IN THE SUPREME COURT OF MISSISSIPPI NO. 2014-KA-00404-SCT
TY RONE BOY

D

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 03/28/2014 TRIAL JUDGE: HON. LESTER F. W I LLIAMSON, JR. TRIAL COURT ATTORNEYS: PHILLIP S. “FLIP” W EINBERG KATHRYN R. McNAIR COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH PRIDGEN GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: BILBO MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 04/30/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE DICKINSON, P.J., PIERCE AND COLEMAN, JJ. PIERCE, JUSTICE, FOR THE COURT: ¶1. This appeal ari s e s f r o m t h e c o n v iction of Ty rone Boy d under Mississippi Code Section 97-5-33(6) f

or the exploitation of a child. Fol l o w i n g c o nviction, t he Circuit Court of L auderdale County sentenced Boy d to a term of twelve y ears im prisonm ent w i t h seven
y ears t o serve, and f

ive y ears to be suspended and on reporting probation. Boy d appeals to this Court, c laim ing the trial court abused its discr etion by adm itting Facebook and text

m essages into evidence and that the State f ailed to properly authenticate them

. Specif ically ,Boy d argues the evidence purporting to link him t o the m es sages in question was not

suf f i cient to prove that he, in f act, authored the m essages. Boy d’s co n t e n t ion is m eritless, but m ore im

portantly , B oy d is barred f rom a p pealing on such grounds, as he f ailed to object to the item s’ adm i ssion at trial. W e af f irm Boy d ’s conviction and sentence.
STATEMENT OF THE FACTS ¶2. On June 13, 2012, RDS 1 was living i n M eehan, in Laude r d a le County , Mississippi.
At that tim e, RDS was twelve y ears old. Through F acebook, R DS received a f r iend request f rom som eone nam ed “Ty rone Boy d.” 2 RDS did not y et know Boy d, a thirty -two-y ear-old

m an, but the two shared a m utual f riend, so she a ccepted his f riend request. B oy d began sending Facebook m essages to RDS, and RDS sent m essages back to Boy d. The m essages began innocuously

. Boy d a sked general questions of RDS, such as where she lived, who her siblings were a nd how o ld h er s iblings were. RDS asked Boy d his age. Boy d said that he was
seventeen. RDS told Bo y d t h a t h e w a s t oo o ld f or h er. At that p oint, RDS inf o rm ed her stepf ather about h er conversations with Boy d

. The st e p f a t h e r said that t he nam e “Ty rone Boy d” sounded f

am iliar and he told RDS that he m ay have a t tended high school with Boy d.
RDS subsequently g ave her cell phone to her stepf ather, a nd he began to s end text m essages to Boy d on RDS’s cell phone, posing as RDS.

1 B ecau se th i s c ase in v o lv es th e sex u al ex p lo itatio n o f a m in o r, w e ref er to th e v ictim b y in itials o n l y . 2 T h e F aceb o o k p ro f

ile th at in itiated th e c y

b e r-f rien d sh ip w i th R D S listed o n ly th e n am e “T y ro n e B o y d ” an d d id n o t

su p p ly an acco m

p an y in g p ictu re. 2¶3. RDS testif ied that her stepf

ather and Boy d com m

unicated using the Facebook phone application to send m essages to one another. A t o ne p oint in their conversations, B oy d asked if RDS was a virgin. At that tim e, Boy d was talking to the stepf ather posing as RDS. W hen Boy d asked RDS her a ge, the stepf ather replied that she was f ourteen. 3 Af

terward, the stepf ather, still posing as RDS, gave her p hone num ber to B o y d , a s t h e two wanted to

com m unicate by

text m essage, as well as through the Facebook application. ¶4. On June 26, 2 0 12, Boy d text-m essaged R DS’s p hone to say that he wanted t o pick up
RDS at her house. R DS s aid that sh e would rather walk down the street than have Boy d

com e to her house. T he stepf ather, p osing as RDS s aid, “You know I’m a virgin.” Boy d responded, “W hat that m ean.” B oy d then continued, “So, I ’m – I’m going to be the f irst? ” Boy d t hen wrote “You ready to lose – y o u r e a d y t o lose it? ” Then he, as RDS, answered “Yeah.” He next m essaged Boy d that he w a n t e d to m e e t him a t the Spaceway store. The stepf ather and his wif

e, RDS’s m other, t hen drove to Spaceway

. They testif ied Boy d drove into the Sp a c e w ay parking area, and the s tepf ather recognized his f

orm er h igh school classm ate, Ty

rone Boy d. ¶5. The stepf

ather and h is wif

e went to the sherif

f ’s departm ent the next day

. They spoke with police investigator Gy psi W ard. The stepf

ather gave W ard RDS ’ s c e l l phone. W ard continued com m

unicating w ith Boy d, pretending t o be R DS. The second m eeting was ef f ectuated by t ext m essages sent by W ard, now p o s i n g as RDS, to Boy d, in addition to

3 T h e step f

ath e r testif

ied th at, w h ile p o sin g a s R D S , h e m istak en ly said s h e w a s f o u r teen , e v en th o u g h s h e w as tw e lv e. T h e step f ath er attrib u ted h is m istak e to th e f act th at h e h as sev en ch ild ren , o n e o f w h o m w as f o u rteen at th e t im e th e co n v ersatio n to o k p lace. 3telephone con v e r s a tions between Boy d and one of RDS’s older sisters, who also posed as

RDS. Boy d appeared the s econd night, a nd deputies arrested him near the highway behind Spaceway

. The deputies s eized a cell phone when t hey arrested Boy d. Af ter arresting Boy d,
W a rd co n f

i s c a t ed h is phone a nd obtained a search warrant to discover its contents. The phone h ad no contents whatsoever , other than a contact list of various phone num bers, including RDS’s. 4 ¶6. Boy d was charged with exploitation of a child under Mississippi Code Section 97-5- 33(6), which provides: “No person shall, by any m eans including com p uter, knowingly entice, induce, persuade, seduce, solic i t , advise, coerce, or o rder a child to m eet with the d e f e n d a nt or any other person f or the purpose of engaging in sexually explicit conduct. ”
M i s s . C o d e A n n . § 97-5-36 (6) (Rev. 2014). On February 11, 2013, t he Grand Jury o f Lauderdale County indicted Boy d with exploitation of a c h ild “.

. . by m eans of a c om puter and/or cell phone, [ to] knowingly entice induce, persuade, seduce, solicit, advise, coerce and /or order a child, to-wit: [ R DS], to m eet with him f o r the purpose of engaging in sexually explicit conduct.” ¶7. O n January 27, 2014, the m atter went to trial. The State presented a case that R D S had identif

ied herself as a m i nor, b ut that Boy d still had attem pted to m e et with her alone and had expressed interest in having sex with her. The s tepf a ther testif

ied that he, along with his wif e, saw Boy d at the place and tim e at which Boy d and RDS h ad de c i d e d t o m eet.

4 R D S ’s F aceb o o k p ro f

i le d id n o t l ist h er f

u ll n am e. R ath er, h er p ro f ile n am e w as h er f irst a n d mi d d l e n a me. T h e co n t act n am e in th e p h o n e’s co n tact list ap p eared to ref er to R D S ’s f irst an d m id d le n am es. 4Investigator W ard identif ied Boy d the second tim e bef ore arresting him with her partner at the agreed- u p on m e eting spot. W ard testif ied that Boy d was driving alone and no other people were present. Boy d denied ownership of the phone and the Facebook account. ¶8. At trial, the state s ubm itted printouts of the Facebook m essages between the Ty r one Boy d a c c o u n t a n d RDS’s account. The State a lso adm itted t ext-m essage printouts, taken
f rom RDS’s phone, of m essages sent between R DS’s num ber and Boy d’s num

ber. The State f urther subm itted a printout of Boy d’s phone’s contact list. C ounsel f or B oy d d id not object

to a ny of these evidentiary adm issions. At trial, a d ata-extraction technician explained how he processed Boy d’s phone through a data extractor and identif ied a printout of Boy d’s stored

num bers in the contacts list in the p h o n e . One of the contacts contained RDS’s phone

num ber. The phone contained no text m essages, and the technician suggested that this lack of data was consistent with purposef ul deletion of

the phone’s contents. ¶9. On Janu a r y 3 1 , 2 0 1 4 , t h e j u r y r e t urned a guilty verdict. The C ircuit Court of Lauderdale County , Mississippi, Honorable L e s t e r W illiam son presiding, sentenced Boy d

to a term of twelve y ears with seven y ears to s erve a nd f ive y ears to b e suspende d and on reporting p robation. Boy d also was f ined $6,930.50. On M arch 28, 2014, Boy d m oved f or

a n e w t rial. The trial c ourt entered an order deny i ng Boy d ’s m otion. Boy d then f iled a tim ely notice of appeal with this Court. ¶10. On appeal, Boy d argues the court erred when it a d m itted t he printouts containing the Facebook and text m essages. Boy d claim s that the e vidence of the Facebook m essages and

text m e ssages received by RDS w as not suf f iciently authenticated by the State. Specif ically ,

5Boy d contends the State s hould have attem pted to “ i dentif

y if Boy d was the actual owner of the Facebook account that corresponded with [ RDS’s] account,” or “ subpoena Boy d’s cell phone com

pany records to show w ho owned his phone, w hat num bers the phone dialed and the location of

the person using the phone.” ¶11. Boy d a p p e a l s , s e e k ing reversal of h is conviction and a new trial. The single issue raised by Boy d on appeal is:
Whether the trial c ourt abused its discretion by adm i tting Facebook and tex t m essages into e vidence that the State failed t o properly authenticate

. ¶12. This Court reviews the adm ission of evidence under a n abuse-of -discretion standard.
Y o ung v. G u i l

d , 7 So. 3d 251, 2 62 (Miss. 2009). This C ourt will not reverse a conviction unless the trial court a

bused its d iscretion in a m a nner that was prejudicial t o t he accused or adversely af

f ected a substantial rig h t o f t h e a ccused. S ewell v. State , 721 So. 2d 129, 138 (Miss. 1999).
ANALYSIS ¶13. This Court repeate d l y h a s h e l d t hat f ailure to m ake a contem

poraneous objection waives an issue f

or p urposes of appeal. William s v . Sta t e , 6 8 4 S o . 2d 1179, 1203 (Miss. 1996). Because Boy d d i d n o t o b j e ct to the adm i ssion into evidence of the F acebook

m essages, the text m essages, and the cell-phone printouts, Boy d i s procedurally barred f rom raising the item s’ adm i ssion as an issue on appeal. Notwithstanding t he procedural bar, we f ind Boy d ’s assignm ents of error m eritless. ¶14. Mississippi Rule of Evidence Rule 901(a) provides f or the authentication of

evidence

a s a condition precedent to adm ission. Authentication sim ply establishes that “a m atter i s

6what its prop o n e n t claim s it to be.” M.R.E. 901. Authentication a nd identif ication of evidence are central to the concept of relevance; unless an item of evidence is shown to be “genuine,” the item

is irrelevant and should be excluded. S ee M.R.E. 901(a) cm t. ¶15. In a case of f

irst im pression, this Court recently exam ined the unique issues presented in attem pting to authenticate m essages sent via social m edia. Sm ith v. State , 1 36 So. 3d 424 (Miss. 2014). In Sm ith , this Court noted that “concerns over a u thentication a rise ‘because
any one can create a f

ictitious account and m a s querade under another person’s nam e or can gain access to another’s account by obtaining the user’s usernam e and p assword,” and consequently , “the potential f or f abricating o r tam

pering with electronical l y s t o r ed inf orm ation on a social networking site i s h i g h , and poses challenges to a uthenticating printouts f

rom the website.” Id

. at 432 (internal citations om itted). F urther, this Court held “[ b]ecause of the special concerns regarding f abrication, ‘the f

a ct that an e l e c t ronic

com m unication on its f

ace purports to originate f r om a certain person’s social networking account is generally i nsuf f icient standing a l one to authenticate that person as the author of the com m unication.’” Id . at 433 (internal citations om itted). ¶16. S m i t h t h e n o u t l ines situations where t his ty p e of e vidence is s uf

f icie n t l y a u t h e n t i c a t e d :

. . . the sender adm its authorship, the purported sender is seen com posing the com m unication, business records of an internet service provider or cell phone com pany show that the com m

unication originated f

rom t he purported sender’s personal com

puter or cell phone under circum stances i n which it is r easonable to believe that only the purported sender would have access t o t h e c o mputer or cell p hone, the com m

unication contains inf

orm ation that only t he p urported sender could be expected to know, the purported se n d e r r e s ponds to an exchange i n such a way as to indicate circum s t antially that he was in f act the author of the com m

unication, or other circum stances peculiar to the particular case m ay suf f ice to establish a prim a

f acie showing of

authenticity

.
7Sm ith , 136 So. 3d a t 43 3 ( ¶ 2 1 )

. While not exhaustive, Sm ith provides exam ples of circum stances in which evidence could be d eem ed authentic in c ongruence with Mississippi
R u l e of Evidence 901. 5 W e f i nd that, other than the f

irst two situations outlined in S m i t h (where the sender adm i ts authorship or a witness testif ies to s eeing t he author com pose and

transm it the m essage), each of the other situat i o n s e xem plif ied in Sm ith e ntail circum stantial, and not direct, evidence of authenticity

. Facebook m essages ¶17. On appeal Boy d contends, “[ t]he Facebook m essages d i d n o t c o n t a i n any personal identif y ing inf orm a t ion” and that “[ w]ith nothing m ore to properly authenticate” the trial

5 M ississip p i R u le o f

E v id en ce 9 0 1 , in p ertin e n t p a rt, p ro v id es: (a) G en eral P ro v isio n . T h e req u irem en t o f au th en ticatio n o r id en tif i catio n as a co n d itio n p reced e n t to a d m issib ility is satisf ied b y ev id en ce su f

f icien t to su p p o rt a f

in d in g th at th e m atter in q u estio n is w h at its p ro p o n en t claim s. (b ) Illu s tratio n s. B y w ay o f illu stratio n o n ly , an d n o t b y w ay o f lim itatio n , th e f o llo w in g are ex am

p les o f au t he nt i c a t i on or i de n t i fi c a t i on co n f o rm in g w ith th e req u irem en ts o f

th is ru le: (1 ) T estim o n y o f Witn es s W ith K n o w led g e. T estim o n y th at a m a tter is w h at it is claim ed to b e. ( 2) Non -ex p e rt O p in io n o n H an d w r itin g . N o n -ex p e rt o p in io n a s to th e g en u in en ess o f h an d w ritin g , b a s ed u p o n f am iliarity n o t acq u ired f

o r p u rp o ses o f

th e litig atio n .

. . . (1 0 ) O th er M e th o d s . A n y m eth o d o f a u t h e n t icatio n o r id en tif icatio n p ro v i d ed b y th e M ississip p i S u p rem e C o u rt o r b y th e C o n stitu tio n o f M i ssissip p i. 8court should have excluded t h e F a cebook m essages f rom evidence. 6 At trial, the State introduced F acebook m essages f rom RDS’s account by

which she com m

unicated with the Ty rone Boy d account. Over the c ourse of the Facebook com m unications, the Boy d prof ile asked RDS f

or h er num

ber, which she gave h im

. In ref e r ence to his o wn num

ber Boy d told RDS, “I just got dis new # so soon as it charge I will g ive it 2u all I no is 481 m a.” Not only

was R DS’s num

ber later recovered f

rom the contacts list in the p hone f ound on Boy d during his arrest, but the text m essages the State attributed to Boy d cam e f rom a num

ber beginning with the num erical sequence “601-481.” ¶18. Presum ably , thousands of c ell-phone owners living n ear Meridian, M ississippi, have phone num

bers beginning w ith the sam e six digits. However, Boy d was a rrested a t the t im e and m eeting place arranged in text m essages originating f rom a num

ber containing these six digits, w ith a phone containing RDS’s phone n um b er in his possession, and the me s s a g es also happened to be f

rom Ty rone Boy d. W hether these peculiar circum stances are analogous

to those contem

p lated in Sm ith is a question f or this C ourt. W e f

ind the Facebook m essages were properly

adm itted considering the circum stances laid out here. 7

6 N o te th at F aceb o o k a cco u n ts can n o t b e v erif ied as can p h o n e calls an d t ex t m essag es, as m en t io n ed in S m ith

. S ee S m ith , 1 3 6 S o . 3 d at 4 3 4 -4 3 5

. 7 A d m itted ly , th is an aly s is in v o lv e s a n ew ap p licatio n o f th e w ell-settl e d au th e n t icatio n p ro cess (in lig h t o f tech n o lo g ical ch an g e). We f in d th at, in S

m ith , th e C o u rt ad d ressed tw o cases S

ta t e v. E leck , 2 3 A

. 3 d 8 1 8 , 8 2 3 (C o n n . A p p . 2 0 1 1 ) an d U n ited S ta tes v. J a ck so n , 2 0 8 F . 3 d 6 3 3 , 6 3 6 -3 7 (7 th C ir. 2 0 0 0 )), an d th at th o se tw o cases sto o d f o r th e p rin c ip le th at “B ecau se o f th e sp ecial co n cern s r eg ard in g f a b r i c a t i o n , ‘th e f

act th at an electro n ic co m m

u n icatio n o n its f

a c e p u rp o rts to o rig in ate f ro m a certain p erso n ’s so cial n etw o rk in g acco u n t is g e n erally in su f f icien t stan d in g alo n e to a

u th en ticate th at p erso n as th e au th o r o f th e co m m

u n icatio n s.’” S

m ith , 1 3 6 S o . 3 d at 4 3 3

. In b o th E l eck an d J a ck so n , th e p ro p o n en t

attem p t ed to au th en ticate F aceb o o k m essag es u sin g o n ly p h o to s, p o s t s, an d th e 9Tex t m essages

¶19. Boy d asserts, “ the State sim ply relied on a UFED m achine printout” that listed RDS’s phone num

ber as one of the contacts” on the phone conf iscated f rom Boy d. This assertion is incorrect. The State also subm itted a printout m ade f rom RDS’s phone o f t ext m essages between RDS and the num ber attributed to Boy d. S econd, the State pointed to the f act that Boy d arrived at or j ust behind the Spaceway store twice imme d i a t ely af ter m essages were
sent between h is phone and RDS’s phone agreeing t o m eet there, a nd Boy d’s p resence was conf irm ed by three ey e witnesses who testif i ed at trial. Third, the j u r y h e a rd how police conf iscated a phone w hen Boy d was arrested t hat had the sam e num ber with w hich RDS had

com m u n i c a t e d

. L a s tly , the conf

i scated phone’s contacts list contained RDS’s p hone num ber, despite the f

act that Boy d claim ed not to know her. ¶20. Contrary to B oy d’s a ssertion on appeal, Sm i th does not stand f

or the proposition that the State m

ust authenticate e lectronic com m u nications b y subpoenaing the t elephone

com pany and obtaining global positioning inf orm ation f

or each m essage sent to prove that

a person authored the m e ssages in question. In relevant part f rom the above-cited excerpt, Sm ith h eld that m essages also m ay be authenticated by evidence that “

. . . t he p urported sender respond[ ed] to an exchange in such a way a s to indicate circum stantially that he was in f act the author of the com m unication,” or that “other circums t a n c e s peculiar to the particular case m ay

suf f ice to establish a prim a f

acie showing of authenticity

. ” S m ith , 136

acco u n t n a m es f

ro m th e p ro f

iles. In th is case, it is clear th at th e n a m e “T y r o n e B o y d ” o n th e F aceb o o k p ro f

ile d o es n o t

su f f ice to sh o w th at T y

ro n e B o y d au th o red t h e m e ssag es; w h at d o es au th en ticate th em

are th e “p ecu liar circu m stan ces” o f th e in s tan t case. 1 0So. 3d a t 433. Here, Boy d appeared at the Spaceway store a f t er the person using t he num ber attributed to him agreed t o do so. T his f act would stand as a “circum stantial indication” that the purported sender, Boy d, authored the m essages because he went t o the agreed location twice im m ediately

af t er m essages agreeing to m eet at that location were sent. ¶21. Next, Sm ith provides that other “ peculiar circum stances” m ay establish authenticity

. Id

. W hile this Court h as not def ined these c ircum s tances in great depth, we f i nd the State’s evidence w as suf

f iciently authenticated under Sm ith

. The f act t hat police arrested Boy d with

a p hone that had the exact sam e num ber as the one with which RDS corresponded, and that Boy d was alone at the tim e of seizure, c ertainly seem s t o be a peculiar coincidence indicating that this was Boy d ’s phone. Moreover, the f act that the phone contained RDS’s num ber is

even m ore circum stantially s uggestive. Boy d’s only explanation f or any of the a b o v e was his testim o ny that the police both conspired to f ram e h im with a cell phone t hat w as not his and that Investigator W ard perjured herself at trial in f urtherance of t he conspiracy

. The jury , it seem s, did not subscribe to Boy d’s version of events. ¶22. As Boy d would have it, the State c ould only adm it evidence of his F acebook phonea p plication com m

unications and his text-m essage com m u nications, f

or that m atter, b y obtaining records, including locational GPS inf o rm a t ion on e a ch m essage, to the exclusion of all other people who m ay have accessed his phone or phone applications, in order to prove each m essage independently authentic. Such a standard seem s im practicable and g oes m

uch
f urther than this Court provided f or in Sm i th

. Boy d w o uld m ake the authentication of electronic com m

unication appear to b e sui generis in relation t o m ore f am iliar m edia. But,

1 1where authorship is not a dm itted or w itness e d, a uthentication alway s has depended on circum stantial evidence, whether the subject m edium was electronic or not. Here, we f ind the instant f

acts provide suf

f icient authentication, particularly i n light of the “pec u l i a r circum stances” of this case. T hus, we f ind Boy d’s claim s r egarding each c onte s t ed adm ission are without m erit.
CONCLUSION ¶23. Boy d’s issue raised on appeal i s procedurally b arred, and this Court cannot review it. Notwithstanding the bar, Boy d ’s c ontentions are m eritless. Accordingly , we af f i rm Boy d’s conviction and sentence. ¶24. CON V I C T I O N O F E XP L O I T A T ION O F A C HILD AND SENTENCE OF TWELVE (12) YEARS IN THE CUSTODY OF T HE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIV E ( 5 ) YEARS S USPENDED, AND SEVEN (7) YEARS TO SERVE, AND FIVE (5) YEARS PROBATION, W ITH CONDITIONS, A F F I R M E D . A P PELLANT SH A L L P A Y P R O B A T I O N S U P E R V I S I O N F E E I N T H E AMOUNT OF $ 5 5 PER MONTH. WITHIN THIRTY (30) DAYS O F RELEASE, THE APPELLANT SHALL P AY A FIN E O F $ 50,000 WITH $45,000 SUSPENDED, A $1,000 FINE TO T H E C H I L D R E N ’ S TRUST FUND, C O URT COSTS OF $420.50, $10 TO THE V B F , AND AN APPEARANCE BOND OF $500. APPELLANT SHALL RECEIVE SIX TY-FOUR (64) DAYS JAIL CREDIT. WALLER, C.J. , R

A N D O L P H , P . J . , L A M A R , K I T C H E N S , C H A N D L E R , K I N G AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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