1) Wang `sold   “memberships” to the Websites to individuals who paid to view, post, and download graphic images of child pornography.’ . . . The Websites were in Chinese. . . .

In order to access child pornography on the Websites, it was necessary `to (i) purchase a “V.I.P. membership,” or (ii) acquire “points” either by making monetary payments or by posting pornography, including child pornography, to the Websites.’ . . . Wang `oversaw memberships for the Websites and collected payments directly or indirectly through associates who established accounts at banks in China, at Wang's behest.’ . . .  

One of Wang's websites -- http://uudiguo.info -- is entitled ‘”Empire of the Young and Innocent Fragrances,”’ as translated from Chinese. . . .  Links on the Websites `advertised and offered access to child pornography collected under descriptive titles, such as “Young Young Empire,” “Young Girl Beauty Photos Military Region,” “Young Boy Movie Zone,” and “Exclusive Quality Young Girl Photos Set.”’

U.S. v. Yong Wang, supra.

According to the opinion, Wang “supported” his motion to suppress by submitting an

affidavit alleging the following facts: At 6:30 a.m. on June 23, 2011, federal agents entered his home. . . . Because he `did not know who they were,’ he hid in a closet. . . . 

`[W]ith guns drawn,’ the agents removed Wang from his closet and brought him to the living room. . . .  One of the agents told Wang, `we are not here for you, but want you to cooperate and tell us who is making the pictures and posting [them] on [the] web.’ . . .

Wang asserts that `[t]he Federal Agents led [him] to believe that if [he] cooperated with the agents and gave them the information they requested[, he] would be released’ and would not be arrested. . . . Accordingly, Wang provided a statement to the agents and consented to the agents assuming his online identity. . . .

U.S. v. Yong Wang, supra.

Before we get to the legal issues, I need to include a little more of the details the opinion provides as to what happened on June 23, 2011.  At some point after the agents took Wang from the closet and into the living room, two of them Agent Thompson and Agent Phung -- took him into his bedroom and “began questioning him.”  U.S. v. Yong Wang, supra.   

Thompson told him a translator was available, but Wang said he did not need one.  U.S. v. Yong Wang, supra. The opinion says that his website was in English, that he “spoke English clearly” and that he “never indicated” he was having “any difficulty understanding the agents.”  U.S. v. Yong Wang, supra.

Before they began the questioning Thompson

verbally administered Miranda warnings to Wang. . . . [and] gave Wang a written FBI advice-of-rights form. . . . After Wang read the advice-of-rights form, Thompson asked him if he understood it, and Wang responded that he did. . . . 

Thompson asked Wang if he was willing to sign the form and speak with agents. Wang stated that he was willing to answer questions, and he signed the waiver form. . . . After [he] signed the advice-of-rights form, Thompson and Phung began to interview Wang. . . .

U.S. v. Yong Wang, supra.

After Wang signed the form, he told the agents “he could go online and show them the `uudiguo’ website.”  U.S. v. Yong Wang, supra.  Thompson told [him] the agents wanted to take over his online accounts and asked Wang to sign a form entitled “`Consent to Assume Online Presence.’” U.S. v. Yong Wang, supra.  The form read as follows:

`I consent to the use of my online presence for any purpose relating to an official investigation by the above law enforcement authority, including (but not limited to) sending and receiving email or conducting any other electronic communications, accessing stored information, and using and disclosing such communications or information. I understand and acknowledge that by signing the consent form, I relinquish all present and future claims to the use of these accounts. I understand that law enforcement authorities will change the password(s) to this account so that I will no longer have access.’

`I give this consent freely and voluntarily, without fear, threats, coercion, or promises of any kind. I have been advised of my right to refuse to allow the assumption of my online presence, and I hereby voluntarily waive this right.’

U.S. v. Yong Wang, supra. 

Thompson told Wang that if he signed the form, he “would never have access to the accounts again.”  U.S. v. Yong Wang, supra.  Wang “read the form and then provided his user name and password for his desktop computer, for his Paypal account, for his email accounts, and for the server that hosted the `uudiguo’ website.” U.S. v. Yong Wang, supra.  He then “signed the form.”  U.S. v. Yong Wang, supra. “He did not ask any questions about the form” before doing so.  U.S. v. Yong Wang, supra.

In his motion to suppress, Wang argued that his statements to the agents could not be used against him because his waiver of his Miranda rights was “invalid” because of the “false statements” he claimed the agents made to him and the “pressure placed upon” him.  U.S. v. Yong Wang, supra.  

In the Miranda case, the Supreme Court held that suspects who were in “custody” when they were interrogated, which Wang was, are entitled to be informed of certain rights, such as their right to remain silent and their right to have a lawyer, their right to have the lawyer appointed if they cannot afford to hire one and their right to have the lawyer with them during interrogation (which means they cannot be interrogated if their lawyer is not present). 

But the Miranda Court also held that suspects can waive, i.e., can give up, these rights IF the waiver is (i) knowing and intelligent (the suspect knew he/she had these rights and understood the consequences of giving them up) and (ii) voluntary (the officers did not torture or otherwise overbear the person’s will so they would give up the rights).  For more on this, check out Wikipedia’s entry on waiving Miranda rights. 

The judge in this case held that Wang’s motion to suppress his statements would be denied because while he claimed the waiver was involuntary, he did not establish facts showing that.  U.S. v. Yong Wang, supra. The judge found there was no evidence that the agents threatened Wang or made false promises to coerce him into giving up his rights, and so denied his motion to suppress the statements.  U.S. v. Yong Wang, supra.

The judge also found that there was no evidence to show that Wang did not understand English and therefore did not understand the rights as administered to him since, among other things, he “maintained a Facebook page on which he wrote comments in English and he attended college in the United States.”   U.S. v. Yong Wang, supra. (This, of course, went to whether the waiver was knowing and intelligent.)

That brings us to Wang’s motion to suppress “evidence obtained as a result of his consent to agents assuming his online identity.”  U.S. v. Yong Wang, supra. I must admit that I was a little disappointed when I read how the judge in this case dealt with this issue, though I think that what the judge did was absolutely correct.  I only wishe the judge had addressed the issues in more detail, but I understand why he did not.

To understand why the judge did what he did, you need to understand a little more about what actually happened in this case.  When the judge held a hearing on Wang’s motions to suppress his statements and the evidence resulting from the consent to assume online identity, Agent Thompson testified that

the agents did not use any of the information Wang provided on the `Consent to Assume Online Presence’ form because they had previously obtained search warrants that authorized them to access Wang's desktop computer, his Paypal account, his email accounts, and the `uudiguo’ server. 

U.S. v. Yong Wang, supra.

A little more preface and we will get to the judge’s ruling.  Wang argued that any evidence obtained as a result of the agent’s using the Consent to Assume Online Presence should be suppressed because he did not give the consent “voluntarily.”  As I have noted in prior posts, consent is an exception to the 4^th Amendment’s default requirement that officers obtain a search warrant before searching a place or thing.  

 If I consent to let officers search the place or thing without a warrant, I waive my 4^th Amendment right to privacy in that place or thing.  I do not HAVE to consent; as Wikipedia notes, an individual “has the right to refuse to give consent.”  And since a 4^th Amendment consent is a waiver, it, like Miranda waivers, has to be voluntary.

As noted above, in his motion to suppress Wang argued that his consent for the agents to assume his online presence was not voluntary which, if true, would have voided it and warranted suppressing the relevant evidence.  He lost . . . for two reasons:  One was because the judge found the consent was voluntary; the other was that the issue was basically moot:

With regard to the consent form, Agent Thompson testified that Wang provided the information on it and signed it after he signed the Miranda waiver form. . . .The credible evidence demonstrates that Wang read and understood the consent form, and that he executed it freely and knowingly. The Government has thus met its burden of demonstrating that Wang's execution of the consent form was knowing and voluntary.

This appears to be a moot point, however. Agent Thompson testified that agents did not obtain any new information as a result of the consent form because they already had search warrants for Wang's residence, email accounts, and servers. . . .The Government has further represented that it does not intend to use against Wang any evidence that was obtained as a result of his execution of the consent form. . . .

U.S. v. Yong Wang, supra.

For all of these reasons, the judge denied Wang’s motion to suppress his statements and evidence obtained as a result of the consent.  U.S. v. Yong Wang, supra.

Emails, Stalking and Jurisdiction

After a jury convicted him of “three felony counts of stalking” in violation of Colorado Revised Statutes § 18-3-602(1)(b)and “three misdemeanor counts of harassment” in violation of Colorado Revised Statutes § 18-9-111(1)(e) and a judge sentenced him to “a prison sentence of twelve years”, Jerry L. Chase appealed.  People v. Chase, __ P.3d __, 2013 WL 979519 (Colorado Court of Appeals 2013).  

(He was sentenced to four years on each of the felony counts, the sentences to run consecutively. People v. Chase, supra.) 

According to this opinion, the case arose from events that occurred between 2002 and 2008, when Chase lived in Wapiti Meadows,

a low-income housing complex in Grand County, Colorado, where he met the three named victims in this case: G.B., D.D., and M.G. G.B. lived at Wapiti Meadows and was its property manager . . .; D.D. was its former property manager; and M.G. was the maintenance supervisor at the time. M.G. and D.D. were also husband and wife. . . .

Chase made frequent complaints to D.D., G.B., and M.G. regarding his next-door neighbors, the B. family. He complained about [their] ethnicity and alleged they were purposefully making noise to disturb him. In September 2008, Mr. B. accused Chase of putting sugar in his gas tank. 

Chase was charged with criminal mischief, and the district court entered a restraining order against Chase. Chase violated the order by banging on the B. family's wall and yelling an ethnically charged threat at them.

People v. Chase, supra. (The opinion notes that he was “later acquitted” of the criminal mischief charge.  People v. Chase, supra.)

As a result of all this, the Wapiti Meadows management G.B. posted an eviction notice on Chase’s door on October 1, 2008. People v. Chase, supra. On October 2, Chase emailed G.B. and asked her how he could fight the eviction; he also said he had “gone to Boston for a time, which G.B. knew he did every year.”  People v. Chase, supra.  G.B. said she could not offer any legal advice.  People v. Chase, supra.

The eviction and, perhaps this response, triggered a series of emails from Chase:

On . . . October 6, 2008, Chase sent an e-mail to twenty-three recipients, including G.B., M.G., and D.D. Chase was in Boston at the time. The e-mail was sent to G.B.'s work e-mail address and M.G.'s and D.D.'s personal e-mail addresses. It stated:

`I am 60 years old. I did 14 years in Walpole, MA for arson. Do NOT FUCK WITH ME. REMOVE THE FUCKING EVICTION NOTICE YOU FUCKING ASSHOLES. YOU BETTER PUT ME AWAY FOR LIFE MOTHERFUCKERS, OR THERE WILL BE HELL TO PAY. THAT SOVIET ASSHOLE [referring to Mr. B.]. HOW DARE YOU!!!! REMOVE THAT FUCKING NOTICE NOW!!!!!!!!!!!’

[On] October 7, 2008, Chase sent a second e-mail to thirty-four recipients, including G.B., M.G., and D.D., the three of whom were specifically mentioned in the e-mail. He wrote, in pertinent part:

`Kicking a 60 year-old man out of his apartment because of one Soviet immigrant? Fuck You!! THAT IS EVIL. YOU PIECES OF SHIT. That's a death sentence. . . . “To those whom evil is done, do evil in return.” . . . DO EVIL TO ME WILL YOU? You pieces of shit -- from that ugly-ass housing officer[ ], to those cunts [D.D.] and [G.B.], to Mr. “thinks he's a badass” [M.G.], I won't take a death sentence lying down. . . .’

Twenty-five minutes later, [he] sent the group a third e-mail, which included a photograph of a man pointing a gun at a judge. It demanded that the eviction notice be removed and stated:

`SOMEONE'S GOING TO GET HURT, OR WORSE!!!!! DO YOU UNDERSTAND? SOMEONE IS GOING TO GET HURT. IT'LL PROBABLY BE ME -- no it will be me -- BUT WHAT HAVE I GOT TO LOSE? I WILL NOT GIVE UP MY APARTMENT WITHOUT A SERIOUS FIGHT.’

Twenty-five minutes later, Chase sent a fourth e-mail to the group. . . .:

`I've got NOTHING TO LOSE, YOU PIECES OF SHIT. I HATE THE LORD GOD FOR GIVING YOU LIFE!!!!!!!!! cc: CUNT-ASS [D.D.] CUNT-ASS [G.B.]’

`TAKE THE EVICTION NOTICE OFF MY DOOR Your [sic] playing a very, very, dangerous game of bluff with me.’

Twenty minutes later, Chase sent the group a fifth e-mail criticizing the legal system, and then forty minutes later he sent them a sixth and final e-mail, stating:

`Better check out my football pictures at [Chase's myspace.com address.] I will headbutt someone, and I can and will kick as you can see from my yoga pictures. Someone . . . is playing a very dangerous game of bluff with me.'

People v. Chase, supra.

While they lived in Grand County, Colorado, M.G. and DD were in Baltimore, Maryland

when they opened and read the six e-mails in one sitting on October 7. They . . . return[ed] to Colorado a few days later, and evidence at trial showed they believed Chase was in Colorado when he sent the e-mails. M.G. called G.B. in Colorado to warn her of the e-mails, because he feared for her safety, and she went to the Winter Park police station to open and read the six e-mails from Chase.

People v. Chase, supra.

On appeal, Chase argued that his convictions on

counts two and three of felony stalking of M.G. and D.D. must be vacated, because there was insufficient evidence to establish that Colorado had subject matter jurisdiction over those counts given that no part of the offenses against M.G. and D.D. was committed in Colorado.

People v. Chase, supra.  (He did not challenge his conviction on count one, the felony count relating to G.B., because “she was in Colorado when she read the emails.”  People v. Chase, supra.)

As Wikipedia explains, subject-matter jurisdiction refers to a court’s power “to hear a case involving a specific subject or type of criminal proceeding.”  As it also notes, “most state courts are courts of general jurisdiction, which includes the authority to prosecute violations of the criminal laws of that state.”  People v. Chase, supra.

Chase also raised subject-matter jurisdiction at trial, when he moved for an acquittal.  People v. Chase, supra. The trial judge denied the motion because he found that even if “M.G. and D.D. read the e-mails while . . . out of the state,” his court “had jurisdiction over those counts because it had jurisdiction over” count one, which “related to G.B.,” who “opened and read her e-mails while in Colorado.”  People v. Chase, supra. 

The Court of Appeals agreed “with the trial court's conclusion that it had jurisdiction over counts two and three,” but reached that “conclusion based on different reasoning from that employed by the trial court.”  People v. Chase, supra.

It began by examining the relevant state criminal jurisdiction statutes.  People v. Chase, supra.  Colorado Revised Statutes § 18-1-201(1)(a) says a person is “subject to prosecution in this state for an offense which he commits, by his own conduct . . . if . . .[t]he conduct constitutes an offense and is committed either wholly or partly within the state.”  Colorado Revised Statutes § 18-2-201(2) states that an “offense is committed partly within this state if conduct occurs in this state which is an element of an offense or if the result of conduct in this state is such an element.”

The Court of Appeals therefore had to decide if either (i) conduct that was an element of the crime of stalking occurred in Colorado or (ii) the result of conduct in Colorado was an element of the crime of stalking. People v. Chase, supra.  To determine whether either was true, it had to examine the elements of the crime of which Chase was convicted.  People v. Chase, supra.

Colorado Revised Statutes § 18-9-111(4)(b)(II) defines felony stalking, the crime of which Chase was convicted, as follows: 

`A person commits stalking if directly, or indirectly through another person, such person knowingly . . . [m]akes a credible threat to another person and, in connection with such threat, repeatedly makes any form of communication with that person, a member of that person's immediate family, or someone with whom that person has or has had a continuing relationship, regardless of whether a conversation ensues.’

People v. Chase, supra (quoting § 18-9-111(4)(b)(II))) (emphasis added).  The court also noted that Colorado Revised Statutes § 18-9-111(4)(c)(II), which was in effect when this case arose, defined “credible threat” as

a threat, physical action, or repeated conduct that would cause a reasonable person to be in fear for the person's safety or the safety of his or her immediate family or of someone with whom the person has or has had a continuing relationship. Such threat need not be directly expressed if the totality of the conduct would cause a reasonable person such fear.

People v. Chase, supra (quoting § 18-9-111(4)(c)(II))) (emphasis added). 

Chase, of course, argued that because “he wrote and sent the e-mails in Boston, and because M.G. and D.D. opened the e-mails in Baltimore, none of the conduct occurred in Colorado.” People v. Chase, supra. The court, though, found that the key issue was not “where the e-mails were written or read, but rather whether the result of Chase's conduct, namely, causing a reasonable person to be in fear for his or her safety, occurred, at least in part, in Colorado.”  People v. Chase, supra.

The Court of Appeals found there was “sufficient evidence to establish that the threats made by Chase in the e-mails would have caused a reasonable person in the position of M.G. and D.D. to be in fear for their own safety and the safety of other persons in Colorado.” People v. Chase, supra.  It noted that testimony at the trial showed that

(1) Chase did not know that M.G. or D.D. was in Baltimore at the time, but he knew they lived in Colorado; (2) Chase knew where M.G. and D.D. lived in Colorado; (3) M.G. and D.D. knew they would be returning to Colorado; (4) Chase lived in Colorado; and (5) the conduct Chase demanded from the victims (removing the eviction notice) necessarily had to occur in Colorado. . . . 

[T]he jury could reasonably infer that Chase would have to be in Colorado to determine whether the eviction notice had been removed, and, thus, his threatened retribution against the victims would occur in Colorado.

People v. Chase, supra.  

It also pointed out that M.G. testified at trial that upon reading Chase’s emails,  

he `was alarmed and concerned for the safety of [his] home, which was 1700 miles away, and the safety of some other people who are mentioned in the e-mail,’ including his mother and D.D.'s mother, who both lived in Colorado. M.G. called G.B. in Colorado, because he feared for her safety, encouraging her to go to the authorities and avoid Wapiti Meadows. 

He called his neighbor in Colorado and asked him to `keep an eye out’ on his house and automobiles. He also called his house-sitter and warned her to not go to his house alone. D.D. testified that the e-mails were threats to her, and something could be done to her and M.G.

People v. Chase, supra.  

And, finally, the Court of Appeals found that Chase’s conduct of making a credible threat

occurred at least partly in Colorado because he sent his email messages to e-mail addresses associated with individuals he knew to reside in Colorado. Although e-mail addresses can be accessed from any locale, as occurred here when M.G. and D.D. accessed their e-mail accounts in Baltimore, Chase used their personal e-mail addresses to communicate with individuals he knew lived in Colorado. 

People v. Chase, supra.  

The court therefore found that the trial judge did not err in denying Chase’s motion challenging its subject-matter jurisdiction over the stalking charges.  People v. Chase, supra.  For this and other reasons, it affirmed his convictions and sentences.  People v. Chase, supra.  

Threats: “Sending” versus “Posting”

After he was charged with “two counts of making written threats to kill or do great bodily harm in violation of” Florida Statutes §836.10, Timothy Ryan O’Leary moved to dismiss the charges.  O’Leary v. State, __ So.3d __, 2013 WL 1091690 (Florida Court of Appeals 2013).  O’Leary argued that

because the threats at issue were simply posted on his personal Facebook page, the threats were not `sent’ to the alleged victims as required by the statute. Thus, he asserts, he did not violate the statute. 

O’Leary v. State, supra.

Section 836.10 of the Florida Statutes provides as follows:

Any person who writes or composes and also sends or procures the sending of any letter, inscribed communication, or electronic communication, whether such letter or communication be signed or anonymous, to any person, containing a threat to kill or to do bodily injury to the person to whom such letter or communication is sent, or a threat to kill or do bodily injury to any member of the family of the person to whom such letter or communication is sent commits a felony of the second degree. . . .

Florida Statutes § 836.10 (emphasis added).

Before we get to what happened with O’Leary’s motion to dismiss the charges, we need to review how the case arose.  According to this opinion, Timothy Ryan O’Leary

composed and posted a statement on his personal Facebook page which threatened death or serious bodily injury. The objects of the threat were a relative of [his] and her partner. Michael O'Leary, [Timothy O’Leary’s] cousin, was a Facebook friend of [his].

As such, Michael viewed the posts on [Timothy’s] Facebook page, although it is undisputed that [he] never expressly asked Michael to view the Facebook page or the threatening post. Nevertheless, as a Facebook friend, Michael viewed the post directed towards his relative and her partner. Michael, on his own initiative, showed [Timothy’s] threatening post to his uncle. The uncle, on his own accord, informed the victims about [Timothy’s] Facebook posting.

O’Leary v. State, supra.

In a footnote, the Court of Appeals says that

[i]n pertinent part, the posting identified the relative and her partner by name and stated that `FUCK my [relative] for choosin to be a lesbian and fuck [the partner] cuz you're an ugly ass bitch . . . if you ever talk to me like you got a set of nuts between your legs again . . . I'm gonna fuck you up and bury your bitch ass. U wanna act like a man. I'll tear the concrete up with your face and drag you back to your doorstep. U better watch how the fuck you talk to people. You were born a woman and you better stay one.’”

O’Leary v. State, supra.

As noted above, after being charged, O’Leary filed a motion to dismiss the charges:

Pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), [O’Leary] filed a motion to dismiss, arguing that the facts failed to establish a prima facie case against him under the statute. Specifically, [he] asserted that the uncontested facts established that he never sent or procured another to send any threatening message to either victim.

The State filed a traverse and demurrer in response to [O’Leary’s] motion to dismiss. While agreeing with nearly all of [his] recitation of the facts of the case, the State contended that [O’Leary’s] Facebook post constituted a `sending’ under Florida law.

O’Leary v. State, supra.

The trial judge

heard argument from both parties on the motion to dismiss. The trial court found that [O’Leary’s] posting constituted a `sending’ under section 836.10. The trial court provided two bases for the finding.

First, the trial court noted that, at the time Michael viewed the posting, it was accessible by any member of the public who wanted to view [O’Leary’s] Facebook page. Second, the trial court found that, even if it considered the Facebook posting to have been sent only to Michael, the facts still presented a prima facie violation of the statute. The trial court observed that the posting was an electronic communication, sent to Michael (the recipient), which threatened to kill or do serious bodily harm to a member of the recipient's family.

O’Leary v. State, supra.

After the trial judge denied his motion to dismiss, “entered a plea of no contest to one count of making written threats to kill or do serious bodily harm” and “reserved the right to appeal the trial court's denial of his motion to dismiss.” O’Leary v. State, supra.  The opinion noted that the prosecution “dropped the second count.”  O’Leary v. State, supra.)

The judge “subsequently imposed a sentence of ten years' imprisonment followed by five years of community control”, after which O’Leary appealed.  O’Leary v. State, supra.

The Court of Appeals began its analysis of O’Leary’s appeal by noting that it reviews a

trial court's denial of a motion to dismiss under a de novo standard of review. Gresham v. State, 908 So.2d 1114 (Florida Court of Appeals 2005). As we have previously explained, `[t]he purpose of a motion to dismiss an information pursuant to rule 3.190(c)(4) is to “ascertain whether the undisputed facts which the State will rely on to prove its case, establish a prima facie case, as a matter of law, so as to permit a jury to determine the defendant guilty of the crime charged.”’ Bonge v. State, 53 So.3d 1231 (Florida Court of Appeals 2011) (citation omitted).

O’Leary v. State, supra.

The court then explained that another of the Florida district Courts of Appeal had held that Florida Statutes § 836.10

is violated when: `(1) a person writes or composes a threat to kill or do bodily injury; (2) the person sends or procures the sending of that communication to another person; and (3) the threat is to the recipient of the communication or a member of his family.’ State v. Wise, 664 So.2d 1028 (Florida Court of Appeals 1995)

O’Leary v. State, supra.  It also noted that other districts of the Florida Courts of Appeal have adopted the same standard.  O’Leary v. State, supra.

The Court of Appeals explained that thecourt in State v. Wise, supra,

defined `sending’ as `the depositing of the communication in the mail or through some other form of delivery’ and `receipt of the communication by the person being threatened.’ State v. Wise, supra.

While the Wise court dealt with a defendant who had sent a threatening letter directly to the object of his threat, under a plain reading of the statute, receipt of a threatening communication by a family member of the person threatened, which is what occurred in the present case, would also fulfill the second prong of Wise's two-part definition of `sending.’

O’Leary v. State, supra.

The court then noted that its research had failed to

uncover any Florida case discussing whether posting a message on one's personal Facebook page can constitute a `sending’ for purposes of § 836.10.The existing Florida case law defining `sending’ under the statute, however, is applicable to [this] appeal even though the communication here involves a form of electronic communication. As noted above, the statute expressly applies to `electronic communication.’

Here, [O’Leary] composed a threat to kill or do serious bodily injury to the victims. Consequently, resolution of this appeal turns on the question of whether [he] `sent’ the threatening message by posting it on his personal Facebook page.

O’Leary v. State, supra.

O’Leary argued that,

by posting his message on his personal Facebook page, he, at most, published the message, which is not a violation of the statute. [O’Leary] contends that he `sent’ nothing because he neither asked anyone to view the posting on his personal Facebook page, nor addressed the posting to anyone, as would be the case with a letter or email.

O’Leary v. State, supra.

The Court of Appeals did not agree, noting that “a common sense review of the facts suggests that [he] has done more than he contends.”  O’Leary v. State, supra.

When a person composes a statement of thought, and then displays the composition in such a way that someone else can see it, that person has completed the first step in the Wise court's definition of `sending.’ When the threatened individual, or a family member of the threatened individual, views and receives the thoughts made available by the composer, the second step in the Wise definition is completed. At that point, the statement is `sent’ for purposes of section 836.10.

Further, Internet technologies `generally do not involve communications sent directly to another. Rather, communications are posted for the whole world to see, or, in a closed network for a particular community to see, such as a community of “Facebook friends.”’ Jacqueline D. Lipton, Combating Cyber–Victimization, 26 Berkeley Technology Law Journal 1103, 1127–28 (2011).

O’Leary v. State, supra.

With regard to this case, the court explained that O’Leary

reduced his thoughts to writing and placed this written composition onto his personal Facebook page. In so doing, the posting was available for viewing to all of [his] Facebook `friends.’ With respect to the posting in question, [O’Leary] had requested Michael O'Leary to be appellant's Facebook friend, a request that Michael accepted.

By posting his threats directed to his family member and her partner on his Facebook page, it is reasonable to presume [O’Leary] wished to communicate that information to all of his Facebook friends. Given the mission of Facebook, there is no logical reason to post comments other than to communicate them to other Facebook users.

Had [O’Leary] desired to put his thoughts into writing for his own personal contemplation, he could simply have recorded them in a private journal, diary, or any other medium that is not accessible by other people. Thus, by the affirmative act of posting the threats on Facebook, even though it was on his own personal page, [he] `sent’ the threatening statements to all of his Facebook friends, including Michael.

Michael received the composition by viewing it. As the trial court correctly ruled, at that point [O’Leary’s] violation of § 836.10 was complete, because the target of the threatening composition was a relative of the recipient.

O’Leary v. State, supra.

The Court of Appeals therefore held that the prosecution “made out a prima facie case against [O’Leary] by submitting facts showing [he] composed a threat to kill or do serious bodily injury, sent that communication to another, in this case Michael O'Leary, and the communication threatened a member of the recipient's family.” O’Leary v. State, supra. It therefore affirmed the trial judge’s denial of his motion to dismiss and, in so doing, his conviction and sentence. O’Leary v. State, supra.