Theft, the Computer and the Weight of the Evidence

When I hear someone refer to “computer theft,” I usually think they’re referring to someone who used a computer to obtain property or services.  Georgia Code § 16-9-93(a), for example, defines “computer theft” as (i) using a computer or computer network (ii) knowing the use is unauthorized and (iii) intending to take another’s property or use fraud to obtain another’s property.  Here, the computer is merely an instrument that is used to commit fraud.  Most state statutes that deal with computers and theft tend to take this approach. 

Rhode Island, though, has a statute that makes it a crime to, among other things, steal a computer or computer software.  General Laws of Rhode Island § 11-52-4.  The case this post examines deals with this type of computer theft, though it was not specifically prosecuted as “computer theft.”

Albert P. McLeod was charged with theft of property valued at more than $500 and less than $5,000, “a fifth degree felony,” in violation of Ohio Revised Code § 2913.02(A)(1), which makes it a crime “knowingly” and “with purpose to deprive the owner of property”, to obtain or exert control over . . . the property”.  State v. McLeod, 2012 WL 1929337 (Ohio Court of Appeals 2012). 

The case went to trial and the jury found him guilty; after the judge sentenced him to 25 days in jail, McLeod appealed. State v. McLeod, supra.  On appeal, McLeod argued that the state did not present sufficient evidence to sustain the conviction and/or that the conviction was “against the manifest weight of the evidence.”  State v. McLeod, supra. 

The only witnesses at the trial were Dean Holtsclaw, manager of a Wal-Mart, and McLeod.  State v. McLeod, supra.  He testified that, on January 1, 2007, he saw

[McLeod] select a computer and place it in a shopping cart. . . .  Shortly thereafter, Holtsclaw saw another man place another computer in a shopping cart. . . . The other man paid for his computer at the electronics checkout. . . . [McLeod], however, exited the store without purchasing anything. . . . [He] then came back into the store and retrieved the computer he had left in the cart. . . .

Holtsclaw observed [McLeod]  the entire time. . . . . [He] went to the front checkout and purchased one small item. . . . [McLeod]  then tried to leave the store through the grocery exit with the computer. . . . Holtsclaw stated that at no time did [McLeod] pay for the computer. . . .

[McLeod] presented the greeter with a receipt for a computer from the electronics checkout from 20 minutes prior. . . . Holtsclaw then called the police.

State v. McLeod, supra. 

Holtsclaw testified that “only one model” of the computer McLeod had in his possession “was legitimately sold in Wal–Mart that day”, and it “was purchased through the electronics checkout.”  State v. McLeod, supra.  He also testified as to what the Wal-Mart video surveillance system had recorded that day:

It showed [McLeod] entered Wal–Mart with the other man at 1:25 p.m. . . . At 1:28 p.m., [McLeod]  selected a computer and placed it in his cart. . . . At 1:29 p.m., the other man selected a computer. . . . At 1:33 p.m., [McLeod]  exited the store. . . . At 1:37 p.m., the other man paid for his computer. . . .

It was the only computer of that model sold on that day. . . . [McLeod]  was still outside of the store at this point. . . . At 1:45 p.m., the other man exited the store with his purchased computer. . . . At 1:50 p.m., [McLeod] re-entered the store. . . .

At 1:56 p.m., [McLeod] went through a front checkout with the computer and paid only for one item valued at $5.35. . . . At 1:57 p.m., [McLeod] attempted to leave the store with the computer.

State v. McLeod, supra. 

The receipt McLeod presented as proof he bought the computer was dated January 1, 2007, and listed the time of sale as 1:37 p.m. State v. McLeod, supra. As noted above, it came from the register in the electronics department. State v. McLeod, supra.  The value of the computer was $598. State v. McLeod, supra.  And, on cross-examination, Holtsclaw “admitted no one saw [McLeod] and the other man exchange any receipts or paperwork.”  State v. McLeod, supra. 

McLeod, on the other hand, testified that “on the day in question” he went to Wal-Mart to

buy a computer for his granddaughter. . . . He . . . was alone. . . .  [McLeod] testified that he realized he forgot his wallet and went back out to his car to retrieve it. . . . [He] then went back into the store where he purchased the computer. . . .

He next went to exit the store when he realized he forgot to buy something. . . . He . . . went back and bought a hair trimmer. . . . In the meantime, an employee asked to see his receipt, which he showed her. . . . He stated that she placed an `X’ on the receipt. . . .

Then as he went to exit the store with the computer and the hair trimmer, the security guard detained him. . . . [McLeod] stated that he had the computer with him from the time he purchased it until he tried to leave the store. . . .

He denied stealing the computer or working with anyone else to steal the computer. . . .

State v. McLeod, supra. 

McLeod’s first argument was that the evidence was not sufficient to support the verdict because “the state failed to prove that he acted `knowingly.’” “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature.” R.C. 2901 .22(B). The Court of Appeals noted that, under Ohio Revised Code § 2901.22(B), a person acts “knowingly” when “he is aware that his conduct will probably cause a certain result of will probably be of a certain nature.” 

The Court of Appeals then examined the evidence to “determine if it was sufficient to convict” McLeod of the crime charged.  State v. McLeod, supra.  It found that the evidence outlined above,

when viewed in a light most favorable to the prosecution, establishes that [McLeod], with the purpose to deprive Wal–Mart of the computer, knowingly exerted control over the computer without Wal–Mart's consent. Thus, [his] conviction is supported by sufficient evidence.

State v. McLeod, supra.  So, McLeod lost on his first argument.

His second argument, as noted above, was that the jury’s verdict was “against the manifest weight of the evidence.”  State v. McLeod, supra.  He based his

argument, in part, on the fact that there was no testimony that he physically removed the computer from Wal–Mart without paying for it. He also relie[d] on the fact that there was no video evidence that he conspired with the other man in an effort to steal the computer. And he relie[d] on his own testimony that he paid for the computer and showed a receipt to prove it.

State v. McLeod, supra. 

The Court of Appeals then outlined the standard for addressing an against the manifest weight of the evidence issue:

In determining whether a verdict is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences and determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. [State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (Ohio Supreme Court 1997).]

`Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.”’ [State v. Thompkins, supra (emphasis in the original.] In making its determination, a reviewing court is not required to view the evidence in a light most favorable to the prosecution but may consider and weigh all of the evidence produced at trial.

State v. McLeod, supra. 

The court also noted that “granting a new trial is only appropriate in extraordinary cases where the evidence weighs heavily against the conviction” because

determinations of witness credibility, conflicting testimony, and evidence weight are primarily for the trier of the facts who sits in the best position to judge the weight of the evidence and the witnesses' credibility by observing their gestures, voice inflections, and demeanor. 

State v. McLeod, supra.  In other words, the jury is the best judge of the evidence.

The Court of Appeals then explained that determining whether the verdict in this case was against the manifest weight of the evidence, it had to consider Holtsclaw's testimony and that of McLeod. State v. McLeod, supra.  It noted that

[t]his case turned on whose testimony the jury found to be more credible. Given their guilty verdict, the jury found Holtsclaw to be the more credible witness. Holtsclaw's testimony was supported by the video surveillance photos that showed where appellant and the other man were and at what times.

His testimony was further bolstered by the fact that the only model of the particular computer that [McLeod] tried to leave the store with that was sold at Wal–Mart that day was purchased when [McLeod] was not in the store and the computer he had selected sat in an unattended shopping cart.

State v. McLeod, supra. 

The Court of Appeals then found that

[i]n this case, the jury simply did not believe [McLeod’s] testimony that he paid for the computer. We will not second-guess the jury's credibility determination. The jury's verdict was not against the manifest weight of the evidence.

State v. McLeod, supra. 

It therefore affirmed McLeod’s conviction and sentence.  State v. McLeod, supra. 

Hearsay, Authentication and “Keeping a Place of Prostitution”

After being convicted of “keeping a place of prostitution and possession of less than one ounce of marijuana,” Ebony Shaun Smoot appealed.  Smoot v. State, __ S.E.2d __, 2012 WL 1994711 (Georgia Court of Appeals 2012). 

According to the opinion, the case began when, “on the afternoon of September 27, 2010”, two police officers who had “receiv[ed] complaints from the community about suspicious activity,” conducted “surveillance of a residence” in Clayton County where Smoot lived “along with several other women.”  Smoot v. State, supra. The officers observed “a car pull into the driveway.”  Smoot v. State, supra.  

An unidentified male got out of the car and entered the residence. He remained inside for a short period of time and left. . . . After initiating a traffic stop and speaking with him, the two officers, along with a police lieutenant, conducted an independent investigation of certain websites by personally viewing their content.

Smoot v. State, supra.

More precisely, the officers and the lieutenant reviewed advertisements posted on

Backpage.com and Craigslist.org, in addition to a . . . website with the URL address of www.ifshewontiwill.com (the `ifshewontiwill website’). [They] later testified that the web pages included `provocative’ and `risque photographs of semi-nude and nude women advertising `sexual services’ and `sexual behaviors’ for money and providing contact phone numbers. 

The Ifshewontiwill website included photographs of Smoot, and the advertisements posted on Backpage.com and Craigslist.org listed contact phone numbers linked to Smoot.

Smoot v. State, supra.

They got a search warrant for the house, which they executed on September 30, 2010.  Smoot v. State, supra.  When the officers entered the house, they found

several occupants in the residence, including Smoot. She was discovered `somewhat’ undressed in the closet in the upstairs master bedroom. The police found marijuana in the master bedroom on a dresser in a closed wooden box and in plain view in several other areas upstairs, on the kitchen counter, and on a computer desk in the living room. . . . [A] `stripper pole’ was set up in the living room as well.

Smoot v. State, supra.

They also found two types of business cards in

the residence. The first . . . contained the heading `Adult Social Network.’ The card listed the web address of the Ifshewontiwill website and contained the statements `True Freaks ONLY!!!!,’ `Ready to Have Some Fun,’ and `Created by Gold,’ which Smoot admitted was her nickname. 

The second business card listed `Ms. Shauna Gold’ as the `HBIC/CEO’ of `All You Need Entertainment.’ The card included the address of the residence and claimed `10–20 Entertainers always available’ and `Appointments taken 24/7.’

Smoot v. State, supra.

Smoot was arrested and charged with keeping a place of prostitution in violation of Georgia law.  Smoot v. State, supra. To commit the crime, a person must “`(1) knowingly grant or permit the use (2) of a place that offers seclusion or shelter (3) over which [s]he has or exercises control (4) to be used for the purpose of prostitution.’” Smoot v. State, supra (quoting Robert E. Cleary, Jr., Kurtz Criminal Offenses and Defenses in Georgia, Prostitution and Related Offenses, p. 1379 (2011 ed.)).  She was also, as noted above, charged with possessing less than an ounce of marijuana.   Smoot v. State, supra.

Smoot pled not guilty and went to trial on both charges.  Smoot v. State, supra. At trial, and over her objection, the officers testified to what they did and observed, as outlined above, and the prosecution also introduced “printouts of the Ifshewontiwill website and of the advertisements posted on Craigslist.org.” Smoot v. State, supra. After she was convicted, Smoot moved for a new trial but the trial judge denied her motion.  Smoot v. State, supra.  She then appealed.  Smoot v. State, supra.

Smoot raised several issues on appeal, but we’re only concerned with three of them, the first of which was that the trial judge erred in allowing the prosecutor to

elicit testimony from the investigating officers and the police lieutenant describing the photographs and advertisements contained in the web pages that they reviewed as part of their investigation. According to Smoot, the witness's description of the photographs and advertisements viewed on the websites constituted inadmissible hearsay.

 

Smoot v. State, supra. 

As Wikipedia explains, hearsay is

information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. . . . For example, a witness says `Susan told me Tom was in town’ as her evidence to the fact that Tom was in town. Since the witness does not offer in this statement the personal knowledge of the fact, this witness statement would be hearsay evidence to the fact that Tom was in town, and not admissible. 

Hearsay, then, is an out of court statement that is admitted for the truth of the facts included in it. And as I’ve explained in other posts, including a recent one, hearsay is not admissible unless it falls into one of a number of recognized exceptions because the defendant, the person against whom the hearsay is offered, cannot test the credibility of the original declarant, i.e., Susan in the example above, by cross-examining him/her. 

In ruling on Smoot’s argument regarding the officers’ testimony, the court therefore noted that hearsay “relates to an out-of-court statement made by someone other than the witness.”  Smoot v. State, supra.  It then explained that the officers’ testimony was properly admitted:

We have pointed out that `testimony describing contents of a photograph [does] not refer to any statements and thus [is] not hearsay.’ Hammock v. State, 311 Ga.App. 344, 715 S.E.2d 709 (2011). . . . 

Testimony regarding the content of photographs does not `ask the jury to assume the truth of out-of-court statements made by others, and instead the value of the testimony rest[s] on the [testifying witness's] own veracity and competence.’ . . .  [McClain v. State, 311 Ga. App. 750, 716 S.E.2d 829 (2011).] Thus, the testimony of the officers and lieutenant describing the content of the photographs on the web pages was not hearsay.

Smoot v. State, supra.

The Court of Appeals then addressed the officers’ testimony describing the web page advertisements as “offer[ing] `services’ in return for money”.  Smoot v. State, supra. It explained that an

offer of services in return for money is in the nature of a `verbal act’ or `performative utterance’ rather than a declarative assertion, and, therefore, has probative value arising from the very fact that it was said, rendering it admissible as original evidence. See Stubbs v. Dubois, 306 Ga.App. 171, 702 S.E.2d 32 (2010). . . .   It follows that the trial court did not abuse its discretion in admitting the testimony regarding the content of the web pages. 

Smoot v. State, supra. (More on verbal acts below.)

Finally, Smoot also argued that the trial judge erred in admitting printouts from the Ifshewontiwill website and from Craigslist.org “because (a) the State failed to lay a proper foundation for their admission and (b) the content of the printouts constituted inadmissible hearsay.”  Smoot v. State, supra. The first issue went to authentication, i.e., the need for the party offering evidence to prove that it is what it is claimed to be.

As to whether the prosecution established the necessary foundation for the printouts, the court explained that

printouts from electronic computer sources are subject to the same rules of authentication as other documents. . . . . `As a general rule, a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity . . . of the writing.' . . . Hollie v. State,298 Ga.App. 1, 679 S.E.2d 47 (2009).

`Printouts of [w]eb pages must first be authenticated as accurately reflecting the content of the page and the image of the page on the computer at which the printout was made' before they can be introduced into evidence. Kenneth S. Broun, 2 McCormick on Evidence § 227 (6th ed.2006). . . . Then, to be relevant and material to the case at hand, the printouts often will need to be further `authenticated as having been posted by a particular source.' 2 McCormick on Evidence, supra, § 227. 

Smoot v. State, supra.

The court found that the prosecution properly authenticated the printouts of the Ifshewontiwill website:

[O]ne of the investigating officers testified that he made the printouts of the website, which were `a fair and accurate representation of the actual things’ that he personally viewed on the website as part of his investigation. 

Moreover, the State presented circumstantial evidence that Smoot was the source of the website by introducing business cards found in her residence that were entitled `Adult Social Network,’ listed the web address for the Ifshewontiwill website, and contained the statement `Created by Gold,’ which Smoot admitted to police was her nickname. . . .

Smoot v. State, supra.

The Court of Appeals also found that the prosecution had not properly authenticated the printouts of the Craigslistorg website:

These printouts were introduced through the police lieutenant, but there was no testimony from her that the printouts fairly and accurately represented the contents of the website she personally viewed as part of her investigation. 

Accordingly, the State failed to elicit testimony sufficiently authenticating the printouts from Craigslist.org. . . .

Smoot v. State, supra.

As to whether the printouts constituted hearsay, the court found that

the content of the Ifshewontiwill website consisted of photographs of women, the first names or nicknames of the women, and advertising content, including a list of the `services’ offered. The photographs and first names or nicknames appearing on the website were not hearsay. See . . . Weems v. State, 295 Ga. Appl. 680, 673 S.E.2d 50 (Ga. App. 2009) (testimony regarding nickname was `verbal act’ not introduced to prove the truth of the matter asserted). . . . 

Furthermore, the advertising content of the website expressed an offer to perform certain `services’ for money, and, as such, was admissible as a `verbal act’ or `performative utterance.’

Smoot v. State, supra.

As one source explains, statements that constitute “verbal acts” are not hearsay because

they are not offered for their truth.  In other words, the uttering of certain words has independent legal significance . . .e.g., words of a contract, libel, slander, threats, and the like.  Thus, we only care that these words were said, not that they are true.)

The court therefore held that the printouts from the Ifshewontiwill site were properly admitted.  Smoot v. State, supra.  It reversed her conviction for keeping a house of prostitution, though, because it found that the trial judge erroneously admitted “highly prejudicial statements from a neighborhood group” at her trial.  Smoot v. State, supra. It noted that double jeopardy prevented her from being retried on that issue, and affirmed her conviction for possessing marijuana.  Smoot v. State, supra.

Wiretapping, Invasion of Privacy and Facebook

This post deals with a civil suit in which the plaintiff filed a nine-count Amended Complaint that, among other things, alleged that the defendants had, among other things, violated the New Jersey Wiretapping and Electronic Control Act and committed “common law invasion of privacy.”  Ehling v. Monmouth-Ocean Hospital Service Corp., 2012 WL 1949668 (U.S. DistrictCourt for the District of New Jersey 2012) (“Ehling v. Monmouth-Ocean”).

The plaintiff, Deborah Ehling, is “a registered nurse and paramedic” who was hired by the Monmouth-Ocean Hospital Service Corp. (“MONOC”) some time before 2008.  Ehling v. Monmouth-Ocean, supra.  In July of 2008, she became “Acting President of the local union for Professional Emergency Medical Services Association - New Jersey (the `Union’).” Ehling v. Monmouth-Ocean, supra.  As President, she was “`very proactive in attempting to protect the rights and safety of her union members’” and filed “numerous complaints . . . against MONOC.”  Ehling v. Monmouth-Ocean, supra.  In her complaint, Ehling alleges that "as soon as she became President of the Union,” MONOC and the other defendants “began engaging in a pattern of retaliatory conduct against her” that culminated “in her termination in July 2011.”  Ehling v. Monmouth-Ocean, supra.

In this opinion, the district court judge is ruling on the defendants’ motion to dismiss Ehling’s wiretapping and invasion of privacy claims.  Ehling v. Monmouth-Ocean, supra. They filed a Rule 12(b)(6) motion, which, as Wikipedia notes, is how defendants can have

lawsuits with insufficient legal theories underlying their cause of action . . . dismissed from court. For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion.

The claims at issue here arose out of the account Ehling maintained, “[d]uring the 2008-2009 timeframe,” on Facebook. Ehling v. Monmouth-Ocean, supra.  In his opinion, the judge explains that if someone was not

invited to be her Facebook `friend,’ he or she could not access and view postings on [Ehling’s] Facebook `wall.’ Many of [her] coworkers were invited to be [her] Facebook friends. [She] did not invite any members of MONOC management as friends.

Ehling v. Monmouth-Ocean, supra. 

According to Ehling’s Amended Complaint, MONOC “`subsequently’”

`gained access to Ehling's Facebook account by having a supervisor(s) summon a MONOC employee, who was also one of [her] Facebook friends, into an office’ and `coerc[ing], strong-arrn[ing], and/or threaten[ing] the employee into accessing his Facebook account on the work computer in the supervisor's presence.’ . . .  [Ehling] claims the supervisor viewed and copied [her] Facebook postings. 

Ehling v. Monmouth-Ocean, supra. 

One of the postings “was a comment [Ehling] made regarding a shooting that took place at the Holocaust Museum in Washington, DC,” in which she said:

`An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I want to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a difference! WTF!!!! And to the other guards . . . go to target practice.’

Ehling v. Monmouth-Ocean, supra. 

On June 17, 2009, MONOC sent “letters regarding” this post to the New Jersey Board of Nursing and New Jersey Department of Health, Office of Emergency Medical Services. Ehling v. Monmouth-Ocean, supra.  The letters said MONOC was “concerned” that her  Facebook posting “showed a disregard for patient safety.” Ehling v. Monmouth-Ocean, supra.  Ehling claims (apparently in other parts of her Amended Complaint), that they were sent “in a `malicious’ attempt to attack” and “damage her reputation and employment opportunities, and potentially risk losing her nursing license and paramedic certification status.”  Ehling v. Monmouth-Ocean, supra. 

We’re not concerned with those issues, however.  As noted above, we’re concerned with the defendants’ motion to dismiss Ehling’s New Jersey wiretap law and common law invasion of privacy claims, which go to the defendants’ accessing the posting described above.  Ehling v. Monmouth-Ocean, supra.  In ruling on the motion, the judge noted that to survive a motion to dismiss, a plaintiff has to allege facts that are sufficient to raise her “`right to relief above a speculative level, such that it is “plausible on its face.”’” Ehling v. Monmouth-Ocean, supra (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).

The judge began his analysis with Ehling’s claim under New Jersey wiretap act:  New Jersey Statutes§ 156A-27, which states that a person is guilty of a crime if

he (1) knowingly accesses without authorization a facility through which an electronic communication service is provided or exceeds an authorization to access that facility, and (2) thereby obtains, alters, or prevents authorized access to a wire or electronic communication while that communication is in electronic storage.”

Ehling v. Monmouth-Ocean, supra (quoting New Jersey Statutes § 156A-27(a)).  He also noted that electronic storage is defined as “[a]ny temporary, intermediate storage of a[n] . . . electronic communication incidental to the . . . transmission thereof;” and “[a]ny storage of such communication by an electronic communication service for purpose of backup protection of the communication.” New Jersey Statutes § 156A-27(a)). 

The judge then explained that “[b]ased on” this definition of electronic storage, New Jersey courts have held that the state’s wiretap act “protects only those electronic communications, which are in the course of transmission or are backup to that course of transmission.” Ehling v. Monmouth-Ocean, supra (quoting White v. White, 344 N.J. Super. 211, 781 A.2d 85 (2001)).  He also pointed out that the White court found that the New Jersey wiretap act

`does not apply to electronic communications received by the recipient, placed in post-transmission storage, and then accessed by another without authorization[,]’ because `the “strong expectation of privacy with respect to communication in the course of transmission significantly diminishes once transmission is complete.”’

Ehling v. Monmouth-Ocean, supra (quoting White v. White, supra). 

Given all this, the judge found Ehling had not stated a claim under the New Jersey Wiretap act:

[Ehling] clearly failed to state a claim under the NJ Wiretap Act. The Amended Complaint does not allege that [her] Facebook posting was in the course of transmission when Defendants viewed it. To the contrary, the Amended Complaint clearly states that the posting was live on the Facebook website for all of [Ehling’s] Facebook friends to `access and view.’ . . . Because the posting was in post-transmission storage when Defendants accessed it, this communication does not fall under the purview of the NJ Wiretap Act.

Ehling v. Monmouth-Ocean, supra. 

The judge then took up the defendants’ motion to dismiss Ehling’s common law invasion of privacy claim.  Ehling v. Monmouth-Ocean, supra.  He explained that her

claim is premised on Defendants' alleged unauthorized `accessing of her private Facebook postings’ regarding the Holocaust Museum shooter. . . . Defendants move to dismiss Count VI, arguing that [Ehling] did not have a reasonable expectation of privacy in her Facebook posting. 

Ehling v. Monmouth-Ocean, supra. 

Next, he outlined the applicable principles of New Jersey law:

Under New Jersey law, to state a claim for intrusion upon one's seclusion or private affairs, a plaintiff must allege sufficient facts to demonstrate that (1) her solitude, seclusion, or private affairs were intentionally infringed upon, and that (2) this infringement would highly offend a reasonable person. . . . “`E]xpectations of privacy are established by general social norms’ and must be objectively reasonable—a plaintiff's subjective belief that something is private is irrelevant.

Ehling v. Monmouth-Ocean, supra (quoting White v. White, supra). 

He then outlined how courts have dealt with “[p]rivacy in social networking”:

There appears to be some consistency in the case law on the two ends of the privacy spectrum. On one end of the spectrum, there are cases holding that there is no reasonable expectation of privacy for material posted to an unprotected website that anyone can view. . . . On the other end of the spectrum, there are cases holding that there is a reasonable expectation of privacy for individual, password-protected online communications. . . .

Courts, however, have not yet developed a coherent approach to communications falling between these two extremes. Although most courts hold that a communication is not necessarily public just because it is accessible to a number of people, courts differ dramatically in how far they think this theory extends. . . . What is clear is that privacy determinations are made on a case-by-case basis, in light of all the facts presented. 

Ehling v. Monmouth-Ocean, supra (emphasis in the original).

The judge then reviewed the arguments both sides were making on this issue:

[Ehling] argues that she had a reasonable expectation of privacy in her Facebook posting because her comment was disclosed to a limited number of people who she had individually invited to view a restricted access webpage. Defendants argue that [she] cannot have a reasonable expectation of privacy because the comment was disclosed to dozens, if not hundreds, of people.  The Amended Complaint and underlying documents do not indicate how many Facebook friends [Ehling] had at the time the comment was made; thus, there is no indication of how many people could permissibly view [her] posting.

Ehling v. Monmouth-Ocean, supra. 

Based on all this, the judge found that Ehling

has stated a plausible claim for invasion of privacy, especially given the open-ended nature of the case law. [She] may have had a reasonable expectation that her Facebook posting would remain private, considering that she actively took steps to protect her Facebook page from public viewing. More importantly, however, reasonableness (and offensiveness) are highly fact-sensitive inquiries. As such, these issues are not properly resolved on a motion to dismiss. . . .

Ehling v. Monmouth-Ocean, supra. 

This does not mean that Ehling won on her invasion of privacy claim.  It means the claim survives and will at some point be resolved, either on a motion for summaryjudgment (in which one side claims they win without going to trial because there are no disputes about the essential facts in the case) or after a trial. 

Sexual Assault, Character and Login Identification

After being convicted of “one count of sexual assault in the fourth degree in violation of [Connecticut] General Statutes § 53a–73a(a)(6)”, Adam Benedict appealed.  State v. Benedict, __ A.3d __, 2012 WL 1937453 (Connecticut Court of Appeals 2012). 

According to the opinion, the “complainant”, who accused Benedict of sexual assault, was “a seventeen year old senior at Litchfield High School” and he was “a substitute teacher and athletic coach at” the same school. State v. Benedict, supra.  The opinion says that he

first contacted the complainant outside of school in January or February, 2007. A week or two later, [Benedict] called [her] while she was visiting a friend's residence and offered to pick her up. [She] agreed. When [he] and his friend arrived at [her] friend's residence, [he] appeared to be intoxicated. After [his] friend drove [Benedict] and the complainant to [his] residence, the friend departed.

State v. Benedict, supra. 

The opinion says that after they entered Benedict’s residence, she “followed him into his bedroom,” where

he kissed her, took off her shirt, kissed her chest and sucked on her breasts. . . . Thereafter, [Benedict] exposed his penis and requested that [she] perform fellatio on him. When [she] refused, [he] returned his penis to his pants and continued rubbing his genital region against her leg until he ejaculated. After changing his clothing, [Benedict] lay down on the bed with [her], kissed her, squeezed her breasts and fell asleep. [She] remained at [his] residence until the following morning.

State v. Benedict, supra.  (The opinion includes more details, but they're really not needed for our purposes.)

After she graduated from high school, and “in June or July" of 2007,  the complainant, “accompanied by her boyfriend and another female complainant, went to the state police barracks in Litchfield to file a complaint against” Benedict. State v. Benedict, supra.  “On the basis of that complaint,” he was “arrested and charged with three counts of sexual assault in the fourth degree in violation of § 53a–73a (a)(6).  State v. Benedict, supra.  

Two counts related to separate alleged incidents involving sexual contact between [Benedict] and the complainant, and one count related to a third alleged incident involving sexual contact between [him] and the other female complainant.

After a jury trial, [he] was convicted . . . of one count of sexual assault in the fourth degree against the complainant. . . . He later was sentenced . . . to a term of one year incarceration, execution suspended after ninety days, and three years of probation with special conditions. 

State v. Benedict, supra.  (The jury found him “not guilty of the charge relating to” the “other female complainant”.  State v. Benedict, supra.)

Benedict raised two issues on appeal, only one of which we’re concerned with. 

(The other was his claim that the trial judge erred in limiting his attorney’s ability to question the complainant about the “special conditions” of her pretrial diversionary program on a “pending felony charge”.  State v. Benedict, supra.  The Court of Appeals found the judge erred and, in so doing, violated Benedict’s 6th Amendment right to confront witnesses against him. State v. Benedict, supra.   It found this denied him the ability to show she might have testified against him because she was hoping to “garner favor with the” prosecution and gain its help in dealing with the charge against her.  State v. Benedict, supra.) 

The one we’re concerned with is Benedict’s argument that the trial judge (also) erred in allowing the prosecution “to question [him] and his character witnesses about his social media website login identification, smoothcriminal77”.  State v. Benedict, supra.  He argued that the evidence was admitted in violation of Connecticut Code ofEvidence § 4-4, which governs the admissibility of “character evidence”.  State v. Benedict, supra.

As Wikipedia explains, character evidence is a term the law of evidence uses “to describe any testimony or document submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person.”  Here, Benedict argued that

because the court had narrowed the scope of permissible character evidence to that which related to a specific element of the crime charged, to which the login identification was irrelevant, such evidence went only to general bad character and was thus inadmissible at trial.

State v. Benedict, supra.

As noted above, Benedict relied on Connecticut Code of Evidence § 4-4, which states that

[e]vidence of a trait of character of a person is inadmissible for the purpose of proving that the person acted in conformity with the character trait on a particular occasion” with certain exceptions. 

Connecticut Code of Evidence § 4-4(a).  The only exception that would seem to apply here is the one codified in Connecticut Code of Evidence § 4-4(a)(1), which states that a court can admit

[e]vidence of a specific trait of character of the accused relevant to an element of the crime charged offered by an accused, or by the prosecution to rebut such evidence introduced by the accused.

The Court of Appeals began its analysis of Benedict’s argument by noting that certain “additional facts [were] necessary to” its resolution of the argument.  State v. Benedict, supra. They were as follows:

During cross-examination of [Benedict] defense counsel objected to the state's questioning of him regarding his MySpace login identification on the ground that it was irrelevant. 

The prosecutor responded: `As far as what his login ID was, “smooth criminal,” if I didn't think he was going to call a bunch of character witnesses, his pastor and things like that, then, arguably, I don't know that I would offer it. But if there's going to be a bunch of character witnesses to say what a good person he is, I think it becomes relevant.’

In ruling on the objection, the court stated: `I'm going to sustain your objection in most part. You can put the title of the -- if it's an identification . . . feature of a Facebook, I'll allow it in for that purpose. . . . I am sustaining your objection 90 percent of what the content of the song is, but it's an identifying feature on Facebook or Twitter, or whatever, I'll allow it in just for that purpose. Okay . . . ?’ Defense counsel responded, `[s]o it's limited to the title of the song.’ The court inquired, `[o]kay?’ to which defense counsel answered, `[t]hank you.’

State v. Benedict, supra.

After Benedict testified, his lawyer said he “did indeed intend to call character witnesses to testify.”  State v. Benedict, supra. The prosecution objected on the grounds that “the admission of general character evidence was improper.”  State v. Benedict, supra.  The trial judge found,

pursuant to § 4–4 of the Connecticut Code of Evidence, that [Benedict’] character witnesses could testify, but only as to [his] character trait of not having sexual contact with students. 

During his cross-examination of three of [Benedict’s] character witnesses, the prosecutor referred to [his] login identification and inquired about whether the witnesses knew if [he] was the type of person who would have such an identification. These references constitute the basis of [Benedict’s claim [on appeal].

State v. Benedict, supra.

The Court of Appeals then outlined the general principles involved in its reviewing that claim:

`Evidence of an accused's trait of character must be relevant to an element of the crime charged.’ State v. Martin, 170 Conn. 161, 365 A.2d 104 (1976). `When a character witness has given his opinion as to a particular trait, the state may cross-examine that witness concerning specific acts, not to prove the truth of such facts, but to test the credibility of the character witness by ascertaining his good faith, his source and amount of information and his accuracy.’ [State v. Martin, supra.]

`[W]hen the prosecutor attacks the basis of the witness' opinion by questioning him as to his knowledge of specific acts, such acts must be relevant to those traits.’ [State v. Martin, supra.] `The [s]tate's rebuttal evidence . . . may not include other traits or that which merely reflects on the accused's general good or bad character.’ C. Tait & E. Prescott, Connecticut Evidence (4th Ed.2008) § 4.13.3, pp. 148–49. 

State v. Benedict, supra.

It found, first, that the trial judge “narrowed the scope of permissible character evidence to [Benedict’s] character trait of not having sexual contact with students, which tends to negate an element of the crime charged.”  State v. Benedict, supra. It pointed out, in a footnote, that “[u]nlawful sexual contact with a student is one of the elements of the offense with which [he] was charged.”  State v. Benedict, supra.

The Court of Appeals then held that

[d]espite the state's attempt to identify an attenuated connection between [Benedict’s] login identification of `smoothcriminal77’ and the crime that he allegedly committed, we conclude that the login identification does not specifically relate to the trait for which character evidence was permissible. Rather, [his] login identification can only be characterized as impermissible general bad character evidence.

We conclude, therefore, that in allowing the state to question the witnesses regarding [Benedict’s] login identification, the court abused its discretion.

State v. Benedict, supra.

For this reason, and the reason noted earlier, the court therefore reversed his conviction and remanded the case for a new trial.  State v. Benedict, supra.