author: Warner, J.

text:
    Joseph Benjamin BLACK and Elizabeth Black,Appellants, v. Mery COHEN, Appellee.
    No. 4D16-2485
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Warren B. Kwavnick and Kelly Lenahan of Cooney Trybus Kwavnick Peets, PLC, Fort Lauderdale, for appellants.
    Ramon Rubio of the Law Office of Ramon Rubio, P.L., Fort Lauderdale, for appellee.
   Warner, J.

In this appeal from an order granting a new trial in a rear end collision case, resulting in a small verdict for the plaintiff, the court determined that comments in voir dire regarding insurance, as well as testimony regarding the defendant's research in medical school, improperly swayed the jury. We conclude that an objection to the comment on insurance was not properly preserved and cannot serve as grounds for a new trial. The comment on the defendant's medical research amounted to admissible "humanizing" evidence. Even if it did not, given the lack of explanation of how such evidence created a "grossly inadequate" verdict, we conclude that the court abused its discretion in granting a new trial. We reverse for entry of a judgment consistent with the jury's verdict.

The appellee/plaintiff, Mery Cohen, filed suit against appellants/defendants, Joseph Black (driver) and Elizabeth Black (owner), alleging Black was negligent in causing an automobile collision in August 2007. The parties gave different versions of the accident. Cohen testified that she was stopped at a red light in a turn lane on University Drive in Broward County when she was struck from behind by Black. Black, on the other hand, testified that he was also stopped for the light behind Cohen's vehicle when the light turned green and the vehicles started to move. Cohen slammed on her brakes, and Black hit the rear end of her vehicle. The collision was minor, causing only around $1,600 damage to Cohen's bumper. Some statements on Cohen's application for no-fault insurance benefits contradicted her testimony. The description of the accident on the form stated that the light had turned green, although at trial she denied making that statement.

Cohen, age fifty-three at the time of the accident, testified her neck went forward and back during the collision. She did not seek treatment that day, but she went to Broward Rehab Center for pain in her shoulders, neck (left and right), and lower back. She was seen by a neurologist who diagnosed her with cervical spine strain/sprain, ordered physical therapy, and prescribed medication. X-rays showed narrowing of the disc space at multiple levels of the cervical spine. X-rays of the lower back also showed widespread narrowing of the disc space throughout the lumbar spine. An MRI taken three months later showed bulging lumbar discs, causing some nerve impingement.

Cohen then was seen by an orthopedic surgeon who diagnosed her as having herniated discs in the lower back. He recommended a lumbar discogram. She also had an MRI of her cervical region, which revealed numerous herniated discs. Her surgeon then recommended a cervical discogram. Her pain from these impingements occurred on the left side of her neck.

Cohen underwent the discogram in January 2008, which eliminated her low back pain. In June 2008, her surgeon performed a discogram on her cervical spine. Post-operatively, she did well, and the procedure eliminated the pain on the left side of her neck. However, in October 2008, fourteen months after the accident, she returned to her orthopedist with complaints of right-sided neck pain. He treated her with an injection in the neck and pain medication. By November, he released her and advised that she should return only on an as needed basis. She did not return for further visits.

For nine months, Cohen saw no doctors. Then, in July 2009, she saw a series of orthopedists for right-sided neck pain. New MRIs of the neck were performed, and the orthopedist recommended a cervical fusion.

A year later, she saw Dr. Dare, an orthopedic surgeon, as she was still complaining of right-sided neck pain. After more tests, he performed a cervical discectomy and fusion in October 2011, almost four years after the accident. Dr. Dare opined that the accident in August 2007 caused the disc herniation that ultimately led to the surgery that he performed. Cohen's medical bills totaled $240,000, particularly because Dr. Dare charged $176,000 for the fusion.

The defense offered the testimony of Dr. Rolando Garcia, an orthopedic spine surgeon, who examined Cohen and her medical records. He reviewed the x-rays of Cohen taken the day after the accident and did not find anything that he attributed to the accident. He stated that the thoracic and lumbar x-rays were normal. The cervical x-rays showed only arthritic or degenerative changes, including the levels where Dr. Dare eventually operated. Dr. Garcia testified that the left-sided neck pain resolved after the accident, and fourteen months after the accident, right-sided neck pain commenced. He did not conclude that the right-sided pain, which manifested itself fourteen months after the accident, was related to the accident. He opined that she did not suffer a permanent injury as a result of the accident, and the cervical fusion performed by Dr. Dare in 2011 was not necessitated by, nor attributed to, the accident.

In closing argument, Cohen's attorney argued that she had sustained an aggravation of a pre-existing condition and asked the jury to award $240,000 in past medical expenses and $40,000 for future office visits (no request for future surgery). Counsel requested a "floor" of $700,000 for past pain and suffering during the nine years since the accident and a minimum of $200,000 for future pain and suffering. Black contended that Cohen did not suffer a permanent injury in the accident. Her complaints of low back and left-sided neck pain were resolved within a year, and the right-sided pain was not related to her injuries in the accident. He suggested that the jury award $18,506 as compensation for the medical expenses incurred up until the time she was released by her physician in November 2008.

The jury concluded that Black was 50% at fault and Cohen was 50% at fault. It also concluded that Cohen's injuries were not permanent. It awarded $18,506 in past medical bills, and it did not award any non-economic damages.

Post-trial, Cohen moved for a new trial, alleging two primary grounds for a new trial. First, during voir dire, Cohen's counsel questioned the prospective jurors on whether any of them had "ever dealt with investigations of claims, auto accidents, worked for insurance companies, [or] done any kind of investigation stuff?" Black's counsel objected that, "This is not an insurance case." Cohen's counsel then said, "I agree, Your Honor. I just want to know if they've worked for any kind of companies that do-whether it be a private investigator, insurance company, or whatever." The court did not rule on the motion for mistrial. In her motion for rehearing, Cohen argued that these comments biased the jury and made it appear that Black did not have insurance.

The second issue addressed in the motion for new trial occurred during the testimony of Black. During jury selection, the jurors were told that Black was absent, because he was a student at the University of Florida and making a presentation. He would arrive later. Subsequently, on the third day of trial, Black testified. He initially stated that he was a medical student and at the same time was doing research to receive a PhD at the University of Florida. He had completed the first two years of medical school; had taken his boards; and had an additional two years of graduate school doing research. Counsel then asked him what he was researching, to which Cohen objected based on relevance. The court overruled the objection, and Black testified that he was researching chemotherapy resistant prostate cancer and the mechanism of how it remains resistant to therapies. He was giving a presentation on his research when he was absent from trial. In the motion for new trial, Cohen maintained that the sole purpose of revealing his research was to sway the jurors to "feel" for Black and prejudice them in his favor.

The court held a hearing on the motion. Black contended that Cohen had waived her motion for mistrial as to the insurance comment, because the court offered, and the appellant accepted, a curative instruction which was read to the jury. Further, Black contended that counsel's statement was in response to Cohen's counsel interjecting insurance into the voir dire by asking questions regarding experience with insurance investigations. Black argued that, as to Black's research, these comments only served to humanize Black, which the trial court had allowed. The trial court suggested interviewing the jurors to determine whether either of these issues had influenced the verdict. The judge noted that the jury had not awarded all of Cohen's medical expenses. Black's counsel pointed out that the jury had awarded all the expenses for the first ten months after the accident, which was consistent with their expert's testimony as to the injuries which were caused by the accident. The court seemed intent on a jury interview and asked for memoranda as to its propriety. Black provided a substantial body of case law showing that a juror interview would be inappropriate, and Cohen agreed with that conclusion.

Without holding another hearing, the court entered an order granting a new trial. The court ruled:

1. The grossly insufficient award occurred because the jury was misled, confused, influenced by passion or prejudice by the testimony elicited by the Defendant. The defense was entitled to get some of the background for the defendant: he's a student in Gainesville at U of F, he's been there for seven years and probably that he's in medical school. Then the defense asked the classic one question too many to elicit non probative and prejudicial evidence: "What are you currently in the process of researching?" Before the answer, the Court overruled the Plaintiff's objection. The answer was "I'm looking at a type of prostate cancer that is resistant to current chemotherapy that's turned castration-resistant prostate cancer. And we are trying to understand different ulterior mechanisms that are responsible for how this giving cancer gains resistance to androgen deprivation therapy." That question and answer had no probative value in this case and was introduced simply to prejudice the jury in favor of the defendant who was trying find a new way to treat or cure prostate cancer. Not knowing the answer to the question, it was the Court's fatal mistake to overrule Plaintiff's objection to the question.
2. The grossly insufficient award occurred because the jury was misled and confused because the defense introduced the issue of insurance coverage for the defendant into the trial. The defense spin on the agreed to collateral source rule instruction to the jury implied the defendant did not have insurance and misled the jury into believing the defendant was going to personally pay the judgment.

Black now appeals the order granting the new trial.

Standard of Review

Three cases establish the standard of review of orders granting motions for new trial. In Cloud v. Fallis , 110 So.2d 669, 673 (Fla. 1959), the court directed:

When the judge, who must be presumed to have drawn on his talents, his knowledge and his experience to keep the search for the truth in a proper channel, concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial, and he should always do that if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record[.]
Inasmuch as such motions are granted in the exercise of a sound, broad discretion the ruling should not be disturbed in the absence of a clear showing that it has been abused.

(citations omitted).

In Brown v. Estate of Stuckey , 749 So.2d 490, 497-98 (Fla. 1999), the court again addressed the standard of review that appellate courts must apply:

When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.
....
Regarding inadequate or excessive verdicts, this ground is a corollary of the ground asserting that the verdict is contrary to the manifest weight of the evidence. A new trial may be ordered on the grounds that the verdict is excessive or inadequate when (1) the verdict shocks the judicial conscience or (2) the jury has been unduly influenced by passion or prejudice.... Regardless of whether a new trial was ordered because the verdict was excessive or inadequate or was contrary to the manifest weight of the evidence, the appellate court must employ the reasonableness test to determine whether the trial judge abused his or her discretion.

Finally, in Van v. Schmidt , 122 So.3d 243 (Fla. 2013), a case factually similar to this case, the court addressed a conflict between this court and the First District as to the deference the appellate court must afford the trial court in reviewing an order granting a new trial to the extent that the trial court relies on erroneous legal conclusions. The court held that deference is not required for legal conclusions, stating:

We conclude that a trial court's conclusions of law in an order granting a new trial are not entitled to deference because the trial court's superior vantage point is not implicated. In other words, a reviewing court can determine the legal issue just as well as the trial court. However, the trial court's findings of fact and determinations of credibility are still entitled to the same deference as in orders that are not premised, at least in part, on an error of law, because of the trial court's superior vantage point of having been present during the entire trial.

Id. at 258. With these principles in mind, we now analyze the new trial order in this case.

This Case

The trial court determined that the verdict was "grossly inadequate" because of the testimony with respect to Black's research and the reference to insurance. Taking the second reason first, the court found that the "defense" injection of insurance into the trial prejudiced the jury. Counsel's statement, "This is not an insurance case," occurred in voir dire, not during the trial itself. While Cohen moved for a mistrial, her counsel did not seek a ruling. The court offered a curative instruction, and counsel expressed satisfaction with it. Most importantly, Cohen never expressed dissatisfaction with the jury chosen and accepted the jury without reservation, thus failing to preserve this objection. The preservation of an objection is strictly a question of law and thus reviewable by the appellate court de novo. See Van, 122 So.3d at 252. In a similar context, the Florida Supreme Court has held that a trial court may not grant a new trial based upon objections to attorney misconduct which were sustained, but for which no motion for mistrial was requested. The court noted, "The principles behind the contemporaneous objection rule apply equally to our decision regarding mistrial motions today: failure to alert the trial judge that an error may be incurable results in delay and wastes judicial resources, especially if the error complained of occurs early on in the proceedings." Companioni v. City of Tampa , 51 So.3d 452, 455-56 (Fla. 2010). The same principles apply in this case. The court erred as a matter of law in premising the order granting new trial on this waived objection. See also Robinson v. Bucci , 828 So.2d 478, 482 (Fla. 2d DCA 2002) ; Publix Super Markets, Inc. v. Griffin , 837 So.2d 1139, 1141 (Fla. 2d DCA 2003) ; Rodriguez v. Loxahatchee Groves Water Control Mgmt. Dist. , 636 So.2d 1348, 1350 (Fla. 4th DCA 1994) (finding a curative instruction sufficiently remedied error in inflammatory remarks so that it was not a proper basis for granting new trial).

The trial court also grounded the order granting new trial on the testimony by Black regarding his cancer research, which the trial court found was not probative and was offered only to prejudice the jury. Cohen did not allege, nor did the court find, that Black's testimony that he was a medical student two years away from graduating was inadmissible. In fact, earlier in the trial, the court found that this evidence was admissible as proper "humanizing" evidence. Black contends that his cancer research was likewise appropriate to humanize the witness and provide the jury with a basis to assess his credibility. See Miller v. State , 42 So.3d 204, 224 (Fla. 2010) ("It is common practice on direct examination to inquire about a witness's occupation to establish background."). In the early parts of the trial, the court had even agreed that both parties could offer humanizing evidence. Black's counsel never mentioned Black's medical studies or cancer research again. In Miller , a death penalty case, the defendant contended that the trial court erred in allowing the victim's son to testify that he was an attorney, as the information was irrelevant and prejudicial. Id. The supreme court rejected this contention, noting that the background does enhance credibility of a witness by humanizing him. Id. at 224-25. Moreover, "a jury is not presumed to discount all the evidence only to decide a case upon the fact that the victim's son is an attorney." Id. at 225. Similarly, in this case, the trial court cannot presume that the jury has disregarded all other evidence and decided this case in accordance with the position of Black simply because he does cancer research. As in Miller, the admission of the evidence was not error.

Even if we consider the ruling as being within the "broad discretion" afforded to trial courts in ruling on motions for new trial, we would still conclude that the court abused its discretion in ordering a new trial based upon the comments about Black's cancer research. We simply cannot conclude that mention of Black's cancer research was so prejudicial that the jury was misled and misperceived the weight of the evidence because of it and decided the case upon the fact that the defendant did cancer research. No reasonable person would conclude that the verdict was fatally tainted by this single remark.

We are not bound by any findings and credibility determinations, because the trial court made none. The court did not explain or analyze why the verdict was "grossly inadequate." The trial court made no analysis of the testimony of the witnesses. Implicit in its finding of gross inadequacy must be a finding that no evidence supported the jury's finding of no permanency; however, without an analysis of the evidence in the case and how the trial court would have come to that conclusion, the trial court's decision cannot be sustained. On the record before us, the issue of liability and permanency were hotly contested, and the court has shed no light as to why the defense's evidence supporting its case should be rejected. Therefore, we conclude that the court abused its broad discretion in ordering a new trial.

For the foregoing reasons, we reverse the order granting new trial and remand for entry of final judgment based upon the jury's verdict.

Reversed with instructions.

May and Damoorgian, JJ., concur.

      The only comment on Black's qualifications came from Cohen's attorney who said in closing argument: "And Joseph Black was just up there. I mean, talk about an excellent witness. He's all coat and tie, a med student, very articulate. And he seemed like an incredible witness."


source: Caselaw Access Project

author: Gross, J.

license: Public Domain

text:
    Mary M. CAMERON, Ph.D., Appellant, v. Nicole A. JASTREMSKI, Ph.D., Appellee.
    No. 4D17-39
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    William R. Amlong, Karen Coolman Amlong and Isha Kochhar of Amlong & Amlong, P.A., Fort Lauderdale, for appellant.
    Oscar E. Marrero and Lourdes E. Wydler of Marrero & Wydler, Coral Gables, for appellee.
   Gross, J.

This is an appeal from an order granting a motion to dismiss based on absolute immunity in a defamation action between two teaching colleagues at a local university.

We reverse because appellee's entitlement to claim absolute immunity does not appear on the face of the complaint. Rather, in this case , the issue is one of proof, which may be raised at a limited evidentiary hearing or on summary judgment.

On an appeal from an order granting a motion to dismiss, we take the factual allegations of the complaint as true and consider them in the light most favorable to the plaintiff. See , e.g. , Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont'l Grain Co. , 715 So.2d 343, 344 (Fla. 4th DCA 1998).

As alleged in her complaint, Mary Cameron is a senior member of the anthropology department at Florida Atlantic University ("FAU"). Nicole Jastremski is a visiting instructor of anthropology and an unsuccessful candidate for a tenure-track position as an assistant professor at the university. Following Jastremski's rejection for the position, she sent a letter to the dean complaining about a series of derogatory statements Cameron made to Jastremski about her fellow professors and the department. Jastremski also shared these statements with the department secretary, other colleagues in the department, and a former colleague who teaches at the University of Miami.

Cameron denied making any of the statements attributed to her.

Cameron filed a single count complaint for defamation against Jastremski. Jastremski moved to dismiss the complaint, asserting she was entitled to absolute immunity as a matter of law because her actions were within the scope of her duties as a public employee. The circuit court granted the motion.

We have previously described an absolute privilege:

"[A]bsolute privileges" are based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests. To accomplish this, it is necessary for them to be protected not only from civil liability, but also from the danger of even an unsuccessful civil action. To this end, it is necessary that the propriety of their conduct not be inquired into indirectly by either court or jury in civil proceedings brought against them for misconduct in their position. Therefor[e] the privilege, or immunity, is absolute and the protection that it affords is complete. It is not conditioned upon the honest and reasonable belief that the defamatory matter is true or upon the absence of ill will on the part of the actor.

Cassell v. India , 964 So.2d 190, 193 (Fla. 4th DCA 2007) (quoting Fridovich v. Fridovich , 598 So.2d 65, 68 (Fla. 1992) ). "In Florida, '[p]ublic officials who make statements within the scope of their duties are absolutely immune from suit for defamation.' " Id. (quoting Stephens v. Geoghegan , 702 So.2d 517, 522 (Fla. 2d DCA 1997) ). As explained by the Fifth District in Alfino v. Dep't of Health & Rehab. Servs. , 676 So.2d 447, 449 (Fla. 5th DCA 1996) :

Conduct is within the scope of one's employment if it is the type of conduct which the employee is hired to perform, the conduct occurs substantially within the time and space limits authorized or requested by the work to be performed, and the conduct is activated at least in part by a purpose to serve the employer.

(citing Craft v. John Sirounis & Sons, Inc. , 575 So.2d 795 (Fla. 4th DCA 1991) ). "The scope of an officer's duties is to be liberally construed." Cassell , 964 So.2d at 194 (citing Goetz v. Noble , 652 So.2d 1203, 1205 (Fla. 4th DCA 1995) ). "The term 'duties' is not confined to those things required of the officer, but rather extends to all matters which he is authorized to perform." Id. at 194 (citing Stephens , 702 So.2d at 523 ; Restatement (Second) of Torts § 591 ).

Absolute immunity rests on the lofty principle that officials who are carrying out service to the public

should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties-suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.

Barr v. Matteo , 360 U.S. 564, 571, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).

We reject Cameron's argument that absolute immunity does not extend to "rank-and-file employees" like Jastremski. "Originally, the protection was afforded only to high-ranking officials, but over time, courts began focusing less on the rank of the official and more on the nature of the employee's duties." Boggess v. Sch. Bd. of Sarasota Cty. , No. 8:06-CV-2245-T-27EAJ, 2008 WL 564641, *5 (M.D. Fla. Feb. 29, 2008) (citing City of Miami v. Wardlow , 403 So.2d 414, 416 (Fla. 1981) ); accord Skoblow v. Ameri-Manage, Inc ., 483 So.2d 809, 810 (Fla. 3d DCA 1986) ("[T]he emphasis has shifted to the 'nature of the officer's duties rather than the level of his rank.' ") (quoting Wardlow , 403 So.2d at 416 ). And this court has written that "an absolute privilege protects the statements of all public officials, regardless of the branch of government or the level of the official." Cassell , 964 So.2d at 194 (emphasis added). Instead, "the controlling issue in deciding whether a public employee is absolutely immune from actions for defamation is whether the communication was within the scope of the employee's duties." Skoblow , 483 So.2d at 810-11 (citing Wardlow , 403 So.2d at 416 ).

The majority of employment-related defamation cases where Florida courts have found the existence of an absolute privilege generally involve a public official exercising supervisory responsibilities over another public employee or over personnel matters. It is well-settled that "absolute immunity protects public officials for statements made 'in connection with an employee's discharge ... if the official has responsibility for discharging the employee.' " Prins v. Farley , 208 So.3d 1215, 1217 (Fla. 1st DCA 2017) (quoting Lock v. City of W. Melbourne Fla ., No. 6:12-cv-680-Orl-36TBS, 2015 WL 1880732, *27 (M.D. Fla. April 24, 2015) ); see also Hauser v. Urchisin , 231 So.2d 6 (Fla. 1970) (city commissioner's statements to the press in response to former city prosecutor's comments after removal were absolutely privileged); Cassell , 964 So.2d at 196 (police lieutenant entitled to absolute immunity because his statements about a police officer were "part and parcel of his duties as [the police officer]'s supervisor and as a ranking officer accountable to other officers either in the chain of command or in positions of responsibility over potential claims for benefits."); Skoblow , 483 So.2d at 811 (officials' statements to the press about plaintiff's work were absolutely privileged); Danford v. City of Rockledge , 387 So.2d 967 (Fla. 5th DCA 1980) (absolute immunity applied where city officials made unfavorable statements to the news media about a city police officer); cf. Albritton v. Gandy , 531 So.2d 381 (Fla. 1st DCA 1988) (holding that statements about plaintiff's employment were not privileged where the official was not in charge of hiring or firing).

Florida courts have also found that statements by a public official are made within the scope of his or her duties if they involve an important public function or further the interest of the public good. For example, in Wardlow , a police captain called a job applicant's former employer at another police department to inquire about the applicant's background. 403 So.2d at 415. In response to the inquiry, the former employer made statements that the applicant considered to be slanderous. Id. No administrative rule required the former employer to explain the circumstances under which the applicant left his job. Id. at 416. At the time of the applicant's departure, the former employer was personally involved in the investigation of accusations against the applicant. Id. In determining that this communication was within the scope of the former employer's duties and covered by absolute immunity, the Florida Supreme Court wrote:

[W]hile the communication at issue here was privately made, as distinguished from the situation in Barr v. Matteo , we perceive that an important public function was involved. [Former employer]'s job involved attempting to ensure that no unfit persons were allowed to serve as police officers in the City of Miami. An ancillary function, but very important to the public, would be to communicate the results of his department's investigations to inquiring officials from another municipal police department.

Id. ; see also Palm Beach Cty. Health Care Dist. v. Prof'l Med. Educ. , 13 So.3d 1090 (Fla. 4th DCA 2009) (director of district's trauma agency, which funded educational seminars for county health care workers, acted within the orbit of his duties as "caretaker of public funds" when he wrote letter to organization that had oversight over medical training courses); Mueller v. The Fla. Bar , 390 So.2d 449, 451 (Fla. 4th DCA 1980) (holding that Florida Bar employee acted within the scope of his authority in disseminating a press release about a disbarred attorney because doing so was "in the interest of the public good and therefore absolutely privileged."); Fla. State Univ. Bd. of Tr. v. Monk , 68 So.3d 316, 316 (Fla. 1st DCA 2011) (finding that state university enjoyed absolute immunity from defamation suit for releasing report of academic misconduct investigation because "[t]he nature of the charges ... and the fact that FSU is a public university made release of the investigation report necessary."); Johnsen v. Carhart , 353 So.2d 874, 877 (Fla. 3d DCA 1977) (holding that state attorney who had prosecuted plaintiff and subsequently sent an allegedly defamatory letter to the police department expressing his reservations about the plaintiff's fitness to serve as a policeman was immune from defamation liability because he acted "in furtherance of the public good.").

Jastremski claims that she acted within the orbit of her responsibilities as a public university instructor because her statements were made to aid her supervisor with authority over personnel, and to promote a healthy working environment. Yet, there is no allegation in the complaint that Jastremski was acting within the scope of her duties in passing along Cameron's supposed negative comments about coworkers and the department administration.

The face of the complaint does not support the conclusion that Jastremski's conduct fell within the scope of her duties as a visiting instructor. The primary function of a college professor is teaching students. It has been said that President James Garfield described the ideal college as "Mark Hopkins on one end of a log and a student on the other." This epigram identifies the heart of a university as the student-professor relationship. However, Jastremski did not pass along criticisms of Cameron's relationship with students. It is difficult to see how the orbit of an instructor's responsibilities is so broad that it encompasses passing along gossipy repetition of a professor's critical comments of her department and the dean. Like Socrates, a gifted teacher may not always get along with the powers that be. A university is not a totalitarian state where criticism of a superior is strictly verboten.

On remand, Jastremski should have the chance to demonstrate by proof that the orbit of her responsibilities included the conduct here at issue. For example, she might present evidence of the common practice at FAU or policies contained in a university manual. Even if such proof exists, we are hard-pressed to see how Jastremski's statements to the department secretary and a professor at a completely different university are entitled to absolute immunity.

Our remand in this case is similar to the third district's treatment of an absolute immunity issue in a recent case. In Del Pino-Allen v. Santelises , the plaintiff, a college professor, sued her colleague for defamation arising out of statements the defendant made to the administration of the college. 240 So.3d 89, 2018 WL 988379 (Fla. 3d DCA Feb. 21, 2018). The plaintiff claimed that the defendant made the defamatory statements in retaliation for plaintiff's criticism of mistakes purportedly made by the defendant in part of the textbook that they were working on together. Id. The appellee moved to dismiss the complaint "based on his alleged status as a 'public official' entitled to absolute immunity," and the trial court granted the motion. Id.

On appeal, the third district reversed, finding that appellee's claim of absolute immunity was "not discernible from the four corners of the complaint and applicable precedent at this procedural juncture." Id. In reaching this conclusion, the court stated that the complaint failed to "establish that [appellee]'s allegedly defamatory statements all were made within the course and scope of his supervisory or other duties and some special position or status." Id. (citing Cassell , 964 So.2d at 193-94 ). Further, the Court noted, "Factual issues outside the four corners of the complaint may crystallize such matters as the scope of [appellee]'s duties ... and the basis for characterizing a professor at [the college] as a 'public official.' " Id. The court ultimately reversed and remanded for reinstatement of the complaint and for further proceedings, finding that appellee failed to establish a basis for dismissal on a motion to dismiss. Id.

As in Santelises , while "factual issues outside the four corners of the complaint may crystallize such matters as the scope of [Appellee]'s duties," Jastremski has failed to demonstrate her entitlement to absolute immunity at this juncture. Accordingly, we reverse and remand for reinstatement of the complaint and further proceedings.

Reversed and remanded for proceedings consistent with this opinion .

Warner And Conner, JJ., concur.

      Because this case was dismissed on the ground of absolute immunity, that is the only issue we address in this opinion. We do not reach the issues of whether the complaint sufficiently states a claim for defamation or whether qualified immunity may apply.

      Mark Hopkins was the president of Williams College from 1836-1872.


author: Kuntz, J.

text:
    CITY OF FORT LAUDERDALE, Appellant, v. Don NICHOLS and Lobban Construction, Inc., Appellees.
    No. 4D17-2432
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Scott C. Cochran and W. Tucker Craig of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., Fort Lauderdale, for appellant.
    Brian M. Silverio of Silverio & Hall, P.A., Naples, for appellee Don Nichols.
   Kuntz, J.

The City of Fort Lauderdale appeals the denial of its motion for summary judgment based on sovereign immunity over claims of breach of contract and negligence. We affirm the court's denial of summary judgment as to the tort-based claim. But we reverse the court's order as to the breach of contract claim because it is not based on an express written contract by which the City waived sovereign immunity.

In 2002, the City launched a "Paint and Plant" pilot program to use federal grant money to fund exterior improvements to certain residential properties. Appellee Don Nichols applied for the program and was accepted. Through a bidding process, the City selected Lobban Construction, Inc. ("Lobban") to perform the work on Nichols' home. Lobban began the project in 2004, but Nichols claims the work was substandard and caused extensive damage to his home.

Nichols sued the City in 2007, asserting claims for breach of contract and negligence.

He alleged the City failed to supervise Lobban's work and breached agreements to improve his property. He also alleged the City breached its duties to "hire, maintain and supervise" the work "in accordance with the level of care and skill which is recognized as acceptable and appropriate under similar community circumstances." The City moved for summary judgment, asserting Nichols' claims were barred by sovereign immunity. The court denied the motion, and the City appeals.

We review the court's denial of the City's motion for summary judgment based on sovereign immunity de novo . Town of Gulf Stream v. Palm Beach County , 206 So.3d 721, 725 (Fla. 4th DCA 2016). Generally, sovereign immunity derives from the understanding that "[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent ." The Federalist No. 81, at 487 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (emphasis in original) ("This is the general sense and the general practice of mankind."). Id. And, consistent with that understanding, in Florida, sovereign immunity is the rule rather than the exception. Town of Gulf Stream , 206 So.3d at 725.

The key portion of sovereign immunity is the phrase "without its consent." The Florida Legislature has expressly provided for limited waiver of sovereign immunity in tort. See § 768.28, Fla. Stat. (2017). Thus, the court correctly denied the City's motion for summary judgment as to the negligence claims.

But there is no statutory provision waiving sovereign immunity over claims for breach of contract. To overcome this, Nichols claims the City expressly waived sovereign immunity in a contract. We have recognized that a municipality may waive the protections of sovereign immunity when it enters into an express contract. City of Fort Lauderdale v. Israel , 178 So.3d 444, 446 (Fla. 4th DCA 2015). That is not the case here.

Nichols' complaint alleges that the City was contractually obligated "under the construction contract and through the various programs ... offered by the City" to improve his property and to supervise the work as construction manager. There is a provision in the contractor agreement stating that the City has a right to supervise work done by Lobban at Nichols' house. But the contractor agreement is signed by Lobban and Nichols, not the City; it expressly provides that the City is not a party. The City cannot expressly waive sovereign immunity in a contract it did not sign. See City of Orlando v. W. Orange Country Club, Inc. , 9 So.3d 1268, 1272 (Fla. 5th DCA 2009) ; Strout v. Sch. Bd. of Broward Cty. , No. 15-61257-CIV, 2016 WL 4804075, at *9 (S.D. Fla. Feb. 1, 2016) ("Because no express written contract with the terms Plaintiff alleges were breached exists, sovereign immunity applies, and summary judgment is appropriate."). As a result, the City was entitled to summary judgment on the breach of contract claim.

Affirmed in part; reversed in part; remanded for further proceedings.

May and Ciklin, JJ., concur.


author: Klingensmith, J.

text:
    Harvey Michael HILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-272
    District Court of Appeal of Florida, Fourth District.
    [April 25, 2018]
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Appellant Harvey Hill appeals his sentence entered after a violation of probation ("VOP") hearing by raising four issues on appeal. First, whether the trial court abused its discretion by failing to permit appellant to reopen his case after both parties had delivered their closing arguments. Second, whether the trial court failed to conduct an adequate Faretta inquiry when he asked to fire his attorney. Third, whether the trial court erred in denying appellant opportunities to make arguments on his own behalf at sentencing following the violation hearing. And fourth, whether a successor judge properly filed a written probation revocation order and denied appellant's rule 3.800(b)(2) motion based on rulings by a prior judge who had previously recused herself sua sponte. We affirm as to issues one and two without comment, but find that issue three has merit. We reverse for new sentencing on that ground, thus making the fourth issue moot.

At the end of his VOP hearing and following the close of the evidence and closing arguments, appellant was granted the right to discharge his attorney. He conducted the remainder of the hearing pro se, but with standby counsel available. While proceeding pro se, appellant made several requests to present additional evidence to the court, but the trial judge denied those requests.

Thereafter, as the court attempted to orally pronounce its ruling, appellant interrupted and made an ore tenus motion to disqualify the trial judge. This motion was also denied.

Then, without fully declaring its ruling on the VOP, the court asked for recommended sentences. The State recommended fifteen years in prison with credit for time served. Soon after, the following exchange occurred:

[THE STATE]: And Judge, actually I'm sorry, did you make findings in relations to the violations? I think you asked for-
THE COURT: I haven't yet; I'm getting ready to do that.
[THE STATE]: Okay.
[APPELLANT]: Well, I would like to speak on my behalf, Judge.
THE COURT: All right.
[APPELLANT]: When you get a chance.
THE COURT: I'm finding the State has proven by preponderance-
[APPELLANT]: I would like to speak-
THE COURT: -of the evidence-sir? Uhm, the State has proven by a preponderance of the evidence that you were based on the testimony that we heard on March 14th, 2016 as well as December 1st, 2016 as well as the evidence presented today the Court has taken into consideration all that evidence finding that the State has proven by a preponderance of the evidence that you were informed of your conditions of probation by a probation officer at the time-soon after your sentence soon after you were placed on probation.

The court went on to find that appellant violated numerous conditions of probation, revoked and terminated that probation, and sentenced appellant to ten years in prison with credit for time served. The court never provided appellant the opportunity to make an allocution prior to imposing sentence. For the reasons set forth below, this was error.

"We have de novo review of a trial court's compliance with the guarantees of due process." Flegal v. Guardianship of Swistock , 169 So.3d 278, 281 (Fla. 4th DCA 2015).

The appellant did not make a contemporaneous objection to the court's failure to allow him to allocute before pronouncing sentence. Where the issue is not preserved, to qualify as fundamental error the error "must be basic to the judicial decision under review and equivalent to a denial of due process." Id. at 575 (quoting Hopkins v. State , 632 So.2d 1372, 1374 (Fla. 1994) ). However, if a defendant, or his counsel, makes it clear that he or she intends to offer an unsworn statement to the court, then the issue is properly preserved for appellate review. See Jean-Baptiste v. State , 155 So.3d 1237, 1240 (Fla. 4th DCA 2015) ; see also Jackson v. State , 983 So.2d 562, 578 (Fla. 2008). We therefore review this case de novo because appellant made a clear request to make an unsworn statement prior to sentencing.

Florida Rule of Criminal Procedure 3.720(b) imposes requirements on trial judges pertaining to sentencing. This rule states, "The court shall entertain submissions and evidence by the parties that are relevant to the sentence." (Emphasis added).

As this court noted in Jean-Baptiste :

In Florida, defendants in capital cases have a right to make an unsworn statement to the judge prior to sentence being imposed. See Troy v. State, 948 So.2d 635, 648 (Fla. 2006) (recognizing that a defendant in a capital case has the right to "allocate" before the judge prior to sentencing, pursuant to Spencer v. State, 615 So.2d 688 (Fla. 1993) ), but that any statement to the jury during the sentencing phase must be subject to cross-examination). Florida cases do not address whether allocution involves an unsworn statement in non-capital cases. See Ryan v. State, 78 So.3d 14, 15 (Fla. 3d DCA 2011) (Emas, J., concurring in part and dissenting in part) (opining that sentencing courts should not be permitted to sua sponte raise a defendant's apparent lack of remorse, as this would "risk forcing a defendant to choose between maintaining his innocence after trial ... and a defendant's right to allocution before sentencing") (citing Rule 3.720(b) ); Witt v. State, 983 So.2d 708, 708 (Fla. 5th DCA 2008) (accepting state's concession to defendant's claim that his "allocution rights" were violated when court did not give him opportunity to speak or present evidence at sentencing); Adler v. State, 382 So.2d 1298, 1304 (Fla. 3d DCA 1980) ("The court denied the motion to vacate the guilty plea, gave the defendant his allocution rights and pronounced sentence"); Adams v. State, 376 So.2d 47, 56 (Fla. 1st DCA 1979) ("The court otherwise remains free to inform itself as in ordinary sentencing through presentence report hearsay, subject to the defendant's right to produce his own witnesses, and his right of allocution").
In Barlow v. State, 784 So.2d 482 (Fla. 4th DCA 2001), we described the defendant's pre-sentence unsworn submission as an "allocution hearing" which we defined "as an opportunity for the defendant to make an unsworn statement to mitigate the sentence or for a crime victim to make a statement relevant to sentencing." Id. at 483 n.1 (Fla. 4th DCA 2001) (citing Black's Law Dictionary 75 (7th ed. 1999) ); see also People v. Evans, 44 Cal. 4th 590, 80 Cal.Rptr.3d 174, 187 P.3d 1010, 1012 n.2 (2008) ("The word 'allocution' has often been used for a mitigating statement made by a defendant in response to the court's inquiry. " (Citation omitted) ); Craig v. State, 179 So.2d 202, 206 (Fla. 1965) (Ervin, J., dissenting) ("Appellant refers to the fact that a defendant usually has the right of allocution; that is, the right to express without restraint to his sentencer why judgment or sentence should not be meted out to him.").
We now make clear what Barlow, Larrieux , Chillingworth [ v. State , 846 So.2d 674 (Fla. 4th DCA 2003) ], Witt , and Dean have long implied: that a criminal defendant prior to sentencing has the opportunity to make an unsworn statement to the sentencing judge in allocution. Like the receipt of unsworn letters, the opportunity of the defendant to "allocute" gives the defendant a chance to express to the sentencing court any additional information to aid the court in making a sound and reasoned judgment on the most important matter upon which it is called to judge, that is, the appropriate sentence to be meted out to the convicted criminal defendant.

155 So.3d at 1241-42. For our holding, we relied on several cases from this court recognizing a defendant's right of allocution.

For example, in Larrieux v. State , 138 So.3d 1221, 1221-22 (Fla. 4th DCA 2014), we held:

Immediately after the trial court found Larrieux in violation of his probation, it sentenced Larrieux to forty years in prison , the maximum penalty he faced based on the charges for which he was on probation, without giving Larrieux or his counsel an opportunity to present any evidence or argument in mitigation prior to imposing the sentences .
Florida Rule of Criminal Procedure 3.720(b) states that, at a sentencing hearing, "[t]he court shall entertain submissions and evidence by the parties that are relevant to the sentence." Because we find that the trial court departed from the essential requirements set forth in rule 3.720(b), we reverse the sentence and remand the case for a new sentencing hearing.

(Emphasis added).

On this issue, our sister courts agree. For example, the Third District has held:

[U]nder Florida Rule of Criminal Procedure 3.720(b), before imposing sentence the trial court is required to "entertain submissions and evidence by the parties that are relevant to the sentence." Under the rule, defendant was entitled to make a statement to the court. See Culbertson v. State , 306 So.2d 142, 143 (Fla. 2d DCA 1975). As we view the matter, the opportunity to address the court must be allowed even if the case involves a mandatory sentence. Respecting the right of the defendant to address the court "maximiz[es] the perceived equity of the process ...." American Bar Association Standards for Criminal Justice § 18-5.17 commentary at 208 (3d ed. 1994). Where the court refuses to hear a statement by the defendant, the case must be remanded for a new sentencing hearing . See Davis v. State , 642 So.2d 136, 137 (Fla. 3d DCA 1994) ; Hargis v. State , 451 So.2d 551, 552 (Fla. 5th DCA 1984).

Ventura v. State , 741 So.2d 1187, 1189 (Fla. 3d DCA 1999) (emphasis added).

In an analogous case that was also cited as a basis for this court's ruling in Jean-Baptiste , the Fifth District observed in Witt :

William Witt appeals the sentences entered against him after his violation of probation . He argues that his allocution rights were violated because the court never gave him an opportunity to speak or present evidence at the sentencing hearing. The State concedes error and the record reveals that Witt never had an opportunity to offer evidence or make a statement to the court, as required by Florida Rule of Criminal Procedure 3.720. Accordingly, we reverse Witt's sentences and remand for a new sentencing hearing .

983 So.2d at 708 (emphasis added); accord Dean v. State , 60 So.3d 532, 533 (Fla. 1st DCA 2011) ("The trial court erred in failing to give Appellant ... the opportunity to address the court before imposing sentence, pursuant to Florida Rule of Criminal Procedure 3.720(b).").

Thus, Florida case law makes it clear that the right to allocution must be afforded to a defendant prior to sentencing in a VOP hearing, just as that same opportunity must be provided before sentencing in any other criminal trial or proceeding. See Larrieux , 138 So.3d at 1221-22 ; Dean , 60 So.3d at 533 ; Witt , 983 So.2d at 708. Appellant's due process rights were violated in this case because he was not given the chance, despite his request, " 'to make an unsworn statement to mitigate the sentence ....' " Jean-Baptiste , 155 So.3d at 1242 (quoting Barlow , 784 So.2d at 483 n.1 ). Appellant's request to speak to the court on his own behalf may have been interpreted by the trial judge as yet another attempt to delay the conclusion of the hearing. But giving appellant the benefit of the doubt, it could be just as likely that he was requesting his right to allocute before receiving his sentence.

We reverse and remand this matter for the successor trial judge to conduct a new sentencing hearing that provides appellant the opportunity for allocution before sentencing. See Ventura , 741 So.2d at 1189. We leave the decision as to what sentence should ultimately be imposed to the sound discretion of the court.

Affirmed in part, reversed in part, and remanded.

Warner and Ciklin, JJ., concur.


text:
    Robert COPPINGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-462
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2018]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   Klingensmith, J.

Robert Coppinger was charged with violating his probation contrary to the terms of a substantial assistance agreement with the State. The trial court adjudicated him guilty of the violation, and sentenced him to concurrent prison terms on the charges in three separate cases that was the basis of his probation. He raises two issues on appeal. First, he claims the trial court lacked jurisdiction to revoke his probation and impose a sentence on the third degree felony charge carrying a maximum penalty of five years in prison. Second, he alleges that the trial court considered impermissible factors during resentencing. We decline to address the second issue, finding it without merit. However, we agree with Coppinger as to the first issue, and reverse his conviction as to the third degree felony.

In April 2010, Coppinger pled no contest in one case to dealing in stolen property, a second degree felony punishable by a term of imprisonment not exceeding fifteen years; and grand theft of over $300, a third degree felony punishable by a term of imprisonment not exceeding five years. He also pled no contest in a second case to dealing in stolen property. The court withheld adjudication on all charges, and imposed concurrent three-year probationary terms on each count.

In March 2011, Coppinger pled no contest to committing new criminal offenses, and admitted violating his probation on the 2010 cases. At sentencing, the court withheld adjudication, but amended his probation to concurrent four-year probationary terms on the charges stemming from the two cases from 2010 and the charges arising from the new case. However, the trial court did not award Coppinger any credit for his prior probationary service for the 2010 cases.

In July 2011, Coppinger's probation was reinstated after he admitted to violating his probation again by failing to undergo a drug/alcohol evaluation and submit to biweekly urinalysis tests.

Two months later, Coppinger once more pled no contest to committing new criminal offenses, and admitted to violating his probation. This time, the trial court not only reinstated the probation, but also modified it to include an additional six months of community control followed by four years of probation. Again, the trial court did not award Coppinger any credit for his prior probationary service.

In September 2015, after Coppinger committed two technical violations of his probation, he entered into a substantial assistance agreement with the State. The agreement explicitly set out the maximum penalties for each of his probationary charges. Coppinger agreed that the commission of any new criminal offense during the pendency of the agreement, including any traffic criminal offense, would be a violation of the agreement. He also acknowledged that if he violated any of the terms of the agreement, he would subject himself to the maximum penalties described. After entering an open plea to the new VOP charge, the trial court deferred sentencing for thirty days, and released him on his own recognizance so he could render the agreed-upon assistance.

Two weeks later, Coppinger was arrested again, this time following a traffic stop for driving while his license was suspended. Having apparently exhausted the trial court's patience, the judge revoked Coppinger's release, and ordered him held without bond, thus "tolling" Coppinger's probation until sentencing. Following a hearing on his VOP, Coppinger was adjudicated guilty on the three 2010 charges and sentenced to concurrent maximum sentences of fifteen years for the two second degree felonies, and five years for the third degree felony.

Coppinger argues that if the judge had properly given him credit for the time he had previously served on probation, then the trial court would have lacked jurisdiction to both adjudicate and sentence him on the third degree felony charge from 2010.

"Whether a court has subject matter jurisdiction is a question of law reviewed de novo." Mobley v. State , 197 So.3d 572, 574 (Fla. 4th DCA 2016) (quoting Sanchez v. Fernandez , 915 So.2d 192, 192 (Fla. 4th DCA 2005) ).

The time a probationer serves on probation is counted as "time served" when calculating how much time remains to be served on a statutory maximum sentence. See State v. Summers , 642 So.2d 742, 744 (Fla. 1994) ("[U]pon revocation probation credit must be given for time previously served on probation toward any newly-imposed probationary term for the same offense, when necessary to ensure that the total term of probation does not exceed the statutory maximum for that offense."). A trial court lacks jurisdiction to revoke probation and resentence a probationer where he has already served the maximum sentence for that crime. See Knite v. State , 102 So.3d 691, 694 (Fla. 4th DCA 2012) ; Gonzalez-Ramos v. State , 46 So.3d 67, 68 (Fla. 5th DCA 2010) ("[O]nce a term of probation has expired, a trial court lacks jurisdiction to entertain a revocation proceeding based upon a violation that occurred during the term of probation, unless, during the term of probation, appropriate steps were taken to address the alleged violation.").

A review of the record reveals that when he was sentenced on the September 2015 violation, Coppinger was entitled to credit for the time he already served on probation. Based on our calculations, and considering various tolling periods, the additional six months of community control, and the 460 days of probation he had already served; Coppinger had fully completed five years of probation on June 30, 2015. When the amended affidavit and warrant on the technical violations were issued on September 23, 2015, the trial court no longer had subject matter jurisdiction to revoke Coppinger's probation for the third degree felony and could not impose a prison sentence on that charge.

Coppinger's concurrent fifteen-year prison sentences on the two second degree felonies are hereby affirmed, but we reverse that part of the trial court's January 22, 2016 order sentencing Coppinger to a concurrent five-year prison sentence for the third degree felony for lack of jurisdiction. We also remand this case to the trial court for a determination of the proper amount of credit Coppinger should be given for time served on probation and community control. See Kimball v. State , 890 So.2d 495, 496 (Fla. 5th DCA 2004).

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion .

Ciklin and Levine, JJ., concur.

      Coppinger was charged with possession of cocaine, possession of oxycodone, possession of drug without prescription and possession of drug paraphernalia.

      This time he was arrested for petit theft and resisting a merchant.

      It was alleged that Coppinger failed to check in with his probation officer in May, July, and August of 2015, and changed his residence without notifying his probation officer.


author: Gerber, C.J.

text:
    Arkheem J. LAMB, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-545
    District Court of Appeal of Florida, Fourth District.
    [May 2, 2018]
    Carey Haughwout, Public Defender, and Siobhan Helene Shea, Special Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant appeals from his convictions, arising from a carjacking, for grand theft of a vehicle and grand theft. The defendant primarily argues that the trial court erred in permitting the state to introduce into evidence a Facebook video showing the defendant sitting in the stolen car and wearing the victim's stolen watch just hours after the carjacking occurred. We find no error in any of the trial court's decisions arising from the Facebook video's use at trial. Therefore, we affirm the convictions.

We present this opinion in the following sections:

A. The trial:
1. The carjackings;
2. The investigation;
3. The Facebook video.
B. Our review of the defendant's arguments:
1. The discovery objection;
2. The authentication objection;
3. The best evidence objection; and
4. The motion for judgment of acquittal.

A. The Trial

The trial involved two separate carjackings, occurring just a few hours apart and about thirty miles apart. The jury convicted the defendant on the charges arising from the first carjacking, but acquitted him of the charges arising from the second carjacking. We will describe both carjackings because the evidence was intertwined.

1. The Carjackings

Around 10:00 p.m., the first victim was sitting in his car near a hotel in Jupiter. A man opened the first victim's door, put a gun to the first victim's head, and told the first victim to get out. A second man approached, and a pickup truck pulled up. The two men pushed the first victim to the ground and drove off in the first victim's car. The pickup truck followed. The men, besides taking the first victim's car, also took the first victim's phone, watch, wallet, and cash, including Cuban money.

Sometime after 1:00 a.m. that night in Greenacres, located about thirty miles south of the Jupiter hotel, the second victim pulled his car into an apartment complex. Two men then approached, one with a silver gun. The men took the second victim's phone and other items, and drove away in the second victim's car. Then a car matching the description of the first victim's car drove past the second victim, with the driver's side window partially rolled down. That car's driver said something to the second victim before driving away behind the second victim's car. The second victim could not see what that driver looked like or whether other people were in the car.

The following morning, both victims' cars were found in the same area in a city located between Jupiter and Greenacres. Both the first victim's phone and the second victim's phone were found in the first victim's car. The first victim's watch, wallet, and cash were missing.

2. The Investigation

A Jupiter police detective investigated the first carjacking at the Jupiter hotel. A Palm Beach County sheriff's detective investigated the second carjacking in Greenacres. The detectives came into contact with each other because the carjackings were similar.

The first victim identified two of the codefendants as the carjackers. However, the first victim did not identify the defendant as one of the carjackers or one of the persons inside the pick-up truck.

The second victim also identified one of the codefendants as the carjacker holding the gun. However, the second victim did not identify the defendant as the other carjacker or one of the persons inside the car matching the description of the first driver's car.

The detectives determined that the codefendants did not live in Jupiter, so the detectives pieced together the codefendants' connections to each other. During that investigation, the detectives found that the defendant and codefendants had connections to each other from being stopped by law enforcement on prior occasions. They all lived in the city where the cars were found.

The detectives obtained a search warrant for one of the codefendant's phones. On that phone, the detectives found pictures of that codefendant holding a silver gun matching the gun used in the carjackings. When one of the other codefendants was arrested, he possessed a silver gun matching the gun used in the carjackings.

3. The Facebook Video

The Jupiter police department also found on the codefendant's phone a Facebook video showing both stolen cars. The detectives showed the Facebook video to the first victim before trial.

At trial, the state, without having moved the Facebook video into evidence, asked the first victim if he recognized the defendant in the video he was shown. The defendant objected based on the best evidence rule. The trial court overruled the defendant's objection. The first victim testified that the defendant could be seen on the Facebook video driving the first victim's car and wearing the first victim's watch, while one of the codefendants was sitting in the front passenger seat counting the first victim's Cuban money.

After both the first victim and second victim testified, the Palm Beach County Sheriff's detective testified. The state, without having moved the Facebook video into evidence, asked the detective if he recognized anyone in the Facebook video. The defendant objected based on the best evidence rule. The trial court overruled the defendant's objection. The detective testified he recognized the defendant in the Facebook video. The detective also testified that the Facebook video had been posted approximately twenty-one minutes after the second carjacking.

The state then moved to enter the Facebook video into evidence. The defendant objected, and the following exchange occurred at sidebar:

THE COURT: I don't think it's been authenticated yet, has it?
[DEFENSE COUNSEL]: That is our objection, Judge. We believe that this was extracted from the Jupiter Police Department, an agent from the Jupiter Police Department, and they have not yet testified. This witness [the Sheriff's detective] did not extract the video, just merely watched it.
[STATE]: It was just pulled off Facebook. This is a copy of what was pulled off Facebook. This didn't come off anybody's cellphone.
THE COURT: How are you going to authenticate it is the question.
....
[STATE]: For one, it's self-authenticating. You have the Defendant himself saying that it's live, that he is doing it live. Number two, we know the cars were taken, the second car was taken after 1:30 in the morning, and we know the second car was found before 9:15 on the same day. So ... we know it was taken between 1:30 and recovered between 9:15. This video is of both cars that were stolen-
THE COURT: But how was it downloaded, how was it extracted? You still have an authentication-
[STATE]: It's a copy of it off of Facebook.
THE COURT: Did he [the Sheriff's detective] or did somebody else [download the video]?
[STATE]: I don't think it matters who actually pulled it off. Anybody that viewed it can testify yes, that's the Facebook video I pulled off. And it authenticates itself that it occurred on that day and these are the individuals that are on the video.
THE COURT: I don't think you can authenticate it that way. I don't think you can just say I viewed the video and therefore it is authentic. Somebody needs to testify that they took the video off of Facebook ....

After the sidebar, the trial court sustained the defendant's objection to the introduction of the Facebook video based on lack of authentication.

Shortly thereafter, outside of the jury's presence, the state proffered testimony from a Jupiter police digital forensic examiner to authenticate the Facebook video. The digital forensic examiner testified that he had been performing that type of work for approximately six years. He had multiple certifications in computer forensics, and over six hundred hours of training in computer and cellphone forensics, which included a course in online social network investigations from websites like Facebook.

As part of the digital forensic examiner's investigation, he visited one codefendant's public Facebook page. He looked for videos posted within the carjackings' time frame. He found multiple videos on the codefendant's Facebook page, including a Facebook Live video showing people driving a car. He downloaded the video, and verified that the original and the downloaded videos were the same. He testified that at the time of trial, the video remained posted on the codefendant's Facebook page. He confirmed that the video which the state sought to introduce into evidence was the same video which he downloaded. He conceded that he was not sure whether the video's time stamp reflected the time it was recorded, or the time when it was posted on Facebook. He further testified that, aside from the video's time stamp indicating a time shortly after the second carjacking, he had no way of knowing when the video was created.

The defendant objected that a discovery violation occurred. The defendant argued that the digital forensic examiner was listed as a fact witness but should have been listed as an expert witness because he would be opining on the date and time that the video was created, and would be instructing the jury on how Facebook works, with which a layperson is not familiar. The defendant moved for a Richardson hearing.

The trial court found that the digital forensic examiner's testimony was not a discovery violation because "he is simply testifying as to [his] familiar[ity] with Facebook, what he did in downloading it and the features of Facebook."

The defendant then argued that the Facebook video was not authenticated because no witness present during the recording had testified, and no witness had testified as to the reliability of the process which produced the recording.

The state responded that the video was authenticated by its content's distinctive characteristics. According to the state, evidence that the defendant and the codefendants could be seen in the video driving the stolen cars and possessing the stolen property was sufficient to authenticate the video.

The trial court overruled the defendant's authentication objection. The court found that the state had made a prima facie showing of the video's genuineness. The court further reasoned that the video's content established its connection to the case, and the digital forensic examiner testified as to the manner in which the video was produced. The court recognized that its finding of genuineness was merely a threshold finding, and the parties still could argue to the jury about the weight and credibility to be given to the video.

The digital forensic examiner then testified before the jury consistent with his proffered testimony. During his testimony before the jury, the trial court admitted the Facebook video into evidence over the defendant's objections. The trial court also admitted into evidence, over the defendant's objections, a screenshot of the codefendant's Facebook page with the video post as it appeared on the day when the digital forensic examiner downloaded the video. The digital forensic examiner testified that the video's time stamp showed the video was posted at 1:51 a.m.

The state next recalled the Jupiter police detective to testify about the Facebook video's contents. At the beginning of the detective's testimony, the state played the Facebook video for the jury. The state then had the detective testify about his observations from the video based on his knowledge of the defendant's and codefendant's identities. The detective testified that the defendant was driving the first victim's car with one of the codefendants sitting in the passenger seat. The detective testified that the other two other codefendants were driving the second victim's car. The detective identified the defendant's voice as stating "we live" on the video.

After the state rested, the defendant moved for a judgment of acquittal. The defendant argued that the state's proof of grand theft of a vehicle was circumstantial because the first victim had not identified the defendant as one of the carjackers, and the only proof was that the defendant was in the first victim's vehicle on the Facebook video posted after the carjacking. Additionally, the defendant argued that his mere possession of the first victim's car without any proof that he knew the car was stolen was insufficient to show guilty knowledge. The defendant also argued that his mere presence as an after-acquired passenger in the first victim's car was insufficient to prove him guilty of grand theft of that car. As to the charge for grand theft of the first victim's watch, the defendant argued that his mere possession of the watch was insufficient to show guilty knowledge.

The trial court denied the defendant's motion for judgment of acquittal, and found sufficient circumstantial evidence existed for the jury to find the defendant guilty of the charges.

The jury ultimately found the defendant guilty of grand theft of a vehicle and grand theft of the watch in the first carjacking, but acquitted him of charges arising from the second carjacking.

B. Our Review of the Defendant's Arguments

This appeal followed. The defendant's arguments primarily relate to the evidence revealed by the Facebook video. According to the defendant, the trial court erred in four material respects:

1. ruling that the state had not committed a discovery violation by not identifying the Jupiter police digital forensic examiner as an expert and, as a result of that ruling, not holding a Richardson inquiry;
2. admitting the Facebook video into evidence over the defendant's objection that such evidence was not properly authenticated, because the Jupiter police digital forensic examiner and the Jupiter police detective did not record the video and were not shown in the recording of the video;
3. overruling the defendant's best evidence rule objections to allowing the first victim, the Sheriff's detective, and the Jupiter police detective to identify the defendant and the first victim's stolen property in the Facebook video when those witnesses were in the same position as the jury in reviewing the video; and
4. denying the defendant's motion for judgment of acquittal because the state did not prove the defendant intended to participate in the theft of the first victim's car and watch.

We address each argument in turn.

1. The Discovery Objection

"[W]here a trial court rules that no discovery violation occurred, the reviewing court must first determine whether the trial court abused its discretion." Pender v. State , 700 So.2d 664, 667 (Fla. 1997).

Florida Rule of Criminal Procedure 3.220(b)(1)(A)(i) requires the state, as part of its discovery obligation, to disclose expert witnesses. Who constitutes an expert witness may be derived from section 90.702, Florida Statutes (2016):

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.

Here, we agree with the trial court that the state had not committed a discovery violation by not identifying the Jupiter police digital forensic examiner as an expert. Although the digital forensic examiner testified based on his knowledge, skill, experience, training, and education, he did not testify in the form of an opinion. The digital forensic examiner testified in the form of facts-the actions which he took to access one of the codefendant's public Facebook page, find on that Facebook page the live video featuring the defendant and the codefendants, and download that video for use as evidence at trial.

The fact that the digital forensic examiner, while describing his actions, also explained for the jury how Facebook videos are broadcast and then saved to a Facebook profile timeline, did not convert his factual testimony into expert testimony. As the trial court found, the digital forensic examiner "simply testif[ied] as to [his] familiar[ity] with Facebook, what he did in downloading it and the features of Facebook." Like the trial court, we do not consider the digital forensic examiner's familiarity with Facebook to have been sufficiently specialized to fall within the scope of section 90.702. See L.L. v. State , 189 So.3d 252, 256-57 (Fla. 3d DCA 2016) ("Of course, all lay witnesses have some specialized knowledge-knowledge relevant to the case that is not common to everyone.... Indeed, that is why all witnesses-lay or expert-are called: to get what they know about the case that other people do not.") (alteration, quotation marks, and citation omitted).

Based on the foregoing, we conclude that the trial court did not abuse its discretion in finding the state had not committed a discovery violation by not identifying the digital forensic examiner as an expert and, as a result of that ruling, not holding a Richardson inquiry.

2. The Authentication Objection

A trial court's conclusion regarding authentication is reviewed for an abuse of discretion. Mullens v. State , 197 So.3d 16, 25 (Fla. 2016).

"Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." § 90.901, Fla. Stat. (2016).

The mere fact that an item appears online does not make it self-authenticating. Predicate testimony to establish its authenticity or to prove the truth of its content may be required. See Dolan v. State , 187 So.3d 262, 266 (Fla. 2d DCA 2016) ("Any argument that a copy of an online document ... can be admitted ... without any predicate testimony to establish its authenticity or to prove the truth of its content ... borders on the frivolous.").

However, "authentication for the purpose of admission is a relatively low threshold that only requires a prima facie showing that the proffered evidence is authentic; the ultimate determination of the authenticity of the evidence is a question for the fact-finder." Mullens , 197 So.3d at 25. "Evidence may be authenticated by appearance, content, substance, internal patterns, or other distinctive characteristics taken in conjunction with the circumstances. In addition, the evidence may be authenticated either by using extrinsic evidence, or by showing that it meets the requirements for self-authentication." Symonette v. State , 100 So.3d 180, 183 (Fla. 4th DCA 2012) (quotation marks and citation omitted).

Here, the state met the relatively low threshold required to authenticate the Facebook video. The digital forensic examiner visited one of the codefendants' public Facebook page. He looked for videos posted within the carjackings' time frame. He found a Facebook Live video showing the stolen vehicles being driven by the defendant and the codefendants. He downloaded the video, verified that the original and the downloaded videos were the same, confirmed that the video which the state sought to introduce into evidence was the same video which he downloaded, and testified that the video remained posted on the codefendant's Facebook page at the time of trial. The first victim testified that the defendant could be seen on the Facebook video driving the first victim's car while wearing the first victim's watch while a codefendant counted the first victim's Cuban money. The Jupiter police detective also testified that the defendant could be seen on the Facebook video driving the first victim's car while stating "we live" on the video. Based on this evidence, we conclude the state made a prima facie showing of the video's authenticity for the purpose of admission into evidence, thus allowing the jury to make the ultimate determination of the weight to be given to the video's contents.

The defendant cites Santana v. State , 191 So.3d 946 (Fla. 4th DCA 2016), for the proposition that "authentication should be made by the technician who operated the recording device or a person with knowledge of the conversation that was recorded." Id. at 948. However, Santana is distinguishable from the instant case. In Santana , the state entered into evidence an alleged audio recording of phone conversations between the defendant and a confidential informant. Id. at 947. At trial, the confidential informant did not testify, and the investigating agent could not testify that the recordings were true representations of the conversations because he did not monitor the conversations. Id. at 948. We found that although the state had introduced testimony supporting the speakers' identities on the recording, the state did not introduce evidence showing that the recording accurately represented the conversations. Id.

Santana is distinguishable because there, the issue was an audio recording which potentially could have been altered without detection. Here, however, the Facebook video provides an unbroken visual recording of the defendant for an extended period of time.

The defendant's argument that we should require the state to provide testimony from the defendant, codefendants, or other witnesses who appear in the video, or from someone who recorded the video, sets the authentication burden too high. See U.S. v. Broomfield , 591 Fed. Appx. 847, 852 (11th Cir. 2014) (Biggins factors usually applied to admitting government surveillance, such as how recording occurred, the recording equipment's condition, and how relevant speakers were identified, were unnecessary to authenticate a YouTube video, because "the prosecution could seldom, if ever, authenticate a video that it did not create."). Instead, as in Broomfield , if the video's distinctive characteristics and content, in conjunction with circumstantial evidence, are sufficient to authenticate the video, then the government has met its authentication burden. Id.

We choose to follow the Eleventh Circuit and other courts which have permitted the admission of social media videos in criminal cases based on sufficient evidence that the video depicts what the government claims, even though the government did not: (1) call the creator of the videos; (2) search the device which was used to create the videos; or (3) obtain information directly from the social media website. See, e.g., U.S. v. Washington , 2017 WL 3642112, *2 (N.D. Ill. Aug. 24, 2017) (YouTube video which the government contended showed the defendant and several other men pointing firearms at the camera was sufficiently authenticated where law enforcement witness would testify that he watched this video on YouTube, recognized the defendant, and downloaded the video);

State v. Gray , --- So.3d ----, ----, 2017 WL 3426021, *16 (La. Ct. App. June 28, 2017) (YouTube videos were sufficiently authenticated where the investigating officer's testimony provided sufficient support that the videos were what the state claimed them to be, that is, videos depicting the defendant and other gang members in a park and surrounding area). As the Washington court stated, "[w]hile a witness with [knowledge of the video's creation] could authenticate [the] video, Rule 901 does not require it." 2017 WL 3642112 at *2.

Here, as in the foregoing cases, the state met its authentication burden. The state presented the Jupiter Police digital forensic examiner's testimony regarding how the Facebook video was obtained and its distinctive characteristics, and the first victim's and the Jupiter police detective's testimony regarding the Facebook video's distinctive content. Therefore, the trial court did not abuse its discretion in admitting the Facebook video into evidence over the defendant's objection that such evidence was not properly authenticated.

3. The Best Evidence Objection

"A trial court's decision on the admissibility of evidence is reviewed under an abuse of discretion standard. That discretion, however, is limited by the rules of evidence." Ayalavillamizar v. State , 134 So.3d 492, 496 (Fla. 4th DCA 2014) (citation omitted).

The best evidence rule is codified in section 90.952, Florida Statutes (2016): "Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph." "This rule is predicated on the principle that if the original evidence is available, that evidence should be presented to ensure accurate transmittal of the critical facts contained within it." T.D.W. v. State , 137 So.3d 574, 576 (Fla. 4th DCA 2014) (citation omitted).

Here, the original evidence was available and presented. Thus, the best evidence rule was satisfied.

What the defendant appears to be arguing, instead of the best evidence rule, is an unpreserved "lay opinion" objection that the first victim, the Sheriff's detective, and the Jupiter police detective were permitted to identify the defendant and the first victim's stolen property in the Facebook video when those witnesses were in the same position as the jury in reviewing the video. Even though this apparent "lay opinion" objection was not specified as such, we will address it on the merits.

Section 90.701, Florida Statutes (2016), states:

If a witness is not testifying as an expert, the witness's testimony about what he or she perceived may be in the form of inference and opinion when:
(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and
(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

We recently examined section 90.701 to determine the circumstances when a court may allow a lay person to identify persons in recordings. As we stated in Alvarez v. State , 147 So.3d 537 (Fla. 4th DCA 2014) :

Even non-eyewitnesses may testify as to the identification of persons depicted or heard on a recording so long as it is clear the witness is in a better position than the jurors to make those determinations. See Johnson v. State , 93 So.3d 1066, 1069 (Fla. 4th DCA 2012) (holding no error in admission of detective's identification of defendant as individual in surveillance video where defendant changed his appearance after the event recorded in the video, and the detective had a personal encounter with the defendant shortly after the event and before he changed his appearance); State v. Cordia , 564 So.2d 601, 601-02 (Fla. 2d DCA 1990) (finding that officers' identification of defendant's voice on a recording was admissible where officers had worked with defendant in the past and were familiar with his voice).
However, "[w]hen factual determinations are within the realm of an ordinary juror's knowledge and experience, such determinations and the conclusions to be drawn therefrom must be made by the jury." Ruffin v. State, 549 So.2d 250, 251 (Fla. 5th DCA 1989) (finding the court erred in allowing three officers to identify defendant as the man in the videotape, where the officers were not eyewitnesses to the crime, did not have familiarity with Ruffin, and were not qualified as experts in identification); see also Proctor v. State, 97 So.3d 313, 315 (Fla. 5th DCA 2012) (finding court erred in allowing officer to identify defendant as the perpetrator in a surveillance video where the officer was in no better position than the jury to make that determination); Charles v. State, 79 So.3d 233, 235 (Fla. 4th DCA 2012) (finding court erred in allowing detective to testify that he could not identify the defendant as the person on the surveillance video the first time he watched it, but "he was later able to piece things together and identify the person in the video" as the defendant).

Alvarez , 147 So.3d at 542-43.

Here, the two investigating detectives were in a better position than the jury to identify the defendant and codefendants in the Facebook video, because the detectives were familiar with the defendant and codefendants through their investigation and interviews, and because the codefendants were not jointly tried with the defendant and did not testify before the jury.

Additionally, the first victim was in a better position than the jury to identify his stolen car, stolen watch, and stolen Cuban money in the Facebook video because he was familiar with those items. Although the first victim identified the defendant in the Facebook video in the context of identifying the stolen property, we consider the first victim's identification of the defendant to be harmless given that the two investigating detectives identified the defendant in the Facebook video, and the state played the Facebook video for the jury.

In sum, because the two investigating detectives and the first victim were in a better position than the jury to identify the persons and stolen property in the Facebook video, the trial court did not abuse its discretion in overruling the defendant's best evidence/lay opinion objection to the investigating detectives and the first victim describing the Facebook video's contents.

4. The Motion for Judgment of Acquittal

The standard of review for denial of a motion for judgment of acquittal was stated in Pagan v. State , 830 So.2d 792 (Fla. 2002) :

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. However, if the State's evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant's reasonable hypothesis of innocence.

Id. at 803 (internal citations omitted). Nevertheless, "[t]he State is not required to rebut a hypothesis of innocence that is unreasonable." Westbrooks v. State , 145 So.3d 874, 878 (Fla. 2d DCA 2014).

In the instant case, the defendant's hypothesis of innocence was that he was not present when the carjackings occurred and was not involved in the carjackings. Rather, he argued, he made a poor decision by being in the first victim's car and hanging out with the codefendants after the carjackings occurred. Thus, the defendant argued, he lacked the intent to participate in the crimes.

The state's evidence rebutted the defendant's hypothesis of innocence. The defendant appeared in the Facebook video just a few hours after the first carjacking, and less than an hour after the second carjacking, driving the first victim's car, wearing the first victim's watch, and stating "we live" when the video was recording, while a codefendant counted the first victim's Cuban money. Both victims identified from the crime scenes two codefendants who appeared in the video with the defendant. Viewing this evidence in the light most favorable to the state, a rational trier of fact could find beyond a reasonable doubt that the defendant was part of the scheme to steal the first victim's property, and not merely in the wrong place at the wrong time with the wrong crowd after the fact. See § 812.022(2), Fla. Stat. (2016) ("[P]roof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen."); T.S.R. v. State , 596 So.2d 766, 767 (Fla. 5th DCA 1992) ("Although there is no direct physical evidence linking the defendant to the crimes[,] the finder of fact has the right to infer guilt of theft from the unexplained possession of recently stolen goods.").

To the extent the defendant's intent was in question, the evidence presented was sufficient to send that question to the jury. See Salter v. State , 77 So.3d 760, 763 (Fla. 4th DCA 2011) (the "intent to participate in a crime is a question for the jury and a trial court properly denies a motion for judgment of acquittal where an issue remains for the jury to decide.").

Based on the foregoing, the trial court did not err in denying the defendant's motion for judgment of acquittal.

Conclusion

But for the defendant's participation in the Facebook video showing off the bounty from that night's criminal escapade, the state may not have had sufficient evidence to convict the defendant as a participant in these crimes. However, the Facebook video existed, and made the state's case. The trial court: (1) properly ruled that the state had not committed a discovery violation in its disclosure of the digital forensic examiner who obtained the Facebook video; (2) properly overruled the defendant's authentication objection to the Facebook video's admission based on the state's witnesses' testimony; (3) properly overruled the defendant's best evidence/lay opinion objection to allowing the state's witnesses to identify the defendant and the first victim's stolen property in the Facebook video; and (4) properly denied the defendant's motion for judgment of acquittal. We find no merit in the defendant's other arguments not discussed in this opinion. We affirm the defendant's convictions.

Affirmed.

Gross and Kuntz, JJ., concur.

      But see, e.g., U.S. v. Hassan , 742 F.3d 104 (4th Cir. 2014) (trial court did not abuse its discretion in admissions of Facebook pages and YouTube videos where the government presented the certifications of records custodians of Facebook and Google, verifying that the Facebook pages and YouTube videos had been maintained as business records in the course of regularly conducted business activities, and by tracking the Facebook pages and Facebook accounts to the defendant's mailing and e-mail addresses via internet protocol addresses); People v. Franzese , 154 A.D.3d 706, 61 N.Y.S.3d 661 (Sup. Ct. 2017) (YouTube video was properly authenticated by a YouTube certification, which indicated when the video was posted online, by a police officer who viewed the video at or about the time that it was posted online, by the defendant's own admissions about the video made in a jail phone call, and by the video's distinctive characteristics).