Nevada Court of Appeals: No Plain Error in Admission of Facebook Profile Exhibits
This past week, the Court of Appeals of Nevada issued a decision, Scott v. State, No. 77456-COA, 2020 Nev. App. Unpub. LEXIS 108 (Nev. Feb. 11, 2020), affirming a judgment of conviction for conspiracy to commit robbery, robbery, and grand larceny.
The victim in this case tried to use Mycelium, a smartphone app, to purchase a Bitcoin from Scott. He subsequently met Scott at a Target store to exchange $20,000 in cash for the bitcoin. After cancelling the deal when Scott proved unable to transfer the Bitcoin, the victim was robbed shortly afterwards at a McDonald's by Scott and a second man who stole his laptop, phones, and truck. (The victim passed the cash to his wife before he was robbed.) Detectives were able to identity Scott and the other man by searching for their phone numbers on Facebook, and other databases used by law enforcement. They then used Mycelium to contact Scott on the pretext of purchasing Bitcoins, and arrested him at a face-to-face meeting at a casino.
The basis for Scott's appeal was the admission of unauthenticated of several different types of evidence by the district court.
1. Scott claims that it was an abuse of discretion to allow the entry of exhibits showing screen shots from a tracking app that indicated the location of a stolen phone, because he was not knowledgeable enough about GPS to authenticate the exhibits. The Court found that there was no abuse of discretion because , "[t]he victim testified that he was able to track his phones using a Google phone tracking app; he used this technology on a daily or regular basis; he found it to be very accurate; the app could depict timelines that showed where his phones had been; and Exhibits 15, 17, and 18 were screen shots of those timelines." Id. at *8. The Court also ruled the exhibits should not be considered hearsay, as they were machine statements.
2. Scott also contested the admission of exhibits of his Facebook profile because the State did not show how the ESI was acquired with factual specificity, despite his failure to object to the admission of the exhibits at trial. The Court concluded there was no plain error. The exhibits were also ruled not be hearsay because they were used to support a detective's testimony about actions he took during the investigation - they were offered to show they were made, they were not offered for their truth.
3. The admission of a screenshot showing a money transfer made with a Wells Fargo app without objection, was also found to not be plain error.
4. Scott also asserted that the district court abused its discretion by allowing the admission of text messages. The messages were not authenticated by showing the author and recipients. Because an objection was not made at trial, there was no plain error. "[T]he State was not required to 'provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate' the text messages. Rodriguez v. State, 128 Nev. 155,162 (2012)" Id. at *11-12.
5. The Court also rejected Scott's claim that there was abuse of discretion in allowing opinion testimony by lay witnesses because the detectives were allowed to testify about events shown on surveillance videos.