Police Blotter: Conviction hinges on AOL IM 'away' message

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

What: California man accused of molesting his stepdaughter says her AOL "away" message calls her credibility into question.

Outcome: Conviction upheld on February 26.

What happened, according to court documents and other sources:
Earl Eugene Cannedy was accused of sexual molestation. Specifically, he was charged with oral copulation of someone who could not resist because of intoxication, and oral copulation of someone under 18 years old.

Cannedy raised an unusual defense: it involved an exculpatory "away" message one of the girls allegedly typed into AOL's instant messaging service.

The first of the two incidents took place in December 2000, when Cannedy shared a bottle of vodka with his wife's 17-year-old sister, called Jane Doe in court papers. Cannedy and his wife were living in Palm Desert, Calif., at the time.

Jane Doe passed out and woke up in a bedroom, with Cannedy allegedly pulling down her pants and performing oral sex on her. He eventually left. Jane Doe reported what happened in June 2001.

But Cannedy's wife apparently walked in on the scene, called her other sister immediately after the discovery, and the two decided to remove Jane Doe from the house but not otherwise disclose what happened. (As a side note, Jane Doe pleaded guilty to forgery and receiving stolen property a few years later and was placed on probation.)

The second incident involved Cannedy's stepdaughter, who is referred to as A.G. in court papers. A.G. was 13 years old in December 2003, when she said that Cannedy gave her a massage that ended with oral sex. She contacted the police.

A.G. used AOL's instant messaging service, and occasionally left "away" messages for her friends to see. A few weeks after the incident, she moved from her stepfather's home to her father's home.

Cannedy claimed that the following appeared as A.G.'s "away" message around that time: "To everyone who is reading this, the rumors that you heard are wrong. I just wanted to move to my dad's because everyone hates me and I don't want to put up with it anymore. Everything that you have heard isn't true. I just made it up so I could get away from it all. I'm living at my dad's where I have friends and I'm happy. I'm at (redacted) right now but I'm only going to be here for a day. You can reach me at (redacted)'s if you want to talk."

That message was written down at the time by one of A.G.'s friends, who was willing to testify that she saw it in early 2004. For her part, A.G. claimed: "I would never write anything like that because it is not true. I--it wasn't my choice to move to my dad's."

During the trial, Cannedy's lawyers argued that the jury should hear about the message and that the friend, J.C., should be called as a witness. They said that only the person with A.G's AOL password could have typed in the "away" message.

The judge denied the request, noting there were doubts about the message's authenticity: "You think those are secret from everybody? I know my wife's and she knows mine. I know my daughter's. I know my granddaughter's. She showed me how to get onto her MySpace."

Cannedy was convicted by a jury of the two oral copulation charges and sentenced to two years, on top of an earlier sentence of 10 years and 8 months in a related case. He filed an appeal to the California Court of Appeal, which rejected it on February 26.

Excerpts from the opinion from the California Court of Appeal, Fourth District, Division 2:
Defendant claims the exclusion of J.C.'s impeaching testimony violated his federal constitutional right to present a defense. In California, evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant and admissible. The trial court is vested with wide discretion in determining the relevancy of evidence. The question whether the defendant presented an adequate foundation to establish the relevance of the evidence also lays within the trial court's broad discretion.

A.G. described how defendant molested her around Christmas 2003. During cross-examination, A.G. admitted that she had access to a computer in December 2003 and early 2004. She knew about America Online (AOL) instant messaging. She had a "buddy list"...and a screen name on AOL to talk to certain people in a "private chat room."...A.G. acknowledged familiarity with "away messages." She had previously left "away messages" for her friends on occasion but did not recall leaving one in the second week of February 2004, when she moved from defendant's home to her father's home, nor did she recall leaving a message relating to the "content" of her testimony.

Contrary to defendant's claim, he was not deprived of his Sixth Amendment right to present a defense when the trial court applied the rule of evidence requiring him to supply an adequate foundation (Evid.Code, Sec. 403). Here, there was no abuse of discretion. As the People aptly note, defendant offered a hearsay statement that was allegedly posted on the Internet by A.G. There were no external or internal indicators of its authenticity or authorship. A.G. testified that she did not post such message. Although the evidence was relevant, i.e., it would have impeached A.G.'s testimony, defendant was unable to show that A.G. was the person who had posted it on the Internet.

The People agree that if there were proof A.G. recanted her claim that defendant molested her, such evidence would have been relevant to her credibility. Nonetheless, A.G.'s credibility is a collateral issue. The real issues involved the credibility of Jane Doe and her claim that defendant molested her. Given defendant's failure to lay a proper foundation for the evidence, the trial court was within its power of avoiding a mini-trial on A.G.'s credibility, which would have involved the need for expert testimony on why children who have been molested recant their claims, as well as A.G.'s testimony from defendant's previous trial concerning his molestation of A.G.

For the above reasons, we conclude the trial court did not abuse its discretion in excluding the testimony of J.C.