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State v. Griffith

Court of Appeals of Arizona, First Division

August 13, 2019


          Appeal from the Superior Court in Maricopa County No. CR 2017-123766-002 The Honorable John Christian Rea, Judge

          Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee

          Maricopa County Legal Defender's Office, Phoenix By Cynthia D. Beck Counsel for Appellant

          Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Jennifer M. Perkins joined.


          BROWN, JUDGE

         ¶1 Brandon Griffith appeals his conviction and sentence for trafficking in stolen property. The issue before us is whether incriminating digital evidence-a Facebook message and search history log-was properly authenticated at trial. To resolve the issue, we first clarify how the evidentiary rules governing hearsay and authentication apply when a party seeks to admit communications that are purportedly authored by an account holder on a social media site such as Facebook. We then address whether the State satisfied its authentication obligation by presenting sufficient evidence from which a jury could reasonably conclude that Griffith authored the Facebook message and the searches contained in the search history log. Because the record is sufficient to support a finding that Griffith made the statements contained in these communications and they were offered against him, we find no abuse of discretion.


         ¶2 J.H. and S.H. returned from an errand to find their home had been burglarized. The couple noticed several items missing, including three Apple iPads. Based on information S.H. acquired from Apple, police subpoenaed Apple and obtained information about a subject named Brandon Griffith. Using a police database, officers found a Brandon Griffith with the same address as the one Apple provided. Police then interviewed Griffith, who explained that others frequently brought him computer devices asking him to restore the devices to their factory settings. He admitted he performed this service for pay even when he suspected the devices were stolen. Griffith faintly recalled that R.H., the suspect in the police's burglary investigation, had once brought him several devices to reset, including three iPads. Griffith said he communicated with R.H. through Facebook, prompting the police to obtain a search warrant for Griffith's Facebook account. In response, Facebook produced, among other things, a message containing a photograph sent from Griffith's account and a log of the account's search history.

         ¶3 When the State sought to introduce the Facebook documents as business records at trial, Griffith objected that they were inadmissible hearsay because the State failed to provide the certification or testimony required to admit them under Arizona Rule of Evidence ("Rule") 803(6), often referred to as the business records exception, or under Rule 902(11), which allows for such evidence to be self-authenticating if a proper certification is provided. The State responded that it could lay sufficient foundation through the testimony of the detective who obtained the records from Facebook because she would "be able to testify that, in accordance with her search warrant, she had specific procedures . . . to follow in order to" obtain the records from Facebook. The detective then explained that Facebook has a "law enforcement portal," a webpage where officers may request information by uploading a subpoena or search warrant, and Facebook responds using the same page. After hearing her testimony, the superior court admitted the records, concluding the Facebook portal mechanism provided the "functional equivalent of a certification." Griffith timely appealed.


         ¶4 Griffith argues the superior court abused its discretion by admitting the Facebook records at trial because they "were hearsay, were not subject to any exception, and were not authenticated." We review evidentiary rulings for an abuse of discretion. State v. King, 213 Ariz. 632, 635, ¶ 7 (App. 2006). Because no Arizona case speaks to how authentication and hearsay rules apply to communications obtained directly from an online social media platform such as Facebook, and the relevant Arizona rules mirror their federal counterparts, we look to federal decisions for guidance. State v. Winegardner, 243 Ariz. 482, 485, ¶ 8 (2018).

         A. Facebook Message

         ¶5 We first address whether the superior court properly admitted the Facebook message. Facebook is a social media website where account holders can send messages to other users. United States v. Browne, 834 F.3d 403, 405 (3d Cir. 2016). To allow account holders to locate other users and pages on the platform, Facebook has a search function that generates results based on the keywords the user enters.

         ¶6Griffith argues the court erred because the Facebook message was inadmissible hearsay. He focuses on the State's failure to satisfy Rule 803(6)(D), contending it did not provide (1) the testimony of any witness with knowledge about how Facebook makes or stores records of user messages or (2) a certification to that effect complying with Rule 902(11). The State counters that because the message was a Facebook business record under Rule ...

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