Commonwealth v. Dwayne A. Miller.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1156

COMMONWEALTH

vs.

DWAYNE A. MILLER.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of a judge of the

District Court revoking his probation. He claims that certain

evidence admitted by the judge was not authenticated and thus

inadmissible at his probation revocation hearing. The defendant

also contends that the judge relied on hearsay evidence that

lacked indicia of reliability and was insufficient to prove a

violation of probation. We affirm.

Background. On July 30, 2021, the defendant pleaded guilty

to harassment, stalking, and violation of an abuse prevention

order, and was sentenced to concurrent terms of eighteen months

in the house of correction, suspended for a period of eighteen

months with supervised probation. His probation required that
he not commit any new offenses. While he was on probation, the

defendant was charged in Rhode Island with unauthorized

dissemination of indecent material, based on allegations that he

posted sexually explicit video recordings of his ex-girlfriend

(victim)1 on the Internet without her permission. See R.I. Gen.

Laws § 11-64-3 (2018). The defendant received proper notice of

the alleged violation and a final surrender hearing was

scheduled.

At the hearing, the victim testified that she was in a

relationship with the defendant for approximately one year,

beginning in November 2021. During their relationship, the

defendant used his cell phone to make, with the victim's

consent, a video recording of the defendant and the victim

engaging in consensual sexual acts. The victim never gave the

defendant permission to distribute that recording. On November

6, 2022, the victim ended her relationship with the defendant.

On November 12, 2022, the defendant sent three e-mails to the

victim, at 7:58 P.M., 8:01 P.M., and 9:45 P.M., expressing his

anger toward her and stating he intended to "blast [the video]

all over Rhode Island" and "post" it on the Internet. A video

recording of the victim performing oral sex on the defendant was

attached to the first e-mail. A still image depicting the

1 This was a different victim from the one in the offenses
for which the defendant was on probation.

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victim holding the defendant's penis in her hand was attached to

the second e-mail. In between the second and third e-mails, at

9:07 P.M., the victim received an Instagram direct message (DM)

from a person she did not know stating, "I must say your tape is

really nice I seen a clip on Twitter. Would you be interested

in doing more?" On November 23, 2022, the victim received text

messages from a number she did not recognize offering her money

to "star in a role of an upcoming [adult] film." Finally, on

November 25, 2022, the victim saw an unauthorized Facebook page

with her full name, personal information, and explicit

photographs of her to which only she and the defendant had

access.

The judge admitted print copies of the e-mails, an

Instagram DM, text messages, and Facebook page into evidence.

The judge also considered as evidence: (1) a November 25, 2022

affidavit and arrest warrant for the defendant from the East

Providence, Rhode Island, Police Department; (2) an East

Providence Police Department incident report that included the

victim's account of the events; (3) a Rhode Island domestic

abuse protection order obtained by the victim against the

defendant with an accompanying affidavit from the victim, dated

December 6, 2022; (4) the defendant's Rhode Island criminal

history record information; (5) a Rhode Island District Court

criminal complaint charging the defendant with unauthorized

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dissemination of indecent material; and (6) e-mails between the

defendant, the defendant's attorney, and the defendant's

Massachusetts probation officer.

The defendant testified that he did not post or share any

sex video recordings of the victim on the Internet, and that he

had no access to the video recordings because he had sent them

to the victim soon after they were made without keeping a copy.

He also denied publishing the photograph of the victim holding

his penis and stated that he neither took the photograph nor had

access to it. The defendant further denied creating a Facebook

profile in the victim's name.

Discussion. 1. Authentication. The defendant asserts on

appeal that the e-mails, Instagram DM, text messages, and

Facebook page should not have been admitted into evidence

because they were not properly authenticated. We disagree.

Authentication requires the judge to determine, by a

preponderance of the evidence, "that the item in question is

what the proponent claims it to be" (quotation and citation

omitted). Commonwealth v. Connolly, 91 Mass. App. Ct. 580, 586

(2017). "A judge making a determination concerning the

authenticity of a communication . . . may look to confirming

circumstances . . . to conclude that this evidence is what its

proponent claims it to be" (quotation omitted). Commonwealth v.

Purdy, 459 Mass. 442, 448-449 (2011). Neither expert testimony

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nor exclusive access to an e-mail account is necessary to

authenticate authorship of an e-mail. Id. at 451 n.7.

Here, there was ample basis for the judge to conclude that

the e-mails were authentic. First, the victim testified that

the e-mails came from the same e-mail address that the defendant

used to communicate with her throughout their relationship, and

the judge credited her testimony. See Commonwealth v. Casanova,

65 Mass. App. Ct. 750, 756 (2006) (findings based on credibility

assessments unique province of judge). The victim's testimony

was corroborated by the defendant's communications with his

probation officer using the same e-mail address, which contained

the defendant's first name. See Purdy, 459 Mass. at 450-451 &

n.7. The contents of the e-mails provided further confirming

circumstances because they discussed the creation of the sex

video recording, information to which only the victim and the

defendant would be privy. See id. See also Commonwealth v.

Lopez, 485 Mass. 471, 477-478 (2020). Furthermore, the video

recording, to which both the victim and the defendant testified

that the other had exclusive access, was attached to the first

e-mail.

Similarly, the Instagram DM and text messages were

sufficiently authenticated based on their content and context.

The DM was sent around one hour after the e-mail that stated the

defendant would "blast [the video] all over Rhode Island." It

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referred to the sender seeing the victim's "tape" on "Twitter"

and offered her $10,000 for a video. The text messages, which

the victim received about ten days later, indicated that the

sender was an "adult film maker" and offered the victim $50,000

to "star in a role of an upcoming film." The DM and text

messages' references to the victim's sex tape and the timing of

the messages supported the judge's determination that they were

communications from people who had seen the video recording.

Neither the identity of the senders nor the location on the

Internet where the video recording was viewed was needed for

authentication. See Commonwealth v. Middleton, 100 Mass. App.

Ct. 756, 759-760 (2022); Commonwealth v. Gonsalves, 99 Mass.

App. Ct. 638, 642 (2021); Commonwealth v. Meola, 95 Mass. App.

Ct. 303, 313-314 (2019).

Finally, the judge properly determined that the Facebook

document was also sufficiently authenticated. The victim

testified that a childhood friend had seen the Facebook page and

contacted her. When the victim saw the page, she recognized the

profile picture as a still photograph of her taken by the

defendant during a Facetime video call. The victim also

testified that only she and the defendant had access to the

photographs posted on that Facebook page, one of her holding the

defendant's penis taken from the sex video recording and another

of her partially clothed. Although the defendant did not object

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to its admission or dispute during his testimony that it was a

Facebook profile, he denied creating the account. The judge

implicitly discredited his testimony and instead credited the

victim's testimony that she did not create the profile herself.

See Casanova, 65 Mass. App. Ct. at 756. The victim's testimony

and the profile's appearance were sufficient to confirm that the

proffered evidence was a Facebook page with the victim's

personal information and images of her.

Because we conclude that the e-mails, Instagram DM, text

messages and Facebook page were properly authenticated, their

admission was not error and thus created no risk of prejudice

nor a substantial risk of a miscarriage of justice.2

2. Hearsay. The defendant next argues that the judge

violated his due process rights by improperly relying on

unreliable hearsay contained in the e-mails, Instagram DM, text

messages, and Facebook page discussed above, as well as in the

police reports admitted by the judge as evidence. He contends

that without these hearsay statements there was an inadequate

basis for the judge to find that he violated his probation. We

2 The defendant objected to the admission of the first e-
mail, thus we review its admission for prejudicial error. See
Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). Where the
defendant did not object to any of the other documents, we
review for error and a substantial risk of a miscarriage of
justice. See Commonwealth v. Williams, 102 Mass. App. Ct. 626,
630 (2023).

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agree with the judge that the hearsay evidence was substantially

reliable and conclude that the sum of the evidence amply

supported her finding that the defendant violated his probation.

"In probation revocation proceedings, the Commonwealth

bears the burden of proving, by a preponderance of the evidence,

that the probationer violated the terms and conditions of [his]

probation." Commonwealth v. Bruno-O'Leary, 94 Mass. App. Ct.

44, 47 (2018). At a probation violation hearing, a judge may

rely on hearsay evidence that has "substantial indicia of

reliability." Commonwealth v. Ogarro, 95 Mass. App. Ct. 662,

668 (2019). In assessing whether hearsay is substantially

reliable, the judge may consider:

"(1) whether the evidence is based on personal knowledge or
direct observation; (2) whether the evidence, if based on
direct observation, was recorded close in time to the
events in question; (3) the level of factual detail;
(4) whether the statements are internally consistent;
(5) whether the evidence is corroborated by information
from other sources; (6) whether the declarant was
disinterested when the statements were made; and
(7) whether the statements were made under circumstances
that support their veracity."
Id., quoting Commonwealth v. Hartfield, 474 Mass. 474, 484

(2016). See Commonwealth v. Costa, 490 Mass. 118, 124-125

(2022). "There is no requirement that hearsay satisfy all the

above criteria to be trustworthy and reliable." Commonwealth v.

Patton, 458 Mass. 119, 133 (2010). We review the judge's

assessment of the reliability of that evidence for an abuse of

discretion. See Commonwealth v. Jarrett, 491 Mass. 437, 445

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(2023), citing L.L. v. Commonwealth, 470 Mass. 169, 185 n.27

(2014).

Here, in addition to her oral findings, the judge made

written findings that the hearsay was substantially reliable

because it was (1) based on personal knowledge or direct

observation, (2) involved observations recorded close in time to

the events, (3) provided under circumstances that support the

source's veracity, (4) factually detailed, and (5) internally

consistent. See Commonwealth v. Grant G., 96 Mass. App. Ct.

721, 725 (2019) (judge relying on hearsay evidence in probation

violation hearing should detail evidence's reliability). The

judge also noted that "[the victim]'s testimony corroborated

many of the hearsay items admitted during the hearing." We

agree.

a. E-mails and attachments. The judge found that the

defendant sent the e-mails. Therefore, assertions contained

within the e-mails that the video recording of the victim would

be circulated "all over Rhode Island" were nonhearsay statements

of an opposing party. See Mass. G. Evid. § 801(d)(2)(A) (2022).

See also Commonwealth v. Kozubal, 488 Mass. 575, 585-588 (2021)

(text messages from defendant to victim were statements of party

opponent). To the extent that the icon and "video.MOV"

identified the attachment on the first e-mail as a video

recording, it was reliable hearsay because the victim testified

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that the e-mail "had a video attached to it" and that she saw it

"when [the defendant] shared it with [her] on November 12th via

email." The still image attached to the second e-mail was not a

statement, and therefore did not constitute hearsay. See

Commonwealth v. Ubeda, 99 Mass. App. Ct. 587, 595 (2021).

b. Instagram DM and text messages. The Instagram DM and

text messages referred to the sexual content of the video

recording and offered the victim money to participate in similar

"project[s]." According to the messages, the sender of the DM

had "seen a clip [of the video] on Twitter," while the texter

"recently purchased ownership to [the victim's] project." As

mentioned above, the Instagram DM was sent about an hour after

the defendant's e-mail stating he would "blast [the video] all

over Rhode Island," and the text messages were sent about ten

days thereafter. The hearsay statement implicit in these

messages -- that the video recording was disseminated on social

media -- was substantially reliable because it was based on the

senders' personal observations recorded close in time to the

defendant's threats to the victim. See Hartfield, 474 Mass. at

484. Moreover, the victim's testimony that she was able to

determine that the named texter actually existed supported the

veracity of the statement. See id.

c. Facebook page. The defendant's argument that the

Facebook "printouts" were unreliable hearsay misses the mark.

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The only information on the Facebook page conceivably offered

for its truth was the date "Nov 12" appearing on the second page

of the posting. Although this information was not part of the

articulated basis for concluding that the defendant created the

profile,3 the judge could have found it substantially reliable

given the victim's testimony that she received the defendant's

e-mails threatening to share the video recording on November 12,

2022, and that she first saw the profile on November 25, 2022.

To the extent the defendant asserts that the origin of the

account was "unknown," "fake" profiles can be created, or there

was "no evidence stating when the page was created or by whom,"

he mistakenly conflates hearsay with authentication.

d. Police reports. Finally, the defendant contends that

the victim's statements documented in the incident and

supplemental Rhode Island police reports were unreliable

hearsay. We agree with the judge that they were substantially

reliable. The victim's initial report to police was within a

few hours of receiving the defendant's e-mails, she provided

more information within an hour of receiving the first text

message offering her a role in an adult film, and she

3 The judge stated, "[b]ecause I find that [the defendant]
made this video, did not have permission of [the victim] to
share it, but did share it and posted it, as he told her he
would, I also find it credible that he created this profile,
including the profile pictures."

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supplemented her statement within twelve hours after she learned

about the Facebook profile. See Commonwealth v. Nunez, 446

Mass. 54, 59 (2006) (statements made to officer soon after

events when incident still fresh in victim's mind substantially

reliable). In each instance, the victim described events based

on her personal knowledge and police had the opportunity to

directly observe her in person. The victim's statements were

detailed, and she provided supporting documents to police. The

documents included the sex video recording, in which police were

able to "positively identify [the victim] as the female in the

video, who is performing oral sex on a male." We thus conclude

that the judge did not abuse her discretion by finding the

hearsay statements in the police reports substantially reliable.

Order revoking probation and
imposing sentence affirmed.

By the Court (Desmond,
Brennan & Smyth, JJ.4),

Clerk

Entered: October 1, 2024.

4 The panelists are listed in order of seniority.

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