COMMONWEALTH vs. DAVID GILMAN.

GREEN, J. A Superior Court jury convicted the defendant, a middle school music teacher, of rape and three counts of indecent assault and battery on a child under fourteen, aggravated in the first instance by age difference and in all instances by reason of the defendant's status as a mandated reporter. On appeal, he claims error in the admission of a number of "chat" messages he exchanged with the victim (a twelve year old student of his at the time of the assaults) on the social networking Web site Facebook. He also claims that he was deprived of his constitutional right to effective representation by counsel when his counsel promised the jury that the defendant would testify at trial, but then broke that promise when the defendant did not testify after the Commonwealth rested. We discern no cause to disturb the convictions, and affirm. [Note 1]

Background. We summarize the facts the jury could have found, viewed in a light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). In the fall of 2008, the victim was a sixth grader at Leicester Middle School; the defendant was her music teacher. At the end of her sixth grade year, the victim went on a school-sponsored camping field trip. The defendant was a chaperone on that field trip, and he and the victim spent a lot of time together while on the trip. At the end of the trip, the defendant put his cellular telephone (cell phone) number and his name into the victim's cell phone contact list, and they exchanged text messages frequently thereafter. Over the course of the following summer, which included another school-sponsored trip to the Six Flags New England amusement park in which the defendant and the victim participated, their correspondence continued, and they eventually became "friends" on Facebook. The defendant and the victim began a continuing Facebook "chat" conversation around October of 2009, when the victim was a seventh grader and the defendant was her music teacher and drama club director.

When the defendant or the victim wanted to "chat" with each other on Facebook, they would alert the other by sending a text message. The victim knew that her Facebook conversation was

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with the defendant because they discussed things that they had done in person, and things that were known only to them. The defendant and the victim chatted "a lot of time at night," on topics ranging from the drama club, their time together on the previous summer's school trips, and their developing affection for each other. [Note 2]

During the course of the Facebook conversations, the defendant and the victim frequently professed their love for each other. On October 25, 2009, they talked about kissing each other:

Defendant: "When I kiss u it will mean everything 2 me."

Victim: (She replied with a smiley face).

Defendant: "Kiss me back please?"

Victim: "Yes."

Defendant: "I will luv u 4ever!!! Will u kiss me back bcuz u luv me or just bcuz."

Victim: "Because I love u."

Defendant: "My girl."

On October 30, 2009, the victim attended a school dance with two of her friends. Halfway through the dance, the victim received a text message from the defendant asking her to meet him in the hallway. The victim went into the hallway, where she met

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the defendant and followed him into the music room. In the music room, they moved to an area where the victim could not see the hallway. The defendant then touched the victim's hips, and proceeded to kiss her on the mouth; his lips and tongue touched her lips and tongue. The defendant and the victim stayed in the music room for about five to ten minutes, and the victim then returned to the gymnasium. Later that evening, the defendant and the victim chatted about their kiss on Facebook.

During this time period, the defendant frequently reminded the victim to delete or clear her messages, and became concerned when the victim told him that one of her friends saw messages from him. When the victim tried to reassure the defendant he stated, "Damn, . . . I love you so much, and I will lose my job, my life, and I will go to jail." Despite acknowledging that "[w]e already broke the law," the defendant continued to engage the victim in sexual conversation, and eventually talked about what he wanted to do to her sexually. [Note 3]

At some point after Thanksgiving, the defendant and the victim made a plan to meet alone in the band room at the school. After her last class, the victim went into the band room as planned. Once in the band room, the victim went immediately to the defendant. He did not say anything to her, but grabbed her hips with his hands and kissed her on her mouth with his lips and tongue. The defendant also touched the victim's breast with his hand. The defendant and the victim continued to communicate via Facebook and frequently talked about future sexual activity and what the defendant would like to do to the victim. [Note 4]

When the defendant and the victim chatted on Facebook on

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December 1, 2009, the victim said that one of her friends at school noticed that he looked like he had been crying. The defendant stated that he fell asleep on the computer and his wife came down to get him and saw the conversations he had with the victim, and she was "pretty pissed off this morning." The victim was concerned for the defendant and stated, "I do love you and don't want anything to happen to you," and "It's you I'm worried about. I love you so much. We have to stop before we do get caught and then you will go to jail."

The last time the victim saw the defendant before he was arrested, they were alone again in the band room. On that day the defendant put his hand underneath her clothes, and put his hand "in between the lips of [her] vagina." In doing so, the defendant moved his finger "up and down between the lips of [her] vagina." The defendant sexually assaulted the victim for approximately one to two minutes. She then backed away, and went to homeroom.

On December 16, 2009, Julia Berry of the Leicester police department went to Leicester Middle School, where she met with the defendant in the principal's office. The defendant had a backpack with him, and Officer Berry asked him if he had a laptop computer. The defendant replied, "Well, it belongs to the school." The defendant put the laptop computer down in the corner of the office and left. Daniel Durgin, the technology director at Leicester public schools in 2009, issued the defendant one desktop computer and two laptop computers in the 2009 academic year. When Durgin issued a computer to a teacher, he would do a fresh installation of software, and would assign a user name and password that was specific to the teacher assigned the computer. [Note 5] After the computer was issued to a particular teacher, the teacher could then change the password, and no person other than that teacher or Durgin could access that computer. The school's Internet use policy prohibited access to Facebook from the school. However, teachers were permitted to take the computers home and could access Facebook when away from the school's network.

Durgin did not access the defendant's profile on any of the defendant's computers in the fall of 2009, nor did he use any of the computers to access any Internet sites or locations. After the defendant's computers were seized on December 16, 2009, all of

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the defendant's accounts were locked, and the computers remained in Durgin's locked office. Troopers Carl Oley and Kevin Hart from the State police digital evidence and multimedia section examined the computers and cell phone that were submitted to them. When Trooper Hart analyzed the victim's computer, he located 1,712 Facebook chat logs. When Trooper Hart performed the same analysis on one of the laptop computers with the user name "gilmand," he found over 3,000 Facebook chat logs. When he analyzed a second laptop computer with the user name "gilmand," he also found over 3,000 Facebook chat logs. Trooper Hart exported the Facebook chat logs into a spreadsheet.

Christine Bugbee, another teacher at the school and a friend of the defendant's, saw the defendant shortly after he was dismissed from the school. She asked him, "Did you do it?" The defendant replied, "No, but it will look like I did."

Discussion. 1. Admissibility of Facebook chat logs. Prior to trial, the defendant moved in limine to exclude the Facebook chat messages between the defendant and the victim on the grounds that they: (i) were irrelevant and inflammatory, (ii) describe inadmissible prior bad acts, (iii) were not the best evidence, and (iv) could not be authenticated properly. [Note 6]

"Evidence of a defendant's prior or subsequent bad acts is inadmissible for the purpose of demonstrating the defendant's bad character or propensity to commit the crime[s] charged." Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). "However, such evidence may be admissible . . . 'to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or pattern of operation.'" Ibid., quoting from Commonwealth v. Walker, 460 Mass. 590, 613 (2011). "Even if the evidence is relevant to one of these other purposes, the evidence will not be admitted if its probative value is outweighed by the risk of unfair prejudice to the defendant." Crayton, supra at 249 & n.27.

The content of the Facebook chat conversations between the

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victim and the defendant was clearly relevant. They contained numerous declarations of love by the defendant and the victim toward each other, and described various of their encounters, including those occasions on which the defendant assaulted the victim. The conversations illustrate how the defendant cultivated the victim's feelings toward him, educated her about various forms of sexual interaction, and manipulated her insecurities to cause her to fear the loss of his affections. In several instances, the defendant's admissions corroborated the victim's trial testimony describing both the circumstances and the nature of the defendant's assaultive conduct. Though the lurid nature of the conversations undoubtedly caused prejudice to the defendant, the prejudice flowed directly from their properly probative effect to illustrate the development of the relationship between the defendant and the victim, its increasingly sexually charged character, and their shared reflection on several sexual encounters. The prejudice, in other words, was not unfair. See Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188 (2013). We discern no abuse of discretion by the trial judge in his conclusion that the probative value of the Facebook chat evidence outweighed its potential for unfair prejudice.

We likewise discern no error or abuse of discretion in the conclusion by the trial judge that the Facebook chat conversations were properly authenticated. "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Mass. G. Evid. § 901(a) (2016). "Here, because the relevance and admissibility of the communications depended on their being authored by the defendant, the judge was required to determine . . . by a preponderance of the evidence that the defendant authored the [Facebook chat messages attributed to him]." Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). "Evidence may be authenticated by direct or circumstantial evidence, including its '[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics.'" Id. at 447-448, quoting from Mass. G. Evid. § 901(b)(1), (4). "While [electronic mail messages (e-mails)] and other forms of electronic communication present their own opportunities for false claims of authorship, the basic principles of authentication are the same" as for telephone calls or written letters. Id. at 450. "Evidence that the defendant's name is written as the author of an e-mail or that the electronic communication originates from an

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e-mail or a social networking Web site such as Facebook or MySpace that bears the defendant's name is not sufficient alone to authenticate the electronic communication as having been authored or sent by the defendant." Ibid. "There must be some 'confirming circumstances' sufficient for a reasonable jury to find by a preponderance of the evidence that the defendant authored" the messages. Ibid.

In the present case, there were sufficient confirming circumstances to establish that the defendant authored the Facebook chat messages attributed to him. The messages originated from an account bearing the defendant's name, on which his picture appeared. The messages were downloaded from the hard drive of two laptop computers issued to the defendant by the school, but to which access was limited to the defendant by means of a user name and password. [Note 7] There was no evidence of access to the defendant's laptop computer by others. The defendant and the victim initiated Facebook chat conversations with each other by means of text messages sent to each other's cell phones; in the case of such messages sent by the victim to the defendant, they were sent to the number the defendant added to her contacts list after the first school field trip the two took together.

In addition, the conversations were replete with personal references, including pet names the defendant and victim used for each other, and references to events in which the two alone participated. The evidence amply supported a conclusion that the defendant authored the Facebook chat messages. [Note 8]

Finally, we discern no merit in the defendant's contention that the printed spreadsheets of the Facebook chat conversations did not satisfy the "best evidence" rule. "The best evidence rule does not forbid the use of 'copies' of electronic records (including e-mails and text messages and other computer data files), because

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there is no 'original' in the traditional sense." Commonwealth v. Salyer, 84 Mass. App. Ct. 346, 356 n.10 (2013). Moreover, G. L. c. 233, § 79K, inserted by St. 1994, c. 168, § 1, permits the admission of a duplicate "computer data file or program file." We reject the premise implicit in the defendant's argument that the best evidence of the writings contained in the Facebook chat conversations between the defendant and the victim "somehow . . . is found in the [Facebook] servers" or that there is a "need to bring in the computer [hard] drive itself" from which the messages were downloaded. Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 674-675 (2011). [Note 9]

2. Ineffective assistance of counsel. Citing his trial counsel's opening statement, the defendant claims that he was deprived of his constitutional right to the effective assistance of counsel. Specifically, he observes that his trial counsel promised the jury that the defendant would testify at trial, but then broke that promise when the defendant did not testify after the Commonwealth rested its case. [Note 10] The defendant did not raise his claim of

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ineffective assistance of counsel by means of the preferred vehicle of a motion for a new trial. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). "While we could speculate about defense counsel's rationale for proceeding the way he did, the proper mechanism for advancing the defendant's ineffective assistance claim is through a motion for a new trial, which provides the opportunity for an evidentiary hearing and findings related to the trial attorney's performance." Commonwealth v. Ramos, 66 Mass. App. Ct. 548, 552 (2006). "The occasions when a court can resolve an ineffective assistance claim on direct appeal are exceptional, and our case law strongly disfavors raising ineffective assistance claims on direct appeal." Zinser, supra at 809 n.2. Such claims are properly considered on direct appeal only "when the factual basis of the claim appears indisputably on the trial record." Id. at 811, quoting from Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). This is not such a case. Though the record includes trial counsel's explanation to the jury of the change of plans at the beginning of his closing argument, [Note 11] we have no means of knowing whether that explanation is either complete or accurate, nor have we any basis other than speculation to assess what led counsel to frame his opening statement as he did. We conclude that the present case does not fall within the

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narrow exception for cases in which a claim of ineffective assistance of counsel may be resolved on the basis of the trial record alone.

3. Other issues. The defendant's remaining claims require only brief discussion. First, there is no merit to the defendant's contention that the trial prosecutor misstated the evidence in her closing and suggested that the defendant had identified his next victim, a classmate of the victim's. [Note 12] Read in context, the reference plainly was designed to suggest that the defendant sought to play on the victim's insecurities and jealousy to keep her close to him, and did not suggest that the defendant had designs on a second victim. Though the defendant did not use the precise words attributed to him by the prosecutor, the evidence included a chat conversation in which the victim revealed her concern that the defendant would leave her for the classmate, and from which the jury could infer that the defendant's response sought to exploit that insecurity. Moreover, despite objecting to the comment trial counsel expressly declined the judge's offer of a curative instruction. Finally, the comment went to a collateral issue -- the defendant's manipulation of the victim -- and not to the question whether he actually engaged in the sexual conduct described in his Facebook chats with the victim.

There is likewise no merit in the defendant's claim that the trial judge erred in his failure to conduct individual voir dire questioning of prospective jurors to determine whether they had been victims of a childhood sexual offense. Prior to empanelment, the trial judge reviewed with both counsel the questions he intended to pose to members of the venire, including, "Have you or any family members or close friends ever been the victim of sexual abuse?" The judge then proposed to pose the questions by means of a juror questionnaire, and to examine jurors who responded "yes" individually, out of order. Trial counsel expressed his satisfaction with that approach. However, after a few jurors had been called forward for such individual questioning, both the prosecutor and defense counsel objected, and the judge agreed (again with the approval of counsel) to conduct review of all

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jurors in order, with individual voir dire on those with affirmative answers to the question as they were reached. Because the trial judge properly exercised his discretion by conducting juror voir dire in the manner to which both counsel agreed, and because the defendant has failed to demonstrate that the agreed upon procedure either constituted an abuse of discretion or exposed jurors to influence by any extraneous factors, we discern no error and, accordingly, no substantial risk of a miscarriage of justice. See Commonwealth v. Lao, 443 Mass. 770, 778 (2005); Commonwealth v. Vickery, 82 Mass. App. Ct. 234, 237 (2012).

Judgments affirmed.