Police Blotter: MySpace profile becomes part of rape conviction

Police Blotter is a weekly CNET News.com report on the intersection of technology and the law.

What: Ohio man charged with statutory rape says he thought a 13-year-old girl was actually 18. He notes that her MySpace.com page falsely said she was.

When: Ohio Court of Appeals, Ninth District, rules on August 13.

Outcome: Court says the MySpace page was correctly excluded as evidence and upholds his conviction.

What happened, according to court records and other documents:
On June 21, 2005, two young teenage girls decided to spend the night at the home of Billy L. Gaskins, a Brunswick, Ohio, man who lived in the same apartment complex.

Gaskins was friendly with the family of one of the girls, referred to in court documents by the abbreviation KR, who was 14 years old at the time. KR's parents gave their permission for the two girls and their son to sleep over.

The girls, KR and CM, and KR's brother, JW, who was 9 or 10 years old, went over to Gaskins' apartment around midnight. The girls voluntarily entered Gaskins' bedroom soon afterward, either while he was taking a shower or when he was done. CM was 13 years old and is not related to KR.

That much is undisputed. The stories diverge over what happened next.

The girls say Gaskins was drinking beer and smoking marijuana, and began to massage their backs. CM says he undressed her and raped her. KR backs up her story.

The girls returned to the apartment of KR's family soon afterward but didn't say anything at the time. KR told her mother that she had a headache, and the two girls went to bed. They saw Gaskins in a nearby pool a day or two afterward but didn't speak to him.

Gaskins was arrested after the girls reported the incident a few days later, and a police test showed semen in CM's pajama pants that turned out to be Gaskins'.

For his part, Gaskins denied the charges. He said CM told him that her birth date was August 18, 1987, making her 18 years old at the time (though he later testified that she had told him that her birth date was June 19, 1987). He also testified that CM looked older than KR, who also had claimed to be 18, and that CM had initiated manual foreplay. He said that explains the semen and claims that no intercourse took place.

CM denied that she ever told Gaskins that she was 18 years old.

Gaskins was indicted on July 7, 2005, and charged with rape and unlawful sexual conduct with CM, and unlawful sexual conduct with KR. He was acquitted of the KR charge but convicted of the CM charges and sentenced to 5 years in prison. (Note that this is a shorter prison sentence than some people have received for merely downloading child pornography.)

What makes this case relevant to Police Blotter is that Gaskins insists that he believed CM was 18 years old. He wanted to show the jury CM's public MySpace profile, which claimed that she was 18 and said she had been in a sexual relationship with an adult.

The trial judge refused to admit the MySpace profile as evidence, and the appeals court agreed. On Monday, the Ohio Court of Appeals, Ninth District, upheld Gaskins' conviction and sentence.

Excerpt from Ohio Court of Appeals' opinion:
Appellant contends that the trial court abused its discretion by excluding evidence that CM held herself out as an 18-year-old on a Web site. We disagree.

It is well-established in Ohio that "the admission or exclusion of relevant evidence rests within the sound discretion of the trial court." An appellate court will not disturb a trial court's ruling as to the admissibility of evidence, absent an abuse of discretion and a showing of material prejudice by the opposing party.

At trial, appellant sought to introduce evidence that CM held herself out as an 18-year-old on the Web site MySpace and further that she held herself out as having been in a sexual relationship with an adult. The record reflects the following exchange regarding this evidence:

Appellant's counsel: "I would have liked to question (CM) with respect to (MySpace.com), eliciting testimony about (CM) having a site on (MySpace.com), that she held herself out as being significantly older than she is, perhaps 18 or older, and she would have held herself out as having been in a sexual relationship with someone who is an adult.

"I would offer that, and would like it admitted in order to show that (CM) was holding herself out to the world, including my client, as someone older than she is."

Court: "But you have no evidence he saw this?"

Appellant's counsel: "That is correct."

Court: "You don't know if it was done before the date of the assault?"

Appellant's counsel: "That is correct, Your Honor."

The trial court later reiterated its position on this evidence, stating, "The problem is not what she looked like in February (2006) or October. The problem is what she looked like on June 23rd. That is the relevance, that is the relevant thing. In other words, the state of Ohio is arguing that he was reckless, that either he knew the age of the victims, the alleged victims, or he was reckless with regard to their age. So therefore, what becomes relevant is how they looked around June 23rd, not how they looked in October, not how they looked in February, not how they looked in December, but how they looked around June of 2005."

Here, the trial court permitted introduction of the photographs that were posted on the MySpace Web site. Further, the trial court permitted Appellant's friend, Ms. Harris, to testify regarding the photographs and whether they accurately depicted what CM looked like at the end of June 2005. The court merely prohibited questioning regarding the Web site. Appellant's counsel agreed that he had no proof that appellant ever saw the Web site.

More importantly, neither party disputed that this Web site was created after the incident in question. Whether CM represented herself as 18 years old after the incident occurred is not relevant. This case centers around appellant's belief regarding CM's age at the time of the incident. Accordingly, we find no abuse of discretion in the trial court's exclusion of this evidence.