NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

15-P-423 Appeals Court

COMMONWEALTH vs. DAVID GILMAN.

No. 15-P-423.

Worcester. May 6, 2016. - July 21, 2016.

Present: Cohen, Green, & Neyman, JJ.

Rape. Indecent Assault and Battery. Evidence, Relevancy and 

materiality, Inflammatory evidence, Authentication, Best 

and secondary. Constitutional Law, Assistance of counsel.

Practice, Criminal, Assistance of counsel, Argument by 

prosecutor, Voir dire, Jury and jurors. Jury and Jurors.

Indictments found and returned in the Superior Court 

Department on April 23, 2010.

The cases were tried before Peter B. Krupp, J.

Diana Cowhey McDermott for the defendant.

Michelle R. King, Assistant District Attorney, for the 

Commonwealth.

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
2

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.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 

1 As discussed infra, the defendant also claims that the 

prosecutor misstated the evidence during closing argument, and 

he assigns error to the failure of the trial judge to conduct 

individual voir dire of prospective jurors on the topic of 

childhood victimization and sexual assaults. Neither claim 

warrants relief.

 
3

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 

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.2

2 The following exchange is illustrative of their chats 

during this period:

Defendant: "Anyway, the day at Six Flags when I held your 

hand on the way in."

Victim: "Really?"

Defendant: "Remember?"

Victim: "Yeah."

 
4

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 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 

Defendant: "And then you wrecked me completely on the bus 

ride home. I did nothing but think about you all 

[s]ummer."

Victim: "That was a fun bus ride home. I got to beat the 

hell out of Tom, and bug the hell out of you."

Defendant: "Yeah. And you used all your super flirt 

powers on me."

Victim: "And I got you."

Defendant: "Hook, line and sinker, as they say. Now I 

couldn't stop thinking about you if I tried."

 
5

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.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 

3 The defendant said he would "slide my finger inside of 

your pussy and feel you from the inside," and "push my finger in 

and out of you until you cum." The defendant then said he could 

"use my tongue or my cock," and "I will slide my cock up and 

down the outside of your pussy . . . I will make you so wet." 

Because the victim did not understand what the defendant meant 

by the word "wet" she had to look it up online using the Urban 

Dictionary Web site.

 
6

via Facebook and frequently talked about future sexual activity 

and what the defendant would like to do to the victim.4

When the defendant and the victim chatted on Facebook on 

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 

4 The defendant talked about wanting to make the victim "hot 

and wet and crazy," and stated that he would like to "take turns 

rubbing the outside of you and putting myself inside of you." 

The defendant expressed guilt to the victim over "making you 

grow up so fast," and stated, "I hate how I'm putting ideas in 

your head you would never have had." Nevertheless, the 

defendant continued to educate the victim sexually, at one point 

asking, "What does it mean to give me head or a blow job?" When 

the victim replied that it meant to "suck a guy's cock" but 

could not describe what she would do to him sexually, the 

defendant replied, "boring." In response, the victim said, "I'm 

twelve. How am I supposed to know?"

 
7

[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.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.

5 The defendant's user name was "gilmand."

 
8

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 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, 
9

(ii) describe inadmissible prior bad acts, (iii) were not the 

best evidence, and (iv) could not be authenticated properly.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 

victim and the defendant was clearly relevant. They contained 

numerous declarations of love by the defendant and the victim 

6 For the first time on appeal, the defendant also contends 

that they constitute inadmissible hearsay. The claim is waived. 

See Commonwealth v. Brinson, 440 Mass. 609, 611 (2003). In any 

event, the statements of the defendant are admissible as 

admissions of a party opponent. See Commonwealth v. Cutts, 444 

Mass. 821, 834 (2005). The statements by the victim in the chat 

conversations principally furnished context for the defendant's 

statements and were not offered for their truth (though, as the 

defendant did not object or request a limiting instruction, none 

was given). In any event, the victim's statements in the chats 

were largely cumulative of the victim's testimony at trial and,

accordingly, pose no substantial risk of a miscarriage of 

justice.

 
10

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 
11

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 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 
12

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.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 

7 As explained by the Commonwealth's digital forensic 

expert, State Trooper Kevin Hart, the messages were stored in 

the Internet cache of the computer hard drive, as temporary 

files downloaded from the Facebook server (or other Web pages) 

visited by the computer user during a browsing session.

 
13

participated. The evidence amply supported a conclusion that 

the defendant authored the Facebook chat messages.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 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 

8 Though the trial judge should have instructed the jury 

that they were required to find by a preponderance of the 

evidence that the defendant authored the Facebook chat messages, 

see Commonwealth v. Foster F., 86 Mass. App. Ct. 734, 737-738 

(2014), the defendant neither requested such an instruction nor 

objected to the instructions administered by the trial judge. 

In light of the abundance of evidence that the defendant 

authored the messages attributed to him, we discern no 

substantial risk of a miscarriage of justice by reason of the 

omission.

 
14

downloaded. Commonwealth v. Amaral, 78 Mass. App. Ct. 671, 674-

675 (2011).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.10 The defendant did not raise 

9 We recognize that by virtue of the manner in which the 

conversations were retrieved, downloaded from the "Internet 

cache" folders on the hard drives of the computers used by the 

victim and defendant, the conversations were incomplete in some 

respects, in the sense that there were gaps in some 

conversations. However, that does not make the files that were 

retrieved any less accurate or reliable as copies of the 

portions of the conversations they reflected. The defendant 

makes no claim that so much of the conversations as were 

admitted were misleading or unintelligible by reason of any such 

gaps, so as to implicate the doctrine of verbal completeness. 

See Commonwealth v. Watson, 377 Mass. 814, 825-831 (1979). In 

any event, the defendant made no request to supply additional 

portions of the conversations to fill in any such gaps.

10 Counsel stated as follows:

"There's another sort of bedrock cornerstone of our 

judicial system, if you will, and that's the right to 

remain silent. You may have heard this term before in 

movies and TV shows and so forth. It's a right to remain 

silent. And what it says, it's a principle of law that 

says the defendant, an individual who is charged with a 

crime, has no obligation to say anything. That person can 

remain silent. He can say to the government, 'Prove your 

case beyond a reasonable doubt. I'm going to remain silent 

and say nothing. It's on you to prove the case.' That's 

an absolute constitutional right. It's the Fifth 

 
15

his claim of 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 

Amendment. You've probably heard the term, 'I plead the 

Fifth.' And it's important in this case, because the 

government, the court, cannot make Mr. Gilman get on that 

witness stand and testify. They can't force it. But I'm 

going to tell you a secret. He's going to get on that 

witness stand. He's going to waive that Fifth Amendment 

privilege. He is going to waive that constitutional right 

to remain silent. He's going to take the witness stand and 

he’s going to testify and he's going to tell you his 

version of events, if you will, and his version of events 

are [sic] different than her version of events."

 
16

change of plans at the beginning of his closing argument,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 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 

11 Trial counsel began his closing argument as follows:

"Good morning, ladies and gentlemen. In my opening to 

you a few days ago I talked about this Fifth Amendment 

right not to testify, it is an absolute constitutional 

guarantee. And then I went on to tell you that I expected, 

fully, Mr. Gilman to take the witness stand and testify. 

That was before I knew what the testimony for sure was 

going to be from the Commonwealth witnesses. I didn't 

know, for example, that [the victim] was going to tell you 

that she lied to the grand jury and that she lied to you 

under oath.

"I didn't expect, for example, that Ms. Bugbee, or 

Mrs. Bugbee, the friend of Mr. Gilman who testified, would 

talk about this statement that he gave to her when this all 

came out and he was relieved of his duties at the school, 

this statement where she asked him, "Did you do this? Did 

you touch her," and he said, "No, but it would appear from 

what I wrote that I did."

"These things are our arguments. They are our 

defense, if you will. They came out through the testimony 

of the other witnesses. And a legal decision was made not 

to call Mr. Gilman to the witness stand; a legal decision 

was made."

 
17

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.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.

12 The prosecutor commented,

"When he talks about manipulation, he tells her, 'I've 

been a teacher for a long time. I've been a teacher for a 

long time and I've never felt this way about any other 

student. But [the classmate], she's coming close.' 

Manipulation. The push. The pull. Draw her in and push 

her back out."

 
18

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 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. 
19

See Commonwealth v. Lao, 443 Mass. 770, 778 (2005); Commonwealth

v. Vickery, 82 Mass. App. Ct. 234, 237 (2012).

Judgments affirmed.